Gauhati High Court
Md. Jalal Uddin Barbhuiya vs The State Of Assam And 4 Ors on 26 July, 2022
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GAHC010010002012
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5700/2012
MD. JALAL UDDIN BARBHUIYA
S/O MOHABAT ALI BARBHUIYA, VILL. HATIRHAR, P.O. and P.S. LAKHIPUR,
DIST- CACHAR, ASSAM
VERSUS
THE STATE OF ASSAM AND 4 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM, HOME DEPARTMENT, DISPUR, GHY-6
2:THE DY. INSPECTOR GENERAL OF POLICE SR
ASSAM
SILCHAR
ASSAM
3:THE COMMANDANT
6TH A.P. BATTALION
KATHAL
SILCHAR
CACHAR
ASSAM
4:THE CHAIRMAN
MEDICAL BOARD
SILCHAR MEDICAL COLLEGE AND HOSPITAL
GHUNGOOR
SILCHAR
CACHAR
ASSAM
5:THE ASSTT. COMMANDANT
6TH A.P. BATTALION
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KATHAL
SILCHAR
CACHAR
ASSA
Advocate for the Petitioner : MSR RANGMAI
Advocate for the Respondent : MRSA VERMA
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
JUDGMENT & ORDER (ORAL)
Date : 26-07-2022
Heard Mr. R Dhar, learned counsel for the petitioner. Also heard Mr. J K
Goswami, learned Additional Senior Government Advocate for the respondents
no. 1, 2, 3 and 5 being the authorities under the Home and Police Department
of the Government of Assam and Mr. A Chaliha, learned counsel for the
respondent no. 4 being the authorities under the Health Department of the
Government of Assam.
2. That in the year 2006, the petitioner was a constable in the 6 th Assam
Police Battalion attached to the No. 1 Platoon and while serving so, he
developed certain ailments in the last part of December, 2006. On 19.12.2006,
he was sent for Intensive Refresher Course Training at BN Head Quarter, Kathal,
Silchar. As he became unwell during the course of the training, he reported to
the concerned Unit Hospital at Kathal, Silchar and availed 3 (three) days hospital
leave from 19.12.2006 to 21.12.2006. Thereafter, the petitioner claimed that he
was advised rest for 15 (fifteen) days and accordingly, availed another 15
(fifteen) days commutated leave on medical ground from 22.12.2006 to
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05.01.2007. In the meantime, the petitioner was diagnosed to be suffering from
Bronchitis and Hepatitis on 10.01.2007 and accordingly, prayed for extension of
leave for another 30 (thirty) days accompanied by the medical certificate dated
09.01.2007. Thereupon, the petitioner was diagnosed to be suffering from
Tuberculosis (in short, TB) and accordingly, on 05.02.2007, he sought for an
extension of TB special leave for two months accompanied by the required
medical certificates. On 06.04.2007, the petitioner made another prayer for
extension of TB special leave by another two months. All such representations
for leave were received by the concerned Commandant of the Battalion and
therefore, he was of a bonafide belief that the leave that were requested were
granted.
3. When the petitioner was almost cured, he was required to appear before
the Standing Medical Board of Silchar Medical College & Hospital as per
communication dated 13.04.2007 of the Chairman of the Standing Medical
Board. Accordingly, the Commandant of the Battalion by his letter of 26.04.2007
required the petitioner to appear before the Medical Board on 07.05.2007 which
accordingly, the petitioner complied with, although the resultant opinion of the
medical examination was not revealed to the petitioner.
4. In the aforesaid circumstance, the Departmental Proceeding No. 2 of 2007
under Section 7 of the Police Act, 1861 was initiated against the petitioner as
per the show-cause notice dated 21.06.2017 to which the petitioner had given
his reply dated 11.12.2007. In the departmental proceeding, an order dated
04.11.2008 was passed by the Commandant of the Battalion imposing the
punishment of stoppage of annual service increments for 2 (two) years without
cumulative effect and the period from 06.01.2007 to 08.06.2007 was held to be
unauthorized absence and accordingly, the said period was treated to be leave
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without pay. Consequent thereof, the respondent authorities also deducted
Rs.2000/- (Rupees Two Thousand) per month from the salary of the petitioner
towards the recovery of the salary paid to him for the aforesaid period.
5. Being aggrieved, the petitioner preferred an appeal before the Deputy
Inspector General of Police (SR), Silchar as per his appeal memo dated
03.02.2009. The appeal was given its final consideration by the order dated
23.02.2010 of the Deputy Inspector General of Police (SR), Silchar, Assam.
