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2005 DIGILAW 279 (GAU)

Lalremmawia v. State of Mizoram

2005-04-01

TINLIANTHANG VAIPHEI

body2005
JUDGMENT T. Vaiphei, J. 1. I have heard Mr. C. Lalramzauva, learned counsel for the petitioner. Also heard Mr. N. Sailo, learned Govt. advocate appearing on behalf of the State respondent. 2. This is an application under Article 226 of the Constitution of India filed by the petitioner challenging the legality of the departmental proceeding held against him and the penalty of removal imposed upon him thereon. The reliefs claimed by him in the writ petition includes reinstatement to his former post with service benefits. 3. The facts and circumstances leading to the filing of this writ petition may be briefly noticed at the outset. The petitioner was appointed on promotion to the post of driver under the Directorate of Transport on 14.9.1981. On 8.7.1995 while he was detailed to go to Vaitin Village from Aizawl to drive the MST Bus bearing Registration No. ZRX-217, the bus driven by him met with an accident at Khumlohzawl near Darlawn Village which caused damage to the said bus and injuries to some of the passengers. As a result of the accident, the petitioner was placed under suspension for holding a disciplinary proceeding against him. Thereafter the petitioner was served with the charge sheet. The articles of charges pertain to allowing an unauthorised person, who was not from the transport department, to drive the vehicle on the date of the accident and of driving the bus under intoxication in violation of Section 185 of M.V. Act, 1988 and Rule 22 of CCS(C) Rules, 1964 and of carrying 8 extra passengers in the bus in violation of the departmental instructions. The petitioner was served with the articles of the charges whereupon he submitted his written statement of defence wherein he admitted to the charges made against him to the extent that his close and near relatives Samuel Lalnuntluanga drove his allotted vehicle as he was suffering from stomach ache and that he had consumed one glass of liquor in order to relieve his pain before giving the charge of the vehicle to the said Samuel Lalnuntluanga at Seling. 4. The departmental inquiry went ahead with Sri Rinzuala Pachuau, Station Superintendent (MST) as the inquiry authority. One officer was also appointed as the presenting officer. 4. The departmental inquiry went ahead with Sri Rinzuala Pachuau, Station Superintendent (MST) as the inquiry authority. One officer was also appointed as the presenting officer. After completing the inquiry, the inquiry officer submitted his report to the respondent No. 3, a copy whereof was also furnished to the petitioner requiring him to submit his representation against the inquiry report within 15 days of the receipt of the letter. The petitioner by his letter dated 16.10.1995 submitted his representation, according to him, by denying all the findings made against him by the inquiry officer. The respondent No. 3 thereafter passed the impugned order awarding a penalty of removal from service against the petitioner with immediate effect. On receipt of the impugned order, the petitioner submitted an application to the respondent No. 3 for his reinstatement to his former post. Since the respondent No. 3 was not the appellate authority, the petitioner preferred an appeal to the Chief Secretary, Govt. of Mizoram challenging the impugned order. 5. At this stage, it may be noticed that in connection with the same accident, a criminal case was registered against the petitioner and the other person, i.e., Samuel Lalnuntluanga under Section 279/337 IPC read with 182/184 M.V. Act. The said criminal case ended in the conviction of said Samuel Lahiuntluanga while exonerating the petitioner from the charges level against him vide order dated 25.6.1997. In the meantime, the appeal of the petitioner was also dismissed by the appellate authority vide order dated 20.7.1998. It would appear that the petitioner again made a representation before the Minister of Transport, Mizoram and the same did not yield any positive response. It is the contention of the petitioner that the departmental proceeding against him suffers from numerous infirmities such as non-recording of the statement of 10 witnesses mentioned in the memorandum of charges, denial of an opportunity to engage a defence assistant, the omission to take into account the admission made by him to the charges in the proper perspective, denial of an opportunity to cross-examine the witness produced by the department. Thus, according to the petitioner, the departmental proceeding against him is illegal and the order of removal passed on the basis of such illegal proceeding cannot be sustained in law. Thus, according to the petitioner, the departmental proceeding against him is illegal and the order of removal passed on the basis of such illegal proceeding cannot be sustained in law. It is, therefore, prayed by the petitioner that the impugned order of removal be set aside and direction be passed by this court for his reinstatement to his former post with all consequential service benefits. 