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2010 DIGILAW 621 (GAU)

State of Mizoram & Ors. v. S. N. Yadav

2010-08-19

A.C.UPADHYAY, H.N.SARMA

body2010
H. N. Sarma, J.;- Considering aggrieved by the judgment and order dated 10.12.09 allowing WP(C) No. 99/2006 thereby quashing the punishment of removal of service of the writ petitioner including the order of the appellate authority and the further order directing the respondents to reinstate the petitioner in his post with all benefits but giving liberty to proceed against the petitioner de-novo, the State of Mizoram has filed this appeal. 2. We have heard Mr. N. Sailo, learned Addl. Advocate General, Mizoram for the appellants and Mr. P.C. Prusty, learned counsel for the respondent/writ petitioner. 3. For proper and effective appreciation of the points urged in this writ appeal, narration of certain facts, as stated below, considered necessary: The writ petitioner entered into service on 6.2.82 as a Constable and in due course was promoted to the rank of Asstt. Sub-Inspector w.e.f. 1.4.88. The writ petitioner while he was posted at Sairang Police Outpost under Bawngkawn Police Station, as ASI Police, on 12.3.95, the petitioner shoot at ASI Robert L. Hnamte with his service revolver at 7.30 p.m. in the house of the victim. Accordingly, an FIR was lodged against him in the Bawngkawn Police Station whereupon Bawngkawn PS. Case No. 142 of 95 under Sections 307/326 IPC was registered. Immediately, the petitioner was arrested on the same date. The Investigating Officer after completion of the investigation of the case, submitted charge sheet and he was sent to the Court for trial. However, for failure of the prosecution to produce witnesses in support of the case, the petitioner was acquitted from the charges by the Learned Magistrate vide order dated 10.11.99 due to absence of prosecution witnesses. A departmental proceeding was also initiated by the authority against the petitioner alleging commission of misconduct during his service as ASI. The said departmental enquiry conducted against the petitioner was completed before the disposal of the criminal case. In the departmental enquiry, the charges levelled against the petitioner alleging commission of misconduct was found to be proved. On the basis of the enquiry, the petitioner was removed from service vide the order 6.10.95. A departmental appeal was filed before the appellate authority and the appeal not having been disposed of for a considerable period, the petitioner approached this Court by filing WP(C) No. 60 of 2001. On the basis of the enquiry, the petitioner was removed from service vide the order 6.10.95. A departmental appeal was filed before the appellate authority and the appeal not having been disposed of for a considerable period, the petitioner approached this Court by filing WP(C) No. 60 of 2001. The writ petition was disposed of with the direction to dispose of the appeal so filed by the petitioner within 2 (two) months. In terms of the aforesaid direction, the appellate authority disposed of the appeal dismissing the same on 6.10.01. Thereafter, the petitioner filed WP(C) No. 19 of 2002 challenging the order of removal and the order of dismissal of the departmental appeal and the same having been dismissed on 8.12.02 by the learned Single Judge, an appeal being WANo. 1 /04 was filed by the petitioner. The appeal was disposed of on 27.1.06 directing the disciplinary authority to furnish a copy of the enquiry report enabling the petitioner to make necessary representation against the finding of the enquiry officer as it was found from record that there was no proof of furnishing of the copy of the enquiry report as required under the law. The appellate Court did not go into the other points raised in the appeal. In terms of the said order, the enquiry report was furnished to the petitioner on 16.6.2006 and he filed a representation on 27.2.2006, in the form of reply to the show cause issued against him proposing to inflict major penalty. The disciplinary authority considered the representation and rejecting the same vide order dated 16.7.06 removed the petitioner from service w.e.f. 5.10.95. Thereafter, the petitioner unsuccessfully filed a departmental appeal before the DIG which was dismissed on 3.4.06. Further, the departmental appeal filed by the petitioner was also dismissed on 25.9.06. Challenging the order of removal dated 16.7.06 and order of dismissal of the appeal, the petitioner again approached this Court by filing WP(C) No. 99 of 2006. The Learned Single Judge, vide impugned judgment and order dated 10.12.09 quashed the impugned order of removal of the petitioner from service dated 16.3.06 on the ground that the retrospective removal of the petitioner w.e.f. 5.10.95 is not permissible under the law; the order of the appellate authority dated 26.9.06 was also quashed and the petitioner was directed to be reinstated in his post which was held by him earlier, with all benefits. It was further directed that the reinstatement has been made from the date of his suspension and the respondent authorities would not be precluded from initiating a de-novo departmental enquiry against the writ petitioner, if so advised. On the background of the aforesaid facts, the present appeal is filed. 