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2019 DIGILAW 777 (GAU)

Manoj Kumar Ray v. State of Assam

2019-06-21

MICHAEL ZOTHANKHUMA

body2019
JUDGMENT : Michael Zothankhuma, J. Heard Mr. UK Das, learned counsel for the petitioner. Also heard Mr. G Pegu, learned counsel for the State respondents. 2. The petitioner is a Former Armed Branch Constable in the Assam Police and in pursuance to a disciplinary proceeding held due to unauthorised absence, he was removed and discharged from service vide order dated 07.02.2015, passed by the Superintendent of Police, Bongaigaon. 3. The facts of the case in brief is that the petitioner had taken Casual Leave from 07.02.2012 till 14.02.2012. However, instead of reporting back to camp on 15.02.2012, the petitioner did not report back to camp and stayed away from duty, without taking permission from his superiors for around one year four months. The petitioner was suspended vide order dated 20.12.2012 and a departmental proceeding was initiated against the petitioner on 20.12.2012 wherein the statement of allegations against the petitioner was stated as follows:- "That while he was posted at Police Reserve, Bongaigaon, he availed 5 (five) days Casual Leave w.e.f. 07.02.2012 P.M. to 14.02.2012 P.M. but instead of resuming duty on 15.02.2012 A.M. he is unauthorisedly overstaying leave. His above acts tantamount to gross negligence and dereliction of duty on his part. This amounts to his gross negligence and dereliction of duty. Accordingly he is charged with gross negligence and dereliction of duty." 4. As the petitioner did not submit any written statement in pursuance to the show cause notice dated 20.12.2012 issued to him in pursuance to Departmental Proceeding No. 9/2012, various reminders were sent to the petitioner. The petitioner was also directed to rejoin his duty many times, which was to no avail. The petitioner thereafter rejoined his post by coming back to the camp after 1 year 4 months, i.e., on 13.06.2013. The petitioner submitted his written statement dated 15.06.2013 in reply to the show cause issued under Departmental Proceeding No. 9/2012. 5. The petitioner thereafter reported that he was ill on 14.11.2013 and he was advised 7 (seven) days of bed rest. However, the petitioner did not report back after 7 (seven) days and was thus again absent without taking the permission of his senior authorities and never returned back to the camp till the time of his removal and discharge from service, which was made vide Order dated 07.02.2015. 6. However, the petitioner did not report back after 7 (seven) days and was thus again absent without taking the permission of his senior authorities and never returned back to the camp till the time of his removal and discharge from service, which was made vide Order dated 07.02.2015. 6. The petitioner also did not participate in the departmental proceeding that had been initiated against him. The enquiry report was finalised on 30.01.2015. The petitioner was asked to appear before the enquiry officer on 07.02.2015 at 10:30 am vide notice dated 05.02.2015. The petitioner did not appear before the enquiry officer on 07.02.2015 and subsequently the impugned order dated 07.02.2015 was issued by the respondent No. 4, imposing the penalty of removal and discharge from service. 7. The petitioner filed an appeal dated 06.07.2015, which was rejected vide order dated 29.08.2015. Hence the present writ petition. 8. The petitioner's counsel submits that the petitioner was unauthorisedly absent, as he was sick due to the effects of drinking alcohol. He also submits that the enquiry report was never furnished to the petitioner. 9. The petitioner's counsel also submits that the finding No. 3, which states that the petitioner is an alcohol addict, made in the enquiry report is not a part of the charge framed against the petitioner and accordingly he cannot be penalised with respect to finding No. 3. He also submits that as he was not given a copy of the enquiry report, the petitioner was not able to make any submission with regard to the findings made in the enquiry report. 10. The petitioner's counsel also submits that the notice dated 05.02.2015, which required the petitioner to appear before the enquiry officer on 07.02.2015 at 10:30 a.m., was received by the petitioner only in the afternoon of 07.02.2015 and accordingly, the petitioner could not appear before the enquiry officer on the said date and time. 11. The petitioner's counsel also submits that the disciplinary authorities had already pre-decided the fate of the petitioner, inasmuch as, the impugned order was issued on the date when he was supposed to meet the enquiry officer, i.e., 07.02.2015. He also submits that the rejection of the petitioner's appeal is very cryptic and bereft of any reason. 