Gauhati High Court
Rakesh Kumar vs The State Of Assam And 4 Ors on 4 February, 2021
Page No.# 1/8
GAHC010107512018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3377/2018
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 DEPTT, DISPUR, GUWAHATI- 6
2:THE DIRECTOR GENERAL OF POLICE
ASSAM
ULUBARI
GHY- 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
4 ASSAM POLICE TASK FORCE BATTALLION
HOWLY
DIST- BARPETA
ASSA
Advocate for the Petitioner : MR. R M CHOUDHURY
Page No.# 2/8
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
Date : 04-02-2021
Heard Mr. R.M. Das, the learned counsel for the petitioner. Also heard Mr. D. Nath, the
learned Government Advocate appearing on behalf of all the respondents.
2. The writ petitioner, who was a Constable in the Assam Police has challenged the
impugned order dated 29.04.2013 issued by the respondent No. 5, by which the petitioner's
service has been terminated on the basis of a Departmental proceeding, initiated due to the
petitioner's unauthorized absence for 1803 days.
3. The petitioner's counsel submits that the petitioner was not given any show cause
notice with respect to the departmental proceeding initiated against him and that he was not
given any opportunity to defend himself in the departmental inquiry. He further submits that
as the petitioner was suffering from different diseases during the period he was absent from
office, which was communicated to the respondent authorities orally, the petitioner's case
should have been considered sympathetically by the respondents. However, the respondents
terminated the petitioner's service, without giving him a reasonable opportunity of being
heard. He also submits that in a similar case, i.e. WA No. 26/2014, which was disposed of
vide Order dated 02.03.2017, the Division Bench of this Court had set aside the penalty of
removal from service due to 36 days of unauthorized absence, as it was held to be shockingly
disproportionate. He submits that penalty imposed upon the petitioner in the present case is
also disproportionate to the offence and accordingly, the termination Order dated 29.04.2013
Page No.# 3/8
should be set aside.
4. Mr. D. Nath, the learned counsel appearing for the petitioner submits that the
petitioner is a habitual unauthorized absentee, who had remained absent from his duty on
many occasions. He also submits that the petitioner was issued show cause notices and the
inquiry report was also duly served upon the petitioner. The petitioner also took part in the
departmental inquiry and cross examined 4 witnesses. He accordingly submits that there is
no procedural irregularity while conducting the departmental proceedings. Further, the
penalty imposed is commensurate with the offence and as such, the termination order issued
by the respondent No. 5 should be upheld.
5. I have heard the learned counsels for the parties.
6. The writ petitioner has annexed only two documents in the writ petition. One is the
termination Order dated 29.04.2013 and the other is the Judgment and Order dated
02.03.2017, passed by the Division Bench in WA No. 26/2014.
7. The official records have been produced in the Court and perused by me. A perusal of
the show cause notice dated 23.06.2009 issued to the petitioner shows that the petitioner
was charged for being unauthorizedly absent from 21.12.2007 and also from 21.04.2008.
Besides the above, the show cause notice shows that two departmental proceedings had
been drawn up earlier against the petitioner due to unauthorized absence and he had been
awarded punishment/penalties on the basis of the 2 departmental proceedings, which are as
follows:-
(1) DP No. 06/90, wherein the petitioner was awarded stoppage of two years
increment without cumulative effect.
Page No.# 4/8
(2) DP No. 18/93, wherein he was removed from service w.e.f. 11.02.1994. However, he
was reinstated in service w.e.f. 06.04.2007, with stoppage of 4 annual service increments
with cumulative effect, in pursuant to the Judgment and Order dated 29.01.2007, passed by
this Court in WP(C) No. 6973/2000.
