IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) WRIT PETITION(C) NO.5593 OF 2009 Petitioner: Sri Hemanta Hazarika, Son of Dulan Hazarika, Resident of village- Ghimorujan, Post office- Balijan, District- Sonitpur, Assam. By Advocates: Mr. N. Borah, Mr. D. Borah. Respondents: 1. State of Assam, represented by the Commissioner and Secretary to the Government of Assam, Home Department, Dispur, Guwahati-6. 2. Principal Secretary to the Government of Assam, Home (A) Department, Dispur, Assam. 3. Inspector General of Police (Administration), Guwahati, Assam. 4. Commandant, 12th Battalion, Assam Police, Kusumtola, Jamuguri, Sonitpur, Assam. By Advocate: Mr. J. Handique, G.A., Assam. B E F O R E HON’BLE MR. JUSTICE UJJAL BHUYAN Date of hearing : 31-07-2013 Date of Judgment : 19-08-2013 W.P.(C)No.5593/2009 Page 1 of 9 J U D G M E N T AND O R D E R (ORAL) In this writ petition, petitioner seeks quashing of order dated 06-11-2009 passed by the Commandant, 12th Assam Police Battalion, Jamugurihat in the district of Sonitpur discharging the petitioner from service with immediate effect. Further prayer made is for a direction to the respondents for his reinstatement in service. 2. Case of the petitioner is that he was appointed as Armed Branch Constable on probation in the 12th Assam Police Battalion, Jamugurihat w.e.f. 07-05-2008 vide the appointment letter dated 05- 05-2008 issued by the Commandant of the said Battalion. Such appointment was made subject to successful completion of basic training. 3. While the petitioner was undergoing basic training, a show-cause notice dated 28-08-2009 was issued to him by the Commandant of the Battalion acting as the disciplinary authority. In the said show-cause notice, DP (Disciplinary Proceeding) No.20/2009 was mentioned, perhaps to indicate that the said show-cause notice was in relation to the above disciplinary proceeding. Petitioner was asked to show-cause under Section 65 of the Assam Police Act, 2007 read with Rule 66 of the Assam Police Manual Part-III and Article 311 of the Constitution of India and Rule 7 of the Assam Services (Discipline and Appeal) Rules, 1964. The allegation against the petitioner was that on 15-08-2009 at about 3:20pm, he remained absent from the Battalion Head-Quarters unauthorizedly and entered into the house of Havildar Surendra Nath Borah with bad intention and showing indisciplined conduct at public place after consuming W.P.(C)No.5593/2009 Page 2 of 9 liquor. He was accordingly charged with indiscipline and gross misconduct. 4. According to the petitioner, he had submitted his written statement immediately after receipt of show-cause notice. While denying the allegation made against him, petitioner sought forgiveness and leniency for any act which might have been construed by the authority as an act of negligence or indiscipline. 5. Thereafter, the Commandant passed the impugned order dated 06-11-2009 discharging the petitioner from service. The said order was passed after considering the findings and relevant papers of D.P. No.20/2009. Reference was made to an earlier D.P. No.06/2009 whereafter he was allowed to continue in service taking a lenient view. It was further observed that petitioner’s conduct will adversely affect the other recruits. 6. Aggrieved, petitioner has filed the present writ petition seeking the reliefs as indicated above. 7. Contention of the petitioner is that he was not afforded reasonable opportunity to participate in D.P. No.20/2009. No information was furnished to him as to which documents would be exhibited in the enquiry or who would be the witnesses to depose. Petitioner was not afforded any opportunity to cross-examine any of the witnesses in the enquiry. Petitioner was also not furnished with a copy of the enquiry report. Impugned order was passed after taking into account the findings of earlier D.P. No.06/2009 which was not a part of the charge. Impugned order in tainted with stigma and, therefore, petitioner should have been provided reasonable and W.P.(C)No.5593/2009 Page 3 of 9 adequate opportunity before his discharge, which is not a termination simplicitor but a punitive one. 8. Respondent No.4 has filed affidavit. It is stated that petitioner’s appointment was subject to successful completion of basic training. Petitioner was undergoing basic training of the 95th batch but he did not complete the basic training. Petitioner was discharged from training by the Commandant, 11th Assam Police Battalion, Dergaon. However, his case was sympathically considered and he was sent to undergo basic training again. It is stated that while the petitioner was undergoing basic training in 12th Assam Police Battalion, he left the barrack without taking permission from the competent authority and went to the house of Havildar