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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
MICHAEL ZOTHANKHUMA, J.
Birendra Kumar Singh, S/o Lt. Brijbihari Singh – Appellant
Versus
The State Of Assam and 2 Ors. – Respondents
WP(C) 5528 of 2016
Decided on : 22-03-2022
Criminal Procedure code,1973 – Section 41 r/w 379 - Bengal Criminal Law Amendment Act, 1930 – Section 4(1) - Mental illness - Dismissed from service - Absence and negligence of duty - Petitioner's counsel submits that petitioner suffered from mental illness - Accordingly, petitioner's friends and relatives took petitioner to Bihar to put him under treatment of a Neuro Psychiatrist - Petitioner's counsel submits that petitioner was not hospitalized while under-going treatment in Ranchi - Petitioner was thereafter kept under treatment and petitioner returned to Guwahati after being cured - However, on reaching Guwahati, he came to learn that he has been dismissed from service on ground of unauthorized absence and negligence of duty - Petitioner thereafter filed an appeal before the appellate authority respondent annexing all his medical documents issued by Neuro Psychiatrist at Ranchi, which gave details of all his physical ailments during entire period of his absence - However, appellate authority vide Order rejected petitioner's appeal.
Finding of the Court : In case of State of Punjab & Ors. Vs. V Mohinder Singh, reported in 200512 SCC182, Apex Court has held that conduct on the part of a Policemen, who is a member of Disciplined Force, in remaining absent from duty for 5 / 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 (2010) 2 SCC 236, Apex Court has held that discipline is backbone of Police force and highest degree of discipline is imperative for smooth functioning of police force - As unauthorized absence is a misconduct and though notices and enquiry report were sent to petitioner in address given in his service book, there was no response from petitioner - Disciplinary proceeding was concluded as per procedure and petitioner was thereafter dismissed from service - In view of the reasons stated, this Court is of the view that there has been no procedural irregularities in conducting Departmental Proceeding initiated against petitioner and the subsequent order of dismissal - Thus, this Court does not find any ground to interfere with impugned order of dismissal
Result: Writ petition is accordingly dismissed.
JUDGMENT :
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:
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
Point of Law : Discipline is the backbone of the Police force and the highest degree of discipline is imperative for the smooth functioning of the police force.
Absence due to compelling circumstances cannot be considered willful, and dismissal orders should consider all relevant aspects before being issued.
Disciplinary authorities have the right to impose penalties for unauthorized absence, provided due process is followed and the penalties are proportionate to the misconduct.
Disciplinary actions must follow due process, and absence due to illness cannot be deemed willful misconduct without proper inquiry.
The main legal point established in the judgment is the justification of dismissal for grave misconduct, insubordination, and indiscipline due to unauthorized absence from duty for over two years, de....
The party who invokes the extra ordinary jurisdiction under Article 32 and Article 226 is supposed to the truthful, frank and open. He cannot be allowed to play ‘hide and seek’ or to ‘pick and choose....
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