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2006 DIGILAW 97 (GAU)

S. N. Yadav v. State of Mizoram

2006-01-27

BIPLAB KUMAR SHARMA, BROJENDRA PRASAD KATAKEY

body2006
JUDGMENT B.K. Sharma, J. 1. The writ Petitioner who is the Appellant therein, has preferred this appeal against the judgment and order of the learned Single Judge upholding the order of removal from service, which was passed against the Petitioner pursuant to a departmental proceeding. Although various grounds have been urged, but the basic thrust of arguments of the learned Counsel for the Appellant centers around the grievance raised by the Petitioner about the prejudice caused to him due to non-supply of the copy of the enquiry report based on which the order of removal was passed. 2. We have heard Mr. George Raju, learned Counsel for the Appellant and Mr. N. Sailo, learned State Counsel, appearing for the Respondents. 3. The Appellant while was serving as Assistant Sub-Inspector of Police (ASI) under the Respondents was taken up for a departmental proceeding. Be it stated here that the Appellant was initially appointed as Constable under the Respondents in the year 1984 and thereafter, he was promoted as ASI in the year 1989. The Charge levelled against the Petitioner vide memorandum dated 2.5.95 was that the Appellant while was posted at place called Sairang shot at ASI Robert L. Hnamte of Sairang Outpost at his left thigh on the night of 12.3.95 at about 7.15 P.M. and thus the Appellant was guilty of gross misconduct, undisciplined behaviour and conduct unbecoming of a police officer. 4. The Appellant was placed under suspension by order dated 15.3.95 and thereafter, the aforesaid memorandum of charge sheet dated 2.5.95 was issued. Prior to issuance of the memorandum dated 15.3.95 a preliminary report dated 14.3.95 was furnished by the Sub-divisional Police Officer, Aizawl North Sub-division, Mizoram, a copy of which was annexed to the writ petition as Annexure-4. On perusal of the report, it appears that no finding as such was recorded and the report indicated the statements made by the Petitioner, said Shri Robert and some other police personnel. From the report it also appears that both Sri Robert and the Petitioner lodged two separate FIRs relating to the incident and the investigating officer took up the matter for investigation and a case against the Petitioner was registered vide BKN PS Case No. 142/95 under Section 307 IPC. 5. From the report it also appears that both Sri Robert and the Petitioner lodged two separate FIRs relating to the incident and the investigating officer took up the matter for investigation and a case against the Petitioner was registered vide BKN PS Case No. 142/95 under Section 307 IPC. 5. As against the aforesaid police case registered against the Appellant, it is the case of the Appellant that no action was taken on the basis of the FIR lodged by him. Be that as it may, the enquiry proceeding was initiated against the Appellant and completed by the Enquiry Officer with the filing of the enquiry report dated 22.9.95 before the disciplinary authority. There is no dispute that the copy of the same was not furnished to the Appellant enabling him to make a representation against the same and the impugned order of removal dated 6.10.95 was passed without any representation of the Appellant. 6. Being aggrieved by the aforesaid order of removal, the Appellant preferred the statutory appeal before the departmental appellate authority on 30.10.95, which, however, was not disposed of. This Court by order dated 24.7.2001 passed in writ petition being W.P. (C) No. 60/2001 filed by the Appellant issued direction to the appellate authority to examine and consider the statutory appeal and to pass appropriate order in accordance with law. Pursuant to this order, the appellate authority disposed of the appeal by order dated 6.9.2001, which reads as follows: OFFICE OF THE DEPUTY INSPECTOR GENERAL OF POLICE (RANGE) MIZORAM: AIZAWL ORDER Whereas an appeal petition was submitted by Ex-ASI S.N. Yadav against removal from service vide S.P. Aizawl order No. E/RO/PF-SN/95/832 dtd. 6.10.95. And whereas the appeal petition was thoroughly examined with all the case records and found that sufficient evidence against the Appellant was noted by the Enquiry Officer who conducted the Departmental Enquiry proceedings, as per rules, and therefore the Appellant was removed from service. And whereas, in the meanwhile the ADM(J) Aizawl has acquitted the Appellant from the liability of the charges framed against him under Section307/326 IPC r/w 27 of the Arms Act vide No. 523/ADM(J)/99 dt. 10.11.99 and that the Appellant submitted another representation against the said removal order, passed by the Superintendent of Police, Aizawl by enclosing copy of the judgment passed by the learned ADM(J) on the 10th Nov., 1999. 