09130363 Rfn. (Gd) Manash Gon vs State Of Tripura And Ors

Heard Mr. C. S. Sinha, learned counsel appearing for the petitioner. None appears for the respondents when the matter is called out.

The grievance of the petitioner is that by the order under No.8826-40 F. DP No.01-2015/MG/RSR-13/ESTT/201 dated 26.08.2015 [Annexure-18 to the reply filed by the respondents], the petitioner has been removed from the service without disqualification for future employment and the period of absence with effect from 28.05.2015 to the date of the said order shall be treated as dies-non. As consequence of that order, the name of the petitioner has been struck off from the roll of 13th Battalion TSR (IR-IX) on 27.08.2015.

The petitioner is further aggrieved by the order under No.F.47(8-43)/DAP/TSR/RSV/13 dated 07.11.2015 [Annexure-20 to the reply filed by the respondents] whereby the appeal filed by the petitioner was dismissed. The petitioner had further expressed his dissatisfaction and raised challenge against the order under No.17208-10/F.8(329)-PHQ/TSR/2015 dated 08.04.2016 [Annexure-22 of the reply filed by the respondents] which has been passed by the Director General of Police (DGP), Tripura, the revisional authority.

Mr. C. S. Sinha, learned counsel appearing for the petitioner has submitted that under the compelling and mitigating circumstances the petitioner was prevented from attending the duty. During the said period of absence he was being treated for serious illness. In support of that contention, he has enclosed the medical records at Annexure-1-6. From a scrutiny of those records, it appears that he had informed the competent authority that he feel seriously ill and got bed ridden. In support of that, he has filed the prescription of the outpatient department (OPD) of the GBP hospital, Agartala where the illness as recorded is loose motion for two months and pain in the abdomen. From the prescription issued by the Tripura Medical College and Tripura B.R. Ambedkar Memorial Hospital dated 05.02.2015 it appears that the petitioner was suffering from Dyspepsia. Further, it appears that the Upper Gastro- Intestinal Endoscopy was carried out and its report is available at Annexure-6.

It is to be further noted that before the final action was taken, the petitioner was asked to deposit the illness certificates to the competent authority by a letter dated 03.10.2014 [Annexure-3 to the reply filed by the respondents] on justifying his absence. From one representation dated 10.01.2015, it further appears that the petitioner had asked for four days leave only for taking rest in view of his illness followed by endoscopy. In that representation, the petitioner had reflected that he was suffering from Jaundice (Hepatitis) but without any medical prescription. From another representation dated 26.02.2015 it transpires that he was admitted in the Jirania Hospital. He had not completely recovered from the illness.

On 21.09.2014 [Annexure-6 to the reply filed by the respondents] the petitioner was reminded that he was overstaying the leave unauthorisedly. From casual leave with effect from 12.09.2014 till the date of the issuance of the said notice the petitioner was not attending his duties. Since no reply was received from the petitioner, the second notice was issued on 18.10.2014 [Annexure-7 to the reply filed by the respondents]. The third notice was issued on 29.10.2014 [Annexure-8 to the reply filed by the respondents] and he was directed to join his duty by those notices.

On 13.11.2014, the petitioner was again reminded that he was absenting from the duties unauthorizedly and he should join the duty positively, else a strict disciplinary action against him may be contemplated. All the notices are properly served and with the reply the service reports are enclosed. Thereafter, a preliminary inquiry was conducted in respect of the overstayl of the petitioner with effect from 12.09.2014 continuously till the date of the issue of the order dated 06.12.2014. The preliminary inquiry report was submitted on 23.12.2014 stating that the petitioner had not seriousness in respect of assignments. It has been also observed that the personal arms SLR butt No.42 body No.S.8490 with 100 rounds and 05 magazine had been at the Rear kote before he went on leave. In view of the said preliminary inquiry, the memorandum under No.F.DP-No.01-2015/MG/TSR-13/ESTT/2015 [Annexure-

12 to the reply filed by the respondents], the statement of imputation of misconduct and misbehaviour with the list of documents and the list of witnesses of reliance were informed to the petitioner. From Annexure-I of the said memorandum dated 07.01.2015, it transpires that the following charge was framed:

Article-I

That the said No.09130363 Rfn(GD) Manash Gon of A Coy, 13th Bn TSR (IR-IX) was proceeded to avail 02 (two) days Casual Leave wef 10.09.2014 (FN) to 11.09.2014(AN) and supposed to be resumed his duty on 12.09.2014 (FN), but he has not resumed his duty on time and overstaying unauthorisedly wef 12.09.2014 (FN) till date, which is an act of prejudicial to good order and discipline of the Rifles U/S 12 (1) of TSR Act, 1983."

