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2018 DIGILAW 18 (GAU)

Dipak Kr Das v. State of Assam

2018-01-04

HRISHIKESH ROY

body2018
JUDGMENT : Hrishikesh Roy, J. Heard Mr. S.K. Goswami, the learned Counsel appearing for the petitioner. The learned Addl. Sr. Government Advocate Mr. D. Nath appears for the respondents. 2. The petitioner is a former constable of 5th Assam Police Battalion, Sontilla and the challenge here is to the order dated 30.4.2003 (Annexure-X), whereby, in pursuant to the D.P. No.5/2001, the constable was removed from service. 3. At the relevant period, the petitioner's No.12 Platoon was posted at Udali in Nagaon district. The delinquent got involved in drunken brawl on 9.9.2000 with his fellow constables during which the petitioner was hit on his head by his fellow constable Dilip Gogoi. Thereafter the group was punished and for the petitioner, the authority awarded Pithoo Drill punishment for 10 days for the indisciplined conduct and further 4 days for getting drunk in public. 4. The injured constable who had not recovered from the head injury, was compelled to perform the Pithoo Drill for 2 days on 12.10.2000 and 13.10.2010. When the constable was unable to take further punishment in his injured state, he sought leave to receive better treatment but leave was denied. At that stage, the delinquent left for home on 14.10.2000, without requisite permission. 5. As the constable went missing without permission, he was placed under suspension on 16.10.2000 and this was followed by the show-cause-notice dated 20.7.2001, issued under Section 7 of the Police Act read with Rule 66 of the Assam Police Manual. The statement of allegation being relevant, is extracted hereinbelow for ready reference :- "STATEMENT OF ALLEGATION While posted at No.12 Platoon, Camp-Udali P.P. on 9.9.2000 he produced scuffle with other platoon personnel namely (1) Const. 812 Dilip Chandra Gogoi, (2) LNK Abdul Hye and (3) LNK. Tankeswar Gogoi, under influence of liquor. Accordingly, he was closed to BN HQ. and heard in person in O.R. on 11.10.2000. But, since his explanation was found not satisfactory, he was awarded P.D. for 10 days 2 Hrs. daily for producing the scuffle and awarded another P.D. for 4 days 2 hrs. daily in addition, for consuming alcohol. Thereafter, the Const. was found unauthorisedly absent from BN HQ w.e.f. 14.10.2000 P.M. in course of undergoing his P.D. and continuing the same till date without any intimation to BN HQ. daily for producing the scuffle and awarded another P.D. for 4 days 2 hrs. daily in addition, for consuming alcohol. Thereafter, the Const. was found unauthorisedly absent from BN HQ w.e.f. 14.10.2000 P.M. in course of undergoing his P.D. and continuing the same till date without any intimation to BN HQ. He is, therefore, charged with gross misconduct and remissness for initiating a departmental action aiming his removal from parent service." 6. According to the delinquent, he was never served the show-cause-notice or the statement of allegation and thus, the departmental enquiry proceeded ex parte. However on the basis of the available evidence of the prosecution, the Enquiry Officer on 25.2.2003 (Annexure-XII) opined that the charges are proved. Acting on the inquiry finding, the disciplinary authority imposed the punishment of removal from service, under the impugned order of 30.4.2003 (Annexure-X). The penalization of the constable was then challenged in the WP(C) No.2401/2004 but the High Court directed redressal by the appellate authority under its order dated 10.10.2007 (Annexure-VIII). The matter was then decided by the Appellate Authority who upheld the penalization on 23.6.2009 (Annexure-XIV). 7.1 The learned Counsel Mr. S.K. Goswami submits that the Disciplinary Proceeding is vitiated since it was not conducted in accordance with the procedure prescribed under Rule 66 of the Assam Police Manual and the Counsel argues that due opportunity was not afforded to the delinquent as the Charge Memo and related documents were never served on the constable. 7.2 The petitioner submits that after he was badly injured on his head by the fellow constable Dilip Gogoi and while he was bedridden at his home, a man from the local police station obtained his signature on 2.8.2001 without serving the concerned show-cause-notice or the statement of allegation and accordingly it is argued that the delinquent was unaware about the Disciplinary Proceeding and that is how, the ex-parte inquiry is vitiated in law. 7.3 The learned Counsel refers to the Medical Certificate(s) (Annexure-I IV) to project that the delinquent suffered from Depressive Psychosis for a considerable period of time for which he was also admitted in the psychiatric unit of the Assam Medical College Hospital and accordingly it is argued that the delinquent was not in the normal frame of mind, to take necessary steps or to articulate an appropriate reply, to the 2nd show-cause-notice and accordingly it is contended that the delinquent has been penalized through an unfair process. 8.1 On the other hand, Mr. D. Nath, the learned Addl. Sr. Government Advocate submits that the petitioner had appended his signature on 2.8.2001 on the reverse of the show-cause-notice dated 20.7.2001 and accordingly the Government Advocate submits that the delinquent, despite the notice of the Disciplinary Proceeding, deliberately absented himself from the enquiry and thus the respondents argue that the delinquent cannot claim advantage for the ex- parte proceeding. 