10.11.99 and that the Appellant submitted another representation against the said removal order, passed by the Superintendent of Police, Aizawl by enclosing copy of the judgment passed by the learned ADM(J) on the 10th Nov., 1999. And whereas the representation was reexamined alongwith the relevant Departmental proceedings and other pertinent records, including the judgment of the learned ADM(J), wherein it was found that the Appellant fired two rounds from his service revolver at a colleague officer, of which the first shot missed and the second shot hit the victim and that the Appellant got acquitted in the Court of Law due to the mere failure of the PWs to appear in the Court. And whereas sufficient evidence against the Appellant was found for his aggression and undisciplined behaviour in connection with shooting a colleague officer causing serious injuries on this body which is indeed a serious and condemnable act. Hence, I am inclined to reject the appeal. Sd/- (U.N.B. RAO) IPS Dy. Inspector General of Police (Range) Mizoram, Aizawl 7. In the statutory appeal as well as in the writ petition, the Appellant urged various grounds relating to the purported procedural irregularity in conducting the departmental proceeding, such a denial of the right to engage defence counsel, no valid opportunity to cross examine the witnesses, conclusion of the enquiry without affording opportunity to the Appellant to adduce defence evidence, honourable acquittal of the Appellant in the criminal proceeding launched against him relating to the same very incident and most importantly the prejudice caused to the Appellant by not furnishing the copy of the enquiry report enabling him to make representation to persuade the disciplinary authority to take a different view of the matter. 8. Since the basic thrust of argument of the learned Counsel fort the Appellant was in respect of the prejudice cause to the Petitioner by not supplying the copy of the enquiry report and all other grounds, which the Appellant had urged in the writ petition could effectively be taken care of in the event of deciding the issue relating to the alleged prejudice caused to the Appellant due to non-supply of the report, we propose to deal with only that issue towards answering the writ appeal. 9. 9. In the exhaustive statutory appeal running to 14 pages made by the Appellant, apart from the aforesaid grounds of procedural irregularity in conducting the departmental proceeding and his acquittal in the criminal proceeding, the Appellant also categorically stated about the prejudice caused to him due to non-furnishing of the enquiry report. In the writ petition also, the Appellant categorically stated as how the order of removal was passed against him without furnishing the copy of the enquiry report and thereby denying him the right of submission of an effective representation. Be it stated here that the Respondents while filing the counter affidavit in the writ proceeding annexed a copy of the enquiry report. On perusal of the same it appears that the Inquiry Officer, although made an analysis of the evidence on record but as regards the finding relating to the charge, did not record the same in the manner, in the normal circumstances, one would have expected, but nonetheless the ingredients of the sole charge were held to be proved. 10. Dealing with the specific averments made in the writ petition relating to denial of the opportunity to engage a defence assistant and non-furnishing of the copy of the enquiry report, the Respondents in their counter affidavit made the following statements. 4. That in respect of paragraph No. 6 of the writ petition, I submit that there is no obligation on the part of the Inquiry Officer to appoint a defence assistant to defend the Petitioner. Since the Petitioner did not attend the hearings of the inquiry without reasonable cause, the inquiry had to be proceeded with ex-parte. In view of this, the Petitioner cannot have any legitimate grievance against the inquiry proceeding including the absence, of cross examination of witnesses. 5. That with regard to paragraph No. 7 of the writ petition, I submit that the enquiry report could not be furnished to him since the Petitioner absented himself from the Departmental inquiry. However, the inquiry report is attached to this affidavit for examination by the Hon'ble Court as to whether prejudice has been cause to the Petitioner by non-furnishing of the said inquiry report. 11. However, the inquiry report is attached to this affidavit for examination by the Hon'ble Court as to whether prejudice has been cause to the Petitioner by non-furnishing of the said inquiry report. 11. As regards the aforesaid plea of the Respondents that the Appellant was absent in the enquiry proceeding, the records have revealed that he was present during the enquiry proceeding, which will be evident from the order sheets maintained by the Inquiry Officer, copies of which have been annexed to the counter affidavit to the writ petition. However, in absence of any signature of the Appellant as a token of acceptance of the contents thereof, no opinion is expressed, more particularly, since we are only called upon to decide the issue relating to the alleged prejudice caused to the Appellant due to non-supply of the enquiry report. If, this issue is answered in favour of the Appellant, he would be entitled to raise all the grounds available to him in his representation to be made against the enquiry report. 12. The learned Single Judge by referring to the statement made by the Appellant in his affidavit in reply that he was present in the purported departmental enquiry in all the days as against the plea of the Respondents that the enquiry report could not be furnished to the Appellant due to his absence in the enquiry proceeding and also the statement: "That non-furnishing of the Enquiry report to me whereby I have prejudiced and my right have been taken away without any reason and justification to write an effective representation to the Disciplinary Authority being awarded any punishment", has come to the conclusion that the merit of the enquiry report was not in challenge and the only contention raised by the Appellant was that in the event of furnishing the copy of the enquiry report, he could have been able to make proper representation before the disciplinary authority against the proposed punishment. 