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2019 DIGILAW 723 (GAU)

Upen Ch. Borah v. State of Assam

2019-06-11

KALYAN RAI SURANA

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JUDGMENT : Kalyan Rai Surana, J. 1. Heard Mr. K. Paul, the learned Advocate for the petitioner and Mr. N. Goswami, the learned Govt. Advocate appearing for all the State Respondents. 2. By this writ petition under Article 226 of the Constitution of India, the petitioner has challenged (i) the disciplinary proceedings drawn up against him, (ii) the order dated 15.05.2013 passed by the Commandant-Cum-Disciplinary Authority, Recruits Training School, Assam, thereby dismissing the petitioner from service and (iii) the appellate order dated 19.08.2013 passed by the Deputy Inspector General of Police (TAP/EB), Assam, thereby dismissing the departmental appeal filed by the petitioner. 3. In the writ petition, the case projected by the petitioner is that he had joined in Assam Police on 14.05.1975 as a Constable. While posted as Constable in the Office of the Commandant 2nd A.P. Battalion, Makum, vide order dated 31.12.1993, the petitioner was transferred to Recruits Training School, Assam, Dergaon (RTS for short) in the same rank in the existing vacancy. Accordingly, the Commandant, 2nd A.P. Battalion, Dergaon (respondent No. 6) issued release order dated 06.01.1994 in respect of the petitioner. On 18.01.1994, the petitioner reported before the Reserve Officer, RTS to join his post in the place of transfer, but the Reserve Officer, RTS did not allow the petitioner to join in his transferred post by writing an endorsement in the body of the release order dated 06.01.1994 to the following effect - "A.B.C/844 Upen Ch. Bora reported at R.T.S. Dergaon to-day (18.1.1994) and allowed him to go back to his parent unit as he could not be absorved (sic.) due to non availability of vacancy in the rank of Consts. Sd/- (illegible) Reserve Officer, Recruits Training School, Dergaon, Assam. 18.1.1994" 4. The Commandant, RTS, Assam, Dergaon (respondent No. 7) informed the Commandant, 2nd A.P. Battalion, Dergaon respondent No. 6 about the same by sending one W.T. message on 19.01.1994. It is projected that the petitioner had approached the respondent No. 6, but although the said authority verbally assured the petitioner that fresh joining order would be issued, but nothing was done and accordingly, the petitioner remained without any duty being assigned to attend to. It is projected that the petitioner had approached the respondent No. 6, but although the said authority verbally assured the petitioner that fresh joining order would be issued, but nothing was done and accordingly, the petitioner remained without any duty being assigned to attend to. By annexing a medical certificate dated 11.10.2000, the petitioner claims that he had suffered from "epilepsy and psychiatoutic (sic.) problems since 19.04.1994 to 11.10.2000" and that he was advised rest during the said period and that now he was fit to resume his usual duty w.e.f. 11.10.2000. Thereafter, the petitioner had submitted his two representations dated 30.09.2010 and 30.10.2010 before the Deputy Inspector of Police (Admn.), Guwahati (respondent No. 4) to allow him to join duties with full back wages. It is projected that after his representations, the petitioner was called by the respondent No. 6 and accordingly, it is claimed that the petitioner had appeared before the respondent No. 6 with all medical documents and other papers on 09.03.2011, whereupon the statement of the petitioner was taken by the respondent No. 6, who assured that the petitioner would be allowed to join. 5. Thereafter, the Assistant Inspector General of Police (TAP), Assam vide letter dated 03.06.2011 informed the Inspector General of Police (Logistic), Assam (respondent No. 2) that the transfer order dated 31.12.1993 was valid and requested him to allow the petitioner to join at RTS, Dergaon so as to enable the respondent No. 7 to initiate disciplinary proceeding against the petitioner for not joining RTS Dergaon. However, the petitioner was not allowed to join his duty, he was not put off duty and his period of absence was not regularised, as such, the petitioner had approached this Court by filing a writ petition, which was registered and numbered as W.P. (C) No. 5892/2011. It is projected that thereafter, the respondent authorities created some pressure on the petitioner to withdraw his writ petition and accordingly, the said writ petition was closed by order dated 09.12.2011, as not pressed. Thereafter, vide order dated 11.01.2012, the respondent No. 4 directed the respondent No. 7 to allow the petitioner to join in RTS, Dergaon