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2011 DIGILAW 698 (GAU)

Horise Sangtam v. State of Nagaland

2011-08-19

P.K.MUSAHARY

body2011
JUDGMENT P.K. Musahary, J. 1. Heard Mr. I. Longchar, learned Counsel for the Petitioner and Mrs. Lucy, learned Government Advocate, Nagaland appearing for State Respondents. 2. The short facts of this case are that the Petitioner was recruited to the post of Constable Driver on 1.9.1978 in the 3rd NAP Battalion. He was promoted to the post of Naik on 23.3.2007. On 24.4.2010, the Petitioner along with a constable handyman was detailed to Dimapur with a Police truck for collection of ration. While the Petitioner was on duty, on 27.4.2010 at 6.30 a.m. when he was sleeping in a Hotel, the police personnel from East Police Station, Dimapur came and woke up him and enquired whether he was the driver of police truck bearing regd. No. NL-11-1003. On getting affirmative answer from him the Dimapur East Police Station personnel informed that in the said truck 25 cases of MC Rum and 3 cases of Beer were found loaded and therefore, he was questioned by the police party. The Petitioner denied having knowledge about the same. However, an FIR was lodged and a case was registered against the Petitioner and the Handiman constable and they were detained in connection with Dimapur East Police Station Case No. 106 of 2010 Under Section 44 NLTP Act, 1989. They were released on bail on the next date i.e. 28.4.2010. They were under detention less then 48 hours. However, the Petitioner was placed under suspension by order dated 30.4.2010 w.e.f. 27.4.2010. 3. No. departmental proceeding was initiated against the Petitioner although, he was placed under suspension for the alleged offence committed by him. Without initiating any departmental proceeding, Petitioner was summarily dismissed from service with immediate effect vide order dated 3.5.2010, issued by the Director General of Police Nagaland, Kohima. 4. Against the aforesaid dismissal order, Petitioner filed No. representation inasmuch as such representation was not contemplated as he was No. longer in service. 5. Mr. I. Longchar, learned Counsel for the Petitioner submits that the punishment of dismissal from service is disproportionate to the gravity of the alleged offence. Moreover, such a summary dismissal from service without following due procedure of law and without resorting to departmental proceeding is illegal and unauthorised. The aforesaid impugned dismissal order, according to him, is liable to be set aside and quashed. 6. Mrs. Lucy, learned Govt. Moreover, such a summary dismissal from service without following due procedure of law and without resorting to departmental proceeding is illegal and unauthorised. The aforesaid impugned dismissal order, according to him, is liable to be set aside and quashed. 6. Mrs. Lucy, learned Govt. Advocate, appearing for the State Respondents has drawn the attention of the court to the submissions made in paragraphs 6,8 and 9 of the affidavit-in-opposition filed by the Respondents No. 1 to 5. The bone of contention of the Respondents authority is that, the Circular dated 12.2.2010 issued by the Director General of Police, Nagaland Kohima (Annexure-2 of the counter affidavit), has given power to dismiss police personnel summarily if he/they are found in possession of IMFL or arrested in connection with cases involving/indulging in Trafficking/Boot legging of IMFL etc. 7. I have considered the pleadings and submissions of the learned Counsel for the parties. There is No. dispute at the bar that the impugned summarily dismissal order was passed without initiating any departmental proceeding against the Petitioner. It is also not disputed that the impugned summarily dismissal was passed/issued in pursuance of the Circular dated 12.2.2010. I have carefully gone through the impugned Circular, relevant portion of which reads as under: No. PHQ(CON-II)NA RCOTICS/2002 Dated Kohima, the 12th Feb,2010. CIRCULAR With the frequent report of seizures of IMFL from Police vehicle driven by Police Personnel taking the advantage of their official position Government has taken serious view. It is therefore felt imperative to send out this cautionary by DGP Nagaland, AP further seizure of Police personnel indulging in Trafficking/Boot legging of IMFL, the consequence of such illegal act will be summarily dismissal from service. This circular may be treated as a 'WARNING" by all officers and Men of Nagaland Police. All Unit Commandars are also directed to take very serious note of this illegal activity and should put up a determined effort to curb/stop it. It is further intimated that any Police vehicle seized for carrying IMFL will be forfeited by that Unit as a consequence. This is for your information and strict compliance. Sd/ (K. KIRE) IPS Director General of Police Nagaland: Kohima 8. In my considered view the aforesaid Circular was issued as a measure of warning to the police personnel/officers of the Nagaland Police. This is for your information and strict compliance. Sd/ (K. KIRE) IPS Director General of Police Nagaland: Kohima 8. In my considered view the aforesaid Circular was issued as a measure of warning to the police personnel/officers of the Nagaland Police. It does not speak about any authority for awarding summary dismissal of the police personnel without resorting to the provision and established procedure of law. It is an administrative Circular without any sanction from law/Rules. It has not even been issued on approval of the State Cabinet. The said circular has No. statutory or other legal force for dismissing police personnel/official in summary manner. 9. In view of the aforesaid position, in my considered view, the impugned summarily dismissal order dated 3.5.2010 and 5.5.2010 are not sustainable in law and the same are liable to be set aside and quashed. What is to be taken seriously is that in the said summarily dismissal, the official has been denied the basic principle of natural justice as the extreme punishment has been awarded without hearing him and even without issuing any show cause notice. Accordingly, the aforesaid impugned summarily dismissal orders dated 3.5.2010 and 5.5.2010 stand quashed and set aside and the writ petition stands allowed. Consequently, Respondents-authority are directed to re-instate the Petitioner with all consequential benefits. However, in the facts and circumstances of the case, the Respondents-authority are given liberty to initiate departmental proceeding against the Petitioner, if so advised. Petition allowed.