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2009 DIGILAW 22 (GAU)

Kagum Nomuk v. State of Arunachal Pradesh

2009-01-13

P.K.MUSAHARY

body2009
JUDGMENT P.K. Musahary, J. 1. Heard Mr. C. Baruah, learned senior Counsel assisted by Mr. R. Saikia, learned Counsel for the Petitioner and also heard Ms. G. Deka, learned Addl. Senior Government Advocate, appearing on behalf of the state Respondents. 2. The Petitioner was working as S.I. in the establishment of 2nd APR Bn. and at the relevant time he was posted as Officer-in-Charge of Miao Police Station in Changlang District. A departmental proceeding was initiated against him on the charges, amongst other, of injuring his wife by firing from his service revolver. A memorandum along with the article of charges was served upon him by the Deputy Inspector General of Police (E), Arunachal Pradesh, vide letter dated 8.3.1997. Thereafter, by an order dated 8.3.1997 issued by the Deputy Director General of Police (E) appointed one Shri J. Tayeng, Dy. S.P. of Changlang as the Enquiry Officer to inquire into the charges framed against the Petitioner. The inquiry was conducted accordingly by the Enquiry Officer. 3. A statement was made by Smti. Limi Nomuk, wife of the Petitioner on 13.1.1998 stating inter alia that the allegations made against her husband are totally false and baseless. The Enquiry Officer recorded the statement of witnesses and on completion of the inquiry submitted a report. The Enquiry Officer gave his opinion that the charges framed against the Petitioner have been proved. A copy of the inquiry report was also furnished to the Petitioner so as to enable him to make representation against the findings of the Enquiry Officer. Accepting the inquiry report, the disciplinary authority discharged the Petitioner from service with immediate effect by an order dated 5th November, 2002 issued by the Respondent No. 4, Commandant, 2nd APP Battalion. Along which was communicated to the Petitioner vide Memo No. P-014/DA/2nd/BN/SI/NK/96 dated 7th November, 2002. Against the aforesaid discharge order, the Petitioner filed an appeal and the same was dismissed by the Respondent No. 3, Deputy Inspector General of Police (West) vide order dated 13th February, 2003. The Petitioner then filed an application for revision of the order dated 13.2.2003 before the Respondent No. 2, Inspector General of Police, Arunachal Pradesh on 18.2.2003. Against the aforesaid discharge order, the Petitioner filed an appeal and the same was dismissed by the Respondent No. 3, Deputy Inspector General of Police (West) vide order dated 13th February, 2003. The Petitioner then filed an application for revision of the order dated 13.2.2003 before the Respondent No. 2, Inspector General of Police, Arunachal Pradesh on 18.2.2003. The said application was considered by the Respondent No. 2 and it was not only rejected but modified the punishment by imposing order of dismissal from service vide Order No. PHQ®DP-09/97 dated 10th September, 2003, the said dismissal order is under challenge in the present writ proceeding. 4. Mr. C. Baruah, learned Senior Counsel for the Petitioner submits that the inquiry proceeding as conducted by the Respondent authorities are vitiated as no "Presenting Officer" was appointed for conducting the inquiry as required under Rule 14(5)(c) of the CCS (Classification, Control & Appeal) Rules, 1965 (hereinafter referred to as "the Rules" only) and the order of dismissal is disproportionate to the allegations/charges brought against the Petitioner. Mr. Baruah, learned Senior Counsel also submits that the appointment of a Presenting Officer is not only a mere formality but it is a mandatory requirement provided under the Statutory Rules and it is the established law that the disciplinary proceeding conducted without appointing the "Presenting Officer" would vitiate the entire inquiry proceeding and the punishment awarded after such inquiry is liable to be quashed as illegal. 5. In this case, according to Mr. Baruah, the "Presenting Officer" having not been appointed, the "Enquiry Officer" concerned has acted as Prosecutor and as a Judge himself which is not permissible under the law. In support of his submission, he has referred to the case of Dr. Rajyamalla Bujorbaruah vs. State of Assam reported in (1983) 1 GLR 130. 6. As regard the punishment, it is submitted by Mr. In support of his submission, he has referred to the case of Dr. Rajyamalla Bujorbaruah vs. State of Assam reported in (1983) 1 GLR 130. 