12. Mr. G Pegu, learned Government Advocate admits that the enquiry report was not furnished to the petitioner, prior to issuance of the impugned order dated 07.02.2015. He also submits that the rejection of the petitioner's appeal is very cryptic and bereft of any reason. 12. Mr. G Pegu, learned Government Advocate admits that the enquiry report was not furnished to the petitioner, prior to issuance of the impugned order dated 07.02.2015. He also submits that the notice dated 05.02.2015 was received by the petitioner on 07.02.2015. 13. The learned Government Advocate also submits that though finding No. 3 of the enquiry report is not a part of the charge framed against the petitioner in the departmental proceeding, the petitioner was, however, examined by a Medical Board which found him to be an alcoholic. He further states that at the time of examination of the petitioner by the Medical Board, the petitioner had consumed alcohol at the time of examination by the Medical Board. 14. The learned Government Advocate also submits that though the petitioner had received the impugned order dated 07.02.2015 on 09.02.2015, the petitioner filed an appeal only on 16.07.2015. He also submits that the petitioner having admitted to be unauthorisedly absent as per his written statement, no prejudice was caused to the petitioner by not giving him a copy of the enquiry report, prior to the petitioner being removed and discharged from service. 15. I have heard the learned counsels for the parties. 16. The facts show that while the petitioner had taken casual leave for 5 (five)/7 (seven) days, he remained unauthorisedly absent for 1 year 4 months before reporting back for duty. Thereafter, on the ground of the petitioner's illness on 14.11.2013, which required the petitioner to have 7 (seven) days bed rest, the petitioner was again unauthorisedly absent w.e.f., 22.11.2013 and he remained unauthorisedly absent till the date of issuance of the impugned order dated 07.02.2015, i.e., for approximately 1 year 2 months. 17. The written statement submitted by the petitioner to the show cause notice issued in respect of the Departmental Proceeding No. 9/2012 is as follows:- "Sir, Most humbly and respectfully, I beg to state that I availed 5 (five) days C/L w.e.f 07.02.2012 to 14.02.2012 during my posting at Police Reserve, Bongaigaon and went home at my village- Kakaijana under Abhayapuri P.S. and was supposed to resume my duties after expiry of my leave. It may be respectfully stated here that my home village Kakaijana is a very remote place and most of the people are addicted to alcohol and as such I also became the prey of such addiction since long without any restriction, but without loosing any sense. Though I used to take alcohol I sues to maintain my duties with full sense. After reaching my home during the leave almost every day I consumed alcohol with my old village companions and fell sick for which I have undergone the treatment under the Senior Medical Officer, Abhayapuri C.H.C. Bongaigaon w.e.f. 14.02.2012 for various complications and the Medical Officer advised me for the bed-rest. Copy of the Medical Certificate is enclosed herewith as Annex-1. As per Medical Advise slip dt. 14.02.2012 (ANNEX-2), 11.06.2012 (ANNEX-3), 15.02.2013 (ANNEX-4) and 15.04.2013 (ANNEX-5) I have taken the medicines as Prescribed by the Doctor but unfortunately I was not regular in taking medicines for want of money. It may further be respectfully stated here that due to my server ailment I could not proceed to the Police Reserve, Bongaigaon for reporting my ailment nor there is any other male member at my family through whom I could convey my ailment to the Police Reserve, Bongaigaon. However, during the prolong treatment I have undergone the counselling and now the Medical Officer found me fit to resume my duties w.e.f. 10.06.2013. The fitness Certificate is enclosed herewith as ANNEX-1. Under the circumstances stated above, I therefore humbly pray before your kindly to pardon me and to be kind enough to accept this Written Statement and also to kindly exonerate me from the charge of gross negligence and dereliction of duty as levelled against me U/S-65 of Assam Police Act, 2007 R/W Rule 66 of A.P.M. Part-III and Article-311 of the Constitution of India and Rule-7 of Assam Services (Discipline and Appeal) Rules-1964. And for this act of your kindness as I on duty bound shall ever pray. Further I beg to state that I desire to be heard in person