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2014 DIGILAW 69 (MAN)

Heishnam Shantikumar Singh v. State of Manipur

2014-05-30

LAXMI KANTA MOHAPATRA, N.KOSIWAR SINGH

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JUDGMENT Laxmi Kanta Mohapatra; ACJ. 1. The petitioner, who was working as Lower Division Clerk('LDC' for short) in Ist IRB, Kangla, has filed this writ application challenging the order passed by the Director General of Police, Manipur on 8.1.2007 in Annexure-A/31 removing him from service as well as the order passed by the Principal Secretary (Home), Govt. Of Manipur dt. 7.7.2008 in Annexure-A/35 rejecting his appeal filed against the order of removal from service. 2. The long history of the petitioner's case, as described in the writ petition, need not be dealt with in detail. It appears from the record that the petitioner, while working as LDC in the Ist IRB Kangla, was transferred to Senapati District on attachment basis by order of the Director General of Police, Manipur dated 4.6.2004. Accordingly, he was released from Ist IRB, Kangla by the Commandant of Ist IRB on 10.6.2004 in order to enable him to report in his new place of posting in Senapati district. Since the petitioner did not join, Director General of Police, Manipur again issued an order on 26.10.2004 directing the petitioner to join in the new place of posting in the office of SP, Senapati within three days. Though the petitioner acknowledged receipt of the said order of 28.10.2004, he failed to join. It further appears that the petitioner having failed to join as per order of the DGP dt. 26.10.2004, another order was passed by the DGP on 9.11.2004 asking the petitioner to join the post. In spite of the above two orders of the DGP, the petitioner having not joined the post in Senapati district, a departmental proceeding was initiated against him on the basis of the above allegation and he was placed under suspension. 3. In the departmental proceeding, the petitioner participated and took a specific defence that in the year, 2004 his wife suffered from chronic renal failure and he was required to attend to her at home. Therefore, when the order of transfer was passed on 4.6.2004 his wife submitted a representation on 5.6.2004 before the Chief Minister of the State to stay the order of transfer and the Chief Minister on the basis of the said representation made endorsement for stay of the said order of transfer on 10.6.2004 as a special case. Therefore, when the order of transfer was passed on 4.6.2004 his wife submitted a representation on 5.6.2004 before the Chief Minister of the State to stay the order of transfer and the Chief Minister on the basis of the said representation made endorsement for stay of the said order of transfer on 10.6.2004 as a special case. In spite of the representation submitted by his wife and the noting of the Chief Minister to stay the attachment order, no action was taken for which the petitioner himself submitted another representation on 24.9.2004 highlighting the situation and giving reason for his inability to attend at the new place of posting. The said representation was also not entertained and the petitioner having no other option approached the Gauhati High Court by filing writ petition No. 7272/2004. It is the further case of the petitioner, in defence, that in spite of the noting of the Chief Minister on the representation of his wife and pendency of the writ petition before the Gauhati High Court, repeated orders were passed by the DGP asking him to join the new place of posting. In support of his defence, he had examined himself and had produced several documents which were exhibited in course of the trial. 4. The Enquiry Officer submitted his report finding the petitioner guilty of charge of disobedience of order. On the basis of the said enquiry report, the impugned order of removal from service was passed by the DGP, Manipur. The appeal preferred before the Principal Secretary (Home), Govt. of Manipur was also rejected. 5. Mr. Binoykumar Singh, learned counsel for the petitioner drew attention of the Court to the enquiry report and submitted that though several documents were filed by the petitioner in support of his defence that his wife was suffering from renal failure and he was required to attend to her, such documents were not taken into consideration by the Enquiry Officer and he was found guilty of the charge. It was further contended by the learned counsel for the petitioner, Mr. Binoykumar Singh, that even accepting the fact that the petitioner did not join the new place of posting in the district of Senapati even after orders were passed by the DGP, considering the circumstances under which the petitioner could not join, lenient view should have been taken and a minor penalty should have been imposed. 6. Mr. Binoykumar Singh, that even accepting the fact that the petitioner did not join the new place of posting in the district of Senapati even after orders were passed by the DGP, considering the circumstances under which the petitioner could not join, lenient view should have been taken and a minor penalty should have been imposed. 6. Mr. R.S. Reisang, learned Sr. G.A. appearing for the State submitted that in spite of two orders passed by the DGP, the petitioner did not join the new place of posting which amounts to gross disobedience of orders passed by the highest authority in the police department and also amounts to insubordination. Therefore, on admitted facts there was no option open for the disciplinary authority except imposing a major penalty such as removal from service. The appellate authority also took into consideration of the facts and circumstances of the case and dismissed the appeal. According to Mr. R.S. Reisang, learned Sr. G.A. this court may not sit in appeal over the decision of the disciplinary authority as well as appellate authority and reverse the order. 