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2009 DIGILAW 285 (GAU)

Ganesh Singh v. State of Mizoram

2009-04-30

H.BARUAH

body2009
JUDGMENT H. Baruah, J. 1. Writ petitioners were appointed as Head Constable, Radio Mechanic, Naik Operator and Naik on 20.8.1996, 9.8.1996 and 23.9.1996 by respondent No. 5 respectively. On their appointment as such all three joined in the service on the same date of appointment. By an order dated 4.10.1996 (Annexure-1) the respondent No. 5 terminated the services of the writ petitioners with immediate effect along with one Krishna Kumar Sharma and C/GD. Jimdar Singh on the ground of production of false employment exchange registration card. The petitioners thereafter along with Krishna Kr. Sharma filed a civil rule being No. 4 of 1997 before this Court challenging the termination order dated 4.10.1996 issued by the respondent. No. 5 and this Court vide order dated 27.1.1997 quashed the impugned order of termination and directed the respondents to re-instate the petitioners along with Krishna Kumar Sharma with all consequential service benefits. While disposing the civil rule this Court made an observation that it would be open to the respondents to take up inquiry according to law, if so advised. 2. Pursuant to the order dated 27.1.1997 (Annexure-2) the petitioner along with Krishna Kumar Sharma were reinstated in their service by order dated 26.6.1998 (Annexure-3). For the purpose of drawing up of a departmental inquiry, the respondent No. 5 put all the three petitioners along with Krishna Kumar Sharma under suspension. Thereafter respondent No. 5 issued memorandum of charges to the petitioners to hold inquiry under Section 7 of the Police Act read with Rule 66 of the Assam Police Manual, Part-III alleging that their employment exchange registration card were not genuine. Show cause reply was submitted denying the allegation of charges levelled against the petitioners. After the conclusion of the departmental inquiry, respondent No. 5 provisionally came to the conclusion that imposition of major penalty of dismissal from service against the petitioners along with Naik - operator, Krishna Kumar Sharma opportuned a further representation to the writ petitioners and Krishna Kumar Sharma. While submitting representations against the proposed imposition of major penalty of dismissal the petitioners, inter alia, contended that the charge levelled against them do not fall within the purview of Section 7 of the Police Act and thereby the entire departmental inquiry is vitiated and void ab-initio. The petitioners, therefore, prayed to respondent No. 5 to exonerate them. While submitting representations against the proposed imposition of major penalty of dismissal the petitioners, inter alia, contended that the charge levelled against them do not fall within the purview of Section 7 of the Police Act and thereby the entire departmental inquiry is vitiated and void ab-initio. The petitioners, therefore, prayed to respondent No. 5 to exonerate them. But despite such representation, respondent No. 4 by his order dated 26.8.1999 imposed a penalty of removal from service against the petitioners. An appeal having been filed against the imposition of penalty of removal from service, respondent No. 4 rejected the same. The petitioners thereafter finding no other alternative submitted a revision petition to the Governor of Mizoram under XII of Rule 66 of Assam Police Manual, Part III on 4.8.2000, 23.10.2000 and 21.8.2000 against the order of removal and rejection of the appeal but till date their representations did not receive any attention of the Governor. 3. Respondent No. 6, whose services was also terminated along with the petitioners and Krishna Kumar Sharma for production of false and fake employment exchange card vide order dated 4.10.1996, approached this Court with a writ petition being WP(C) No. 10 of 1999 seeking redrassal against the order of termination and this Court while disposing the writ petition as aforesaid was of the view that the case of the respondent No. 6 is similarly situated with the case of all the petitioners and accordingly directed the respondent No. 5 to reinstate him in the service and per direction, the respondent No. 5 reinstated the respondent No. 6 in his service. But no departmental inquiry was held as against the respondent No. 6 nor he was punished for production of fake and false Employment Registration Card till date. At present respondent No. 6 is in the service of the police organization under the Government of Mizoram whereas the petitioners having had identical and same nature of allegation with that of respondent No. 6 have been removed from service, which is a clear violation of the Articles 14 and 16 enshrined in the Constitution of India. 4. It is further alleged by the petitioners that the departmental inquiry conducted against them was totally misconceived, misconstrued in view of Section 7 of the Police Act, hence the order of removal passed by the respondent No. 5 is liable to be set aside and quashed. 5. 