Rakesh Kumar vs The State Of Assam And 4 Ors
2021 Latest Caselaw 1902 Gua

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GAHC010044972021




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                   Case No. : WA/97/2021

            RAKESH KUMAR
            S/O- LATE SARDAR SINGH, VILL.- PATHSALA (NEAR DAILY BAZAR), P.O.
            PATHSALA, P.S. PATACHARKUCHI, DIST.- BARPETA, ASSAM, PIN- 781325.


            VERSUS

            THE STATE OF ASSAM AND 4 ORS.
            REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
            HOME DEPARTMENT, DISPUR, GHY-06.

            2:THE DIRECTOR GENERAL OF POLICE
            ASSAM
             ULUBARI
             GUWAHATI-07.

            3:THE ADDL. DIRECTOR GENERAL OF POLICE (TAP)
            ASSAM
             GUWAHATI-07

            4:THE INSPECTOR GENERAL OF POLICE (LOGISTIC)
            ASSAM
             ULUBARI
             GUWAHATI-07.

            5:THE COMMANDANT 4TH ASSAM POLICE
            TASK FORCE BATTALION
             HOWLY
             DIST.- BARPETA
            ASSAM

Advocate for the Petitioner   : MR. R M CHOUDHURY

Advocate for the Respondent : GA, ASSAM

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BEFORE HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA HON'BLE MR. JUSTICE MANASH RANJAN PATHAK

19.08.2021

The matter has been taken up today through video conferencing. Heard Mr. R. M. Choudhury, learned counsel for the writ petitioner/writ appellant. Also heard Ms. M. Bhattacharyya, learned Government Advocate, appearing for the State respondents. This writ appeal has been filed by the writ petitioner/appellant against the judgment and order dated 04.02.2021 passed by the learned Single Judge in WP(C) 3377/2018, whereby the writ petition was dismissed. The writ petitioner/appellant is a constable in the Assam Police Task

Force. By an order dated 29.04.2013, issued by the Commandant, 4 th Assam Police Task Force Battalion (i.e. respondent no. 5 before this court), the petitioner's service was terminated. Aggrieved by the order of his dismissal from service, the petitioner approached this court by filing the writ petition.

The case of the department against the petitioner is that the he remained absent without leave for 1803 days, i.e. between 21.12.2007 to 28.04.2013 and, thereafter, he was given a Show-cause Notice and a departmental proceeding was initiated against him. In the departmental proceeding, the finding was against the petitioner. The finding of the departmental proceeding was that the petitioner is a habitual offender of this nature and even in the past he had remained absent for a considerable period. Considering the petitioner's track record and the Page No.# 3/6

finding arrived at in the departmental proceeding, the appointing authority dismissed the petitioner from service by order dated 29.04.2013, which was challenged before the learned Single Judge. The petitioner joined service on 10.12.1984. He has been dismissed from service by the order dated 29.04.2013, i.e. approximately after 29 years of his service. It appears that during this period, there were as many as eleven occasions, which are reflected in paragraph 7 of the order of the learned Single Judge, when the petitioner had remained absent without permission/leave, from 21.12.2007 and again from 21.04.2008, the total days of absence being 129 days for which two Departmental Proceedings had been initiated against the petitioner. In the present case the period of absence of the petitioner, as narrated, is for 1803 days. The case of the petitioner, however, is that he was not in good health and was bed ridden for many days. He has also given medical certificate to this effect. This medical certificate has not been found to be forged or fabricated. This certificate only shows that the petitioner was under treatment for a few days. It is true that no explanation has been given by the petitioner for remaining absent without leave for such a long period. Moreover, we also agree with the finding of the learned Single Judge that although the petitioner, being a member of a disciplined force, was expected to follow a higher standard of discipline, but he had remained on unauthorized leave for as many as 1803 days and therefore, he is not liable to be retained in service. We have absolutely no doubt in our mind that the conduct of the petitioner is such that he is not liable to be retained in service. The only question, therefore, remains to be seen is regarding the quantum of penalty imposed upon the petitioner. The Page No.# 4/6

petitioner has been given ultimate penalty of dismissal from service. To our mind a major punishment though lower than dismissal from service would have met the ends of justice.

Ms. M. Bhattacharyya, learned counsel for the department has opposed this suggestion. She has categorically submits that considering the fact that the writ petitioner/appellant is a habitual offender, there is no scope for interfering with the finding of the learned Single Judge on his guilt as well as on the quantum of punishment.

Compulsory retirement is a major punishment. Rule 7 of the Assam Services (Discipline and Appeal) Rules, 1964 (hereinafter referred to as "Service Rules), which specifies the nature of various penalties, including compulsory retirement, reads as under:

"7. Nature of penalties. - The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed, on a Government servant, namely:-

(i) Censure;

(ii) Withholding of increments or promotion;

(iii) Recovery from pay of the whole or part of any pecuniary loss caused by negligence or breach of orders to the Government of Assam or the Central Government or any other State Government, or any local or other authority to whom services of a Government servant had been lent;

(iv) Reduction to a lower Service, grade or post, or to a lower time- scale, or to a lower stage in a time-scale;

(v) Compulsory retirement;

(vi) Removal from service which shall not be a disqualification for future employment;

(vii) Dismissal from service which shall ordinarily be a disqualification for future employment."

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Under the facts and circumstances of the case, where the nature of the offence committed by the petitioner is of remaining absent for a long period without having any sanction from the authority, we are of the opinion that he is not liable to be retained in service. However, we are also of the opinion that instead of dismissal from service, in case the petitioner is given the punishment of compulsory retirement that would serve the ends of justice. Penologically speaking, punishment should always be in proportion to the offence. In this case, the appellant/petitioner is a habitual offender as far as remaining absent from duties is concerned. Yet he has put in 28 years of service. Therefore, in our considered opinion a punishment of "compulsory retirement" and not "dismissal from service", would actually serve the ends of justice.

Our attention has also been drawn to Rule 25 of the Assam Service (Pension) Rules, 1965 (hereinafter referred to as "Pension Rules"), which deals with the matter of compulsory retirement as a penalty. Rule 25 reads as under:

"25. An officer compulsorily retired from service, as a penalty, may be granted by the authority competent to impose such penalty, pension at a rate not less than two-thirds and not more than full invalid pension and special additional pension, if any, admissible to him on the date of his compulsory retirement:

Provided that in the case of an officer mentioned in rule 16 or rule 17 who has completed before such compulsory retirement 25 years of qualifying superior service or more, the pension shall be not less than two-thirds and not more than the full retiring pension and Page No.# 6/6

special additional pension, if any, to which he would have been entitled if he retired on that date."

Under these circumstances, we are of the view that under the Service Rules applicable in this case, compulsory retirement is one of the punishments. A person who has been given the punishment of compulsory retirement has to retire from service but he is liable to get pension as prescribed under Rule 25 of the Pension Rules.

Accordingly, we partly allow the appeal. We convert the punishment from dismissal to compulsory retirement. We also dispose of the appeal with a direction to the authority concerned to calculate pension of the petitioner as per provision of Rule 25 of the Pension Rules.

                              JUDGE                 CHIEF JUSTICE




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