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Judgment
Heard Mr. D.P. Chaliha, learned Senior Counsel appearing for the petitioner as well as Mr. N. Goswami, learned Government Advocate
appearing for the State respondents.
The petitioner joined as Constable in the Armed Branch, Assam Police on 07.04.1994 and was posted in the Police Reserve at Haflong. The
petitioner was allotted duties for carrying messages (DAK) from Haflong to various places. On 16.11.1994, the petitioner was to carry 295
numbers of bills of vehicles hired by Dima Hasao (DEF) amounting to Rs. 1,84,55,101.00/- (Rupees One Crore Eighty Four Lakh Fifty Five
Thousand One Hundred and One) only from Police Reserve, Haflong as Special DAK Duty to hand over the same to the Additional DGP(A),
Assam at Guwahati. It was later detected that the said DAK was not handed over to the concerned Officer and accordingly the same was
misplaced. On the basis of the said allegation, the respondent No. 2 issued a show cause notice dated 14.02.2015 to the petitioner to show cause
as to why penalty should not be inflicted upon the petitioner based on the charges from the statement of the allegation which was enclosed in the
show cause notice. The petitioner replied to the show cause on 31.10.2015. In the meantime, the respondent No. 3 by an order dated
31.12.2015 revoked the suspension of the petitioner and the disciplinary proceedings was also dropped. However his entire period of absence of
274 days w.e.f 28.02.2015 to 18.08.2015 and 27.08.2015 to 02.06.2015 was treated as leave without pay. Being aggrieved by the order dated
31.12.2015 treating the period of 274 days as leave without pay, the petitioner is before this Court.
Mr. D.P. Chaliha, learned Senior Counsel appearing for the petitioner submits that the respondent No. 3 had decided to revoke the suspension
of the petitioner which was affected by the order dated 13.02.2015 and also to drop the Departmental proceedings against the petitioner by the
order dated 31.12.2015. However, the period of absence of 274 days has been treated as leave without pay without initiating any enquiry which is
not sustainable in law. He therefore submits that there was no basis for the respondent No. 3 to have considered the period of 274 days as
unauthorized absence and to permit him to treat the same as leave without pay without any proof or any evidence. In that view of the matter
learned Senior Counsel submits that the offending paragraph in the order dated 31.12.2015 treating the absence of 274 days as leave without pay
should be set aside.
Mr. N. Goswami, learned Government Advocate submits that the respondent No. 3 has revoked the suspension of the petitioner as well as
decided to drop the Departmental proceedings by the order dated 31.12.2015. However, the respondent No. 3 was convinced that for the period
of 274 days the petitioner was unauthorizedly absent and therefore the same has been treated as leave without pay. He has drawn the attention of
this Court to the letters both dated 19.08.2015 whereby the petitioner has admitted to be unauthorisedly absent from Headquarter for 171 days
and 101 days. In that view of the matter learned Government Advocate submits that it was not necessary to conduct any enquiry in view of the
admission made by the petitioner and therefore the period of 274 days has been treated as leave without pay.
I have considered the submissions forwarded by the learned counsels appearing for the parties.
The only issue that is to be decided by this Court is whether the period of 274 days could have been treated as unauthorized absence by the
petitioner.
This Court has considered the letters both dated 19.08.2015 wherein the petitioner has admitted to 171 days and 101 days of unauthorized
absence which is annexed as Annexure-2 and 3 in the affidavit-in-opposition. However, the number of days admitted by the petitioner does not
tally with the findings of the respondent No. 3 in the order dated 31.12.2015. A reading of the order dated 31.10.2015 would also indicate that
treating the absence of 274 days as unauthorized absence was made without hearing the petitioner. It was therefore incumbent on the respondents
to have conducted an enquiry prior to computing the absence of 274 days as unauthorized and treating the same as leave without pay.
In that view of the matter, the order dated 31.10.2015 is interfered with in so far as the decision of the respondent No. 3 to treat the absence of
petitioner for the 274 days to be treated as leave without pay and the same is accordingly set aside. However, liberty is given to the respondents to
conduct a fresh enquiry, if so advised. In the event, if such enquiry is conducted, the same should be concluded at the earliest but not later than 6
(six) months.
With the above observation and directions, the writ petition is disposed of. No cost.