4. It is further alleged by the petitioners that the departmental inquiry conducted against them was totally misconceived, misconstrued in view of Section 7 of the Police Act, hence the order of removal passed by the respondent No. 5 is liable to be set aside and quashed. 5. At this stage it would perhaps be appropriate to state that this writ petition was dismissed by judgment and order dated 18.4.2005 holding that the punishment of removal of the petitioners from their service cannot be called in question in view of the fact that such appointment was procured/obtained by Producing fake Employment Registration Card before the appointing authority. The petitioners being aggrieved by the judgment and order dated 18.4.2005 preferred a writ appeal being No. 20 of 2005 challenging the legality and correctness of the impugned judgment and order. A division bench of this Court by judgment and order dated 4.12.2008 set aside the judgment and order dated 18.4.2005 passed by the learned Single Judge holding that the appellant writ petitioners were not heard while passing the impugned judgment. The division bench of this Court, therefore, directed the Registry to list this writ petition No. 113 of 2001 before the appropriate single bench for disposal of the same on merit. This being the direction of the division bench of this Court in writ appeal No. 20 of 2005 this matter came up again for hearing. 6. The State respondents resisted this writ petition by filling counter. The name of private respondent No. 6 was directed to be struck off vide order dated 9.8.2002. The State respondents in their counter affidavit contended inter alia that the petitioners were reinstated in their service incompliance of the order dated 27.1.1997 passed in Civil Rule No. 4 of 1997 by this Court, since this High Court had given, the State respondents the liberty to hold a departmental inquiry in accordance with law. Departmental inquiry was drawn up against the writ petitioners after their reinstatement. In the departmental proceeding the charges levelled against the writ petitioners were, production of fake Employment Exchange Registration Card before appointing authority for procuring appointment in the department, which amounted grave criminal misconduct. Further for such production of fake Employment Exchange Registration Card by the writ petitioners and others a complaint was also lodged with Aizawl police station and a regular case against the petitioners was registered. Further for such production of fake Employment Exchange Registration Card by the writ petitioners and others a complaint was also lodged with Aizawl police station and a regular case against the petitioners was registered. The said case is yet to be finalized by the court. It is further contended that the disciplinary authority duly considered the reply of the petitioners and proceeded with the departmental inquiry. On the conclusion of the departmental inquiry it accepted the findings of the Inquiry Officer and removed the petitioners thereafter, from service after due notice. Further case of the respondents is that respondent No. 6 whose name hag been struck off from the cause title vide order dated 9.8.2002 was also removed from service but per direction of this Court passed in WP(C) No. 10 of 1999 he was reinstated in his service. Since there was no direction from this/court to initiate a departmental proceeding against respondent No. 6, the State respondents were constrained to abstain from holding departmental inquiry against him. But the criminal case registered on the basis of the First Information Report lodged with Aizawl police station is still sub-judiced and appropriate action would be taken against him if the judgment goes against the respondent No. 6. The State respondents therefore, in view of the above facts and circumstances of the case pressed this Court to dismiss the writ petition being without merit. 7. Mr. M.M. Ali, Learned Counsel for the petitioners as well as Mrs. Helen Dawngliani, learned Government Advocate were heard at length. 8. At very out set it is to be born in mind that at the time of production of the fake Employment Exchange Registration Card by the writ petitioners they were not in service. The petitioners obtained their appointment by producing the fake Employment Exchange Registration Card in the police department. Mr. M.M. Ali, therefore, in view of such fact strenuously argued that the departmental proceeding held against the writ petitioners per direction of the court under Section 7 of the Police Act read with Rule 66(XII), Part III of the Assam Police Manual was unwarranted and by virtue of the findings of the said departmental proceeding writ petitioners could not have been dismissed from service inasmuch as such misconduct was not committed by each of the writ petitioners while in service. Such alleged misconduct even if committed by the writ petitioners was in their private capacity. A departmental proceeding under Police Act more particularly under Section 7 read with Rule 66(XII), Part III of the Assam Police Manual is sustainable against