Page No.# 1/ vs The State Of Assam And 3 Ors
2025 Latest Caselaw 2817 Gua

Gauhati High Court

Page No.# 1/ vs The State Of Assam And 3 Ors on 4 February, 2025

                                                                             Page No.# 1/11

GAHC010028222015




                                                                     2025:GAU-AS:1200

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

                               Case No. : WP(C)/7795/2015

            PUSPA RAM BORAH
            S/O LT., SISU RAM BORAH R/O VILL- DEOHATI PT.II, P.O. and P.S.
            ABHAYAPURI, DIST. BONGAIGAON, STATE- ASSAM.



            VERSUS

            THE STATE OF ASSAM AND 3 ORS
            TO BE REP.B Y THE COMMISSIONER AND SECRETARY , DEPARTMENT OF
            HOME AFFAIRS, DISPUR, GUWAHATI -6.

            2:THE DIRECTOR GENERAL OF POLICE

             ASSAM
             ULUBARI
             GUWAHATI-7.

            3:DEPUTY INSPECTOR GENERAL OF POLICE

             WESTERN RANGE
             BONGAIGOAN
             ASSAM.

            4:THE COMMANDANT

             8TH ASSAM POLICE BATTALION ABHAYAPURI
             BONGAIGOAN
             ASSAM

Advocate for the Petitioner   : MR.N C DAS,

Advocate for the Respondent : GA, ASSAM,

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BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

Date of hearing : 04.02.2025 Date of Judgment: 04.02.2025

Judgment & order(Oral)

Heard Mr. Nabin Chandra Das, learned counsel for the petitioner. Also heard Mr. D. Borah, learned Government Advocate, appearing on behalf of all the respondents.

2. The petitioner, herein, by way of instituting the present proceeding, has presented a challenge to an order, dated 13.03.2015, issued by the

Commandant, 8th Assam Police Battalion, Abhayapuri, imposing upon him the penalty of removal from service on conclusion of a Disciplinary Proceeding instituted against him.

3. The brief facts requisite for adjudication of the issue arising in the present proceeding, is noticed as under:

The petitioner, herein, who was initially appointed as a Constable in the

8th Assam Police Battalion, on 01.04.1985, by riding the ladder of promotion, was promoted to the rank of Havildar. While posted as a

Havildar in the 8th Assam Police Battalion, the petitioner, herein, was taken ill on 10.05.2014, and he was admitted to the Unit Hospital on 11.05.2014. During the examination of the petitioner, the attending Doctor of the Unit Hospital had diagnosed him to be suffering from "Alcohol Withdrawal Page No.# 3/11

Syndrome". Accordingly, the petitioner was advised to consult a Medicine Specialist. The petitioner's physical and mental condition having deteriorated further, he was admitted in the Lower Assam Hospital & Research Centre at Bongaigaon. The petitioner was discharged from the said Hospital on 18.05.2014. On his discharge, the petitioner reported before the Unit Hospital and the Doctors of the said Unit Hospital, on examining him, advised him to attend the Psychiatric Department of Assam Medical College & Hospital, Dibrugarh, for further treatment. The petitioner, accordingly, proceeded to the Assam Medical College & Hospital, Dibrugarh, and was admitted in the said Hospital on 24.05.2014. The petitioner was discharged from the said Hospital on 18.06.2014. However, after few days from his such discharge, the petitioner was again taken ill, for which, he was required to be hospitalized in Bongaigaon Civil Hospital on 30.06.2014. The petitioner was, accordingly, discharged from the said Hospital on 09.07.2014.

Given the ailments suffered by the petitioner, he submitted a

representation, dated 29.08.2014, before the Commandant, 8 th Assam Police Battalion, praying for permission to proceed on voluntary retirement from service.

The petitioner was again afflicted with the ailments so suffered by him and he is contended to have been bedridden on account of the same w.e.f. 18.09.2014.

The petitioner on regaining his health and also as per the fitness certificate issued to him by the Doctor attending upon him, rejoined his Page No.# 4/11

duties on 27.10.2014.

Before the petitioner had rejoined his service, the authorities of the 8 th Assam Police Battalion, had vide a notice, dated 23.09.2014, required the petitioner to resume his service within 3 days from the date of the said notice.

