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2013 DIGILAW 36 (MEG)

State of Meghalaya v. Celestine K. Sangma

2013-10-04

PRAFULLA C.PANT, T.NANDAKUMAR SINGH

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JUDGMENT : Prafulla C. Pant, J. 1. This appeal is directed against the Judgment and Order dated 23-9-2010 passed by the Learned single Judge in WP(C) No. 255 (SH) of 2007 whereby the writ petition filed by the Respondent No. 1 has been allowed and it has been directed that the writ petitioner (present Respondent No. 1) be reinstated in service. Punishment of removal from service challenged in the writ petition has been quashed. Heard learned counsel for the parties and perused the paper records. 2. The brief facts of the case are that the writ petitioner (present Respondent No. 1) entered in the Police service in the State of Meghalaya as Sub Inspector in 1980. He got promoted as Inspector in the year 1995. In 2002, he was posted as Inspector (Traffic In-charge) with Sadar Police Station, Shillong. The writ petitioner has pleaded that he has an unblemished record and that he held many important posts. In the year 2003, he was placed under suspension in connection with a case crime No. 123 (12) 2002 which related to offences punishable under Sections 379, 119, 411, 420, 120B I.P.C. registered at Laitumkhrah Police Station, and departmental enquiry was initiated against him on the following 6(six) charges. The 6(six) charges are being reproduced below: (1) You were the ring leader of a stolen car racket in Meghalaya. (2) During investigation in the Laitumkhrah P.S. Case No. 12(3) u/S. 379 I.P.C., six witnesses gave their statements in Court wherein they stated that you had seized a Bolero and subsequently released the same on payment of Rs. 1,50,000/- only by Shri Wansted Jana. Neither you prepared any seizure list nor was any G.D. Entry made to this effect as per law. (3) On August 2002, A.S.I. B. Rimsu and UBC RR Marak gave their statements in the Court stating that you had asked them to bring one Sumo bearing registration No. ML-08-9129 FROM THE RESIDENCE OF ONE Maila Gurung of Madanrting No. G.D. Entry made by you on the matter nor did you prepare seizure list as per law. (4) On 20.02.2003, a Maruti Car bearing registration No. ML-05 A-8162 which turned out to be a fake number was recovered from the parking lot of Hotel Alpine, Shillong which belonged to one Md. Arshad Hussain of Jamnagar Road, Kolkata. Apparently, you had concealed the same for the purpose of selling. (4) On 20.02.2003, a Maruti Car bearing registration No. ML-05 A-8162 which turned out to be a fake number was recovered from the parking lot of Hotel Alpine, Shillong which belonged to one Md. Arshad Hussain of Jamnagar Road, Kolkata. Apparently, you had concealed the same for the purpose of selling. The seizure list was not sent by you to the concerned Magistrate as required under law. (5) On 09.11.2002, you had seized one Tata Indica bearing registration No. JH-11B-0895. It was subsequently ascertained that the vehicle was a stolen one and the original registration No. was MH-12AR-5490, and the same belonged to one Shri Kandoth Thiyarth Mashnan of Yerrawada, Pune. You did not prepare a seizure list as per law. (6) While your involvement in the stolen car racket was being investigated and you were wanted in connection with the same, you remained unauthorisedly absent from duty from 15.02.2003 up to 13.03.2003. 3. The writ petitioner gave his reply (copy Annexure 5 to the writ petition) to the charges. After the departmental enquiry was concluded, the Enquiry Officer in his report dated 23-6-2005 (copy Annexure 10 to the writ petition) found the writ petitioner guilty of all the charges except charge No. 1 and charge No. 5. The delinquent officer was served with a copy of the enquiry report who submitted his response on 26-9-2005 (copy Annexure 12 to the writ petition). The Director General of Police vide order dated 25-1-2006 (copy Annexure 16 to the writ petition) awarded major penalty of removal from service against the writ petitioner. 4. It appears that a departmental appeal was preferred by the delinquent officer, Shri C.K. Sangma (writ petitioner) to the Commissioner & Secretary, Home Department, Govt. of Meghalaya, Shillong. The said authority vide its order dated 9th July, 2007 (copy Annexure 18 to the writ petition) dismissed the departmental appeal. 5. The writ petitioner challenging the order of removal, and order passed by the departmental appellate authority filed the WP (C) No. 255 (SH) of 2007. The respondents filed their counter-affidavit to which the petitioner filed the rejoinder affidavit. The Learned single Judge after hearing the parties, allowed the writ petition and quashed the order of removal. It further directed the reinstatement of the writ petitioner in service. Hence, this appeal filed by the respondents in the writ petition. 6. The respondents filed their counter-affidavit to which the petitioner filed the rejoinder affidavit. The Learned single Judge after hearing the parties, allowed the writ petition and quashed the order of removal. It further directed the reinstatement of the writ petitioner in service. Hence, this appeal filed by the respondents in the writ petition. 6. In the memorandum of appeal, it has been stated that the impugned Judgment passed by the Learned single Judge is against the settled principles of law laid down by the Supreme Court in the case of Union of India v. Y.S. Sandu, : AIR 2009 SC 161 . It is also stated that the Learned Single Judge has erred in law, in holding that the writ petitioner was victim of departmental envy. It is also pleaded by the appellant in the writ appeal that the Learned single Judge further erred in law in holding that the quantum of punishment was disproportionate to the charges proved. It was pointed that the charge of involvement in the racket of stolen cars is serious in nature and a moral turpitude to attract the removal from service from a disciplined force and the same was justified. 