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2015 DIGILAW 1484 (GAU)

Ngurdingliana Sailo v. State of Mizoram

2015-12-02

MICHAEL ZOTHANKHUMA

body2015
JUDGMENT : Michael Zothankhuma, J. 1. Heard Mr. C. Lalramzauva, senior counsel assisted by Ms. Abigail Hmingthanpari, counsel for the petitioner. Also heard Ms. Melody L. Pachuau, Govt. Advocate for all the respondents. 2. Mr. C. Lalramzauva, senior counsel submits that the petitioner was appointed as a Constable in the 3rd Bn. of Mizoram Armed Police on 16.10.2008. 3. The petitioner's case is that on the evening of 27.12.2011, while being posted as a guard at Treasury Square duty post, Aizawl, the petitioner was overcome with illness and without informing his guard commander he went to a doctor, who had recommended 13 (thirteen) days rest. Thereafter, the petitioner was served with a Memorandum of Charge wherein 2 (two) allegations were made against him in the Articles of Charge. The petitioner submitted his written statement of defence in which he had explained the reason for his absence from duty. Inspite of this, a Departmental Enquiry was conducted against the petitioner and on the basis of the Enquiry Report, the petitioner was awarded the penalty of removal from service vide the impugned Order dated 16.3.2012. 4. The petitioner's counsel submits that the petitioner had been absent from duty from 28.12.2011 to 8.1.2012. The petitioner's counsel submits that the reason for absence from duty without informing the higher authority was that after completing his duty on the night of 27.12.2011, the petitioner immediately rushed to a Doctor to seek medical help as he was overcome with illness. Thereafter, the petitioner took rest in the house of his ex-wife. However, since his illness did not subside, and as the petitioner did not have the physical strength to do any work, the petitioner continued to take treatment for his illness in the house of his ex-wife. The petitioner's counsel submits that the petitioner did not inform the Commander of his unauthorized absence as he was having mental problems. 5. The petitioner's counsel submits that during the departmental enquiry proceedings, the petitioner was not given any defence assistant and as such, the petitioner could not defend himself. The petitioner's counsel submits that though the petitioner had signed a document wherein he declined the assistance of a defence assistant, the petitioner was not made aware by the respondents' authorities of the consequences of not having a defence assistant. The petitioner's counsel submits that though the petitioner had signed a document wherein he declined the assistance of a defence assistant, the petitioner was not made aware by the respondents' authorities of the consequences of not having a defence assistant. In short, the petitioner's counsel submits that the Principles of natural justice have been violated as sufficient opportunity was not given to the petitioner to protect his case. The petitioner's counsel submits that when the petitioner submitted his written statement of his defence to the charged memorandum, the petitioner enclosed a medical certificate dated 23.1.2012 which is to the effect that the Doctor had advised the petitioner 13 days rest with effect from 28.12.2011. 6. The petitioner's counsel submits that this medical certificate dated 23.1.2012 has not been considered by the respondent authorities during the enquiry proceedings and prior to passing the impugned Order of removal from service. 7. The petitioner's counsel submits that the petitioner not having been given the assistance of a defence assistant, there had been violation of the principles of natural justice and in support of the same, he has relied upon the Judgment of this Court passed in Kangjam Ongbi Mema Devi vs. Union of India, 2011 (1) GLT 379. 8. The petitioner's counsel submits that the stand of the petitioner in the written statement of defence is to the effect that due to his illness, he did not inform his superior and accordingly, he took bed rest for 13 days in the house of his ex-wife after consulting a doctor. However, in the "General Examination of the Charged Official" as reflected in the enquiry report of the departmental enquiry, the petitioner's statement has been recorded as follows: "6. General examination of the charged official.-He stated that his divorced wile visited him at his duty post on 28.12.2011. He asked permission to see off his wife to his duty commander but he was given the deaf ears. Without obtaining prior permission from his duty - Commander he accompanied his divorced wife to her residence and remarried her staying with her. He reported himself at 3rd Bn. MAP Hqrs. on 8.1.2012 at 10 am. He asked the leniency of the disciplinary authority for his unauthorized absence caused by his broken family and promised not to repeat it in future." 