Karuna Mohan Das vs State Of Assam And 3Ors

Heard Mr. K.R. Patgiri, learned counsel for the petitioner. Also heard Mr. G. Pegu, learned Govt. advocate appearing for the State respondents.

By this writ petition filed under Article 226 of the Constitution of India, the petitioner has challenged the order dated 03.06.1999, thereby discharging the petitioner from training as well as the order dated 05.06.1999, thereby removing the petitioner from service.

The petitioner is also seeking a direction from this Court to continue to serve as A.B. Constable under the Commandant 3rd Assam Police Battalion and to continue his "basic training" under the Commandant, Armed Police Training Centre, Dergaon.

The learned counsel for the petitioner has submitted that the petitioner was appointed as A.B. Constable by order No. 2726 dated 12.11.1998 against an existing vacancy. By signal dated 03.02.1999 of the Inspector General of Police (TAP), Assam, the petitioner along with others were deputed to proceed to Assam Police Training Centre, Dergaon to undergo 79th Batch Basic Training commencing from 15.02.1999. It is submitted that in course of training, due to sudden emergent information received from his home, the petitioner was compelled to take casual leave from 03.05.1999 to 04.05.1999. Thereafter, he fell ill and was on treatment from 04.05.1999 to 24.05.1999, and in support of such illness, the petitioner had produced a medical certificate. During the course of training, the petitioner again reported sick from 30.05.1999, as such, on 03.06.1999, he was permitted to go home for better treatment and after a few days, when he reported at the office of the Commandant, 3rd AP Battalion (respondent No.3) he was verbally informed that he was discharged from doing training. The learned counsel for the petitioner has submitted that that at that time, the petitioner was not furnished with any document of his discharge. However, it is submitted that the petitioner had received a letter dated 21.09.2013 from the Reserve Inspector, 3rd AP Battalion by which the petitioner was informed that he had been removed from the service with immediate effect. In the said context it is submitted that the petitioner was dismissed from service without any hearing and without drawing up any disciplinary proceeding, as such, the principles of natural justice have been violated. It is submitted that although the petitioner was shown to have been discharged from training by order dated 03.06.1999, he was shown to be discharged from service under B.O. No. 1419 dated 05.06.1993, but the same orders were communicated by letter dated 21.09.2013 and, as such, the communication of the orders dated 03.06.1993 and 05.06.1993, impugned herein were withheld for fifteen long years. Accordingly, it is submitted that the petitioner was entitled to be reinstated in service with full back wages and other benefits. In support of his submissions, the learned counsel for the petitioner has relied on the case of Union of India and Ors. Vs. Ramlakhan Sharma, (2018) 7 SCC 670 and on the case of Dulu Devi Vs. State of Assam and Ors., (2016) 1 SCC 622.

The learned counsel for the State has referred to the petitioner's letter dated 23.06.1999, wherein he had admitted service of order dated 05.06.1999. The learned Govt. advocate has also produced the record and it is shown from the record that the communication dated 05.06.1999 regarding the discharge of the petitioner from service (contained in page Sl. No. 13 of the concerned file) was duly served on the petitioner and that towards token of his acknowledgement, his signature was available at the back side of the said document. In this regard, the learned counsel for the petitioner has submitted that as the petitioner has taken a stand that the said document was not served on the petitioner, the Court should cause examination of the document to ascertain whether the signature of the petitioner appearing at back side of page 13 of the concerned original record was of the petitioner or not.

