Allowed

EX/C/N/912 Dulumoni Das v. the State of Assam

Gauhati HC6 Apr 2018Review.Pet./12/2018

Case brief

AI extract

What is this about?

Review petition allowed clarifying a prior order that the disciplinary authority failed to conduct a thorough enquiry into threats faced by the petitioner before dismissing him. Court directs fresh enquiry and proportionate punishment if threats are proven.

What did the court decide?

Review petition allowed. Commandant directed to conduct enquiry within three months, provide opportunity of hearing, and pass reasoned order; if threats established, punishment to be reduced.

EX/C/N/912 Dulumoni Das Vs the State of Assam — Pension and Retirement Benefits | Gauhati HC (2018)

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GAHC010014842018

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Review.Pet. 12/2018

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1:EX/C/N/912 DULUMONI DAS VILLAGE DIPOTA RADHIKAPUR, P.O DIPOTA, P.S TEZPUR,

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VERSUS

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1:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT .OF ASSAM, HOME DEPARTMENT ,DISPUR GUWAHTI -6

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2:THE DIRECTOR GENERAL OF POLICE ASSAM ASSAM ULUBARI GUAHATI -7

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3:THE DEPUTY INSPECTOR GENERAL OF POLICE9( NR) TEZPUR SONITPUR ASSAM

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4:THE DISCIPLINARY AUTHORITY -CUM COMMANDANT 12TH ASSAM POLICE BATTALION JAMUGURIHAT SONITPUR ASSAM

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5:THE INSPECTOR OF POLICE ( UB) R.I. 12 TH AP BATTALION JAMUGURIHA

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Advocate for the Petitioner : MRS S B CHOUDHURY

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Advocate for the Respondent : G A ASSAM

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BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

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Date : 06-04-2018

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JUDGMENT & ORDER (ORAL)

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Heard Ms. SB Choudhury, learned counsel for the petitioner. Also heard Mr. SK Medhi, learned Senior counsel appearing for the respondents, the State of Assam.

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At the very outset, it is clear that this review petition has been preferred against the judgment and order dated 18.12.2017 in WP(C)No.3222/2016 on the premises that in compliance thereof an order dated 05.01.2018 was passed by the disciplinary authority being the Commandant 12^th Assam Police Battalion, Jamugurihat, Sonitpur and when the same was assailed in a writ petition being WP(C)No.187/2018 due to certain misunderstanding, a conclusion was arrived that the writ petition is to be withdrawn to be filed afresh in an appropriate manner. But what is essentially availed is that the order dated 05.01.2018 does not meet the requirement of the order dated 08.12.2017.

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In such view of the matter, this Court in the interest of justice deems it appropriate that the manner in which the order dated 05.01.2018 was passed be examined, vis-a-vis, the requirement of the order dated 08.12.2017. The petitioner who was serving at the 12^th Assam Police Battalion was posted and transferred to the No.11 Platoon Camp, Dimakuchi Outpost by the communication dated 18.10.2014. When the said order of posting was not complied, a disciplinary proceeding was initiated against the petitioner on the ground of unauthorized absence which ultimately culminated in the order of dismissal dated 05.08.2015.

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Assailing the order of dismissal dated 05.08.2015, the writ petition 3222/2016 was preferred. While adjudicating the said writ petition, a factual assertion by the petitioner was noticed that while he was earlier posted at No. 11 Platoon Camp, Dimakuchi Outpost certain extremist elements had

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threatened the petitioner and, therefore, he was reluctant to go to the said place. It was further noticed that in the enquiry conducted, the aforesaid aspect was not taken into account. Consequent thereof, without interfering with the order of dismissal, this Court had provided that the disciplinary authority would make a further enquiry on the aforesaid assertion of the petitioner that he was threatened by some extremist elements on his earlier posting at that place.

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Depending upon the result of such enquiry, the disciplinary officer shall pass a fresh order of punishment to be imposed on the petitioner by passing a speaking order thereon. The purport of the said order was that, in the event, the disciplinary authority upon a further enquiry arrives at a conclusion that the petitioner was in fact threatened by some extremists elements and that was the reason why he did not join the place of posting, the same would require a different consideration as regards the punishment imposed.

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Accordingly, it was provided that if the enquiry reveals that there was a threat perception a fresh order of punishment be passed which will definitely take into account the aforesaid facts and circumstances as to why the petitioner had not joined his place of posting and thereafter pass an order of punishment proportionate to the same. It was also the provision of this Court that whenever the required order would be passed, the punishment contained therein would prevail over the earlier orders.

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But when the order of 05.01.2018 is examined, it is noticed that the same does not indicate that any such exercise was undertaken by the disciplinary authority to conduct the enquiry in the manner indicated above. The records indicate that an enquiry committee was constituted comprising of certain reserve Inspectors and some Constables, who had taken the occasion to examine the records of the disciplinary proceeding and arrive at a conclusion that the records do not reveal about any such threat to the petitioner. Further the affidavit of the Commandant also does not indicate that any such enquiry was made as required by the order of 08.12.2017.

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In view of the above, this review petition is allowed by clarifying the earlier order dated 08.12.2017 as indicated above. Further, as clarified hereinabove and also as required by the order of 08.12.2017, the Commandant 12^th Assam Police Battalion being the disciplinary authority shall

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conduct an enquiry on the assertion of the petitioner that there was some threatening from extremist elements, when he was earlier posted at No.11 Platoon Camp, Dimakuchi Outpost at Dimakuchi. In doing so, the Commandant shall provide the petitioner an opportunity of hearing and allow him to produce any relevant material that he may desire to produce. Upon doing the needful, a reasoned order be passed as to whether the petitioner was actually so threatened or not. In the event, the petitioner is found to have been so threatened, the order of punishment shall be reduced proportionately to that effect.

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The aforesaid exercise be done within a period of 3(three) months from the date of receipt of a certified copy of this order.

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In terms of the above, this review petition stands disposed of.

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JUDGE

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Comparing Assistant

EX/C/N/912 Dulumoni Das v. the State of Assam

Case brief

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EX/C/N/912 Dulumoni Das v. the State of Assam

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