9. He reported himself at 3rd Bn. MAP Hqrs. on 8.1.2012 at 10 am. He asked the leniency of the disciplinary authority for his unauthorized absence caused by his broken family and promised not to repeat it in future." 9. The petitioner's counsel submits that the 2 (two) statements in the 2 (two) documents are not in sync with each other and this raises a doubt as to whether the enquiry officer had correctly recorded the statement of the petitioner during the departmental proceedings. 10. The petitioner's counsel submits that the petitioner was given notice dated 05.03.2012 alongwith the enquiry report to enable him to submit a representation against the enquiry report. The petitioner received the same on 05.03.2012. However, the petitioner did not make any representation in pursuance to tire notice dated 05.03.2012. The petitioner's counsel submits that even though the Stale respondents have annexed as Annexure-12 of their affidavit-in-opposition, a copy of the representation dated 14.03.2012 submitted by the petitioner against the enquiry report, the petitioner's counsel submits that the petitioner did not make any representation dated 14.03.2012 against the enquiry report in pursuance to the notice dated 5.3.2012 and as such, Annexure-12 of the affidavit-in-op-position has to be construed to be a fabricated document. 11. The petitioner's counsel has also submitted that the punishment of removal from service is not proportionate to the offense and in this regard, the learned counsel relies upon the judgment of the Supreme Court in Lalit Popli vs. Canara Bank Others, 2003 (3) SCC 583 . 12. The petitioner's counsel has also relied upon the judgment of this Court in the case of Ngurthansanga Sailo vs. State of Mizoram and Others, 2014 (5) GLT 424 to state that as para 1037 of the Mizoram Police Manual, 2005 has not been complied with, the impugned order of removal stands vitiated. The petitioner's counsel has also submitted that though he has not given any reasons for the delay in filing the writ petition after 3 (three) years from the date of removal from service, the delay should be condoned, as no 3rd party has been right has been affected. In this regard, he relies upon the Judgment of the Apex Court at para 9 in the case of K. Thimmappa and Others vs. Chairman, Central Board of Directors, State Bank of India and Another, 2001 (2) SCC 259 . 13. In this regard, he relies upon the Judgment of the Apex Court at para 9 in the case of K. Thimmappa and Others vs. Chairman, Central Board of Directors, State Bank of India and Another, 2001 (2) SCC 259 . 13. The petitioner's counsel submits that the impugned removal order is liable to be set aside as a major penalty has beer awarded to tire petitioner in violation of para 1037 of the Mizoram Police Manual, 2005. 14. Ms. Melody L. Pachuau, Govt. Advocate submits that the question of then being any prejudice against the petitioner with regard to the petitioner not under standing the consequences of whether he needed the assistance of a defence assistant does not arise, inasmuch as, the petitioner was aware of the need of a defence Assistant and declined the same. The petitioner has been awarded 6 penalties and punishments during his short service career since 2008 and prior to the impugned removal order dated 16.03.2012. The learned Govt. Advocate submits that the petitioner is already well aware of the relevance of defence assistant, hut, he has however declined to have a defence assistant, as reflected in the question put to the petitioner in the document (Annexure-10) which the petitioner has signed on 06.02.2012, by answering "No" to the question whether he wanted to have a defence assistant to assist him in the D.E. (Departmental Enquiry) being conducted against the petitioner. 15. The learned Govt. Advocate submits that the petitioner did not communicate or inform his superior during the relevant time about his unauthorized absence while he was allegedly advised bed rest. The learned Govt. Advocate submits that the petitioner did not make any representation to the respondents, from the time of his removal order in 2012 till the filing of the writ petition, with regard to the respondent not giving the petitioner the assistance of a defence assistant. The learned Govt. Advocate also submits that the medical certificate dated 23.01.2012 shows that the petitioner could not have been advised bed rest prior to 23.01.2012 as the language of the medical certificate is to the following effect: "I, Dr. The learned Govt. Advocate also submits that the medical certificate dated 23.01.2012 shows that the petitioner could not have been advised bed rest prior to 23.01.2012 as the language of the medical certificate is to the following effect: "I, Dr. LALAWMPUIA CHHANGTE after carefully examination of the patient hereby certify that Shri/Smt. NGUR-DINGLIANA whose signature is given above is suffering from GERD, Colitis PN and I consider that a period of rest for 13 days with effect from 28.12.2011 which is necessary for the restoration of his/her health." 