THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram & Arunachal Pradesh )
WRIT PETITION(C) NO.3994 OF 2000.
1.Sri Karuna Das
Son of Sri Karunamoni Das
A resident of Hojai Purana Bazar
P.O. Hojai, Dist. Nagaon, Assam.
1. State of Assam, Represented by its
Secretary to the Department of Home,
Dispur, P.O. Sachivalaya, Guwahati-6.
2. The Director General of Police,
Government of Assam, Rehabari,
3. The Commandant, 8th Assam Police
Battalion Abhayapuri, P.O. Abhayapuri
! Mr. A. Dasgupta
Mr. S. Das, Advocates For the Petitioner
^ Mr. H.K. Mahanta,
G.A. Assam For the Respondents
THE HONBLE MR. JUSTICE B.K.SHARMA
JUDGMENT AND ORDER (ORAL)
1.This writ application has been filed making a challenge to an order dated 30-9-99 by which the petitioner, a Police Constable under the respondents was discharged from service pursuant to a departmental proceeding initiated and completed against him.
2.The departmental proceeding No.17/99 was drawn against the petitioner under Section 7 of the Police Act read with Rule 66 of Assam Police Manual Part-III read with Article 311 of the Constitution of India. The charge sheet was issued under Memo dated 29-7-1999 and it reads as follows :-
Memo No.Bn.B/R/99/4197 Dated 29-7-1999.
Const.587 Karuna Das
8th A.P. Battalion Abhayapuri,
Dist. Bongaigaon, Assam.
Sub: Show cause notice D/P No.17/99
You are hereby asked to show cause U/S 7 of Indian Police Act, (Act V of 1861) read with Rule 66 of Assam Police Manual Part-III and Article 311 of the Constitution of India, as to why any of the penalties prescribed therein should not be inflicted on you for the charge based on the statement of allegation attached herewith.
While you were posted to No.4 platoon which was undergoing refresher course at Battalion H.Q. On 6-7-99, the platoon was deputed to Guwahati for V.I.P. duties. After completion of the V.I.P duties the platoon was allowed to come back to Battalion H.Q. on 10-7-99. Accordingly the platoon was ready to move to Battalion H.Q., but while the P.C. No.4 platoon took the Roll calling the evening of 10-7-99 you were found absent and at the time of dissertation from the platoon you left your allotted Rifle, Ammunitions and Govt. clothing etc. without any intimation.
You reported at Battalion H.Q. on 28-7-99 at about 3 P.M.
Your such act is tantamount to gross misconduct and indisciplined behaviour which render you unfit to retain in a disciplined force.
You reported at H.Q. on 28-7-99 at about 3 P.M
Your such act is tantamount to gross misconduct and indisciplined behaviour which render you unfit to retain in a disciplined force.
You are therefore charged accordingly.
Besides, you are hereby intimated that you were awarded punishments on different occasions as per your service records.
Instances are given below :-
1. Awarded Q.G. 3 (three) days B.O.No.1949 dt.24-9-96 for unauthorized visit outside the platoon.
2 Award 3(three) days G.G. for Gross B.O. No.2752 dt.13-12-96 indiscipline conduct
3. Granted 8 eight) days L.W.P. B.O.No.1902 dt. 6-8-97 w.e.f. 27-7-97
4. Awarded 7 (seven) days P.D B.O. No.976 dt 18-6-98 . For 2 hrs. daily with full pack for gross
Misconduct as reported by P.C. No.17 platoon.
5. Awarded 7 (seven) days Q.G. for B.O. No.2746 dt.16-11-98 indisciplined conduct as reported by i/c of
6. Awarded 3 (three) days P.D for 2 B.O. No.1073 dt.3-7-99 hrs. daily for unauthorized absent from
morning parade and also from the barrack.
You are hereby informed that your past conduct will be taken into consideration to decide the quantum of punishment if the charge drawn against you is proved.
Your written explanation should be submitted within 10 (ten) days from the date of the communication and if you intend to inspect the documents which have relevant with the issue under enquiry may writ to the undersigned within 7 (seven) days from the date of receipt of the communication and thereafter submitted your written explanation within 10 (ten) days from the date of completion of inspection.
Your written explanation stating whether your desire to be heard in person should be submitted to the undersigned within the period specified above.
8th A.P. Battalion,Abhayapuri.
3.The petitioner submitted his written statement explaining the circumstances leading to his unauthorized absence for the period in question. According to him, he completed his duty at Guwahati as was assigned to him and thereafter he came to know through telephonic talk with his mother that his father was ill. On getting the news of his father illness, the petitioner rushed to his native place to meet his father and thereafter remained with his fathers till he recovered from his illness. Thereafter, he went tojoin his duty at Abhayapuri. According to the petitioner, he never committed any mis-conduct and on that basis he tendered unqualified and un-conditional apology for any commission or omission on his part. The written statement was filed on 6-8-99.
