Satya Prasad Das vs State of Assam and Others

A.K. Patnaik, J.—In this application under Article 226 of the Constitution, the petitioner has prayed for quashing the order dated 7.7.1989 passed by the Director of Sports & Youth Welfare, Assam, discharging him from service, and for a direction on the respondents to reinstate him in service will all service benefits.

The relevant facts for disposal of this writ petition briefly are that the petitioner was working as Inspector of Physical Education under the Director of Sports & Youth Welfare, Assam. While he was posted at Dhubri as such Inspector of Physical Education in the years 1987-1988, he remained absent on various dates and did not attend to his duties. The Inspector of Schools, Kokrajhar District Circle, called for an explanation from the petitioner for such unauthorised absence by his letter dated 20.8.1987. Subsequently, the Director of Sports & Youth Welfare also called for such explanation from the petitioner by his letters dated 22.7.1988, 5.9.1988 and 18.11.1988. Although he petitioner''s case is that he submitted his replies/explanations, in the affidavit-in-opposition filed by the respondent No.2 it has been stated that no reply to the show cause notices issued to the petitioner was received by any authority. Thereafter, the petitioner was discharged from service by order dated 7.7.1989 of the Director of Sports & Youth Welfare, Assam. Aggrieved, the petitioner has moved this court in the present writ petition.

Mr. MU Mahmud, learned counsel for the petitioner, submitted that against the impugned order of discharge, the petitioner had submitted a representation before the Government, and after considering the said representation, the Secretary to the Government of Assam, Sports & Youth Welfare Department, in his letter dated 5th May, 1977, to the Director of Sports & Youth Welfare, Assam, has taken a view that the impugned order of discharge with retrospective effect without observing the prescribed procedure laid down in Assam Services (Discipline and Appeal) Rules, 1964, (for short, "the Rules, 1964"), appears to be erroneous. Mr. Mahmud submitted that in the said letter dated 5th May, 1977, the Secretary, Sports & Youth Welfare Department has also directed the Director of Sports & Youth Welfare, Assam to enquire into the charge of unauthorised absence of the petitioner as per the procedure laid down in Rule 9 of the Rules, 1964, immediately after his reinstatement in the original post, but notwithstanding the said direction of the Secretary, Sports & Youth Welfare Department, the Director of Sports & Youth Welfare, Assam, has not reinstated the petitioner in service.

Mr. H. Rahman, learned Additional senior Govt. advocate, Assam, on the other hand, relied on the averments made in paragraphs 4, 5 and 6 of the affidavit-in-opposition field on behalf of the respondents and submitted that since no reply was received from the petitioner by the authorities to the show cause notices issued to the petitioner, and all efforts to get the petitioner back in service failed, there was no option for the authorities but to discharge him from service for his long silent unauthorised absence. Mr. Rahman further stated that notices were not only issued to the petitioner personally but were also published in the newspaper, and yet the petitioner did not respond to the said notices. On these facts, Mr. Rahman submitted that the order of discharge cannot be held to be arbitrary.

The purported ground on which the petitioner was discharged from service was that he remained absent from duties unauthorisedly. Misconduct of unauthorised absence has not been specifically mentioned in the Assam Civil Services (Conduct) Rules, 1965, (for short, "the 1965 Rules"). Rule 3 of the 1965 Rules however, inter alia, states that every Government servant shall at all times maintain devotion to duty and do nothing which is unbecoming of a Government Servant. Mr. Rahman submitted that a person who remains absent from duty violates the provisions in Rule 3 of the 1965 Rules inasmuch as he does not maintain devotion to duty and does something which is unbecoming of a Government servant. While Mr. Rahman, learned State Counsel, is right in his submission that a Government servant who remains unauthorisedly absent from duty is guilty of having violated the provisions of Rule 3 of the 1965 Rules and is, therefore, guilty of misconduct, where a Government servant remains absent from duty for some valid Justification, he cannot be held to be guilty of violating the said provisions in Rule 3 of the 1965 Rules. Whether justification offered by a Government servant for remaining absent from duty is valid justification or not, however, is a matter to be decided in each rase by the Disciplinary Authority. The case of the petitioner as stated in paragraph-8 of the writ petition is that he was suffering from mental diseases and chest trouble and was not in a position to function properly for which he applied for casual leave, and his mental condition became worse and chest trouble became critical, and he was advised rest by Dr. SC Ghose, Sub-Divisional Medical & Health Officer, Rural Hospital at Abhoyapuri, and it was for these reasons that he was not able to attend to his duties. As to whether or not the aforesaid explanation furnished by the petitioner for remaining absent in para-8 of the writ petition was true and valid explanation for remaining absent from duty was however a matter to be considered and decided in the disciplinary proceedings by the Enquiry Officer and the Disciplinary Authority. But it appears that no enquiry was held in the case of the petitioner in accordance with Rule 9 of the Rules, 1964 before he was discharged from service.

It is quite possible that in a given case where a Government servant is not at all available and his whereabouts are not known, his presence cannot be secured In any such enquiry under Rule 9 of the Rules, 1964. In fact, in the present case, the respondent No.2 has taken a stand in the affidavit-in-opposition that all efforts to get the petitioner back in service failed and he was discharged form service for his long silent unauthorised absence. Further, as has been submitted by Mr. Rahman on the basis of instructions received by him, all attempts to serve notices for unauthorised absence on the petitioner through the newspaper have also failed to secure the presence of the petitioner. But even in such a case where the presence of a delinquent Government servant in the enquiry under Rule 9 of the Rules, 1964, cannot be secured, the enquiry under Rule 9 cannot be dispense with altogether where it is proposed to impose penalty specified in Rule 7 of the Rules, 1964. This is because Sub-rule (1) of Rule 9 of the Rules, 1964 expressly states that no order imposing on a Government servant any of the penalties specified in Rule 7 shall be passed except after an inquiry held as far as may be, in the manner provided. Penalty of removal from service is one of the penalties prescribed by Rule 7 of the Rules, 1964 and, therefore, the petitioner could not be removed from service by an order of discharge without following the procedure laid down in Rule 9 of the Rules, 1964. Where a delinquent Government servant is not available to be called for participating in such inquiry under Rule 9 of the Rules, 1964, the Disciplinary Authority and the Enquiring Officer have to proceed exparte against the delinquent Government servant and record their respective findings on the basis of whatever evidence, oral or documentary, Is adduced in course of inquiry. But in the present case, no such inquiry at all has been held in the manner prescribed in Rule 9 of the Rules, 1964, and hence the order of discharge passed against the petitioner is liable to be quashed.

For the foregoing reasons, I quash the impugned order of discharge dated 7.7.1989, and direct that the petitioner be reinstated in service within one month from the date of receipt of a certified copy of this Judgment and Order by the Director of Sports & Youth Welfare, Assam, from the petitioner. On such reinstatement, the petitioner be paid his salary and allowance prospectively from the date of such reinstatement. The Disciplinary Authority will hold inquiry in accordance with Rule 9 of the Rules, 1964 against the petitioner and depending upon the final orders that are passed by the Disciplinary Authority in such inquiry, the petitioner will or will not be entitled to his salary and allowances for the period prior to his reinstatement. In case, in the meanwhile, the post earlier held by the petitioner has been filled up, supernumerary post be created to accommodate the petitioner. Considering however the entire facts and circumstances of the case, the parties shall bear their respective costs.