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2020 DIGILAW 798 (GAU)

Nabam Tade Naik v. State Of Arunachal Pradesh

2020-12-04

NANI TAGIA

body2020
JUDGMENT Nani Tagia, J. - This writ petition was dismissed for default by an order of this Court dated 11.06.2019, as no one had represented the petitioner at that day. The writ petition however was restored to file by an order dated 24.06.2019 passed in MC(WP) 02 (AP)/2019, as reflected in the order dated 24.06.2019. After the writ petition was restored to file as above, the learned counsel for the petitioner again did not appear when the matter was called up on 26.08.2019 and accordingly, the matter was directed to be listed for hearing in the usual course. Today when the matter is called up, Ms. E. S. Nido Mari, learned counsel makes a prayer on behalf of Mr. U. Deka, learned counsel representing the petitioner for adjournment of the case by 2 (two) weeks. Considering the nature of the case and also taking into account that the writ petition pertains to the year 2014, this writ petition is taken up for disposal on its own merit. 2. I have heard Ms. P. Pangu, learned Government Advocate for the respondents. 3. The petitioner has put to challenge the order dated 16.09.2014, issued by the Superintendent of Police, Capital, Itanagar vide Memo No. SPC/ITA/PF-160/2014/2962, whereby, the period of absence from the duty of the petitioner w.e.f. 20.07.2013 to 31.10.2013 has been treated to be on Extra Ordinary Leave. The petitioner, who is a Naik in Arunachal Pradesh Police, was transferred from the Papum Pare (City) to Papum Pare District (Rural) vide order dated 09.07.2013. In pursuance thereof, the petitioner was released from the establishment of Superintendent of Police, Capital, by an order dated 17.07.2013 w.e.f. 20.07.2013 to enable the petitioner to join at his new place of posting i.e. Papum Pare District (Rural). After the release of the petitioner from the establishment of Superintendent of Police, Capital on 20.07.2013, the petitioner rejoined in the establishment of Superintendent of Police, Capital, Itanager on 01.11.2013, on being posted back to Papum Pare District (Capital) for 6 (six) month on compassionate ground. During the intervening period of 20.07.2013 to 31.10.2013, the petitioner did not join at his new place of posting at Papum Pare District (Rural). During the intervening period of 20.07.2013 to 31.10.2013, the petitioner did not join at his new place of posting at Papum Pare District (Rural). After the petitioner rejoined in the establishment of Superintendent of Police (Capital) on 01.11.2013, the petitioner submitted an application for regularization of his absence period of 104 days w.e.f. 20.07.2013 to 31.10.2013 to be treated as Earned Leave (EL). The respondent authorities vide the impugned order dated 16.09.2014, has treated the period of 104 days of unauthorized absence of the petitioner w.e.f. 20.07.2013 to 31.10.2013 as Extra Ordinary Leave. 4. Assailing the correctness of impugned order dated 16.09.2014, the petitioner contends that the respondent authorities by the impugned order dated 16.09.2014, while treating the unauthorized period of absence from the duty of the petitioner w.e.f. 20.07.2013 to 31.10.2013 as Extra Ordinary Leave, has acted in punitive manner for the reason that the order of release dated 17.07.2013, was challenged by the petitioner before the High Court by filing a writ petition being WP(C) 308 (AP)/2013, which was disposed of by this Court on 26.09.2013, directing the respondent authorities to dispose of the representation of the petitioner within 2 (two) weeks and till the disposal of the representation, the release order of the petitioner in pursuance to the transfer order was directed to be kept in abeyance. The petitioner, therefore, contends that as the release order of the petitioner from the establishment of Superintendent of Police, Capital, Itanagar, was stayed by the Court till disposal of the representation, the entire period from 20.07.2013 to 31.10.2013, could not have been treated as Extra Ordinary Leave by the respondent authorities. 