6. The State respondent contested the writ petition by filing their affidavit-in-opposition wherein it is, inter alia, denied that the petitioner ever discharged his function and duties with sincerity and devotion. It is asserted by the State-respondents that the petitioner had been detained in police custody under Lunglei Police Station in the year 1986 and was convicted on proof of drunken driving which resulted in suspending his driving licence for 3(three) months. The petitioner was placed under suspension in connection with this accident with effect from 11.8.1986. According to the State-respondent, the petitioner having admitted that he allowed an unauthorised person to drive his allotted bus which is against the departmental instructions, nothing remain to be established against him except to take it to the logical conclusion, i.e., to impose a penalty of removal as was done in this case. Moreover according to the State-respondents, the statement made by the petitioner to the effect that he took liquor in order to relieve his abdominal pain is a lame excuse when medicines were available in the course of the same. It is the further case of the State-respondent that all opportunities were given to the petitioner to defend himself and that no procedural laws have been violated in the conduct of the departmental proceeding, these are the sum and substance of the case of the State-respondent. 7. On examination of the pleadings of the both the parties, the question for determination in this writ petition is whether the petitioner has admitted to the charges levelled against him and, if so, whether such admission is sufficient to justify the finding of guilt against him and to impose a penalty of removal from service. It is vehemently submitted by the learned counsel for the petitioner that a close reading of the so-called admission made by the petitioner would reveal that the same can not be regarded as an admission of guilt to the charge level against him. It is vehemently submitted by the learned counsel for the petitioner that a close reading of the so-called admission made by the petitioner would reveal that the same can not be regarded as an admission of guilt to the charge level against him. According to the learned counsel for the petitioner, the admission at the most pertains to an explanation of the event and the circumstances justifying the taking of liquor and of the compulsion to entrust his relative to the vehicle. It is further submitted by the learned counsel of the petitioner that the statement made by the petitioner which is claimed by the State-respondents to be an admission of guilt can not be read in isolation but must be read in the context in which it was made. So read, according to the learned counsel for the petitioner, the so-called admissions are not admission of guilt at all but a legal justification compelling him to take liquor, that too, not at the time of driving the vehicle. Strong reliance is placed by him upon the following decisions in support of his various contentions : - C.L. Subramaniam v. The Collector of Custom, Cochin, reported in 1973 (2) SLR 415, Ram Kanwar Deswal v. Union of India and Anr., reported in (1997) 3 GLT 287, Bhagat Ram v. State of Himachal Pradesh and Ors., reported in (1983) IILLJ 1 SC, State of Uttar Pradesh v.Mohd. Sharif, reported in (1982) IILLJ 180 SC, S.C. Girotra v. United Commercial Bank and Ors., reported in, and Abujam Arauba Singh v. State of Manipur and ors., reported in 2000 (1) GLT 227. 8. Per contra, it is strenuously urged by Mr. N. Sailo, learned Govt. advocate that the submission of the learned counsel for the petitioner projecting that the statement of the petitioner is not an admission sounds like a legalistic hair splitting. It is contended by the learned counsel for the respondent that having admitted that he was taking liquor and that he handed over the driving of the vehicle to a third person constitute adequate ground for reaching a finding of guilt against the petitioner. He further submits that considering the past antecedents of the petitioner and the nature cause of accident in the instant case which resulted in injuries to several persons, the government was more than lenient in imposing a penalty of removal and not of dismissal. He further submits that considering the past antecedents of the petitioner and the nature cause of accident in the instant case which resulted in injuries to several persons, the government was more than lenient in imposing a penalty of removal and not of dismissal. It is thus contended by the learned counsel for the State that there is no illegality or perversity in the findings of the inquiry officer against the petitioner warranting the interference of this court. 9. In order to appreciate the controversy, it will be appropriate at this stage to refer to and re-produce herein below the statement of articles of charges framed against the petitioner (Annx-3 to the writ petition) :-- "Statement of articles of charge framed against Pu Lalremmawia, Driver under. Article-I : That the said Pu Lalremmawia-I, while functioning as Driver of MST Bus No. ZRX-217 on 8.7.1995 had allowed an unauthorised person also is also not an employee of Transport Deptt. To drive his allotted vehicle further resulting in accident of the expensive Govt. vehicle. Article-II : That the said Pu Lalremmawia-I, Driver had taken intoxicated drinks while on duty and while driving passenger bus in violation to Section 185 of MV Act, 1988 and Rule 22 of CCS(C) Rules, 1964. Article-III : That the said Pu Lalremmawia-I, while functioning as Driver of MST Bus No. ZRX-217 in aforesaid period had carried 8(eight) extra passengers in his Bus in violation to this Deptt. Instruction No. A 22031/l/82-DTE(MST)/V-I dated 23.4.1993. By the above acts, Pu Lalremmawia-I, Driver acted in a manner unbecoming of a Govt. servant and failed to maintain devotion to duty thereby violating the provisions of Rules 3.1 (ii) (iii) of the CCS(C) Rules, 1964." 