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Gauhati High Court · body

1995 DIGILAW 105 (GAU)

Henkhosei Vaiphei v. Superintendent of Police

1995-05-30

J.N.SARMA

body1995
The petitioner who was a Constable was subjected to disciplinary proceeding on the following allegations : “STATEMENT OF ALLEGATION Ref : DE No. 10/80 dated 30.7.80 : As reported by Shti Ginzanang Hangshing SI, OC/TLNPS vide his SigNo.315/80 dated 29.7.80 that on29.7.80 while C/No.1012 Henkhosei of Thanlong PS was escorting 2 (two) arrested accd. persons from Thanlon Police Station to CCP for producing before the Court of JMIC/CCP. On the way in between Ainah and Santing the accused persons made good their escape from their custody. “Charge : It has been reported by Shri Ginzanang Hangshing SI, OC/Thanlong F lice Station that ASI Jugindro Singh, C/No.782002 Gogou and C/No.1012 Henkhosei of Thanlong PS were escorting 2 (two) arrested accused persons from Thanlong PS to the Court of JMIC/CCP under handcuff and chain, and on the way in between Ainah and Santing the accused persons made good their escape from their (Police party) custody. Therefore, I, AB Mathur IPS, Superintendent of Police, Manipur South District, Churachandpur charge you ASI Jugindro Singh, C/ No.782002 Gagou and C/No. 1012 Henkhosei for committing a grave misconduct and negligence of duty.” 2. Thereafter, a departmental enquiry was conducted and he was found guilty of the charges levelled against him and the disciplinary authority accepted findings of the Enquiry Officer and following punishment was given to him. “GOVERNMENT OF MANIPUR Office of the Superintendent of Police, Churachandpur District Order by the Superintendent of Police Churachandpur Tuiboung, the 29th December, 1980. No.2/8/RO/SP-S/80 : A departmental enquiry was conducted against C/ No. 1012-Henkhosei Vaiphei by SDPO, Thanlon Sri MB Rai, after the enquiry the delinquent has been found guilty of the charge levelled against him, I agree with the findings of the Enquiry Officer. So, the following punishment is given to the delinquent: (1) He is discharged from the service with immediate effect. (2) Since he remained absent from 31.7.80 till today (29.12.80) he will not get any pay for this period.” 3. There was a representation and that representation was rejected vide Annexure A/6 to the writ application. So, the following punishment is given to the delinquent: (1) He is discharged from the service with immediate effect. (2) Since he remained absent from 31.7.80 till today (29.12.80) he will not get any pay for this period.” 3. There was a representation and that representation was rejected vide Annexure A/6 to the writ application. That is quoted below : “ Subject: Prayer for re-instatement of the service of C/No. 1012 ShriHenkhosei Vaiphei on grounds stated below : No. 13( 1)/102/82/82-H: The undersigned is directed to refer to the representation dated 20.9.82 from Shri Henkhosei Vaiphei, Ex-C/No.1012 of Churachandpur addressed to the Chief Minister, Manipur on the above subject and to say that the representation has been considered carefully by the Government and the same cannot be acceded to.” This is dated 19.6.86 4. Hence, this writ application. 5.1 have heard Sri Ng.Kumar, learned Advocate for the petitioner and learned Govt. Advocate for the State of Manipur. 6. An affidavit-in-opposition has been filed on behalf of the respondents No. 1 and 2 and the statement made in the affidavit-in-opposition in paragraphs, 6, 7, 8,9,10 and 12 are stated to be based on records but the records in support of it has not been produced before this Court though at the time of issuing Rule itself, the authority was asked to produce the record and thereafter a number of opportunities were given to the respondents to produce the records. Ultimately, the learned Govt. Advocate took up the responsibility to produce the record at the time of hearing. That will be revealed from the order sheet dated 4.9.90 wherein it is stated inter alia as follows : “ Mr.Pramod Chandra Singh, learned Govt. Advocate, is ready to produce the records at the time of hearing.” 7. When the matter was called upon for hearing today, the learned Govt. Advocate failed to produce the record. This Court is exercising writ jurisdiction and in the exercise of that jurisdiction, the production of the record is absolutely necessary inasmuch as the Court peruses the record and that is the purpose of writ jurisdiction. But that is what lacking in this instant case. Further, the authority through the enquiry has taken away source of livelihood of a person and it is utmost necessity to satisfy the conscience of the Court that the procedural safeguards available to the delinquent employee have been provided to the employee. But that is what lacking in this instant case. Further, the authority through the enquiry has taken away source of livelihood of a person and it is utmost necessity to satisfy the conscience of the Court that the procedural safeguards available to the delinquent employee have been provided to the employee. That is the fundamental requirement in a disciplinary proceeding. If any authority is required in support of this proposition, one may look at AIR 1987 SC 2386 (Ranjit Thakur vs. Union of India & others) where in paragraph 5 the Supreme Court has pointed out inter alia as follows : “ The procedural safeguards should be commensurate with the sweep of the powers. The wider the power, the greater the need for the restraint in its exercise and correspondingly, more liberal the construction of the procedural safeguards envisaged by the statute. The often quoted words of Frankfurter, J. in Vitarelli vs. Seaton, 359 US 535 are again worth recalling : “......if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed......” This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword.” “the history of liberty' said the same learned Judge “has largely been the history of observance of procedural safeguards.” (1942) 318 US 332.” 8. In the instant case, in paragraph 5, if is stated inter alia as follows : “ Accordingly, a statement of defence was submitted by the petitioner within the said specified time, stating therein, amongst other things that the escape of the accused was from the hands of Jugindro Singh, ASI and not from his hands, thereby denying the allegations levelled against him.” 9. In paragraph 6 of this writ application it is stated inter alia as follows : “ That after submission of the statement of defence, the petitioner was not informed or made known when and where the proposed departmental enquiry was to be conducted. It is not known at all, if a Departmental Enquiry had been held. The petitioner was not given an opportunity or chance to adduce evidence in defence or to cross-examine any witness if any, produced against him. The petitioner has been condemned unheard.” 