13. After the aforesaid conclusion arrived at by the learned Single Judge, the decision of the Apex Court in Managing Director, ECIL v. B. Karunakar reported in (1993) 4 SCC 727 has been referred to. Placing reliance on paragraph 30 and 31 of the said judgment, the learned Single Judge observed that "Therefore. 13. After the aforesaid conclusion arrived at by the learned Single Judge, the decision of the Apex Court in Managing Director, ECIL v. B. Karunakar reported in (1993) 4 SCC 727 has been referred to. Placing reliance on paragraph 30 and 31 of the said judgment, the learned Single Judge observed that "Therefore. I find this objection, i.e., of non-furnishing of the enquiry report is also of no help to the Petitioner, unless and until a specific and definite case of bias is pleaded and brought out" (Emphasis added). Thus, according to the learned Single Judge the Appellant failed to make any challenge to the merit of the enquiry report and that he having not pleaded a definite case of bias, the simple plea of prejudice would not help the case of the Appellant. 14. In the ECIL (supra) case, about which a reference has been made in the impugned judgment, the Apex Court observed that setting side of the orders of removal or dismissal directing reinstatement of the employee with back wages on ground of non-furnishing of the enquiry report would reduce the rules of justice to a mechanical ritual. It observed that, whether in fact, prejudice has been caused to the employee or not on account of denial to him of the report, has to be considered on the facts and circumstances of each case. The Apex Court further observed that if the Court/Tribunal finds that the furnishing of the report would have made a difference to the results of the case, then it should set aside the order of punishment with liberty to the authority to proceed with the enquiry from the stage of furnishing him the report. It has further been observed that the question whether the employee would be entitled to the back wages and other benefits from the date of his dismissal to the date of his reinstatement, if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. 15. As noticed above, in the instant case, the Appellant in his appeal as well as in the writ petition urged various grounds in respect of the procedure adopted in conducting the departmental proceeding. 15. As noticed above, in the instant case, the Appellant in his appeal as well as in the writ petition urged various grounds in respect of the procedure adopted in conducting the departmental proceeding. Strangely enough, the Respondents, inspite of the fact that the Appellant was present in the enquiry proceeding, took the stand in their counter affidavit that the question of engagement of defence counsel and furnishing of the enquiry report did not arise, since the proceeding was ex-parte against the Appellant, he being absent during the proceeding. This stand of the Respondents is contrary to the records. It is the definite case of the Appellant that although he was present during the proceeding, he was reduced to a mere silent spectator and everything was thrust upon him during the proceeding without giving him a reasonable opportunity to defend himself. Thus, the ground, which the Respondents urged towards supporting their action of non-furnishing the copy of the enquiry report is not borne out of records. This has created a serious doubt about the procedures adopted in conducting the enquiry. Although, it was not urged on behalf of the Appellant, but we have noticed that the order sheets maintained by the Inquiry Officer depicting as to what transpired in day to day proceeding do not contain the signatures of the Appellant as a token of acceptance of the depictions made therein. 16. The Appellant having not been furnished with the enquiry report, naturally could not have attacked the merit of the same in his writ petition. He could not have also taken the specific and definite plea of bias in the writ petition. After the copy of the enquiry report was answered to the counter affidavit, the Petitioner/Appellant in his reply affidavit urged various grounds towards non-maintainability of the enquiry proceeding with specific plea of prejudice caused to him due to non-supply of the enquiry report. It is also significant to be noted that the Appellant took the specific plea on non-maintainability of the two simultaneous proceedings i.e., the departmental and criminal proceeding on the same set of charge and evidences. It is also significant to be noted that the Appellant took the specific plea on non-maintainability of the two simultaneous proceedings i.e., the departmental and criminal proceeding on the same set of charge and evidences. All these factors including the various grounds urged in the statutory appeal as well as in the writ petition against the enquiry proceeding coupled with the opposite stand of the Respondents in their counter affidavit have made it all the more necessary to give an opportunity to the Appellant to make representation against the enquiry report to the disciplinary authority. The said authority shall then pass a fresh order taking into account all aspects of the matter including the grounds which might be urged by the Petitioner in his representation. 