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2011 DIGILAW 716 (GAU)

Lalthahluna v. State of Mizoram

2011-08-26

H.BARUAH

body2011
JUDGMENT H. Baruah, J. 1. Heard Mr. Zochhuana, learned Counsel for the Petitioners and Mrs. Dinari T. Azyu, learned Govt. Advocate for the Respondents. 2. This is a second round of litigation. In this writ petition the Petitioners once again have challenged the impugned order (annexure-XIX) issued under Memo No. 2IR/R/Common-DEDVR-3/09/2092 dated 18-11-2009, whereby and whereunder Petitioners are removed from service. It would appear from the perusal of the records that on account of removal of the writ Petitioners by the Commandant, 2nd IR Battalion by order dated 25-8-2006, the Petitioners approached this Court challenging their removal by filing Writ Petition (c) No. 31 of 2008, which came to be disposed of by this Court vide judgment and order dated 1-4-2009. The removal of the Petitioners made by impugned order dated 25-8-2006 was made without holding a disciplinary proceeding as mandated under Article 311(2) of the Constitution of India. This Court while disposing the aforesaid writ petition, in paragraph-6 of the judgment and order observed as under: 6. However, in the peculiar facts and circumstances, it is made clear that this Court is not making any comment to the decision of the Disciplinary Authority for taking appropriate actions against the writ Petitioners. But this Court interferes with the impugned order only on the ground that the prerequisites for dispensing with the Departmental Enquiry against the Petitioners contemplated under proviso (b) to Article 311(2) of the Constitution of India are not fulfilled. Accordingly, the Disciplinary Authority is directed to hold regular Departmental Enquiry against the writ Petitioners according to law. For holding Departmental Enquiry, the Petitioners shall be reinstated to their services and they may be placed under suspension, if necessary, immediately after their reinstatement and the Petitioners shall be paid substantial allowances as per the rules. From the perusal of the contents of the above paragraph of the judgment, it would appear to us that on account of failure to adhere to the provision of Article 311(2) of the Constitution of India, the Disciplinary Authority was directed to hold regular departmental inquiry against the writ Petitioners. It was also directed that for the purpose of holding the departmental enquiry Petitioners shall be reinstated to their services and they may be placed under suspension, if necessary, immediately after their reinstatement in their services. Further direction was also issued that the Petitioners shall be paid substantial allowances as per rules. 3. It was also directed that for the purpose of holding the departmental enquiry Petitioners shall be reinstated to their services and they may be placed under suspension, if necessary, immediately after their reinstatement in their services. Further direction was also issued that the Petitioners shall be paid substantial allowances as per rules. 3. The Respondent authorities being empowered to hold a fresh departmental enquiry against the writ Petitioners herein proceeded with a departmental enquiry afresh wherein, Saidingliana Sailo, Deputy Commandant, 2nd IR Battalion was appointed as Enquiry Officer. For the purpose of proceeding with the departmental enquiry the Respondent authorities provided the writ Petitioners with article of charges and statement of imputation and asked the writ Petitioners to file show cause as to why the departmental proceeding should not be proceeded against them. Pursuant thereto the writ Petitioners herein filed their reply in writing vide Annexure-13, 14 and 15, wherein they denied all the allegations/charges brought against them. Being not satisfied with the explanation, so submitted by the writ Petitioners as against the charges leveled against, the Respondents commenced the departmental proceeding against the writ Petitioners. The departmental proceeding/inquiry having been concluded, an inquiry report being submitted to the disciplinary authority, the disciplinary authority, the Commandant, 2nd IR Battalion vide impugned order dated 18-11-2009 (Annexure-XIX) removed the Petitioners from their services on and from 18-11-2009. The disciplinary authority in the impugned order also indicated that the period of suspension with effect from 6-5-2009 till the date of issue of the impugned order shall not be treated as on duty. 4. Being aggrieved by the impugned order the Petitioners have once again approached this Court by filing this instant writ petition challenging their removal from service. 5. Mr. Zochhuana, learned Counsel for the Petitioners at the very outset of his argument submits that the impugned removal order cannot sustain in law since there is violation of the procedure of conducting departmental proceeding against the delinquent. It is submitted by Mr. Zochhuana that Saidingliana Sailo, Deputy Commandant, 2nd IR Battalion was appointed as Enquiry Officer. Said Saidingliana, the Enquiry Officer assumed dual role while conducting the inquiry against the writ Petitioners. Mr. Zochhuana referring to the inquiry report, Annexure-17 submits that during inquiry 3(three) witnesses for the department were examined to prove article of charges against the writ Petitioners. Zochhuana that Saidingliana Sailo, Deputy Commandant, 2nd IR Battalion was appointed as Enquiry Officer. Said Saidingliana, the Enquiry Officer assumed dual role while conducting the inquiry against the writ Petitioners. Mr. Zochhuana referring to the inquiry report, Annexure-17 submits that during inquiry 3(three) witnesses for the department were examined to prove article of charges against the writ Petitioners. The Enquiry Officer by assuming the role of Presenting Officer examined those 3(three) witnesses in order to prove the article of charges against the Petitioners. It is submitted by Mr. Zochhuana that the Enquiry Officer being in the position of a Judge cannot assume dual role while conducting a disciplinary proceeding which is quasi judicial in nature against the delinquents. During the pendency of the writ petition, the learned State counsel was directed to place the entire records of the disciplinary proceeding to substantiate whether for the purpose of disciplinary proceeding any Presenting Officer was appointed or not. The records of disciplinary proceeding having been placed before this Court we do not find anywhere that the disciplinary authority appointed a Presenting Officer to present its case before the Enquiry Officer against the Petitioners. Since the records of the disciplinary proceeding are silent in regard to the appointment of a Presenting Officer, it would appear to this Court that the witnesses examined in the disciplinary proceeding were examined by the Enquiry Officer himself and thus it would go to show in clear terms that Saidingliana Sailo, Deputy Commandant, 2nd IR Battalion assumed dual role of Enquiry Officer as well as Presenting Officer. 