Mohar Ch. Barman vs State Of Assam And 3 Ors

The extraordinary jurisdiction of this Court conferred by Article 226 of the Constitution of India is sought to be invoked by filing this petition

whereby the petitioner had put to challenge an order dated 29.04.2014 passed by the Superintendent of Police, Goalpara, by which the petitioner who

was a U.B. Constable was dismissed from service after a departmental proceeding. It is the further case of the petitioner that against the order of

dismissal, he had unsuccessfully preferred a departmental appeal.

The brief facts of the case is as follows:

The petitioner was duly appointed as a U.B. Constable w.e.f. 16.08.1987 and posted in the Goalpara D.E.F. Till the impugned disciplinary

proceeding there was no blemish in his long career. It is the case of the petitioner that while working under the Lakhipur Police Station, on 31.05.2011

he had to go to his native home in connection with his daughter’s marriage proposal with the understanding that he will return the very next day.

However, after reaching his home, the petitioner seriously fell ill and was diagnosed of jaundice and malaria, as a result of which, he could not report

back to his duties. The treatment of the petitioner continued for a long and as per him the situation was telephonically informed to the concerned police

station and the salary till 07.09.2012 was also paid by the authorities. Finally on 19.04.2013, the petitioner had resumed his duties after recovering from

illness. The petitioner was issued a Show Cause Notice i.e. 07.12.2012 followed by another notice dated 28.03.2013 seeking his response for

unauthorised absence. It appears that due to his illness, he could not respond to the Show Cause Notice initially. It further appears that in absence of

the petitioner, a departmental enquiry was held. However during the course of the departmental proceeding, the petitioner had submitted a reply and

accordingly an order dated 07.05.2013 was passed holding the reply to be not satisfactory and for continuation of the departmental proceeding. By the

said order, an Enquiry Officer was also appointed.

It appears that enquiry conducted had culminating in a report whereby the charge against the petitioner was held to be proved. The disciplinary

authority vide communication dated 29.03.2014 had issued a further notice by which the petitioner was granted an opportunity before awarding a

major penalty. It was further stated that the disciplinary authority was satisfied with the enquiry and the findings was accepted. The petitioner had

submitted his response to the second Show Cause Notice on 02.04.2014 and after consideration of the same, the disciplinary authority imposed penalty

of dismissal from service. As stated above, the departmental appeal dated 31.07.2014 was also rejected by the appellate authority vide order dated

28.11.2014. It is the order of penalty of the disciplinary authority and the confirmation order of the appellate authority which are the subject matters of

challenge in the present writ petition.

I have heard Shri K. Paul, learned counsel for the petitioner. I have also heard Shri N. Goswami, learned State Counsel appearing on behalf of the

State Respondents, who has also produced the records.

Shri Paul, the learned counsel has submitted that the procedural safeguards as envisaged under the statute holding the field have not been afforded

to the petitioner. He was denied of a reasonable opportunity to defend his case for which grave prejudice was caused to him. Learned counsel further

submits that the charge could not have been of unauthorised absence as the very fact of payment of salaries till the period 07.09.2012 would itself

show that the authorities were aware of the situation of the petitioner.

On the other hand Shri N. Goswami, learned State Counsel had submitted that the charge of unauthorised absence is apparent as there was no

material whatsoever on record to substantiate that the petitioner had ever communicated about his ill health to the disciplinary authority at any point of

time. By drawing the attention of this Court to the reply to the second Show Cause Notice, Shri Goswami the State Counsel had submitted that the

petitioner had in fact admitted his guilt.

The rival contentions of the learned counsel have been duly considered. The records produced before this Court have been carefully examined.

Though Shri Paul has urged various grounds in support of his writ petition, on the basic principle of affording a reasonable opportunity to a delinquent,

this writ petition deserves to be allowed. A bare look at the communication dated 29.03.2014 by which the petitioner was given a scope to respond

against awarding of a major penalty would show that the requirement of law of giving a reasonable opportunity to represent against the enquiry report

which is against the delinquent has been grossly violated. Apart from the fact that the disciplinary authority had already gone through the report before

furnishing the same, the said authority had not only recorded his satisfaction with the enquiry but has also put on record that the findings were

accepted by him. The aforesaid facts make the entire exercise of affording a reasonable opportunity a futile and mechanical one inasmuch as the

disciplinary authority had already made up its mind on the findings of the enquiry report. The later part of the communication dated 29.03.2014 would

also substantiate this contention inasmuch as a major penalty was already decided to be imposed on the petitioner against which his explanation was

sought for.

Further, the long period of unblemished service which the petitioner had rendered has been overlooked by the disciplinary authority. Though it is a

fact that the petitioner belongs to a discipline force, every case has to be decided on its own facts and circumstances and in this case it appears that

the relevant factors have not been taken into consideration apart from the gross procedural violation.

The importance of forwarding a copy of the enquiry report to a delinquent before taking a final decision on the same has been elaborately

explained by the Hon’ble Supreme Court in the case of Union of India v. Mohammad Ramzan Khan, reported in (1991) 1 SCC 588. The said

view has been reiterated and confirmed in the case of Managing Director, ECIL Hydrabad v. B. Karunakar, reported in (1993) 4 SCC 72 7wherein

the aspect of suffering prejudice by the delinquent has been introduced.

In the instant case, since a major penalty of dismissal as stipulated in the Assam Services (Discipline and Appeal) Rules, 1964 has been imposed,

the condition precedent as laid down in Rule 9 which is mandatory in nature are also required to be followed which does not appear to have been done

in the instant case.

In view of the above, this Court is of the opinion that since the prescription of law of forwarding a copy of the enquiry report has not been

followed, the impugned orders dated 29.04.2014 issued by the Superintendent of Police as well as the appeal order dated 28.11.2014 by the Deputy

Inspector General of Police, Western region rejecting the appeal are unsustainable in law and accordingly set aside.

It is however made clear that since the interference is on the ground of not furnishing report of the Enquiry Officer, after reinstating the petitioner,

the authorities would have all liberty to initiate the disciplinary proceeding afresh from the stage of furnishing a copy of the enquiry report to the

petitioner and seek his response and only thereafter to take a decision by the disciplinary authority. It is further clarified that since the then

Superintendent of Police had already taken a decision, the role of disciplinary authority has to be performed by any other competent Officer. Since

there is direction for reinstatement of the petitioner as the order of dismissal has been set aside, he will not be entitled to any back wages on the

principle of “no work no payâ€​, however he will be entitled for all other notional benefits.

The writ petition stands accordingly allowed to the extent indicated above.

The records produced by Shri Goswami are returned back.