Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 304 (GAU)

Nandalal Das v. State of Assam

2014-03-12

HRISHIKESH ROY

body2014
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. P.K. Roy, the learned Counsel appearing for the petitioners in the two cases. The State respondents are represented by the learned Government Advocate Ms. H.M. Phukan. Both cases arise out of a common disciplinary proceeding and identical punishment of removal from service has been inflicted on the 2 policemen. For the records, the petitioner Nandalal Das was a Constable arid the petitioner Bidyadhar Saikia was a Lance Naik in the Assam Police and the disciplinary proceeding was drawn up against both for their alleged negligence while being posted in March 2003 as armourer in the Arms Kote in the Morigaon District Police Reserve. To avoid confusion, the facts herein are extracted from the WP (C) 4598/2007 filed by Nandalal Das. FACTUAL BACKGROUND During inspection of the Arms Kote of the Morigaon Police Reserve on 25.3.2003, the Addl. S.P. (H.Q.) discovered that seven 9 MM Browning Pistols with 1 magazine each and 285 rounds of live ammunitions were missing from the Armoury. As the petitioners were assigned duties in the Arms Kote during the relevant period, the Charge Memo(s) dated 1.5.2003 was drawn up against them on the following statement of allegations: ABC/344 Nandalal Das while he was posted at Arms Kote Morigaon Police Reserve as Inspector, 7 (seven) Nos. Of 9 MM B/Pistol with one Magazine each and 285 rounds of 9 MM live Ammunition was found short in stock of Armoury Morigaon Police Reserve during physical checking of Arms and Ammunition of the Arms Kote by the Addl. S.P. (HQ) Morigaon on 25.3.2003. On query he could not give any proper account of the said short Arms and Ammunition and there is reason to believe that the abort Arms and Ammunition may be appropriated by him. All those acts of his are tantamount to gross negligence and misconduct on the part of his duty and liable for stern departmental action. LNK/Bidyadhar Saikia while he was posted at Arms Kote Morigaon Police Reserve for keeping the accounts of Arms and Ammunition issue and receipt of the same, found 7 (seven) Nos. Of 9 MM B/Pistol and 285 rounds of 9 MM live Ammunition short in the Arms Kote during the physical verification of Addl. S.P. (HQ) Morigaon on 25.3.2003. But on query he could not give any proper accounts of short Arms and Ammunition of the Armoury, Morigaon Police Reserve. Of 9 MM B/Pistol and 285 rounds of 9 MM live Ammunition short in the Arms Kote during the physical verification of Addl. S.P. (HQ) Morigaon on 25.3.2003. But on query he could not give any proper accounts of short Arms and Ammunition of the Armoury, Morigaon Police Reserve. As such he had done the duty very negligently and careless manner which had led to loss of such valuables Govt. Property. Further he had signed the Morning Report of Arms Kote, Morigaon Police from 04.03.2003 to 15.03.2003 and 17.3.2003 to 24.3.2003 inspite of the presence of the senior Armourer. He thereby did this act with malafide intention and there is sufficient reason to believe that said lost Arms and Ammunitions were mis-appropriately by him with others by giving false statement concealing the facts from the authority. All these act of his tantamount are gross negligent, misconduct and dereliction of duty on his part and liable for stem departmental action. 2. In their reply to the show-cause-notice, the petitioners stated that they were not entrusted with the keys of armoury which were kept by the Arms Branch Inspector (ABI) or the Reserve Officer and in their absence by the Head Armourer, Habildar Deepak Muktiar. Moreover neither the Constable nor the Lance Naik were made custodian of the armoury stores and their duty was limited to clean and issue weapons on instruction of their superior, during their stint in the armoury. But considering the replies to be unsatisfactory, an enquiry was ordered and the D.S.P. (HQ) Morigaon conducted the enquiry against the 3 charged policeman including the Head Armourer. 3. In the proceeding, 5 witnesses were presented by the prosecution but the delinquents didn't avail of the opportunity to cross-examine those witnesses. Moreover no defence witnesses produced by them. On the basis of purported consideration of the material evidence, the inquiry officer concluded that the charge of gross misconduct and negligence of duties was proved against the delinquents. 4. The S.P Morigaon considered the report of the inquiry officer and after approving the finding declared that the charged policemen are not fit to be retained in police service and accordingly their removal was ordered, through the impugned order dated 9.7.2004 (Annexure-G). 