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2019 DIGILAW 981 (GAU)

Apurba Bhuyan v. State of Assam

2019-09-03

PRASANTA KUMAR DEKA

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JUDGMENT : Prasanta Kumar Deka, J. 1. Heard Mr. M.H. Rajborbhuya learned counsel for the petitioner. Also heard Mr. N. Goswami, learned Govt. Advocate appearing for the State respondent. 2. The petitioner is aggrieved by the order dated 30.12.2011 passed by the Inspector General of Police, Assam whereby the order dated 31.12.2011 passed by the disciplinary authority in the departmental proceeding No. 9/2001 drawn up against the present petitioner by way of which the petitioner was dismissed from service on 31.12.2003. The petitioner is Armed Branch Constable and while serving at Dhemaji , driving a scooter he knocked down a child following which a compromise was entered between the parents of the victim minor boy who suffered injury and the petitioner who promised to pay a sum of Rs. 20,000/- to the parents of the victim boy. However as he failed to pay the amount so promised, a criminal complaint case was filed by the father of the victim boy which was numbered as CR Case No. 126/2000 in the court of First Class Judicial Magistrate, Jonai, Dhemaji. In the said complaint case the petitioner was convicted u/s 279/338 IPC and sentenced him with fine of Rs. 500/- in default to suffer simple imprisonment for two months. While the said criminal proceeding was pending due to non appearance of the present petitioner warrant of arrest was issued following which he was produced before the court of Judicial Magistrate. After the said conviction disciplinary proceeding No. 9/2001 was drawn up against the preset petitioner. The said disciplinary proceeding was drawn up on the following charge: "While ABC Apurba Bhuyan was attached to Simechapori out post for PSO duty of In-charge Simenchapori, Outpost he got involved in C.R. Case No. 126/2000 u/s 420 IPC registered at Jonai Court for his criminal conduct being a police personnel . Accordingly on the strength of non-bailable warrant issued from Jonai Court he had been arrested and forwarded to judicial custody on 10.7.2001 by Dhemaji police. His above act tantamount to gross negligence and indiscipline conduct that renders him unfit to continue as a member of the disciplined force." 3. The enquiry officer submitted his report holding that the charge of gross negligence and indiscipline conduct is proved against the petitioner. His above act tantamount to gross negligence and indiscipline conduct that renders him unfit to continue as a member of the disciplined force." 3. The enquiry officer submitted his report holding that the charge of gross negligence and indiscipline conduct is proved against the petitioner. The S.P. Dhemaji being the disciplinary authority vide order dated 30.12.2011 dismissed the petitioner by holding as follows:- "OFFICE OF THE SUPERINTENDENT OF POLICE, DHEMAJI DISTRICT DHEMAJI Copy of D.O. No. 5829, dated 31.12.2003 Gone through the findings of D/P No. 9/2001 drawn up against the delinquent ABC/152 Apurba Bhuyan who was convicted by CJM of Ist Class, Jonai u/s 279/338 IPC with a fine of Rs. 500/- (Rupees five hundred) and S.I. of 2(two) months for involvement in rash or negligence driving which was proved by E.O. Hence ABC/152 Apurba Bhuyan was dismissed from Service on 31.12.2003. The absence period w.e.f. 10.7.2001 to 24.8.2001 i.e. 44 days is treated as L.W.P. The D/P File No. 9/2001 drawn up against him is hereby disposed off. Sd/- T. Thangngee, IPS, Superintendent of Police Dhemaji." 4. After about eight years the petitioner filed an appeal before the appellate authority which was also disposed of vide order dated 30.12.2011 thereby upholding the order of dismissal passed by the then S.P. Dhemaji dated 31.12.2003. Being aggrieved the petitioner has filed this writ petition challenging the order of dismissal. 5. Mr. Borbhuyan submits that the punishment of dismissal of the petitioner is not proportionate to the charge. In fact if the enquiry report is gone through it speaks that there was an agreement with the father of the victim boy who was injured in the road accident and as he failed to pay the said amount of Rs. 20,000/- that was termed to be gross negligence and in-disciplined conduct. Even if the petitioner did not appear on receipt of the summons from the criminal court that also does not amount to gross negligence and indiscipline inasmuch as, as stated by Mr. Borbhuyan, the respondents failed to show that there is a specific violation of any command or order from by the controlling officer of the petitioner. 6. Mr. Borbhuyan relies on Mohd. Yunus Khan vs. State of Uttar Pradesh and Others, (2010) 10 SCC 539 . Borbhuyan, the respondents failed to show that there is a specific violation of any command or order from by the controlling officer of the petitioner. 6. Mr. Borbhuyan relies on Mohd. Yunus Khan vs. State of Uttar Pradesh and Others, (2010) 10 SCC 539 . He also further submitted that the disciplinary authority did not consider the enquiry report in its true perspective and simply holding that there was conviction of the petitioner by the criminal court and as such the enquiry report was accepted. According to him the appellate forum also failed to take note of the said irregularities. Merely stating that there was delay of eight years in preferring the appeal, dismissed the appeal. 