if and when called for." 18. The above written statement clearly shows that the petitioner had admitted that he had been on unauthorised leave and that he was addicted to alcohol. And for this act of your kindness as I on duty bound shall ever pray. Further I beg to state that I desire to be heard in person if and when called for." 18. The above written statement clearly shows that the petitioner had admitted that he had been on unauthorised leave and that he was addicted to alcohol. The above being said, there is nothing in the written statement to show that during the 1 year 4 months of unauthorised leave from 15.02.2012 till 12.06.2013, the petitioner had tried to make contact with the State respondents and inform them that he was ill and could not rejoin his duty. There is nothing in his written statement to show that the petitioner made an attempt to ask for proper leave for the period of his unauthorised absence, during the relevant time. 19. The fact that the petitioner was again unauthorisedly absent from 22.11.2013 till issuance of the impugned order dated 07.02.2015 is also not denied by the petitioner. 20. The enquiry report made by the enquiry officer on 30.01.2015 has culminated with the following findings, which are reproduced below:- "1. The charged ABC/470 Monoj Kr Ray was found overstaying his leave w.e.f 15.02.2012 to 12.06.2013 (Total 482 days) without any intimation to the authority. Again he was found absent since 22.11.2013 to till date, i.e., 30.01.2015 Total 435 days unauthorisedly. 2. His above acts tantamount to gross negligence and dereliction of duty on his part is proved. 3. He is unfit for disciplined force as he medically proved as alcohol addicted." 21. This Court, on considering Finding No. 3 made in the enquiry report, agrees with the petitioner's counsel that the said finding could not have been considered while imposing any penalty against the petitioner, in view of the fact that there was no charge framed to the effect that the petitioner was an alcoholic. The facts of the case stated above, however, clearly shows that the petitioner was unauthorisedly absent from 15.02.2012 to 12.06.2013. 22. Also, though the charge against the petitioner with regard to unauthorised absence has been proved, the question remains as to whether the non-supply of the enquiry report to the petitioner, prior to the issuance of the impugned order dated 07.02.2015, has caused any prejudice to the petitioner. 22. Also, though the charge against the petitioner with regard to unauthorised absence has been proved, the question remains as to whether the non-supply of the enquiry report to the petitioner, prior to the issuance of the impugned order dated 07.02.2015, has caused any prejudice to the petitioner. In this respect, this court in Anil Baishya -vrs- State of Assam & Ors., (2014) 4 GauLR 111 has held that before the disciplinary authority takes a decision on the basis of an enquiry report, a copy of the same is required to be furnished to the delinquent Government servant and his response to the report should be considered. It also held that though non-furnishing of the enquiry report by itself may not be a sufficient ground to interfere with an order of penalty because of the subsequent development of the law, the fact remains that in the absence of the enquiry report, the employee was prevented from making his representation as to the contents of the enquiry report as well as against the proposed penalty. Therefore, he was clearly prejudiced. 23. In the case of Jamuna Gogoi Phukan -vrs- Gauhati High Court & Ors., 2017 4 GauLT 868 , the Division Bench of this court has held that before arriving at a finding holding the concerned employee or officer guilty or otherwise, copy of the enquiry report has to be furnished to him and his response to the enquiry report is required to be considered. 24. This court has considered the facts of Jamuna Gogoi Phukan (supra) and the present case and finds that the fact situation in both the cases are different. In Jamuna Gogoi Phukan (supra), the Division Bench was called upon to adjudicate the legality and correctness of the decision of the Administrative Committee and the Full Court in imposing the penalty of compulsory retirement on a Judicial Officer. In the case of Anil Baishya (supra), the petitioner therein had been dismissed from service on various grounds. The petitioner in Anil Baishya (supra), did not admit to the charges framed against him, while the petitioner herein has admitted to being unauthorisedly absent due to drinking alcohol and his illness. 