16. The learned Govt. Advocate also submits that the past conduct/lapses of the petitioner can be relied upon by the competent authority to impose punishment w hen there is a specific charge made in the memorandum of charge/articles of charge. In this respect, the learned Govt. Advocate has relied upon the judgment of the Apex Court in Mohd. Yunus Khan vs. State of Uttar Pradesh and Others, 2010 (10) SCC 539 , in the case of Govt. of A.P. vs. Mohd Taher Ali, 2007 (8) SCC 656 and in the case of The State of Mysore vs. K. Manche Gowda, AIR 1964 SC 506 . 17. The learned Govt. Advocate also submits that this Court should not disturb the quantum of punishment meted out to the petitioner by the competent authority and in this regard, the learned Govt. Advocate has relied upon the judgment of the Supreme Court in the case of Damoh Panin Sagar Rural Regional Bank and Another vs. Mumn Lal Jalin, 2004 (8) SCC 221 and the case of Regional Manager, Rajasthan State Road Transport Corporation vs. Solan Lal, 2004 (8) SCC 221. 18. I have heard the learned counsels for the parties. Rule 1037 and 1039 of the Mizoram Police Manual, 2005 is reproduced below:- "Rule 1037. 18. I have heard the learned counsels for the parties. Rule 1037 and 1039 of the Mizoram Police Manual, 2005 is reproduced below:- "Rule 1037. Show Cause.-In every case where it is contemplated to impose on a member of any of the State Police the major punishment he shall be given a reasonable opportunity of making am 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: Provided that the requirements of this rule shall not apply where it is proposed to impose on a member of the service any of the punishment aforesaid on the basis of facts which have led to his conviction by a Court or where the officer concerned has absconded or where it is for other reasons impracticable to communicate with him. 1039. Copy of Report-furnishing of - After the inquiry has been completed the person charged shall be supplied with a copy of the report of the inquiring authority and be called upon to show cause, within 15 days of receipt of the Report to enable him to make his submission or representation in regards to the findings of the inquiry before the disciplinary authority passes its order imposing the penalty." 19. The notice dated 5.3.2012 is also reproduced below:- "Subject: Notice to submit Representation on Enquiry Report. Whereas, a departmental enquiry was initiated against you under Section 7 of Police (Act V of 1861) r/w Rule 1038 of the Mizoram Police Manual 2005 vide this office order No. 3MAP/RO-PF/C-451 /2624 dated on 13.1.2012. And whereas Pu Sanglura, Dy. Commandant, 3rd Bn. MAP was appointed as the Enquiry Officer to enquire into the charges framed against you vide this office order No. 3MAP/R-PF/C- 451/2754 dated on 25.1.2012. The Enquiry Officer submitted his enquiry report and findings on 1.3.2012. After going through the enquiry report, it is found that all the' charges against you were PROVED. The undersigned fully agreed with the findings of the Enquiry Officer. From your past records, it is very clear that you are a habitual delinquent that you have no intention to mend your ways. As such, the undersigned feel that we had given you enough chances to improve yourself but to no vail. The undersigned fully agreed with the findings of the Enquiry Officer. From your past records, it is very clear that you are a habitual delinquent that you have no intention to mend your ways. As such, the undersigned feel that we had given you enough chances to improve yourself but to no vail. The undersigned, considering the gravity and seriousness of the charges against you, proposes to award you a punishment of Removal from service. You are, therefore, given a chance under Rule 1039 of the Mizoram Police Manual 2005 to submit your representation in respect of the enquire report and the proposed punishment in writing to the undersigned within 15 (fifteen) days of the receipt of this letter." 20. This Court in the case of Ngurthansanga Sailo vs. State of Mizoram and Others, 2014 (5) GLT 424 has held that issuance of a show-cause notice under Rule 1037 of the Mizoram Police Manual, 2005 is mandatory before any major punishment is imposed upon a delinquent officer also held that unless Rule 1037 of the Mizoram Police Manual, 2005 has been complied with, the punishment imposed upon the delinquent officer stands vitiated and has to be set aside. 