4.From the charge sheet it will be seen that the petitioner was charged of un-authorized absence from duty coupled with the allegations of leaving behind his allotted Rifle, Ammunition and other things without any intimation. Such unauthorized absence was 10-7-99 till 28-7-99, when he had reported for duty. He was found absent during Roll Call on 10-7-99 when the Battalion was to move to its destination. In the charge sheet it was made known to the petitioner that his past misconduct would also be taken into account. Such past misconduct on the part of the petitioner indicates his unauthorized absence from duty on earlier occasions also.
5.Pursuant to a regular departmental proceeding in which the petitioner duly participated, the Enquiry Officer submitted his report holding the petitioner to be guilty of the charge leveled against him. The enquiry report was submitted on 13-9-99. The petitioner was directed to submit his reply to the Enquiry Report which he accordingly did by submitting his representation. Thereafter, the impugned order of penalty discharging the petitioner from service was issued on 13-9-99.
6.Mr. A. Dasgupta, learned counsel appearing for the petitioner submits that the order of penalty is liable to be interfered with on the following grounds
i)That the petitioner was asked by the charge sheet itself as to why any of the penalties prescribed under the rules should not be imposed and thus the Disciplinary Authority proceeded in the matter with a pre-determined mind. ii)The petitioner having performed his duties at Guwahati as was assigned to him, it is not a case of un-authorized absence from duty and at best could be a case of late resumption of duty.
iii)The enquiry having been conducted by an Officer directly under the control of the Disciplinary Authority,there is likelihood of bias on the part of the Enquiry Officer. iv)Even if the misconduct or allegation is held to be proved, the penalty imposed on the petitioner discharging him from service is grossly disproportionate.
7.Mr.Dasgupta,learned counsel relied upon the decision of the Apex Court as reported in AIR 1958 SC 300 ( Khem Chand Vs. Union of India and others), and the decision of the Calcutta High Court as reported in AIR 1961 Calcutta 626 ( Sudhir Ranjan Halder Vs State of West Bengal).
8.Mr.H.K. Mahanta, learned State counsel made submission on behalf of the respondents. As against the submission of Mr. Dasgupta, Mr. Mahanta submits that no prejudice having been shown or even urged by the petitioner, no interference is called for to the disciplinary proceeding and for that matter the order of penalty. Mr. Mahanta submits that the petitioner being a member of the disciplined force, unauthorized absence on the part of the petitioner is required to be viewed seriously.
9.I have considered the rival submission made by the learned counsel for the parties and also gone through the materials on record.
10.As regards the first submission of Mr.Dasgupta that the charge sheet under Section 7 of the Police Act itself having indicated that any of the prescribed penalty would be inflicted on the petitioner and thus the Disciplinary Authority acted in a pre-determined manner, it will be seen that the charge sheet was issued under Section 7 read with Rule 66 of the Assam Police Manual Part-III and Article 311 of the Constitution of India. Rule 66 of the Assam Manual speaks of proceeding to be drawn up in the case of major punishment. Thus the charge sheet was issued under Rule 66 which is the relevant clause towards initiation of the departmental proceeding by way of issuance of the charge sheet. Mere representation in the charge sheet asking the petitioner as to why any of the penalties prescribed under the rule should not be imposed against him cannot be said to have caused prejudice to the petitioner. By the said charge sheet the charge leveled against the petitioner was only conveyed and he was asked to submit his written statement of defence which he accordingly did without raising any grievance. Thereafter, the regular departmental proceeding was carried out in which the petitioner was found guilty of the charge. In the charge sheet it was clearly indicated that the past misconduct on the part of the petitioner would also be taken into account towards imposition of penalty if any on conclusion of the departmental proceeding. I do not find any infirmity in the charge sheet. Moreover, the petitioner never agitated during the course of enquiry that the issuance of the charge sheet in that manner had caused any prejudice to his defence.
11.As regards the second submission of Mr.Dasgupta that it was not a case of unauthorized absence in view of the reporting of the petitioner at the place of posting on completion of his duty at Guwahati , may be belatedly I find that the petitioner on completion of his duty at Guwahati was to remain with the Battalion. His unauthorized absence from duty was detected during Roll Calling. It is also on record that he left his place of duty without any intimation and left behind his arms and ammunitions without entrusting the same to anybody. Thus it cannot be said to be not a case of unauthorized absence from duty.