7. All the 4(four) charges on which the delinquent officer was found guilty are undoubtedly very serious in nature. In charge No. 2, it is mentioned that during investigation of crime case No. 12(3) 2002 relating to offences of punishment, registered at Laitumkhrah Police Station, 6(six) witnesses gave their statement in Court where they stated that the delinquent officer seized a Bolero and subsequently released the same on payment of Rs. 1,50,000/- (one lakh, fifty thousand) by one Mr. Wansted Jana. The writ petitioner (delinquent officer) neither made any seizure memo nor did he make any entry in General Diary. Charge No. 3 relates to August 2002, when the ASI, Mr. B. Rimsu and UBC R.R. Marak gave their statements in the Court stating that the delinquent officer had asked them to bring one Sumo bearing registration No. ML-08-9129 from the residence of one Maila Gurung of Madanrting. No. entry in General Diary was made by the delinquent officer nor had he prepared any seizure memo. B. Rimsu and UBC R.R. Marak gave their statements in the Court stating that the delinquent officer had asked them to bring one Sumo bearing registration No. ML-08-9129 from the residence of one Maila Gurung of Madanrting. No. entry in General Diary was made by the delinquent officer nor had he prepared any seizure memo. As to the charge No. 4, it is stated that on 20-2-2003, a Maruti Car bearing registration No. ML-05A-8162 which turned out to be a fake number was recovered from parking lot of Hotel Alpine, Shillong which belonged to one Md. Arshad Hussain of Jamnagar Road, Kolkata. Apparently, the delinquent officer concealed the same for the purpose of selling it. Seizure memo neither prepared nor sent by him to the concerned Magistrate. Charge No. 6 on which the writ petitioner was found guilty, was unauthorized absence from duty from 15-02-2003 upto 13-03-2003 after his involvement in the stolen cars racket came to light. The evidence has been discussed by the Enquiry Officer. The principle of natural justice appears to have been adhered to as the delinquent officer was given an opportunity to defend himself. He was also given a copy of the enquiry report before penalty was awarded. He participated in the departmental proceedings and made his submissions. 8. Learned counsel for the writ petitioner submitted that the Learned single Judge has rightly held that the findings recorded by the Enquiry Officer were vitiated as the writ petitioner was not supplied with copies of certain documents. However, annexure 6 to the writ petition shows that contents of the documents which the delinquent officer demanded were already known to him as the opening sentence of his letter (annexure 6) shows that he had inspected the documents. As to the second list of documents relating to copy of the First Information Report of case crime No. 123 (12) 2002 relating to offences of punishment u/s 279 I.P.C. and other papers relating thereto are concerned, since admittedly the delinquent officer was already facing criminal charge in the Court, as such it cannot be said he was not supplied copies of the same u/s 207 of the Code of Criminal Procedure by the Court. Apart from this, the departmental authorities were required to supply the documents to the writ petitioner which was relied by them. 9. Apart from this, the departmental authorities were required to supply the documents to the writ petitioner which was relied by them. 9. On behalf of the appellant, it is argued that assuming that if some documents were not supplied, since no prejudice is caused to the delinquent officer, it does not materially vitiate the enquiry. 10. In State Bank of Patiala v. S.K. Sharma (1996) 3 SCC 364 ( AIR 1996 SC 1669 ) , following observations have been made by the Apex Court in its judgment quoted hereunder: 33. We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee): (1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character. (2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case. (3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under - 'no notice', 'no opportunity' and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice, including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle. (4)(a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee. (b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of said violation. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunakar. The ultimate test is always the same viz., test of prejudice or the test of fair hearing, as it may be called. (5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice - or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action--the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e., between "no notice"/"no hearing" "no fair hearing". (a) In the case of former, the order passed would undoubtedly be invalid (one may call it "void" or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. (It is made clear mat this principle (No.5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.) (6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them. (7) There may be situations where the interests of State or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision. 11. On behalf of the writ petitioner (present Respondent No. 1) reference was made to the case of Pijush Chattorpadhyay v. National Council for Co-operative Training, (2010) 3 GLR 344 . In the said case, though it has been held mat copies of all the relevant documents should be supplied to the delinquent officer, but where the contents of such documents are already known to such employee, it cannot be said he was prejudiced. For the same reason, another case of State of Uttar Pradesh v. Saroj Kumar Sinha (2010) 2 SCC 772 ( AIR 2010 SC 3131 ) is of little help to the writ petitioner. 12. Lastly, reliance was placed on behalf of the writ petitioner in the case of Roop Singh Negi v. Punjab national Bank (2009) 2 SCC 570 (AIR 2008 SC (Supp) 921) , but in the said case, facts and circumstances were totally different to the present case and the delinquent was already acquitted by the criminal Court, and the confession on which the Enquiry Officer held him guilty, was made before the Police which was not admissible in evidence. 13. For the reasons as discussed above, we are of the view that the Learned single Judge has erred in law in quashing the order of penalty passed by the authority concerned against the writ petitioner, and in directing his reinstatement. Therefore, in our opinion, this appeal deserves to be allowed. Accordingly, the appeal is allowed. 13. For the reasons as discussed above, we are of the view that the Learned single Judge has erred in law in quashing the order of penalty passed by the authority concerned against the writ petitioner, and in directing his reinstatement. Therefore, in our opinion, this appeal deserves to be allowed. Accordingly, the appeal is allowed. Impugned Judgment and Order dated 23-9-2010 passed in WP(C) No. 255 (SH) 2007 is hereby set aside and the writ petition is dismissed. However, no order as to costs.