Research › Search › Judgment

Gauhati High Court · body

2008 DIGILAW 515 (GAU)

Z. R. Remtluanga v. State of Mizoram

2008-07-21

H.BARUAH

body2008
JUDGMENT H. Baruah, J. 1. Heard Mr. S.N. Meitei, learned Counsel for the petitioner as well as Mrs. Helen Dawngliani, learned GA for the State respondents. 2. The subject matter of challenge in this writ petition, is the order dated 30.10.2006 passed by the Deputy Commandant, 2nd IR Bn. Khawzawl, Mizoram Communicated vide letter No. 21R/R-60/2006/2517 dated 30.10.2006. By this impugned order, the writ petitioner, serving as Constable in the 2nd IR Bn. during the relevant point of time was removed from service on account of desertion. 3. The petitioner was appointed as Constable on 14.11.2000 vide order dated 14.11.2000 bearing No. K/PHQ/M/7/PT/ 191 issued by the Assistant Inspector General of Police-I, Mizoram Aizawl and he was confirmed in the said post by Order No. 21R/R-43/2003/3065 dated 24.4.2003 with effect from 1.12.2002. While he was discharging his duty as Constable in the month of July 2006, he was suffering from pain and had undergone treatment. The pain aggravated despite taking medicine and he had to take advice from a civilian doctor at Aizawl. The doctor who offered treatment suspected his case as Sciatica and advised him to re-visit him on 4.8.2006. Accordingly, he applied for leave for attending the civil physician at Aizawl, but no leave was granted rather asked him to proceed to Vairengte to join the training at CIJW and accordingly moved on 4.8.2006. During the training, the petitioner's health deteriorated and he was unable to attend training further and was bed-ridden. Since he did not join the training at Vairengte, he received a calling notice on 26.10.2006 issued by the Commandant 2nd IR Bn. wherein it was directed that he had to resume his duty within three days from the date of receipt of the notice. Despite receipt of such notice, he could not report for duty due to his aggravated ailment. After some recovery, he went for submitting a joining report but was not allowed to join, rather was served with the impugned dismissal order. It is contended in the writ petition that without holding departmental inquiry, he has been removed from service by the impugned order by the Deputy Commandant, 2nd IR Bn. which is not legally sustainable per provisions of Article 311 of the Constitution read with provisions of Police Manual. 4. Mr. It is contended in the writ petition that without holding departmental inquiry, he has been removed from service by the impugned order by the Deputy Commandant, 2nd IR Bn. which is not legally sustainable per provisions of Article 311 of the Constitution read with provisions of Police Manual. 4. Mr. S.N. Meitei, learned Counsel for the petitioner while arguing the case, has submitted that the order dated 30.10.2006 is illegal, arbitrary since the same was passed by an officer sub-ordinate to the appointing authority. Mr. S.N. Meitei in support of his contention has led me through the provisions of Article 311 of the Constitution and also the Police Manual as well. The writ petitioner, according to Mr. S.N. Meitei was appointed as Constable by the Assistant Inspector General of Police-I, Mizoram Aizawl, who is in the equal status and rank with the Commandant of a Police Battalion. The Deputy Commandant of the Battalion, naturally, is a subordinate officer either to the Assistant Inspector General of Police or the Commandant of the Battalion. So, the Deputy Commandant of the 2nd IR Bn. apparently being not the appointing authority of the writ petitioner, he usurped jurisdiction in the removal of the writ petitioner from service. Per provisions of Article 311 of the Constitution, a civil servant is not liable to be dismissed/removed from service by an officer sub-ordinate to the appointing authority. According to Mr. S.N. Meitei, the case of the petitioner is covered by the provisions of Article 311 of the Constitution since the impugned order was passed by the Deputy Commandant, 2nd IR Bn. who is not the appointing authority and that too, as Subordinate Officer of the Commandant of the Battalion. 5. It is further argued by Mr. S.N. Meitei that for the purpose of resorting to penalty provided in the Police Manual, the appointing authority is required to initiate a departmental proceeding against the delinquent officer and while doing so, the delinquent officer is required to be afforded adequate opportunity to present his case. But no such opportunity was given to the writ petitioner by the respondent authorities rather without initiating a departmental proceeding, the writ petitioner was removed from service. The manner in which the punishment was awarded, according to Mr. S.N. Meitei, is not legally sustainable. 