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2013 DIGILAW 813 (GAU)

Ngurthansanga Sailo v. State of Mizoram

2013-11-19

LANUSUNGKUM JAMIR

body2013
JUDGMENT Lanusungkum Jamir, J. 1. Heard Mr. A.R. Malhotra, learned counsel appearing for the petitioner as well as Mr. Aldrin Lallawmzuala, learned Additional Advocate General, Mizoram for the respondents. The petitioner was appointed as constable on the basis of recommendation made by the Mizoram Police Establishment Board by order dated 18.07.2008. While the petitioner was posted at 4th IR Battalion, Aizawl, Mizoram, he was served with a memorandum of charge dated 5.07.2012 wherein the petitioner was charged with possession of 31 capsules of Parvon Spas which he kept without authorization. Thereafter, departmental enquiry was conducted against the petitioner wherein the enquiry officer had held both the charges to be proved against the petitioner. The enquiry officer submitted his enquiry report on 29.11.2012. The petitioner was furnished with a copy of the enquiry report by the respondent No. 3 by a communication dated 30th November, 2012. By the said communication, the petitioner was further informed to make any representation or submission within 15 days of receipt of the letter. The petitioner thereafter made his representation dated 6.12.2012 against the said enquiry report. After considering the enquiry report as well as the representation dated 6.12.2012 submitted by the petitioner, the respondent No. 3 imposed the penalty of removal from service and terminated the petitioner from service with immediate effect by order dated 14th December, 2012. Being aggrieved by the said order dated 14.12.2012, the petitioner approached this Court by way of W.P.(C) No. 14 of 2013 challenging the legality and validity of the order darted 14.12.2012. This Court by order dated 19.02.2013 had disposed of the aforesaid writ petition by giving liberty to the petitioner to file an appeal before the appellate authority through the Commandant, 4th IR Battalion, Aizawl, Mizoram within a period of 15 days from the date of order. The petitioner was also given liberty to approach the appropriate forum in accordance with law, if further aggrieved. 2. The petitioner, thereafter, filed an appeal under Rule 1045 of the Mizoram Police Manual, 2006 (hereinafter referred to as MPM, 2006) against the order dated 4.12.2012 before the appellate authority. The petitioner was also given liberty to approach the appropriate forum in accordance with law, if further aggrieved. 2. The petitioner, thereafter, filed an appeal under Rule 1045 of the Mizoram Police Manual, 2006 (hereinafter referred to as MPM, 2006) against the order dated 4.12.2012 before the appellate authority. Therein, amongst others, the petitioner had taken a ground that as per Rule 1037 of the MNP, 2006 it is provided that in every case where it is contemplated to impose on a member of any of the State Police the major punishments he shall be given a reasonable opportunity of making any representation that he may desire to make and such representation, if any, shall be taken into consideration before the order imposing the punishment is passed. He, therefore, alleged that he was not given any show cause notice before imposing the penalty of removal from service. The appellate authority, after considering the appeal filed by the petitioner, had dismissed the appeal by an order dated 12th April, 2013. Being aggrieved, the present writ petition. 3. Mr. A.R. Malhotra, learned counsel appearing for the petitioner submits that without prejudice to the other grounds taken against the impugned orders dated 14.12.2012 and 12.04.2012, he submits that there has been gross violation of the statutory provisions provided under Rule 1037 of the MPM, 2006 wherein it stipulates that show cause to the petitioner is mandatory before the respondents impose any order of major punishment. He, therefore, submits that on this ground alone, the orders dated 14.12.2012 and 12.04.2013 stands vitiated and therefore, are liable to set aside and quashed. 4. Mr. Aldrin Lallawmzuala, learned Additional Advocate General, Mizoram submits that a careful consideration of the findings of the enquiry report and other relevant documents available on record, the punishment of removal imposed on the petitioner by the disciplinary authority is just and proper. However, at this stage, in his usual fairness, he submits that there has been violation of Rule 1037 of the MPM, 2006. 5. I have considered the rival contentions forwarded by both the learned counsel appearing for the parties. A perusal of Rule 1037 of MPM, 2006 clearly stipulates that show cause notice is mandatory before the disciplinary authority imposes any major punishment on the delinquent officer. 5. I have considered the rival contentions forwarded by both the learned counsel appearing for the parties. A perusal of Rule 1037 of MPM, 2006 clearly stipulates that show cause notice is mandatory before the disciplinary authority imposes any major punishment on the delinquent officer. A perusal of the records would clearly show that after consideration of the enquiry report and the representation dated 6.12.2012 against the said enquiry report, the disciplinary authority had imposed the penalty of removal from service and terminated the petitioner with immediate effect without giving him any show cause to the proposed major punishment. 6. The appellate authority, while considering the appeal of the petitioner, also had not given any appropriate reasons with regard to violation of Rule 1037 of the MPM, 2006 against the petitioner. The findings of the appellate authority as regards violation of Rule 1037 of MPM, 2006 as alleged by the petitioner is quoted below: "Another plea made by the appellant is that although Enquiry Report was furnished to him but Show Cause Notice was not given to him, Rule 1037 of MPM, 2005 is confusing on its interpretation and it is extra ordinary while the possibility of furnishing E.O.'s report to the charge official is mandatory which was done accordingly." 7. This Court is of the opinion that the reasoning given by the appellate authority as regards violation of Rule 1037 of MPM, 2006 is without any basis and has no substance. While Rule 1037 of the MPM, 2006 stipulates that show cause notice has to be given before any major penalty is imposed on the delinquent officer, it is clear from the records that the petitioner was not given any show cause notice before the punishment of removal from service was imposed upon him. Therefore, without going into any of the other grounds alleged by the petitioner, this Court is of the opinion that the impugned orders dated 14.12.2012 and 12.04.2013 stands vitiated on this score alone. Accordingly, the order dated 14.12.2012 whereby the petitioner was imposed a penalty of removal from service and was terminated from the service with immediate effect passed by the Commandant, 4th IR Battalion, Aizawl, Mizoram and the order dated 12.04.2013 passed by the appellate authority are set aside and quashed. Accordingly, the order dated 14.12.2012 whereby the petitioner was imposed a penalty of removal from service and was terminated from the service with immediate effect passed by the Commandant, 4th IR Battalion, Aizawl, Mizoram and the order dated 12.04.2013 passed by the appellate authority are set aside and quashed. The respondents are directed to forthwith reinstate the petitioner back into service with effect from the date he was terminated along with all other consequential service benefits. However, the respondents are given the liberty to proceed with a fresh disciplinary proceeding against the petitioner, if so advised. In the event, the respondents proceed with a new disciplinary proceeding against the petitioner, it is directed that the same should be completed within a period of 6(six) months from the date of initiation of the said disciplinary proceeding. With the above observations and directions, this writ petition is allowed. No cost.