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2006 DIGILAW 221 (GAU)

Mecken Sing N. Marak v. State of Meghalaya

2006-03-07

B.SUDERSHAN REDDY, BROJENDRA PRASAD KATAKEY

body2006
Judgment : Judgment challenged vide dated: 09.05.2008 B.P. Katakey, J. 1. The Appellant/writ Petitioner who joined the service as Constable in the police department in the year 1967 and subsequently promoted as Sub-Inspector in armed branch of 2nd Meghalaya Police Battalion at Goeragre was directed by the Commandant of the battalion on 5.5.95 to proceed to shillong to disburse the pay for the month of April, 1995 to the battalion personnel in Shillong acompanied by BNC Clyforth Sangma. On completion of his allotted duties at Shillong he boarded a night super bus under Meghalaya Road Transport Corporation bound for Tura on 7.5.95 and during the course of his journey at the insistence of a co-passenger he took some sweet offered by the said co-passenger and became intoxicated and felt sleepy. Later on arriving Auguri, he on being recovered from dizziness found that his service revolver with six rounds of loaded ammunition and the unpaid amount of Rs. 17,314/- were missing from his possession and also found that the said co-passenger was not in the seat. On reaching his destination at Tura in the morning of 8.5.2005 he informed the Commandant of the battalion about the incident, on the basis of which Tura Police Station case No. 61/(5)95 under Section 328/379 IPC was registered. During the course of investigation the Appellant's blood, urine and sputum samples were taken and sent to Forensic Science Laboratory, Assam for analysing the same, which found positive test for "Chlorpromazine", a tranquilizer drug which can cause unconsciousness. 2. A proceeding being Deparmental Proceeding No. 10/95 was initiated by the disciplinary authority by issuing the charge sheet dated 30.5.95 under Rule 66 of Assam Police Manual Part-III as adopted by the Govt. of Meghalaya, asking the Appellant to show cause as to why disciplinary action should not be taken against him for the misconduct committed by him in disobeying the instructions and discharging his duty in a careless and negligent manner, rendering himself unfit to be retained in the police force, on the allegation that he came from Shillong after disbursement of the pay etc. in a night super bus in civil dress carrying arms and ammunition and with undisbursed money amounting to Rs. in a night super bus in civil dress carrying arms and ammunition and with undisbursed money amounting to Rs. 17,314/-, instead of traveling in the departmental vehicle allotted for that purpose, allowing battalion constable Clyforth Sangma to visit his home at Rajasimla without permission or knowledge of the authority and for the loss of the service revolver with ammunition and the said money. Thereafter a regular proceeding was conducted by the disciplinary authority by appointing an inquiry officer, on being not satisfied with the show cause reply submitted by him. The inquiry officer submitted the report with the finding that the charges have been proved. The disciplinary authority upon consideration of the representation made by the Appellant against the finding recorded by the inquiry officer as well as the proceeding of the inquiry including its report inflicted punishment of removal from service vide order dated 1.1.96 by treating the period of suspension as on duty. An appeal as provided under the Assam Police Manual was preferred by the Appellant before Deputy Inspector General of police narrating the entire facts and also against the quantum of punishment being not commensurate to the proven misconduct. The said appeal was rejected by the Inspector General of Police vide order dated 13.5.96. The writ petition being Civil Rule No. 4048 of 1996 was filed by the Appellant challenging the said order of removal as well as the order passed by the Appellant authority rejecting the appeal, which was dismissed by the learned Single Judge vide judgment and order dated 11.4.2002 and hence the present appeal. 3. We have heard Mr. A.K. Bhattacharyya, learned Sr. Counsel for the Appellant and Mrs. B. Dutta, learned Sr. Government advocate, Meghalaya appearing on behalf of the Respondents. 4. Challenging the order of removal from service, the order dismissing the departmental appeal as well as the judgment passed by the learned Single Judge, Mr. Bhattacharyya, learned Sr. Counsel for the Appellant has submitted that the proceeding initiated against the Appellant suffers from procedural irregularities in as much as the copy of the preliminary inquiry report which has been relied upon by the disciplinary authority in awarding the punishment, has not been furnished and also he has not been furnished with the list of documents as well as the list of witnesses along with the charge sheet. It has further been contended by the learned Sr. It has further been contended by the learned Sr. Counsel that the Appellant was not informed about his right to take defence assistance in the proceeding. According to the learned Sr. Counsel Appellant being the Sub Inspector of police did not know about his right to be represented