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2021 DIGILAW 799 (GAU)

Bapan Mandal v. State of Assam

2021-12-10

ACHINTYA MALLA BUJOR BARUA

body2021
JUDGMENT : 1. Heard Mr. A Atreya, learned counsel for the petitioner and Mr. T.C. Chutia, learned Additional Senior Government Advocate for the respondents in the Home Department of the Government of Assam. 2. The petitioner, who was appointed as a AB Constable in the Assam Police on 8.5.2008 is said to have fallen sick after his appointment. He was subjected to a medical examination by the authorities of the Kanaklata Civil Hospital, Tezpur. Subsequently, he was also subjected to a Medical Board to examine the illness he was suffering from. It is stated that the medical authorities are of the view that the petitioner is suffering from mental illness. In the circumstance, the order dated 14.3.2009 was passed by the Commandant 12th Assam Police Battalion, Jamugurihat, by which the petitioner was removed from service with immediate effect with further provision of no pay for the period for which he remained absent. 3. The said order was assailed in WP(C) No. 3826/2010, wherein a final consideration was given by the order dated 20.6.2012. By the said order, the petitioner was given the liberty to approach the higher authorities in the Assam Police for a consideration of his grievance in the background of the assertion made that he was suffering from mental illness. Consequent thereof, the order dated 18.1.2013 was passed by the Director General of Police, Assam. In the order dated 18.1.2013, the Director General of Police arrived at his conclusion and satisfaction as regards the continuance of the disease of mental illness that the petitioner was suffering with a further satisfaction that there is likelihood of the disease being reduced. In the circumstance, the order dated 14.3.2009 removing the petitioner from service was upheld. 4. Removal from service is a provision under the Assam Services (Discipline and Appeal) Rules, 1964 (‘Rules of 1964’). The provisions of Rules of 1964 are applicable in the circumstance of there being an alleged misconduct on the part of the employee. No such provision is available in the Rules of 1964 to deal with an employee, who is suffering from mental illness. The provisions of Rules of 1964 are applicable in the circumstance of there being an alleged misconduct on the part of the employee. No such provision is available in the Rules of 1964 to deal with an employee, who is suffering from mental illness. As it is an admitted position that the petitioner is suffering from mental illness and there is no allegation of misconduct against him, we are of the view that the condition precedent of invoking of any of the provisions of Rules of 1964 including the provision of removing an employee from service would be inapplicable in the present case. 5. Consequently, the orders dated 18.1.2013 of the Director General of Police, Assam as well as the earlier order dated 14.3.2009 of Commandant, 12th Assam Police Battalion, Jamugurihat are without jurisdiction and authority of law. Accordingly, the same stands interfered and set aside. 6. A person who is suffering from mental illness and may be unfit to remain in service are required to be dealt with under the appropriate provisions of law. As it is a case of the respondents that the petitioner is suffering from a mental illness from which he is unlikely to recover, the respondents may pass any order under the appropriate provisions of law by following the due procedure of law. In doing so, in the interim, the respondents may take any decision on the service of the petitioner as may be deemed appropriate under the relevant provisions of law. The writ petition is allowed to the extent indicated above.