pursuant to transfer and release order dated 05.01.1994 against an existing vacancy and accordingly, the petitioner was absorbed by respondent No. 7 w.e.f. 27.01.2012 against an existing vacancy. Thereafter, vide order dated 11.01.2012, the respondent No. 4 directed the respondent No. 7 to allow the petitioner to join in RTS, Dergaon pursuant to transfer and release order dated 05.01.1994 against an existing vacancy and accordingly, the petitioner was absorbed by respondent No. 7 w.e.f. 27.01.2012 against an existing vacancy. On same day i.e. on 27.01.2012, the respondent No. 7 placed the petitioner under suspension with immediate effect for remaining on unauthorised absence from 05.01.1994 to 26.01.2012 and informed the petitioner that a departmental proceeding was being drawn up against him. 6. Subsequently, departmental proceeding had commenced against the petitioner when the respondent No. 7 served him with 1st show cause notice dated 29.01.2012 along with statements of allegations. The petitioner submitted his show cause reply dated 29.01.2012, denying all charges leveled against him. Thereafter, by order dated 15.02.2012, the respondent No. 7 drew up a departmental proceeding against the petitioner, which was numbered as D.P. No. 1/2012, wherein one Tankeswar Dutta, Sr. L.I. of RTS, Dergaon was appointed as Enquiry Officer and S.I. (U.B.) Bubul Hazarika was appointed as Presenting Officer. The Enquiry Officer was required to submit his finding within 45 days. However, as there was delay in disposal of the departmental proceeding, the petitioner had submitted his representation dated 14.09.2012. Thereafter, the Enquiry Report was submitted before the Disciplinary and Punishing Authority i.e. respondent No. 7 on 31.10.2012. It is projected that the respondent No. 7 sat over the said Enquiry Report and the 2nd show cause notice 06.05.2013 was issued giving 7 days time to the petitioner to give his reply. On 13.05.2013, the petitioner submitted his petition dated 10.05.2013 to supply copies of statement of PWs. 18 and 19 exhibited documents and sought for at least 30 days time to submit 2nd show cause reply. It is projected that a copy of the said petition dated 10.05.2013 was also sent by registered post, but the said registered postal envelope was returned by the respondent No. 7 as refused. However, the respondent No. 7 had held that the charges against the petitioner were proved and the petitioner was dismissed from service. 7. The learned advocate for the petitioner has assailed the departmental proceedings against the petitioner. The gist of his submissions are as follows:- (a) It is submitted that the Commandant, 2nd A.P. Battalion had released him. However, the respondent No. 7 had held that the charges against the petitioner were proved and the petitioner was dismissed from service. 7. The learned advocate for the petitioner has assailed the departmental proceedings against the petitioner. The gist of his submissions are as follows:- (a) It is submitted that the Commandant, 2nd A.P. Battalion had released him. Thereafter, the petitioner had reported in the establishment of the Commandant, RTS, Dergaon, but he was returned. Therefore, the Commandant, RTS, Dergaon was the officer responsible to turn away the petitioner and, therefore, the said authority could not have assumed the role of the judge of his own cause. (b) It is submitted that the Inspector General of Police (L), Assam had written to the Commandant, RTS, Dergaon to initiate departmental proceeding against the then Reserve Officer, who had returned the petitioner without informing the Commandant, RTS, Dergaon that the petitioner had reported for duty. Hence, it is submitted that if the one actually guilty of returning the petitioner from duty has not been proceeded against, the charges and the impugned order terminating the service of the petitioner is not sustainable and is liable to be interfered with. (c) It is also submitted that the petitioner had requested for being supplied with copy of statements of PW-1 to PW-19 as well as defence witnesses and copies of exhibited documents No. 1 to 18 as reflected in departmental proceeding by submitting letter dated 10.05.2013, which was received on 13.05.2013, but the same was not supplied. Moreover, the copy of same request sent by registered post was returned by the Disciplinary Authority as refused. Thus, the petitioner had suffered prejudice for not being able to submit his 2nd show-cause reply. (d) It is submitted that the prayer for deferment of hearing made by the said letter dated 10.05.2013, was rejected and the Commandant, RTS, Dergaon decided the matter by terminating the service of the petitioner without