by a co-employee of his choice and by not informing of his right to take such defence assistance he has been denied the reasonable opportunity to defend himself in the inquiry, effectively. Mr. Bhattacharyya, learned Sr. Counsel therefore submits that as the departmental proceeding initiated against the Appellant suffers from such procedural irregularities, the order of removal from service and also the appellate order are bad in law. 5. It has further been contended by the learned Sr. Counsel that the appellate authority in view of the provision contained in Rule 66(VI) of the Assam Police Manual, is duty bound to consider whether the penalty is excessive, adequate or inadequate, apart from considering whether the facts on which the order was passed have been established and whether the facts established afford sufficient grounds for taking action. In the instant case according to Mr. Bhattacharyya it was specifically pleaded in the appeal memo filed before the departmental appellate authority that in view of the circumstances under which the Appellant had to travel by bus and the service revolver with ammunition and undisbursed money were lost, punishment of removal from service is highly excessive and does not commensurate with the proven misconduct, which aspect of the matter has not been considered at all by the appellate authority as well as by the disciplinary authority. 6. Mr. Bhattacharyya has also submitted that taking into account the entire facts more particularly the fact that the Appellant never denied loss of service revolver with ammunition and money and also the explanation given by him that he was drugged by a co-passenger, the misconduct alleged and proved against him is not that serious which warrants removal from service moreso when it was proved upon forensic examination that the Appellant was found to have "Chlorpromazine", a tranquilizer drug which can cause unconsciousness in his blood. Mr. Mr. Bhattacharyya, further submits that it is a fit case where with a view to shorten the litigation and keeping in view that the proceeding against the Appellant was initiated as back as in the year 1995, this Court in stead of remitting the matter to the disciplinary authority or the appellate authority to impose punishment commensurate with the gravity of the misconduct proved may impose appropriate punishment. 7. Mr. Bhattacharyya in support of his contention that the copy of the preliminary inquiry report has to be furnished, when that is relied upon by the disciplinary authority in passing the order of punishment, as well as in support of the. contention that the Appellant has a right to be informed about his right to take assistance of a government servant or a friend in the proceeding, has relied upon the decision of the Apex Court in Krishna Chandra Tandon v. The Union of India reported in AIR 1974 SC 1589 , Bhagat Ram v. State of Himachal Pradesh and Ors. reported in AIR 1983 SC 454 ; State of U.P. v. Shatrughan Lal and Anr. reported in 1998 (6) SCC 651 . Mr. Bhattacharyya has further placed reliance on the decision of the Apex Court in Colour-Chem Ltd. v. A.L. Alaspurkar and Ors., 1998 (3) SCC 192 as well as in U.P. State Road Transport Corporation and Ors. v. Mahesh Kumar Mishra and Ors. reported in 2000 (3) SCC 450 on the point of proportionality of punishment. 8. Mrs. B. Dutta, learned Sr. Govt. Advocate Meghalaya, supporting the order of removal from service, order rejecting departmental appeal and the judgment passed by the learned Single Judge has submitted that the Appellant never at any point of time asked for a copy of the preliminary report though he was made known about the existence of the same vide communication dated 30.5.95 issued by the commandant informing the Appellant about its decision to draw up the disciplinary proceeding on the basis of such preliminary inquiry report. Mrs. Dutta, has further contended that the Appellant never at any point of time asked either the disciplinary authority or the inquiry authority to give any defence assistance. Therefore, according to the learned State counsel it cannot be said that there was procedural irregularities in conducting the inquiry against the Appellant. Mrs. Dutta, has further contended that the Appellant never at any point of time asked either the disciplinary authority or the inquiry authority to give any defence assistance. Therefore, according to the learned State counsel it cannot be said that there was procedural irregularities in conducting the inquiry against the Appellant. In any case, according to the learned State counsel, the Appellant has admitted the occurrence and his guilt by filing the show cause reply, which is also apparent from the stand taken by him in the proceeding, therefore, no prejudice has been caused to the Appellant in not furnishing such report and in not informing him to take defence assistance, even if copy of such preliminary inquiry report is required to be furnished and the Appellant was required to be informed of his right to take defence assistance. Countering the argument relating to the proportionality of the punishment, learned State counsel has submitted that the Appellant being a member of the disciplined force is required to be vigilant and his action in disobeying the orders of the superior cannot be viewed as a non-serious one. According to Mrs. Dutta, order of removal is the adequate punishment awarded by the disciplinary authority which commensurates the proven misconduct. Therefore, it has been submitted by the learned State counsel that the learned single Judge has rightly dismissed the writ petition filed by the Appellant. Mrs. Dutta in support of her contention has placed reliance on the decision of the Apex Court in Regional Manager, U.P. SRTC, Etawah and Ors. reported in 2003 (3) SCC 605 , Canara Bank v. V.K. Awasthy reported in 2005 (6) SCC 321 and B.C. Chaturvedi v. Union of India and Ors. reported in 1995 (6) SCC 749 . 