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IN THE HIGH COURT OF GAUHATI
MANISH CHOUDHURY, J.
Utpal Das and Others - Appellants
Versus
State of Assam and Others - Respondents
Writ Petition (Civil) Nos. 1534 and 1546 of 2021
Decided On : 13-09-2022
Penalties - Disciplinary Proceedings - Assam Services [Discipline and Appeal] Rules, 1964 - Assam Fire Service Act, 1985 - Rule 7 of the 1964 Rules - Section 6[2] of the AFS Act, 1985
Fact of the Case:
The two petitioners were awarded penalties in the form of Leave Without Pay [LWP] for their absence and suspension purportedly under Rule 7 of the Assam Services [Discipline and Appeal] Rules, 1964 and Section 6[2] of the Assam Fire Service Act, 1985. The penalties were imposed based on charges related to a criminal case, subsequent arrest, and suspension of the petitioners.
Finding of the Court:
The Court found that the penalties imposed in the form of Leave Without Pay [LWP] were not specified in Rule 7 of the 1964 Rules. The Court held that the disciplinary authority could not impose a penalty not provided in the rules or the AFS Act, 1985. The Court set aside the orders of penalty and remitted the matters back to the disciplinary authority for reconsideration.
Issues: The issues involved the imposition of penalties in the form of Leave Without Pay [LWP] under Rule 7 of the 1964 Rules and Section 6[2] of the AFS Act, 1985, based on charges related to a criminal case, subsequent arrest, and suspension of the petitioners.
Ratio Decidendi: The Court's decision was based on the absence of the penalty of Leave Without Pay [LWP] in Rule 7 of the 1964 Rules and the lack of authority for the disciplinary authority to impose a penalty not provided in the rules or the AFS Act, 1985.
Final Decision: The Court allowed the writ petitions, set aside the orders of penalty, and remitted the matters back to the disciplinary authority for reconsideration within a specified period.
JUDGMENT :
Manish Choudhury, J.
The two writ petitions - W.P.[C] No. 1534/2021 & W.P.[C] No. 1546 - are preferred by the two petitioners separately against the same nature of penalties imposed upon them through two separate orders, that is, F & ESO No. 729 dated 30.03.2019 and F & ESO No. 515 dated 11.03.2019 respectively passed by the respondent No. 2 i.e. the Special Director General of Police-cum-Director, Fire & Emergency Services, Assam.
2. As the issues involved in the two writ petitions are same and the factual matrices are almost same, the two writ petitions are taken up together, at the instance of and agreed to by the learned counsel for the parties at the admission stage.
3. By F & ESO No. 729 dated 30.03.2019, the petitioner in the writ petition, W.P.[C] No. 1534/2021 has been awarded penalty in the form of 631 days Leave Without Pay [LWP] for the period of his absence and suspension w.e.f. 08.07.2017 to 30.03.2019 purportedly under Rule 7 of the Assam Services [Discipline and Appeal] Rules, 1964 ['the 1964 Rules' and/or 'Rules, 1964] and Section 6[2] of the Assam Fire Service Act, 1985 ['the AFS Act, 1985', for short].
3.1. By F & ESO No. 515 dated 11.03.2019, the petitioner in the writ petition, W.P.[C] No. 1546/2021 has been awarded penalty in the form of 612 days Leave Without Pay [LWP] for the period of his absence and suspension w.e.f. 08.07.2017 to 11.03.2019 purportedly under Rule 7 of the 1964 Rules and Section 6[2] of the AFS Act, 1985.
3.2. Both the orders had observed that the respective periods would be treated as no work no pay and the petitioners would start drawing regular salary with immediate effect.
4. A First Information Report [FIR] came to be lodged before the Officer In-Charge, Garmur Police Station on 07.07.2017 by a Sub-Inspector of Police, attached to Garmur Police Station, with the allegations inter alia that he received a secret information from a reliable source that the two petitioners and others were collecting money from some candidates for the post of constables. On receipt of the information, the matter was enquired into by registration of Garmur Police Station General Diary Entry No. 112 dated 07.07.2017. It was alleged that the accused named therein had made a wide network to facilitate recruitment of constables in lieu of money and there was an urgent need to unearth the entire criminal network in the criminal conspiracy to recruit constables in lieu of money. The said FIR had been registered as Garmur Police Station Case No. 36/2017 for the offences under Sections 120B/384/420/34, Indian Penal Code [IPC] and one Sub-Inspector of Police was entrusted to investigate the case.
4.1. In connection with Garmur Police Station Case No. 36/2017, the petitioner in the writ petition, W.P.[C] No. 1534/2021 [hereinafter referred to as 'the first petitioner', for easy reference] was not arrested in connection as he was granted the benefit of pre-arrest bail under Section 438, CrPC by the Court by an order dated 05.09.2017 in AB No. 1593/2017. However, the petitioner in the writ petition, W.P.[C] No. 1546/2021 [hereinafter referred to as 'the second petitioner', for easy reference] was arrested on 08.07.2017. Subsequently, the second petitioner was granted regular bail by an order dated 07.09.2017.
5. The first petitioner is a Driver whereas the second petitioner is a Fireman under the Director of Fire & Emergency Service, Assam. By an order dated 11.07.2017, the first petitioner was placed under suspension w.e.f. 10.07.2017 on the ground that he had remained absent w.e.f. 10.07.2017 and the second petitioner was placed under suspension w.e.f. 09.07.2017 by an order dated 18.07.2017 on the ground that he was arrested in connection with Garmur Police Station Case No. 36/2017 on 08.07.2017.
6. The investigation of Garmur Police Station Case No. 36/2017 [corresponding G.R. Case No. 115/2017] after completion, resulted into a charge sheet under Section 173[2], CrPC on finding a prima facie case against the
The disciplinary authority cannot impose a penalty not provided in the rules or the AFS Act, 1985.
A major penalty cannot be imposed without following procedural requirements, including providing an opportunity for defense, as per the Assam Services (Discipline and Appeal) Rules.
Habitual absenteeism in a disciplined force justifies dismissal, and previous misconduct can be considered in determining penalties.
Habitual absenteeism in a disciplined force can justify the imposition of a major penalty like dismissal from service, and such penalty may not be considered disproportionate to the allegations.
Point of Law : Principles of natural justice as contemplated under Rule 9 of the Rules’1964 and under Article 311 of Constitution were not followed in as much as penalty was imposed based on report o....
The conviction of an employee in an offence involving moral turpitude permits the Disciplinary Authority to initiate disciplinary proceeding and impose penalties. The release on probation of good con....
Disciplinary authorities have discretion in imposing penalties, and differing penalties for similar misconduct are permissible unless arbitrary or unjust.
Disciplinary proceedings vitiate if an inquiry is conducted without serving proper notice to the delinquent, denying the right to cross-examine witnesses and failing to furnish a copy of the inquiry ....
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