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2008 DIGILAW 365 (GAU)

Maibam Ibohal Singh v. State of Manipur

2008-05-22

ASHOK POTSANGBAM

body2008
JUDGMENT Asok Potsangbam, J. 1. Heard Mr. Kh. Tarunkumar Singh, learned Counsel for the petitioner and also heard Mr. A. Jagjit Singh, learned Additional Government Advocate, Manipur for the respondents. 2. In this petition, the petitioner has challenged the order dated 15.1.2001 (Annexure-A/6) passed by the Commanding Officer, 9th Battalion, Manipur Rifles, dismissing the petitioner from service and the order dated 7.1.2003 (Annexure-A/9) passed by the DIG (Ops.) (appellate authority) rejecting the appeal preferred by the petitioner against the aforesaid order of the Commanding Officer, 9th Battalion, Manipur Rifles. The State Respondents have filed counter affidavit and the relevant records of the Departmental Enquiry have also been produced before the Court. 3. Briefly stated, the petitioner and some other Riflemen belonging to the 9th Battalion, Manipur Rifles, Taphou were detailed for election duty to the 13th Lok Sabha Outer Parliamentary Constituency of Manipur in Senapati District with 303 Rifles and ammunitions to meet any contingency. On 4.10.1999 at about 12 Noon at Veisiichu (Chillao Village side), the petitioner and his companion Riflemen surrendered their arms and ammunitions without any use and offering any resistance to the underground elements and, as such, a disciplinary proceeding under Rule 66 of the Assam Police Manual was drawn up on the ground that such surrender of arms and ammunitions without use and offering any resistance is misconduct under Assam Police Manual. By an order dated 27.11.1999, the Commandant, 9th Battalion, Manipur Rifles placed the petitioner and three others under suspension in contemplation of departmental enquiry and, thereafter, a memorandum dated 11.12.1999 along with article of charges and statement of imputation were furnished with the following conditions: Shri M. Ibohal Singh is hereby required to submit to the undersigned written statement of defence not later than 26.12.1999 and also to: (A) State whether he desired to be heard in person. (B) Furnish the names and address of witness. (C) Furnish the list of statement, if any which he wishes to produce in support of his defence. Shri M. Ibohal Singh is hereby informed that if for the purpose of hearing his defence, he wishes to inspect or take extracts from official records; he should furnish a list of such record to the undersigned not later than 20.12.99 so that arrangement may be made to provide facilities for the purpose. Shri M. Ibohal Singh is hereby informed that if for the purpose of hearing his defence, he wishes to inspect or take extracts from official records; he should furnish a list of such record to the undersigned not later than 20.12.99 so that arrangement may be made to provide facilities for the purpose. He should however, note that if in the opening of the undersigned such records are not relevant for the purpose, he will not be permitted to inspect or take extracts from such records. Shri M. Ibohal Singh is hereby informed that if the written statement of his defence is not received on or before the date specified above, the enquiry is liable to be held ex-parte. 4. The petitioner submitted his written statement of defence and one Shri N. Sudhir Chandra Singh, the then Additional Superintendent of Police, Kangpokpi, was appointed as the Enquiry Officer. On the basis of recorded statement of the PWs and examination of the charged officials, the Enquiry Officer came to the conclusion that the charges levelled against the delinquent officials were found to have been proved beyond any shadow of doubt and they were found to have committed misconduct and dereliction of duty on 4.10.1999 resulting into loss of four number of 303 Rifles along with 200 rounds of ammunitions in the hands of UGs. The petitioner was also given a copy of the finding of the enquiry report to enable him to submit representation against the findings of the Enquiry Officer and accordingly petitioner submitted his representation to the disciplinary authority i.e. Commandant, 9th Battalion, Manipur Rifles on 10.1.2001. Thereafter, the Commandant, 9th Battalion after having considered the report of the Enquiry Officer and the representation submitted by the petitioner, came to the conclusion agreeing with the findings of the Enquiry Officer, as stated above. Consequently, a penalty of dismissal from service was imposed against the petitioner and three others by an order dated 15.1.2001 (Annexure-A/6). Against this order, W.P. (C) No. 1397 of 2002 was filed before this Court, but this Court directed the petitioner to file a statutory appeal before the appropriate appellate authority