9. The Appellant in reply to the charge sheet had admitted that on 7.5.95 he travelled by the night super bus from Shillong to Tura with his service revolver loaded with live ammunitions and the undisbursed money, even though he was instructed to come by the official vehicle. An explanation has been given for not using the allotted vehicle to the effect that the vehicle was detained at Shillong by the department and no other departmental vehicle was made available to him to come back from Shillong. Regarding allowing the Constable clyforth Sangma to go to his residence without permission from the competent authority, the Appellant denied the same. Regarding allowing the Constable clyforth Sangma to go to his residence without permission from the competent authority, the Appellant denied the same. An explanation has also been given about the loss of arm and ammunition and money by contending that he was administered drug by a co-passenger by insisting to take some sweets. It is evident from the record that the Appellant on arriving Tura on 8.5.95 immediately informed the Commandant about the said incident and explained the circumstances under which he lost his service revolver with ammunition and the money, where upon a FIR was registered. The version of the Appellant that he was administered drug also finds support from the examination of the blood conducted by the Forensic Science Laboratory, who found the presence of "Chlorpromazine", a tranquilizer drug which can cause unconsciousness. The inquiry officer in his report has recorded the finding that the Appellant was returning to the battalion Headquarter from Shillong in the night bus alone on the night of 7.5.95 and has lost his service revolver with ammunition and the money. The version of the Appellant has not been disbelieved by the inquiry officer, however, the inquiry officer has rightly found the Appellant guilty of the charges levelled against him. 10. It is not the case the of the Appellant that he asked for a copy of the preliminary inquiry report and also asked for the assistance of a co-employee or a friend in the disciplinary proceeding, but in spite of that the copy of the preliminary enquiry report as well as the defence assistance was not given. The Appellant was made known about the existence of the such preliminary inquiry report by order dated 30.5.95 whereby the Commandant has intimated the Appellant about his decision to draw a disciplinary proceeding on the basis of such report. The Appellant admitted his guilt by filing the show cause reply and also during the course of the proceeding. The Appellant was made known about the existence of the such preliminary inquiry report by order dated 30.5.95 whereby the Commandant has intimated the Appellant about his decision to draw a disciplinary proceeding on the basis of such report. The Appellant admitted his guilt by filing the show cause reply and also during the course of the proceeding. The non furnishing of such preliminary report, even if relied upon by the disciplinary authority while imposing the punishment as well as not informing him about his right to be represented by a co-employee or a friend in the disciplinary proceeding, even if the Appellant is required to be informed, do not cause any prejudice to the Appellant, which is evident from his stand in the show cause reply as well as in the departmental proceeding and also even in the departmental appeal filed by him. Moreover, the Appellant has not taken up those pleas in the appeal filed before the departmental appellate authority and such pleas have been taken by the Appellant only for the purpose of filing the writ petition. 11. In State of Punjab v. Bhagat Ram (supra) the Apex Court while dealing with the question whether non supply of the copies of the statement of the witnesses examined during the investigation and produced at the inquiry in support of the charges levelled against the government servant, would amount to denial of opportunity and consequently will vitiate the order of punishment, has held that when the statements made by the witnesses during investigation are produced in a departmental proceeding in support of the charges levelled against the government officer, non supply of the copies of such statements would amount to denial of reasonable opportunity to the officer concerned to defend himself. In State of U.P. v. Shatrughan (supra) the Apex Court has held that the opportunity of hearing required to be given to a charged officer has to be an effective opportunity, not a mere pretence and such officer on a request made by him in that behalf must be supplied with the copies of statements of witnesses recorded during the preliminary enquiry particularly if those witnesses are proposed to be examined at the departmental trial, otherwise it would amount to denial of an effective opportunity of hearing, unless of course it is shown and established that non supply of copies of those documents had not caused any prejudice to the delinquent in his defence. 