The main legal point established is that in cases of unauthorized absence from duties, the disciplinary authority must provide the delinquent employee with fair opportunities to defend themselves, and the penalty imposed should be proportionate to the seriousness of the misconduct.

1. A penalty of removal from service dated 28.06.2014 which has been upheld by the Appellate Authority by dismissing the appeal of the delinquent petitioner is the subject matter of challenge in this writ petition.

2. The facts projected in the petition are that the petitioner was appointed as a Constable in the Assam Police in the year 1990. On 19.04.2012, an explanation was called for from the petitioner as he was often found to be absent from the duties. The petitioner claims to have responded to the said Notice by stating that he was having health issues. Prior to that, to regularise the leave, the petitioner was issued a communication dated 05.04.2012 to submit leave application. On the aforesaid issue of frequent absence from duties without leave, a Departmental Proceeding was drawn up vide a communication dated 11.04.2012 and accordingly, a Show Cause Notice was issued on 19.04.2012. The principal charge against the petitioner was absence from duties without permission. The said Notice had also named certain witnesses. The petitioner claims to have submitted a written statement of defence wherein the cause shown was ailment. It however transpires that even during the pendency of the said Departmental Proceeding, the petitioner was again found to be unauthorizedly absent for which a Notice dated 24.12.2013 was issued directing him to join in service. The petitioner accordingly had joined the service on 30.12.2013.

3. After completion of the Departmental Enquiry, the petitioner was issued a second Show Cause Notice on 30.03.2014 by the Disciplinary Authority forwarding a copy of the findings of the Enquiry Officer. It however transpires that the petitioner did not submit any response to the second Show Cause Notice. Accordingly, vide the impugned order dated 28.06.2014 issued by the Disciplinary Authority, i.e. the Superintendent of Police, Goalpara, the penalty of removal from service was imposed upon the petitioner.

4. As indicated above, the petitioner had preferred a Departmental Appeal on 12.08.2014. The Appellate Authority however vide order dated 28.11.2014 had rejected the appeal.

5. It is the legality and validity of the aforesaid action of the respondents which has been questioned by the petitioner in the present petition.

6. I have heard Ms. P. Chakraborty, learned counsel for the petitioner whereas the state respondents are represented by Shri D. Bora, learned State Counsel.

7. Ms. Chakraborty, the learned counsel has summarised her contentions in the following manner:

(i) The Departmental Proceeding was not fair as the petitioner was not given adequate opportunity to defend himself.

(ii) The enquiry was held behind the back of the petitioner wherein he could not cross examine the witness.

(iii) The petitioner was not made aware of his rights that he could cross examine the witnesses.

(iv) The petitioner was not given an opportunity to take the assistance of a Defence Representative.

(v) The penalty of removal from service is unduly harsh and a lesser penalty could have been imposed on the petitioner even if the charges are held to be proved.

8. Shri Bora, the learned State Counsel however has refuted the aforesaid submission. It is contended on behalf of the respondents that a fair procedure was maintained throughout the proceedings and more importantly, the petitioner did not even reply to the second Show Cause Notice dated 30.03.2014 with which the report of the Enquiry Officer was enclosed.

9. By drawing the attention of this Court to the said findings of the Enquiry Officer, he submits that opportunity to cross examine the witnesses was given to the petitioner which he had declined. It is also submitted that the petitioner was in a disciplined force and the misconduct in the nature of unauthorised absence would be a major one which would make an incumbent unfit to be continued in the said force.

10. The rival submissions have been duly considered and the materials placed before this Court have been carefully examined