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2008 DIGILAW 548 (GAU)

K. Lalthankima v. State of Mizoram

2008-07-30

H.BARUAH

body2008
JUDGMENT H. Baruah, J. 1. Feeling aggrieved with the Order dated 22.11.2006 under Memo No. BN/IR/R/ PROC-115/2006/415 5, 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 in short 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/- pm plus other allowances as admissible from time to time vide appointment Order No. BN/IR/R-9/05/698 dated 18.5.2005 (Annexure-1). After his appointment, he was posted at IR Battalion Mualvum and was discharging his duties to the satisfaction of his superior officers. During that period his wife fell ill which was later diagnosed as Tuberculosis (TB) for which she underwent treatment. She was also admitted for her ailment in the Presbitarian Hospital at Durtlang on 3.10.2006 and was discharged on 7.10.2006. Thereafter, she was on medication for quite sometime, since she could not recover properly she was again admitted in the Civil Hospital at Kawnpui on 10.2.2007 and was discharged on 14.2.2007. The Government of Mizoram deployed a number of police officers of IR Battalion to combat Naxalite Operation in the State of Chhattishgarh vide office Order No. 21R/R-60/2006/2276 dated 25.9.2006. The Petitioner, being a Grade-IV employee of the Battalion was also included in the team as a Cook. However, due to illness of his wife, he was not in a position to move out of Mizoram and accordingly after making an internal arrangement, he sent the elder brother of his wife (Respondent No. 6) to proceed to Chhattishgarh on his behalf on condition that as soon as the Petitioner would be in a position to proceed to Chhattishgarh, he would replace him. Accordingly, as per arrangement, Respondent No. 6 had proceeded to Chhattishgarh and continued to work as IV Grade employee in place of the writ Petitioner. 3. Accordingly, as per arrangement, Respondent No. 6 had proceeded to Chhattishgarh and continued to work as IV Grade employee in place of the writ Petitioner. 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 Battalion Khawzawl w.e.f. 26.9.2006 vide Order No. 21R/R-60/2006/2276 dated 26.9.2006 for proceeding to Chhattishgarh, instead of proceeding to Chhattishgarh he sent one civilian in his place namely, Sh. Laltleipuia without the knowledge/prior permission from the competent authority (Annexure-3). Having received the memorandum of charge, 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. It is to be mentioned at this stage that the Petitioner while submitting written statement of defence admitted his guilt. Being thus removed from service. The Petitioner approached the Hon'ble Minister i/c Home Department, Mizoram and submitted a representation on 18.1.2007 with a prayer for re-instatement to his post explaining the circumstances. 4. It is contended in the writ petition that he was in-capacitated 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 Chhattishgarh. However, he made an internal arrangement by sending the Respondent No. 6 in his place to Chhattishgarh 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 &16 of the Constitution and the order of removal is liable to be set aside and quashed. 5. We have heard Mr. C. Lalramzauva, learned Counsel for the Petitioner as well as Mrs. Helen Dawngliani, learned GA appearing for the State Respondents. 6. Mr. 5. We have heard Mr. C. Lalramzauva, learned Counsel for the Petitioner as well as Mrs. Helen Dawngliani, learned GA appearing for the State Respondents. 6. Mr. C. Lalramzauva, while supporting the writ petition submits inter-alia that he (writ Petitioner) was prevented from proceeding to Chhattishgarh 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 Chhattishgarh. For resorting to such action, the writ Petitioner however, 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 chart 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 Tuberculosis (TB). The Petitioner was selected for cooking purpose, he being Grade-IV employee for proceeding to Chhattishgarh. So, he was accordingly put under suspension by his misconduct, indiscipline, 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. 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 Chhattishgarh 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. 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 Chhattishgarh 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 willfully disobeyed the orders of the superiors which tantamounts insubordination. 10. This Court, having considered the facts 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, however, with no cost. 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.