Fulkumar Sarkar vs State Of Tripura And Ors

Petitioner has challenged an order of dismissal dated 04.05.2016 passed by the Commandant, 2nd Bn. Tripura State Rifles.

Brief facts are as under:

The petitioner was engaged as a rifleman in the Tripura State Rifles on 19.01.2006. The petitioner remained unauthorisedly absent from 04.02.2015 onwards. The department issued several notices and reminders urging the petitioner to resume duties. Despite which the petitioner did not resume his duties. A charge-sheet came to be issued to the petitioner on 09.06.2015 alleging that the petitioner had committed gross misconduct by remaining unauthorisedly absent w.e.f. 04.02.2015. In the imputation of charges, it was pointed out that notices and reminders were issued to the petitioner on 07.02.2015, 19.03.2015 and 16.04.2015 to resume duties despite which the petitioner had failed to do so. The petitioner's response was made under letter dated 27.06.2015 in which he admitted that he was absent from duty unauthorisedly, however, cited the reasons of ill health of his wife and minor child. A departmental inquiry was conducted against the petitioner. Upon completion of which, the Inquiry Officer submitted a report dated 08.09.2015. During the inquiry the Inquiry Officer had examined several witnesses, taken on record relevant documents and allowed the petitioner to cross-examine the witnesses and rebut the evidence of the department. He concluded that the charge of unauthorized absence was proved. The petitioner was thereupon served with a provisional order of punishment under communication dated 25.04.2016 by which the disciplinary authority proposed to impose a punishment of dismissal from duty. Petitioner was given 15 (fifteen) days to respond. The petitioner replied to the said communication under letter dated 03.05.2016 stating that he himself was seriously ill for which he had approached his physician on 16.11.2015 and was under treatment till 04.01.2016. Thereafter, he had taken treatment from different doctors. He produced medical certificates in support thereof.

The disciplinary authority was unmoved. He held that the petitioner had committed serious misconduct. He had remained unauthorized absent for a total period of 337 days in two separate spells. In the punishment order dated 04.05.2016 he noted that the Medical Board, G.B.P. Hospital, Agartala had issued communication to the petitioner to remain present for medical checkup but the petitioner did not remain present before the Board. He eventually thereupon passed the impugned order dismissing the petitioner from service. Against the said order the petitioner also preferred departmental appeal which was dismissed. Hence, this petition.

Appearing for the petitioner, learned counsel Mr. R.G. Chakraborty submitted that the petitioner may have been absent without leave, nevertheless his absence was justified on account of illness of his wife and child and thereafter his own sickness and, therefore, the petitioner cannot be stated to have committed any misconduct. The departmental authorities failed to take into account the reasons for the petitioner's absence from duty. He lastly submitted that the punishment imposed is grossly disproportionate. The service rules prescribe several punishments including certain minor punishments. The disciplinary authority has imposed the severest punishment prescribed under the rules.

On the other hand, learned Addl. Government Advocate Mr. D. Sharma opposed the petition contending that the petitioner had admitted his unauthorized absence from duty. His failure to appear before the Medical Board shows that he did not want his reason of personal ill health to be examined by a government agency. After initially remaining absent without leave, the petitioner voluntarily joined the duty and again remained absent till the final order of dismissal was passed.

The documents on record would suggest that the petitioner remained absent from duty from 04.02.2015 without leave. Despite several reminders he did not resume duty. He did not even reply to the department citing reasons for his absence. It was only when the charge-sheet was issued that he cited the reason of illness of his wife and son. He resumed duty on 20.07.2015, worked till 16.11.2015 and again remained absent without leave till the order of dismissal was passed on 04.05.2016. His ground of personal illness must be tested on the basis of his reluctance to appear before the Medical Board for examination. Despite communication from the Medical Board he refused to appear for physical test. Thus his justification for remaining absent without leave cannot be accepted. The Inquiry Officer gave him full opportunity to defend himself. The findings of the Inquiry Officer were accepted by the disciplinary authority after allowing the petitioner to make a representation. He eventually passed the impugned order which suffers from no illegality. The petitioner was absent from duty for more than 300 days. He was a rifleman in Tripura State Rifles which is a disciplined force and cannot afford willful unauthorized long absenteeism.

In the result, no case is made out. Petition is dismissed.

Pending application(s), if any, also stands disposed of.