5. In connection with the missing arms, the Morigaon P.S. Case No. 44/2003 was registered at police's instance. The S.P Morigaon considered the report of the inquiry officer and after approving the finding declared that the charged policemen are not fit to be retained in police service and accordingly their removal was ordered, through the impugned order dated 9.7.2004 (Annexure-G). 5. In connection with the missing arms, the Morigaon P.S. Case No. 44/2003 was registered at police's instance. In the Criminal Case registered under Section 120A, 121A, 409, 380 & 411 of the IPC, the 2 petitioners were amongst the 7 accused in the case. But after protracted trial of the Sessions Case No. 114/2006 (GR. Case No. 182/2003), the learned Asstt. Sessions Judge, Morigaon through his judgment dated 11.5.2012 observed that the real Armoury in-charge i.e. ABI Lila Ram Bordoloi was not proceeded against and after considering the other evidence in the case, all the accused were acquitted by the Trial Court 6. In the Morigain P.S. Case No. 44/2003, the statement of the accused Md. Ainul Haque was recorded under Section 164Cr.P.C. in his statement, Md. Ainul Haque indicated that the Head Armourer Deepak Muktiar arranged for theft of the pistols and ammunitions from the armoury and they were sold away to surrendered militants for handsome price. 7. In the appeal against the removal order, the charged policemen specifically mentioned about the weapons theft by head armourer Deepak Muktiar who sold away the pistols and the bullets through the co-accused Ainul Haque and also informed about the recovery of the sold weapons from the purchaser. The statement of Ainul Haque was enclosed with the appeal filed by the delinquents and reconsideration was sought from the appellate authority. Since the disciplinary authority foiled to consider exculpatory statement made by the accused Ainul Haque and the involvement of the Head Armourer Deepak Muktiar who misappropriated the weapons, the delinquent expected positive intervention from the appellate authority. But through a perfunctory consideration of the appeal, the Deputy I.G. of Police through his order dated 3rd September 2005 (Annexure-J) sustained the order of the disciplinary authority. The aggrieved policemen then approached the Assam Administrative Tribunal but the appeal of the delinquents was dismissed by the learned Tribunal on 30.5.2007. 8. But through a perfunctory consideration of the appeal, the Deputy I.G. of Police through his order dated 3rd September 2005 (Annexure-J) sustained the order of the disciplinary authority. The aggrieved policemen then approached the Assam Administrative Tribunal but the appeal of the delinquents was dismissed by the learned Tribunal on 30.5.2007. 8. The Rule 66 of the Assam Police Manual specifies the procedure for imposition of major penalties and Sub-rule (iii) provides that the inquiry report should contain statement of the findings and also the ground thereof, before major punishment is inflicted Similarly under Sub-rule (vi) of Rule 66 of the Assam Police Manual, the appellate authority is required to consider whether the facts on which the punishment was imposed were established and whether the established facts afforded sufficient ground for the penalty inflicted. 9. Representing the petitioners Mr. P.K. Roy, the learned Counsel submits that the inquiry officer failed to give any specific finding against the delinquents on the charges and an abrupt conclusion was recorded in the final paragraph of the inquiry report without referring to any basis for the conclusion. Accordingly it is argued that the punishments were wrongfully inflicted by the disciplinary authority without a reasoned finding of the inquiry officer, as stipulated under Rule 66(iii) of the Assam Police Manual. 10. Referring to a similar cursory exercise done by the disciplinary authority in inflicting the punishment, the learned Counsel submits that the nominal responsibilities of the Constables on duty in the Armoury were not taken into account before declaring that their negligent action has led to loss of the weapons from the Armoury and accordingly it is submitted by Mr. Roy that the disciplinary authority failed to act in accordance with the requirement of the specified procedure. 11. Projecting that the appellate authority failed to apply himself and consider whether the allegations were established, the petitioners argue that the obligation under Sub-rule (vi) of Rule 66 of the Assam Police Manual were not discharged and accordingly the order of the appellate authority is contended to be vitiated in law. Moreover the role of the Head Armourer Deepak Muktiar who was fully responsible for theft of the weapons and their sale to surrendered militants as revealed from the statement of the accused Ainul Haque, was totally ignored by the appellate authority. 