WP(C) 1376/2008 BEFORE THE HON’BLE MRS. JUSTICE ANIMA HAZARIKA The legality and validity of the orders dated 28.04.2004 passed by the D irector General of Police, Assam whereby and whereunder the petitioner was compu lsorily retired from service in a disciplinary proceeding and affirmed by the De puty Secretary to the Government of Assam, Home (A) Department, Dispur, dated 03 .12.2007 are under challenge before this Court. 2) In order to understand the case and the matter of controversy it would b e appropriate to narrate the factual part in a nutshell which is summarized here inbelow: The petitioner who was holding the post of Inspector and posted in the B ureau of Investigation of Economic Offences and Criminal Investigation Departmen t (CID), was transferred to Police Training College, Dergaon as Law Instructor v ide order dated 02.09.2000 and he joined in the said post on 17.09.2000. After j oining the said post he had applied for casual leave for three days which was gr anted and he availed the casual leave with effect from 23.09.2000. During the pe riod of casual leave he fell sick and he had applied for grant of earned leave o n medical ground for sixty (60) days with effect from 23.09.2000 vide applicatio n dated 20.10.2000. Thereafter he applied for extension of earned leave on medic al ground vide application dated 22.11.2000, 22.12.2000, 22.01.2001, 27.06.2001 and 31.12.2001. The extension of leave on medical ground was sought for due to a ttack of viral hepatitis from 28.09.2000 to 12.10.2000 and subsequently develope d intestinal T.B. requiring domiciliary treatment for a prolonged period. Though he was asked to resume his duties from time to time by the Principal, Police Tr aining College, Dergaon under whom he was serving, he could not resume duties du e to his physical condition. The petitioner was directed to appear before the Me dical Board at Central Civil Hospital, Dergaon on 16.07.2001 and 20.08.2001 but he could not attend on 16.07.2001 due to short notice and on 20.08.2001 for his physical incapacity. 3. In the above background the Disciplinary Authority put him under suspens ion on 29.01.2001 with immediate effect for gross negligence and remiss, directi ng to draw up disciplinary proceeding against him and consequently thereupon on 02.04.2002 show cause notice was issued under Section 7 of the Police Act, 1861 read with Rule 66 of Assam Police Manual and Article 311 of the Constitution of India as to why any of the penalties prescribed should not be inflicted upon him . Along with the show cause notice the imputation of misconduct and the statemen t of allegation was furnished to him directing to submit the written statement o f defence within 10 days from the date of receipt of the communication provided the petitioner do not intend to inspect the documents which have relevance with the issue under enquiry. It would be appropriate to quote the statement of alleg ation which has a direct bearing in deciding the case of compulsory retirement:- While Insp (UB) Aswini Kr. Das of P.T.C. Dergaon was working as Law Ins tructor he was allowed to avail 3 (three) days casual leave w.e.f. 23.09.2000 an d had to resume duty on 28.09.2000 but he had overstaying leave without prior ap proval of leave/permission from the competent authority. In this regard signal N o. PTC/R/2000/7788 dated 15.11.2000 from the Principal P.T.C. Dergaon and also s ubsequent reminders and this office memo no. FA/XXII/901/91/38 dated 04.05.2001 and Memo no. FA/XXII/841/91/99 dated 12.11.2001 were served upon him asking to r esume duty as well to submit explanation but to no effect. Thus Insp (UB) Aswini Kr. Das of P.T.C. Dergaon is liable for gross negl igence and dereliction of duty being a member of discipline police force. 4. In order to dislodge the charge as framed by the Disciplinary Authority, the petitioner (hereinafter referred to as delinquent official) submitted the w ritten statement of defence denying the allegations of the imputation of miscond uct contending inter alia that he had sought for three (3) days casual leave wit h effect from 23.09.2000 which was sanctioned and he came to Guwahati but sudde nly fell ill and as a consequence he sought for extension of leave on medical gr ound since he was suffering from viral hepatitis and shifted to Gauhati Medical College and Hospital (GMCH for short) for further treatment for 14 days and was discharged on 12.10.2000. Thereafter he applied for 60 days earned leave with e ffect from 23.09.2000. Since he could not recover, further extension of leave fo r another four (4) months was sought through different applications dated 20.11. 2000, 22.12.2000, 22.01.2001 and 24.02.2001 and finally it was detected that he was suffering from ’intestinal T.B.’ by Dr. JN Talukdar and was under treatment for considerable period. Consequently thereupon the delinquent official was admi tted to LGB Chest Hospital and undergone treatment for TB whereof the delinquent official was directed to take rest for 180 days and accordingly applied for lea ve and therefore submitted that long absence from duty cannot be attributed for gross negligence and dereliction of duty. In regard to calling to appear before the Medical Board, the delinquent official in his written statement in defence c ontended that due to paucity of time as well as for physical incapacity he could not attend the Medical Board which cannot be attributed to negligence and inten tional and hence requested to exonerate him from the charges leveled against him allowing him to join his duty immediately. 