Proper application of the Assam Service (Discipline and Appeal) Rules, 1964 and Article 311 of the Constitution of India is essential when terminating a government servant's service, and compelling circumstances such as illness must be considered when determining wilful absence from duty.

Having heard Mr. I. Choudhury, learned counsel for the petitioner, Md. Noormohammad, learned Government Advocate appearing for the respondent No.1 and Mr. K. Bhattacharyya, learned counsel appearing for the respondents No. 2,3 and 4, I am of the view that this is a fit case for invoking the provision of FR 18 by the respondent Board.

2. The factual matrix of the case are that the petitioner was appointed as Assistant Marketing Inspector in the year 2000 and joined the service on 17.4.2000 at Baharihat Market Committee. On 16.5.2002, he was transferred from Boharihat Regulated Market Committee to Tinsukia District Regulated Market Committee, which he joined on 28.5.2002. The Secretary, Tinsukia District Regulated Market Committee, Tinsukia issued the order of posting for the petitioner at Chapakhowa Market Centre and directed him to survey the works and enlist the growers of ginger, which he did. According to him, while he was discharging such duties, he developed Neuropsychiatry disorder and had to undergo medical treatment from the month of October, 2002 and as a result thereof, he was not able to attend his office since October, 2002. Due to the nature of his illness, he was also not in a position to communicate with the respondent authorities concerning his illness and about his absence from duty. When he could not explain his absence due to his mental illness, a show-cause notice bearing dated 29.9.2004 was issued upon him for unauthorised absence since June, 2002 and for collecting market cess on banana and for leaving the Head Quarter without any leave/intimation and at the sometime keeping official important documents like ‘K’ Form Book No. 7032 and ‘M’ Form Book in his custody. According to him, he was not even aware of show cause notice nor was he capable of understanding such notice even if he had actually received it in those days. Ultimately, by the order dated 24.5.2007, his service was terminated by the respondent No.4 without giving him reasonable opportunity of hearing. This is how the petitioner filed this writ petition for appropriate relief.

3. The contention of the learned counsel for the petitioner is that the petitioner was prevented by compelling circumstances from attending his duty and, as such, he could not be accused of wilful absence or negligence of devotion to duty. In order to demonstrate that the petitioner was suffering from mental illness till 20.7.2010, he draws my attention to the certificate issued by Mr. Ajit Goswami, M.D., Neuro Psychiatrist, which stated that the petitioner had been under his treatment from October, 2002 onwards and that he was now ready to resume his duty. Under the circumstances, argues the learned counsel, the petitioner could not have been removed from service without following the procedure laid down by FR 18, and the impugned order is, therefore, not sustainable in law.

4. The learned counsel appearing for the respondent Board, however, refutes the contention of the learned counsel for the petitioner and submits that if the petitioner was actually suffering from mental illness and was incapable of communicating his illness with the respondent Board, his family member could have approached the respondent Board and sought for leave of absence on his behalf on medical ground. The learned counsel argues that as the petitioner had been absent from duty for eight years without leave, he is undoubtedly guilty of wilful absence from duty and the impugned order was rightly passed by the respondent No.4, for which the interference of this Court is not called for.

5. In my opinion, no person in his right mind would feign mental illness unless he really suffers from such illness, after all, making such false claim can have grave implication for his future and is also most likely to cast stigma on his children thereby making them pariah in the society for having a mentally sick father. It is another matter that he may have been forced to disclose his me