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2008 DIGILAW 504 (GAU)

P. S. Rockson v. State of Manipur

2008-07-17

ASHOK POTSANGBAM

body2008
JUDGMENT Asok Potsangbam, J. 1. Heard Mr. W. Risom, learned Counsel for the petitioner also heard Mr. N. Kotiswar, learned A.G assisted by Shri A. Jagjit, learned Addl. G.A. 2. Facts of the case which are necessary for disposal of this case are stated as follows : 3. The petitioner, a Police Constable, while working in the Reserve Line of District Police Headquarter, Ukhrul, was placed under suspension by an order dated 22.08.2002, in contemplation of a departmental enquiry relating to the loss of one 38 revolver TITAN Tiger B. No. 408664 from the Arms Kote of District Police Headquarter, Ukhrul. FIR No. 14 (8) 3/2002 Ukl. P.S. was also registered on 14.5.2000 by the O.C. Ukhrul P.S. in connection with the aforesaid loss of the revolver. Thereafter, pursuant to a departmental enquiry instituted under Rule 66 of the Assam Police Manual, Part-DI, vide Memorandum No. D-4/99-SP (Ukl)/4779, dated 25.9.2002, the following charges have been leveled against the petitioner : a) That, while working in the reserve line, DHQ Kote for issuing arms and ammunitions with Section I. N. Duidang, lost one 3 8 revolver Titan Tiger bearing No. B/No. 408664 due to negligence during Jan-May 2000 which is a grave misconduct of the part of the delinquent constable. b) That, the delinquent constable failed to inform his senior officers immediately after the lost of the 38 Titan Tiger Regd. No. N-408664 which is also as a grave misconduct on his part being a member of disciplined force. The charges, as extracted above, were disputed, denied and controverted by the petitioner by filing a statement of defence and during the pendency of the departmental enquiry, the petitioner was reinstated to service by an order dated 5.9.2003 issued by the Superintendent of Police, Ukhrul District, Manipur. 4. The Enquiry Officer, after assessment of evidences of the witnesses and examination of the documents made available during the course of enquiry, came to the conclusion that the first of the two charges leveled against the petitioner, was not proved and in respect of the second charge, the enquiry officer held the charge as proved. Thus, a report with the aforesaid finding was submitted by the enquiry officer to the disciplinary authority. Thus, a report with the aforesaid finding was submitted by the enquiry officer to the disciplinary authority. The disciplinary authority, concurring and agreeing with the finding recorded by the enquiry officer, awarded a minor penalty of stoppage of 3 (three) years increment to the petitioner and thereafter the departmental enquiry was finally closed on 14/05.2005. No appeal nor any review was filed by the authority against the finding and award of penalty by the disciplinary authority and as such the departmental enquiry came to be a closed chapter. The petitioner also did not challenge the finding of the enquiry officer on the second charge, per-haps, the same was considered as of little consequence. 5. It is not in dispute that one S.I. N. Duidang, who was posted in the Reserve Line of Ukhrul District Police Headquarter, was the highest officer-in-charge of the Arm Kote of the District Police and the Petitioner being a Constable working in the Reserve Line, was simply to assist the aforesaid Sub-Inspector of Police. Charge-sheets have been submitted both against the S.I. N. Duidang and the writ petitioner in connection with the FIR Case No. 14(8) 3/2002 Ukl. P.S. and the Section I. was discharged from the case at the time of charge hearing by an order dated 21.5.2005 passed by the C JM, Ukhrul and as a result, the charge was framed only against the petitioner. P.S. and the Section I. was discharged from the case at the time of charge hearing by an order dated 21.5.2005 passed by the C JM, Ukhrul and as a result, the charge was framed only against the petitioner. Against the discharge order dated 21.05.2005 passed in Cril (P) Case No. 3/2005, Criminal Revision Case No. 16/2005 was filed by the State Government and the said revision case was disposed of by the learned Session Judge by its judgment and order dated 29.01.2007 by setting aside the order of discharge, with a direction to reconsider framing of charge against the aforesaid S.I. N. Duidang and thereafter, by an order dated 02.05.2007 passed by the learned