affording a reasonable opportunity of hearing to the petitioner. (d) It is submitted that the prayer for deferment of hearing made by the said letter dated 10.05.2013, was rejected and the Commandant, RTS, Dergaon decided the matter by terminating the service of the petitioner without affording a reasonable opportunity of hearing to the petitioner. (e) It is submitted that when the petitioner had reported for joining his duty at RTS, Dergaon, he was informed in writing that there was lack of vacancy and, as such, unless the petitioner was informed about the existing vacancy, his absence was a mere irregularity, which was condoned when the petitioner was informed in writing on 27.01.2012 that he absorbed in the vacant post of AB Constable at RTS, Dergaon. (f) It is submitted that the purpose of getting the petitioner to join in RTS, Dergaon was mala fide, and it was only a ploy to start a disciplinary proceeding against the petitioner for no fault of his own. (g) It is submitted that the disciplinary proceeding against the petitioner was premeditated. He was to superannuate from service on 30.06.2013, and, as such, the disciplinary authority had delayed the disposal of the proceeding and on 15.03.2013, i.e. only few days before the petitioner was about to superannuate, the proceeding was expedited and without granting the petitioner the statement of witnesses, etc., terminated the service of the petitioner. Thus, it is submitted that the disciplinary authority by not providing the statement of witnesses, had prevented the petitioner from submitting his reply to the second show cause notice and, as such, the petitioner has suffered from deprivation of his right to be heard. (h) It is submitted that as the petitioner was not provided the place of posting between the period from 05.01.1994 to 26.01.2012, the petitioner could not have been treated as an unauthorised absentee. (i) It is also submitted that the appeal filed by the petitioner was perfunctorily dismissed without examining the stand taken in the appeal. (j) In support of his submissions, the learned counsel for the petitioner had placed reliance on the case of Arjun Chaubey vs. Union of India, (1984) 2 SCC 578 and Krushnakant B. Parmar vs. Union of India and Others, (2012) 3 SCC 178 . 8. The learned Govt. Advocate has made his submissions is support of the orders impugned herein. (j) In support of his submissions, the learned counsel for the petitioner had placed reliance on the case of Arjun Chaubey vs. Union of India, (1984) 2 SCC 578 and Krushnakant B. Parmar vs. Union of India and Others, (2012) 3 SCC 178 . 8. The learned Govt. Advocate has made his submissions is support of the orders impugned herein. It has been submitted that the petitioner had not informed his superior authorities that he was not allowed to join and did not seek any alternative posting. The petitioner had not been able to show any prescription of medical reports to sustain his plea of having suffered from mental disorder. Moreover, the petitioner had refused his health monitoring at LGBRIMH, Tezpur after the Board advised admission of the petitioner as indoor patient for detailed evaluation. Moreover, it is submitted that the petitioner had participated in the proceeding initiated against him and he could have obtained the copy of statement by the witnesses at the time it was recorded. It is submitted that the petitioner had not suffered any prejudice in the disciplinary proceeding. 9. On a perusal of the materials available on record, it is seen that the petitioner was released by the Commandant, 2nd A.P. Battalion, Makum w.e.f. 05.01.1994. Thereafter, the petitioner reported before the Reserve Officer, RTS, Dergaon on 18.01.1994. There is no dispute that the petitioner was not allowed to join his place of posting on transfer. Except for oral statement that the petitioner approached the then Commandant, 2nd A.P. Battalion, Makum, who assured to look into the matter, there is no document to support the said stand. Admittedly, when the petitioner was not working either under the Commandant, 2nd A.P. Battalion, Makum or under the RTS, Dergaon, the petitioner could not have received his salary and other emoluments on and from 05.01.1994. The first written representation was submitted on 30.10.2000, where he claimed that he was ill. Although the petitioner claims that several representations were submitted between 12.01.2001 to 28.07.2009, but except for his two representations dated 30.09.2010 and 30.10.2000 (Annexure-F and E respectively), no document has been brought on record. It is seen that thereafter the authorities had asked the petitioner to appear before the Commandant, RTS, Dergon and the