8.2 The learned govt. counsel contends that as a police constable, the delinquent is expected to be much more disciplined and accordingly his absence without authorization is projected to be a serious mis-conduct and accordingly the punishment of removal from service, is contended to be justified. 9. The procedural requirement for imposing punishment under Rule 66 of the Assam Police Manual was examined by the Division Bench of this Court in Laldula vs. The Union of Territory of Mizoram, 1984 1 GauLR 40 and essential steps which is required to be complied for imposing major punishment, were delineated by the Court in the following manner :- ".................. There cannot, therefore, be any doubt about the proposition that Rule 66 of Assam Police Manual cannot supplant the constitutional mandate of Art.311 and the same has to be read as merely supplementing the minimum constitutional safeguards provided therein to a civil servant. There cannot, therefore, be any doubt about the proposition that Rule 66 of Assam Police Manual cannot supplant the constitutional mandate of Art.311 and the same has to be read as merely supplementing the minimum constitutional safeguards provided therein to a civil servant. In our opinion, therefore, reading together Art.311 and Rule 66 of the consecutive steps in the disciplinary proceeding which have to be taken in respect of a person subject to these Rules can be summarized as follows : 1st step The delinquent will be informed of the "charge" with which shall be furnished to him "Statement of allegations" which in the course of any "preliminary" inquiry (not the constitutional "inquiry") the disciplinary authority may collect and the "inquiry" as contemplated by Art.311(2) into the charge will then follow and the same will commence only after the "charge"? duly communicated to the delinquent as a sequel to or on the basis of the investigation, made in the course of the "preliminary inquiry". 2nd step The inquiry into the "charge" contemplated under Art.311(2) postulating the requirement of "reasonable opportunity" being afforded to the delinquent will necessitate evidence being taken in support of the charge if the charge is not admitted. Indeed, this is also contemplated by Rule 66 itself although it is necessary to clarify that the requirement of the Rule "if he so desires or if the authority concerned so directs" must be so read as to conform to the constitutional imperative embodied in Art.311(2). Taking of evidence to establish the charge after the same is communicated to the delinquent in view of the constitutional imperative cannot be dispensed with except in the manner provided by the constitutional provision itself, namely the exceptional cases covered by the proviso to Art.311(2). Hearing the delinquent in person, taking evidence offered by him and communication of the decision arrived at thereafter on the "charge" will conclude the stage. 3rd step If in the course of the inquiry it is found from the evidence that the charge or charges preferred against the delinquent are duly made out then he will be given a second opportunity to show cause against the proposed penalty if such penalty be either dismissal or removal or reduction in rank. 3rd step If in the course of the inquiry it is found from the evidence that the charge or charges preferred against the delinquent are duly made out then he will be given a second opportunity to show cause against the proposed penalty if such penalty be either dismissal or removal or reduction in rank. But, because of the amendment (in 1976) of Art.311, the "second opportunity" has become merely optional in those cases in which the proposed penalty is also communicated with the decision arrived at when the second step is completed. ........................." 10. What follows from above is that the requirement for commencing a Disciplinary Proceeding is to inform the delinquent of the charges and to furnish him the statement of allegation and the list of witnesses. Thereafter the Rules postulate reasonable opportunity being afforded to the delinquent to defend the charge. Recording of evidence of both sides and communication of the decision arrived at thereafter, concludes the second stage of the proceeding. Next the second opportunity is to be given, before punishment is imposed. 11. In the instant case the delinquent projects that he suffered grievous injury on his head during the assault on 9.9.2000 but only elementary treatment was given to him. Thereafter, the Pithoo Drill penalty for 14 days was inflicted on him for the brawl and being drunk. But after 2 days of drill punishment, the sufferings became unbearable and the delinquent approached the authority to allow him to grant him leave or to send him for specialized medical treatment. But since the same was refused, the delinquent out of compulsion, had to leave his platoon in order to receive better treatment for his head injury and sufferings. 