4. In support of his contention, Mr. Sailo, learned Addl. Advocate General appearing for the appellants submits that in the enquiry, the charges levelled against the petitioner was proved and it was concluded after providing all reasonable opportunities to the petitioner and also the connected departmental appeal has also been dismissed after due consideration. It is further submitted by the learned Addl. Advocate General that there was no violation of any of the principles of natural justice and there having no lacuna in conducting the departmental proceeding, the impugned order of removal ought not to have been interfered with only on the ground that the removal of the petitioner was made effective from 5.10.95 i.e. from the date of his original order of removal. However, Mr. Sailo fairly submits that the order of retrospective removal is not permissible under the law and therefore the order of removal may be held as effective from the date of passing of the order i.e. w.e.f. 16.3.2006, keeping the interim period as the period spent under suspension. 5. Mr. P.C. Prusty, learned counsel for the writ petitioner, however, urged that the departmental authority has not considered the defence raised by the petitioner in the enquiry and the principle of natural justice has been violated by not allowing him to cross-examine the departmental witnesses and the enquiry was conducted in an unfair manner. That apart, the retrospective removal of the petitioner from the service is not permissible under the law and the Learned Single Judge has rightly interfered with the order of removal and the same needs no interference in this appeal. 6. During the course of hearing Mr. Sailo has produced the connected records of the departmental proceeding conducted by the authority. Submission of Mr. 6. During the course of hearing Mr. Sailo has produced the connected records of the departmental proceeding conducted by the authority. Submission of Mr. Prusty, learned counsel for the writ petitioner to the effect that the petitioner was not allowed to cross-examine the witnesses and that the petitioner was not furnished with the copies of statements of witnesses and those were recorded behind his back and the allegation of violation of the principle of natural justice, led us to meticulously scrutinize the record of the departmental proceeding. On scrutiny, the record would disclose that the Superintendent of Police, Aizawl vide Memorandum dated 2.5.95 issued a charge memo against the petitioner containing the charges and the statement of allegations in support thereof proposing to hold an enquiry under Section 66 of the Assam Police Manual, Part III and under Section 7 of the Indian Police Act, 1961 on the ground of misconduct and misbehaviour. The following articles of charges were made against the petitioner: i) ASI S.N. Yadav while posting at Sairang Outpost shoot at ASI Robert L. Hnamte in the right thigh on 12.3.95 at 7.30 p.m. it shows misconduct, indiscipline and unbecoming of a member of police officer to be dealt with Section VIIAAA (F 5) read with Rule 66 of the Assam Police Manual, Part II. ii) When the ASIS .N. Yadav while posting at Sairang Outpost shoot at ASI Robert L. Hnamte in the right thigh on 12.3.95 at 7.30 p.m. and abused the ASI in harsh words and pulled out service revolver and shoot at him in the right thigh and by this act, he shows misconduct, indiscipline and unbecoming on the part of the police personnel and required to be dealt with under Section 7 read with 66 of the Assam Police Manual, Part III. 7. Along with the charge memorandum, a list of witnesses and a list of documents proposed to rely in the enquiry were also enclosed. The petitioner submitted his reply to the charges but he did not deny the incident rather he admitted that he caused the injury on the victim by shooting and such a course had to be adopted by him for his self defence. The petitioner submitted his reply to the charges but he did not deny the incident rather he admitted that he caused the injury on the victim by shooting and such a course had to be adopted by him for his self defence. The enquiry was started w.e.f. 1.6.95 and on 7.6.95 the petitioner was present in the enquiry proceeding and on being explained of charges, he pleaded not guilty and he also stated that he would not inspect any documents and also no defence assistant was engaged on his behalf. The enquiry officer informed him that if he so desired he could go through the documents or can also produce witness in support of his defence. On 21.7.95 injured ASI Robert L. Hnamte was examined by the enquiry officer, who was cross examined and copy of his statement was received by the petitioner for putting his signature. Similarly, the statement of Constable M. Zahawla and Constable P.L. Lianhluana were also examined on the same day and copies of their statements were also furnished to the petitioner and received the copies and in token thereof he put his signature on the original copies. The statement another witness, namely, Ramthanrnghaka was recorded on 6.9.95 and the copy of the statement of witness is also received by the petitioner by putting his signature on the original copy. The statement of the petitioner was also recorded in the enquiry proceeding on 21.9.95. In his statement, he reiterated his defence and he also stated that he would not cross examine the SDPO Lallianmawia who conducted the preliminary enquiry. 