an Officer while in service. Mr. Ali, referring to the observation made by the Inquiry Officer in his inquiry report submitted that such departmental proceeding would be not applicable as against the writ petitioners since the writ petitioners were not police officers within the meaning of the Police Act during the relevant period of time. 9. Taking recourse to the provision of the Police Act, 1861 it was submitted by Mr. M.M. Ali that the Inspector General, Deputy Inspector General, Assistant Inspector General and District Superintendent of Police may at any time dismiss, suspend or reduce any police officer of the subordinate rank whom they shall think remiss or negligent in the discharge of his duty unfit for the same. Thus the purpose of dismissal of such police officer by the IG, DIG, AIG and SP, the person who is so dismissed must be an officer of the department and subordinate in rank. Such dismissal, removal, reduction in rank, etc., can only be made on account of remiss or negligent on the part of the said police officer/officers in discharging his/their duties or considers to be unfit for holding such post. The petitioners herein at the relevant point of time more particularly at the time of production of the fake Employment Exchange Registration Card were not police officer within the meaning of the Act and, therefore, removal of the writ petitioners through a departmental proceeding held under the provision of Section 7 read with Rule 66(XII) of the Assam Police Manual, Part III is not legally sustainable. The writ petitioners according to Mr. M.M. Ali, cannot be removed by the respondent authority by resorting such provisions of the Act and the Assam Police Manual. 10. In support of his contention Mr. M.M. Ali relied in the decision rendered in the case in between Sri Jagadish Chandra Mandloi v. Oil and Natural Gas Commission and Ors. 1995 (3) GLT 197. The learned Single Judge in para 26 of the judgment held as under: 26. In W.M. Agnani v. Badri Das and Ors. (1963) LLJ 684, Lata Ram v. D.C.M. Chemical Works Ltd. and Anr. 1995 (3) GLT 197. The learned Single Judge in para 26 of the judgment held as under: 26. In W.M. Agnani v. Badri Das and Ors. (1963) LLJ 684, Lata Ram v. D.C.M. Chemical Works Ltd. and Anr. (1978) 3 SCC 1 , the Supreme Court pointed out that a private quarrel between the employee and the stranger, with which the employer is not concerned, falls outside the categories of misconduct and the acts which are not subversive of discipline amongst employees or such misconduct or misbehaviour by an employee cannot constitute misconduct so as to form the basis of an order of dismissal or discharge. Generally a conduct not in the course of employment cannot be a misconduct. Similarly, a conduct which is not misconduct as per the conduct Rules also cannot be the subject of disciplinary action against a Government servant: A domestic quarrel which has nothing to do with the employment of an employee cannot be a misconduct. In the case Jagadish Chandra Mandloi (supra) the learned Single Judge held that a conduct not in the course of employment cannot be a misconduct, similarly a conduct which is not misconduct as per the conduct rules also cannot be a subject of disciplinary action against a Government servant. A domestic quarrel which is nothing to do with the employment of an employee cannot be misconduct. Here in this case the production of the alleged fake Employment Exchange Registration Card before the selection authority for obtaining appointment in the police department by the writ petitioners was in their, private capacity and such production was not done by them while they are in service. Mr. M.M. Ali, therefore, laid emphasis that the departmental inquiry and the resultant removal of the writ petitioners from their service is illegal, unwarranted and the entire departmental proceeding is vitiated and void ab initio. 11. It was also argued further that respondent No. 6 being similarly situated with the writ petitioners and removing from service on account of procuring his employment in the police department by producing fake Employment Exchange Registration Card was also removed along with the writ petitioners and one Krishna Kumar Sharma. 11. It was also argued further that respondent No. 6 being similarly situated with the writ petitioners and removing from service on account of procuring his employment in the police department by producing fake Employment Exchange Registration Card was also removed along with the writ petitioners and one Krishna Kumar Sharma. The legality of such removal being challenged by the writ petitioners and Krishna Kumar Sharma by filing civil rule No. 4 of 1997 and by respondent No. 6 vide Writ Petition No. 10 of 1999, this Court directed to take appropriate action against the writ petitioners including Krishna Kumar Sharma by conducting departmental proceeding against them only. Departmental proceeding was accordingly initiated by the respondents authorities against the writ petitioners and Krishna Kumar Sharma and removed all of them from service. But