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2010 DIGILAW 197 (GAU)

Justin Wahlang v. State of Meghalaya

2010-03-15

HRISHIKESH ROY

body2010
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. K. Paul, learned Counsel appearing for the Petitioner. Also heard Mr. S. Sen, learned Government Advocate representing the Respondents. 2. The Petitioner who served as a Constable in the 2nd Meghalaya Police Battalion has approached this Court to challenge the order dated 1.12.2004 (Annexure-11), which cancels the earlier reinstatement in service ordered for the Petitioner. 3. Before addressing the impugned order, the relevant facts may be noted: 3.1. When the Petitioner failed to rejoin his duties on time after availing leave, a disciplinary proceeding was drawn up with the allegation that he overstayed his leave by 112 days. An inquiry was held into the said charge and eventually by order dated 31.08.1995, the removal of the Petitioner from service was ordered. 3.2. By filing writ petition i.e. Civil Rule 12 (SH)/1998, the Petitioner challenged his removal and the learned Single Judge dismissed the writ petition holding the same to be without merit. 3.3. The Writ Appeal 57 (SH)/2000 filed by the delinquent was however allowed and by the judgment and order dated 25.8.2003 the Appellate Court set aside the penalty and permitted the disciplinary authority to proceed further after giving due opportunity to the delinquent 3.4. After the disposal of the in Writ Appeal, the disciplinary authority by order dated 8.9.2003 appointed one S. Borah, Assistant Commandant (QM) to conduct a De novo inquiry into the charges against the Petitioner. Subsequently by order dated 19.5.2004, another Inquiry Officer i.e. A. Quddus, Second-in-Command of Second MLP Bn. was appointed as the Inquiry Officer with the direction to give his inquiry finding latest by 30.6.2004 3.5. While the Second Inquiry Officer was scheduled to conduct the inquiry, a communication dated 5.1.2004 was issued by the Commandant of the Second MLP Bn. to the Dy Inspector General of Police (TRG/FS/C) whereby on humanitarian ground, the Petitioner was ordered to be reinstated in service but he posted to some other Unit in the police force. 3.6. The Petitioner avers that only on 15.2.2005 (nearly 1 years after) he received the reinstatement order dated 5.1.2004 and accordingly he reported for duty on 18.2.2005 3.7. However the Petitioner contends that he was not allowed to rejoin in service despite repeated attempts made by him and eventually the impugned cancellation of reinstatement order was issued on 1.12.2004. 4. 3.6. The Petitioner avers that only on 15.2.2005 (nearly 1 years after) he received the reinstatement order dated 5.1.2004 and accordingly he reported for duty on 18.2.2005 3.7. However the Petitioner contends that he was not allowed to rejoin in service despite repeated attempts made by him and eventually the impugned cancellation of reinstatement order was issued on 1.12.2004. 4. The ground on which the cancellation of the reinstatement has been ordered is on account of the purported failure of the delinquent to report for duty on his reinstatement. 5. Arguing for the Petitioner, it is contended by Mr. K. Paul, learned Counsel that when the delinquent has been agitating for 15 years for being taken back in service, there is no conceivable reason for him to not to jump at an opportunity of being reinstated in service, if he receives order of reinstatement and it is urged by Mr. Paul that the reinstatement order was never served on the Petitioner till 15.2.2005 and within 2 days thereafter, he had reported for joining duty on 18.2.2005 and there cannot be any justification under such circumstances for the authorities to hold that the Petitioner failed to respond to the reinstatement offer. 6. It is further contended that the plea taken by the Respondents that the delinquent did not respond to the offer of reinstatement is a false claim and this contention should be examined in the backdrop of the following discrepancies noticed in different communications of the Respondents: 6.1. The learned Counsel refers to the communication dated 26.5.2004 (Annexure-6) of the Commandant addressed to the Petitioner directing him to appear before the Inquiry Officer on 7.6.2003. Mr. Paul submits that if on 5.1.2004 a decision was already taken to reinstate the Petitioner on humanitarian ground, there should have been no occasion for the disciplinary authority to appoint a 2nd Inquiry Officer. It is also improbable according to him to direct the delinquent to appear before the Inquiry Officer on 7.6.2003 when the Writ Appeal was pending and was finally decided only on 25.8.2003. 