CJM, Ukhrul, charges were framed against the said S.I. N. Duidang as well as the petitioner and the substance of charge reads as follows : In the result of the foregoing observations, I come to the conclusion that there is prima facie evidence against both the accused No. 1 and 2 namely, (1) N. Duidang and (2) P.S. Rockson for believing that they have committed criminal breach of trust of the Government property i.e. one 38 revolver (Titan Tiger) which was entrust to them liable to be punished under Section409 of the Indian Penal Code and for conspiracy between them for committing the said criminal breach of trust liable to be punished under Section 120B of the Indian Penal Code. Hence, the charges under Section 409 and 120B of the Indian Penal Code are framed against both the accused persons, namely, (1) N. Duidang and (2) P.S. Rockson. 6. Immediately after the charges were framed, a letter dated 09.05.2007 was written by the MLA of 43 Phungyar (AC), not only making some scandalous allegation against the judiciary but also urging the Hon'ble Chief Minister to close the case in respect of Section I. N. Duidang and the Hon'ble Chief Minister instructed the DGP in the following words, "PLEASE EXAMINE AND PROCESS FORFURTHER NECESSARY ACTION AS RECOMMENDED WITHOUT FURTHER DELAY"...C.M. Pursuant to the aforesaid note of the Hon'ble Chief Minister, I. G of Police (Administration) vide letter No. E/40/70 (4)/2007-PHQ (Adm)/8868, dated 17th May, 2007, called a report from the Superintendent of Police, Ukhrul District and the aforesaid letter is reproduced below : To, The Superintendent of Police, Ukhrul District, Subject: Disciplinary action against S.I. N., Duidang, and Constable No. 911149 P.S. Lockson. Please find enclosed herewith a copy of U.O. No. 1/Home/MLA(PHY)-07 dated 9.5.2007 of Shri Wungnaoshang Keishing, MLA, 43-Phungyar (ST) A/C with his remarks to the Hon'ble Chief Minister, Manipur and the Hon'ble Chief Minister, Manipur has marked to DGP, Manipur to examine and process for further necessary action on the subjected cited above. 2. Please furnish a detail report along with the case record in this regard at an early date. Enclosed: As above. So/- (N. Kipgen) I.G. of Police (Admn.) For Director General of Police, Manipur, Imphal. 7. By a notice dated 10.7.2007, the petitioner was asked to submit show cause statement as to why the order of the Superintendent of Police, Ukhrul, dated 14.05.2005 awarding minor penalty should not be quashed and why the petitioner should not be dismissed from service and this notice was purportedly issued in exercise of the power conferred by Rule 68(6) read with Rule 66(5)(b) of the Assam Police Manual-III and accordingly, a show cause statement was submitted by the Petitioner. It is noticed that the letter dated 17.05.2007 as extracted above was written by the I. G of Police (Administration) calling report from Superintendent of Police, Ukhrul District, in pursuance of the instruction given by the Chief Minister but the notice, as discussed above, was issued by the respondent No. 4 who was the I. G. LO-II at the relevant time. Thereafter, respondent No. 4 issued an order dated 20th August, 2007 quashing the order dated 14.5.2005 issued by the Superintendent of Police, Ukhrul District, by which a minor penalty of stoppage of three years increment was awarded and thereafter, a penalty for removal of the petitioner from service was also awarded w.e.f. 20th August, 2007 and this order is impugned in the instant case. 8. At one stage of hearing of this case, this Court vide order dated 26.3.2008, sought the assistance of learned Advocate General in order to ascertain as to whether the post of DGP is a statutory post or a statutorily recognized post or not. Secondly, whether the post of IGP appearing in Rule 68 (6) and in any other connected rules as applicable in Manipur would mean the post of DGP or not. Secondly, whether the post of IGP appearing in Rule 68 (6) and in any other connected rules as applicable in Manipur would mean the post of DGP or not. In this regard, an additional affidavit has been filed by the Government respondent by explaining, inter-alia, that by virtue of the order dated 29.3.1988 issued by the Department of Personnel, Government of Manipur, under Section 4 of the Police Act, 1861, Director General of Police exercises the powers and functions of the Inspector General of Police in addition to his normal duties w.e.f. 