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Gauhati High Court · body

2006 DIGILAW 597 (GAU)

Maiphulung v. State of Manipur and Ors.

2006-06-22

M.B.K.SINGH

body2006
Heard Miss Katherine, learned counsel appearing on behalf of the petitioners of the WP(C) No. 1363 of 2002 and WP(C) No. 1383 of 2002 and Mr.Jallaluddin, learned Addl. Govt. Advocate appearing on behalf of the respondents in both the said cases. Since common questions of facts and laws are involved in theses two cases, they are taken up together and dispose of by this common judgment. 2. Both the petitioners were serving as rifleman of the 5th Bn. MR. Each of the petitioners was charged separately for the commission of grave mis-conduct and dereliction of duty alleging that on 6.10.1999 at Keikai in Tamenlong District at about 12.30 hrs, while he was detailed for election duty in respect of the 13th Lok Sabha Outer Parliamentary Constituency of Manipur in Tamenglong District, he failed to use his arms and ammunition when he was confronted by some unknown UG elements and surrendered his arms and ammunitions to the unknown UG elements without offering any resistance whatsoever and that thereby, he behaved in an irresponsible and cowardly manner unbecoming of a police officer which resulted in the loss of the Government properties. Apparently, after holding a separate enquiry as against each of them, both the petitioners were dismissed from their service by the Commandant,5th Bn. MR by issuing separate orders. In WP(C) No 1363 of 2002, the petitioner is challenging the dismissal order dated 31.01.2001 issued against him by the Commandant, 5th Bn.MR purportedly basing on the findings in DE No. 28/99-5th Bn.MR dated 27.11.1999. In WP(C) No. 1383 of 2002, the petitioner is challenging the dismissal order dated 31.01.2001 issued against him by the Commandant, 5th Bn.MR dated 27.11.1999. According to the learned counsel appearing on behalf of both the petitioners, both the said departmental enquiries were held in violation of the relevant rules and also in violation of the principle of natural justice . 3. It is well settled that judicial review in matters relating to and resulting from disciplinary proceedings is not in respect of the decision but is to be confined itself with the decision making process. 3. It is well settled that judicial review in matters relating to and resulting from disciplinary proceedings is not in respect of the decision but is to be confined itself with the decision making process. In the State of India v. Samarendra Kishore Endow, (1994) 2 SCC 537 , the Supreme Court quoted, with approval, the following passage from its earlier Judgment in State of Andhra Pradesh v. Shri Rama Rao reported in AIR 1963 SC 1723 :- “ …………… the High Court is not constituted in a proceeding under Article 226 of the Constitution as a court of appeal over the decision of the authority holding the departmental enquiry against a public servant; it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent findings on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of inquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry officer is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy and reliability of that evidence is not a mater which can be permitted to be canvassed before the High court in a proceeding for a writ under Article 226 of the Constitution.” 4. In the case of Chairman and Managing Director, United Commercial Bank and ors. v. P.C.Kakkar reported in (2203) 4 SCC 364 in para 11 of the judgment, the Apex Court held as follows :- “The common thread running through in all these decisions is that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision making process and not the decision.” 5. In the light of the above said well settled decisions of law, I have perused the materials including the records of the said two departmental enquiries. There is no dispute that Clause (iii) of Rule 66 of Part-III of Assam Police Manual prescribes the procedure to be followed in respect of the proceedings for imposition of major penalty. As per provisions of the said Clause (iii) of Rule 66 of the Assam Police Manual, a definite charge has to be framed and the same has to be communicated to the person charged. A charged person shall be required to put in his written statement of defence and also to express his desire to be heard in person if requires. He is entitled to cross-examine the witnesses given against him and also to give his evidence in person and to call for his witnesses in his defence. The proceeding shall also contain sufficient records of evidences and statements of findings and grounds thereof. He is entitled to cross-examine the witnesses given against him and also to give his evidence in person and to call for his witnesses in his defence. The proceeding shall also contain sufficient records of evidences and statements of findings and grounds thereof. Even though Rule 66 is silent about the appointment of a presenting officer in the enquiry proceeding and also about the appointment of a defence assistant, as per decision of the Division Bench of this court made on 18.4.2005 disposing of Writ Appeal No. 267 of 2002 and more than 100 other writ appeals, non appointment of presenting officer will make the enquiry totally vitiated as the enquiry officer cannot assume the role of Judge as well as of a prosecutor and it is also incumbent on the part of the concerned enquiry officer to offer minimum justices by informing the persons under the enquiry about his entitlement to appoint a defence assistant to defend his case. 6. On perusal of the relevant records of the said departmental enquiries, it is ascertained that no presenting officer was appointed by the concerned authority in connection with the said enquiries. There is no dispute in this regard. In the light of the decision of the Division Bench of this court mentioned above, non appointment of the presenting officer is fatal to the said departmental enquiries against the petitioners. 