PRAFULLA NATH SARMA Vs. STATE OF ASSAM, REPRESENTED BY CHIEF SECRETARY TO GOVT OF ASSAM
HIGH COURT OF GAUHATI
Prafulla Nath Sarma
State Of Assam, Represented By Chief Secretary To Govt Of Assam
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Hrishikesh Roy, J. -
(1.) Heard Mr. N.C. Das, the learned Sr. counsel appearing for the petitioner. The learned Sr. counsel Mr. S.N. Sarma appears for the Publication Board of Assam, represented by its Secretary (respondent No.2). Mr. D. Nath, the learned Addl. Sr. Govt. advocate appears for the respondent No.1.
(2.) The challenge here is to the order dated 26.12.2008 (Annexure-IX), whereby, the petitioner who was employed as UDA with the Publication Board of Assam, was dismissed from service in pursuant to a Disciplinary Proceeding. The charge against the delinquent as can be culled out from the show-caused notice dated 17.05.2006 (Annexure-IV) is that the UDA remained absent for 33 days from 01.06.2003 to 03.07.2003 and thus he committed a gross misconduct. The other charge related to the habitual absenteeism, for which the activities of the Publication Board, was impacted. It is relevant to mention here that the 3rd charge contained in the show-cause notice, was the subject matter of the challenge in the WP(C) No.2988/2006 and the learned Single Judge under his judgment dated 09.10.2007 (Annexure-V) held that this additional 3rd charge cannot be part of the present Disciplinary Proceeding, which was initiated earlier on 16.05.2005 (Annexure-III).
(3.) 3.1 The legality of the disciplinary action is challenged on various grounds including violation of the procedure prescribed by Rule 9 of the Assam Service (Discipline and Appeal) Rules, 1964 (hereinafter referred to as the "Discipline Rules") in as much as the list of documents was not appended to the charge memo.
3.2 Since the absence period was subsequently regularized by granting earned leave without pay, the delinquent questions the logic of the penalization, for the alleged unauthorized absence.
3.3 But the main focus of the challenge by the learned Sr. counsel Mr. N.C. Das is the disproportionate penalty imposed for the relatively lesser misconduct of unauthorized absence. The Sr. counsel refers to the various penalties provided under Rule 7 of the Discipline Rules and contends that the punishment of dismissal was the harshest possible penalty and in the facts and circumstances of the present case, the same is wholly disproportionate to the misconduct committed by the delinquent.;
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