Allowed

EX-C/N-912 Dulumoni Das v. the State of Assam and 4 Ors.

Gauhati HC9 Dec 2021WP(C)/6862/2018

Case brief

AI extract

What is this about?

In a service dispute involving the dismissal and subsequent removal of a police constable, the Gauhati High Court directed the disciplinary authority to conduct a fresh enquiry. The court mandated the presence of a specific witness, Sri Tanmay Nath, to verify the petitioner's claim that he had orally reported threats preventing his transfer to a superior authority.

What did the court decide?

Direction to disciplinary authority to conduct a fresh enquiry with Sri Tanmay Nath present and to pass a reasoned order superseding earlier orders.

EX-C/N-912 Dulumoni Das Vs the State of… — Pension and Retirement Benefits | Gauhati HC (2021)

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GAHC010218942018

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

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Case No. : WP(C)/6862/2018

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EX-C/N-912 DULUMONI DAS

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(12TH A.P. BATTALION, JAMUGURIHAT), S/O MADHAIRAM DAS, VILLAGEDIPOTA RADHIKAPUR, P.O. DIPOTA, P.S. TEZPUR, DISTRICT- SONITPUR, ASSAM, PIN- 784001.

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VERSUS

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THE STATE OF ASSAM AND 4 ORS. REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. HOME DEPARTMENT, DISPUR, GUWAHATI- 781006.

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2:THE DIRECTOR GENERAL OF POLICE ASSAM ULUBARI GUWAHATI- 781007.

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3:THE DEPUTY INSPECTOR GENERAL OF POLICE (NR) TEZPUR SONITPUR ASSAM PIN- 784001 4:THE DISCIPLINARY AUTHORITY-CUM-COMMANDANT 12TH ASSAM POLICE BATTALION JAMUGURIHAT SONITPUR ASSAM. PIN- 784180. 5:THE INSPECTOR OF POLICE (UB) R.I. 12TH AP BATTALION JAMUGURIHAT

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SONITPUR ASSAM PIN- 784180

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Advocate for the Petitioner : MS. S B CHOUDHURY

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Advocate for the Respondent : GA, ASSAM

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BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

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O R D E R

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09.12.2021

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Heard Ms. SB Choudhury, learned counsel for the petitioner and Mr. JK Goswami, learned Additional Senior Government Advocate for the respondents in the Home Department of the Government of Assam.

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The petitioner, who is a constable in the 12^th Assam Police Battalion, Jamugurihat was dismissed from service by the order dated 05.08.2015 of the Disciplinary Authority cum Commandant of the 12^th Assam Police Battalion pursuant to the disciplinary proceeding No. 09/2015. We further take note that the charge against the petitioner resulting in the order of dismissal was absence from duty.

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The said order was assailed in WP(C) No. 3222/2016, wherein a stand was taken by the petitioner that he was prevented from joining in his transferred place of posting by certain extremist elements, who were operating at that relevant point of time in and around his residence at the time when he had gone on leave.

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By the order dated 08.12.2017 in WP(C) No. 3222/2016, the order of dismissal was interfered by requiring the respondent authorities to give a due

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consideration to the said claim of the petitioner that he could not join his place of transfer because of threat by the extremist elements. Thereafter, the order dated 05.01.2018 was passed by the disciplinary authority cum Commandant 12^th Assam Police Battalion, by which the order of dismissal was reiterated, but by modifying the order to the extent of it being reduced from dismissal from service to removal from service. The order dated 05.01.2018 was assailed in WP(C) No. 187/2018, which was given a final consideration by the order dated 17.01.2018, by which the writ petition was disposed of as being not pressed.

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On a plea being taken that the petition was closed on being not pressed because of a misunderstanding that the learned counsel for the petitioner had, review petition No. 12/2018 was instituted, which was given a final consideration by the order dated 06.04.2018. In paragraph 8 of the order dated 36.04.2018, it was provided that the disciplinary authority shall conduct an enquiry on the assertion of the petitioner that there was some threat from some extremist elements, when he was earlier posted at No. 11 Platoon Camp, Dimakuchi Outpost at Dimakuchi. Accordingly, the disciplinary authority/Commandant was required to given the petitioner an opportunity of hearing and allow him to produce any relevant material that he may desire to produce.

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Consequent thereof, the order dated 18.08.2018 was passed by the Commandant 12^th Assam Police Battalion, by which the earlier order of removal from service was reiterated. In paragraph 2 of the said order, a view was taken that in the enquiry that was made pursuant to the order dated 06.04.2018, the petitioner failed to produce any material as regards the threat given by any surrendered extremist and upon information being obtained from the concerned

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Police Station, there was no record of any FIR or complaint being lodged by the petitioner to that effect. This writ petition is instituted against the order dated 18.08.2018, wherein in paragraph 18, the following had been averred:-

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“During the enquiry held as per direction of this Hon’ble Court vide order dated 6-4-2018 in Review Petition No. 12/2018, the petitioner appeared personally and stated that although he had not lodged any F.I.R at the particular time in regard to the threatening, he had made complaint before his superior authority through Despatch branch of the office. He also mentioned names of persons who had received his Complaint. But in the impugned order dated 18.08.2018, the Respondent No. 4 did not mention a single word regarding that. So, it suffers from suppression of material facts. In fact, the impugned order has been prepared by the Respondent No. 4 according to his whims, which reflects his vindictiveness and unfair attitude towards the petitioner.”

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In reply to paragraph 18 of the writ petition in the affidavit in opposition, the respondents authorities had taken a stand in paragraph 20 of their affidavit that the averments of paragraph 18 of the writ petition are not true and that all the actions are taken as per Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 (in short Rules of 1964). The specific averments of the petitioner that although he had not lodged any FIR at the particular time regarding the threat, but he had made a complaint before the superior authority through the Despatch Branch of the office and that he also mentioned the names of persons who had received the complaint, were not so controverted.

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Ms. SB Choudhury, learned counsel for the petitioner states that the name of the person to whom he had disclosed regarding the threat was Sri Tanmay Nath, an employee in the Despatch Branch in the office of the Commandant, 12^th Assam Police Battalion, Jamugurihat.

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In the circumstance, we direct the disciplinary authority cum Commandant, 12^th Assam Police Battalion to make a further enquiry and in such

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enquiry, we require Sri Tanmay Nath of the Despatch branch to remain present, so that the petitioner can confront the the person to establish his assertion that he had mentioned to Sri Tanmay Nath that he was prevented by some extremist element from reporting in his transferred place of posting.

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After such enquiry, a reasoned order be passed by the disciplinary authority and any order to be passed shall supersede all the earlier orders that was passed by the disciplinary authority.

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The writ petition is allowed to the extent indicated above.

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JUDGE

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Comparing Assistant

EX-C/N-912 Dulumoni Das v. the State of Assam and 4 Ors.

Case brief

What is this about?

What did the court decide?

EX-C/N-912 Dulumoni Das v. the State of Assam and 4 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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