and the appellate authority was also directed to entertain the petition by condoning the delay. The appeal filed by the petitioner was rejected by the appellate authority by an order dated 7th April, 2003 under No. H-7/OPS/PHQ/2001 (PT)/issued by the Dy. The appeal filed by the petitioner was rejected by the appellate authority by an order dated 7th April, 2003 under No. H-7/OPS/PHQ/2001 (PT)/issued by the Dy. Inspector General of Police (Ops), Manipur, Imphal (Annexure-A/9). The aforesaid orders dated 15.1.2001 (Annexure-A/6) and 7.4.2003 (Annexure-A/9) are assailed before this Court mainly on the following grounds: (i) There was violation of natural justice in not giving an opportunity to appoint defence assistant and, as such, the disciplinary proceeding is vitiated and liable to be quashed. (ii) The commanding officer of the battalion is/was not the appointing authority of the petitioner in view of the orders dated 5.7.1995,9.5.1995 and corrigendum dated 9.5.1995 issued by the Department of Personnel. (iii) The case of the petitioner is similar to those batch of cases which were disposed of on 25.9.2002 by this Court with direction to reinstate those incumbents to their respective posts with 50% back wages. (iv) The appeal was rejected without consideration on merit. 5. Resisting the contention/averments of the petitioner, a counter affidavit has been filed by the State respondents stating inter alia that all the formalities required by law had been followed and the proceeding of the departmental enquiry did not suffer from any procedural lapse/irregularity and the disciplinary proceeding was conducted in accordance with the provisions and procedure prescribed under the Assam Police Manual Part-III. It is also stated that the petitioner was asked whether he would like to engage any defence counsel, but he declined to appoint any defence counsel instead he expressed that he would like to be heard in person and that was allowed. It is also stated in the affidavit of the respondents that the question of appointing authority/disciplinary authority of Riflemen is as per Schedule-II, Para XII of Rule 66 of the Assam Police Manual Part-III etc. 6. The first issue for consideration of the Court is whether the petitioner has any right to claim for appointment of defence assistant and non-appointment of the defence assistant would vitiate the departmental proceeding and that non-appointment of the defence assistant would also violate the principles of natural justice. In this regard, the learned Counsel for the petitioner submits that natural justice demands that the petitioner ought to have been given an opportunity to appoint a defence assistance and, in support of this contention, the following cases have been pressed into service: (i) [1970]1SCR457 (A.K. Kraipak and Ors. In this regard, the learned Counsel for the petitioner submits that natural justice demands that the petitioner ought to have been given an opportunity to appoint a defence assistance and, in support of this contention, the following cases have been pressed into service: (i) [1970]1SCR457 (A.K. Kraipak and Ors. Petitioners v. Union of India and Ors. Respondents); (ii) (2001) 1 SCC 182 (Kumaon Mandal Vikash Nigam Ltd. v. Girja Shankar Pant and Ors.). 7. Countering the argument of the petitioner, the learned Government Advocate has submitted that the principles of natural justice cannot be stretched too far as their application will be subject to the provisions of the statute and statutory rules and this principles which was laid down by the Apex Court in AIR 2004 SC 2227 (Bar Council of India v. High Court of Kerala) is reiterated in (2007)5SCC65 (State of Manipur and Ors. v. Y. Token Singh and Ors.). In view of the above, submits the learned Government Advocate, the contention of violation of natural justice is misconceived and not sustainable. 8. The Court will now examine whether the appointment of the defence assistant is a requirement of statute holding the field. It is not disputed at the Bar that in a disciplinary proceeding under the CCS & CCA Rules, appointment of defence assistance to the delinquent official is provided under Rule 14(8)(a) of the CCS & CCA Rules and, as such, one can lawfully claim for appointment of defence assistance as of statutory right. There is no such provision in the Assam Police Manual, leave alone any provision in Rule 66 for appointment of a defence assistance. From the above discussion, it is clear that provisions available in CCS and CCA Rules, as discussed above, are not available in Rule 66 of the Assam Police Manual under which the relevant disciplinary proceeding was conducted. In such circumstances, submits the learned Counsel of the petitioner, it will be appropriate for the Court to invoke and apply the