8. The aforesaid fact goes to show that the petitioner has fully participated in the enquiry proceeding and the statements of the aforesaid witnesses and the materials were duly furnished to the petitioner. Upon scrutiny of the record, we find that statement of another witness, namely, S.I. D.P. Mahto was recorded on 3.8.95 and the copy of statement was also furnished to the petitioner and he received the same by putting his signature in the original copy. But we find that in the ordersheet the statement of the said witness of D.P. Mahto is shown to have been recorded on 25.7.95 in stead of 3.8.95. But we find that in the ordersheet the statement of the said witness of D.P. Mahto is shown to have been recorded on 25.7.95 in stead of 3.8.95. After completion of the enquiry, the enquiry officer prepared a detailed report of the enquiry and considering the statements of the witnesses and other materials available on record, held that charges of misconduct levelled against the petitioner is found to be proved, vide his report dated 22.9.95. 9. In the enquiry report, the statement of S.P. Mahto is found to be mentioned indicating that the said witness forwarded the injured for medical examination and treatment and no further. The aforesaid report was furnished to the petitioner in terms of a direction so issued in WANo. 1 of 2004 and the petitioner submitted his representation against the enquiry report on 27.2.2006. After receipt of the said representation, it was duly considered by the disciplinary authority and after such consideration and having found the charges of misconduct are of serious in nature, inflicted upon him the penalty of removal from service w.e.f. 5.10.95. 10. The statutory appeal of the petitioner against the aforesaid order under Rule 66 of the Assam Police Manual, Part III on 3.3.2006 filed before the appellate authority was also rejected considering the materials available on record and having found that the charges levelled against the petitioner were well proved in the departmental enquiry. While disposing the appeal, the appellate authority also considered the defence plea of the writ petitioner. 11. We may mention herein that although in the earlier WP(C) No. 19/02 as well as in W.A. No. 1/04, the petitioner raised all the available pleas including violation of the principle of natural justice but while disposing the Writ Appeal arising out of the said writ petition, the learned Division Bench confined only to non service of the enquiry report to the petitioner and direction was issued to furnish copy of the enquiry report to the petitioner for enabling him to file representation against the report. In the present writ petition also the petitioner has raised several points including violation of the principle of natural justice and the learned writ Court only discussed the permissibility to remove the writ petitioner from service with retrospective effect w.e.f. 5.10.95. In the present writ petition also the petitioner has raised several points including violation of the principle of natural justice and the learned writ Court only discussed the permissibility to remove the writ petitioner from service with retrospective effect w.e.f. 5.10.95. Accordingly, we had to undertake the exercise of scrutiny of record of the departmental proceeding in order to appreciate the submission made on behalf of the writ petitioner as regards violation of the principle of natural justice and unfairness. 12. During the course of argument, Mr. Prusty, learned counsel for the writ petitioner relied upon the following decisions of the Apex Court: 1) (2006) 5 SCC 446 2) AIR 1999 SCI416 3) (1983) 3 SCC 454 Mr. Prusty also relied upon the decision of the Apex Court rendered in C.A. No. 5747 of 1998 decided on 18.10.2000 : Mandal Vikas Nigam Ltd. Vs. Girja Shankar Pant &Ors. 13. Mr. Sailo, on the other hand has highlighted the power and limit of the writ Court to interfere with the findings in a disciplinary proceeding and relied upon the decisions of the Apex Court rendered in- 1) (1997) 3 SCC567; 2) (1996) 3 SCC 750 ; 3) (2006) 5 SCC 446 ; 4) (1996) 6 SCC 417 ; 5) (2006) 10 SCC 572 . 14. First point raised by Mr. P. C. Prusty in challenging the enquiry itself is to the effect that the petitioner having been acquitted in the criminal case arising out of the same incident, the departmental proceeding on the same facts is barred. Perusal of the judgment and order passed in G.R. No. 395/95 disclose that the petitioner was acquitted for non-production of the prosecution witnesses and not on merit. In the judgment, it is clearly stated that the prosecution could not produce witness and examined only two witnesses and accordingly the petitioner was acquitted from the charges. In such a situation, the ratio of the decision of the Apex Court rendered in (2006) 5 SCC 446 so relied upon by Mr. Prusty is not applicable. The facts of the case rather attracts the ratio of the decision rendered by the Apex Court reported in (2006) 10 SCC 572 . 