respondent No. 6 though was similarly situated, no departmental proceeding was ever conducted against him by the respondent authorities and the respondent No. 6 is still in service. In that view of the matter it was argued by Mr. M.M. Ali that the nature of the allegation being identical and same to that of the respondent No. 6, removal of the petitioners by the respondents authorities from their service is gross violation of the equality Clause enshrined under Articles 14 and 16 of the Constitution. The writ petitioners were discriminated by removing from their service. When the respondent No. 6 is not remove from service and allowed to continue in the service, who was removed from service at the initial stage by a termination order dated 4.10.1996 along with the writ petitioners and one Krishna Kumar Sharma, subsequent removal of the petitioners by holding a departmental proceeding is improper, illegal and bad in law. In this context Mr. M.M. Ali, learned for the petitioners relied in the decision in the case between Ardhendu Bikash Chakraborty v. State of Tripura 1998 (1) GLT 226. The learned Single Judge in para 4 of the judgment held that equals are to be treated equally. There should not be discrimination amongst the equals. Equal treatment has to be given in matters relating to public employment. In our instant case we have come across that the petitioners, respondent No. 6 and Krishna Kumar Sharma are in the same footing. There should not be discrimination amongst the equals. Equal treatment has to be given in matters relating to public employment. In our instant case we have come across that the petitioners, respondent No. 6 and Krishna Kumar Sharma are in the same footing. They were terminated from service on account of production of false Employment Exchange Registration Card before the appointing authority vide termination order dated 4.10.1996. Having situated at the same footing with that of the respondent No. 6, petitioners and the Krishna Kumar Sharma were not treated equally they being all equals. Petitioners were removed from service along with Krishna Kumar Sharma while respondent No. 6 is allowed to continue in his service, so there appears total discrimination between the equals. Mr. M.M. Ali, therefore, submitted before this Court that the petitioners are also entitled to have the same benefit like respondent No. 6. 12. Mrs. Helen Dawngliani, learned Government Advocate appearing for the State respondents per contra to the submission of Mr. M.M. Ali submitted that the respondent authorities is constrained to allow the respondent No. 6 to continue in his service since there was no direction from this Court to hold a departmental inquiry against him. Had there been any direction from this Court in the judgment rendered by this Court in WP(C) No. 10 of 1999 filed by the respondent No. 6 against his termination order dated 4.10.1996, the respondent authority would have conducted a departmental proceeding of the like nature against the respondent No. 6 and could have removed him from his service. A criminal case being sub-judiced in the subordinate court against the respondent No. 6, finalisation of the same by the court would perhaps render opportunity to the respondent authority to take appropriate action against him. Therefore, according to the learned Government Advocate the case of the respondent No. 6 cannot be placed at per with the case of the writ petitioners. 13. Further Mr. M.M. Ali, also relying in the ratio laid down by the Supreme Court in the case of Union of India and Anr. v. Tulsiram Patel (1985) 3 SCC 398 , submitted that Article 14 of the Constitution provides a guarantee of equality before the law to all persons and a protection to them against discrimination by any law. Further Mr. M.M. Ali, also relying in the ratio laid down by the Supreme Court in the case of Union of India and Anr. v. Tulsiram Patel (1985) 3 SCC 398 , submitted that Article 14 of the Constitution provides a guarantee of equality before the law to all persons and a protection to them against discrimination by any law. It forbids discrimination by law, that is, treating persons similarly circumstanced differently or treating those not similarly circumstanced in the same way or as has been pithily put, treating equals as unequals and unequals as equals. It also prohibits hostile classification by law and is directed against discriminatory class legislation. Mr. Ali, in this context also submits that the petitioners herein are not equally treated with that of the respondent No. 6 and petitioners are discriminated by the respondent authorities. 