It is seen that there is a mention in the order under Memo No. APTC/R/79th Batch/99/2871 dated 03.06.1999, passed by the Commandant Armed Police Training Centre, Dergaon that the petitioner was heard in person, and that he had produced a medical certificate to cover the period of his out-station leave (OSL) from 04.05.1999 to 24.05.1999. It is also mentioned in the said order that the Medical Officer had noted that the petitioner was fit to resume his duty on 19.05.1999, but the petitioner had reported for training on 24.05.1999. Accordingly his explanation for unreasonable delay was held to be unsatisfactory. It has also been mentioned therein that earlier the petitioner had availed eight days casual leave for various reasons and that his track record indicates that he was not taking up training seriously and he also frequently reported sick and that the petitioner had absented himself from the training for a prolong period since the commencement of his basic training from 15.02.1999. Accordingly, it was held that the petitioner was liable to be discharged as per joining instruction and accordingly, the petitioner was discharged from training with immediate effect from 03.06.1999. It is seen that the petitioner has not denied that he was heard when the order of his discharge from training was passed. Thereafter, under B.O. No. 1419 dated 05.06.1999, the petitioner was removed from service with immediate effect. The unauthorized absence period was treated as leave without pay and he was to receive the pay etc. for the rest of the period. The petitioner has not stated in the writ petition that he was not given his pay for the period he was under training in terms of order dated 05.06.1999. Moreover, the back page of page serial No. 13 of the records bearing order under Memo No. Am BN. 3/R/3061-67 dated 05th June, 1999 bearing B.O. No. 1419 dated 05.06.1999 produced by the Govt. advocate reflects the signature of the petitioner, which indicates that the copy of his discharge order was served on the petitioner. As per letter dated 23.06.1999 annexed to the additional affidavit filed by respondent No. 3, the petitioner had accepted being served with a copy of order dated 05.06.1999 and that the respondent No.3 had not allowed the petitioner to join. Under such circumstances, as per the petitioner had approached this Court after delay of 15 years, this is not a fit case to invoke the writ jurisdiction of this Court for interfering with the order of removal from service dated 05.06.1999.

It is seen from the service records of the petitioner, as produced, produced that the petitioner was appointed on 12.11.1998. On 31.12.1998, the petitioner reported sick and he was admitted in the Unit Hospital of the 3rd AP Battalion and discharged on 25.01.1999 with a recommendation for seven days rest. Accordingly, the petitioner was given 32 days extra-ordinary leave. However, instead of resuming duty on 31.01.1999, he had resumed duty on 08.02.1999 and his over stayed leave of seven days was regularized as extra ordinary leave vide B.O. No. 359 dated 11.02.1999 and thereafter he was directed to undergo 79th Batch R/C's Basic Training w.e.f. 15.02.1999.

Moreover, as per Part-III of the Assam Police Manual relating to Reserve Ordinance, Clothing, Guards and Escorts, the initial appointment of an Armed Branch Constable is temporary and/ or on probation and Armed Branch Constable is required to undergo training and it is only after the final examination at the training school or college, all successful recruits including constables are required to take oath in the prescribed form before being posted or returning to their Districts in terms of Rule 18 thereof. Therefore, in the present case in hand as the petitioner was discharged from training, the petitioner had not successfully undergone his training programme and he had not taken the "oath of allegiance" as required under Rule 18 of the Assam Police Manual Part-III as indicated above and, as such, this court is constrained to hold that the petitioner had not become a member of the Armed Branch Constable of the Assam Police. Records also reveal that the Reserve Officer, Armed Police Training Centre, Dergaon had issued a "Command Certificate" to be carried by the police deputed on duty, wherein R/C. 533 Karuna Mohan Das was ordered to proceed to 3rd AP Battalion with a direction to report before the C.O. 3rd AP Battalion that he was discharged on 03.06.1999 vide the said office's W.T. No. APTC/R/79th Batch/99/2864-66 dated 03.06.1999 and accordingly, it is seen that the petitioner had reported his arrival at 3rd Battalion H.Q. on 04.06.1999 at 10.20 hours. Thus, when the records reveal that the petitioner is found to be carrying the order of his discharge from training and having submitted the said order to the respondent No.3 on 04.06.1999, this Court is not convinced that the petitioner was not aware of the order to discharge him from training or that he was not aware about the order dated 05.06.1999, by which he was removed from service, notwithstanding that the said order appears to be duly received by the petitioner. Accordingly, it appears that the petitioner was duly heard before he was discharged from training, as such, the principles of natural justice is found to have been complied with. As the petitioner was on probation and/or his appointment was temporary in nature, which was subject to successful completion of his training, this Court is of the considered opinion that there was no necessity of any departmental proceeding to formally remove the petitioner from service. Accordingly, the ratio of the cases cited by the learned counsel for the petitioner is found to have no application in the present case in hand as the facts of this case, as indicated above, are on a different footing than the facts of the cases cited by the learned counsel for the petitioner. Hence, this Court does not intend to burden this order with the discussion on the cases cited by the learned counsel for the petitioner.

Accordingly, in view of the discussion above, this writ petition stands dismissed, leaving the parties to bear their own cost. Accordingly, rule issued by order dated 11.08.2014 stands discharged.

The Court-Master shall return the original records back to the learned Govt.

Advocate.