JUDGMENT :

1. Heard Mr. N. K. Kalita, the learned counsel for the petitioner and Mr. C. S. Hazarika, the learned counsel for the respondents.

2. The instant writ petition has been filed challenging the order of discharge from service dated 28.12.2006 issued by the respondent No.4 and the order dated 17.08.2007 issued by the respondent No.3 and with a further direction to reinstate the petitioner in service with effect from the date of his alleged absence from duty along with all back wages for the said period of alleged absence from duty.

3. The facts involved herein is that the petitioner was appointed on 11.04.1989 as a Fireman under the Assam Fire Service Organization vide an order No. 771 issued by the Director of Fire Service Organization, S.F.S.O., Assam. The petitioner thereupon continued to render service. However, when the petitioner was posted at Guwahati Fire Station, he suffered from several illnesses and ultimately he had to leave the station on 26.08.2005 with verbal intimation to the Senior Station Officer, Guwahati Fire Station. However, it is the case of the petitioner that the Senior Station Officer vide his letter dated 30.08.2008 informed the Director, Fire Service Organization that the petitioner was absent from duty since 26.08.2005 without any leave or information to the Competent Authority. The Director of State Fire Service Organization thereupon vide an order dated 10.09.2005 kept the pay of the petitioner for the month of September, 2005 in hold on the ground of the alleged absence from duty. Thereupon the petitioner submitted an application dated 15.10.2005 along with medical certificates in original thereby informing the Director, Fire Service Organization that he has been suffering from several diseases since last few months, and after diagnosis, the doctor had ascertained that the petitioner has been suffering from Chronic active Hepatitis with early cirrhosis of Liver and neurological deficiency. The petitioner further appraised the Director, Fire Service Organization that due to his neurological deficiency, his hands and legs keep vibrating at all time and as such requested that the petitioner be allowed to go for voluntary retirement as he was not physically fit to perform his duty as a Fireman. The petitioner also requested the Director, Fire Service Organization to release his salary for the month of September, 2005. Upon receipt of the said application dated 15.10.2005, the Office of the Director, Fire Service Organization under the seal and signature of the Fire Prevention Officer issued a notice dated 11/11/2005 thereby asking the petitioner to resume his duty within 3 days from the date of receipt of the notice and also warned the petitioner that if the petitioner failed to resume his duty within 3 days, departmental action will be taken against him. It is the case of the petitioner that no such action was taken in terms with the application dated 15.10.2005 whereby the petitioner sought for voluntary retirement.

4. The Office of the Director, Fire Service Organization further issued another notice dated 08.03.2006 directing the petitioner to resume his duty within 3 days from the date of receipt of the notice with a warming that if the petitioner fails to resume his duty within said period, departmental action would be taken against him. The petitioner upon receipt of the said communication submitted application dated 09.03.2006 along with medical certificates thereby praying before the Director, Fire Service Organization for posting him in the Head Quarter on the ground of his physical illness if the petitioner is not otherwise entitled to voluntary retirement.

5. It further reveals from the writ petition that there were various other notices to join his duty and the petitioner repeatedly replied by taking the ground of his medical ailments. Subsequent thereto on 31.07.2006 the petitioner was issued a show cause as to why the penalties prescribed under Section 6 (2) of the Assam Fire S