5. The Disciplinary Authority having not been satisfied with the reply to s how cause notice proceeded to hold an enquiry and accordingly the Enquiry Office r was appointed to proceed with the disciplinary proceeding who held the enquiry . During the enquiry, 7 (seven) witnesses were examined and eighteen (18) docume nts were exhibited. The delinquent official was given the opportunity to cross-e xamine the witnesses whereof he declined to cross-examine. The witnesses as numb ered as PW 1 to PW 5 deposed that the delinquent was granted three days casual l eave and the delinquent had to resume duty on 28.09.2000 but did not join and su bsequently the delinquent official was put under suspension. The witness PW 6 ha d deposed that during the period from 15.11.2000 to 30.01.2002 he has served at APRO Dergaon and during that period 5 (five) message issued from PTC Dergaon and the messages transmitted by him related to the delinquent official. The vital w itness PW 7 had deposed with authority supporting the documents asking the delin quent to resume his duties but he failed to resume his duties seeking extension of leave on medical ground. The witness further deposed that though the delinque nt official was asked to appear before the Medical Board, he did not turn up and subsequently the delinquent official was put under suspension. 6. The Enquiry Officer examined the delinquent wherein he deposed the same thing as narrated in his written statement in defence save and except the cause narrated for his non-appearance before the Medical Board and deposed that the co mmunication dated 13.07.2001 whereby he was asked to appear on 16.07.2001 was re ceived on 15.07.2001 and hence he could not appear due to shortage of time and h e communicated the same to the authority showing causes therein as to his inabil ity to appear before Central Police Hospital, Dergaon on 16.07.2001. The Enquir y Officer after detailed scrutiny of the evidence of the witnesses and the docum ents exhibited came to a conclusion that the imputation of misconduct as leveled against the delinquent official is proved and submitted the report to the disci plinary authority for perusal and necessary action vide communication dated 15.0 2.2004. 7. On receipt of the enquiry report the Disciplinary Authority issued 2nd s how cause notice along with the report of the Enquiry Officer directing him to s how cause as to why the penalties of dismissal as provided under the law should not be inflicted upon him. The delinquent official submitted his reply to the se cond show cause notice on 22.03.2004 contending inter alia that the Enquiry Offi cer did not consider the medical certificates relating to viral hepatitis and in testinal TB which, if otherwise, was considered the enquiry report would have be en otherwise and hence requested to consider his case. In regard to appearance b efore the Medical Board he had submitted that the communication dated 13.07.2001 whereby he was asked to appear on 16.07.2001 before the Medical Board was recei ved on 15.07.2001 and due to paucity of time he could not attend the Medical Boa rd as directed. Regarding the other communication dated 08.08.2001 whereby he wa s asked to appear before the Medical Board on 20.08.2001 at Dergaon the ground s hown for non-appearance was that it is too far away from his stay at Guwahati an d his health condition did not permit to undertake such a long road journey for which he could not attend the Medical Board. The delinquent has further contende d that the Enquiry Officer has exceeded his jurisdiction by enlarging the scope of charge of insubordination whereas insubordination was not charged in the stat ement of allegations and the enquiry officer was not impartial, rather the entir e report is full of bias and contended that failure to resume duty on expiry of leave does not amount to gross negligence and dereliction of duty and hence pray ed for dropping the charges in order to enable him to join in his duties. 8) The Disciplinary Authority after receipt of reply of the 2nd show cause notice submitted by the delinquent official considered the enquiry report alongw ith the reply including the record of the case and arrived at the finding that t he charges have been proved and ordered the following penalty-- The delinquent U.B. Inspector Aswini Kr. Das, be compulsory retired wit h immediate effect. The period of his absence to the date of suspension is unauthorized and is treated as leave without pay. During the period of his suspension till the da te of compulsory retirement, he shall not receive any subsistence allowance nor any other remuneration since he (D.O.) did not report to his H. Qrs. nor was he present at his Headquarters during this period. He shall receive any retirement benefits that are entitled to him. 9) The record would reveal that the Disciplinary Authority came to the conc lusion by imposing the penalty of compulsory retirement based on the following f acts- i) Initially the delinquent was obtaining medical certificate from OPD, GMCH from the date he was to rejoin from casual leave i.e. 28.09.2000 first for viral hepatitis then for lumbago pain. He has not enclosed any medical prescript ion for this treatment. ii) Thereafter, he was showing receiving treatment for TB for which he p roduced a medical certificate from LGB Chest Hospital as a domiciliary and not a s indoor patient being treated by a private practitioner from 21.03.2001 to 30.1 2.2001. But as per rule he has to be treated at the Government Chest Hospital an d produce X Ray plate of his health condition which is lacking. iii) The certificate produced would show that he was declared fit to rep ort for duty on 01.01.2002 but he did not report accordingly. iv) The delinquent had submitted his petition for leave only on 20.10.20 00 though he was to rejoin from casual leave on 28.09.2000 and could not produce any documents as to why he could not apply in time as he was not hospitalized b ut only an OPD patient and as OPD Patient he could have reported for duties and could avail treatment at his place of posting. v) The delinquent has not reported to his Headquarter even after he was placed under suspension, as was required. vi) The delinquent had avoided to appear before the Medical Board though he was summoned twice for the purpose. vii) The delinquent during the period of suspension did not report or re main at his office as required under the rules. 