6. Mrs. Dinari T. Azyu, learned G.A. appearing for the State Respondents also concedes after going through the records of the disciplinary proceeding that No. Presenting Officer was appointed for the purpose of disciplinary proceeding against the writ Petitioners. 7. Mr. Zochhuana, learned Counsel for the Petitioners in support of his contention relies on the decision reported in 2011 (1) GLT 287 (Salam Kesho Singh v. State of Manipur and Others). In Paragraph-5 of the judgment, the Division Bench of this Hon'ble court held as under: 5. In the present case, there is No. dispute that No. Presenting Officer was appointed. This fact is confirmed fro the relevant record of the disciplinary proceeding produced by the learned senior Govt. Advocate. It is well settled that an Enquiry Officer cannot assume the role of a Judge and also a Prosecutor. In the present case, there is No. dispute that No. Presenting Officer was appointed. This fact is confirmed fro the relevant record of the disciplinary proceeding produced by the learned senior Govt. Advocate. It is well settled that an Enquiry Officer cannot assume the role of a Judge and also a Prosecutor. Even if the relevant service rules is silent about the appointment of a Presenting Officer, absence of a Presenting Officer will make the enquiry totally vitiated as the Enquiry Officer cannot be allowed to assume the role a Judge as well as a prosecutor. In this connection, we may refer to various decisions of this Court, such as Dr. Rayja Mallu Buzar Barua v. Assam Administrative Tribunal and Ors.: 1983 (1) GLR (NOC) 71, Chelfrumog v. State of Tripura & 6 Ors: 2002 92 GLR 604, Baharul Islam (CT) v. Union of India and Ors.: 2001 (1) GLT 621, State of Manipur and Ors. v. Chongtham Homendro Singh: 2005 (3) GLT 154. In Kumar Madal Vikar Nigam Limited v. Giriya Shankar Pant and Ors. (2001) 1 SCC 182 , the Apex Court held the same effect. In the State of U.P and Ors. v. Saroj Kumar Sinha: (2010) 2 SCC 772 , the Hon'ble Apex Court held to the effect that an Enquiry Officer acting in a quasi-judicial authority is in a position of an independent adjudicator, and as such, he is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. 8. In the case (supra) it would appear to this Court that for the purpose of disciplinary proceeding, proceeded against the Petitioner No. presenting officer was appointed. It was held by the Division Bench that the Enquiry Officer cannot assume the role of Judge and also as a prosecutor. Non-appointment of the Presenting Officer to conduct the departmental proceeding it was observed would vitiate the entire departmental proceeding. The Division Bench of this Court while deciding as such also took the ratio laid down in various decisions of this Court as well as Apex Court. In our present case also the records of the disciplinary proceeding do not indicate that a Presenting Officer was appointed to conduct the disciplinary proceeding. The Division Bench of this Court while deciding as such also took the ratio laid down in various decisions of this Court as well as Apex Court. In our present case also the records of the disciplinary proceeding do not indicate that a Presenting Officer was appointed to conduct the disciplinary proceeding. As it appears, the Enquiry Officer himself conducted the proceeding and ultimately came to finding that the article of charges are proved against the writ Petitioners. 9. In view of the ratio laid down by this Court and various High Courts as well as Apex Court, the disciplinary proceeding conducted against the Petitioners would be vitiated. This being so, the impugned order of removal basing on the decision of the Enquiry Officer cannot sustain in law. 10. Mrs. Dinari. T. Azyu, learned Govt. Advocate while submitting before this Court strenuously submits that the decision of the Enquiry Officer went against the writ Petitioners on account of their pleading of guilt to the Article of charges framed against them. That being so, the entire disciplinary proceeding would not be vitiated on account of non appointment of Presenting Officer and accordingly, the impugned order is not liable to be interfered with. It would appear to this Court that the writ Petitioners during the departmental proceeding pleaded their guilt that too in writing but while taking a decision as against the writ Petitioners by the Enquiry Officer, he had cumulatively had taken the testimony of the 3(three) witnesses examined by him together with the plea of guilt submitted in writing by the Petitioners. When the decision had been taken as against the writ Petitioners basing on the testimony of the three witnesses, who were examined by the Enquiry Officer during the conduct of the departmental proceeding, the role assumed by him, in view of the ratio laid down by this Court as well as Apex Court and different High Courts would not be acceptable. Thus, the departmental proceeding conducted and the decision rendered on the basis of it cannot sustain as against the writ Petitioners. 11. Taking note of all the facts in its entirety and the law laid down by the Apex Court and this Court and various other High Courts in my considered view, the impugned removal order cannot sustain. Thus, the departmental proceeding conducted and the decision rendered on the basis of it cannot sustain as against the writ Petitioners. 11. Taking note of all the facts in its entirety and the law laid down by the Apex Court and this Court and various other High Courts in my considered view, the impugned removal order cannot sustain. In the result, impugned order issued under Memo No. 2IR/R/Common-DEDVR-3/09/2092 dated 18-11-2009 removing the Petitioners from service is set aside and quashed. Respondent authority(s) is/are directed to reinstate the Petitioners in their respective service from the date of their suspension and to pay all 8 service benefits from the date of their suspension till the date of their reinstatement. Respondent authority(s) would, however be not handicapped to proceed with departmental proceeding(s) against the Petitioners afresh, if so advised. 12. Writ petition stands disposed of accordingly. No. cost.