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2019 DIGILAW 483 (GAU)

Kumud Choudhury, Ex Constable v. State of Assam

2019-04-12

A.S.BOPANNA, ACHINTYA MALLA BUJOR BARUA

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JUDGMENT : A.S. Bopanna, J. Heard Mr. H. Das, learned counsel appearing for the appellant and Mr. T. C Chutia, learned Additional Senior Government Advocate appearing for the respondents. 2. The appellant is before this Court assailing the order dated 10.04.2018 passed by the learned Single Judge in WP(C) No.6371/2012. Through the said order, the learned Single Judge has dismissed the writ petition. The respondents herein had proceeded against the appellant on the charge of unauthorized absence between the dates 22.12.2005 to 21.02.2006. On the appellant being held guilty of the charge, a second show cause notice was issued and thereafter the disciplinary authority through the order dated 10.10.2007, dismissed the appellant from service. The appellant claiming to be aggrieved by such dismissal order was before the learned Single Judge in the said writ petition. 3. The brief fact as pleaded therein was that the petitioner was appointed on 07.12.1992 as a Constable in the Assam Special Reserve Force Battalion. He had to leave the station on 22.12.2005. The case put forth by the appellant was that he was constrained to do so due to the serious illness of his wife. In that circumstance, though he had left the post at Nalbari on the night of 22.12.2005 with the service rifle and 50 rounds of ammunition, the appellant thereafter deposited the rifle and the 50 rounds of ammunition on the next day i.e. 23.12.2005 at the Sadar Police Station, Kokrajhar. For that act, the appellant had sought to put forth an explanation that he was forced to leave the station on the night of 22.12.2005 and he has rectified the situation on the next day by voluntarily depositing the weapon and the 50 rounds of ammunition, which were with him. The said contention as put forth in the writ petition was in fact, his reply to the show cause notice earlier issued to him. In that background, in the departmental proceeding No.13/2005 against the appellant, four charges had been framed. In respect of the charges as referred to as contained in Charge Nos. 1, 2 and 3, the enquiry officer held that the same to be proved. In so far as Charge No.4, which related to the earlier conduct of the appellant, the enquiry officer had held the same as not being necessary and accordingly was held as not proved. 4. 1, 2 and 3, the enquiry officer held that the same to be proved. In so far as Charge No.4, which related to the earlier conduct of the appellant, the enquiry officer had held the same as not being necessary and accordingly was held as not proved. 4. The second show cause notice issued on 28.08.2007 had referred to the report of the enquiry and on that basis had indicated the action proposed against the appellant. The reply put forth was not acceptable. In that background, the learned Single Judge while taking note of the contention put forth had taken into consideration the nature of the charge and the contention that was put forth in the writ petition that he was not provided sufficient opportunity in the enquiry by providing a defence assistant. To that extent, the learned Single Judge having referred to Rule 9(5) of the Assam Service (Discipline and Appeal) Rules, 1964 had arrived at a conclusion that on a perusal of the Rule, the appellant had not been prejudiced and in that circumstance, having referred to the earlier decisions of this Court and also by the Hon’ble Supreme Court was of the opinion that the enquiry is not vitiated in that regard. 5. Hence the learned Single Judge in that background had examined the charge and keeping in view that the appellant was the member of the Disciplined Force and in that circumstance keeping in view the fact that he remained unauthorisedly absent for a long period and that he had left the post by taking away the service weapon and the ammunition was of the opinion that the action as initiated by the respondents is justified and the order does not call for interference. 6. The learned counsel for the appellant while assailing the order passed by the learned Single Judge as also the action by the official respondents has contended that the respondents had not furnished a copy of the enquiry report along with the second show cause notice. In that view, the action subsequently taken is vitiated. It is also contended that in the enquiry proceeding, appropriate opportunity was not granted and the enquiry officer while rendering its findings has not considered all aspects of the matter and in that circumstance, the disciplinary authority was not justified in accepting the report and passing the punishment order. In that view, the action subsequently taken is vitiated. It is also contended that in the enquiry proceeding, appropriate opportunity was not granted and the enquiry officer while rendering its findings has not considered all aspects of the matter and in that circumstance, the disciplinary authority was not justified in accepting the report and passing the punishment order. It is also the contention that the learned Single Judge in that regard had not appreciated the matter in its correct perspective. He further contends that the conclusion as reached by the learned Single Judge that no contention had been put forth with regard to the proportionality of the punishment is not justified. He contends that taking into consideration all aspects, the learned Single Judge ought to have assessed the situation to arrive at a conclusion as to whether the punishment as imposed is justified. To contend that the punishment as imposed is not appropriate, the learned counsel for the appellant has placed reliance on the judgment of the Hon’ble Supreme Court in the case of Rajinder Kumar -vs- State of Haryana and another, reported in (2016) 15 SCC 693. 7. The learned Additional Senior Government Advocate on the other hand has referred to the appeal papers including the charge-sheet issued and the report of the enquiry officer. In that light, it is contended that the charges as contained in the charge-sheet had been established in the enquiry and in the circumstance where the charge is proved, the disciplinary authority on application of mind has accepted the same. He contends that the learned Single Judge has referred to all aspects of the matter and has arrived at the conclusion in the order including with regard to the observation relating to the proportionality of the punishment as justified and the order does not call for interference. The learned Additional Senior Government Advocate on the other hand has sought to rely on the decision of the Hon’ble Supreme Court in the case of Central Industrial Security Force and others -vs- Abrar Ali, reported in (2017) 4 SCC 507 to contend that the quantum of the punishment imposed is proportionate to the charge proved. 