7. The petitioners were rifleman at the relevant time and it cannot be expected that they were having the knowledge about the provisions of the relevant rules and law involved in the enquiries. In these circumstances, it was incumbent on the part of the enquiry officer to offer minimum justice to the petitioners by informing them that they are entitled to appoint defence assistant to defend their respective cases. There is nothing to show that the concerned enquiry officer informed any of the petitioners about their right to appoint the defence assistant to defend their case. Both the petitioners were not represented by any defence assistant and as such, there cannot any doubt that they were prejudiced in making their defence and thereby resulted in miscarriage of justice. 8. There are disputes regarding questions if the statements of witnesses were recorded in the presence of the petitioners and if each of the petitioners was given opportunity of cross-examining the said witnesses. 8. There are disputes regarding questions if the statements of witnesses were recorded in the presence of the petitioners and if each of the petitioners was given opportunity of cross-examining the said witnesses. However, the fact remains that none of the witnesses was cross-examined by or on behalf of the petitioners. Non-cross-examination of the witnesses caused prejudiced to the petitioners in their defence. 9. On the basis of the written statement submitted by the two petitioners in respect of the departmental enquiries as against them, it is ascertained that both the petitioners did not admit the articles of the charges framed against them. Both of them stated that they would contest the charges by cross-examining all the said witnesses stated in the Annexure and that both of them would be examining themselves as DWs and also that they would be producing evidences for their defence. Despite the above said specific prayers made, none of the petitioners was examined as DW. There is nothing to show that the enquiry officer gave any of the petitioners opportunity to produce his DWs. Had there been any prayer from the side of any of the petitioners, the enquiry officer ought to have informed both of them that they could examine themselves and produce their witnesses if they desired. Since there is nothing to show that the petitioners were given opportunities to produce their DWs, despite the specific request made in that connection in their respective defence statements, one can reasonably conclude that the petitioners were not given due opportunities for defending their cases in the said enquiries. 10. On the basis of the above findings of not appointing the presenting officer by the concerned authority in connection with the said enquiries, not informing the petitioner about his entitlement to appoint a defence assistant to defend his case, not affording opportunity to cross-examine the PWs properly and not giving reasonable opportunity of defending their cases by informing them and affording them opportunities for producing DWs , one can reasonably conclude that the enquires were not proceeded legally, fairly and properly. The disciplinary proceedings were vitiated for violation of the principles of natural justice. The said disciplinary proceedings are hereby quashed. The impugned dismissal orders dated 31.01.2001 which are based on the findings of the said enquiries, are not sustainable in the eye of law. The impugned dismissal orders are hereby set aside. 11. The disciplinary proceedings were vitiated for violation of the principles of natural justice. The said disciplinary proceedings are hereby quashed. The impugned dismissal orders dated 31.01.2001 which are based on the findings of the said enquiries, are not sustainable in the eye of law. The impugned dismissal orders are hereby set aside. 11. Since the disciplinary proceedings and impugned dismissal orders are not quashed on the ground that the charges against the petitioners are not made out but on the finding that the proceedings have not been made under the relevant law and rules, opportunity is given to the authority concerned to proceed afresh expeditiously in accordance with the provisions of relevant law and rules within reasonable time, which is to be not more than four months from the date of receipt of this order, in respect of the charges against the petitioners. If fresh departmental enquiries are held against the petitioners, they shall be treated as under suspension from the date of their first suspension and they shall be paid the suspension allowances according to rules. The suspension allowances so far due shall be paid within a period of 3 (three) months from today if not paid earlier. In case if no such enquiries are initiated within the period prescribed, the petitioners are to be reinstated in their respective services with all the consequential benefits. 12. With this order and directions, these two writ petitions stand disposed.