6.2. Mr. Paul also refers to the communication dated 5.1.2004 (Annexure-8) of the Commanding Officer to the DIGP, wherein it was recorded that the delinquent had appeared before the Commandant on 28.11.2003 submitting that on the day of the communication dated 5.1.2004, Mr. 6.2. Mr. Paul also refers to the communication dated 5.1.2004 (Annexure-8) of the Commanding Officer to the DIGP, wherein it was recorded that the delinquent had appeared before the Commandant on 28.11.2003 submitting that on the day of the communication dated 5.1.2004, Mr. S. Borah was already appointed as the Inquiry Officer on the strength of the Commandant's order dated 8.9.2009, it would be highly improbable that the delinquent had appeared before the Commandant on 28.11.2003 as is recorded in the communication dated 5.1.2004. 6.3. Mr. Paul refers to another discrepancy by referring to the date of the Annexure-5 reinstatement order whereby reinstatement of the Petitioner was ordered and he was asked to rejoin his service immediately. In the impugned cancellation order dated 1.2.2004 (Annexure-11) it is recorded that the Petitioner failed to respond after the aforenoted reinstatement order dated 24.7.2004 was duly received by him on 22.7.2004 (2 days earlier). It is contended that an order of a later date (24.7.2004) cannot be served on an earlier date (22.7.2004) and therefore there can be no basis for holding that Petitioner did not respond to the reinstatement order. 7. Referring to the above discrepancies in the dates, the Petitioner reiterates that the Respondents have been irresponsible and inaccurate with their dates and that their version of dates is not reliable and that the Petitioner received the copy of the reinstatement order only on 15.2.2005 (and not earlier) and 2 days thereafter, he reported for duty on 18.2.2005. It is accordingly submitted that since prior to 15.2.2005, no reinstatement order was served on the delinquent, there is no justification for ordering cancellation of the reinstatement order on the purported ground of failure of the Petitioner to respond to the reinstatement order. 8. Arguing for the Respondents, Mr. S. Sen submits that only because the delinquent failed to respond to the reinstatement order, the authorities were left with no option but to cancel his reinstatement and it is submitted by Mr. Sen that the reinstatement orders have been duly served on the Petitioner. 8.1. It is further submitted by Mr. 8. Arguing for the Respondents, Mr. S. Sen submits that only because the delinquent failed to respond to the reinstatement order, the authorities were left with no option but to cancel his reinstatement and it is submitted by Mr. Sen that the reinstatement orders have been duly served on the Petitioner. 8.1. It is further submitted by Mr. Sen that the reflection of the date in the reinstatement order was wrongly shown as 24.7.2004, whereas it should have been as 24.6.2004 and if the date i.e. 24.6.2004 is accepted as the correct date, the receipt of the said communication on 22.7.2004 is not illogical and wrong mentioning of the date, should be accepted as a typographical mistake and should not result in any undue benefits to the delinquent. 8.2. The leaned Government counsel further submits that the delinquent is well known for his indisciplined conduct in the police, and habitual indiscipline is suggested as a possible reason for the Petitioner failing to respond to the order of the reinstatement. 9. In this case it is seen that although the Court permitted the disciplinary authority to hold a fresh inquiry and an Inquiry Officer was appointed to conduct a De novo inquiry, a suo moto decision was taken on 5.1.2004 on humanitarian ground, to reinstate the delinquent in service. This decision was prompted only by humanitarian consideration of a benevolent employer and not so much by any legal obligation to the Petitioner. The employer wanted to avail to the delinquent a second chance, notwithstanding his earlier alleged acts of misconducts. 9.1. It is also apparent that since his removal on 31.8.1995, the delinquent has been fighting one legal battle after another, to get back his job and during all these years, the sincere attempts of the Petitioner to rejoin service, is clearly discernible. 10. In the above circumstances, for the delinquent not to have responded to the offer of reinstatement (if it was actually served), does not appear to be a natural conduct of a person who is waging legal battles for getting back his job. 11. Perhaps to clear the doubt on the above account, this Court directed the State Counsel on 2.2.2010 to produce the entire file in respect of the disciplinary proceedings i.e. the First Inquiry and Second Inquiry etc. to resolve the controversy on whether the delinquent was served the reinstatement order before 15.2.2005. 12. 11. Perhaps to clear the doubt on the above account, this Court directed the State Counsel on 2.2.2010 to produce the entire file in respect of the disciplinary proceedings i.e. the First Inquiry and Second Inquiry etc. to resolve the controversy on whether the delinquent was served the reinstatement order before 15.2.2005. 