petitioner claims that his statement was taken. It is seen that thereafter the authorities had asked the petitioner to appear before the Commandant, RTS, Dergon and the petitioner claims that his statement was taken. This was followed by an order dated 27.01.2012 by respondent No. 7, whereby the petitioner was absorbed in the establishment of respondent No. 7 w.e.f. 27.01.2012 against an existing vacancy of A.B. Constable. By a certificate dated 14.03.2012 by the Joint Director of Health Services-cum- Chairman, District Medical Board, Golaghat indicated that the petitioner required psychiatrist consultation, for which he was referred to Jorhat Medical College & Hospital, and as per medical report dated 29.03.2012, by the Medical Board consisting of three Doctors of Jorhat Medical College & Hospital, it was mentioned therein that the mental status of the petitioner was examined on 28.03.2012 and it was found that the petitioner had no formal thought disorders, no perceptual disturbance and his judgment is intact. However, it was suggested that the petitioner needs to undergo psycho diagnostic tests for which the petitioner was referred to Psychiatry Department of AMCH, Dibrugarh/ LGBRIMH, Tezpur. As per the statements made in paragraph 7 of the A/o, the petitioner appeared before the Medical Board of LGBRIMH, Tezpur and the Board advised admission of the petitioner as indoor patient for detailed evaluation. However, the petitioner had refused to undergo domiciliary investigation. From the contents of the Departmental Proceeding report, it appears that in course of enquiry, except for a doctors certificate that the petitioner was under his treatment from 19.04.1994 to 11.10.2000, no prescriptions, etc., showing continued medical treatment was exhibited by the petitioner, nor any supporting document have been annexed to the writ petition. Therefore, as the petitioner was a member of the disciplined force, and when the petitioner claims that after long treatment of mental disorder, he was fit to work, this Court finds no infirmity if the respondents were getting the petitioners condition evaluated by specialists, but the refusal of the petitioner to get himself admitted at LGBRIMH, Tezpur as indoor patient for detailed evaluation does not lend credence to the claim of the petitioner. There is no explanation that if the petitioner was cured on 10.10.2000, why after his representation dated 30.10.2000, the petitioner submitted his next representation on 30.09.2010. Thus, there remains another unexplained delay of 10 years. 10. There is no explanation that if the petitioner was cured on 10.10.2000, why after his representation dated 30.10.2000, the petitioner submitted his next representation on 30.09.2010. Thus, there remains another unexplained delay of 10 years. 10. The enquiry report dated 06.05.2013 reveals that the petitioner had refused to cross examine any of the 9 witnesses examined by the Department. The doctor, who had treated the petitioner was examined as defence witness, had stated in his examination that during his treatment, he had referred the petitioner to AMCH/ GMCH for further investigation and treatment, the petitioner did not attend the said hospitals. In this writ petition, the petitioner had not given any explanation that why the petitioner had not availed any treatment at any Government Hospital and/or any private hospital for his disorder/disease. This has some significance because as the petitioner was a member of Assam Police, he could have availed permissible State medical facilities, reimbursement of admissible cost of treatment and permissible referral cost of treatment. It is seen that the details of examination of the witnesses is available in the said report. Under such circumstances, this Court finds that the petitioner has not suffered any prejudice even if it is assumed to be correct that no document or statement of witnesses were furnished to the petitioner. Thus, this Court does not any infirmity in the departmental proceeding, the report whereof implicates the petitioner from willfully and unauthorizedly remaining absent from duty w.e.f. 19.01.1994 to 26.01.2012, and thereafter, the disciplinary authority after issuing 2nd Show Cause notice, had dismissed the petitioner from service. It is seen that after the petitioner had not been allowed to join on 18.01.1994, he did not approach the authorities or submitted any written representation to seek his posting and/or for the purpose of claiming his salary or other emoluments. Moreover, the appellate authority has also gone into the merit of the matter and concurred with the finding that the petitioner had remained unauthorizedly absent from duty w.e.f. 19.01.1994 to 26.01.2012. 