12. The ratio laid down by the Apex Court in Bhagat Ram as well as Shatrughan case is not applicable in the facts and circumstances of the instant case as the Appellant in spite of the knowledge about the existence of the preliminary inquiry report did not ask for any copy and no prejudice has been caused to the Appellant for non supply of such copy even if such copy was required to be furnished, as the Appellant has admitted the occurrence. 13. The Apex Court in Bhagat Ram v. State of Himachal Pradesh (supra) while dealing with a disciplinary proceeding initiated against a Class-IV employee wherein the disciplinary authority was represented by a presenting officer and a co-delinquent was represented by an officer of his choice, has held that, keeping in view the position of the Appellant in the said appeal, the inquiry officer at least is required to inquire from the delinquent officer whether he requires any one from the department to defend him and also his entitlement under the relevant rules to seek assistance of another government servant of the department to represent him in the inquiry. The fact situation of that case is different from the fact situation of the present case, where the Appellant is a sub Inspector of police. Moreover, the Appellant neither at any point of time asked for any defence assistance nor raised that plea in his departmental appeal. 14. The fact situation of that case is different from the fact situation of the present case, where the Appellant is a sub Inspector of police. Moreover, the Appellant neither at any point of time asked for any defence assistance nor raised that plea in his departmental appeal. 14. In view of the aforesaid discussions we do not find any merit on the contention of the learned Counsel for the Appellant that there were procedural irregularities in conducting the departmental proceeding against him and therefore, in our view the learned Single Judge has rightly rejected the said contentions of the Appellant. 15. This leads us to consider the question of proportionality of the punishment. As discussed above, according to the Appellant the punishment of removal from service is disproportionate to proven misconduct and on the other hand according to the Respondents the punishment of removal from service is the appropriate punishment awarded keeping in view the fact that he is a Sub-Inspector of the disciplined force. 16. Before proceeding further on this point let us first discuss the decisions of the Apex Court referred and relied on by the learned Counsel for the contesting parties. The Apex Court in Colour Chem Ltd. (supra) while dealing with an appeal filed by the management against the order passed by the labour court reinstating the workman with continuity of service and with 40% and 50% of the back wages, which was affirmed by High Court, has held that punishment of dismissal was shockingly disproportionate to the proved charge in the facts of that case. The reinstatement with continuity of service was the least that could have been ordered. In U.P. State Road Transport Corporation (supra) the Apex Court relying on the decision in B.C. Chaturvedi as well as Colour-Chem Ltd. case has held that the High Court can interfere with the punishment inflicted upon the delinquent employee if the penalty shocks the conscience of the court, keeping in view the facts and circumstances of each case. In U.P. State Road Transport Corporation (supra) the Apex Court relying on the decision in B.C. Chaturvedi as well as Colour-Chem Ltd. case has held that the High Court can interfere with the punishment inflicted upon the delinquent employee if the penalty shocks the conscience of the court, keeping in view the facts and circumstances of each case. The Apex Court in regional manager, U.P. SRTC Etawah (supra) by following the earlier decisions including the decision in B.C. Chaturvedi case has held that the court or tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment was not commensurate with the proved charges and the scope of intereference of the quantum of punishment is very limited and restricted to the exceptional cases. It has further been held that not only the amount involved but also the mental set up, the type of duty performed and other similar relevant circumstances are to be taken into consideration while considering whether the punishment is proportionate or disproportionate. In Canara Bank (supra) the Apex Court while dealing with the scope of judicial review of the proportionality of the punishment has also held that the scope of interference with the quantum of punishment cannot be a routine manner. The Apex Court in B.C. Chaturvedi case has also held that if the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. 