12. I find several discrepancies in the dates in Respondent's communication and orders and considering the significant impact of these discrepancies, they should not in my view be brushed aside simply as a typographical error. 12.1. For instance when decision was already taken as reflected by the order dated 5.1.2004 to reinstate the Petitioner in service, why an order was passed 4 months later on 19.4.2004 appointing a Second Inquiry Officer Mr. A. Quddus to enquire into the charges against the Petitioner. 12.2. There is also no explanation as to why the delinquent was recorded to have appeared before the Commandant on 20.11.2003, when First Inquiry Officer was already appointed 2 months earlier by order dated 8.9.2003. 12.3. It is also glaringly seen the delinquent is shown to have received a copy of the reinstatement communication dated 24.7.2004, on 22.7.2004 (2 days earlier). This however is claimed to be a typographical error. 13. This Court to satisfy itself as to whether the discrepancies in the dates were typographical errors wanted to examine the original files in respect of the disciplinary proceedings, which would have enabled the Court to get the correct picture. Thus if the Respondent's assertion that these were merely typographical errors was correct, there should have been no occasion for the Respondents, to withhold the original records from scrutiny of the Court. However notwithstanding the specific order for production of original files, the records have not been made available and the Government Counsel is unable to explain the discrepancies by referring to the original records. Therefore on this count, adverse presumption may be drawn against the Respondents. 14. In the above circumstances and considering the fact that the Petitioner has been litigating for last 15 years to rejoin his service, it is not considered to be a natural act on his part to fail to respond to the offer of reinstatement, if the order of reinstatement was actually served on him on any date prior to 15.2.2005. 14. In the above circumstances and considering the fact that the Petitioner has been litigating for last 15 years to rejoin his service, it is not considered to be a natural act on his part to fail to respond to the offer of reinstatement, if the order of reinstatement was actually served on him on any date prior to 15.2.2005. I consider it more reasonable to accept the Petitioner's contention that prior to 15.02.2005, the Petitioner had not received the reinstatement order. 15. Although the Respondents projects that the Petitioner had put his signature acknowledging receipt of his reinstatement order on an earlier date, learned Counsel for the Petitioner vehemently contends that the signature shown to be of the Petitioner, does not match with his other signatures and he steadfastly contends that the reinstatement orders were never served on him prior to 15.2.2005 and he had no occasion to acknowledge receipt by signing on the copy of the reinstatement order, and the signature shown were not the signature of the delinquent and somebody else forged the Petitioner's signature. 15.1. This Court cannot compare signatures and conclude with authority as to whether, the signature of the Petitioner is forged or not. But considering the overall circumstances and the natural human conduct, the Court is inclined to believe that the Petitioner was not served with the reinstatement order till 15.2.2005. 15.2. As the Petitioner reported to rejoin his duties immediately thereafter on 18.2.2005, the impugned cancellation order dated 1.12.2004 is found to be unjustified as in that event Petitioner immediately responded to the offer of reinstatement. 16. The contention made by the Petitioner that he did not earlier receive the order and was not late in responding to the offer of reinstatement is found to be more acceptable by this Court in the context of the above discussion and accordingly the impugned order dated 1.12.2004 is set aside and quashed. This writ petition stands allowed. 17. The Petitioner is now permitted to report for his reinstatement on or before 29.3.2010 before the Commanding Officer, MLP 2nd Bn. If the Petitioner reports for reinstatement within the prescribed time, the Commandant would permit the Petitioner to rejoin his duties. But if the Petitioner fails to report for rejoining his duties by 29.3.2010, the Respondents will not be required to take him back in service. 18. If the Petitioner reports for reinstatement within the prescribed time, the Commandant would permit the Petitioner to rejoin his duties. But if the Petitioner fails to report for rejoining his duties by 29.3.2010, the Respondents will not be required to take him back in service. 18. A copy of the Court's order be furnished to Mr. S. Sen, learned Government Advocate for appropriate communication. Petition allowed.