11. It is too well established that Courts ought not to re-evaluate the disciplinary proceeding if there is no apparent procedural defect in the proceeding. Moreover, the appellate authority has also gone into the merit of the matter and concurred with the finding that the petitioner had remained unauthorizedly absent from duty w.e.f. 19.01.1994 to 26.01.2012. 11. It is too well established that Courts ought not to re-evaluate the disciplinary proceeding if there is no apparent procedural defect in the proceeding. Although the learned counsel for the petitioner had attempted to convince this Court that the Commandant, RTS, Dergaon i.e. the disciplinary authority could not have proceeded to enquire into the allegations of being unauthorisedly absent from duty after his establishment had returned him and at best the Commandant, 2nd A.P. Battalion could have proceeded against him. The said argument appears to be attractive, but when the petitioner had joined his service under the said disciplinary authority, the said authority had derived the competence to conduct disciplinary proceeding against the petitioner. 12. Hence, when there is no explanation why immediately after not being allowed to join in RTS, Dergaon, the petitioner had not submitted any written representation, and when there is no supporting prescriptions and medical reports from 19.04.1994 to 11.10.2000 to show that the petitioner was availing medical treatment during the said period. Moreover, the petitioner who had claimed to have suffered from mental disorder, had refused to undergo admission in specialized medical institute for his evaluation before allowing him active duty. Nonetheless, there is again an unexplained delay from 3010.2000 to 30.09.2010 in submitting the two representations by the petitioner. Accordingly, this Court does not find this to be a fit case to interfere with the disciplinary proceeding and the consequent report as well as the punishment awarded to the petitioner in this case. 13. The learned counsel for the petitioner had projected that the Commandant, RTS, Dergaon, who was the disciplinary authority, was the person in command, whose subordinate had prevented him from joining his post, as such, by citing the case of Arjun Chaubey (supra), it was submitted that the Supreme Court of India had held that one cannot be a judge of his own cause. However, in this case, it is not the case of the petitioner that the person who the then Commandant of RTS, Dergaon on 18.01.1994, was still the Commandant of RTS, Dergaon, and was the disciplinary authority for the petitioner. However, in this case, it is not the case of the petitioner that the person who the then Commandant of RTS, Dergaon on 18.01.1994, was still the Commandant of RTS, Dergaon, and was the disciplinary authority for the petitioner. Moreover, it is not the case of the petitioner that he had informed the Commandant, RTS, Dergaon that his subordinate Reserve Officer had send back him on 18.01.1994. Therefore, under the said factual aspect, the present case is distinguishable from the facts of the case of Arjun Chaubey (supra). In the case of Krushnakant B. Parmar (supra), the complainant, who was also the prime witness was not examined and the though the Appellate Authority had noted the facts, but by ignoring such facts, the appellate authority had referred to extraneous allegations which were not the part of the charge, dismissed the appeal with following uncalled for observation to the following effect:- "The appellant even avoided the basic training required for the job and asked JAD Ahmadabad to send all the training papers for his training at IB Training School, Shivpuri (Madhya Pradesh) to his residence at Ahmadabad. An untrained officer is of no worth to the department." Thus, on facts, the present case is found distinguishable because there is nothing on record in the present case to show that the disciplinary authority had relied on any extraneous considerations. Rather, it is seen that none of the departmental witnesses were cross examined by the petitioner. 14. It may be mentioned herein that as there was no infirmity in the proceeding, this Court was not required to go into the merit of the claim. However, in this case, the merit of the claim of the petitioner has been examined only to see if the petitioner has been able to make out any case for interference of this Court under the unique facts of this case, as such, the exercise of examination the merit of disciplinary proceeding in this case is not intended to be cited as a precedent. 15. Resultantly, this writ petition stands dismissed. The Rule stands discharged in terms of this order. 16. No cost.