Michael Zothankhuma DECISION
Michael Zothankhuma, J.
1. Heard Mr. P.K. Roy, learned counsel for the petitioner. Also heard Mr. T.C. Chutia, learned counsel for the State respondents.
2. The petitioner's case is that he was dismissed from service vide impugned Order dated 17.04.2013 issued by the Commandant, 4th Assam Police Battalion, Kahilipara, Guwahati for unauthorized absence w.e.f. 27.04.2011 and has prayed for setting aside the said impugned order.
3. The petitioner's counsel submits that the petitioner suffered from mental illness in the month of April, 2011. Accordingly, the petitioner's friends and relatives took the petitioner to Bihar to put him under the treatment of a Neuro Psychiatrist at Ranchi. The petitioner's counsel submits that the petitioner was not hospitalized while under-going treatment in Ranchi. The petitioner was thereafter kept under treatment till 18.11.2013 and the petitioner returned to Guwahati after being cured on 18.11.2013. However, on reaching Guwahati, he came to learn that he has been dismissed from service w.e.f. 12.04.2013 on the ground of unauthorized absence and negligence of duty.
4. The petitioner thereafter filed an appeal before the appellate authority i.e., the respondent No. 2 on 02.01.2014, annexing all his medical documents issued by the Neuro Psychiatrist at Ranchi, which gave details of all his physical ailments during the entire period of his absence. However, the appellate authority vide Order dated 31.08.2014 rejected the petitioner's appeal.
5. The petitioner's counsel submits that the petitioner did not receive the memo of charge and the enquiry report, as the petitioner had changed his address to Vill: Badar PO: Badar, PS: Sikraul, district Buxer, Bihar due to his father having died long back and as his mother was living in their home in Bihar. The petitioner's counsel thus submits that the non-receipt of the memo of charge and the enquiry report amounted to denial of reasonable opportunity to the petitioner to defend his case.
6. The petitioner's counsel further submits that his prayer at the moment is to suspend the impugned Order dated 17.04.2013 and the appellate authority Order dated 31.05.2014, so as to enable the petitioner to file a representation against the enquiry report, as he had not received the enquiry report prior to the impugned order of dismissal being passed. Thereafter a fresh decision may be taken by the Disciplinary Authority.
7. Mr. T.C. Chutia, learned counsel for the State respondents submits that notices were issued to the petitioner three times and the memo of charge was also sent to the address of the petitioner which was recorded in his service sheet i.e., Haibargaon Nagaon, Assam. However, there was no response from the petitioner. He also submits that the enquiry report made in pursuance to the disciplinary proceedings initiated against the petitioner for his unauthorized absence from 27.04.2011 was also sent to the petitioner's address in Assam. However, the same also did not evoke any response from the petitioner. He further submits that the submission made by the petitioner's counsel that the petitioner was mentally ill during his unauthorized absence is false, inasmuch as, the petitioner was arrested by the Police of New Alipurduar Railway Station, for involvement in a case which was registered as New Alipurduar GRP GDE No. 53 dated 03.10.2011 under Section 41 Cr.P.C. read with Section 379 IPC.
8. He also submits that the petitioner has been unauthorizedly absent for 1594 days during his entire service period of 19 years and 11 days and that the petitioner had been awarded the following punishments during his service period as per service record:
"1. Awarded P.D. for 2(two) days 2(two) hours daily for absenting in Battalion Mass P.T. on 26.06.1996.
2. Awarded 7 (seven) days Quarter Guard for his criminal misconduct.
3. 2 (two) days Quarter Guard at Battalion Head Quarters for his un-authorized absent from duty without leave or permission from the competent authority.
4. 2 (two) days Quarter Guard for his un-authorized absent from duty.
5. 5 (five) days Fatique duty at Battalion Head-Quarter for his un-authorized absent from Battalion Head-Quarter w.e.f. 09.12.1999 to 18.12.1999.
6. 3 (three) days P.D. with 2 (two) hours daily for his Shabby Turn-Out and indiscipline manner showing in the Inspection Parade on 22.12.2003.
7. 2 (two) hours P.D. for his un-authorized absent from camp on 09.04.2006.
8. 1 (one) day P.D. for his un-authorized absent from camp pm 26.02.2008.
9. 2 (two) days stand Guard duty for un-authorized absent."
9. Mr. T.C. Chutia, learned State counsel accordingly submits that the writ petition should be dismissed.
10. I have heard the learned counsels for the parties and perused the case records.
11. From the above, it is clear that the petitioner was unauthorizedly absent from 27.04.2011 and that he did not return to his duties till the time the impugned Order dated 17.04.2013 was issued by the respondent No. 3.
12. No communication was sent at any time by the petitioner or his family members to the respondents, regarding the claim made by the petitioner that he was mentally ill from April 2011 and till the time he was cured i.e., till 18.11.2013, which is approximately two years and seven months. Notices were issued to the petitioner in the address given by him in the service book which is in village Lowkhowa Road, Haiborgaon, Nagaon Assam.
13. The second show cause notice i.e., the enquiry report was also sent to the petitioner's address in Assam. However, there was no response from the petitioner.
14. The impugned Order dated 17.04.2013 states that the petitioner is dismissed w.e.f. 12.04.2013 for his prolonged unauthorized absence and negligence of duty and that he would not be entitled to any financial benefits for the whole period during his unauthorized absence i.e., from 27.04.2011 till the date of the impugned order.
15. The appeal filed by the petitioner was rejected by the appellate authority by the Order dated 31.05.2014 on the ground that there was no scope to consider his appeal and that as per the petitioner's service sheet, the home address of the petitioner was given as Haiborgaon, Nagaon Assam. The appellate authority also made the following observations:
"There is no record of the appellant changing his home address to Vill: Badar PO: Badar, PS: Sikraul, district Buxer, Bihar."