Being aggrieved, the present writ petition is instituted.
6. In the writ petition, the petitioner relies upon the statement of Dr. Ashim
Das, Sub-Divisional Medical and Health Officer, Department Tuberculosis Centre,
Cachar, Silchar which is annexed as Annexure-8, page-28 to the writ petition. In
the final order in the departmental proceeding dated 04.11.2008, it is taken
note that the disciplinary authority had taken a view that the medical certificates
and documents as well as the statement of the Sub-Divisional Medical and
Health Officer were not believable. According to the disciplinary authority, the
petitioner was subjected to a medical examination before the Standing Medical
Board, Silchar Medical College and Hospital, which examination was done on
21.05.2007. According to the respondent authorities, the Standing Medical
Board was of the opinion that on the day of examination, the petitioner was not
suffering from any disease of TB. As the opinion rendered by the Standing
Medical Board was contrary to what had been stated by the Sub-Divisional
Medical and Health Officer as well as the medical certificates and the documents
relied upon by the petitioner, therefore, the authorities would take cognizance of
only the medical opinion rendered by the Standing Medical Board. By arriving at
such view, withholding of 2 (two) annual increments without cumulative effect
and further to treat the period of absence to be leave without pay and the
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consequential recovery of the salary already paid to the petitioner for the above
period was the punishment that was imposed.
7. The appellate authority in its order dated 23.02.2010 was also of the view
that the Standing Medical Board of Silchar Medical College and Hospital had
given its opinion that the records did not reveal that the petitioner is suffering
from any disease. The relevant sentence from the order of the appellate
authority is extracted as below:
"After the detailed clinical examination of the appellant, the Board has opined that the
reports do not reveal that the appellant is suffering from any disease."
8. A reading of the extracted portion of the order of the appellate authority
gives an indication that the Standing Medical Board was of the opinion that the
petitioner did not suffering from the disease of TB on the day of his examination
on 21.05.2007. No view had been formed by the appellate authority that even
as on January 2007 when the petitioner claimed to have been suffering from
TB and accordingly, had produced the statement of the Sub-Divisional Medical
and Health Officer as well as the medical documents, the petitioner was not
suffering from TB. We further take note that either by inadvertently or by
design, the disciplinary authority in their own order dated 04.11.2008 had
provided that the Standing Medical Board in its sitting on 21.05.2007 had opined
that the reports of the Standing Medical Board of the examination held on
21.05.2007 did not reveal that the petitioner was not suffering from any
disease.
9. The said sentence from the order dated 04.11.2008 is also extracted as
below:
"The board in its sitting on 21.05.2007 opine that with detailed clinical examination
reports does not reveal that, he is not suffering from any disease."
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10. Be that as it may, we also take note that the medical certificates and
documents produced by the petitioner which are available as Annexures-1, 2
and 3 of the writ petition are documents issued by the Government Hospital
being SM Dev Civil Hospital, Silchar. It being so, a mere stand by the disciplinary
authority as well as the appellate authority that such certificates are false and
fabricated documents without any enquiry or basis, can also be not accepted in
the manner it is provided in the orders of the aforesaid two authorities. If the
medical certificates are the documents that are issued from a Government
Hospital, surely, such documents would be on the basis of the records
maintained in such Government Hospital. In such view of the matter, if the
disciplinary authority and the appellate authority had any doubt on the
authenticity of the medical certificates and the documents, the same could have
been verified from the records of the SM Dev Civil Hospital.
11. Considering the aforesaid two inconsistencies and the lacunas in the
orders of the disciplinary authority dated 04.11.2008 as well as the appellate
authority dated 23.02.2010, we remand the matter back to the disciplinary
authority for taking a fresh decision by taking note of the aforesaid
discrepancies that has been indicated. If the authorities feel that the petitioner
is required to be subjected to a further enquiry, it may do so and also allow the
petitioner to produce any further material that he may desire to produce and
thereupon, pass an order in the Departmental Proceeding No. 2 of 2007 which
was initiated against the petitioner.
12. Any order to be passed shall prevail over the orders dated 04.11.2008 of
the disciplinary authority and 23.02.2010 of the appellate authority. The
requirement of passing a fresh order, if necessary by conducting a further
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proceeding, be done within a period of three months from the date of receipt of
certified copy of this order.
Writ petition stands allowed as indicated above.
JUDGE
Comparing Assistant
