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2017 DIGILAW 1086 (GAU)

Dharanidhar Barman v. State of Assam

2017-08-09

AJIT SINGH, MANOJIT BHUYAN

body2017
JUDGMENT : Manojit Bhuyan, J. 1. Heard Mr. S. Dutta, learned counsel for the appellant/writ petitioner as well as Mr. RKD Choudhury, learned Additional Senior Government Advocate, Assam for all the respondents. This intra-Court appeal is presented against the order dated 7.2.2017 dismissing WP (C) 1985/2010 instituted by the appellant herein. Before proceeding with the case it is observed that the present appeal was admitted for decision only on the question of proportionality of punishment imposed on the appellant/writ petitioner. 2. Facts involved are that the appellant at the relevant time was serving as a Constable, Traffic Branch at Goalpara Police Station. For the period from 13.04.2001 to 07.08.2002, covering 482 days, he remained unauthorizedly absent from duty. In this regard communications were made to him vide letters dated 17.04.2001, 16.07.2001, 05.11.2001 and 25.02.2002 through local police station, however, without yielding any positive response. Eventually, he was charged for indisciplined conduct, gross negligence and remissness of duty. Accordingly, Show Cause Notice was issued on 23.08.2002 for his explanation which, however, was not responded to. This was followed by Notices dated 7.1.2004, 14.06.2004 and 2.6.2004, which again did not evoke any response from the appellant side. Consequently, an ex-parte enquiry was initiated vide order dated 6.7.04 by appointing an Enquiry Officer to conduct the enquiry and to submit the report. During the course of the enquiry, effort was again made to afford opportunity of hearing to the appellant and the same was done by issuance of notice through the Officer-in-Charge of Nalbari Police Station as well as by W/T Message through the In-Charge of Kamarkuchi Out Post. The appellant did not respond to any. On the basis of evidence brought on record as well as on the basis of the statements tendered by 5(five) prosecution witnesses (PWs), the Enquiry Officer submitted Report to the Superintendent of Police, Goalpara by recording that the charges stood proved in respect of his absence from duty from 13.04.2001 to 07.08.2002 from Goalpara Police Station (Traffic Branch) without leave/permission. Thereafter, vide notice dated 3.5.2005 of the Superintendent of Police, Goalpara, copy of the Enquiry Report was submitted to the appellant for his written representation on the major punishment proposed to be inflicted as per the Assam Police Manual, Part-III. Thereafter, vide notice dated 3.5.2005 of the Superintendent of Police, Goalpara, copy of the Enquiry Report was submitted to the appellant for his written representation on the major punishment proposed to be inflicted as per the Assam Police Manual, Part-III. The appellant submitted his representation and on consideration thereof, the Superintendent of Police, Goalpara issued order dated 31.5.05, affirming the charges of in disciplined conduct, gross negligence and remissness of duty and imposed the penalty of discharge from service with immediate effect. 3. The aforesaid order of penalty dated 31.05.2005 was assailed by the appellant in WP(C) 6554/2005. The same was allowed by order dated 22.06.2009 by setting aside the order of penalty as it appeared to the Court that by the Notice dated 03.05.2005 of the Superintendent of Police, Goalpara the petitioner was not given any opportunity to make representation against the findings recorded by the Enquiry Officer in the Report, which caused prejudice to the appellant. A direction was made to the Disciplinary Authority to issue Notice to the appellant allowing him to make representation and thereafter to consider the matter and pass necessary order. In strict terms of the directions of the Court, the Notice dated 27.08.2009 was issued to the appellant, to which a representation was also submitted by the appellant on 02.09.2009. After considering the explanation so submitted and also after hearing the appellant in person, the order dated 27.10.2009 was passed holding that it is appropriate to inflict the major punishment of discharge from service on the appellant. The appeal preferred by the appellant under Rule 66 of Part-III of the Assam Police Manual was also rejected on 08.10.2010. The said orders dated 27.10.2009 and 08.10.2010 were put to challenge in the related writ petition, i.e. WP(C) 1985/2010, which was dismissed vide order dated 07.02.2017. Aggrieved, the present appeal has been preferred. 