maxim —"Expressum facit cessare tacitum" ("When there is express mention of certain things, then any thing not mentioned is excluded" (The Union of India v. Tulsiram Patel (1985) IILLJ 206 SC). In such circumstances, submits the learned Counsel of the petitioner, it will be appropriate for the Court to invoke and apply the maxim —"Expressum facit cessare tacitum" ("When there is express mention of certain things, then any thing not mentioned is excluded" (The Union of India v. Tulsiram Patel (1985) IILLJ 206 SC). Applying this maxim, one can safely conclude that in the absence of any provision under the Assam Police Manual for appointment of defence assistant to a charged official, there is no statutory requirement to appoint a defence assistant as claimed by the petitioner in the case. This maxim is followed by a Division Bench of this Court in a case reported in 2004 (1) GLT 1 (Heman Bihari Singh v. State of Manipur and Ors.). 9. The learned Government Advocate has also submitted that the Apex Court has considered and decided as to whether an employee has right to representation by another person in a departmental proceeding or not. In this regard, a case reported in (1999) ILLJ 352 SC (Bharat Petroleum Corporation Ltd. v. Maharashtra General Kamgar Union and Ors.), is relied upon wherein the Apex Court held, in para 27, which reads as under: The basic principle is that an employee has no right to representation in the departmental proceedings by another person or a lawyer unless the Service Rules specifically provide for the same. The right of representation is available only to the extent specifically provided for in the Rules. Also in (2006) 7 Supreme 581 (The Management of National Seeds Corporation Ltd. v. K.V. Rama Reddy) the aforesaid proposition of law is reiterated by holding that there is no right to representation of some body in the domestic enquiry unless rules, regulation or standing orders, if any, regulating the conduct of the disciplinary proceeding specifically recommends such rights and provides for such representation. On reading of the provisions of the CCS and the CCA Rules and Rules 66 of the Assam Police Manual and the decisions of the Apex Court as referred above, I have no doubt to hold that Rule 66 which is the extant Rule, has not provided for appointment of any Defence Assistant, and as such, the petitioner has no right for such appointment and non-appointment of Defence Assistant shall not vitiate the disciplinary proceeding in question. 10. 10. In view of the discussion made above, as the appointment and non-appointment of defence assistant is subject to the provisions of the statute or statutory rules, the principles of natural justice has no scope to play in the instant case. Further, a perusal of the records placed before the Court would clearly reveal that the petitioner was in-fact given an opportunity, which is recorded as follows: Q.: Will you engage a defence counsel or will you be heard personally? Ans. I will not engage a defence counsel and I will heard personally. The relevant portion of the proceeding was shown to the learned Counsel for the petitioner by the Government Advocate during the course of the hearing. In view of the above, the contention of the petitioner on this issue is rejected. 11. The second issue, as formulated above, is not pressed by the petitioner at the time of the argument and, as such, no opinion or comment of the Court is called for on this issue. 12. With regard to the third issue, formulated as above, the common judgment dated 25.9.2002 passed by a Single Bench of this Court disposing of 102 writ petitions, was affirmed by a Division Bench of this Court in a batch of writ appeals which were disposed of on 18.4.2005. Reportedly, SLPs were filed by the State against the aforesaid judgments of the Single Bench and the Division Bench, as referred to above, on the ground that cases of dissimilar factual backgrounds were clubbed together and disposed of by common judgment without deciding each case on merit and the aforesaid judgments of this Court have been interfered with by the Apex Court by its order dated 27.4.2006 passed in Civil Appeal No. 2289/2006 etc. Broadly speaking, SLPs were disposed of by the Apex Court on the basis of categorization submitted by the State appellants and the relevant portion of the judgment and order disposing the first ground of cases are reproduced hereunder: Since the respondents were not given an opportunity to cross-examine the witnesses examined in the proceeding, the disciplinary proceedings are vitiated and the termination of the employment of respondents is bad in law. However, this does not prevent the appellants from initiating a fresh enquiry and after complying with the requirements of law pass an appropriate