17. The relevant rule governing the parties and under which the disciplinary proceeding against the Appellant was initiated i.e. Rule 66 of the Assam Police Manual Part III, as adopted by the State of Meghalaya, provides that in case of appeal against any penalty the appellate authority shall consider whether the penalty is excessive, adequate or inadequate. 17. The relevant rule governing the parties and under which the disciplinary proceeding against the Appellant was initiated i.e. Rule 66 of the Assam Police Manual Part III, as adopted by the State of Meghalaya, provides that in case of appeal against any penalty the appellate authority shall consider whether the penalty is excessive, adequate or inadequate. For better appreciation Clause VI of Rule 66 of the said rule is quoted below: 66.(VI) In the case of an appeal against an order imposing any penalty specified in Rule II the appellate authority shall consider- (a) whether the facts on which the order was based have been established; (b) whether the facts established afford sufficient ground for taking action; and (c) whether the penalty is excessive, adequate or inadequate; and after such consideration shall pass order as if thinks proper. 18. From a bare reading of a said provision it is therefore evident that a duty is cast on the appellate authority to consider whether penalty is excessive or proportionate to the proved misconduct, while dealing with an appeal against the order of penalty. In the instant case the appellate, authority while rejecting the appeal filed by the Appellant did not record any finding as to whether the penalty of removal from service as awarded by the disciplinary authority is proportionate to the gravity of the misconduct proved against the Appellant. The appellate authority simply agreed with the finding of the inquiry officer upholding the order of disciplinary authority removing the Appellant from service. 19. As discussed above, the Appellant at no point of time denied about his travel by night bus on the night of 7.5.95 and also about the loss of the service revolver with ammunition and the remaining undisbursed amount. The inquiry officer also did not record any finding disbelieving the stand of the Appellant regarding the circumstances under which he had to travel by a Meghalaya State Road Transport Corporation night bus and also taking of sweet by him at the insistence of a co-passenger, which made him unconscious. The said version of the Appellant has in fact been supported by the report of the Forensic Science laboratory which finds the presence of "Chlorpromazine", a tranquilizer drug which can cause unconsciousness, in the blood of the Appellant. The said version of the Appellant has in fact been supported by the report of the Forensic Science laboratory which finds the presence of "Chlorpromazine", a tranquilizer drug which can cause unconsciousness, in the blood of the Appellant. The Appellant in fact immediately on arriving his Headquarter at Tura faithfully informed the Commandant i.e. his disciplinary authority about the occurrence without hiding anything. From those factors it is therefore, evident that the Appellant was a victim of the circumstances. He has also not set up a false case. It is also on record that the Appellant has served the department since the year 1967 i.e. for almost 28 years, prior to drawl of the disciplinary proceeding, without any blemishes. The act attributed to the Appellant therefore being not intentional and in view of the aforesaid discussion as well as the law laid down by the Apex Court, we are of the considered view that the case in hand is an exceptional one where the punishment awarded by the disciplinary authority of removal from service is not proportionate to the proved misconduct. However, the Appellant in no stretch of imagination can be held to be not guilty as his action reflects his lethargicness and also his irresponsibility which has caused loss of service revolver with ammunition and also undisbursed money, for which he has to be adequately punished. 20. In view of the aforesaid discussions, while upholding that the Appellant is guilty of misconduct, we set aside the order of removal from service and remit the matter to the appellate authority, namely the Inspector General of Police, to consider and inflict appropriate punishment, short of removal from service, commensurate with the gravity of the proven misconduct, the appellate authority is accordingly directed to pass appropriate order in terms of the provisions contained in Rule 66(VI)(c) of the Assam Police Manual Part III and in the light of the observations and directions made in this judgment within a period of two months from today. 21. The writ appeal as well as the writ petition are accordingly partly allowed by setting aside the judgment and order passed by the learned Single Judge in so far as it relates to the dismissal of the writ petition on the question of proportionality of the punishment. No cost. Petition dismissed