Decided on July 16,1985

Sonali Hazuri Appellant
The State Of Assam, Respondents


S. Haque, J. - (1.)THIS is an application under Article 226 of the Constitution of India for quashing the order of dismissal of the Petitioner from service passed by the Deputy Commissioner, Kamrup, Gauhati.
(2.)THE Petitioner Shri Sonali Hazuri was appointed as Copyist in 1970 and in 1932 he was serving at Barnagar Circle, Sarbhog, On 29.6.1982 the normal work and movement were disrupted on account of the Assam Bundh Call given by the leaders of anti foreigners movement in Assam. It is stated in the petition that the Petitioner made all possible endeavor to attend his office on 29.6.82 but be could not do so on account of physical obstruction, given by some unknown youth when the Petitioner was on his way to attend his office, It is stated that the Petitioner's absence from duty on 29.6.82 was entirely due to reason beyond his control and was not due to any negligence or willfulness on the part of the Petitioner, The Petitioner was served with a notice dated 30.8.32 (Annexure 1 to the petition) issued by the Sub -divisional Officer, Barpeta to show cause as to why disciplinary action should not be taken against him for his unauthorized absence from duty on 29.6.82. The Petitioner submitted his explanation dated 7.9.82 by Annexure 2 to the petition. Thereafter, the Petitioner was served with a notice No. 364/82 dated 23.9.82 of the disciplinary proceeding issued by the Deputy Commissioner, Kamrup, Gauhati, with the charges which read as follows:
1. That on 29.6.82 while you were holding the post of Copyist you have remained absent from duty and did not attend the office even though you have been working in a service relating to the affairs of the State as defined in Section 2(1)(b)(xiii) of the Essential Services Maintenance (Assam) tot, 1980, and that by your aforesaid conduct there was retardation of works in the said office.

You are, therefore, charged with resorting to 'strike' as defined in Section 2(1)(c) of the said Act.

2. That you have violated the directions given under the Government notification No. ABP 355/81/116 dated 28.6.82 by remaining absent from duty on the days aforesaid.

The copy of the said charge is made Annexure 3 to the petition. The Petitioner submitted written explanation dated 19.10.1982 in respect of the charges as per Annexure A/4 to the petition. As regards the first charge it was stated that he was prevented from attending office on that day on account of the facts and circumstances prevailing in and around Barnagar arising out of the Assam Bundh call given by the leaders of the anti -foreigners movement and the Petitioner was physically prevented by some unknown Youngman from proceeding to his work and that his fear was not unfounded has been established by facts of physical violence resulting even to death of others on that day. Regarding the second charge, it was stated that he was not aware of the notification No. ABP 355/81/116 dated 28.6.1982.

Shri D.N. Biswas, E.A.C., Barpeta, was the Enquiry Officer of the said disciplinary proceeding. The Petitioner was personally heard and his statement was recorded by the Enquiry Officer. On 9.6.83, the Enquiry Officer submitted his report holding that the charges against the Petitioner have been proved. Thereupon, the Disciplinary Authority, namely, the Deputy Commissioner, Kamrup, Gauhati accepted and agreed with the findings of the Enquiry Officer and passed the order dated 29.6.1983 dismissing the Petitioner from service. This had compelled the Petitioner to come with this writ application.

(3.)IT is submitted by Shri A. Sarma, the learned Counsel for the Petitioner that the Enquiry Officer as well as the Disciplinary Authority failed to appreciate the written explanation and the statement given by the Petitioner to meet the allegations of the charges and the authority was not justified to bold the Petitioner guilty of the charge of resorting to strike as defined in Section 2(1)(C) of the E. S. M. (Assam) Act. It is further submitted by the learned Counsel that the Enquiry Officer did not ascertain from the Sub -deputy Collector, Barnagar, whether there was retardation of work in his office on 29.6.82 due to the absence of the Petitioner and also the facts and circumstances prevailing in and around Barnagar on that day arising out of Assam Bandh although the Petitioner made such request by his statement to the Enquiry Officer. The learned Counsel also submitted that there was nothing to hold that the contents of Government notification No. ABP 355/81/116 dated 28.6.82 reached to the employees of Barnagar circle in lime and the same was also not ascertained from the Sub -deputy Collector of Barnagar Circle in the said Disciplinary Proceeding and so the charge No. 2 was also not substantiated.

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