order. However, this does not prevent the appellants from initiating a fresh enquiry and after complying with the requirements of law pass an appropriate order. We direct that if the appellants decide to proceed against the aforesaid respondents afresh it shall do so within a period of four months from today failing which this order shall have no effect. If fresh departmental enquiries are held against the respondents, they shall be treated as 'under suspension' from the date of their first suspension and they shall be paid suspension allowance according to rules. The suspension allowance as far due shall be paid within a period of three months from today. The direction for reinstatement and payment of back wages is modified to this extent. In the event, the appellants decide not to hold enquiry against any of the respondents, or no such enquiry is initiated with the period prescribed, the order of the High Court shall then operate. The second category of cases have been disposed of by the Apex Court in the following manner: A Single Judge Bench of the High Court will rehear these matters and record its findings by reference to the facts and evidence in each case. We make this direction because the High Court has not done so while disposing of the batch of Writ Appeals before it. The High Court shall thereafter pronounce its judgment in accordance with law. In the meantime, the respondents shall be deemed to be under suspension and be entitled to the payment of suspension allowance in accordance with rules deeming them to be suspended from the first date of suspension. The suspension allowance which has fallen due shall be paid within a period of three months from today. We have no doubt that the High Court having regard to the facts of the case will dispose of the matters expeditiously. 13. A judgment and order dated 23.11.2006 passed by a Division Bench of this Court in Writ Appeal Nos. 48, 49 and 50 of 2000 was pressed into service by the learned Counsel for the petitioner for extension of the benefit of the Apex Court decision referred to above. 13. A judgment and order dated 23.11.2006 passed by a Division Bench of this Court in Writ Appeal Nos. 48, 49 and 50 of 2000 was pressed into service by the learned Counsel for the petitioner for extension of the benefit of the Apex Court decision referred to above. But, in those cases, the Division Bench has given the benefit of the Apex Court's decision on the ground that these cases were the ones belonging to the batch of Special Leave Petitions in which the Apex Court has permitted initiation of fresh proceedings. The findings of the Division Bench, as recorded in para-5, is reproduced hereinbelow: 5. Mr. Ibohal, learned State counsel, has submitted that the present case belongs to the batch of Special Leave Petitions, in which the Apex Court had permitted initiation of a fresh proceeding. This is affirmed by Mr. A. Bimol, learned Counsel for the respondents/writ petitioners. 14. It is not the case of the petitioner that the present writ petition is one of those which was subjected to the proceedings of SLPs (Civil Appeals) before the Hon'ble Apex Court and, in-fact, this case is coming up for the first time for consideration on the basis of the averments and documents made available before the Court. No argument has been canvassed by the petitioner assailing the merit on the findings of the disciplinary authority except on the points formulated by the Court, as above. 15. On close scrutiny of the defence statement and the representation submitted before the disciplinary authority, no plea whatsoever was taken by the petitioner that he was denied the right to appoint defence assistant nor was the plea of denial of right to cross-examination taken. Only a whisper has been made in para-7(a) of the statutory appeal with regard to denial of option for appointment of a defence assistant and this, perhaps, was made after taking the cue from the judgment and order dated 25.9.2002 passed by a Single Judge of this Court in a batch of writ petitions quashing the dismissal orders of various Riflemen/Policemen on the ground of non-appointment of defence assistant as one of the grounds. 16. Per contra, it is submitted by the learned Government Advocate that the instant case can be considered on its own merit i.e., on the basis of the facts and documents available. 