Surendra Nath Borah on 15-08-2009 where some indecent incident was reported. The incident was reported to the Battalion Head-Quarter over telephone by some members of the public. Thereafter, petitioner was brought to the Battalion Head- Quarter. Petitioner was medically examined and as per medical report, he was found to be under the influence of liquor. It is further stated that petitioner’s reply to the show-cause notice was received on 06-09- 2009. Disciplinary authority appointed Enquiry Officer and thereafter enquiry was conducted observing necessary procedure. In the enquiry conducted, petitioner was present during examination of the witnesses. Finally, impugned order dated 06-11-2009 was passed after taking into account the findings of the Enquiry Officer. 9. In his reply affidavit, petitioner has denied any bad intention on his part in visiting the residence of Havildar Surendra Nath Borah. He has also questioned the veracity of the medical report as he was not given any opportunity to verify the same. It is contended W.P.(C)No.5593/2009 Page 4 of 9 that no enquiry as is understood in law was held. Petitioner has reiterated that he was not given adequate and reasonable opportunity in the enquiry. Further contention is that no Presenting Officer was appointed in the enquiry. No copy of the enquiry report was furnished to the petitioner. Therefore, the order of discharge is in violation of the principles of natural justice. 10. Heard Mr. N. Borah, learned Counsel for the petitioner and Mr. J. Handique, learned Government Advocate, Assam. 11. Mr. Borah submits that the impugned discharge is not a termination simplicitor but a punitive one carrying stigma. No Presenting Officer was appointed to present the case of the disciplinary authority in the enquiry. In the enquiry conducted, no procedural safeguards were provided to the petitioner. Even copy of enquiry report was not furnished to the petitioner. In view thereof, since the disciplinary proceeding was conducted in violation of the principles of natural justice and established procedure, the same is required to be quashed and a direction may be issued to the respondents to reinstate the petitioner in service. 12. Submissions made by learned Counsel for the petitioner has been opposed by the learned State Counsel, who submits that petitioner was on probation and his appointment was subject to successful completion of the basic training. Being a probationer, petitioner cannot claim that he can be discharged during his probation period only after holding a regular disciplinary proceeding. Petitioner’s conduct, which is highly reprehensible, has disentitled him to W.P.(C)No.5593/2009 Page 5 of 9 continue in a disciplined force. He, therefore, seeks dismissal of the writ petition. 13. Submissions made have been considered. Also perused the record. 14. It is not in dispute that petitioner was on probation when he was discharged from service by the impugned order. Confirmation of service or continuance in service of a probationer would depend on successful completion of the probation period, which in the present case is the basic training. A probationer cannot claim as a matter of right that he is entitled to procedural safeguards including holding of departmental proceeding before issuing an order of discharge. Exception to the above general rule would be in a case where misconduct is alleged or where there is stigma. While contours of misconduct are well demarcated, what constitutes stigma or what is stigmatic would depend upon the facts and circumstances of each case. But if the discharge order is stigmatic, the probationer would be entitled to notice and hearing before such discharge. 15. Having said so, the impugned order may now be looked into. For ready reference, the same is quoted hereunder:- “OFFICE OF THE COMMANDANT, 12TH ASSAM POLICE BATTALION JAMUGURIHAT :::: SONITPUR ORDER Seen the findings and relevant papers after D.P. (No.20/09) (hereinafter called D.P.) against R/C 463 Hemanta Hazarika (hereinafter called delinquent). The delinquent is a recruit constable. As per service condition, it is purely temporary and subject satisfactory W.P.(C)No.5593/2009 Page 6 of 9 completion of Basic training. He was discharged from training by the Commandant, 11th APBn, Dergaon Vide Memo No.Bn.11/R/2009/908-18 dtd.20-01-2009, and sent back him to this unit, D.P. No.6/09 was take against him. He was allowed to continue taking a lenient view. But it appears that his such conduct will adversely affect on the other recruits. Hence considering all facts and circumstances, I, the Commandant, 12th APBn do hereby pass the following orders- (1) R/C 460 Hemanta Hazarika is discharged from the service with immediate effect (i.e. 05-11-2009) (2) Order copy be served on the delinquent.