Page No.# 1/8 GAHC010170632020 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/5036/2020 KAMAL BORAH S/O. LT. TARUN CHANDRA BORAH, R/O. VILL. GARUKHUTI GAON, P.S. DEMOW, DIST. SIVASAGAR, ASSAM, PIN-785671. VERSUS THE STATE OF ASSAM AND 2 ORS REP. BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM, HOME DEPTT., DISPUR, GUWAHATI-781006. 2:THE DIRECTOR GENERAL OF POLICE ASSAM ASSAM POLICE HEADQUARTER B.K. KAKOTI ROAD ULUBARI GUWAHATI-781007 KAMRUP (M) ASSAM. 3:THE COMMANDANT 19TH ASSAM POLICE (IR) BATTALION TENGAKHAT DIBRUGARH ASSAM Advocate for the Petitioner : MR. R BORAH, MR. P TALUKDAR,MR. R PHUKAN Advocate for the Respondent : GA, ASSAM, Page No.# 2/8 BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER Date : 10.11.2025 Heard Mr. R. Phukan, learned counsel for the petitioner. Also heard Mr. J. K. Goswami, learned Additional Senior Government Advocate, appearing for the respondents. 2. The challenge in the present proceedings is to an order dated 10.08.2016, passed by the Respondent Authorities imposing upon the petitioner the penalty of removal from services, on the ground of unauthorized absence in pursuance of a Disciplinary Proceedings initiated against him. The petitioner has also prayed for a direction upon the Respondent Authorities to accept his application for Voluntary Retirement. The materials brought on record reveals that the petitioner, herein, had submitted an application dated 16.04.2016, praying for voluntary retirement from his services due to some unavoidable domestic problem. The competent authority, on considering the application dated 16.04.2016 submitted by the petitioner for permission to proceed on voluntary retirement, proceeded vide order dated 10.05.2016 to defer such decision till 30.06.2016, enabling the petitioner to reconcile his decision. The competent authority in the said order had noticed that the petitioner had a qualifying service of 17 years 9 months 16 days as on the date of submission of his said application. The petitioner was also required to perform his assigned duties, unless he is allowed leave. The petitioner having continued to remain unauthorisedly absent, a Departmental Proceeding being Departmental Proceeding no.4/2016, Page No.# 3/8 came to be instituted against the petitioner. It is seen that the petitioner had participated in the said Departmental Proceeding and the Enquiry Officer on conclusion of the enquiry had submitted his report on 22.07.2016, holding the charge leveled against the petitioner of Unauthorized Absence to be established. Accordingly, the disciplinary authority of the petitioner upon consideration of the materials coming on record vide order dated 10.08.2016, proceeded to impose upon the petitioner, the penalty of removal from service w.e.f. 10.08.2016, for his prolonged unauthorized absence from duty and undisciplined conduct. The period of unauthorized absence of the petitioner was directed to be treated as ‘dies non’. The period of suspension was regularized by holding that the petitioner would be entitled to only the subsistence allowance already drawn. The petitioner being aggrieved by the said order dated 10.08.2016 has instituted the present proceedings only on 23.11.2020 i.e. after lapse of more than 4(four) years without assigning any reason for the delay occasioning in assailing the order dated 10.08.2016. 3. I have heard the learned counsel for the parties and also perused the materials available on record. 4. Admittedly a delay of around 4(four) years has occasioned in assailing the order dated 10.08.2016. The petitioner has not furnished any reason for the delay so occasioning in instituting the present proceedings. The unexplained delay occasioning in approaching this Court would constitute a valid ground for dismissing the present petition, however this Court refrains from dismissing the present petition on the Page No.# 4/8 ground of delay and laches and would examine the issues arising on its merit. 5. The petitioner, in view of his long unauthorized absence was subjected to a disciplinary proceedings. The petitioner has not brought on record the show-cause notice issued to him or the replies filed by him in pursuance thereof. The petitioner has only brought on record the Enquiry Report. Accordingly, from the disclosures made in the Enquiry Report, this Court finds that the petitioner was deputed to BTC, Dergaon, for undergoing Junior NCO’s Cadre Course. It is also found that the petitioner was discharged from the training course thrice on account of unauthorized absence. Accordingly, Departmental Proceeding No.04/2016 came to be instituted against the petitioner by the Commandant, 19th AP(IR) Battallion, Tengakhat. 6. The Enquiry Officer’s report reflects that the petitioner had participated in the departmental enquiry held against him. From the statement of the petitioner, as recorded in the enquiry by the Enquiry Officer, it is reflected that he was deputed for undergoing the Junior NCO’s Cadre Course thrice i.e. along with the 94th, 95th and 96th batch, however he after reporting for the course thrice did not complete the same on account of financial problems as well as on account of domestic problems. The petitioner also projected that he was a patient of “lunancy” and as such could not perform his duties. He further stated that he had left his Battallion on 23.03.2016 without permission. He further stated that he had reported back for duties on 18.07.2016 after receiving medical attention and had produced medical certificate of undergoing treatment w.e.f. 13.06.2016 to 05.07.2016 at Assam Medical College & Hospital, Dibrugarh. Page No.