8. In the light of the rival contentions, we have perused the order dated 10.04.2018 passed by the learned Single Judge. 8. In the light of the rival contentions, we have perused the order dated 10.04.2018 passed by the learned Single Judge. As already noticed, the learned Single Judge has referred to the contentions that had been put forth, more particularly, with regard to the violation of the Rule-9(5) of the 1964 Rules as contended. In that regard, the learned Single Judge has arrived at a conclusion that the same has not vitiated the proceeding. In that regard having perused the Rule, we are also of the opinion that in a circumstance where the appellant has not sought for assistance and there is no material on record to indicate that the same has been refused to him, there is substantial compliance of the Rule and the contention as put forth by the learned counsel for the appellant cannot be accepted. In so far as the charge alleged against the appellant, there is no serious dispute to the fact of occurrence. However, what is sought to be put forth on behalf of the appellant is only a justification to contend that his wife had suddenly fallen ill and he was constrained to leave the post despite the permission not being granted. In that regard, the explanation sought to put forth was that though he was not in a position to surrender the weapon and the ammunition which were with him immediately at the station, he had on the very next morning surrendered the same in the station at Kokrajhar. Therefore, if this aspect of the matter is taken note, the very nature of the contention put forth by the appellant would indicate that the appellant had left the post despite permission not being granted. Further, what is also necessary to be taken note is that even if the case put forth by the appellant i.e. his wife had suddenly fallen ill and therefore he had to leave, it is taken note, the same can only remain an explanation for leaving the post on 22.12.2005. There is no explanation whatsoever with regard to the conduct of the appellant in not returning back immediately thereafter to report his superiors in this regard. In that background, when it is seen that the appellant had remained unauthorisedly absent till 21.02.2006, the explanation as put forth in any event cannot justify the conduct of the appellant. 9. There is no explanation whatsoever with regard to the conduct of the appellant in not returning back immediately thereafter to report his superiors in this regard. In that background, when it is seen that the appellant had remained unauthorisedly absent till 21.02.2006, the explanation as put forth in any event cannot justify the conduct of the appellant. 9. Further, a perusal of the enquiry report would indicate that the enquiry officer having taken note of the charge has also taken into consideration the defence statement of the appellant and in that view has arrived at a conclusion that the charge is proved. In such circumstance, when a factual finding is recorded and the disciplinary authority on taking note of the same has accepted the same, we would not be justified in interfering with the same in a judicial review of the present nature. If this aspect is kept in view and the order passed by the learned Single Judge is perused, the learned Single Judge has exhaustively referred to all aspects of the matter and has also kept in view the legal position and has arrived at a conclusion in so far as holding that the charge was established and the proceeding of the enquiry was not vitiated. 10. Though having arrived at the above conclusion, the only aspect of the matter which engages our attention is with regard to the proportionality of the punishment. To that extent, the learned Single Judge was not justified in merely rejecting the prayer to that extent on the ground that the punishment as imposed does not shock the conscience of the Court. However, what was required to be examined is the circumstance under which the appellant had claimed to have left the post and the materials that was sought to be relied upon by him is relating to the illness of his wife. Even for a moment, if the justification as put forth by the appellant cannot be accepted as genuine for the long absence from 22.12.2005 to 21.02.2006, the fact that the appellant had put in a long period of service until the date he remained unauthorisedly absent, cannot be over looked inasmuch as, the appellant had been appointed as far back on 07.12.1992. In such a situation, a perusal of the judgment in the case of Rajinder Kumar (supra) as relied upon by the learned counsel for the appellant would indicate that in the matter of unauthorized absence in appropriate cases, a liberal consideration would be required at least in the matter of imposing punishment. In that backdrop, even if the decision in the case of Central Industrial Security Force and others (supra) relied upon by the learned Additional Senior Government Advocate is taken into consideration, even in the said case though certain observations have been made by the Hon’ble Supreme Court with regard to the seriousness when the charge is proved against an officer of disciplined force is to be taken note, the Hon’ble Supreme Court in the said circumstance had also arrived at a conclusion that he appropriate punishment in such cases would be that of compulsory retirement. If this aspect is taken note the instant case, having already taken note that the appellant had joined service on 07.12.1992 and is presently dismissed for unauthorized absence, the punishment of the dismissal would negate the entire service he had put earlier and therefore, to that extent, we are of the opinion that the punishment imposed requires to be modified. Though in a normal circumstance, the imposition and consideration of the quantum of the punishment falls within the realm of the employer, in the present circumstance, having taken into consideration the decisions of the Honble Supreme Court and also keeping in view the fact that in any event the appellant cannot be put back to service since he is from a disciplined force, the appropriate punishment in any event would be that of compulsory retirement. 11. To that extent, we modify the order dated 12.10.2007 passed by the employer and the punishment of dismissal from service is modified to that of compulsory retirement. To the same effect, the order dated 10.04.2018 passed by the learned Single Judge also stands modified. 12. In the above terms, the instant appeal is allowed in part with no order as to costs.