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Gauhati High Court · body

2001 DIGILAW 13 (GAU)

Rithu Zeliang v. State of Nagaland

2001-01-19

B.LAMARE

body2001
Heard Mr. CT Jamir learned counsel for the petitioner as well as Mrs. Long Kumer, learned Govt Advocate on behalf of the respondents. 2. The case in brief is that the petitioner was a Havildar in the 'E' Coy, 2nd NAP Battalion, Mokokchung. On 9. H .90 the petitioner went to Mariani in Assam in his motor cycle, but incidentally he met with an accident and hit one boy named Basanta Kumar Chetri and the boy succumbed to his injury on 9.11.90. The mother of the boy lodged an FIR with the police at Mariani Police Station and a case was registered against the petitioner being GR Case No. 1503/90 in the Court of Chief Judicial Magistrate, Jorhat. 3. During the pendency of the said criminal case the petitioner was placed under suspension by an order dated 16.11.90 vide Annexure A to this writ petition with effect from 9.11.90. The case thereafter was tried against the petitioner and by judgment dated 27.2.92 the petitioner was convicted under section 2797 304A IPC. Against the said judgment the petitioner preferred appeal before the learned Sessions Judge, Jorhat and the same was registered as Criminal Appeal No. 12 of 1992. The learned Sessions Judge, Jorhat by order dated 30.6.92 affirmed the conviction passed by the trial Court with some modifications of the sentence. Thereafter against the said judgment of the learned Sessions Judge, the petitioner preferred a criminal revision before this Court being numbered as Criminal Revision No. 356 of 1992. 4. When the said criminal revision was pending the petitioner approached this Court by way of filing a writ petition being Civil Rule No. 79 (K)/95 challenging the order of suspension dated 16.11.90 issued against the petitioner. This Court by order dated 4.7.95 while dismissing the writ petition has observed as follows: "I have considered the submission learned counsel for the petitioner. If at this stage, the suspension order is revoked, it would cause irreparable hardship to the State in the event the conviction passed by both Courts below is uphold by this Court. On the other hand, if petitioner succeeded in his appeal, he would get all the benefits from the date he has been placed under suspension. Therefore, petitioner would not be prejudice in any way." 5. The said Criminal Revision No. 356 of 1992 was disposed of by this Court by judgment dated 3.2.1998. On the other hand, if petitioner succeeded in his appeal, he would get all the benefits from the date he has been placed under suspension. Therefore, petitioner would not be prejudice in any way." 5. The said Criminal Revision No. 356 of 1992 was disposed of by this Court by judgment dated 3.2.1998. In the said judgment, this Court has passed the following order: "As a result of the above discussion applicants convictions on both counts is maintained. Punishment of fine of Rs. 200/- on each count too is maintained. However, instead of punishment of 3 months imprisonment awarded to the applicant on each count (under section 279 BPC and under section 304 A IPC) is substituted by award of Rs 2,5007- by way of compensation on each of the two counts which shall be payable by the applicant to the surviving family members of the deceased boy (Basanta Kumar Chetri) who was killed in the accident In case the said sum of Rs. 5,000/- is deposited by the applicant in the Court of Chief Judicial Magistrate, Jorhat, within 6 weeks from now he need not surrender to the police for serving out the sentence and in that case the bail bonds shall stand discharged. In case, however, the amount of compensation is not deposited by the applicant within the time given above then he shall be taken into custody to serve out the remaining sentence. In, the first eventuality period of imprisonment undergone by the applicant will not be treated as imprisonment suffered as a result of the award of punishment by the Courts below. Instead it shall count as imprisonment suffered during trial. It necessarily therefore follows that imprisonment suffered by the applicant hereto before, if he deposits the amount of compensation as directed above within time, would not also affect his service prospects." 6. In compliance with the said order of his Court in Criminal Revision No. 356 of 1992, the petitioner has deposited the said sum of Rs 5,000 (Rupees five thousand) only in the Court of Chief Judicial Magistrate, Jorhat on 18.2,1998 as per receipt at Annexure D to this petition. In compliance with the said order of his Court in Criminal Revision No. 356 of 1992, the petitioner has deposited the said sum of Rs 5,000 (Rupees five thousand) only in the Court of Chief Judicial Magistrate, Jorhat on 18.2,1998 as per receipt at Annexure D to this petition. The petitioner thereafter submitted a representation dated 20.2.98 to the respondent No 3 highlighting all the develop­ment of the case including the orders passed by the Courts including this Court and prayed for his reinstatement into service