10. It is not known at all, if a Departmental Enquiry had been held. The petitioner was not given an opportunity or chance to adduce evidence in defence or to cross-examine any witness if any, produced against him. The petitioner has been condemned unheard.” 10. In paragraph 8 of the affidavit-in-opposition, a reply is given to the paragraph 5 quoted above and that is quoted below : “ That, with reference to paragraph 6 of the petition, it is denied that the petitioner was not known at all of the proposed departmental enquiry. All the information were conveyed to the RO in time and the RO was helpless as the petitioner remained absent for all the time. Since the petitioner remained absent from the Headquarter without authority from the day he was placed under suspension i.e. from 31.7.80 till the day of order of penalty made on 29.12.80, the petitioner cannot make such an allegation against any respondent. The petitioner is supposed to remain at the District Headquarter while under suspension.” 11. A bare perusal of the order of suspension will show that the Headquarter of the petitioner will be at Thanlong PS. The petitioner has made the allegation that he was at the Thanlong PS and he was not paid his subsistence allowance. So, the burden lies on the authority to serve the notice of the enquiry on the petitioner. That burden was never discharged by the authority. The notice was only sent to the RO as will be evident from paragraph 8 quoted above. As will be evident from Annexures A/4 and A/7 that he informed the authority when he left the station, and his where about was known to the authority. Even he arrested one escaped person named Samuel Simte on 29.7.80 and handed over him to police. The ASI was reinstated in service and the other Constable died in motor accident, only the petitioner was punished. 12. Even he arrested one escaped person named Samuel Simte on 29.7.80 and handed over him to police. The ASI was reinstated in service and the other Constable died in motor accident, only the petitioner was punished. 12. The point urged by Shri Ng.Kumar, learned Advocate for the petitioner are as follows: (i) For that the petitioner was not given any opportunity of being heard in that departmental enquiry, if any, was conducted in his absence and behind his back and without giving him any chance of presenting his case, and that the petitioner was condemned unheard; (ii) For that the order of discharge/removal without giving the petitioner an opportunity, let alone reasonable opportunity, of being heard, is in gross violation of Article 311 (2) of the Constitution of India. 13. It is very unfortunate that even today also the enquiry report has not been furnished to him. This being the state of position, the order of dismissal of the petitioner dated 29th December, 1980, Annexure A/4 to the writ application shall stand quashed. The petitioner shall be taken back in service immediately with all back wages due to him. This shall be done within a period of one month from the date of receipt of this order. I find charges of misconduct and negligence have not been established. 14. Learned Advocate for the petitioner Mr.Ng.Kumar urges that the punishment meted out to the petitioner is disproportionate inasmuch as he was made scape goat and there was no default on the part of petitioner. One of the accused was re-arrested and handed over to the police. The negligence which was levelled against the petitioner must be negligence of a nature which will justify the dismissal of the employee. The law is settled that the authority is not entitled to impose any and every punishment for the default of the delinquent employee and if that long handle is given, the very security of the employees shall be at jeopardy. It is well settled that punishment must be commensurate with the gravity of offence. If the punishment is harsh and/or disproportionate, the Court can make such a declaration, it is pointed out by the Supreme Court in AIR 1987 SC 2386 (Ranjit Thakur vs. Union of India & others) in paragraph 9 inter alia as follows: “ The point to note and emphasise is that all powers have legal limits. If the punishment is harsh and/or disproportionate, the Court can make such a declaration, it is pointed out by the Supreme Court in AIR 1987 SC 2386 (Ranjit Thakur vs. Union of India & others) in paragraph 9 inter alia as follows: “ The point to note and emphasise is that all powers have legal limits. In the present case the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review.” 15. There is a recent decision regarding disproportionate punishment reported in AIR 1994 SC 215 (Union of India & others vs. Giriraj Sharma) wherein also it has been stated that if the punishment is harsh and disproportionate, the Court can interfere in such a matter by making the necessary declaration. The learned Govt. Advocate for the State of Manipur placed before me a recent decision reported in (1994) 2 SCC 537 (State Bank of India & others vs. SK Endow & others) wherein it has been stated that High Court is not competent to substitute the punishment given by the disciplinary authority .The only thing which it can do is that to remit the matter to the disciplinary authority to pass an appropriate order of punishment in accordance with law. That aspect of the matter need not be considered in the instant case. In the instant case, there is absolutely no materials before me to show that the enquiry was conducted by the authority by following due procedure of law as the record was not produced before me, and as such the disciplinary proceeding must be held to be violative of procedural safeguards and accordingly, I find that this is a case where there was gross violation of the principle of natural justice and accordingly, I quash the order of discharge from service dated 29.12.80 quoted in para 2 of the judgment. 16. The petitioner shall obtain a certified copy of this order and shall produce the same before the authority to do the needful in terms of the order, to take back him in service with all benefits. 17. This disposes of the writ application.