10. The statement of the aforesaid articles of the charges were answered by the petitioner in his written statement of defence dated 28.7.1995 (Annex-4), the English translation whereof shows that the petitioner actually admitted the charge against him that he had taken liquor and that he had entrusted Samuel Lalnuntluanga to drive the bus, which the latter obliged. He also in his written statement of defence requested the respondent No. 3 to forgive him for his wrong doing. However, the petitioner also gave the reason for taking the liquor and for entrusting an unauthorised person to drive the vehicle. He also in his written statement of defence requested the respondent No. 3 to forgive him for his wrong doing. However, the petitioner also gave the reason for taking the liquor and for entrusting an unauthorised person to drive the vehicle. The reason for taking the liquor, according to the petitioner, is that he had a stomach ache which became very serious thereby making him very weak which compelled him to take the liquor as pain relief. According to the petitioner, it was also due to the stomach pain that he had entrusted the said Samuel Lalnuntluanga to drive the vehicle. In spite of this admission, the departmental inquiry against the petitioner was proceeded with and after the inquiry report was submitted by the inquiry officer, the petitioner was given a copy of the inquiry report informing him of his right to make representation against the findings in the inquiry report. The petitioner duly made his representation against the inquiry report, which is at Annex-8A to the writ petition and the same is produced herein : "I am in receipt of your letter No. C.14016/37/86-DTE(MST) dated 16.10.1995 and inquiry report dated 12.10.1995 and I thank you for allowing me to submit representation. I beg you to kindly consider my explanation and this application most favourably. 1. As I have already mentioned in my letter date 28.7.1995, I was suffering from severe stomach ache and I was not in a position to drive the bus No. ZRX-217 and as I do not want to disrupt the passengers by stopping in between the journey. I had authorised him to drive the same. Prior to this, I had never allow this unauthorised person to drive the Bus. However, while I was driving a Truck, he used to start or used to move a few feet or so and apart from that, he never drive so as to create problems/danger. The date, i.e., 5.7.1995 written on the out patient Card is not overwriting but it is a correction made by the concerned Doctor. However, I do not remember the name of the Doctor as he has not written his full name and that I do not ask his name. Hence I do not remember the name of the concerned Doctor. The date, i.e., 5.7.1995 written on the out patient Card is not overwriting but it is a correction made by the concerned Doctor. However, I do not remember the name of the Doctor as he has not written his full name and that I do not ask his name. Hence I do not remember the name of the concerned Doctor. The I/O had the knowledge that the brakes of the Bus which was allotted to me was not in a proper condition and that I had submitted a complaint. However, as the need has arisen, I was detailed to go on a journey. I also want to inform you that I do not long to drive a Bus which is not in a good condition. 2. I do not deny that I had consumed 1 glass of country made liquor at Khawruhlian so as to ease my stomach ache which I was suffering as already stated in my letter date 28.7.1997. As I had already mentioned, the reason why I was drinking liquor was not to get drunk but to ease my pain and that 1 glass of liquor is not sufficient to get drunk and as such, I was not drunk. After I had consumed the liquor from Khawruhlian Village. I did not drive the vehicle at all. As such, I deny the charge made against under Article III which states that I was driving the passenger bus under the influence of liquor. 3. As I had already stated in my previous statement, I do not know how many passengers has boarded the bus or how many extra passengers were there as it is the duty of the Conductor to check the same. I, therefore, asked your mercy once again, I know that as the bus which was under my undertaking had met with an accident, I must have contributed the reasons for the said accident and, I, therefore, earnestly prayed for your forgiveness for all the wrongs I have committed and to consider this application most favourably." 