15. In a criminal case the criminality of the alleged act is to be considered whereas in a disciplinary proceeding the misconduct allegedly committed by the delinquent being subject matter of enquiry, both stand on different footing. 15. In a criminal case the criminality of the alleged act is to be considered whereas in a disciplinary proceeding the misconduct allegedly committed by the delinquent being subject matter of enquiry, both stand on different footing. That apart, the petitioner was acquitted only for the default of the prosecution to produce the witness to prove the charges against the petitioner. In such a situation, we are not impressed with the submission of Mr. Prusty, in this regard. 16. As regards the allegation of violation of the principle of natural justice, as stated earlier, upon perusal of the record of the disciplinary proceeding, we find that the documents of the enquiry proceeding was duly furnished to the petitioner at every stage and he was allowed to cross examine the witnesses and in fact some of the witnesses were cross-examined. However, except some discrepancies in recording the date of one witness viz. D.P. Mahto, we find that the other witnesses including the injured himself sufficiently proved the allegations in support of the articles of charges levelled against the petitioner. Even if the statement of S.I. D.P. Mahto is excluded from consideration that would not effect the findings in the enquiry report. Accordingly, we do not find that principle of natural justice is affected and in fact all adequate opportunities were provided to the petitioner in defending his case. 17. Mr. Prusty, learned counsel for the petitioner has not denied the fact that the petitioner caused injury to ASI Robert L. Hnamte by using his service revolver, but contends that the same had to be done on compelling situation for his self defence. In support of such defence, the petitioner did not examine any witness and the enquiry officer did not believe the defence story. 18. The scope and power of the writ Court to interfere with the findings of such departmental enquiry is very limited. The High Court in dealing with such a matter does not act as an appellate Court and the limit of judicial review is limited to correct the error of law or procedural error leading to manifest injustice of principle of natural justice. This principle has also been reiterated by the Apex Court in the case reported in (2003) 3 SCC 583 . This principle has also been reiterated by the Apex Court in the case reported in (2003) 3 SCC 583 . By taking ourselves within the aforesaid limitation, at this stage, we are not a position to accept the plea of self defence as raised by the writ petitioner in support of his action which falls within the categories of misconduct. The petitioner could not produce any evidence in support of his defence plea at the time of enquiry and accordingly at this appellate stage, in exercise of the power under Section 226 of the Constitution of India, we are unable to accept the same. 19. Dealing with submissions made on behalf of the writ petitioner and the appellants, we are of the view that the learned Single Judge is well justified in holding that the impugned order of removal could not have been passed with retrospective effect from 5.10.95 inasmuch as the order dated 6.10.95 was already set aside and quashed in Writ Appeal No. 1 of 2004. The consequence of quashment of the order dated 6.10.95 would be that the writ petitioner would be deemed to be continued to remain under suspension till the date of order of removal. Accordingly, the order of removal with effect from 5.10.95 passed by the disciplinary authority has been rightly interfered with by the Learned Single Judge. But, on the entire facts and circumstances of the case, we hold that the order of removal of the petitioner from service ought to have been effected from the date of the order i.e. with effect from 16.3.2006 on which date punishment of removal was inflicted afresh. As indicated earlier by Mr. N. Sailo, learned Addl. Advocate General, Mizoram appearing for the appellants/State has fairly agreed that in fact the petitioner's date of removal would be effective from the date of passing of the removal order i.e. with effect from 16.3.2006. 20. In view of the above discussions, we, interfering with the ultimate direction contained in the impugned judgment and order passed by the Learned Single Judge, hold that the removal of the petitioner from service shall be treated w.e.f. 16.3.2006 i.e. from the date of passing of the order of removal and not from an earlier date. The period from 6.10.95 till 16.3.2006 i.e. the direction to reinstate the petitioner shall be deemed to be continued under suspension. The period from 6.10.95 till 16.3.2006 i.e. the direction to reinstate the petitioner shall be deemed to be continued under suspension. Consequently, the respondent authorities are directed to take " necessary steps for providing suspension allowances to the petitioner as permissible under the law till 15.3.2006 as early as possible and at any rate not later than 3 (three) months from the date of receipt of this judgment. 21. In the result, this writ appeal is partly allowed to the extent as indicated above and the impugned judgment and order passed by the Learned Single Judge is modified to the extent as indicated above.