# 5/8 7. The Enquiry Officer on appreciating the evidences coming on record in the enquiry concluded that the petitioner was found to have remained unauthorisely absent for 239 days, but had provided explanation only for around 23 day i.e. w.e.f. 13.06.2016 to 05.07.2016, when he was admitted at the AMCH, Dibrugarh. Accordingly, the Enquiry Officer had also concluded that the petitioner was not issued Arms and Ammunition for executing his duties as he was a habitual drinker. Basing on the said conclusions, the Enquiry Officer held the charges framed against the petitioner to be established. 8. The disciplinary authority basing on the Enquiry Officer’s report, proceeded vide order dated 10.08.2016 to impose the penalty of “Removal from Service” upon the petitioner. Further the period of unauthorized absence of the petitioner was directed to be treated as ‘Dies Non’ (no work no pay). The petitioner was also held to be not entitled to any financial benefit for the period of his suspension, except the subsistence allowance drawn. 9. This Court has perused the Enquiry Officer’s report. The petitioner in the present petition has not contended that he was prejudiced in any manner in the conduct of the disciplinary enquiry held against him. The petitioner has further not disputed the findings recorded by the Enquiry Officer in the Enquiry Report. As such, this Court is not called upon to examine the findings recorded by the Enquiry Officer in the Enquiry Report. 10. The learned counsel for the petitioner has submitted that the petitioner was suffering from mental ailments and accordingly he was not in a position to effectively discharge his duties and to effectively defend the charges framed against him in the departmental proceedings Page No.# 6/8 instituted against him. The said submission of the learned counsel for the petitioner has been noticed only to be rejected , inasmuch as, no materials have been brought on record to substantiate that the petitioner was suffering from mental ailments. In absence of any medical documents being placed on record, the fact that the petitioner was infact suffering from any mental ailment cannot be held to have been established. Accordingly, this Court is of the view that the order dated 10.08.2016 would not warrant an interference basing on an unsubstantiated plea of mental illness. 11. As noticed hereinabove, the petitioner has not assigned any ground for challenging the order dated 10.08.2016. The only plea taken was that the petitioner could not have been imposed with the penalty of removal from service during the pendency of the application submitted by him for proceeding on voluntary retirement. The said plea in the consideration of this Court would not merit acceptance. 12. The petitioner had on 16.04.2016 submitted an application for proceeding on voluntary retirement on the ground of domestic problems. The said application was considered by the authorities and the Commandant 19th AP(IR) Battallion vide order dated 10.05.2016 had noticing the fact that the petitioner did not have the qualifying service for proceedings on voluntary retirement , required the petitioner to reconsider his decision. The order dated 10.05.2016 being relevant is extracted hereinbelow; ORDER Const. 52 Kamal Borah of this unit has submitted a representation on 16.04.2016 praying for voluntary retirement from service due to some un avoidable domestic problem. Perused his service record it is found that he was enlisted as AB Constable w.e.f. 18.01.1996 at Tinsukia D.E.F. As such he has completed 17 years 9 months 16 days as on 16.04.2016 after deducted the disqualifying service period i.e. 2 years Page No.# 7/8 5 months 12 days as per his service record. How ever in accordance with the existing rule, he has given 3 (Three) months time to reconcile his decision. Hence his petition will be taken up for final consideration upto 30.06.2016 only. In the mean time he may intimate the undersigned about his change of mind regarding the same. During the service period he has to perform his duty assigned to him unless he is allowed to leave. It can be granted according to the applicant leave record. Sd/- Illegible Commandant 19th A.P.(IR) Battalion Tangakhat, Dibrugarh, Assam.” 13. In view of the above discussion, this Court is of the considered view that the allegation of having remained unauthorizedly absent stood established against the petitioner and no mitigating factors having been highlighted by the petitioner, such conclusion drawn by the departmental authorities would not mandate interference by this Court. Accordingly, the order dated 10.08.2016 would not mandate any interference. 14. This Court would also observe that the petitioner on the date of submission of his application dated 16.04.2016 had not completed the mandated qualifying service of 20(twenty) years and as such there exists no illegality in the authorities not accepting the prayer of the petitioner to proceed on voluntary retirement. Further, the petitioner having been imposed with the penalty of removal from service vide order dated 10.08.2016, and this Court having upheld the said order, there arises no occasion for consideration of the application of the petitioner for proceeding on voluntary retirement after 10.08.2016. As such, this Court is of the considered view that the prayer of the petitioner for being permitted to proceed on voluntary retirement would also not mandate acceptance by this Court. Page No.# 8/8 15. In view of the discussions made hereinabove, this Court is of the considered view that the present Writ Petition is devoid of any merit and accordingly, the same stands dismissed. However, there would be no order as to cost. JUDGE Comparing Assistant