26.3.1988 until further order. A copy of the order which is annexed in the Additional Affidavit is reproduced herein below: ORDERS BY THE GOVERNOR: MANIPUR" Imphal, the 29th March, 1988 No. 3/13/85-IPS/DP: Under Section 4 of the Police Act, 1861, the Governor of Manipur is pleased to order that the Director General of Police, Manipur will exercise the powers and functions of the Inspector General of Police, Manipur in addition to his normal duties with effect from 25.3.1988 and until further orders. By orders & in the name of the Governor Sd/- (Ng. Luikham) Deputy Secretary (DP) to the Govt. of Manipur 9. During the pendency of this case, criminal trial of Cril (P) Case No. 3 of 2005, 3/07, arising out of FIR Case No. 14(8) 2002 Cril P. Section under Sections 409 and 120B IPC came to be finally disposed of by the learned CJM, Ukhrul, vide judgment and order dated 4.06.2008 wherein the petitioner was acquitted of all the offences charged against him and learned CJM, Ukhrul has also acquitted the aforesaid S.I. N. Duidang of all the offences charged against him. It is pertinent to mention here that the charge against the petitioner and the S.I. Duidang was of the offence of Criminal Breach of Trust as defined in Section 409 of IPC and criminal conspiracy under Section 120 BIPC. The findings of the CJM, Ukhrul in respect of the petitioner No. 2 recorded in para No. 22 is reproduced here : 20. Regarding the accused No. 2, it is an admitted fact that he was detailed as kote-in-charge of the Reserve Line. Ukhrul. vide order dated 23.6.2000 issued by the then S.P. Ukhrul but on the other hand, the allegation of the prosecution is that the said 38 revolver was lost in the month of April/May. Regarding the accused No. 2, it is an admitted fact that he was detailed as kote-in-charge of the Reserve Line. Ukhrul. vide order dated 23.6.2000 issued by the then S.P. Ukhrul but on the other hand, the allegation of the prosecution is that the said 38 revolver was lost in the month of April/May. 2000 and therefore, it is crystal clear that the lost of the said 38 revolver was caused prior to his detailing as kote-in-charge. The Investigating Officer has also deposed in his cross-examination as follows : "I do agree that the arm in question was lost prior to detailing Rockson as kote-in-charge by S.P. Ukhrul vide Ext. P/8. Further, since the prosecution has failed to prove beyond reasonable doubt the entrustment of the arm in question to the accused No. 1 when he had taken the charge of Reserve Officer of S.P. Ukhrul, vide order dated 6.11.1999. the question of entrustment of the same will got arise to the accused No. 2 because he was detailed as kote-in-charge only on 23.6.2000. 10. From the above narration of facts and on perusal of the documents made available before the Court, the following issues emerge for consideration of the court. (i) In view of the Government order dated 29.3.1988, as extracted above, whether the I.G. of Police appearing in Rule 68(6) or any other connected Rules be construed to be the DGP of the State Police and if it is answered in the affirmative, whether the impugned order suffers from want of jurisdiction/competency or not. (ii) Whether the process for issuance of the impugned order has been initiated as a consequence of instruction given by the Hon'ble C. M. and if so, whether the impugned order is hit by the vices of dictation by higher authority or interference by authority which is not recognized by law regulating disciplinary proceeding of a Government Servant. (iii) In view of the clean acquittal of the petitioner by the Judgment and Order dated 28.3.2008 passed by the learned CJM in Cril (P) No. 3 of 2005, the order dated 20th August, 2007, removing the petitioner from service is liable to be set aside as both the DE and criminal trial are on the same facts and on the same subject matter. 