6. As regard the punishment, it is submitted by Mr. Baruah, learned Senior Counsel that the punishment of dismissal from service is too harsh and disproportionate to the allegation leveled against the delinquent inasmuch as the wife of the Petitioner whom the Petitioner allegedly shot at by his service revolver, clearly stated in her statement before the Enquiry Officer that when she was going to deliver the revolver to her husband, her "gale" suddenly got loose and while trying to take care of her "gale" (wearing apparel of the local tribal women) and accordingly firing took place and the bullet passed through her left leg. Mr. Baruah, however, also submits that the finding of the Enquiry Officer is perverse inasmuch as the evidence on record was not considered and appreciated properly. The disciplinary authority including the appellate authority also failed to consider and appreciate the evidence of the Petitioner's wife that it was an accidental fire and the Petitioner did not shoot herself. 7. Ms. G. Deka, learned Addl. Senior Govt. Advocate supporting the impugned dismissal order submits that the Petitioner, being a member of the police force, is expected to keep the service weapon in his safe custody while at home and there was negligence on his part in allowing his wife to carry and/or bring the service revolver and hand over to him carelessly. The Petitioner, according to Ms. Deka, tried to conceal the fact of firing in which his wife received bullet injury from his service revolver by not reporting the same to the higher authorities, which amounts to serious negligence and misconduct on the part of the Petitioner and the same attracts extreme punishment like dismissal from service. In this respect, Ms. Deka has drawn the attention of this Court to Paras 4 and 14 of the affidavit-in-opposition filed by the Respondent authorities and submits that the punishment of dismissal of the Petitioner from service is not disproportionate. 8. The crux of the matter is whether the disciplinary authority appointed any Presenting Officer for conducting the disciplinary proceeding against the Petitioner. I have carefully gone through the affidavit-in-opposition filed by the State Respondents. 8. The crux of the matter is whether the disciplinary authority appointed any Presenting Officer for conducting the disciplinary proceeding against the Petitioner. I have carefully gone through the affidavit-in-opposition filed by the State Respondents. In Para 5 of the said affidavit, it is pleaded that the Petitioner never raised this point at any stage of enquiry and the appointment of Presenting Officer in each and every case is not mandatory. Although no averments have been made precisely whether the Presenting Officer was appointed, it has become clear from the aforesaid averments in the affidavit that no such Presenting Officer was appointed. 9. I have gone though the records pertaining to the disciplinary proceeding initiated against the Petitioner, as produced by the Respondents. I find no such order in the record appointing any Presenting Officer, the disciplinary authority did not at all contemplate appointment of such Presenting Officer and the enquiry was conducted by the Enquiry Officer himself who examined some witnesses and also produced documents without being presented by any Presenting Officer. The next question is whether the departmental inquiry conducted without appointing the Presenting Officer would vitiate the entire proceeding and also render the punishment awarded by the disciplinary authority illegal. By now, law has already been settled that appointment of Presenting Officer is a mandate of the law which must be followed strictly. Under Rule 14(5)(c), the provision for appointment of Presenting Officer appears to be non-mandatory as the words "it may" have been used in the matter of appointment of a Govt. Servant or a legal practitioner, to be known as the "Presenting Officer". The Respondent authorities, in my considered view, misread the said provision oblivious about the settled position of law that a "Presenting Officer" must be appointed and there is no escape for the disciplinary authority while conducting the disciplinary proceeding against a Govt. servant. In this regard, a Division Bench of this Court had an occasion to deal with a similar case in State of Manipur vs. Chongtham Homendro Singh reported in 2005 (2) GLJ 568: 2005 (3) GLT 154, wherein it is held as under:- It is settled law that the Inquiry Officer while sitting as a Judge, he can not be also sitting as the prosecution to examine the witnesses by himself. The Inquiry Officer cannot assume the role of a Judge and also the prosecutions. The Inquiry Officer cannot assume the role of a Judge and also the prosecutions. Even there is