WP(C) 3775/2011 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY THE HON’BLE MR. JUSTICE PK MUSAHARY The petitioner seeks judicial intervention for conversion of the penalty of dism issal to that of compulsory retirement so as to enable him to avail the conseque ntial retiral benefits including pension. By order dated 02.03.1998 passed by th e learned District Judge, Barpeta, his disciplinary authority, the petitioner wa s dismissed from service following an inquiry under the Assam Services (Discipli ne and Appeal) Rules, 1964, (hereafter for short referred to as the Rules) read with Article 311 of the Constitution of India. His departmental appeal had been dismissed and the decision was communicated to him on 31.03.2011, whereafter, he has approached this Court on 26.07.2011. We have heard Mr. K Sarma, learned counsel for the petitioner and Mr. SS Dey, le arned Standing Counsel, Gauhati High Court. Also heard Mr. PS Deka, learned Stat e Counsel, Assam. The petitioner, who, at the relevant point of time was serving as Duftry in the office of the learned District & Sessions Judge, Barpeta, was allegedly absent f rom duties without any authority on and from 16.08.1997. As he continued to be a bsent thereafter, in contemplation of a departmental proceeding against him, he was placed under suspension by order dated 02.09.1997 w.e.f. 18.08.1997. A memor andum of charges was served on him vide letter No.DJE/VII-6/95-97/906E, dated 12 .09.1997, containing the following charges:- 1. That, you are un-authorisedly absent from duty w.e.f. 16.08.1997 (A/N) and n o information of our absence has yet been given in the office which amounts to m isconduct and gross negligence. 2. That you left the head-quarter without prior intimation and permission nor yo u have so far applied for leave or any ground which amounts to misconduct and ne gligence in duty. 3. That, your past conduct is also not satisfactory. You remained absent un-auth orisedly on various occasions and last warning was given to you vide letter No.D JB/VII - 6/95/398E dated 13.03.1997. The petitioner refuted the charges and in substance took the plea that he was ab sent from duty w.e.f. 16.08.1997 to 02.09.1997 (the date of his suspension) beca use of cardiac ailments. He also cited the reason of the demise of his mother an d the Sradha ceremony performed by him. He pleaded that for the aforementioned r easons he could neither send any information to the concerned authority nor subm it a formal leave application for the period concerned. The reply not having been fond to be satisfactory, the departmental proceeding w as furthered and on the culmination thereof a report was submitted by the Enquir y Officer on 12.01.1998 returning a finding that all the charges framed against him had been proved. The disciplinary authority before acting on the Enquiry Off icer’s report, furnished a copy thereof to the petitioner for his response there to. In his reply, the petitioner admitted his guilt. The disciplinary authority resu ltantly, vide order dated 02.03.1998, on an exhaustive analysis of the materials on record, agreed with the findings of the Enquiry Officer and imposed on him t he penalty of dismissal from service w.e.f. 01.03.1998. Thereby, the petitioner was held to be entitled to subsistence allowance during his period of suspension w.e.f. 18.08.1997 to 28.02.1998. His departmental appeal having failed he is be fore this Court. The respondent Nos. 2 & 3 in their affidavit, while questioning the maintainabil ity of the writ petition on the ground of delay, have not only endorsed the disc iplinary action as well as the penalty imposed on the petitioner, but recited as well, the past instances of his persistent lapses to brand him as incorrigible and unworthy of retention in service. According to the answering respondents, th e penalty imposed was commensurate to the charges and thus no interference there with was called for. Mr. Sarma has argued that having regard to the status of the petitioner at the r elevant point of time and the misconduct proved against him, the penalty of dism issal from service is shockingly disproportionate and, therefore, in the facts a nd circumstances of the case, the same ought to be converted to one for compulso ry retirement so that he can avail the retiral benefits to sustain his family. W hile admitting that the petitioner on earlier occasions was found to be absent f rom duty, the learned Counsel has argued that such lapses did not, in any view o f the matter, constitute a misconduct warranting his dismissal from service. Mr. Sarma in order to buttress his arguments placed reliance on a decision of the D ivision Bench of this Court rendered in DILIP DAS VS. STATE OF ASSAM & ORS., 200 5 (2) GLT 431. Per contra, Mr. Dey has maintained that having regard to the gravity of the char ges levelled against the petitioner, which amongst others, demonstrated a desper ate and reckless conduct of the petitioner exhibiting casual indifference to dut y, no interference with the impugned penalty is called for, there being no chall enge either to the fairness of the procedure in the departmental proceeding or t o the correctness of the findings recorded by the Enquiry Officer and endorsed b y the disciplinary authority. Pointing out that one of the charges levelled agai nst him also encompasses his persistent failing conduct prior to his unauthorise d absence from 16.08.1997, the learned Standing Counsel has insisted that the sa me having as well been proved on the basis of the materials adduced in the depar tmental inquiry, any interference with the penalty of dismissal from service wou ld breed indiscipline in the system. Mr. Dey, sought to reinforce his contention s by placing reliance on the decisions of the Apex Court in CHAIRMAN & MANAGING DIRECTOR, V.S.P. & ORS. VS. GOPARAJU SRI PRABHAKARA HARI BABU, (2008) 5 SCC 569 and UNION OF INDIA & ORS. VS. BISHAMBER DAS