25. It is settled law that a decision is only an authority for the case it decides. A little difference in facts diminishes the precedential value of a decision made in another case. 25. It is settled law that a decision is only an authority for the case it decides. A little difference in facts diminishes the precedential value of a decision made in another case. In the case of Sarva Shramik Sanghatana (KV) -vs- Mumbai, (2008) 1 SCC 494 , the Apex Court has held in para 15 and 16 as follows:- "15. In Ambica Quarry Works vs. State of Gujarat & others, (1987) 1 SCC 213 (vide paragraph 18) this Court observed:- "The ratio of any decision must be understood in the background of the facts of that case. It has been said a long time ago that a case is only an authority for what it actually decides, and not what logically follows from it." 16. In Bhavnagar University vs. Palitana Sugar Mills Pvt. Ltd, (2003) 2 SCC 111 (vide paragraph 59), this Court observed:- "It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision." 26. In the case of Uttarakhand Transport Corporation -vs- Sukhveer Singh, (2018) 1 SCC 231 , the Apex Court has held that mere non-supply of the inquiry report does not automatically warrant reinstatement of the delinquent employee. It is incumbent upon on the delinquent employee to plead and prove that he suffered a serious prejudice due to the non-supply of the inquiry report. 27. In the case of Haryana Financial Corporation -vrs- Kailash Chandra Ahuja, (2008) 9 SCC 31 , the Apex Court in para 36 to 42 has held as follows:- "36. The recent trend, however, is of 'prejudice'. Even in those cases where procedural requirements have not been complied with, the action has not been held ipso facto illegal, unlawful or void unless it is shown that non- observance had prejudicially affected the applicant. 37. In Malloch v. Aberdeen Corporation, (1971) 2 AllER 1278, Lord Reid said; "it was argued that to have afforded a hearing to the appellant before dismissing him would have been a useless formality because whatever he might have said could have made no difference. If that could be clearly demonstrated it might be a good answer". 39. 37. In Malloch v. Aberdeen Corporation, (1971) 2 AllER 1278, Lord Reid said; "it was argued that to have afforded a hearing to the appellant before dismissing him would have been a useless formality because whatever he might have said could have made no difference. If that could be clearly demonstrated it might be a good answer". 39. Lord Guest agreed with the above statement, went further and stated: "A great many arguments might have been put forward but if none of them had any chance of success then I can see no good reason why the respondents should have given the appellant a hearing, nor can I see that he was prejudiced in any way". 38. In Jankinath v. State of Orissa, (1969) 3 SCC 392 , it was contended that natural justice was violated inasmuch as the petitioner was not allowed to lead evidence and the material gathered behind his back was used in determining his guilt. Dealing with the contention, the Court stated; ".....We have to look to what actual prejudice has been caused to a person by the supposed denial to him of a particular right". (emphasis supplied) 39. In B. Karunakar, this Court considered several cases and held that it was only if the Court/Tribunal finds that the furnishing of the report "would have made a difference" to the result in the case that it should set aside the order of punishment. The law laid down in B. Karunakar was reiterated and followed in subsequent cases also [vide State Bank of Patiala v. S.K. Sharma,1996 3 SCC 363; M.C. Mehta v. nion of India, (1999) 6 SCC 237 ]. 40. In Aligarh Muslim University v. Mansoor Ali Khan, (2000) 7 SCC 529 , the relevant rule provided automatic termination of service of an employee on unauthorized absence for certain period. M remained absent for more than five years and, hence, the post was deemed to have been vacated by him. M challenged the order being violative of natural justice as no opportunity of hearing was afforded before taking the action. M remained absent for more than five years and, hence, the post was deemed to have been vacated by him. M challenged the order being violative of natural justice as no opportunity of hearing was afforded before taking the action. Though the Court held that the rules of natural justice were violated, it refused to set aside the order on the ground that no prejudice was caused to M. Referring to several cases, considering theory of 'useless' or 'empty' formality and noting "admitted or undisputed" facts, the Court held that the only conclusion which could be drawn was that