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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
SANJAY KUMAR MEDHI, J.
Deep Narzary, S/o. Late Mohini Mohan Narzary – Petitioner
Versus
The State of Assam, Represented By The Commissioner And Secretary To The Govt.
of Assam, Department of Home Affairs and Ors. – Respondents
WP(C) No.2659 of 2022
Decided On : 02-05-2024
Dismissal - Unauthorized Absence - 42nd Amendment of the Constitution of India - [Enquiry Report, Major Penalty, Unauthorized Absence] - The court discussed the requirement of a second show-cause notice on the aspect of penalty, as clarified by the 42nd Amendment of the Constitution of India. It emphasized that the amendment does away with the need for such notice and that the delinquent cannot ask for a show-cause notice on the aspect of imposing a major penalty after completion of the enquiry and after taking the views of the delinquent on the enquiry report. The court also considered the seriousness of the charge of unauthorized absence for a period of 5 years and the petitioner's admission of the allegation.
Fact of the Case:
The petitioner, a Sub-Inspector of Police, was dismissed from service due to unauthorized absence for a period of 5 years. The petitioner challenged the dismissal order, claiming legal infirmity in the procedure and citing reasons for his absence.
Finding of the Court:
The court found that the notice dated 12.08.2021, indicating the intention to impose a major penalty, did not vitiate the proceeding, as the 42nd Amendment of the Constitution of India does away with the requirement for such notice. The court also found that the petitioner's reasons for absence were not sufficient and that the charge of unauthorized absence was established.
Issues: The issues revolved around the legality of the dismissal procedure, the requirement for a second show-cause notice, and the adequacy of the petitioner's reasons for unauthorized absence.
Ratio Decidendi: The court held that the 42nd Amendment of the Constitution of India eliminates the need for a second show-cause notice on the aspect of imposing a major penalty, and that unauthorized absence for a period of 5 years in a disciplined force justifies dismissal.
Final Decision: The writ petition was found to be devoid of merits and was dismissed. No order as to cost.
Heard Shri P. Kataki, learned counsel for the petitioner. Also heard Shri CS Hazarika, learned State Counsel appearing for all the respondents.
2. The subject matter of challenge in this writ petition is an order of dismissal dated 30.11.2021 from service of the petitioner as Sub-Inspector of Police, which has also been affirmed by the Appellate Authority vide an order dated 07.02.2022.
3. Bereft of details, the necessary facts, as projected are as follows.
4. The petitioner was serving as a Sub-Inspector in the Assam Police. He was served with a show-cause notice dated 03.01.2019 on the allegation of unauthorized absence for the period from 05.01.2013 to 08.10.2018. The petitioner had submitted his reply on 03.01.2019 itself whereafter vide communication dated 05.01.2019, the Enquiry Officer and the Presenting Officer were appointed. Thereafter, the enquiry was held and the charge against the petitioner was found to be established. The report of the Enquiry Officer was forwarded to the petitioner by the Disciplinary Authority on 17.03.2021 asking for his views. It is however the case of the petitioner that he did not submit any response and thereafter on 12.08.2021 another notice was served upon him by the Assistant Inspector General of Police (Admn), Assam whereby the response of the petitioner was sought for as to why a major penalty should not be inflicted upon him. The said notice was responded to by the petitioner on 12.08.2021.
5. Thereafter, vide the impugned order dated 30.11.2021, a major penalty of dismissal from service was imposed upon the petitioner and the period of unauthorized absence was treated to be dies non. The petitioner had preferred a departmental appeal against the aforesaid order which however was also rejected by the Appellate Authority vide order dated 07.02.2022.
6. Shri Kataki, learned counsel for the petitioner has submitted that the procedure suffers from legal infirmity as the notice dated 12.08.2021 issued by the Assistant Inspector General of Police already indicates that the said authorities had come to a decision to inflict major penalty and therefore there was no scope for the petitioner to file any effective response. The learned counsel has also taken the ground that there was a change in the Disciplinary Authority as the initiation was done by the concerned Superintendent of Police and subsequently, the show-cause notice dated 12.08.2021 was issued by the Assistant Inspector General of Police. On the first ground, the learned counsel has submitted that there is no requirement to issue a second show-cause notice on the aspect of penalty which has been clarified by the 42nd Amendment of the Constitution of India. In this connection, reliance has been placed upon the case of Md. Nur @ Noor Islam Vs. State of Assam and Ors., decided by this Court in WP(C)/8313/2018 vide order dated 05.01.2022.
7. On the merits of the allegation, the learned counsel for the petitioner has submitted that there were cogent reasons for being absent which included the ill health of the petitioner, his wife and the death of his father after suffering from ailment.
8. The learned counsel accordingly submits that the impugned orders are liable to be set aside.
9. Per contra, Shri Hazarika, learned State Counsel has submitted that the basis on which the writ petition has been structured is fallacious. He submits that the notice dated 12.08.2021 though is on the aspect of the punishment is after furnishing the copy of the enquiry report to the petitioner to seek his views. The learned State Counsel however concedes that after the 42nd Amendment of the Constitution of India, there is actually no requirement of such notice which will however not vitiate the proceeding as a whole.
10. The learned State Counsel has also drawn the attention of this Court to the response of the petitioner dated 12.08.2021 wherein the petitioner had admitted the charges. It is further submitted that the services of the petitioner is in a disciplin
The 42nd Amendment of the Constitution of India eliminates the need for a second show-cause notice on the aspect of imposing a major penalty.
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.
Habitual absenteeism in a disciplined force justifies dismissal, and previous misconduct can be considered in determining penalties.
Disciplinary proceedings must adhere to the principles of natural justice, ensuring adequate opportunity for defense, including cross-examination of witnesses.
Disciplinary proceedings must adhere to procedural fairness and prescribed rules, and penalties not explicitly stated in the governing rules cannot be imposed.
Disciplinary authorities must act fairly and without bias, ensuring that the accused has a reasonable opportunity to contest findings before any punitive action is taken.
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, an....
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