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2014 DIGILAW 884 (GAU)

Yanpothung Lotha v. State of Nagaland

2014-09-18

BIPLAB KUMAR SHARMA

body2014
ORDER Biplab Kumar Sharma, J. 1. The petitioner is aggrieved by the order dated 20/04/2012 (Annexure-G) by which invoking the provisions of Rule 7 of the Nagaland Services (Discipline and Appeal) Rules, 1967, he has been imposed with the penalty of removal from service with immediate effect. From the materials on record, it appears that the petitioner was taken up for a departmental enquiry vide Annexure-C Memorandum dated 29/11/2011 under Rule 9(2) of the aforesaid Rules. Along with the Memorandum, statement of Article of Charges framed against him had also been furnished, which is quoted below: "(i) In the matter of Holdings Ltd. "ARTICLE-I : That the said Shri Yanpothung Lotha, Driver Grade-I while working as driver Grade-I under the establishment of the Asstt. Station Superintendent Office, NST Sub-Station, Pfutsero. ARTICLE-II: That during the aforesaid and while functioning as Driver Grade-I in the said office, the said Shri Yanpothung Lotha, driver Grade-I has been in the habit of drinking alcohol despite of several instructions, Warning being given by the superior for improvement and correction of the conduct. ARTICLE-III : That during discharging of duty the travelling passengers complaint of Shri Yanpothung Lotha, Driver Grade-I nature of conduct and driving. ARTICLE-IV : That the said Shri Yanpothung Lotha, Driver Grade-I has been detailed for duty with vehicle bearing Regd. No. NL-11-1380 service No. 21 UP bound for Pfutesro-Phek on 03.10.11 ARTICLE-V: That the said Shri Yanpothung Lotha, Driver Grade-I has been driving the said vehicle under the influence of alcohol and the said Shri Yanpothung Lotha Driver Grade-I has been arrested by the Police personnel of Phek Police Station within the premises of Station Yard in the said bus on 03.10.11 at noon. ARTICLE-VI : That the said Shri Yanpothung Lotha, Driver Grade-I has been detained in the Police custody for 24 (twenty four) hours." The memorandum also included the statement of imputation of misconduct/misbehaviour in support of the Article of Charge. In response to the said Memorandum, the petitioner submitted his written representation (Annexure-D) explaining the circumstances in which he was said to be involved in the incident. After submission of the written representation, the Disciplinary Authority vide the Annexure-E show-cause notice dated 14/03/2012 asked the petitioner to make representation against the proposed penalty of removal from service. 2. In response to the said Memorandum, the petitioner submitted his written representation (Annexure-D) explaining the circumstances in which he was said to be involved in the incident. After submission of the written representation, the Disciplinary Authority vide the Annexure-E show-cause notice dated 14/03/2012 asked the petitioner to make representation against the proposed penalty of removal from service. 2. As recorded in the said show-cause notice, the provisional decision was arrived at after a careful examination of written statement of defence and the documents on record. There was no mention of any enquiry proceeding and the report thereof. Presumably for this reason, the petitioner could not be furnished with the copy of the enquiry report. 3. On receipt of the said notice, the petitioner made his Annexure-F representation and thereafter the Disciplinary Authority passed the impugned order dated 20/04/2012 removing the petitioner from service. Although, in the impugned order, there is mention of the written representation submitted by the petitioner and the purported "other circumstantial evidence adduced" but on perusal of the relevant documents, it is not discernible that pursuant to the departmental enquiry initiated against the petitioner vide the aforesaid memorandum, any enquiry was conducted by appointing the Enquiry Officer, etc. Prima facie, it appears that it is simply on the basis of the memorandum of charge-sheet and the written statement submitted by the petitioner, the extreme penalty of removal from service was imposed upon him without holding any enquiry. 4. Being aggrieved by the order of removal from service, the petitioner submitted a review petition for reviewing the order of penalty but the same was also rejected vide the Annexure-L letter dated 29/11/2012. 5. In the counter-affidavit filed by the respondents, it has been stated that the petitioner was found guilty of the misconduct attributed to him. However, it does not refer to any enquiry proceeding. Along with the counter-affidavit, the respondents have annexed certain documents relating to medical examination report of the petitioner pertaining to the allegation of taking alcohol. Annexure-3 is a letter dated 31/10/2011 addressed to the General Manager, Nagaland State Transport i.e. the Disciplinary Authority by the Officer-in-Charge of the jurisdictional Police Station conveying the medical report, as per which the petitioner was under influence of liquor. Annexure-6 is another letter addressed to the said Disciplinary Authority by the Assistant Station Superintendent referring to the alleged misconduct on the part of the petitioner. 6. Annexure-6 is another letter addressed to the said Disciplinary Authority by the Assistant Station Superintendent referring to the alleged misconduct on the part of the petitioner. 6. Merely by alleging misconduct and without holding any enquiry as envisaged under the Rules, a permanent employee cannot be removed from service. As per the provisions of Rule 9 of the Nagaland Services (Discipline and Appeal) Rules, 1967 in case of initiation of any departmental proceeding, the procedure laid down therein is required to be followed. Rule 9(1) speaks of imposition of penalty prescribed in Rule 7 only after an enquiry held following the procedure laid down therein. As per the requirement of the said rule, distinct and definite Article of Charges are required to be framed providing opportunity to the delinquent Officer to submit written statement. On receipt of the written statement of defence, the Disciplinary Authority may itself enquire into the matter or appoint Enquiry officer. On conclusion of the enquiry providing all reasonable opportunity of being heard to the delinquent official, the enquiry report is required to be submitted and provided to the delinquent enabling him to make representation against the same. No such procedure was followed in the instant case and the petitioner was removed straightway from service on the basis of the memorandum of the charge-sheet and the written statement submitted by him. 7. In view of the above, I set aside and quash the Annexure-G order dated 20/04/2012 by which the petitioner has been removed from service. However, the respondents will be at liberty to initiate and conclude the departmental proceeding as envisaged under Rule 9 of the aforesaid Rules. Since the learned State Counsel has submitted that there might have been an enquiry, although records do not reveal, liberty is also granted to the Disciplinary Authority to start the enquiry de novo from the stage of providing the enquiry report to the petitioner enabling him to make representation against the same. This provision is made only if a regular enquiry was conducted and concluded by following the procedure laid down in Rule 9 referred to above relating to the charges levelled against the petitioner. Otherwise the Disciplinary Authority may initiate fresh departmental proceeding on the basis of the memorandum of charge-sheet referred to above, if so advised. 8. This provision is made only if a regular enquiry was conducted and concluded by following the procedure laid down in Rule 9 referred to above relating to the charges levelled against the petitioner. Otherwise the Disciplinary Authority may initiate fresh departmental proceeding on the basis of the memorandum of charge-sheet referred to above, if so advised. 8. This now leads us to the question as to whether the petitioner will be entitled to back wages upon his reinstatement in service. Before passing the impugned order of removal from service, the petitioner was serving as a Driver under the respondents. Nothing has been stated that after such removal from service, the petitioner has not engaged himself in any other assignment/job. Even otherwise also in the given facts and circumstances I am of the considered opinion that it will not be prudent or proper to provide back wages to the petitioner. However, his service continuity shall be maintained providing all other benefits including incremental benefits etc. 9. Before parting with the case record, it is hereby placed on record that the reinstatement of the petitioner in service is subject to the action which might be taken by the Disciplinary Authority, consistently with the observations made above and if it is so advised. Writ petition is allowed in terms of the above direction and liberty granted to the respondents, without however, any order as to costs.