7. The petitioner joined as a LDC on regular basis on 11.12.1985. During his service period, he was transferred to different places and never complained. In early part of January, 2004 his wife suffered from renal failure and she was required to be put on regular dialysis. During this period the petitioner was posted in the Ist IRB, Kangla as a LDC. He was transferred by order of the DGP on attachment basis to the district of Senapati on 4.6.2004. Immediately after receipt of the transfer order, his wife submitted a representation before the Chief Minister on 5.6.2004 to stay order of transfer. It is the case of the petitioner that Chief Minister, on consideration of the plight of the petitioner, made an endorsement on the representation to stay the order of transfer, but the same was not acted upon and the DGP passed another order on 26.10.2004 directing the petitioner to join the new place of posting within three days. The specific stand taken by the petitioner in all the representations as well as before the Enquiry Officer is that because of ailment of his wife, he was not in a position to attend the new place of posting. The specific stand taken by the petitioner in all the representations as well as before the Enquiry Officer is that because of ailment of his wife, he was not in a position to attend the new place of posting. However, in course of the enquiry though documents were submitted by the petitioner in support of his stand, he was found guilty of the charge. 8. We have perused the enquiry report in Annexure-A/29. Though it appears from the enquiry report that some witnesses were examined on behalf of the department and several documents were exhibited, the petitioner himself got examined in course of the proceeding and produced some documents in support of his stand that his wife was suffering from renal failure and was required to be put on dialysis regularly for which his presence by the side of his wife was necessary. The enquiry officer, in his report, has only recorded the charges, deposition of witnesses examined in course of enquiry, the questions put to the petitioner by the Presenting Officer and has come to conclusion that the petitioner is guilty of the charge. No finding whatsoever has been rendered by the Enquiry Officer while finding the petitioner guilty of the charge. The relevant portion of the enquiry report is quoted below: After examination of Defence Witness and after affording opportunity to the Presenting Officer to cross examine the Charged Officer, the Presenting Officer was asked to submit his written brief. After receipt of the written brief of the Presenting Officer, a copy of the written brief was furnished to the Charged Officer and asked him to submit a written brief in connection with the DE. The charged Officer also submitted his written brief in connection with the present DE. After careful examination of all the documents furnished and relied upon by both the sides i.e. prosecution as well as defence, after going through the statements given by the Prosecution Witnesses and Defence Witness and after going through the written briefs submitted by the Presenting Officer as well as by the Charged Officer, I have come to the conclusion that Article of charge-I and Article of charge-II leveled against Shri H. Shantikumar Singh, LDC of Ist IRB who was under order of posting at Senapati District are held proved. 9. 9. It is evident from the said report that the Enquiry Officer has not applied his mind to the evidence adduced before him and without rendering any finding on the consideration of the evidence, came to conclusion that the petitioner was guilty of the charge. From the order of the disciplinary authority dt. 8.1.2007 also we find that defence of the petitioner has not at all been taken into consideration and penalty of removal from service has been passed solely on the basis of the enquiry report. The appellate authority has also not taken into consideration the defence of the petitioner taken in course of the enquiry and the appellate authority only narrated the facts of the case and rejected the appeal. It is, therefore, clear from the enquiry report, the order passed by the disciplinary authority removing the petitioner from service as well as the order passed by the appellate authority that at no point of time the defence of the petitioner was taken into consideration, by any of the above three authorities though the petitioner had submitted several documents before the Enquiry Officer in support of the stand that his wife was suffering from renal failure and required regular dialysis. 10. On the above ground itself, we could have set aside the order passed by the disciplinary authority as well as the appellate authority and remit the matter back to the Enquiry Officer to submit a fresh report on consideration of the evidence adduced before him specifically with reference to the defence taken by the petitioner. However, we find that the incident is of 2004 and in the meantime 10(ten) years have passed. Remitting the matter back and directing the Enquiry Officer to submit a fresh report will take time and the petitioner, who is suffering for the last ten years, will have to undergo further suffering. 11. For the reasons stated above, we set aside the order passed by the disciplinary authority in Annexure-A/31 dt. 8.1.2007 removing the petitioner from service as well as the order passed by the appellate authority in Annexure-A/35 dt. 7.7.2008 dismissing the appeal and direct the DGP, Manipur to impose a punishment that commensurate with the charge leveled against the petitioner keeping in mind the circumstances under which the petitioner could not join his place of posting which according to us should not be a major penalty such as removal/dismissal from service. 7.7.2008 dismissing the appeal and direct the DGP, Manipur to impose a punishment that commensurate with the charge leveled against the petitioner keeping in mind the circumstances under which the petitioner could not join his place of posting which according to us should not be a major penalty such as removal/dismissal from service. Since the order of removal is set aside, the petitioner be re-instated in service immediately. This writ petition is disposed of.