Dismissed
Rakesh Kumar v. M. S. Mani Vannan and 4 Ors.
Gauhati HCCont.Cas(C)/248/2022
Case brief
from the order text
What is this about?
GAHC010078752022 THE GAUHATI HIGH COURT…
What the court decided
AI extract
GAHC010078752022 THE GAUHATI HIGH COURT…
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Page No.# 1/5
GAHC010078752022
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Cont.Cas(C)/248/2022
RAKESH KUMAR
S/O LATE SARDAR SINGH, R/O VILL-PATHSALA (NEAR DAILY BAZAR), P.O.-PATHSALA, P.S.-PATACHARKUCHI, PIN-781325, DIST-BARPETA, ASSAM
VERSUS
M. S. MANI VANNAN AND 4 ORS. COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, HOME DEPARTMENT, DISPUR, GUWAHATI-6
2:BHASKARJYOTI MAHANTA DIRECTOR GENERAL OF POLICE ASSAM ULUBARI GUWAHATI-7
3:MUNNA PRASAD GUPTA ADDITIONAL DIRECTOR GENERAL OF POLICE (TAP) ASSAM ULUBARI GUWAHATI-7
4:ANURAG AGARWAL
INSPECTOR GENERAL OF POLICE (LOGISTIC) ASSAM ULUBARI GUWAHATI-7
5:AMITAV SINHA COMMANDANT 4TH ASSAM POLICE TASK FORCE BATTALION HOWLY BARPETA
Page No.# 2/5
ASSAM PIN-78131
Advocate for the Petitioner : MR. R M CHOUDHURY
Advocate for the Respondent : MS PADMINI BARUA (R-3)
BEFORE
HONOURABLE THE CHIEF JUSTICE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
Date : 13.09.2022
(R.M. Chhaya, CJ.)
Heard Mr. R.M. Choudhury, learned counsel for the petitioner. Also heard Ms. P. Barua, learned counsel for the respondent Nos. 2 and 3; Mr. A. Goyal, learned counsel for the respondent No.4 and Mr. M. Gogoi, learned counsel for the respondent No.5.
Mr. A. Goyal, learned counsel for the respondent No.4 states that the respondent No.4 Sri Anurag Agarwal has never been posted as Inspector General of Police (Logistic), Assam and, therefore, he is not a necessary party. Learned counsel for the petitioner does not dispute the same.
In view of the aforesaid, the respondent No.4 stands deleted from the array of the respondents.
The case of the applicant in this contempt petition is that the directions issued by a Division Bench of this Court vide order dated 19.08.2021 passed in W.A. No. 97/2021 have not been complied with. The order passed by the Division Bench reads as under:
“ The matter has been taken up today through video conferencing. Heard Mr. R. M. Choudhury, learned counsel for the writ petitioner/writ appellant. Also heard Ms. M. Bhattacharyya, learned Government Advocate, appearing for the State respondents.
This writ appeal has been filed by the writ petitioner/appellant against the judgment and order dated 04.02.2021 passed by the learned Single Judge in WP(C)
Page No.# 3/5
3377/2018, whereby the writ petition was dismissed.
The writ petitioner/appellant is a constable in the Assam Police Task Force. By an order dated 29.04.2013, issued by the Commandant, 4th Assam Police Task Force Battalion (i.e. respondent no. 5 before this court), the petitioner’s service was terminated. Aggrieved by the order of his dismissal from service, the petitioner approached this court by filing the writ petition.
The case of the department against the petitioner is that the he remained absent without leave for 1803 days, i.e. between 21.12.2007 to 28.04.2013 and, thereafter, he was given a Show-cause Notice and a departmental proceeding was initiated against him. In the departmental proceeding, the finding was against the petitioner. The finding of the departmental proceeding was that the petitioner is a habitual offender of this nature and even in the past he had remained absent for a considerable period. Considering the petitioner’s track record and the finding arrived at in the departmental proceeding, the appointing authority dismissed the petitioner from service by order dated 29.04.2013, which was challenged before the learned Single Judge.
The petitioner joined service on 10.12.1984. He has been dismissed from service by the order dated 29.04.2013, i.e. approximately after 29 years of his service. It appears that during this period, there were as many as eleven occasions, which are reflected in paragraph 7 of the order of the learned Single Judge, when the petitioner had remained absent without permission/leave, from 21.12.2007 and again from 21.04.2008, the total days of absence being 129 days for which two Departmental Proceedings had been initiated against the petitioner. In the present case the period of absence of the petitioner, as narrated, is for 1803 days.
The case of the petitioner, however, is that he was not in good health and was bed ridden for many days. He has also given medical certificate to this effect. This medical certificate has not been found to be forged or fabricated. This certificate only shows that the petitioner was under treatment for a few days. It is true that no explanation has been given by the petitioner for remaining absent without leave for such a long period. Moreover, we also agree with the finding of the learned Single Judge that although the petitioner, being a member of a disciplined force, was expected to follow a higher standard of discipline, but he had remained on unauthorized leave for as many as 1803 days and therefore, he is not liable to be retained in service. We have absolutely no doubt in our mind that the conduct of the petitioner is such that he is not liable to be retained in service. The only question, therefore, remains to be seen is regarding the quantum of penalty imposed upon the petitioner. The petitioner has been given ultimate penalty of dismissal from service. To our mind a major punishment though lower than dismissal from service would have met the ends of justice.
