IMPORTANT POINT
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.

JUDGMENT :

Heard Mr. P. J. Saikia, learned senior counsel, assisted by Mr. R. S. Mishra, learned counsel, appearing on behalf of the petitioner. Also heard Mr. J.K. Goswami, learned Addl. Senior Government Advocate, appearing on behalf of the State Respondents.

2. The petitioner by way of instituting the present writ petition, has presented a challenge to an order, dated 29.02.2012, passed by the Superintendent of Police, Dhemaji, imposing upon the petitioner the penalty of dismissal from service on conclusion of a departmental proceeding as instituted against him in the matter. The petitioner has also presented a challenge to an order, dated 05.11.2012, passed by the appellate authority rejecting the appeal as preferred by the petitioner in the matter.

3. The petitioner, herein, was initially recruited as an Unarmed Branch Constable in the Assam Police in the year 1991. Thereafter, while he was posted as a Constable(UB) at Dhemaji DEF; the petitioner came to be placed under suspension w.e.f. 15.11.2008. The said order of suspension was followed by initiation of a departmental proceeding by way of issuance of a Show Cause Notice, dated 05.01.2009, wherein, it was alleged that the petitioner although being detailed for escort duty on the 2 dates, had not executed the duties so assigned and had remained unauthorizedly absent. The petitioner, in response to the said Show Cause Notice, dated 05.01.2009, submitted his written statement in the matter on 12.01.2009, and therein, by placing on record the clarifications with regard to the reasons of his absence, had undertaken that he shall abstain from making such mistakes in the future and accordingly, sought pardon in the matter. Thereafter, on not being satisfied with the explanation as brought on record by the petitioner in response to the said Show Cause Notice; an inquiry with regard to the allegations as levelled against him was so ordered by the disciplinary authority and accordingly, the petitioner appeared in the inquiry. On conclusion on the inquiry as drawn up against the petitioner, the Inquiry Officer submitted his report on 14.02.2012 and therein, held the allegations levelled against the petitioner and the charge so framed against him basing thereon, to be proved.

The Inquiry Officer, in his report, has held that the petitioner was a habitual absentee and that he was granted leave without pay on 33 occasions totaling around 451 days for his unauthorized absence from duty. It was also noted that 7 nos. of departmental proceedings were drawn against the petitioner for the misconduct as committed by him in his service tenure out of which 5 departmental proceedings were so disposed of with imposition of major penalties and 2 departmental proceedings were under consideration as on the date of submission of the said Inquiry Report by the Inquiry Officer.

It is seen that although a copy of the inquiry report was furnished to the petitioner, herein, he had not proceeded to refute the conclusions as reached by the Inquiry Officer in the matter and poised thus; the disciplinary authority proceeded to consider the said inquiry report and thereafter, vide a communication, dated 18.02.2012, proceeded to issue a notice to the petitioner by highlighting therein, that the disciplinary authority had come to a provisional conclusion that the petitioner should be awarded a major punishment under Rule 66 of the Assam Police Manual Part-III and accordingly, he was directed to submit his representation in the matter.

It is seen that no further representations were submitted by the petitioner in the matter and accordingly, the disciplinary authority proceeded to consider the materials as brought on record in the inquiry for arriving at a conclusion with regard to the penalty that is to be imposed upon the petitioner, herein. Accordingly, vide an order, dated 29.02.2012, the disciplinary authority after considering the allegations so levelled against the petitioner vide the Show Cause Notice, date