THE HON BLE MR. JUSTICE B.K. SHARMA

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1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA AND ARUNACHAL PRADESH) W.P(C) 4494/2004 NLK-204 Anuj Sonowal Son of Late Jadunath Sonowal C/o Sri Ratul Das, Vill-Khajuabeel, P.O. Kapati, P.S. Dalgaon. Dist-Darrang (Assam) - Versus Petitioner 1. State of Assam, represented by the Secretary to the Govt. of Assam, Department of Home, Dispur, Guwahati The Director General of Police, Assam, Guwahati The Inspector General of Police (TAP), Assam, Guwahati The Deputy Inspector General of Police (A) Assam, Guwahati The Commandant, 3 rd A.P.T.F. Bn. Khajuabeel, Darrang (Assam). Respondents. BEFORE THE HON BLE MR. JUSTICE B.K. SHARMA For the Petitioner: For the Respondents: Mr. B.C. Pathak, Advocate Mr. B.J. Ghoah, G.A., Assam. Date of hearing & Judgment:

2 JUDGEMENT AND ORDER (ORAL) Heard Mr. B.C. Pathak, learned counsel for the petitioner as well as Mr. B.J. Ghosh, learned State counsel. 2. By means of this writ petition, the petitioner has put to challenge the order dated , by which pursuant to a departmental proceeding, was dismissed from service. At that time the petitioner was serving as Lance Naik under No. 204 in 3 rd APTF Battalion, Government of Assam. 3. The charge against the petitioner was that of unauthorized absence. Annexure-5 is the charge sheet dated , by which the charge of unauthorized absence for long 72 days with effect from to without leave or permission from the controlling authority was leveled. It was also stated in the charge sheet that on a notice was issued to the petitioner asking to resume duties and the same was sent to his home address, but he did not respond to the same. 4. An additional charge in reference to the aforesaid charge was also leveled against the petitioner, in which it was stated that past records of the petitioner also revealed that he was a frequent deserter from duty and unauthorized absence for 10 times. It was also alleged that he was in the habit of overstaying leave for which 126 days had to be treated as leave without pay; four times quarter guard and two times punishment drill. It was recorded in the said charge that all those disciplinary measures did not have any affect on the petitioner and that he was found to be incorrigible.

3 5. In response to the aforesaid charge sheet, the petitioner submitted his written statement of defence, a copy of which has been annexed to the writ petition as Annexure-6. In the said written statement, the petitioner admitted the charges with the explanation that he had to leave the station getting the news of his wife being seriously ill. It was also stated that he had approached one Sri S.M. Kamini Singh, his controlling authority to allow him to go home, but the same was not acceded to. According to the petitioner, he had no other option than to leave his duty to attend his wife. While attending his wife, he also fell seek and eventually had to remain in authorized absence for the period in question. In the said written statement, the petitioner prayed for mercy for the commission of the misconduct. It was stated that his conduct amounts to insubordination and negligence of duty. 6. It will be pertinent to mention here that in the said written statement, the petitioner categorically stated that he did not intent to inspect the documents and also did not desire to be heard. Be that as it may, in due course enquiry proceeding was initiated and completed against the petitioner. In the said proceeding, the enquiry officer found the petitioner guilty of the charges. The enquiry report reveals that the petitioner declined to cross examine the PWs and also did not adduce any evidence. 7. Upon threadbare discussion of the evidence on record including the materials relating to additional charge, the Enquiry Officer found that the petitioner was in habit of unauthorized absence and such period of absence had to be regularized by granting leave without pay. The petitioner was furnished with the copy of the enquiry report asking for his response. Accordingly the petitioner submitted a representation dated against the said report reiterating his stand in the written statement referred to above. The plea of the petitioner was that he had to leave his duty under compulsion.

4 8. The disciplinary authority in consideration of entire materials on record passed the Annexure-10 impugned order dated imposing the penalty of dismissal from service. Being aggrieved, the petitioner filed the writ petition seeking interference with the same. 9. Mr. Pathak, learned counsel for the petitioner submits that having regard to the facts and circumstances, the period of unauthorized absence which is only 72 days, may not entail extreme penalty of dismissal from service. According to him, the penalty of dismissal from service is grossly disproportionate and accordingly, this court exercising judicial power under Article 226 of the Constitution of India is required to be interfered with the same providing any other lesser penalty. 10. Mr. Pathak, learned counsel for the petitioner, further submits that Sri K.M. Singh, to whom the petitioner had reported with the prayer for granting station leave permission and who declined to grant such permission could not have been cited as witness. In this connection he has placed reliance on the decision of this Court reported in 2004 (2) GLT 259 (Babulal Das Vs. State of Assam & Ors.). To buttress his argument that unauthorized absence for the period in question may not entail extreme punishment of dismissal from service, he has also placed reliance on the decision of the Apex Court reported in (2004) 4 SCC 560 (Shri Bhagwan Lal Arya Vs. Commissioner of Police, Delhi & Ors.). 11. Countering the above argument, Mr. Ghosh, learned State Counsel submits that the petitioner having admitted the charge of unauthorized absence following the charge of habitual absence, the disciplinary authority rightly imposed the penalty of dismissal from service in conformity with the need for enforcing discipline in the armed force, of which the petitioner was a member. Mr. Ghosh, learned State Counsel submits that any amount of leniency would be uncalled for.

