IMPORTANT POINT
Disciplinary authorities have the right to impose penalties for unauthorized absence, provided due process is followed and the penalties are proportionate to the misconduct.

JUDGMENT :

N. Unni Krishnan Nair, J.

Heard Mr. R. Phukan, learned counsel for the petitioner. Also heard Mr. T.C. Chutia, learned Addl. Senior Government Advocate, Assam, appearing on behalf of all the respondents.

2. The petitioner by way of instituting the present proceeding, has presented a challenge to an order, dated 31.03.2009, issued by the Commandant, 3rd Assam Police Battalion, Titabor, Jorhat, Assam, imposing upon the petitioner, the penalty of removal from his service pursuant to a Disciplinary Proceeding so initiated against him. The petitioner has also assailed an order, dated 21.03.2014, passed by the appellate authority rejecting his appeal and thereby, upholding the penalty so imposed upon the petitioner, vide the order, dated 31.03.2009.

3. The petitioner, herein, was appointed as a Constable in the 3rd Assam Police Battalion in the year 1997. While posted in such capacity in the 3rd Assam Police Battalion on 14.04.2008; the petitioner had to leave his Unit and proceeded to his hometown on account of certain mental disorders suffered by him during the said period. The petitioner not having resumed his service; the Commandant, 3rd Assam Police Battalion, Titabor, vide order, dated 12.09.2008, proceeded to place the petitioner under suspension w.e.f. 11.09.2008. The said order was followed by the issuance of a Show Cause Notice, drawing up a Disciplinary Proceeding against the petitioner, vide Show Cause Notice 25.09.2008, on account of his unauthorized absence. The petitioner had not responded to the said Show Cause Notice, dated 25.09.2008, and accordingly, the disciplinary inquiry so instituted in the matter against him, proceeded ex-parte. On conclusion of the said proceeding and submission of the inquiry report thereof; the Commandant, 3rd Assam Police Battalion, Titabor, vide communication, dated 15.12.2008, issued to the petitioner, the second Show Cause Notice. On receipt of a copy of the said Show Cause Notice; the petitioner submitted his response thereto, on 23.03.2009, and therein, had taken a plea that the petitioner during the period of his absence, was suffering from mental illness and accordingly, he was not in a position to resume his duty.

4. The Commandant, 3rd Assam Police Battalion, Titabor, on consideration of the materials coming on record as well as on consideration of the representation submitted by the petitioner, herein, against the second Show Cause Notice; proceeded, vide the order, dated 31.03.2009, to hold that the petitioner, herein, was unfit to continue in his service and accordingly, imposed the penalty of removal from his service with immediate effect.

5. The petitioner, thereafter, submitted an appeal before the appellate authority against the order of imposition of penalty upon him. The appeal is dated 24.06.2009. The appellate authority on consideration of the appeal as well as the verification carried-out with regard to the contentions so made by the appellant in his appeal memorandum with regard to the reasons for his absence; proceeded to reject the said appeal vide order, dated 21.03.2014.

6. Being aggrieved, the petitioner has instituted the present proceeding before this Court.

7. Mr. Phukan, learned counsel for the petitioner, by reiterating the facts as noticed hereinabove; has submitted that the respondent authorities while proceeding to impose upon the petitioner, the penalty of removal from his service; has not considered the plea raised by the petitioner that he was incapacitated from resuming his service and/or informing his Unit about the reasons of his absence only on account of the mental illness suffered by him for which he was receiving treatment. The learned counsel for the petitioner has further submitted that given the reasons existing which had disabled the petitioner from resuming his service, the penalty of removal from his service as imposed upon the petitioner, does not commensurate to the allegations so levelled against him vide the Show Cause Notice, in