12. Moreover the role of the Head Armourer Deepak Muktiar who was fully responsible for theft of the weapons and their sale to surrendered militants as revealed from the statement of the accused Ainul Haque, was totally ignored by the appellate authority. 12. While scope for interference with orders of the disciplinary authority is limited for a Writ Court, the fairness of the procedure can certainly be subjected to judicial scrutiny. In the instant case the two policemen had limited duties to perform in the armoury and more importantly they were not the custodian of the arms and weapons. Yet neither the inquiry officer nor the disciplinary authority or even the appellate authority paid any attention to the minimal roles and responsibilities of the two duty constables. In fact the chief custodian armourer ABI Lila Ram Bordoloi was not even subjected to any disciplinary proceeding and the criminal court specifically referred to the absence of the In-charge of the Armoury in the criminal case. The statement of the co-accused Ainul Haque clearly revealed that the Head Armourer Deepak Muktiar had stolen the pistols and sold them for unlawful gain. But although the role of the Head Armourer in the weapons theft was known to the authorities and their attention was drawn specifically to the 164 Cr.P.C. statement of the co-accused Ainul Haque, it was never for a moment considered that the petitioners were unnecessarily shown as culpable for the criminal acts, committed by the Head Armourer Deepak Muktiar. 13. On can perhaps say that the procedural formalities were observed during the inquiry in this case but at the same time it is glaringly evident that the inquiry officer failed to record any specific finding on the roles and responsibilities of the 2 delinquents and how they could be held responsible for the missing weapons from the armoury. Moreover even the disciplinary authority failed to take note of the abrupt conclusion reached by the inquiry officer which were not related specifically to evidence of any of the 5 prosecution witnesses. In fact none of the witnesses attributed any definite role to the two delinquents and only thing that they said was that the delinquents may have been negligent in their duties. But since the charged policemen were not the custodian of the weapons in the armoury, the nature of dereliction of duty alleged against them was never declared by the inquiry officer. But since the charged policemen were not the custodian of the weapons in the armoury, the nature of dereliction of duty alleged against them was never declared by the inquiry officer. 14. While the enquiry findings were perfunctorily rendered, the disciplinary authority also failed to apply his mind to the evidence on record and in a parrot like manner he agreed with the inquiry officer. However without discussing the specific dereliction of duty or the role of the charged policemen with the missing weapons, the major penalty of removal from service was inflicted through the impugned order dated 9.7.2004 (Annexure-G). Thereafter although specific attention on the complicity of the Head Armourer Deepak Muktiar was drawn in the misappropriation of arms as revealed from the statement given by the co-accused Ainul Hauqe, the role of the Head Armourer was conspicuously ignored. Therefore it is apparent that the appellate authority failed to consider whether the facts (on which the penalty was ordered) were established against the charged policemen. 15. In view of above, I find that the impugned proceedings are contrary to the procedure of Rule 66 of the Assam Police Manual and therefore I hold that inflicting of penalties on the basis of such vitiated proceedings has led to injustice to the two delinquents. For this conclusion, the impugned orders) dated 9.7.2004, 3.9.2005 of the disciplinary authority and the appellate authority respectively and the Tribunal's order dated 30.5.2007 are held to be unsustainable and the same are accordingly quashed. Consequently all resultant reliefs be granted to the petitioners. But in so far as back wages is concerned, subject to satisfactory proof that they were not gainfully employed, only 50% of the back wages should be paid. However their service continuity should be maintained for all other purpose. Since the petitioner Nandalal Das is yet to reach the superannuation age, he be reinstated and the petitioner Bidyadhar Saikia having reached the superannuation age, be granted due back wages and retirement benefits. It is ordered accordingly. With the above decision, both the cases are allowed without any order on cost.