17. We would have been persuaded to concur with the findings of the learned Single Judge had the statutory appeal preferred by the Appellant been disposed of with a speaking order taking into account the grounds urged by the Appellant in his appeal including the one of the prejudice caused to him by not furnishing the report. The appellate order, which have been quoted above hardly needs any discussion to hold that the same is a non speaking one without dealing with any of the grounds urges by the Appellant in his appeal. 18. The learned Single Judge, while dealing with the question, whether the acquittal of the Appellant in the criminal case atleast has got any persuasive value, declined to accept the plea of the Appellant that in view of his honourable acquittal in the criminal case,, the order of removal is required to be withdrawn. In this connection, the learned Single Judge has referred to the decision of the Apex Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. Reported in (1999) 3 SCC 679 . Mr. N. Sailo, learned State Counsel has also referred to the decisions as reported in (1996) 6 SCC 415 ; (2001) 6 SCC 392 ; (1997) 3 SCC 72 /657; 1988 Supp SCC 663;(1983) 4 SCC 727 and (1999) 3 SCC 679 to bring home the point of Argument that there is no bar in continuation of departmental proceeding during pendency of criminal proceeding and that the elements and requirements involved in both the proceedings towards establishing the guilt at different. There is no quarrel with the proposition of law laid down by the Apex Court. In the instant case, the prosecution failed to establish the charge against the Appellant in the criminal case. The criminal case was relating to the same very incident involving the same very witnesses who deposed in the departmental proceeding. In this connection, the observation of the Apex Court in the same very case of M. Paul Anthony (supra), about which a reference has been made by the learned Single Judge is noteworthy. 34. There is yet another reason for discarding the whole of the case of the Respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical sets of facts, namely, "the raid conducted at the Appellant's residence and recovery of incriminating articles there from." the findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the Appellant were sought to be proved by police officers and panch witnesses, who had raided the house of the Appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the Appellant. The same witnesses were examined a the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the Appellant. The whole case of the prosecution was thrown out and the Appellant was acquitted. In this situation, therefore, where the Appellant is acquitted by the judicial pronouncement with the finding that the "raid and recovery" at the residence of the Appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand. (Emphasis supplied) 19. For the foregoing reasons and discussions, we are of the considered opinion that the Appellant is entitled to make a representation against the enquiry report so as to persuade the disciplinary authority to take a different view of the matter than one taken in the impugned order dated 6.10.95. Consequently, we set aside the order. (Emphasis supplied) 19. For the foregoing reasons and discussions, we are of the considered opinion that the Appellant is entitled to make a representation against the enquiry report so as to persuade the disciplinary authority to take a different view of the matter than one taken in the impugned order dated 6.10.95. Consequently, we set aside the order. We are also of the considered opinion that the appellate order dated 6.9.2001, being a non-speaking one having not dealt with the grounds urged in the statutory appeal, more particularly, the one relating to non-supply of the enquiry report is not sustainable and we set aside the same. 20. The Respondents shall now proceed with the enquiry de-novo from the stage of furnishing of the copy of the enquiry report enabling the Appellant to make a representation against the same.' If such representation is made by the Appellant, the disciplinary authority shall deal with the same in accordance with law and consistently with the observations made above. In the event of the Appellant being aggrieved by the order to be passed by the disciplinary authority, it will open for him to make statutory appeal to the departmental appellate authority. 21. This now leads to the question as to whether the Appellant should be reinstated in service with back wages. In view of the law laid down by the Apex Court in the ECIL (supra) case, we are not inclined to issue any direction for reinstatement of the Appellant in service and to pay him back wages. The question of reinstatement of the Appellant in service will depend on the outcome of the order to be passed by the disciplinary authority and also by the appellate authority, if necessary so arises. We make it clear that in the event of reinstatement of the Appellant in service with or without imposing any penalty, he will not be entitled to any back wages in view of the long lapse of time and also in view of the fact that there was some amount of delay on the part of the Appellant to approach this Court by filing the writ petition. 22. The impugned judgment and order dated 8.12.2003 passed in W.P. (C) No. 19/2002 stands interfered with in the above manner and the appeal stands partially allowed. There shall be no order as to costs.