14. Now, the issue before us is whether production of fake Employment Exchange Registration Card by the petitioners for securing job in the police department amounts to misconduct. Misconduct is nowhere defined in service law, it varies from case to case. A misconduct generally attributes to a Government servant, acts and omissions of the person while in the employment amount to misconduct if such acts and omission is/are unbecoming of a Government servant. In our present case apparently the petitioners allegedly did not resort to any acts or omission while in service which can be branded as misconduct. The departmental proceeding which was conducted against the writ petitioners was not for the acts and omission of the writ petitioners resorted to during their service period. So, therefore, misconduct committed in private life whether can be a subject-matter of departmental proceeding under Section 7 of the Police Act read with Rule 66(XII) of Assam Police Manual, Part III. The word misconduct is a genetic term, which means wrong or improper conduct, bad behaviour, unlawful behaviour or conduct. It includes malfeasance and misdemeanour. On the other hand criminal misconduct is a penal offence created under the Prevention of Corruption Act. Therefore, if a public servant mis-conducted himself in discharging his duties as such public servant or otherwise abusing his position as public servant, obtains for himself or any other person, any valuable thing or pecuniary advantage then and then there will be criminal misconduct on the part of the public servant. Therefore, if a public servant mis-conducted himself in discharging his duties as such public servant or otherwise abusing his position as public servant, obtains for himself or any other person, any valuable thing or pecuniary advantage then and then there will be criminal misconduct on the part of the public servant. The misconduct as alleged to have been committed by the writ petitioners herein certainly is not a misconduct committed by the writ petitioner while in service. Therefore, apparently the fact of production of fake Employment Exchange Registration Card cannot be a misconduct committed by the writ petitioners while in service. But facts remains that the acts on the part of the writ petitioners resorted to for securing an employment in the police department by producing fake Employment Exchange Registration Card is certainly a misconduct committed in their private capacity and, therefore, the writ petitioners are answerable to the respondent-authorities for misconduct committed in their private life for so long as they continued as Government servant. The term misconduct implies a wrongful intention which renders a man unfit to hold his office or is likely to impress the administration. The improper and unbecoming conduct in public life may also become misconduct and may render an officer liable to disciplinary action therefor. The petitioners had a wrongful intention in their mind to obtain employment in the police department by producing fake Employment Exchange Registration Card which was improper and unbecoming conduct on their part in the public life and therefore, misconduct committed in private life can entail a departmental proceeding against him or them who mis-conducted himself/themselves in his/their private capacity. The writ petitioners by their conduct not only mis-conducted themselves punishable by court of law but also by such misconduct secured employment in the police department which might entail the departmental proceeding and resultant removal from service. The departmental proceeding conducted by the respondent authority against the writ petitioners for their misconduct committed in their private capacity to my humble view was not improper and contrary to law. I see no force in the argument advanced by Mr. M.M. Ali that the departmental proceeding conducted against the writ petitioners was improper, bad in law and the against the provisions of Section 7 of the Police Act read with Rule 66(XII) of Assam Police Manual, Part III. 15. I see no force in the argument advanced by Mr. M.M. Ali that the departmental proceeding conducted against the writ petitioners was improper, bad in law and the against the provisions of Section 7 of the Police Act read with Rule 66(XII) of Assam Police Manual, Part III. 15. The fact is apparent on the face of the record that after the dismissal of the appeal so preferred by the writ petitioners, all preferred revision individually before the Governor, which till date has not received any attention. No decision was ever taken by the Governor on such representations made under the provisions of Rule 66(XII) of Assam Police Manual, Part III. Since the departmental proceeding had been conducted against the petitioners, which ended in their dismissal from service, to my humble view holding of such Departmental Enquiry was within the domain of the respondent authorities. In the facts and circumstances petitioners were rightly dismissed from service for their misconduct committed in their private capacity. It would be open for the writ petitioners to make a fresh representation before the Governor under Rule 66(XII) of the Assam Police Manual, Part III for revision of the dismissal order passed by the disciplinary authority in View of respondent No. 6's continuation in service with respondent authority despite being similarly situated to that of the writ petitioners. 16. With the above observation, this writ petition is dismissed. No cost. Petition dismissed.