had M been given a notice, it "would not have made any difference" and, hence, no prejudice had been caused to M. 41. In Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corporation Ltd, Haldia & Ors., (2005) 7 SCC 764 , speaking for a three Judge Bench, one of us (C.K. Thakker, J.) stated: "We are aware of the normal rule that a person must have a fair trial and a fair appeal and he cannot be asked to be satisfied with an unfair trial and a fair appeal. We are also conscious of the general principle that pre- decisional hearing is better and should always be preferred to post- decisional hearing. We are further aware that it has been stated that apart from Laws of Men, Laws of God also observe the rule of audi alteram partem. It has been stated that the first hearing in human history was given in the Garden of Eden. God did not pass sentence upon Adam and Eve before giving an opportunity to show cause as to why they had eaten the forbidden fruit. [See R. v. University of Cambridge, 1723 1 STR 557 But we are also aware that the principles of natural justice are not rigid or immutable and hence they cannot be imprisoned in a straitjacket. They must yield to and change with exigencies of situations. They must be confined within their limits and cannot be allowed to run wild. It has been stated: " 'To do a great right' after all, it is permissible sometimes 'to do a little wrong'." [Per Mukharji, C.J. in Charan Lal Sahu v. Union of India, (1990) 1 SCC 613 (Bhopal Gas Disaster), SCC p. 705. While interpreting legal provisions, a court of law cannot be unmindful of the hard realities of life. It has been stated: " 'To do a great right' after all, it is permissible sometimes 'to do a little wrong'." [Per Mukharji, C.J. in Charan Lal Sahu v. Union of India, (1990) 1 SCC 613 (Bhopal Gas Disaster), SCC p. 705. While interpreting legal provisions, a court of law cannot be unmindful of the hard realities of life. In our opinion, the approach of the Court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than precedential". (emphasis supplied) 42. Recently, in P.D. Agrawal v. State Bank of India & Ors., (2006) 8 SCC 776 , this Court restated the principles of natural justice and indicated that they are flexible and in the recent times, they had undergone a 'sea change'. If there is no prejudice to the employee, an action cannot be set aside merely on the ground that no hearing was afforded before taking a decision by the authority." 28. In the present case, the petitioner has been found to be unauthorisedely absent from 15.02.2012 to 12.06.2013. He is also found to be absent from 22.11.2013 to 30.01.2015. As the charge framed against the petitioner was only for his unauthorised absence for the period from 15.02.2012 to 12.06.2013, the case of the petitioner will have to be considered by the disciplinary authority only in respect to his unauthorised absence period from 15.02.2012 to 12.06.2013. The question of whether he is an alcohol addict or was unauthorisedly absent from 22.11.2013 cannot be the subject matter of the disciplinary proceeding though an employees past conduct/service record can be considered for adding weight to the decision for imposing punishing. 29. As the petitioner has admitted that he was on unauthorised leave in his written statement for the period from 15.02.2012 to 13.06.2013, this court finds that the non-supply of the enquiry report to the petitioner prior to his removal and discharge from service does not warrant reinstatement of the petitioner. This would be in consonance with the judgment of the Apex Court in the case of Uttarakhand Transport Corporation -vs- Sukhveer Singh (supra), Haryana Financial Corpn. This would be in consonance with the judgment of the Apex Court in the case of Uttarakhand Transport Corporation -vs- Sukhveer Singh (supra), Haryana Financial Corpn. v. Kailash Chandra Ahuja2 (supra) and in the case of Managing Director, ECIL -vrs- B. Karunakar, (1993) 4 SCC 727 , as this Court finds that no prejudice has been caused to the petitioner due to non supply of the enquiry report prior to the passing of the impugned Order dated 07.02.2015. 