no such provisions under Rule 66 for appointment of the Presenting Officer, the simple question is that who is to present the case of the department when there is no Presenting Officer, therefore, absence of Presenting Officer will make the inquiry totally vitiated as the Inquiry Officer cannot assume the role of the Judge as well as Prosecution. On perusal of the records, I find that the Enquiry Officer himself questioned the delinquent/Petitioner during the enquiry proceeding without the records being presented by any officer before him. 10. On perusal of the records, it is also found that the delinquent/Petitioner was not provided with Defence Assistant during the enquiry. Of course, there is nothing on record whether the Petitioner at any point of time asked the Disciplinary authority or the Enquiry Officer to provide him with such Defence Assistant. In regard to providing Defence Assistant, this Court in the said case of Chongtham Homendro Singh (supra) held that although the rule is silent about the appointment of Defence Assistant, the natural justice requires that the delinquent can not be allowed to be left undefended before the Enquiry Officer, inasmuch as the delinquents belong to lowest rank of the Manipur Rifles. It is further held that it is incumbent on the part of the Enquiry Officer to afford minimum justice to inform the delinquents that they are entitled to appoint a Defence Assistant to defend their case. In the instant case, there is nothing on record that the Enquiry Officer ever informed the Petitioner of his right to appoint such Defence Assistant to present his case in the departmental inquiry. It is an admitted position that the Petitioner was not represented by a Defence Assistant and thus he was prejudiced resulting in miscarriage of justice. 11. The order of dismissal is the extreme punishment for the delinquent Govt. servant because while dismissing his service, he has no other avenue or way for seeking employment elsewhere unlike the order of termination/removal from service because a Govt. servant terminated/removed from service may seek employment elsewhere. In this case, the Petitioner has lost his further scope for employment. He has lost his job for ever. He has also lost the avenue of employment. servant terminated/removed from service may seek employment elsewhere. In this case, the Petitioner has lost his further scope for employment. He has lost his job for ever. He has also lost the avenue of employment. Lost of job now-a-days means loss of livelihood under Article 21 of the Constitution of India. The classic judgment rendered by the Apex Court in Sawai Singh vs. State of Rajasthan reported in AIR 1986 SC 995 , is a ready reference for this purpose. There is no doubt that the Petitioner has been deprived of means of livelihood for his alleged misconduct, which, even if it is found proved, cannot be treated as proportionate. The Respondent authorities have failed to appreciate the gravity of the misconduct brought against the Petitioner and the evidence available on records from none other than his wife to the effect that the firing took place accidentally and the Petitioner had no role in it. There is no record to show that the Petitioner is a habitual offender or he has been committing misconduct on earlier occasion or he has been negligent in the performance of his duties. All these factors should have been given weightage by the disciplinary authority while awarding the punishment of dismissal from service. The order of termination from service awarded by the Respondent No. 3 also found to be disproportionate on the basis of the aforesaid consideration and discussions. In the order of termination as well as dismissal from service, the Respondent authorities did not record the reasoning for awarding such punishment to the Petitioner. 12. In view of the above facts and circumstances and settled position of law in regard to appointment of a Presenting Officer to present the document/case and providing a Defence Assistant to the delinquent to defend his case during departmental proceeding, the departmental proceeding is found vitiated and cannot stand in the eye of law. The consequential penalty order cannot be sustained. Accordingly, the impugned judgment and order dated 10.09.2003 (Annexure-G to the writ petition) dismissing the Petitioner from service is quashed. The Petitioner may be reinstated forthwith. However, the Respondent authorities are given liberty to initiate departmental proceeding afresh in accordance with the existing rules and procedure, if so advised. 13. The writ petition stands allowed. 14. No cost. Petition allowed.