10) Against the order of imposing punishment of compulsory retirement, the d elinquent official took up the matter in appeal before the Appellate Authority a s provided under Rule 66 V of the Assam Police Manual. The appellate authority c onsidered his appeal and by an elaborate discussion, all the questions raised in the appeal, rejected the appeal, thereby affirmed the order of compulsory retir ement vide order dated 03.12.2007. Therefore the petitioner is before this Court challenging the orders dated 28.04.2004 and 03.12.2007. 11) Heard Mr. NC Barooah, learned counsel appearing for the petitioner. Also heard Mr. BN Gogoi, learned State counsel appearing for respondent Nos. 1 to 4 and Mr. C Barua, learned Standing counsel appearing for respondent No.5. Mr. Gog oi has produced the relevant original records pertaining to the departmental pro ceedings in question. 12) Advancing the argument on behalf of the petitioner, Mr. Barooah, learned counsel would contend that the fact pleaded and established reveals that the ch arge of imputation of misconduct of overstaying leave cannot be termed as gross negligence and dereliction of duty since the petitioner was suffering from viral hepatitis and intestinal TB for which the medical certificates were submitted i n time. The aforesaid medical certificates were ignored by the Disciplinary Auth ority as well as Appellate Authority, requiring interference by this Court with the orders dated 28.04.2004 and 03.12.2007. 13) Mr. Barooah, learned counsel has further contended that the communicatio n dated 13.07.2001 whereby the petitioner was asked to appear before the Medical Board on 16.07.2001 was received on 15.07.2001 and due to paucity of time he co uld not attend the Medical Board and when the petitioner was asked to appear bef ore the Medical Board again on 20.08.2001 he could not appear this time also bec ause his health did not permit him to undertake the journey as it was far away from Guwahati, which cannot be attributed as gross negligence and dereliction of duty as charged in the statement of allegations and the same thus require i nterference under writ proceedings. The interference is sought for on the ground of malafide, illegality and perversity on the part of the authority while impos ing the punishment of compulsory retirement. 14) On the other hand, Mr. BN Gogoi, the learned State counsel appearing for the respondents would contend that the enquiry report alongwith record of the c ase would reveal that being a member of the disciplined police force, the delinq uent officer was absent for 457 days without any cogent and valid reasons which do not require to be interfered with since this Court do not sit as an appellate authority over the decision of the disciplinary authority, more so, when there is no mala fide, illegality and/or perversity in arriving at the decision for pa ssing order of compulsory retirement against the petitioner. 15) Considered the submissions so made by the contesting parties. Perused t he records including the pleadings as averred in the writ petition as well as th e affidavit-in-opposition filed on behalf of respondent No.2. The admitted facts pleaded and established would go to show that after joining as Law Instructor a t PTC Dergaon within 6 (six) days, the petitioner sought for casual leave for th ree (3) days with effect from 23.09.2000 which was allowed and accordingly he le ft his place of posting at Dergaon and reached Guwahati. He had to resume duty o n 28.09.2000. But he did not resume in his duty as he fell sick and applied for earned leave for 60 (Sixty) days praying for conversion of casual leave with eff ect from 23.09.2000. The delinquent official was again asked to resume his duty but he did not join and submitted a petitions on 22.11.2000 from Guwahati with a prayer to grant another 30(thirty) days earned leave on medical ground, on 22.1 2.2000 for 30 (thirty) days earned leave on medical ground and on 22.01.2001 he again submitted a petition for extension of 30(thirty) days earned leave on medi cal ground. 16) The leave so applied would show that he overstayed 94 days in the year 2 000 and 363 days in the year 2001 totaling 457 days without reporting for duty i n his place of posting. The ailments in the leave applications were considered b y the Disciplinary Authority thereby constituted the Medical Board twice, but th e petitioner did not appear before the Board on flimsy ground which has rightly been rejected by the Disciplinary Authority and the Appellate Authority, more so , when the documents exhibited during the enquiry would reveal that there is gro ss negligence and dereliction of duty by the petitioner in ignoring the communic ations made to him requesting to join in his place of posting. 17) This Court would generally be slow in the matter of punishment ordered i n a disciplinary proceeding save and except where there is mala fide, illegality and/or perversity is committed during the enquiry by the enquiry officer in arr iving at its finding. In the instant case no such mala fide, illegality and/or p erversity is proved by the petitioner and as a natural corollary this Court woul d not sit as an Appellate Authority over the order inflicted by the Disciplinary Authority, more so, when the judicial review is limited in the matter of discip linary proceeding where the Disciplinary Authority and the Appellate Authority a re empowered to exercise its power within its ambit which has been done in the c ase in hand. 18) For the foregoing discussions and reasons, this Court is not inclined to interfere with the order imposing punishment of compulsory retirement by the Di sciplinary Authority and affirmed by the Appellate Authority vide order dated 28 .04.2004 and 03.12.2007 respectively. 19). In the result the writ petition is found to be devoid of merit and is ac cordingly dismissed. The parties are left to bear their own costs.