30. The impugned Order dated 07.02.2015 states as follows:- "OFFICE OF THE SUPERINTENDENT OF POLICE :::::BONGAIGAON::::::ASSAM. ORDER Perused the findings submitted by the Enquiry Officer Sri Hemanta Boruah, APS. Deputy Superintendent of Police (HQr.), Bongaigaon in connection with D.P. No. 09/2012 drawn up against ABC/470 Manoj Kr. Ray of Bongaigaon DEF. The statement of allegation against the delinquent ABC is that he has remained unauthorisedly absent for 482 days after availing 5 (five) days C.L. w.e.f. 07.02.2012. He reported at the Police Reserve, Bongaigaon on 13.06.2013 and again reported sick on 14.11.2013. The Medical Health Officer examined him and advised him for 7 (seven) days rest. Thereafter, he has again remained unauthorisedly absent w.e.f. 22.11.2013 till date. Thus, his unauthorized over staying of leave tantamount to gross negligence and dereliction of duty and he is charged accordingly. At the request of the then S.P., Bongaigaon a standing medical Board examined the delinquent AB Constable and opined as follows: "We the Medical Board examined ABC/470 Manoj Kr. Ray on 24.10.2013 and found that he is alcohol addicted and presented himself before the board consuming alcohol also. Further, Mr. Ray could not produce any treatment certificate from any de-addiction centre as he stated. The Enquiry Officer examined 4 (four) PWs and recorded their statements. He also examined the delinquent ABC/470 Manoj Kr. Ray and recorded his statement. After going through the Departmental Proceeding file & the findings of the Enquiry Officer, weighing the pros and cons of the evidence adduced and applying my mind, I Shri Abhijit Bora, the disciplinary authority come to the conclusion that the charges brought against the delinquent of gross negligence and dereliction of duty for violation of provision of the Sec 65 of the Assam Police Act, 2007 R/W Rule 66 of APM Part-III Article 311 of Constitution of India & Rule 7 of the Assam Services (Disciplinary & Appeal) Rules, 1964 are proved beyond all reasonable doubts. Moreover, he is also unfit to be retained in a disciplined force like Assam Police as he is an alcoholic as stated by the standing medical board. So, I agree with the findings of the Enquiry Officer, Sri Hemanta Boruah, APS, Depty Superintendent of Police, (HQr.), Bongaigaon. Hence I, Shri Abhijit Bora, Superintendent of Police and also being the Disciplinary Authority order for the removal and discharge from service for the delinquent ABC/470 Manoj Kr. Ray in the interest of public service and natural justice. Let the copy of this order be served on the delinquent and all concerned. The Departmental Proceeding is disposed off accordingly. The Reserve Officer, Bonagaigaon for D.O and entry into Service Sheet." A perusal of the above impugned Order dated 07.02.2015 shows that though the penalty imposed upon the petitioner was with regard to the charge framed against him for being unauthorisedly absent for the period from 15.02.2012 to 12.06.2013, but his unauthorised absence w.e.f., 22.11.2013 and the petitioner being found to be an alcoholic by the Medical Board has also been taken into consideration, while imposing the penalty of removal and discharge from service. In the case of Union of India vs. Bishamber Das Dogra, (2009) 13 SCC 102 , the Apex Court had held that past conduct/service record can be considered for adding weight to the decision for imposing punishment. 31. In the case of Central Industrial Security Force and Others v. Abrar Ali, (2017) 4 SCC 507 , the Apex Court has held that indiscipline on the part of a member of an Armed Force has to be viewed seriously and that the respondent, who had intentionally disobeyed the orders of his superiors and deserted the Force for a period of 5 days deserves to be punished suitably, as desertion is an act of gross misconduct. 32. As the unauthorised absence of the petitioner is an act of serious misconduct and as the past conduct and service record of the petitioner can be considered by the disciplinary authority for adding weight to the decision for imposing the penalty of removal and discharge from service, coupled with the fact that the charge of unauthorised absence has been admitted by the petitioner, this Court does not find any infirmity with the impugned Order dated 07.02.2015. As stated earlier, this Court does not find any infirmity with the non-furnishing of the enquiry report as stated above, as the non-furnishing of the enquiry report to the petitioner has not caused any prejudice to the petitioner. Technicalities and procedures cannot be stretched to such a limit, to enable the petitioner to challenge the penalty, when the charge of unauthorised absence has not been denied by the petitioner. The petitioner being a member of a disciplined force, the act of unauthorised absence for around one year four months, on account of drinking alcohol and alleged related illness cannot, but be viewed seriously by this Court. 33. In view of the reasons stated above, this Court does not find any ground to exercise its extra ordinary discretion in this case. The writ petition is accordingly dismissed.