It appears that the petitioner despite receipt of the said memorandum dated 07.01.2015 did not file his written statement of defence. As a result, the inquiry proceeded ex parte. However, no adverse inference was drawn by the disciplinary authority, instead he appointed an inquiry officer by the order dated 31.01.2015. On completion of the inquiry, which as stated, proceeded ex parte, the inquiry report was filed by the inquiry officer namely Jai Kishore Jamatia, Asstt. Comdt., 13th Bn TSR (IR-IX) holding that no illness certificate or any application for any kind of leave was submitted by the petitioner for any leave. The charged official was overstaying the leave unauthorizedly after expiry of the two days casual leave which was duly granted to him. He was supposed to join on expiry of the said leave on 12.09.2014. Finally, the following finding has been returned by the inquiry officer on the basis of documentary & oral evidence adduced in the inquiry.

For reasons stated above, the undersigned is of the opinion that the charges against No.09130363 Rfn (GD) Manash Gon of A-coy, 13th BN TSR (IR-IX) stand proved. Accordingly, the undersigned holds him guilty of misconduct U/S 12(1) of TSR Act, 1983 as charged.

On 25.05.2015 one application was filed to the Commandant, 13th BN TSR (IR-IX) to allow the petitioner join his duty but without production of any illness or fitness certificate. This application is at Annexure-15 to the reply filed by the respondents. It is to be further noted that the inquiry report was submitted on 31.07.2015, meaning before the inquiry report was received the said application for allowing the petitioner join the duty was received by the disciplinary authority. On 07.01.2015, the provisional order under No.7888 F. DP No.01-2015/MG/TSR-13/ESTT/2015 [Annexure-17 to the reply filed by the respondents] was passed proposing his removal from the service but on affording him an opportunity for making representation on the said proposed penalty within fifteen days from the date of receipt.

The respondents have averred by filing the reply that no such representation, despite receipt of the provisional order or the proposed punishment was received, was submitted by the petitioner. As consequence, the final order removing the petitioner from the service and declaring the unauthorized absence as dies-non was passed on 26.08.2015 [Annexure-18 to the reply filed by the respondents]. Then, the petitioner on 19.09.2015 filed an appeal for withdrawal of the punishment on the ground that he was under treatment of several doctors and as such he could not join the duty. The said representation dated 19.09.2015 did not deal with the finding of the inquiry authority or on the merit of the provisional order. It is a simple prayer seeking mercy of the disciplinary authority. However, the said petition was treated as the appeal. The appellate authority, the Deputy Inspector General of Police, AP (ADM & TRG) by the order dated 07.11.2015 [Annexure-20 to the reply filed by the respondents] has affirmed the order passed by the disciplinary authority and dismissed the appeal. Even the penalty as imposed has been concurred by the appellate authority. Thereafter, the similar representation was filed on 20.11.2015 which was treated as the revisional petition and that petition was therefore placed before the revisional authority for consideration.

The revisional authority by the order dated 08.04.2016 [Annexure-22 to the reply filed by the respondents] has considered the grounds as provided therein and held that the final order as challenged in the said revision petition is commensurate with the misconduct committed by the charged official. Hence, it is held that the decision of the disciplinary authority is reasonable and that was not a fit case for directing removal from the service. All these orders are under challenge in this writ petition.

Mr. C. S. Sinha, learned counsel appearing for the petitioner has urged this court that the petitioner was prevented from attending the duties by the serious form of illness. His second limb of argument was that, the penalty is grossly disproportionate and unconscientious to the misconduct. It should not have been the removal from the service.

This court has scrutinized the records thoroughly and does find that it is not a fit case where this court should intervene the impugned orders by exercising it extra-ordinary power of judicial review, inasmuch as reasonable opportunity has been provided to the petitioner for defending himself, but the petitioner has consciously avoided attending the disciplinary proceeding and finally, did not contest any of the findings, and prayed for empathy of the authority. As such, this court is unable to accept the submission of Mr. C. S. Sinha, learned counsel appearing for the petitioner. That apart, the petitioner is a member of the disciplined force and the way he has behaved, this court does not even find that the penalty as imposed on him is disproportionate.

Having observed thus the writ petition stands dismissed.

However, there shall be no order as to costs.