The unauthorized absence of the petitioner due to which the petitioner was imposed
penalties earlier, as reflected in the show cause notice is as follows:-
"1. 01 days EOL w.e.f 03.10.1992 to 04.10.1992 vide BO No.2077 dtd.21.10.1992
2. 02 do EOL do 23.05.1992pm to 25.05.1992pm do BO. No. 975 dtd.26.05.1992
3. 08 do EOL do 03.11.1992 pm to 11.11.1992 pm do BO.No.2305 dtd. 16.11.2002
4. 12 do EOL do 26.05.2007 pm to 06.06.2007 pm do BO. No. 1414 dtd. 20.06.2007
5. 01 do EOL do 21.06.2007 am to 21.06.2007 pm do BO. No. 1941 dtd. 29.08.2007
6. 04 do EOL do 30.06.2007 pm to 04.07.2007pm do BO. No. 1941 dtd. 29.08.2007
7. 09 do EOL do 21.07.2007pm to 31.07.2007pm do BO. No. 1941 dtd. 29.08.2007
8. 42 do EOL do 01.09.2007am to 13.10.2007pm do BO No. 2508 dtd. 03.12.2007
9. 13 do LWP do 02.05.1987 am to 14.05.1987 pm do BO. No. 1429 dtd. 04.06.1987
10. 01 do LWP do 11.05.1990pm to 12.05.1990pm do BO. No. 1048 dtd. 16.05.1990
11. 36 do LWP do 09.07.1993pm to 13.08.1993 pm do BO. No. 1745 dtd. 17.08.1993
Total=129 days"
8. It is also seen that the petitioner took part in the departmental inquiry and he had also
cross-examined 4 witnesses. The impugned order dated 29.04.2013 shows that the petitioner
was also given the second show cause notice. However, he did not make a reply to the same.
9. It is also seen that the petitioner has also submitted his reply to the show cause notice,
wherein he has stated that he was absent due to various illnesses that he suffered. There is
also a Medical Certificate dated 08.07.2009, issued by the Medical & Health Officer-I,
Pathsala, Sub-Divisional Civil Hospital in the official records, wherein it is stated that the
Page No.# 5/8
petitioner was under his treatment and care for accidental burn w.e.f. 11.12.2008. The
certificate states that the petitioner's burn was about 20% of the body area and when he was
examined on 08.07.2009, he seemed fit for his regular duty. Pertinently, the petitioner did not
take any plea in the departmental proceeding or in this writ petition that he suffered burns or
that he took medical treatment for the same. The contents of the medical certificate dated
08.07.2009 is reproduced below:-
"To whom it may concern
This to certified Mr. Rakesh Kumar 45 years/ Male son of late Sarder Sing,
Pathsala Ward No. 3, P.S.- Patacharkuchi, Dist. Barpeta, (Assam) that he attended our
Hospital OPD vide registration No. -32500/08 date 11.12.2008 due to accidental burn
at home at about 20 percent body area (Face, Anterior part of chest, nose). He was
under my treatment and care for above mention illness w.e.f. 11.12.2008 & did regular
dressing under my inspection. He was advice bed rest for quick healing.
To day I have examined him & seem to be fit for his regular duty."
The Medical Certificate is in relation to the petitioner being absent from duty w.e.f.
11.12.2008 till he became fit for regular duty on 08.07.2009. However, the Medical Certificate
only explains 188 days of unauthorized absence.
10. On considering the medical certificate submitted by the petitioner, which relates to only
188 days and as he has also been unauthorizedly absent from service on numerous occasions
earlier, as can be seen from the official records, this Court is of the view that the petitioner is
a habitual absentee. Further, the fact that two other punishments had already been awarded
to the petitioner implies that the petitioner has not made any attempt to improve his conduct.
