MAHENDRA NATH Vs. STATE OF ASSAM AND ORS.

JUDGEMENT

(1.) This court by successive orders particularly the orders dated 1st August, 1997 and 21-11-997 required the learned Govt. Advocate had produce, the related records and files pertaining to the inquiry/disciplinary proceeding as against the present writ Petitioner, but the learned Govt. Advocate had failed to produce the related files till today. Today also Mr. Talukdar, Govt. Advocate sought for time so as to enable him to produce the related records. In my considered view the prayer is not reasonable and accordingly, it is rejected. Apart from it no counter affidavit is held on behalf of the State Respondents till today since the year 1995. Considering all these existing facts and circumstance of the case, I hereby propose to dispose of the writ petition on its own merit with the following judgment and order.

(2.) Supporting the case of the writ Petitioner, Mr. S.K. Deka, learned Counsel submitted that the Petitioner was appointed as a Constable in Darrang District Executive Force of Assam Police bearing No. ABC/1059 on 5-5-1982 on regular basis and since then he had been serving under the Respondents till the impugned order of discharge was issued by he competent authority, namely, the Superintendent of Police, Darrang, Mangaldoi on 25th October, 1991 as in Annexure-11 to the writ petition. It s also submitted by Mr. Deka that despite the appeal preferred by the Petitioner to the Deputy Inspector General of Police, N.R. Tezpur, the said Dy. Inspector General of Police, Tezpur did not attend to the said appeal of the Petitioner and no decision was made on it. Being aggrieved by the inaction of the appellate authority, the Petitioner approached the Assam Administrative Tribunal, Gauhati by filing an appeal. The learned Assam Administrative Tribunal, Gauhati also rejected the appeal of the Petitioner mainly on the ground that the Petitioner has not denied the charges and the allegations against him as clearly given in the related charge sheet dated 17th May 1990, According to Mr. Deka no question of admission of the charges by the Petitioner arises in the instant case, as the Petitioner left his place of duty in the evening of 28th April, 1990 with the consent and permission of Hauildar in-charge, namely, Abdul Hamid so as to enable him to attend his ailing wife at his home after getting information about her serious illness arid the Petitioner immediately reported for his duty in the morning of 29th April, 1990, but or the same day the second Respondent herein issued an order thus placing the Petitioner under suspension with immediate effect, pending drawal of a disciplinary proceeding, It is also argued by Mr. Deka, that no enquiry report was ever furnished to the writ Petitioner before the impugned penalty was imposed against him and apart from it, both the disciplinary authority as well as the learned Tribunal lost the sight of real nature of the case and did not consider the existing facts arid circumstances of the case while passing the impugried order of 25th October, 1991 and 26th November, 1992. The learned Tribunal ought to have considered the issue as to whether the Petitioner had been afforded reasonable opportunity particularly the opportunity to cross-examine the witnesses during the enquiry, but no finding so far was made by the learned Tribunal, despite a specific ground taken by the Petitioner in his memo of appeal. It is also submitted by Mr. Deka that there is not even a whisper on this aspect in the impugned judgment of the learned Tribunal. It is also urged by the Petitioner that even assuming but not admitting that the Petitioner has admitted the charges, the penalty of the charge so far imposed upon the Petitioner is disproportionate and at least a minor penalty to be imposed upon the Petitioner. In my considered view, the submission of Mr. Deka has impressed me with the following reasons.

(3.) No counter affidavit was filed by the State Respondents till today ever though the case has been pending since the year 1995. Apart from it this Court required the related original files pertaining to the inquiry and disciplinary proceedings for which the learned government Advocate was to produce the related records as per order and direction made by this Court on many occasions as discussed above. Law is well settled in this regard that the statements of the Petitioner not controverted by the other parties, if shall be treated those statements are admitted arid independent, in this regard a reference can be made to a decision of the Apex Court rendered in a case between Naseem Bano v. State of Uttar Pradesh, 1993 AIR(SC) 2592. Over and above this the Court required to go more into deep and to see as to whether the Petitioner has enforceable legal rights or not in the instant case.