7. Mr. Goswami, on the other hand referring to the affidavit-in-opposition filed by the respondent No. 4 submits that there was due observation of principles of natural justice during the enquiry and moreover there is an unexplained delay as to why the petitioner remained silent since the passing of dismissal order in the year 2003. The reasons for delay stated in the writ petition cannot be accepted inasmuch as the same was not stated before the appellate authority. There is no irregularity in the findings of the order passed by the appellate authority as it is specifically stated that the petitioner was dismissed from service 31.12.2003 and appeal was preferred on 10.10.2011, after about of 8(eight ) years period. The petitioner failed to explain the valid reason of delay while preferring the appeal. The appellate authority applied its mind and accordingly passed the order dated 30.12.2011 and there is no scope of interference at this stage by this court. 8. I have given due consideration to the submissions of the learned counsel. The petitioner is before this court after about 9(nine) years from the date of the order dismissing him from the service. The appellate authority though referred the delay, however the appeal was not thrown away by the appellate authority only on the ground that there was delay. Rather the authority has rightly exercised its jurisdiction by considering the appeal though the same is not in the proper perspective. But the finding of the order of the disciplinary authority dismissing the petitioner and the manner in which the same was passed is unacceptable. Rather the authority has rightly exercised its jurisdiction by considering the appeal though the same is not in the proper perspective. But the finding of the order of the disciplinary authority dismissing the petitioner and the manner in which the same was passed is unacceptable. On a plain reading of said order it can be culled out that the disciplinary authority perused the finding of the departmental proceeding No. 9/2001 against the petitioner who was convicted by a criminal court and hence the petitioner was dismissed from service. The disciplinary authority is not bound by the finding of the enquiry officer. The disciplinary authority is to apply its mind and where the disciplinary authority failed to apply its mind to the report and the record of the enquiry officer inflicting punishment to the delinquent is prejudicial and the said act is a clear violation of the proceeding unknown to the service jurisprudence. 9. Here it is the case where the petitioner knocked down a boy and thereafter he visited the family, met the parents of the victim boy and decided to compensate the family and there was failure on the part of the petitioner. Being aggrieved the parents filed a complaint case and therein the petitioner was convicted u/s 279/388 IPC. The said offence alone cannot be a ground in the disciplinary proceeding inasmuch as judgment passed by the criminal court has no role in the departmental proceeding. There is no specific allegations against the petitioner that he failed to abide by any of the commands issued by higher or controlling authority. There is nothing on record to show that there was any negligence of duty or in-disciplined while he was on duty. Under such circumstances this court exercising its power under Article 226 of the Constitution of India cannot blink its eye merely on the ground of delay in not preferring the appeal by the petitioner on time. A disciplinary proceeding under service jurisprudence has its own procedure keeping in view that the delinquent officer is not affected due to the lapses on the part of the disciplinary authority and to protect from violation of the principles of natural justice. A disciplinary proceeding under service jurisprudence has its own procedure keeping in view that the delinquent officer is not affected due to the lapses on the part of the disciplinary authority and to protect from violation of the principles of natural justice. Here in this case disciplinary proceeding was conducted in a manner which cannot be accepted inasmuch as the disciplinary authority did not even applied its mind at least to take note of the fact that the finding in the criminal court has nothing to do in the departmental proceeding when the same is not in respect to the conduct of the delinquent officer. Further the offence stated in the enquiry report and the charge cannot be accepted which could be termed to any violation of the official duty. An agreement was entered and the petitioner promised to give an amount. If at all there is any liability the same is a contractual liability and that liability cannot under any circumstances be treated to be violation of the conditions of the service. 10. There is a specific admission on the part of the respondent in the affidavit-in-opposition that the disciplinary authority the then S.P. Dhemaji just relied on the enquiry report and judgment of the criminal court and after careful consideration and perusal of the relevant records and his previous service record the petitioner was found not fit to be retained in a disciplined police force and dismissed him from service. On perusal of the charge there is no mention of any previous service record and under such circumstances the disciplinary authority cannot go beyond the charge. Considering the totality of the matter, this writ petition succeeds and dismissal order dated 31.12.2003 issued by the Superintendent of Police is set aside. The petitioner shall be allowed to join in his service however without any back wage. Period of absence from service of the petitioner shall be taken into consideration for his promotional and pensionary benefits. 11. The writ petition is disposed of. No order as to cost.