IMPORTANT POINT
Disciplinary proceedings must adhere to procedural fairness and prescribed rules, and penalties not explicitly stated in the governing rules cannot be imposed.

JUDGMENT :

Sanjay Kumar Medhi, J.

1. A Disciplinary Proceeding initiated vide a Show Cause Notice dated 22.02.2012 which has culminated in an order of imposition of a major penalty of discharge is the subject matter of challenge in this petition filed under Article 226 of the Constitution of India.

2. Before going to the issue which has arisen for determination, it would be convenient if the facts of the case are narrated in brief.

3. The petitioner was appointed as a Constable (Armed Branch) in the Assam police on 22.03.1993. It has also been brought to notice that in discharge of his duties, the petitioner had sustained injuries in a bomb blast at Bijni on 05.01.2000 and further in connection with his meritorious service, he was awarded the “Police Antrik Suruksha Seva Padak” in 2011.

4. On 30.11.2011, while the petitioner was posted at the Bongaigaon D.E.F., he was deputed to Guwahati for some official job and on reaching back Bongaigaon in the same evening, while part of the arms and ammunitions were deposited in the Office, the magazine and 40 ammunitions were retained by the petitioner. It is the case of the petitioner that in the same evening he suffered from sudden ailment and therefore could not attend his duties on the next morning and rather he was admitted in a hospital. On 09.12.2011, a notice was issued to the petitioner regarding his absence from 01.12.2011 without depositing the ammunitions. It is the case of the petitioner that immediately on receipt of the said notice, on 14.12.2011, the wife of the petitioner had deposited the ammunitions in the Office and had also reported regarding the illness of the petitioner.

5. Be that as it may, on 22.02.2012, a Show Cause Notice was issued to the petitioner on the allegations of unauthorized absence and also being a habitual absentee. The said notice was accompanied by a statement of allegation with list of witnesses and documents. A date prior to the said notice, the petitioner was also placed under suspension on 21.02.2012. The petitioner had submitted his statement of defence and not being satisfied with the same, an enquiry was conducted. On 24.04.2012, a second Show Cause Notice was issued to the petitioner by forwarding the Enquiry Report which was followed by the order of impugned order of imposition of penalty of discharge issued on 30.05.2012. The Departmental Appeal preferred by the petitioner was also rejected and accordingly, the instant writ petition has been filed.

6. I have heard Shri H. Bezbaruah, learned counsel for the petitioner whereas the State respondents are represented by Shri T.C. Chutia, the learned Addl. Senior Government Advocate, Assam.

7. Shri Bezbaruah, the learned counsel for the petitioner makes the following submissions.

(i) The entire Disciplinary Proceeding is vitiated for lack of fairness whereby reasonable opportunity to the delinquent was not given.

(ii) The procedure prescribed in law for holding such enquiry has not been followed.

(iii) There is no prescribed penalty of ‘Discharge’ in the concerned Rules and therefore, the impugned action is without jurisdiction.

(iv) There is no discussion on the allegations of habitual absentee in the Enquiry Report and the same has been presumed on basis of certain records without giving any opportunity to the petitioner.

(v) The reasons assigned by the petitioner for being absent have been wholly overlooked.

(vi) The past services of the petitioner including the incident where he had sustained injuries in a bomb blast and also the fact of being awarded with the “Police Antrik Suruksha Seva Padak” just before the allegations have been wholly ignored.

8. Elaborating his submissions, the learned counsel for the petitioner has contended that in the written statement of defence, the petitioner had not only disclosed the reasons of his illness, he had also submitted a Medical Certificate. While admitting the fact of being absent, the learned counsel has submitted that such absence was not willful and that aspe