5 12. I have considered the rival submissions made by the learned counsel for the parties and the materials available on record. 13. In Babulal Das (supra) it has been held that the charge against the petitioner involved in that case being related to his conduct qua the disciplinary authority personally, the said authority could not have the judge in his own cause. This decision has been pressed into service to submit that Sri K.M. Singh, who was the controlling officer of the petitioner to whom the petitioner had reported with the request to grant station leave permission, ought not to have been examined as PW. Referring to the enquiry report, it has also been submitted that the enquiry officer one Sri Khagen Pegu, could not have examined as witness as reflected in the enquiry report. 14. Suffice is to say that Sri K.M. Singh was the material witness inasmuch as it is the own case of the petitioner that he had reported to said Sri Singh with the prayer for leave. As regards the allegation that Sri Khagen Pegu could not have been witness, he himself being enquiry officer, on perusal of the enquiry report what is revealed is that the enquiry officer generally examined the charged officer in respect of the charge leveled against him and it was in that context the statement was shown to be that of the enquiry officer. 15. In view of the above the decision in Babulal Das (supra) is not at all applicable to the case of the petitioner. 16. So far as the Bhagwan Lal Arya (supra) is concerned, in that case the penalty of removal from service was held to be disproportionate. It was so held in view of the fact that the petitioner involved in the said case was on leave on medical ground with sanction of leave permission. It was held that since the petitioner had gone on medical leave with due sanction behind, it was not a case of authorized absence. The said case is also of no help to the case of the petitioner.

6 17. I may gainfully refer to the decisions in Union of India Vs. Mithilesh Singh, reported in 2000 (3) GLT 62 affirmed in Mithilesh Singh Vs. Union of India reported in (2003) 3 SCC As in the instant, in the said also, Shri Mithilesh Singh, a member of RPF had left his place of posting without any station leave permission and leave. As in the instant case, in the said case also the plea of the delinquent was that he was forced to leave station in view of some ceremony at his home. Such conduct on the part of the member of disciplined force (RPF) was viewed seriously and he was imposed with punishment of removal from service. On challenge, learned Single Judge interfered with the same and directed the railway to impose a lesser penalty other than dismissal or removal from service. 18. The aforesaid decision of the learned Single Judge was reverted by the Division Bench in the aforesaid decision in Union of India Vs. Mithilesh Singh (supra) and on appeal by Sri Singh, the said judgment of the Division Bench has been affirmed by the Apex Court in Mithilesh Singh Vs. Union of India (supra). 19. Admittedly the petitioner was a member of disciplined force. In the charge sheet apart from the charge of unauthorized absence an additional charge was also brought in respect of his earlier such unauthorized absence from duty, over stay on leave etc. In such a situation, if the disciplinary authority was of the opinion that no useful purpose would be served by retaining the petitioner in service, no fault can be attributed to the disciplinary authority. 20. As regards the alleged procedural irregularity, although noting on record, but in view of the admission of the petitioner about the fact stated in the charge, the guilt and/or misconduct attributed to the petitioner automatically stood proved. In Channabassappa Basappa Happali Vs.

7 State of Mysore reported in AIR 1972 SC 32, the Apex Court dealing with a departmental enquiry against a police constable observed that admission of fact attribute to the delinquent to the charge amounts to admission of guilt. As in the instant case, in the said case also, the petitioner was on leave unauthorisedly. Some other charges were also leveled against him. The fact stated in the charges having been admitted by the petitioner involved in that case, the Apex Court referring to the decision reported in R.V. Durham Quarter Sessions; Ex parte Virgo, (1952 (2) QBD 1) held that when the fact indicated in the charge are admitted by the delinquent, the same leads to admission of guilt inasmuch the fact speaks for themselves. In the instant case, the petitioner himself having admitted his guilt in his written statement of defence cannot now turn around the same so as to call in question the departmental proceeding initiated against him raising some untenable pleas. 21. For all the aforesaid reasons, I do not find any merit in the writ petition and accordingly it is dismissed. There shall be no order as to costs. JUDGE Mkk