6. While projecting the case of the petitioner, Mr. But no such opportunity was given to the writ petitioner by the respondent authorities rather without initiating a departmental proceeding, the writ petitioner was removed from service. The manner in which the punishment was awarded, according to Mr. S.N. Meitei, is not legally sustainable. 6. While projecting the case of the petitioner, Mr. S.N. Meitei, learned Counsel for the petitioner has also led me through the judgments and orders passed by this Court in W.P. (C) 50/07 and W.P (C) 59/07 and submits that the case of the writ petitioner is squarely covered by the judgments and orders passed by this Court in the above writ petitions. It is submitted by him that vide the impugned and order dated 30.10.2006, 7 (seven) officers (Havildars & Constables) were removed from service by the Deputy Commandant, 2nd IR Bn. on different charges/allegations. W.P. (C) 50/07 and W.P. (C) 59/07 were initiated by two of those officers who were removed from service by the said impugned order. Since the case of the petitioner is squarely covered by the case of the writ petitioners in W.P. (C) 50/07 and 59/07, in the same line, this writ petition may also be disposed of, Mr. S.N. Meitei argues. 7. Mrs. Helen Dawngliani, learned GA for the State respondents also agrees that this present writ petition is also covered by the judgments and orders passed by this Court in W.P. (C) 50/07 and W.P. (C) 59/07 and therefore there can be no impediments in the disposal of the present/instant writ petition in the manner in which the above writ petitions have been disposed of. 8. This Court, while disposing W.P. (C) 50/07 discussed the ratio laid down by the Supreme Court in the case between Krishna Kumar v. Divisional Assistant Electrical Engineer and Ors. reported in (1980) ILLJ 209 SC and Transport Commissioner, Madras-5 v. A. Radha Krishna Moorthy reported in (1995) 1 SCC 332 . The Hon'ble Supreme Court in the judgments (supra) held that any punishment provided by an officer sub-ordinate to the appointing authority would be illegal under Article 311 of the Constitution, though, there is no bar in the initiation of the departmental proceeding by an authority subordinate to appointing authority. The Hon'ble Supreme Court in the judgments (supra) held that any punishment provided by an officer sub-ordinate to the appointing authority would be illegal under Article 311 of the Constitution, though, there is no bar in the initiation of the departmental proceeding by an authority subordinate to appointing authority. Adhering to such ratio laid down by the Hon'ble Supreme Court, this Court held that the impugned order dated 30.10.2006 is not legally sustainable since it is violative of Article 311 of the Constitution. 9. The grievance of the writ petitioner is that, the Deputy Commandant of the 2nd IR Bn. Khawzawl, Mizoram is not authorized to order removal of the writ petitioner from service, he being not the appointing authority of the present writ petitioner. Therefore, the removal order was passed without jurisdiction in violation of Police Manual and Article 311 of the Constitution. Learned Counsel for the petitioner, therefore, submits that the Assistant Inspector General of Police, can be equated with the Commandant of a Police Battalion. The removal order dated 30.10.2006 having been not passed by the Commandant of the 2nd IR Bn., the same is ex-facie, illegal, arbitrary and whimsical. 10. I have given an anxious consideration of the facts and circumstances of the case appearing in the face of record and also the submissions advanced by the learned Counsel of both the party. 11. While having considered the matter in its entirety, this Court does not see any ground to allow the impugned order passed by the respondent No. 3 to stand. The order is accordingly set aside and quashed, the same being unconstitutional. 12. While ordering so, the writ petitioner accordingly be deemed to continue in the service from the date of his dismissal. The writ petitioner shall also be entitled to all pay benefits. Door is, however, not close to initiate a departmental proceeding to the respondent authorities against the present writ petition, if so advised. 13. This writ petition is accordingly disposed of, however, with no cost.