21. The Apex Court in the case of Mohd. Yunus Khan vs. State of Uttar Pradesh and Others, 2010 (10) SCC 539 has held at para 34 as follows:- "The Courts below and the statutory authorities failed to appreciate that if the disciplinary authority wants to consider the past conduct of the employee in (imposing a punishment, the delinquent is entitled to notice thereof and generally the charge-sheet should contain such an article or at least he should be informed of the same at the stage of the show-cause notice, before imposing the punishment." 22. In the case of Govt. of A.P. vs. Mohd. Taher Ali, 2007 (8) SCC 656 , the Apex Court has held at para 5 as follows: "He also absented himself from duty on earlier occasions also. In our opinion there can be no hard-and-fast rule that merely because the earlier misconduct has not been mentioned in the charge-sheet it cannot be taken into consideration by the punishing authority. Consideration of the earlier misconduct is often only to reinforce the opinion of the said authority. In our opinion there can be no hard-and-fast rule that merely because the earlier misconduct has not been mentioned in the charge-sheet it cannot be taken into consideration by the punishing authority. Consideration of the earlier misconduct is often only to reinforce the opinion of the said authority. The police force is a disciplined force and if the respondent is a habitual absentee then there is no reason to ignore this fact at the time of imposing penalty. Moreover, even ignoring the earlier absence, in our opinion, the absence of 21 days by a member of a disciplined force is sufficient to justify his compulsory retirement." 23. In the case of K. Thimmappa and Others vs. Chairman, Central Board of Directors, State Bank of India and Another, 2001 (2) SCC 259 , para 9 is as follows : "9. On consideration of the aforesaid legal position, though, we are inclined to agree with Mr. P.P. Rao that these cases should not be thrown out on the ground of laches alone, inasmuch as the placement made on 1.10.1979 was assailed in the year 1988, at the earliest and 1998 at the latest, yet the same may not be brushed aside, particularly, when we have not been able to find out any infraction of any fundamental right of these petitioners, guaranteed under the Constitution." A reading of the said paragraph 9 of the above case shows that the said situation does not support the case of the petitioner and in fact goes against the petitioner. 24. I also find that the Govt. of India, Ministry of Home Affairs had issued Office Memorandum No. 134/20/68-AVD dated 28.8.1968 and which is also reflected in Rule 15 of the CCS (CCA) Rules, which is as follows :- "(2) Not appropriate to bring in past bad record in deciding the penalty, unless it is made the subject-matter of specific charge in the charge-sheet itself.-A question has arisen whether past bad record of service of an officer can be taken into account in deciding the penalty to be imposed on the officer in disciplinary proceedings, and whether the fact that such record has been taken into account should be mentioned in the order imposing the penalty. This has been examined in consultation with the Ministry of Law. It is considered that if previous bad record, punishment, etc. This has been examined in consultation with the Ministry of Law. It is considered that if previous bad record, punishment, etc. of an officer is proposed to be taken into consideration in determining the penalty to be imposed, it should be made a specific charge in the charge-sheet itself, otherwise any mention of the past bad record in the order of penalty unwittingly or in a routine manner, when this had not been mentioned in the charge-sheet, would vitiate the proceedings and so should be eschewed." 25. A perusal of the notice dated 5.3.2012 goes to show that the proposed punishment for removal from service was also reflected in the notice. The petitioner was given and opportunity to submit a representation against the enquiry report and the proposed punishment. However, as per the petitioner's counsel, the petitioner did not make any representation against the notice dated 5.3.2012. Assuming, that the petitioner did not make any representation against the enquiry report and the notice dated 5.3.2012, the same implies that the petitioner has accepted the findings of the enquiry report and also proposed punishment to be inflicted upon the petitioner. Though the petitioner's counsel has stated that the petitioner did not make a reply to the notice dated 5.3.2012, the alleged reply, which is at Annexure 12 of the respondents affidavit in opposition is reproduced below: "I am submitting the followings for your kind acceptance please. I received your letter No. 3MAP/RO-DE/C-451/3195, dated 5.3.2012, I have duly accepted about it as per my statement in the enquiry report and I have nothing more to add in my defence. But, I