5. The respondent Nos. 1, 2 & 3 by filing the counter affidavit essentially contends that before treating the period of unauthorized absence of the petitioner w.e.f. 20.07.2013 to 31.10.2013 as Extra Ordinary Leave, a Show Cause Notice was issued to the petitioner and on perusal of the reply submitted by the petitioner in pursuance of the Show Cause Notice, the respondent authorities were not satisfied with the explanation given by the petitioner in the reply to the Show Cause Notice and accordingly, as the petitioner was not on duty for the period mentioned herein above, his period of absence was treated as Extra Ordinary Leave. In the counter affidavit filed, the respondents have not highlighted what was the explanation given by the petitioner in his reply to the Show Cause Notice. 6. On perusal of the impugned order dated 16.09.2014, it is noticed that the period of unauthorized absence of the petitioner w.e.f. 20.07.2013 to 31.10.2013 was treated as Extra Ordinary Leave on consideration of the reply to the Show Cause Notice submitted by the petitioner as well as after hearing the petitioner in person. In the impugned order dated 16.09.2014, though it is indicated that the reply submitted by the petitioner have been considered and also the petitioner was heard in person, apart from stating that the reply submitted by the petitioner is not satisfactory, nothing further is discussed in the impugned order dated 16.09.2014 as to how the reply submitted by the petitioner was not satisfactory. 7. The Show Cause Notice issued to the petitioner dated 01.08.2014, by the Superintendent of Police, Capital, Itanager has been annexed as annexure-A to the writ petition, whereby the petitioner has been asked to file his reply as to why the period of absence from the duty w.e.f. 20.07.2013 to 31.10.2013 should not be treated as Extra Ordinary Leave. The reply submitted by the petitioner to the Superintendent of Police, Capital, Itanagar is dated 27.08.2014, which has also been annexed as annexure-B to the writ petition. On perusal of the reply submitted by the petitioner, it is noticed, in paragraph 6 thereof, that the petitioner in his representation has stated that he was performing regular duties at Banderdewa, as usual, during the pendency of the WP(C)308(AP)2013, which was disposed of on 26.09.2013. To the statement of the petitioner that the petitioner was performing his regular duties at Banderdewa during the pendency of the WP(C)308(AP)/ 2013, which was disposed of on 26.09.2013, the respondent authorities have not recorded any finding as to the correctness or otherwise of the statement of the petitioner, while issuing the impugned order dated 16.09.2014, treating the period of absence from 20.07.2013 to 31.10.2013 of the petitioner as Extra Ordinary Leave; nor in the counter affidavit filed by the respondent Nos. 1, 2 & 3, it has been explained as to whether the statement made by the petitioner in his reply to the Show Cause Notice was a correct statement of the fact or not. 8. 1, 2 & 3, it has been explained as to whether the statement made by the petitioner in his reply to the Show Cause Notice was a correct statement of the fact or not. 8. In that view of the matter, this Court is of the view that the respondent authorities before issuing the impugned order dated 16.09.2014, ought to have recorded a finding on the statement of the petitioner in his reply submitted, pursuant to the Show Cause Notice that during the pendency of the WP(C)308(AP)/2013, he was performing his regular duties at Banderdewa, was correct or not. 9. Accordingly, this writ petition is disposed of with a direction to the respondent authorities to pass a fresh order in pursuance of the Show Cause Notice dated 01.08.2014, issued by the Superintendent of Police, Capital, Itanagar vide Memo No. SPC/ITA/PF-160/2014/2602, by taking note of the statement made by the petitioner in his reply to the Show Cause Notice that the petitioner was performing his regular duties at Banderdewa during the pendency of WP(C) 308 (AP)/2013 which was disposed of by this Court on 26.09.2013. Resultantly, the impugned order dated 16.09.2014, issued by the Superintendent of Police, Capital, Itanagar vide Memo No. SPC/ITA/PF160/2014/2962, is set aside and quashed. 10. The writ petition is disposed of in terms above