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2008 DIGILAW 517 (GAU)

R. L. Malsawma v. State of Mizoram

2008-07-22

H.BARUAH

body2008
JUDGMENT H. Baruah, J. 1. Feeling aggrieved with the Order dated 22.11.2006 under Memo No. BN/IR/R/PROC-15/2006/4152, the writ Petitioner herein has filed this writ petition under Article 226 of the Constitution of India for issuance of a writ in the nature of mandamus/certiorari and/or any other appropriate writ (s)/directions to the Respondent authorities. The Respondent No. 5 herein by virtue of this order impugned removed the writ Petitioner from service with immediate effect. 2. For the purpose of appropriate disposal of this writ petition, it would be proper for this Court to place the case of the writ Petitioner at this stage. The writ Petitioner being found fit and qualified for appointment to the post of Grade-IV in the 1st IR Battalion under the Government of Mizoram was appointed as Grade-IV employee against the existing vacancy in the Battalion in the scale of pay of Rs. 2650-4000/- p.m. plus other allowances as admissible from time to time vide appointment Order No. BN/IR/R-9/03/6717 dated 7.3.2003 (Annexure-1). After his appointment, he was posted at IR Bn. Mualvum and was discharging his duty to the satisfaction of his superior officers. During that period his wife fell ill which was later diagnosed as Neuropathy with generalized body aching with tingling and numbness of the legs and fever for which she underwent treatment. During that time the Government of Mizoram deployed a number of police personnel of the IR Bn. to combat Naxalite movement in the State of Chhattisgarh and the Petitioner being a Grade-IV employee of the said Battalion was also included in the team as a cook. Since his wife was ailing, the Petitioner was not in a position to move out of Mizoram and for that he approached his superior authority to put someone else in his place to Chhattisgarh, but his request was turned down by the authority. It is also contended that as a result of his inability to proceed to Chhattisgarh, he managed Respondent No. 6 herein a civilian to proceed to Chhattisgarh as his substitute and he (Respondent No. 6) continued to work as Grade-IV employee deployed for the purpose. 3. While the writ Petitioner was busy with the ailment of his wife, he was placed under suspension and subsequently served a Memorandum of charges wherein he was charged that though he was released from the 2nd IR Bn. 3. While the writ Petitioner was busy with the ailment of his wife, he was placed under suspension and subsequently served a Memorandum of charges wherein he was charged that though he was released from the 2nd IR Bn. Khawzawl w.e.f. 26.9.2006 vide Order No. 21R/R-60/2006/2276 dated 26.9.2006 for proceeding to Chhattisgarh instead of proceeding to Chhattisgarh he sent one civilian in his place namely, Vanlalhruaia without the knowledge/prior permission from the competent authority (Annexure-4). Having received the charge framed, the Petitioner submitted his reply which was, however, not accepted by his superior authority. Departmental Proceeding started against the writ Petitioner and one D.K. Chakraborty Assistant Commandant was appointed as Inquiry Officer to inquire into the charge framed against the Petitioner. At the conclusion of the inquiry, the Inquiry Officer submitted his report and vide impugned order he was removed from service with immediate effect. Being thus removed from service, the writ Petitioner submitted a representation with a prayer for re-instatement to his post explaining the circumstances. 4. It is contended in the writ petition that he was incapacitated due to illness of his wife and there was no other person during the relevant time to attend her except him, for which he was unable to proceed to Chhattisgarh. However, he made an internal arrangement by sending the Respondent No. 6 in his place to Chhattisgarh as his substitute and in doing so he, however, did not obtain any permission from his superior authority. It is contended by the writ Petitioner that the action of the Respondent in awarding penalty of removal from service is violative of the provisions of Articles 14 and 16 of the Constitution and the order of removal is liable to be set aside and quashed. 5. We have heard Mr. A.R. Malhotra, learned Counsel for the Petitioner as well as Mrs. Helen Dawngliani, learned GA appearing for the State Respondents. 6. Mr. A.R. Malhotra, while supporting the writ petition submits inter-alia that he was prevented from proceeding to Chhattisgarh despite his deployment due to ailment of his wife at that point of time and not to frustrate the purpose, the Petitioner managed to put a substitute (Respondent No. 6) for proceeding to Chhattisgarh. For resorting to such action, the writ Petitioner never obtained any permission from his superior authority. For resorting to such action, the writ Petitioner never obtained any permission from his superior authority. For such action/omission on the part of the writ Petitioner, the Respondent authorities proceeded to deal with the matter by instituting a Departmental Proceeding against the writ Petitioner. While proceeding as such, reasonable/appropriate opportunity was given to the writ Petitioner to project his case by his reply to the charge framed. He admitted his guilt and the Respondent authority accordingly awarded penalty of removal from service. 7. In the affidavit-in-opposition, the Respondents pleaded that the Petitioner at no point of time brought to the notice of the concerned authorities either verbally or in writing that his wife was suffering from Neuropathy. The Petitioner was selected for cooking purpose, he being Grade-IV employee for proceeding to Chhattisgarh. So, he was accordingly put under suspension for his misconduct, undiscipline, sincerity and lack of integrity and honesty. It is also contended in the affidavit-in-opposition filed by the Respondents in reply to show cause of the charge framed that the Petitioner admitted the charge levelled against him and prayed for forgiveness for his act of misconduct. That apart, it is also contended that the Petitioner while submitting reply to the charge Memorandum, he contradicted himself by saying that due to his acute illness, he was unable to proceed to Chhattisgarh. Since the Petitioner during the course of Departmental Proceeding admitted the charges framed against him, the Inquiry Officer did find the writ Petitioner guilty of the charges and accordingly, penalty of removal was awarded by the competent authority. It is contended that nothing illegality has been committed by the Respondent authorities in removing him from service. 8. There is no denial on the part of the writ Petitioner that he was never deputed for Chhattisgarh with the Battalion as a cook for combating the Naxalite Operation. There is also no denial on the part of the Petitioner that he did not send a substitute (Respondent No. 6) in his place without obtaining any permission from the superior authority. The Petitioner while facing the disciplinary proceeding, in reply to the charge made an admission of the charge that despite being sent, he did not proceed to Chhattisgarh and in his place, Respondent No. 6 proceeded for at his request. 9. The Petitioner while facing the disciplinary proceeding, in reply to the charge made an admission of the charge that despite being sent, he did not proceed to Chhattisgarh and in his place, Respondent No. 6 proceeded for at his request. 9. In view of such admission, the Respondent authorities did not commit any error in awarding punishment of removal from service. The Petitioner wilfully disobeyed the order of the superiors which amounts to insubordination. That apart, the Petitioner also made some unacceptable statement which clearly reflected his misconduct. It is found from the affidavit-in-opposition that the writ Petitioner contradicted himself while submitting his reply to the Memorandum of charge that it she, who had actually suffered from illness not his wife. But in this present writ petition the Petitioner has pleaded that his wife was actually ailing at the relevant point of time. 10. This Court, having considered the fact situation in its entirely finds that the writ Petitioner is guilty of indiscipline, insubordination and insincerity and honesty. The Respondent authorities, to the humble view of this Court rightly awarded the punishment of removal from service, which does not warrant any interference from this end. This writ petition lacks merit and it is accordingly dismissed. 11. Before parting, this Court desires to issue a direction to the Respondent authorities to consider the writ Petitioner's representation, if in the meantime filed for consideration. Petition dismissed