11. With regard to the first issue, Mr. 11. With regard to the first issue, Mr. Risom, learned Counsel for the petitioner submits that after the introduction of the post of DGP in the Central and State Police Organisation, it is the DGP alone who would exercise all the powers which were exercisable by the IGP before the introduction of the post of DGP and in order to enable the DGP to exercise the powers vested to IGP as discussed above, Government issued an order dated 29.3.1998 in exercise of the powers given under Section 4 of the Police Act, 1861. The learned Counsel has referred to an order passed by this Court on 26.3.2008 wherein the court directed the learned Advocate General, Manipur to get necessary information/ instructions on the following points : (1) Whether the post of DGP (Director General of Police) is a statutorily backed post or statutorily recognized post or not? And (2) Whether the post of Inspector General of Police (IGP) appearing in Rule 68 (6) of the Assam Police Manual, in the Police Act and other connected laws as applicable in Manipur, would mean the post of DGP or not? 12. The learned Counsel for the petitioner has also referred to para-2 of the Govt. Additional Affidavit dated 19.5.2008 which reads as follows : 2. That, the respondents are accordingly submitting the information as required by this Hon'ble Court : i) As regards the first query it is submitted that the post of DGP is a statutorily recognized post. ii) As regards the second query, it is submitted that as per the Govt. order under No. 3/13/85-IPS/DP dated 29th March, 1988 issued in the name of Governor by the Dy. Secretary (DP) to the Govt. of Manipur, it has been declared that under Section 4of the Police Act, 1861, the Director General of Police, Manipur will exercise the powers and functions of the Inspector General of Police, Manipur in addition to his normal duties w.e.f. 29.3.1988 and until further orders. Accordingly, the position of the Director General of Police under the Police Act has been clarified. 13. In view of the admission of the Govt. Accordingly, the position of the Director General of Police under the Police Act has been clarified. 13. In view of the admission of the Govt. in their affidavit, as extracted above, that the post of DGP is a statutorily recognized post and the DGP exercises all the powers exercisable by the IGP, after the notification dated 29.3.1998 and as such, the logical conclusion is that the DGP alone can exercise the powers available under Rules 68 (6) or any other relevant Rules of the Assam Police Manual Part-in. While issuing the impugned order, the respondent No. 4 relied upon a case reported in about the suo moto power of the revisional power of the Inspector General of Police as provided in Rule 853 A of the Bihar Police Manual. It will be noticed from para-4 onwards of the judgment referred to above, that the power of revisional jurisdiction was exercised by the DGP though such power is given to the IGP in Rule 853A of the Bihar Police Manual. Therefore, the case cited by the respondent No. 4 is, in fact, in consonance with the stand taken by the Govt. with regards to the power and authority of the DGP and as a result, the IGP is no longer the appropriate and competent authority who can exercise the power given in Rule 68(6), etc. and as a consequence thereof the impugned order dated 28.8.2007 issued by the IGP (LO-II) is liable to be quashed and set aside for want of competency and jurisdiction. 14. In view of the above, the first issue is answered in the affirmative and this Court holds that the DGP alone has the residuary and revisional powers as provided in Rule 68 (6) or any other relevant Rules under Assam Police Manual. 15. With regard to the second issue, it is submitted by the learned Counsel for the petitioner that 2 years after the closure of the DE by awarding a minor penalty of stoppage of 3 years' increments, the enquiry was reinstated by the IGP (LO-II) explaining the delay that no copy of the order of the disciplinary authority was given to his office. Therefore, the office of the IGP (LO-II) had no opportunity to examine and consider the correctness or otherwise of the penalty awarded by the Disciplinary Authority to the petitioner. Therefore, the office of the IGP (LO-II) had no opportunity to examine and consider the correctness or otherwise of the penalty awarded by the Disciplinary Authority to the petitioner. The learned Counsel for the petitioner submits that after the D.O. letter dated 9.5.2007 of the M.L.A., 43 Phungyar (ST)A/C, the Hon'ble Chief Minister instructed the DGP vide his note dated 10.3.2007 and thereafter in pursuance of the aforesaid instructions of the Hon'ble Chief Minister, the IGP (Admn.) called for a report from the Superintendent of Police, Ukhrul District vide a letter dated 17.5.2007 of the I. G. P. (Admn.) which has been reproduced in the foregoing para 6 of this judgment. It is submitted by the learned Counsel for the petitioner that reinitiating of the disciplinary proceedings by way of exercising revisional powers by the respondent No. 4 is the direct result of the Hon'ble Chief Minister's intervention as discussed above and as such the impugned order is liable to be quashed on this count also. This averment is disputed and denied by the respondents. 