11. The penalty imposed upon the petitioner due to the unauthorized period of absence of
the petitioner, which amounts to 1803 days, as reflected in the impugned Order dated
29.04.2013 is reproduced below:-
Page No.# 6/8
"(i) 21.12.2007 pm to 16.04.2008 AM = 116 days
(ii) 21.04.2008 AM to 10.07.2009 PM = 446 days
(iii) 22.08.2009 AM to 16.06.2011 AM = 664 days
(iv) 01-07-2011 AM to 08.04.2012 AM = 282 days
(v) 08.07.2012 AM to 28.04.2013 PM = 295 days
= 1803 days"
12. The departmental proceeding had been initiated in respect of the petitioner's period of
unauthorized absence from 21.12.2007 to 16.04.2008 and from 21.04.2008 to 10.07.2009,
amounting to a total of 562 days, out of which the petitioner has tried to explain only 188
days. During the departmental proceedings, an additional charge was framed against the
petitioner for unauthorized absence from 22.08.2009. The petitioner was given the copy of
the additional charge. However he did not make any reply to the same. Thereafter, while the
petitioner took part in the departmental proceeding, the petitioner was again found to be
unauthorizedly absent w.e.f. 01.07.2011 to 8.04.2012 and 08.07.2012 to 28.04.2013, during
the pendency of the departmental proceedings. The impugned order dated 29.04.2013 by
which the petitioner's service had been terminated thus shows the petitioner's period of
unauthorized absence to be 1803 days.
13. The imposition of penalty on the basis of petitioner's unauthorized absence for the
period w.e.f. 21.12.2007 to 16.4.2008, 21.04.2008 to 10.07.2009 and 22.08.2009 to
16.06.2011, amounting to 1226 days also reflects the unauthorized absence of the petitioner
during the pendency of the departmental proceeding amounting to 577 days, i.e from
01.07.2011 to 08.04.2012 and 08.07.2012 to 28.04.2013, the total of which comes to 1803
Page No.# 7/8
days.
14. The above being said, the petitioner has not filed any statutory appeal before the
appellate authority against the impugned order dated 29.04.2013. The present petition is also
hit by delay and laches as it has been filed only on 23.15.2018, i.e 5 (five) years after the
impugned order dated 29.04.2013 was issued. On this ground alone, the writ petition is liable
to be dismissed.
15. In WA No. 26/2014 (Smt. Kanan Kalita Vs. State of Assam & Other ), which was
disposed of by this Court, vide Judgment and Order dated 02.03.2017, the petitioner's
husband, who was a driver in the Assam Police, had been removed from service due to
unauthorized absence for 36 days. The stand of the petitioner's husband for his unauthorized
absence was that he was suffering from tuberculosis. The petitioner's husband eventually
died from tuberculosis. The Division Bench in WA No. 26/2014 also considered the fact that
there was no incident of any past misbehavior or misdemeanor on the part of the petitioner's
husband, prior to the departmental inquiry, which ended with his removal from service. It was
in that context that the Division Bench held that the punishment imposed was
disproportionate. The punishment imposed was accordingly set aside with liberty being given
to the State respondents to impose a lesser penalty, where the petitioner would be entitled to
receive the retirement benefits of her husband.
16. The facts of this case are completely different from the facts in WA No. 26/2014 and
as such, the Judgment and Order dated 02.03.2017 passed in WA No. 26/2014 is not
applicable to the present case. In the present case, the petitioner has been unauthorizedly
absent for 1803 days. The petitioner's plea of suffering from many ailments, to justify the
Page No.# 8/8
entire period of unauthorized absence is not supported by medical documents. Further, the
petitioner's past misconduct has resulted in two disciplinary proceedings being initiated
against the petitioner, wherein he has been found guilty and imposed penalties. The number
of days of unauthorized absence of the petitioner spanning a period of 21 years, from the
year 1992 till the year 2013, shows that the petitioner is incorrigible in his ways and as such,
deserves no sympathy. The petitioner, being a member of the disciplined force is expected to
follow a higher standard of discipline as compared to civilian Government servants. The
records also show that in the present case, the petitioner had also taken part in the
disciplinary proceeding initiated against him. The records also show that the petitioner did not
apply for any leave or send any representation to the authorities at any time explaining his
unauthorized absence. On considering the above facts, this Court does not find that the
penalty imposed is unconscionable and disproportionate to the offense. Besides the petitioner
not filing an appeal against the impugned order, the writ petition is also hit by laches and
delay.
17. This Court is accordingly not inclined to exercise it's discretion in this case. The writ
petition is accordingly dismissed.
JUDGE
Comparing Assistant
