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2018 DIGILAW 339 (GAU)

Shrimanta Boro v. State of Assam

2018-02-22

HRISHIKESH ROY

body2018
JUDGMENT & ORDER : 1. Heard Mr. B.K. Das, the learned counsel appearing for the petitioner. The respondents are represented by Mr. D. Nath, the learned Addl. Senior Govt. Advocate, Assam. 2. The petitioner while serving as a Constable of the 7th Assam Police Battalion (in short, the 7th AP Bn.), was subjected to the disciplinary proceeding (D.P. No.25/2000) and initially he was removed from service on 20.6.2001. The belated Appeal filed on 8.11.2003 was rejected as time barred but the Appellate Authority’s decision was challenged in the WP (C) No.8161/2004. The High Court in its order dated 7.5.2008, had directed consideration of the Appeal on merit and consequently, the impugned speaking order was passed on 15.9.2008 (Annexure-B). The Appellate Authority considered the nature of the misconduct and also the explanation of the delinquent and opined that the punishment of removal be substituted with the punishment of stoppage of three annual increments with cumulative effect. Thus the delinquent was reinstated on 4.10.2008 (Annexure-C), with the declaration that he shall not get any financial benefits for the period 20.6.2001—4.10.2008, but the absence period will be counted as on duty, for the purpose of pension. 3. The D.P. No.25/2000 was initiated with the show cause notice dated 19.3.2000, with the following statement of allegation, which is quoted here-in-below for ready reference: "STATEMENT OF ALLEGATION While C/No.381 Srimanta Boro was on deputation to Superintendent of Police (DSB) Office, Kokrajhar and attached with Sri Kanakeswar Narzary, the then Chief of B.A.C., to perform duty as P.S.O. detailed by the Superintendent of Police (DSB) Office, Kokrajhar, he was found absent from duty on 17.4.2000, leaving his issued arms and ammunition in the M.L.A. Hostel Room No.52, in an unsafe condition, as reported by the then Chief of B.A.C. Thus he is charged with gross misconduct and dereliction of duty. On receipt of absent report, a notice was issued to him vide this Memo No.7/R/D/2000/3158-59 dt. 31.5.2000. Accordingly to resume duty he reported his joining to the Superintendent of Police (DSB) Office, Kokrajhar on 28.7.2000 forenoon after remaining unauthorized absence for a period of 102 days w.e.f. 17.4.2000 Am to 27.7.2000 Pm., without any leave or permission from the competent authority. This amounts to willful negligence and indisciplined act on his part. 31.5.2000. Accordingly to resume duty he reported his joining to the Superintendent of Police (DSB) Office, Kokrajhar on 28.7.2000 forenoon after remaining unauthorized absence for a period of 102 days w.e.f. 17.4.2000 Am to 27.7.2000 Pm., without any leave or permission from the competent authority. This amounts to willful negligence and indisciplined act on his part. Therefore, he is charged with willful negligence, gross misconduct, indisciplined act and dereliction of duty on two occasions which renders him unfit to be retained in the disciplined police force." 4. In his response dated 14.10.2000, the delinquent explained that he was suffering from malaria and that is how he remained absent from duties for about 102 days, from 17.4.2000— 28.7.2000. He also offered to produce the medical certificate during the inquiry. The explanation of the delinquent was found to be unsatisfactory and accordingly, the 2nd in Command of the 7th A.P. Bn. was asked to enquire into the allegation. 5. The delinquent participated in the inquiry and the prosecution witnesses were examined in his presence, with opportunity for cross-examination. The petitioner, who was detailed as the P.S.O. with the then Chief of the Bodoland Autonomous Council (B.A.C.), testified that he was allowed by the protectee to go home. He also produced the medical certificate to show that he was unwell from 16.4.2000. But the Inquiry Officer found discrepancy in the oral testimony and the medical certificate and accordingly, disbelieved the delinquents version. Thus the charge of unauthorized absence and the irresponsible conduct of leaving his arms and ammunitions in the MLA Hostel, was found to be a gross act of negligence, misconduct and indiscipline and thus the charges were held to have been proved on 18.6.2001, by the Inquiry Officer. 6. Considering the nature of the charges and the negligent conduct of the P.S.O., the punishment of removal was ordered initially but the Appellate Authority, under the impugned order of 4.10.2008 (Annexure-C), has substituted the punishment with stoppage of three annual increments with cumulative effect, under the speaking order dated 15.9.2008 (Annexure-B). 7. As the delinquent was reinstated as a constable in his own 7th A.P. Bn., w.e.f. 4.10.2008, the learned counsel Mr. B.K. Das submits that the petitioner should be granted back-wages on reinstatement and he be not deprived of his seniority, on account of the initial removal order. 8. In his turn, Mr. D. Nath, the learned Addl. Senior Govt. 7. As the delinquent was reinstated as a constable in his own 7th A.P. Bn., w.e.f. 4.10.2008, the learned counsel Mr. B.K. Das submits that the petitioner should be granted back-wages on reinstatement and he be not deprived of his seniority, on account of the initial removal order. 8. In his turn, Mr. D. Nath, the learned Addl. Senior Govt. Advocate, points out that no service was rendered by the delinquent from the date of removal until he was reinstated on 4.10.2008 and accordingly, it is argued that the claim for back-wages cannot be justified. 9. The Appellate Authority under the order of 15.9.2008 (Annexure-B), has substituted the penalty of removal with the lesser penalty and that is why the petitioner has got back his job. As no service was received from the delinquent for the intervening period, I am of the considered view that the claim for back-wages is not tenable for the reinstated constable. The Commandants order reflects that the intervening period will be treated as on duty for the purpose of pension and therefore, it is not a case of denial of other service benefits for the reinstated constable. However, to allay the apprehension expressed by the petitioners lawyer, it is made clear that the concerned period should also be counted for other service benefits like seniority/promotion, besides the superannuation benefits. 10. With the above clarificatory order, this case stands closed, without any order on cost.