PRABHAS CHANDRA SARMA Vs. STATE OF ASSAM

JUDGEMENT

(1.) Heard Mr. K. N. Choudhury, learned senior counsel assisted by Mr. R. M. Deka, learned counsel appearing for the writ petitioner. Also heard Mr. D. P. Borah, learned Standing Counsel, Health and Family Welfare Department, Assam appearing for the respondent Nos.1, 2 and 3. Mr. A. Hasan, learned Standing Counsel, office of the Accountant General (A and E), Assam has appeared for the respondent No.4. This writ petition is being taken up for disposal at the stage of admission hearing with the consent of both the parties.

(2.) By filing this writ petition, the petitioner has assailed the order dtd. 3/11/2021 dismissing him from service on the ground of the alleged misconduct having been established in the departmental proceeding drawn up against him. The facts of the case, as projected in the writ petition, are that the petitioner was originally appointed as a Resident Physician, TID vide order dtd. 9/1/1990 and posted at the Assam Medical College and Hospital, Dibrugarh, in which post, he had joined on 12/1/1990. Since then, the petitioner has been continuously rendering his service under the Health and Family Welfare Department, Government of Assam. While serving as the Professor in the Department of Cardiology, Silchar Medical College and Hospital (SMCH), Silchar, by the order dtd. 8/12/2016, the petitioner was transferred from Silchar and posted as Professor of Cardiology in the Gauhati Medical College and Hospital (GMCH) against a vacant post. However, in the notification dtd. 8/12/2016, it was mentioned that the petitioner will be attached in the same capacity at the Fakharuddin Ali Ahmed Medical College and Hospital (FAAMC&H), Barpeta against the vacant post of Professor of Cardiology Department, GMCH, Guwahati for the purpose of strengthening of the Cardiology Department of FAAMC&H, Barpeta. Pursuant to the transfer order dtd. 8/12/2016 the petitioner had joined at GMC&H, Guwahati on 23/12/2016 but he did not report for duty at the FAAMC&H, Barpeta. According to the writ petitioner, he was suffering from various health problems besides facing some personal difficulties, as a result of which, he could not report for duty at Barpeta. As per averments made in paragraph 5 of the writ petition, the petitioner had submitted leave applications seeking earned leave and medical leave for the period of his absence. The petitioner had also submitted a representation before the authorities on 30/12/2016, through proper channel, intimating that his application for availing winter vacation with effect from 1/1/2017 for a period of two months was already under process before the Director of Medical Education, Assam. On 29/12/2017 the petitioner had submitted another representation before the respondent No.1, through proper channel, expressing difficulties on health ground as well as family problems faced by him, with a request to modify the order attaching him at FAAMCH, Barpeta. In the representation dtd. 29/12/2017, it was also mentioned that if the transfer order dtd. .8/12/2016 cannot be revised by placing him either at the SMCH or the GMCH then he be allowed to go on voluntary retirement. The representation dtd. 29/12/2017 was followed up by similar representations dtd. 26/3/2018 and 18/5/2018 wherein, the petitioner had stated that he was suffering from various diseases which would make it difficult for him to relocate at Barpeta. During the pendency of those representation submitted by the petitioner, the respondent No.3 had issued a show cause notice dtd. 4/1/2020 alleging that the petitioner had remained unauthorizedly absent from duty with effect from 23/12/2016 leading to serious disruption in patient care and academic activities. The petitioner was, therefore, asked to explain within seven days, as to why, a disciplinary proceeding should not be drawn against him.

(3.) On 9/1/2020, the petitioner submitted his reply to the Show Cause Notice dtd. 4/1/2020 explaining his stand in the matter with a request to sanction his leave as well as the application for voluntary retirement. However, not being satisfied with the reply submitted by the petitioner, charge-sheet dtd. 26/11/2020 was served upon the petitioner under Rule 9(2) of Assam Services (Discipline and Appeal) Rules, 1964 calling upon him to show cause as to why, penalty prescribed under Rule 7 should not be imposed upon him. The writ petitioner had submitted his reply to the charge-sheet and the statement of allegations appended thereto on 4/12/2020. An Enquiry Officer was appointed to go into the charge brought against the petitioner. The Enquiry Officer submitted his report dtd. 5/5/2021 holding that the allegation of misconduct brought against the petitioner stood fully established. Based on the Enquiry Report dtd. 5/5/2021, the impugned order dtd. 3/11/2021, imposing major penalty of dismissal from service with disqualification for future employment, under Rule 7(vii) of the Assam Services (Discipline and Appeal) Rules, 1964, was imposed upon the petitioner with immediate effect. Challenging the aforesaid order dtd. 3/11/2021 the instant writ petition has been filed.