Ms. M. Bhattacharyya, learned counsel for the department has opposed this suggestion. She has categorically submits that considering the fact that the writ petitioner/appellant is a habitual offender, there is no scope for interfering with the finding of the learned Single Judge on his guilt as well as on the quantum of punishment. Compulsory retirement is a major punishment. Rule 7 of the Assam Services (Discipline and Appeal) Rules, 1964 (hereinafter referred to as “Service Rules), which specifies the nature of various penalties, including compulsory retirement, reads as under:
Page No.# 4/5
“ 7. Nature of penalties . - The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed, on a Government servant, namely:- (i) Censure;
(ii) Withholding of increments or promotion;
(iii) Recovery from pay of the whole or part of any pecuniary loss caused by negligence or breach of orders to the Government of Assam or the Central Government or any other State Government, or any local or other authority to whom services of a Government servant had been lent;
(iv) Reduction to a lower Service, grade or post, or to a lower timescale, or to a lower stage in a time-scale;
(v) Compulsory retirement;
(vi) Removal from service which shall not be a disqualification for future employment;
(vii) Dismissal from service which shall ordinarily be a disqualification for future employment.”
Under the facts and circumstances of the case, where the nature of the offence committed by the petitioner is of remaining absent for a long period without having any sanction from the authority, we are of the opinion that he is not liable to be retained in service. However, we are also of the opinion that instead of dismissal from service, in case the petitioner is given the punishment of compulsory retirement that would serve the ends of justice. Penologically speaking, punishment should always be in proportion to the offence. In this case, the appellant/petitioner is a habitual offender as far as remaining absent from duties is concerned. Yet he has put in 28 years of service. Therefore, in our considered opinion a punishment of “compulsory retirement” and not “dismissal from service”, would actually serve the ends of justice.
Our attention has also been drawn to Rule 25 of the Assam Service (Pension) Rules, 1965 (hereinafter referred to as “Pension Rules”), which deals with the matter of compulsory retirement as a penalty. Rule 25 reads as under:
“ 25. An officer compulsorily retired from service, as a penalty, may be granted by the authority competent to impose such penalty, pension at a rate not less than two-thirds and not more than full invalid pension and special additional pension, if any, admissible to him on the date of his compulsory retirement:
Provided that in the case of an officer mentioned in rule 16 or rule 17 who has completed before such compulsory retirement 25 years of qualifying superior service or more, the pension shall be not less than two-thirds and not more than the full retiring pension and special additional pension, if any, to which he would have been entitled if he retired on that date.”
Under these circumstances, we are of the view that under the Service Rules applicable in this case, compulsory retirement is one of the punishments. A person who has been given the punishment of compulsory retirement has to retire from service but he is liable to get pension as prescribed under Rule 25 of the Pension Rules.
Accordingly, we partly allow the appeal. We convert the punishment from dismissal to compulsory retirement. We also dispose of the appeal with a direction to the authority concerned to calculate pension of the petitioner as per provision of Rule 25 of the Pension Rules.”
Page No.# 5/5
The record indicates that one Sri Munna Prasad Gupta, respondent No.3, who happens to be the Additional Director General of Police (TAP), Assam has filed an affidavit-in-opposition wherein it has been stated that on dismissal being converted into compulsory retirement, the pension proposal in respect of the petitioner has been forwarded to the office of the Accountant General, Maidamgaon, Beltola, Assam along with documents such as (a) Last Pay Certificate, (b) Form No. 19, (c) Declaration/Option Agreement, (d) Statement showing the family details of the incumbent, (e) Specimen Signature, (f) Descriptive Roll, (g) Departmental Datasheet, (h) Photographs, and (i) Service Sheet on 05.05.2022.
The respondent No.5 has also filed an affidavit and has reiterated what has been stated by the respondent No.3. It is also indicated by the respondent No.5 that though no time limit was fixed or processing the pension papers, it has been done and no delay is caused. Thus, considering the task undertaken by the respondent Nos. 3 and 5, it clearly appears that there is substantial compliance of the directions issued by this Court. Though no time limit has been prescribed by this Court to complete the process, the fact remains that more than one year has passed since the date of issuing the directions by this Court and even if no time is prescribed, it has to be done within a reasonable time. The respondent authority shall therefore pursue the matter with the Accountant General and see that the directions issued by this Court are adhered to as early as possible, but not later than 31.12.2022.
With the aforesaid observations, this contempt petition stands disposed of.
JUDGE CHIEF JUSTICE
Comparing Assistant
Rakesh Kumar
M. S. Mani Vannan
Manager, Home Department, Assam
Bhaskarjoti Mahanta
Munna Prasad Gupta
Amitav Sinha
Soumitra Saikia
As recorded by the court registry
Proceedings for wilful disobedience of a court order under the Contempt of Courts Act 1971.
Judgements on the same questions, provisions and authorities, from every court