with all the consequential benefits from the date of his suspension and then the period of suspension be treated as on duty. A copy of the said representation was also submitted to the respondent No 2. The respondent No 3 thereafter by order dated 14.3.98 (Annexure F) has reinstated the petitioner into service with effect from 7.3.98. However, in the said order it is mentioned that "the period of suspension is treated as such." 7. Being aggrieved by the said order dated 14.3.98, Annexure F to this petition, the petitioner has filed the instant writ petition praying inter alia for giving him all the consequential service benefits and to treat his period of suspension as on duty. 8. The petitioner further contends that there was no disciplinary proceedings against him and as such action cannot be taken against him without drawing any disciplinary proceedings against him or without giving him an a proximity of being heard before inflicting any punishment on him. The petitioner also further contends that if any punishment to be imposed on him, an opportunity should be given to the petitioner to defend himself and as such the impugned order was passed against the petitioner without affording any opportunity of being heard and a therefore it is violative of principles of natural justice. 9. The respondents have filed affidavit-in-opposition. The main contention of the respondents is that the petitioner has not been acquitted by the Court in the said criminal case against him and that the respondents shall suffer a loss since the petitioner was out of service for more than 7 years. The respondents further contends that the petitioner being a Havildar and belonging to the disciplined force, his action is contrary to the rules governing his service and as such he is liable to the departmental punishment. The respondents further contends that the petitioner being a Havildar and belonging to the disciplined force, his action is contrary to the rules governing his service and as such he is liable to the departmental punishment. The respondents, however, in the affidavit-in-opposition have not denied the allegation made in paragraph 19 of the writ petition, wherein the writ petitioner has challenged that the punishment cannot be imposed on him without drawing any disciplinary proceedings or enquiry or without giving mm an opportunity of being heard. 10. Upon hearing learned counsel of the parties and on perusal of records placed before me, it is pertinent to note that this Court by order dated 4.7.95 as quoted above has already indicated that if the petitioner succeeds in his appeal, he will get all the benefits from the date he has been placed under suspension. Therefore the petitioner wilt not be prejudiced in any way. This order was passed keeping in mind the punishment that may be imposed in the Criminal Revision No. 356 of 1992 which was pending before this Court and to which this Court has referred to an appeal in the instant order. By the order of this Court in Civil Rule No 79 (K)/95 it was held that "if petitioner succeeds in his appeal, he would get all the benefits from the date he has been placed under suspension. Therefore the petitioner would be prejudiced in any way." Again this Court in the judgment dated J.2.98 in Criminal Revision No 356 of 1992 (2 (K)/94) has treated the period of imprisonment of 2 months to the petitioner not as an award of punishment by the trial Court and this Court has further observed that if the petitioner deposits the amount of compensation as directed within time, his service prospect will not be affected. This order of the Court also shows that the petitioner's service shall not be affected in any way, and that impliedly he is entitled to all the service benefits as per the rules prescribed by the relevant service rule during the period he was under suspension. 11. This order of the Court also shows that the petitioner's service shall not be affected in any way, and that impliedly he is entitled to all the service benefits as per the rules prescribed by the relevant service rule during the period he was under suspension. 11. In view of the above discussions, it is held that: (a) the petitioner is entitled to all the service benefit in accordance with the rules prescribed in this regard for the period he was under suspension and that the order of the criminal Court will not affect his service prospects; (b) the punishment imposed on the petitioner is not sustainable in view of the fact that there was no disciplinary proceedings drawn against the petitioner nor he was given any opportunity of being heard or explain his defence before such punishment could be imposed on him. (c) the impugned order dated 14.3.98, Annexure F to this petition in so far as the portion relating to "the period of suspension is treated as such" is set aside and quashed and the respondents are directed to grant all the service benefits to the writ petitioner as early as possible preferably within a period of 3 months from the date of receipt of this order. With the above directions, this writ petition is disposed of.