16. Per contra, it is submitted by the learned Government Advocate that the instant case can be considered on its own merit i.e., on the basis of the facts and documents available. Further, it is submitted that this case has never been a part of the proceedings before the Apex Court and, as such, this Court can examine whether the disciplinary proceeding culminating into the dismissal of the petitioner has suffered from any legal infirmity or not. It is settled position of law that each case must be decided on its own facts and contentions raised in the case. It is submitted by the learned Counsel for the petitioner that while disposing of Civil Appeal No. 2289/2006 arising put of SLP (C) No. 15727/2005, the Apex Court ordered for rehearing of W.P. (C) No. 637 of 2001, which was disposed of by this Court under common judgment and order dated 25.9.2005. As per aforesaid direction of the Apex Court, the aforesaid W.P. (C) No. 637/2001 was heard and dismissed on merit by this Court by order dated 24.4.2008. In other words, the submission of the learned Government counsel is that each case must be decided on its own merit and, as such, the instant case must also be decided on merit and this submission has considerable force. 17. With regard to the fourth issue, it is contended by the petitioner that despite raising many issues in the appeal, the appellate authority has not considered those issues while dismissing the appeal as the impugned order, marked as Annexure-A/9, has not addressed to many of the issues raised in the appeal. Resisting this contention, Mr. A. Jagjit, learned Additional Government Advocate has submitted that if the appellate authority has to disagree with the findings of the disciplinary authority, the appellate authority may have to give elaborate reasons justifying disagreement with the findings recorded by the disciplinary authority, but in case of agreeing or concurring with the findings arrived by the disciplinary authority, the appellate authority need not elaborately state the reasons for such concurrence and reliance has been placed in support of this proposition in a case reported in (2006) IILLJ 806 SC (Narinder Mohan Arya, Appellant v. United India Insurance Co. Ltd. and Ors., Respondents). Interestingly, the learned Counsel for the petitioner has also put reliance on the aforesaid decision cited by the learned Government Advocate. 18. Ltd. and Ors., Respondents). Interestingly, the learned Counsel for the petitioner has also put reliance on the aforesaid decision cited by the learned Government Advocate. 18. The learned Government Advocate has drawn my attention to a case reported in (2006) IILLJ 540 SC (A. Sudhakar v. Postmaster General, Hyderabad and Anr. wherein the basic procedure for enquiry is discussed as mandated by Article 311(2), which reads as follows: (i) Opportunity to the officer concerned to deny his guilt and establish his innocence which means he must be told that what the charges against him are and the allegations on which such are based; (ii) He must be given a reasonable opportunity to cross-examine the witnesses produced against him and examine himself or other witnesses on his behalf; and (iii) He must be given opportunity to show cause that the proposed punishment would not be proper punishment to inflict which means that the tentative determination of the competent authority to inflict one of the three punishments must be communicated to him. Any condition or additional condition to the aforesaid requirement of Article 311(2), will depend on the requirement and the construction of the relevant rules holding the field. The learned Government Advocate submits that in the instant case the requirement of Article 311(2) and the requirement of Rule 66 of the Assam Police Manual have been fully complied with and, as such, the petition is liable to be dismissed. 19. The relevant Departmental Enquiry record placed before the Court have been perused and it is found that the petitioner was given opportunity to appoint a defence assistant, but he declined the offer. Secondly, it is also found from the records that the petitioner did cross-examine one Shri K. Janglung Kabui, Inspector of Police, who led the escort party to election duty. Records also reveal that opportunity to inspect documents was given to the accused and, as such, there was no denial of any kind of opportunity contemplated under law to the petitioner and, as such, the impugned order does not suffer from any procedural irregularity. 20. Records also reveal that opportunity to inspect documents was given to the accused and, as such, there was no denial of any kind of opportunity contemplated under law to the petitioner and, as such, the impugned order does not suffer from any procedural irregularity. 20. Having considered the rival submissions made by the parties coupled with the finding from the relevant records and also having considered the proposition of law applicable in the case, as discussed above, I do not find any justifiable reason to interfere with the findings of the disciplinary authority (Annexure-A/6) and the appellate authority (Annexure-A/9) and, accordingly, the writ petition is dismissed. No costs. Petition dismissed