As projected in the writ petition, the petitioner on receipt of the said notice dated 23.09.2014, through his wife, had informed the authorities about the illness suffered by the petitioner. However, it is contended that the respondent authorities instituted a departmental proceeding against the petitioner and issued to him, a Show Cause Notice, dated 10.10.2014, alleging therein that he was unauthorizedly absent from his duties w.e.f. 18.09.2014 and had not resumed his duties inspite of receipt of the notice, dated 23.09.2014.

The petitioner submitted his written statement in the matter on 27.10.2014, and enclosed thereto, all relevant documents pertaining to the medical treatment received by him for the ailments suffered by him. The disciplinary authority, on perusal of the written statement submitted by the petitioner in the matter, finding it to be not satisfactory; proceeded to direct for holding of an inquiry in the matter. The Inquiry Officer, accordingly, held the inquiry in the matter and the petitioner had also participated therein. On conclusion of the inquiry, the Inquiry Officer submitted his Inquiry Report holding the charges levelled against the petitioner of unauthorized absence from his duties, to be established.

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The disciplinary authority, on receipt of the said Inquiry Report, on examination of the same, vide order, dated 13.03.2015, proceeded to agree with the findings recorded by the Inquiry Officer in the said Inquiry Report and accordingly, proceeded to impose upon the petitioner, the penalty of removal from service.

The appeal as preferred in the matter by the petitioner, was also rejected by the appellate authority.

4. Being aggrieved, the petitioner has instituted the present proceeding before this Court.

5. Mr. Das, learned counsel for the petitioner, has reiterated the facts as noticed hereinabove and has submitted that the health condition of the petitioner, was to the knowledge of the respondent authorities, however, inspite of the petitioner submitting an application praying for proceeding on voluntary retirement from service, the same was ignored by the authorities of the Assam Police Battalion and a departmental proceeding in the matter came to be instituted against him. The learned counsel has also submitted that the petitioner had brought on record in the inquiry, all requisite materials to demonstrate that he was required to remain absent from his duties on account of his health condition.

6. Mr. Das, learned counsel, has further submitted that the petitioner, herein, was not afforded an opportunity to cross-examine the prosecution witness. It was further contended that the Inquiry Report of the Inquiry Page No.# 6/11

Officer was not forwarded to the petitioner and accordingly, the petitioner, herein, was denied an opportunity to submit a representation against the same.

7. It is submitted by Mr. Das, learned counsel, that the disciplinary authority without considering the materials coming on record in the inquiry and on a superficial examination of the same, proceeded to agree with the findings recorded by the Inquiry Officer in the Inquiry Report leading to the imposition of the penalty of removal from service upon the petitioner. It is also submitted by the learned counsel that given the fact that the petitioner had not deliberately remained absent from his service and also that he had brought on record materials justifying his absence from service; the disciplinary authority ought to have given due consideration to the same before proceeding to determine the penalty to be so imposed upon the petitioner. Mr. Das, learned counsel for the petitioner, has, accordingly, submitted that the penalty so imposed upon the petitioner by the disciplinary authority, is clearly disproportionate to the allegations so levelled against the petitioner.

8. Per contra, Mr. Borah, learned Government Advocate, appearing for the respondents, at the outset, has submitted that Inquiry Report was duly furnished to the petitioner, herein, and he had received the same on 13.02.2015. However, no representation against the same, was so submitted by the petitioner in the matter. It was further contended that the petitioner was present during the inquiry on all the dates so fixed in the inquiry and it was, in his presence that the prosecution witnesses were so examined. It was also contended by the learned Government Advocate that Page No.# 7/11

the petitioner during his service, had been involved in similar incidents. However, inspite of the penalties so imposed upon the petitioner, earlier, he had not rectified his conduct.

9. Mr. Bora, learned Government Advocate, has further submitted that there being no denial of opportunity to the petitioner to defend his case in the inquiry so held, considering the conduct of the petitioner, and that too, being a member of the disciplined force; the penalty so imposed upon the petitioner by the respondent authorities, would not call for interference from this Court.

