Disciplinary action must consider leave applications on medical grounds to ensure fairness in proceedings.

JUDGMENT

S.G. Chattopadhyay, J. - The writ appeal arises from the judgment and order dated 28.09.2018 passed by the learned Single Judge in WP(C) No.425 of 2014.

2. Factual background of the case is as under:

Appellant who was a rifleman (G.D.) in the 7th Battalion of Tripura State Rifles (TSR) remained absent in duty for 529 days from 04.02.2012 to 17.07.2013 without any intimation to his authority for which a disciplinary proceeding was drawn up against him in terms of Rule 14 of the CCS (CCA) Rules, 1965 read with Rule 40 of the TSR (Discipline, Control, Service Conditions etc.) Rules, 1986 for imposition of major penalty. An inquiry officer was appointed to hold enquiry into the articles of charges framed against the appellant and the inquiry officer after holding inquiry in terms of the procedure prescribed under the CCS (CCA) Rules, 1965 held the appellant guilty of the charges of misconduct punishable under section 12 of the TSR Act , 1983 for unauthorizedly absenting from duty for 529 days and defying the command of his superior officer.

3. The disciplinary authority accepted the said inquiry report and proposed major penalty of dismissal from service prescribed under section 12(1)(j) of the TSR Act , 1983 and the provisional punishment order dated 21.08.2012 (Annexure 11 to the writ petition) was communicated to him inviting his representation against the proposed penalty. Having considered the representation (Annexure 12) submitted by the appellant, the disciplinary authority by order dated 05.08.2013 (Annexure 13 to the writ petition) imposed on the appellant minor penalty of fine of an amount not exceeding his one month's pay and allowances prescribed under section 12(1)(b) of the TSR Act , 1983 and ordered that period of his absence from duty without leave w.e.f. 04.02.2012 to 17.07.2013 be treated as 'dies non'. By the same order, his joining report w.e.f. 18.07.2013 was accepted by the disciplinary authority. Aggrieved appellant challenged the order before the departmental appellate authority and the departmental appellate authority by order dated 01.01.2014 (Annexure 15 to the writ petition) concurred with the findings of the disciplinary authority and rejected the appeal. The appellant then filed the writ petition challenging the penalty order dated 05.08.2013 and order dated 01.01.2014 of the departmental appellate authority and sought for direction to the State respondents to release his pay and allowances by setting aside those orders.

4. Appellant pleaded before the learned Single Judge that when the disciplinary proceedings were drawn up against him, he was posted as a Naik in 7th Battalion of TSR attached to the GBP outpost as a medical assistant. On 29.05.2002, while he was deployed in anti insurgency operation at Gandacherra in Dhalai District, he received injury in both of his ears from extremists' attack for which he was under continuous treatment in GBP hospital at Agartala. The appellant claimed that he was not willfully absenting from duty. The Assistant Commandant of his Battalion held an enquiry into his claim of extremists' attack and injury at Gandacherra which revealed that due to exchange of fire and bomb during an encounter with an extremist group at Gandacherra on 29.05.2002, he suffered serious damage in both of his ears for which he was under treatment in the GBP hospital at Agartala over a long period of time.

5. Appellant pleaded that he also submitted application for commuted leave for his absence in duty on medical ground which was not accepted by his authority. According to the appellant, without affor