11. A perusal of the said representation clearly shows that the petitioner did not dispute the findings made against him by the inquiry officer in relation to the taking of liquor, i.e., 1(one) glass of liquor. But he denies that he was driving the passenger bus under the influence of liquor. A perusal of the said representation clearly shows that the petitioner did not dispute the findings made against him by the inquiry officer in relation to the taking of liquor, i.e., 1(one) glass of liquor. But he denies that he was driving the passenger bus under the influence of liquor. He also stated therein that he might have been responsible for the accident. He also prayed to the respondent No. 3 to forgive him for all the wrongs done by him. In the face of there facts and circumstances, the question to be determined is whether the State-respondents are legally justified in holding the petitioner guilty of the charges made against him and in imposing the penalty of removal upon the petitioner. The law is now almost settled that in a departmental inquiry, the admission made by a delinquent officer has probative value and that once the charges level against him are admitted by him, the charges against him stand already proved. In such circumstances, the examination of witnesses is also obviated. Rules of natural justice are not embodied rules. The question whether in a given case the principle have been violated or not has to be found out on consideration as to whether the procedure adopted by the inquiry officer in accordance with law or not and further whether the delinquent knew what charges he was going to be met. In other words, what is required to be examined is whether the charged employee knew the nature of accusation, whether he has been given an opportunity to state his case and whether disciplinary authority concerned acted in good faith. If these requirements arc satisfied, then it can be said that the principle of natural justice has been violated (see U.P. SRTC and Ors. v. Ram Charndra Yadav reported in (2000) 9 SCC 327 ). In the instant case, it is not the case of the petitioner that he did not know the nature of requisition made against him or that he has been denied of an opportunity to set up his case or that the disciplinary authority has not acted bona fide. One cannot overlook the facts that the petitioner repeatedly admitted the charges level against him, i.e., at the stage of submitting this written statement of defence and at the stage of making his representation against the findings recorded by inquiry officer. 12. One cannot overlook the facts that the petitioner repeatedly admitted the charges level against him, i.e., at the stage of submitting this written statement of defence and at the stage of making his representation against the findings recorded by inquiry officer. 12. On the facts and circumstances of this case, the other infirmities such as non-examination of 10 witnesses or the denial of defence assistant etc. for which grievance has been made on behalf of the petitioner, have paled into irrelevancy. When the petitioner himself admitted the charges level against him, what more materials can be needed or what more procedures need to be observed in the departmental inquiry? The concept of natural justice is flexible rule and should not be observed like a ritual irrespective of the facts and circumstances of the case. In that view of the matter, there is no violation of principles of natural justice by the disciplinary authority in the departmental inquiry conducted against the petitioner. Under the circumstances, I do not find any infirmity in the procedure adopted by the inquiry or by the disciplinary authority in recording the finding of guilt against the petitioner. 13. The next question to be determined is whether the penalty of removal imposed upon the petitioner is liable to be interfered with by this court. The Apex Court in the case of Union of India v. Parma Nanda (1989) IILLJ 57 SC held that the jurisdiction of the High Court to interfere with disciplinary matters and punishment cannot be equated with appellate jurisdiction. The High Court cannot interfere with the findings of the inquiry officer or the competent authority where they are not arbitrary or utterly perverse. The Apex Court held, thus, It is appropriate reminder that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of Legislature or rules made under the proviso to Article 309 of the Constitution. If there has been any inquiry consistent with the rules and in accordance of principle of natural justice, what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority." 14. If there has been any inquiry consistent with the rules and in accordance of principle of natural justice, what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority." 14. In Union of India v. G. Ganayutham, reported in (2000) IILLJ 648 SC, the Apex Court has held that the principle of proportionality can be invoked regarding punishment only in a case the punishment was totally irrational in the sense that it was in outrageous defiance of logic or moral standard. In the instant case, the unmitigating factor weighing against the petitioner is that because of his act of omission or commission, an expensive government vehicle was completely damaged and a number of passengers got injured, some of them quite serious, due to the accident. Whatever may be the case, the negligence of the petitioner in discharging his duties loomed large. In that view of the matter, it is my considered view that the punishment of removal imposed upon the petitioner can not be said to be irrational or disproportionate to the misconduct proved against him. To show leniency to an irresponsible and negligent-driver like the petitioner will be highly unwarranted and will send the wrong signal to other drivers, Mizoram has more than its share of vehicle accidents due to drunken driving. Viewed in that scenario, no interference is called for in the impugned order of removal. 15. The result of the foregoing discussion is that this writ petition is devoid of merit and is hereby dismissed. However, the parties are directed to bear their own cost. Petition dismissed.