10. I have heard the learned counsels appearing for the parties and also perused the materials available on record.

11. It is an admitted position that the petitioner had remained unauthorizedly absent w.e.f. 18.09.2014 and had not resumed his service in pursuance of the notice, dated 23.09.2014, and also, that there is no infirmity in the conduct of the inquiry against the petitioner in the matter. However, what is to be examined is as to whether the penalty so imposed upon the petitioner is proportionate to the allegations so levelled against him in the facts and circumstances as involved in the matter. As noticed hereinabove, the petitioner admittedly had fallen ill w.e.f. 10.05.2014 and it was the Doctors of the Unit Hospital that had advised the petitioner to receive further treatment in the Assam Medical College & Hospital, Dibrugarh. It is found that the petitioner was, thereafter, under treatment till he had rejoined his service on 27.10.2014.

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12. The respondent authorities, in their affidavit, have also contended that in pursuance of a notice, dated 27.05.2014, the wife of the petitioner had submitted an application along with the relevant medical documents on behalf of the petitioner, herein.

13. The affidavit as filed by the respondents in the matter also indicates that the petitioner, herein, was suffering from ailments which had prevented him from joining his duties. What was projected in the affidavit as well as in the Show Cause Notice, dated 10.10.2014, is that the petitioner had remained unauthorizedly absent from his duties without intimation to the respondent authorities.

14. A perusal of the Inquiry Report submitted by the Inquiry Officer, in the matter, would go to reveal that the petitioner, in his deposition, in the inquiry so held in the matter, had categorically stated that he was under

treatment w.e.f. 17.09.2014 to 21.10.2014, at Abhayapuri CHC and after recovery from the ailments suffered by him and the fitness certificate given by the Doctor attending on him, the petitioner had resumed his duties on 27.10.2014. Such contention of the petitioner was not disputed by the Presenting Officer by cross-examining the petitioner, herein. The said contention of the petitioner and the materials brought in support thereof, however, was not considered by the Inquiry Officer while reaching his conclusions with regard to the allegations levelled against the petitioner in the matter.

15. The allegations so levelled against the petitioner being one of unauthorized absence from his duties and if it is established that he had Page No.# 9/11

remained absent from his duties for reasons not beyond his control; the same ought to have been factored in, at least, for the purpose of imposition of the penalty upon the petitioner. The respondent authorities failed to take into consideration the health condition of the petitioner. There is also no material available on record, either, in the Inquiry Report, or, in the affidavit filed by the respondent authorities that the petitioner was sent for medical examination to ascertain the veracity of the contentions so raised by him pertaining to the ailments suffered by him.

16. There being an episode already on record that the petitioner was suffering from ailments right from the year 2014 and the same had continued till he had rejoined his duties on 27.10.2014; the respondent authorities ought to have considered the said aspect of the matter, at least, for the purpose of determining the quantum of the penalty that would be called upon to be imposed upon the petitioner, herein.

17. Accordingly, this Court while holding that the inquiry, in question, was properly conducted; would interfere with the penalty so imposed upon the petitioner vide the order, dated 13.03.2015, on the ground that the same is disproportionate to the allegations levelled against the petitioner and proved in the inquiry.

18. Having reached the above conclusions, this Court would be required to remand back the matter to the disciplinary authority for imposition of a fresh penalty upon the petitioner. However, considering that the matter is pending before this Court since 2015 and also appreciating that the petitioner had already superannuated from his service; this Court refrains Page No.# 10/11

from remanding the matter to the respondent authorities for imposition of any other penalty and would consider the penalty that would now be called upon to be imposed upon the petitioner.

19. Considering the facts and circumstances so involved in the matter including the health condition of the petitioner and it being apparent that the petitioner was prevented from joining his service, for reasons beyond his control; this Court is of the considered view that a penalty of compulsory retirement from service along with pension, would be an adequate penalty that would be called upon to be imposed upon the petitioner.

20. Accordingly, the order, dated 13.03.2015, is hereby set aside and the petitioner, herein, be deemed imposed with the penalty of compulsory retirement from his service w.e.f. 13.03.2015, itself.

21. The penalty as imposed upon the petitioner being interfered with by this Court and the same now being substituted with the penalty of compulsory retirement from his service along with pension; the respondent authorities shall process the pension papers of the petitioner and release to him, his due pension and pensionary benefits w.e.f. 13.03.2015.

22. The exercise as now required to be carried-out in terms of the directions passed by this Court hereinabove, shall be initiated and concluded by the respondent authorities within a period of 3(three) months from the date of receipt of a copy of this order.

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23. With the above directions and observations, this writ petition stands disposed of.

JUDGE

Comparing Assistant