4. As alluded to above, the present appeal was admitted for consideration only on the question of the proportionality of the penalty. Mr. Dutta for the appellant submits that on 13.04.2001 the appellant had to suddenly leave his post on getting information that his daughter was suffering from typhoid and was undergoing treatment at Nalbari Civil Hospital. It is submitted that the appellant had left for home after taking verbal permission from the Officer-In-Charge of the Traffic Branch. Mr. Dutta for the appellant submits that on 13.04.2001 the appellant had to suddenly leave his post on getting information that his daughter was suffering from typhoid and was undergoing treatment at Nalbari Civil Hospital. It is submitted that the appellant had left for home after taking verbal permission from the Officer-In-Charge of the Traffic Branch. While he was attending to his daughter, he himself suffered from malaria and jaundice and he finally recovered and was fit for duty on 08.08.2002. 5. From the available materials, it is seen that the Officer-in-Charge of Traffic Branch, who deposed as PW-2, had not supported the statement that his permission was obtained verbally by the appellant. In fact, according to the PW-2, the appellant was found absent from duty from 13.04.2001 and when until 15.04.2001 he did not turn up for duty, a written report was made to the Superintendent of Police, Goalparaon 15.04.2001 itself through the Officer-in-Charge of Goalpara Police Station. 6. Apparently, the appellant did not respond to the various Show Cause Notices nor did he participate in the enquiry proceedings. Even before this Court no documents were enclosed to support any medical ailment of his daughter or of his own ailment for the period between 13.04.2001 to 08.08.2002. The medical documents so annexed to the writ petition are in respect of periods subsequent to 08.08.2002. In short, the appellant was away for 482 days from duty without being able to show any justifiable reason. 7. It must borne in mind that the appellant belonged to a disciplined force and it was his solemn duty to maintain discipline, act with responsibility, perform duty with sincerity and serve the institution with honesty. It is well settled that an act of indiscipline by a person belonging to a disciplined force has to be dealt with sternly. If the appellant wants to establish that penalty is disproportionate to the proved charges, the burden squarely lies upon him. In the facts of this case, the appellant miserably failed to explain his unauthorized absence from duty for 482 days by means of any documents or by showing any justifiable reason to the satisfaction of the Court. No mitigating circumstances has been placed by the appellant to show as to how the punishment can be characterized as disproportionate and/or shocking to the judicial conscience. 8. In Union of India & Ors. Vs. Ghulam Mohd. No mitigating circumstances has been placed by the appellant to show as to how the punishment can be characterized as disproportionate and/or shocking to the judicial conscience. 8. In Union of India & Ors. Vs. Ghulam Mohd. Bhat, reported in (2015) 13 SCC 228, the Supreme Court had considered the aspect of proportionality of punishment when the appellant therein, being a CRPF constable, was absent from duty for more than 300 days. It was noticed by making reference to State of U.P. Vs. Ashok Kumar Singh, (1996) 1 SCC 302 , that in the case of persons belonging to disciplined forces, an act of indiscipline by such a person needs to be sternly dealt with. Without there being any mitigating circumstances and the appellant therein not being able to show any justifiable reason, the Supreme Court held that the order of removal from service did not suffer from any infirmity. 9. In Chennai Metropolitan Water Supply and Sewerage Board & Ors. Vs. T.T. Murali Babu, reported in (2014) 4 SCC 108 , the Supreme Court held that the doctrine of proportionality in the context of imposition of punishment gets attracted when the Court on the analysis of materials brought on record reaches a conclusion that the penalty so imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the Court. Turning to the instant case, there is no dispute that the appellant was unauthorizedly absent for 482 days. He not only displayed an uncharacteristic attitude in not responding to repeated communications from the employer and the Enquiry Officer, but also failed to demonstrate any justifiable reason of his absence for the long period of 482 days before this Court. In this view of the matter, we are of the firm opinion that the punishment of discharge from service was not disproportionate to the gravity of charges. In the instant case, the doctrine of proportionality is not remotely attracted, and, as such, there can be no question to interfere with the findings and decisions of the learned Single Judge and that of the Disciplinary Authority/Appellate Authority. In view of the above, this writ appeal being devoid of merit, stands accordingly dismissed. Parties are left to bear their own cost. Appeal Dismissed