16. As the respondents in their affidavit-in-opposition filed by the respondent No. 4 had stated that the petitioner was arrested in connection with New Alipurduar GRP under Section 41 Cr.P.C. read with Section 379 IPC, this Court had directed the parties to obtain instructions with regard to the Police case. In this respect, Mr. T.C. Chutia, learned counsel for the respondents has submitted a Letter dated 03.03.2022 issued by the Inspector In-charge, Alipurduar Jn GRPS, Siliguri, West Bengal, which is addressed to the Superintendent of Police, Govt. Rly Police, Siliguri, which states as follows:
Ref:- WP(C) No. 5528/2016 Birendra Kumar Singh Vs. State of Assam & Ors.
Respected Sir,
With high esteem under the proper Judicious salutation I've the honour to state that in c/w the above noted writ petition it is indeed to put on record that on 03.10.2011 one Birendra Kumar Singh S/O Brij Bihari Singh of Haiborgaon Dist. Nagaon Assam was forwarded before the Ld. ACJM court Alipurduar on 03.10.2011 along with seizure list on maintaining all the Judicial formalities as having reference with New Alipurduar GRPP GDE No. 53/11 dt. 03.10.11 U/S. 41 CrPC R/W 379 IPC and NGR No. 1468/11. As per the information in black and white being collected from the Ld. Court it has been revealed that the accused pleaded guilty and confiscation order in respect of seized articles being passed by the Ld. Court as the EO has submitted a Non FIR PR vide No. 241/11 dt. 26.12.11 U/S. 4(1) BCLA Act but as the case is very old one, all the records have been misfiled or misplaced in the court as stated by the concerned dealing assistant.
This is for kind information and Judicious perusal."
17. The petitioner's counsel on the other hand had submitted a duplicate carbon receipt No. K.11680 dated 29.06.2012, which shows that the petitioner had allegedly paid a fine of Rs. 50/- under Section 4(1) of the Bengal Criminal Law Amendment Act, 1930.
18. A perusal of the Medical Certificate annexed by the petitioner to the writ petition allegedly shows that the petitioner had check-ups with the concerned Doctor on 30.04.2011, 04.08.2011, 07.12.2011, 09.06.2012, 13.12.2012, 16.06.2013, 18.09.2013 & 18.11.2013.
19. Though the petitioner's counsel has taken a stand that the petitioner was not given an opportunity of hearing prior to his dismissal from service, the facts of the case show that the petitioner was issued show cause notices and copy of the enquiry report had been sent in the home address of the petitioner, which was recorded in his service book as Haibargaon, Nagaon, Assam, where his wife and children resided. As such, there was no infirmity with the State respondents' actions in sending the show cause notices and the enquiry report to the petitioner's address in Assam, as they were not made aware/informed at any point of time that the petitioner was staying in Bihar along with his mother. Further, the petitioner's wife or the mother could have easily made a representation to the authorities with regard to the alleged illness of the petitioner informing them that he was mentally unwell. Nothing of that sought was done by the wife of the petitioner in Assam nor the mother of the petitioner in Bihar. Though the petitioner has taken a stand that his friends and relatives took the petitioner to Bihar for treatment, none of the petitioner's friends or relatives had informed the respondents, with regard to the petitioner's alleged illness and the alleged change of address, even though they must have taken him from his place of duty.
20. In the case of Mithilesh Singh Vs. Union of India, MANU/SC/0160/2003 : (2003) 3 SCC 309, the Apex Court has held that absence from duty without proper intimation is a grave offence warranting removal from service, which is statutory prescribed. In the present case, it is an admitted fact that the petitioner was unauthorizedly absent. The only reason given by the petitioner for his unauthorized absence was that he was mentally ill. Assuming that the petitioner was mentally ill, there must have been some intimation made by the petitioner himself or his relatives with regard to the alleged illness. Also, some warning of the petitioner's suffering from mental illness could not have escaped the colleagues of the petitioner. However, there is nothing in the pleadings or in the official records to suggest that the petitioner was having some illness, let alone mental illness. In any event, the fact remains that the petitioner had suddenly left his camp on being taken away by the petitioner's friends and relative. It is in-conceivable that the authorities would not have known about the said fact, if the petitioner had been taken away by his friends and relatives from the camp, due to him being mentally ill.
21. It is also an admitted fact that no application for leave was made by the petitioner, his mother, his wife, or any of his friends or relatives stating that the petitioner was mentally ill. The facts of the present case also show that the petitioner is a habitual absentee. However, the said issue was not a part of the memo of charge furnished against the petitioner.
22. In the case of State of Punjab & Ors. Vs. V. Mohinder Singh, reported in MANU/SC/0201/2005 : 2005 12 SCC 182, the Apex Court has held that the conduct on the part of a Policemen, who is a member of the Disciplined Force, in remaining absent from duty for 5 ½ months, without sanction leave or prior intimation was reprehensible and that he could not be retained in service. In the case of State of Uttar Pradesh & Ors. v. Ram Daras Yadav, reported in MANU/SC/1863/2009 : (2010) 2 SCC 236, the Apex Court has held that discipline is the backbone of the Police force and the highest degree of discipline is imperative for the smooth functioning of the police force.
23. As unauthorized absence is a misconduct and though notices and the enquiry report were sent to the petitioner in the address given in his service book, there was no response from the petitioner. The disciplinary proceeding was concluded as per procedure and the petitioner was thereafter dismissed from service.
24. In view of the reasons stated above, this Court is of the view that there has been no procedural irregularities in conducting the Departmental Proceeding initiated against the petitioner and the subsequent order of dismissal. Thus, this Court does not find any ground to interfere with the impugned order of dismissal.
The writ petition is accordingly dismissed.
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