DOGRA, (2009) 13 SCC 102. We have extended our cautious consideration to the pleadings on record as well a s the arguments advanced in support hereof. A bare perusal of the charges brough t against the petitioner vide the communication dated 12.09.1997 would demonstra te an imputation that he was unfit to be retained as a government servant in vie w of his overall misconduct. As referred to hereinabove, the petitioner was, adm ittedly, absent from duties on and from 16.08.1997 without either informing the concerned authority or submitting a leave application disclosing the reason for his absence. He was placed under suspension on 02.09.1997, whereafter, logically he was not required to render any service. The respondent Nos. 2 & 3 in their affidavit have set out the past instances of similar conduct of the petitioner in the following terms: - (a) That the writ petitioner was a habitual absentee from duty and it is on rec ord that he was unauthorisedly absent from duty for the periods of 08.09.1986-09 .09.1986, 04.02.1987-06.02.1987, 25.06.1988 till unascertained period, 48 days w .e.f. 16.12.1988 etc. (b) That the writ petitioner was subjected to Disciplinary Proceeding vide Show Cause Notice dated 09.06.1993 for alleged unauthorised absence from duty, ultima tely culminating in the order dated 20.09.1993 passed by the Learned District & Sessions Judge, Barpeta vide Memo No. DJB/980-83E whereby taking a lenient view, withholding of one increment of the writ petitioner was ordered. (c) That prior to the above Writ Petitioner was subjected to another Disciplinar y Proceeding vide Show Cause Notice No.DJB/743E dated 20.11.1990 for prolonged a bsence from duty since 07.09.1990 till 03.11.1990. This was preceded by another Disciplinary Proceeding initiated vide Show Cause Notice No.DJB/694E dated 27.07 .1989 for unauthorized absence from duty as well as illegal drawal of money. Significantly, none of the imputations has been denied by the petitioner. A plai n perusal of the above quoted extract would reveal that - i) The petitioner was unauthorisedly absent from duty from - a) 08.09.1986-09.09.1986, b) 04.02.1987-06.02.1987, c) 25.06.1988 -unascertained. d) 16.12.1988 - 48 days. ii) He was subjected to the disciplinary proceeding initiated by the show cause notice dated 09.06.1993 for unauthorized absence from duty culminating in the or der dated 20.09.1993, whereby, taking a lenient view the penalty of withholding of one increment was imposed on him. iii) He was subjected to the departmental proceeding initiated by the show cause notice No. DJB/694E dated 27.07.1989 for unauthorised absence from duty. iv) He was subjected to any disciplinary proceeding initiated by the show cause notice dated 20.11.1990 for prolonged absence from duty from 07.09.1990 to 03.11 .1990. The charge Nos. 1 & 2, in the disciplinary proceeding, in question, were thus in addition to the charge No.3, which enfold these quoted facts and the related de velopments. The disciplinary authority, as the order of penalty dated 02.03.1998 would revea l, made an exhaustive scrutiny of the materials produced in course of the discip linary proceeding as well as other relevant facts having a bearing on the charge s and came to a well reasoned conclusion that in view of the petitioner’s servic e profile he ought not to be retained in service in the interest of official dis cipline. On an overall consideration of the attendant facts and circumstances, the nature of the charges and the persistent lapses on the part of the petitioner, we are of the view that the penalty of dismissal imposed on him cannot be repudiated to be grossly disproportionate so as to warrant interference of this Court in the exercise of its power of judicial review. Neither any legal infirmity in the dis ciplinary proceeding is discernible nor the disciplinary authority in the presen t facts situation can be criticized to have acted mala fide or on extraneous con siderations. To reiterate, the disciplinary authority was fully conscious of the materials adduced in support of the charges levelled against the petitioner and while deciding on the penalty of dismissal, was of the unhesitant opinion that his retention in service would encourage indiscipline. The materials on record impel us to conclude that the findings are neither illog ical nor irrational or absurd. The disciplinary authority being the best judge o f the situation of the desirability or otherwise of retention of an employee in service, having regard to the constricted scope of review of such a decision, we are of the comprehension that no interference is called for. The reference on b ehalf of the petitioner of the decision in DILIP DAS VS. STATE OF ASSAM & ORS., (Supra) is of no avail as in that case the penalty of dismissal imposed on a Gra de-II Judicial Officer found to have strayed from the acknowledged principles fo r exercise of discretion in granting bail was converted into one for a compulsor y retirement having regard to the singular facts of the case. In our view, the t wo fact situations are wholly incomparable as is sought to be asserted by the pe titioner. The Apex Court in CHAIRMAN & MANAGING DIRECTOR, V.S.P. & ORS. (Supra), on the ot her hand, while reiterating the oft quoted proposition of the limited scope of i nterference in the exercise of the power of judicial review, had underlined that a well reasoned order of a disciplinary authority ought not to be interfered on ly on sympathy or sentiments. While echoing the same proposition in UNION OF IND IA & ORS. VS. BISHAMBER DAS DOGRA (Supra), their Lordships of the Apex Court pro pounded that habitual absenteeism signifies gross violation of discipline. Judged on the touchstone of the above authorities as well, in the facts and circ umstances of the case, we are of the view that no interference to the impugned p enalty is called for. The petition lacks in merit and is dismissed. No costs.