16. In support of the contentions against the unauthorized interference by the authority not recognized by law, the learned Counsel for the petitioner has relied upon the following cases : (1) 2000 (1) GLT 41 in Manu Ram Das v. Assam Fisheries Dev. Corporation Ltd. and Ors; (2) 1999 (2) GLT 620 in 129 Haria Dablong Min Mahal Samabai Samity Ltd. v. Assam Fisheries Dev. Corporation Ltd. and Ors.; and (3) 1996 (2) GLT 652in Rai Mohan Sarkar v. State of Assam and Ors. wherein this Court held that an order passed on direction and at the behest of the Minister is illegal and this Court also held that in the matter of disciplinary proceedings, Rules for disciplinary proceedings do not empower a Minister to intervene or interfere in any disciplinary proceedings. Be that as it may, in view of the findings of the Court in issue No. 1, this Court considers it not necessary to decide the issue No. 2 as the same is redundant. 17. Be that as it may, in view of the findings of the Court in issue No. 1, this Court considers it not necessary to decide the issue No. 2 as the same is redundant. 17. With regard to the third issue, it is submitted by the learned Counsel for the petitioner that the departmental proceedings and the criminal case, as referred to above, are based on the same facts and on the same subject matter without there being any difference and as such the order of removal of petitioner from service dated 20.8.2007 is liable to be quashed and set aside in view of the decisions rendered by the Apex Court in (1999) ILLJ 1094 SC ; (2006) IIILLJ 1075 SC and (2007) 1 SCC 566 . In the aforesaid cases, the Apex court held that if the departmental proceedings and the criminal trials are on identical facts and evidence, the order of dismissal passed in a departmental proceeding cannot be allowed to continue if the incumbent is acquitted from the criminal case by a judicial pronouncement after regular trial on contest. The Apex Court relying on the law laid down in Capt. M. Paul Anthony case (supra) also observed that allowing to continue dismissal/ removal order passed by the disciplinary authority in the circumstances discussed above, would be unjust, unfair and oppressive. In the instant case, the finding of the criminal Court is that the petitioner having been detailed as Kote-in-charge of the Reserve line, Ukhrul, vide order dated 23.6.2000 issued by Section P. Ukhrul, the question of entrustment and loss of the said 38 Revolver cannot be linked/connected with the petitioner under any circumstances as the loss had occurred in the month of April/May, 2000 i.e. before detailing the petitioner as Kote-in-charge and this factual position is supported by the statements of IO which is available at para 20 of the judgment of the criminal trial reproduced in para 9 of this judgment. In view of the clear-cut finding of the Criminal Court, the impugned order dated 20.8.2007 issued by the respondent No. 4 cannot be allowed to continue any further. 18. Having regard to the submissions made by the parties and for the reason discussed above, the impugned order dated 20.8.2007 is hereby quashed and set aside and the respondents are directed to reinstate the petitioner to service immediately. 19. 18. Having regard to the submissions made by the parties and for the reason discussed above, the impugned order dated 20.8.2007 is hereby quashed and set aside and the respondents are directed to reinstate the petitioner to service immediately. 19. It is further ordered that the period from the date of removal from service till the date of reinstatement shall be treated as on duty with all consequential benefits. 20. In the peculiar facts and circumstances and in view of the clean chit given by the Criminal Court, it is a fit case where the benefit of backwages shall be given and accordingly it is directed that the petitioner shall be given full backwages. 21. It is also made clear that the above exercise shall be completed within a period of three months form the date of receipt of a certified copy of this order. 22. Writ Petition stands allowed. No order as to costs. Petition allowed.