12. It is the further case of the delinquent that while the petitioner was under medical treatment and was bedridden at his Nalbari home, a constable visited at his residence and while he was lying on his bed, his signature was obtained but no document in the nature of show cause or statement of allegation was ever served on the constable. Therefore, notwithstanding the petitioner's signature available on the reverse of the document, it is contended that the required statement of allegation or the show-cause-notice, was not served on the delinquent. Therefore, notwithstanding the petitioner's signature available on the reverse of the document, it is contended that the required statement of allegation or the show-cause-notice, was not served on the delinquent. Such specific averments made in paragraph-4 of the writ petition is answered in paragraph-6 of the counter affidavit but the counter averments is somewhat evasive as it reflects that the delinquent put his signature on 2.8.2001 in the backside of the show-cause-notice. But there is no categorical assertion unlike the averments in the writ petition that, the statement of allegation or the show-cause-notice was actually furnished to the delinquent. Therefore, the Court is inclined to accept that only signature of the delinquent was obtained on the reverse of the documents without actually furnishing the show-cause-notice, and the statement of allegation. Thus it is concluded that the Disciplinary Proceeding was initiated, in violation of the prescribed requirement of Rule 66 of the Assam Police Manual. 13. That apart, the Medical Certificate(s) enclosed to the writ petition suggests that the delinquent was receiving treatment since 20.10.2000 until 4.10.2013 for Depressive Psychiatric Syndrome and this indicates that the delinquent was not in normal frame of mind following the head injury and his drinking problem. Thus it is quite possible that the delinquent in his bedridden state, was not in a position to understand the implication of his signature, on the reverse of the document particularly when, it is the specific assertion that that the show-cause-notice and the statement of allegation were never furnished him. Therefore, in my perception, the requirement of affording reasonable opportunity under Rule 66 of the Assam Police Manual, have been infringed in the instant case. 14. As a policeman, the delinquent was undoubtedly required to maintain strict discipline and for them unauthorized absence can be construed as a serious misconduct, warranting the punishment of removal. But the court cannot ignore the fact that the delinquent suffered head injuries on 9.9.2000 when he was hit with a brick by a fellow constable and adequate treatment was not made available, to the injured man. Then he was inflicted with Pithoo Drill punishment for 14 days but the injured stated that he barely managed only 2 days of drill punishment, when his sufferings become unbearable. Then he was inflicted with Pithoo Drill punishment for 14 days but the injured stated that he barely managed only 2 days of drill punishment, when his sufferings become unbearable. That is how, the constable requested for specialized treatment or leave but when it was not forthcoming, he was compelled by circumstance, to abandon his platoon to receive treatment for his injury at his native place. In such backdrop, the possibility of acute compulsion for the suffering constable cannot entirely be ruled out and it may not be a case of willful absence/desertion. Therefore, the argument of the Government Advocate that the charge of unauthorized absence being a serious misconduct, warranting the punishment of removal, may not apply to the facts of the present case. 15. For imposing major penalty, the concerned delinquent must be informed of the charges and should be afforded adequate opportunity to defend himself. However in the present case, infraction of the procedural safeguards envisaged under Rule 66 of the Assam Police Manual, are clearly evident. 16. Following the above discussion, the Court is of the view that the departmental action is vitiated and accordingly the penalization of the constable on the basis of the unlawful proceeding in breach of the principles of audi alteram partem, will justify court's intervention. 17. In the above circumstances, I quash the removal order and direct the authorities to consider the reinstatement of the delinquent, subject to his medical fitness. As regards back wages, as the petitioner was paid subsistence allowance i.e. 50% of his wages until the stage of removal, he need not be paid any further amount towards back wages until the removal order of 30.4.2003. However, since removal order is now quashed, he shall be paid 50% of the back wages until the time he is considered for reinstatement. If he is found to be unfit for reinstatement, no responsibility for paying wages after the medical assessment will arise. But if any pension is payable on account of service rendered, the petitioner shall be entitled to such relief. This order will not however foreclose the option of the disciplinary authority to proceed de novo, if advised, in strict adherence to the requirement of Rule 66 of the Assam Police Manual. To ensure compliance of this order, the petitioner will report before the Commanding Officer of the 5th Assam Police Battalion on 29.1.2018. It is ordered accordingly. 18. This order will not however foreclose the option of the disciplinary authority to proceed de novo, if advised, in strict adherence to the requirement of Rule 66 of the Assam Police Manual. To ensure compliance of this order, the petitioner will report before the Commanding Officer of the 5th Assam Police Battalion on 29.1.2018. It is ordered accordingly. 18. With the above order, the case stands disposed of without any order on cost. A copy of this order be furnished to Mr. D. Nath.