12.As regards the submission of the learned counsel for the petitioner that there was a likelihood of bias in conducting the enquiry, since the Enquiry Officer was under direct control of the Disciplinary Authority, such an argument is fallacious. In every departmental proceeding, the Enquiry Officer is likely to be a Subordinate Officer of the Disciplinary Authority. Unless a prejudice is shown or any biasness on the part of the Officer is indicated during the course of the enquiry, it will not be open for a delinquent Officer to raise such a grievance after imposition of penalty.
13. As regards the submission of Mr. Dasgupta, that even if the charge against the petitioner is held to be established, the penalty of discharge from service is grossly disproportionate is not at all tenable, the petitioner being a member of the disciplined force. Such a plea was raised in the case of Saroj Kr. Bhattacharyya Vs. Union of India and others as reported in 2003(2) GLT 72 . In that case also the petitioner was a member of the disciplined force and remained unauthorisedly absent from duty. Pursuant to departmental proceeding he was removed from service . Learned single Judge of this Court as well as the Division Bench of this Court rejected the claim of the petitioner that the penalty imposed was grossly disproportionate.
14. I may also gainfully refer to the Division Bench decision of this Court which was subsequently confirmed by the Apex Court. That was also a case of unauthorized absence from duty of a member of the disciplined force who also as in the instant case abandoned his duty as well as well as his arms and ammunitions and remained unauthorisedly absent from duty. The said case is reported in 2000(3) GLT 62 (Union of India and others Vs. Mithilesh Singh). In that case, the learned single Judge initially allowed the writ petition holding the penalty of removal from service to be disproportionate. However,, the Division Bench of this Court interfered with the same. Eventually the matter went up to the Supreme Court by way of an appeal preferred by the delinquent officer. The Apex Court upheld the judgment of the Division Bench by its judgment as reported in (2000) 3 SCC : 309 (Mithilesg Singh Vs Union of India and others.)
15.The petitioner although has urged the above grounds but no prejudice could be shown in his defence. The Apex Court in the case of State Bank of Patiala and others Vs. S.K. Sharma as reported in (1996) 3 SCC 364 emphasized the need to establish prejudice caused in the defence of the delinquent. In the instant case the petitioner has not been able to show any prejudice to his defence.
16. There is another aspect of the matter. The petitioner by way of admitting the fact of his unauthorized absence has admitted the guilt. In this connection I may gainfully refer to the decision of the Apex Court as reported in AIR 1972 SC 32 (C.B. Happali vs. The State of Mysore ) in which case also, the petitioner was a Police Officer who remained unauthorisedly absent from duty. The Apex Court brushing aside the technical pleas raised by the petitioner as in the instant case held that the factum of unauthorized absence having been admitted by the petitioner, the technical pleas towards conducting the departmental enquiry were not available to him. The Apex Court observed that the admission of fact on the part of the petitioner amounted to admission of guilt. The Apex Court in that case observed that if a police officer remained absent without leave and that position is admitted by him, the indiscipline is fully established. In the instant case also, the petitioner admitted the fact of remaining unauthorized absent from duty, although tried to explain away such absence.
17. In the case of Khem Chand (Supra) relied upon by the learned counsel for the petitioner, the Apex Court held on the facts of that case that the appellant having not been given adequate opportunity, there was violation of Article 311(2) of the Constitution of India, which is not the case at hand. In the case of Sudhir Ranjan (Supra), the Division Bench of the Calcutta High Court held that the notice to show cause must be reasonable I do not understand how the case helps the petitioner. During the course of argument Mr.Dasgupta placed reliance on a decision of Madras High Court as reported in AIR 1964 Madras 375 (S. Manickan Vs. Superintendent of Police). In that case, the charge sheet issued to the petitioner was interfered with being defective. Same is not the case here. Accordingly, this case also does not help the case of the petitioner.
18. For the foregoing reasons I do not find any infirmity in the impugned order dated 30-9-99 and so also in the disciplinary proceeding initiated and completed against the petitioner. The grounds which have been urged in the writ petition were never agitated before the disciplinary authority . The petitioner also did not prefer any appeal about which there is no indication in the writ petition. The impugned order of penalty dated 30-9-99 is clear and unambiguous .The disciplinary authority discussed the evidence on record in details and the order of penalty has been passed on the basis of the materials available on record. In absence of any procedural irregularity in conducting the enquiry, the writ Court in exercise of its power of judicial review under Article 226 of the Constitution of India cannot interfere with the same. As regards the proportionality of the punishment, in view of the aforementioned decisions relating to the members of the disciplined force, it cannot be said that the penalty imposed against the petitioner is disproportionate.
19. The writ petition stand dismissed. There shall be no order as to cost.JUDGE