have one request to you. I am the sole bread earner in my family and if 1 am remove from my job, my family and myself will have no future but to wander in search of livelihood. You have already forgiven me many times and once again I am praying for your kindness to give me one more chance this time. If you forgive me this time and give me chance, I will never dare to ask for forgiveness again in case of repetition of this kind in future. You have already forgiven me many times and once again I am praying for your kindness to give me one more chance this time. If you forgive me this time and give me chance, I will never dare to ask for forgiveness again in case of repetition of this kind in future. I will always be grateful if you kindly accept my request." Even if this Court accepts the contention of the petitioner's counsel that the petitioner did not make a representation in pursuance to the notice dated 5.3.2012, this Court holds that by keeping silent even after receipt of the notice dated 5.3.2012 and the enquiry report, the petitioner has to be deemed to have accepted the proposed punishment to be inflicted against him and the findings of the enquiry report. The petitioner has accordingly waived his right to challenge the order of removal. Also his silence amounts to acceptance of the proposed penalty and findings of the enquiry report. 26. A reading of the notice dated 5.3.2012 shows that the respondents have only mentioned Rule 1039 of the Mizoram Police Manual, 2005 in the notice dated 5.3.2012. The question that has to be decided is whether the omission of the words Rule 1037 in the notice dated 5.3.2012 causes any prejudice to the petitioner and whether the same would amount to non-compliance of Rule 1037. A perusal Rule 1037 shows that a show-cause notice is to be issued to a member of the State Police if a major punishment is proposed to be awarded and that the said member should be given a reasonable opportunity of making a representation against the said proposed major penalty. The notice dated 5.3.2012 having clearly spelt out the proposed penalty to be awarded to the petitioner and the respondents having given him a chance to submit his representation in respect of the findings of the enquiry report and the proposed punishment, this Court is of the view that there has been compliance with the provision of Rule 1037 and 1039 of the Mizoram Police Manual, 2005. The omission of the word Rule 1037 in the notice dated 5.3.2012 does not cause any prejudice to the petitioner as there has been compliance with the provision of Rule 1037. The omission of the word Rule 1037 in the notice dated 5.3.2012 does not cause any prejudice to the petitioner as there has been compliance with the provision of Rule 1037. This Court is of the opinion that it is not necessary for the respondents to issue two different notices, one under Rule 1037 and one under Rule 1039. Here, in the present case, omission of naming Rule 1037, i.e. the source of power, does not invalidate the notice dated 5.3.2012 to be one under Rule 1037 also. In the case of N. Mani vs. Sangeetha Theatre and Others, 2004 (12) SCC 278 , it has been held in para 9 as follows:- "It is well-settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law." Accordingly, I hold that the notice dated 5.3.2012 is in compliance with the requirements of Rule 1037 and 1039 of the Mizoram Police Manual, 2005. 27. I also find that Article 11 of the charges framed against the petitioner contains the 7 (seven) numbers of punishment awarded to him, i.e. 5 (five) major punishments and 2 (two) minor punishments. Out of these 7 punishments, 5 of them relate to unauthorized absence of the petitioner, one relates to being under the influence of liquor and another relates to mis-behavior with a married woman. In view of the law laid down by the Apex Court in Mohd. Yunus Khan vs. State of Uttar Pradesh and Others (supra) and in Govt. of A.P. vs. Mohd. Taher Ali (supra), I do not find any infirmity in the respondents taking into consideration the past conduct and punishments awarded to the petitioner during his short service tenure for the purpose of inflicting a major penalty upon the petitioner. 28. In view of the above reasons, I do not find any infirmity in the decision making process of the respondents which resulted in the issuance of the impugned Order dated 16.3.2012, by which the petitioner was awarded the penalty of removal from service. 29. 28. In view of the above reasons, I do not find any infirmity in the decision making process of the respondents which resulted in the issuance of the impugned Order dated 16.3.2012, by which the petitioner was awarded the penalty of removal from service. 29. In view of the above, I do not find any merit in the writ petition and the same is accordingly dismissed.