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2015 DIGILAW 457 (GAU)

Th. Tombi Singh v. State of Manipur and Ors.

2015-04-15

KH.NOBIN SINGH, LAXMI KANTA MOHAPATRA

body2015
Kh. Nobin Singh, J. 1. Heard Shri Kh. Tarunkumar, learned counsel appearing on behalf of the petitioner and Shri R.S. Reisang, learned Sr. Govt. Advocate appearing on behalf of the State Respondents. 2. The present writ petition has been filed by the petitioner praying for quashing/setting aside the impugned order dated 09-05-2014 dismissing the petitioner from service. 3. According to the petitioner, he was initially appointed as Warder, Jail Department, Government of Manipur w.e.f. 03-03-1978 and was later promoted to the rank of Head Warder. While the petitioner was serving as Head Warder, he was placed under suspension vide order dated 06-01-2009 issued by the Inspector General of Prisons in contemplation of a disciplinary proceeding and to initiate thereof, a memo dated 24-01-2009 was issued enclosing therewith the article of charges, one of which being that the petitioner committed rape on a minor, Km. Shanta Thapa, daughter of one Shri Dhan Bahadaur Thapa, an employee of the Manipur Central Jail. The petitioner submitted his written statement of defence denying the charges levelled against him. After the enquiry was over, the Enquiry Officer submitted his report on 12-02-2014 holding inter-alia that the petitioner failed to maintain absolute dignity and devotion to duty and committed a grave misconduct, a copy thereof was furnished to the petitioner so as to enable him to submit a representation. The petitioner submitted his representation dated 07-04-2014 to the Addl. Director General of Police (Prisons) praying for rejecting the findings of the Enquiry Officer. After having considered the petitioner's representation, the Addl. Director General of Police (Prisons) issued the impugned order dated 09-05-2014 awarding him a penalty of 'dismissal' from service. 4. Being aggrieved by the impugned order of dismissal, the present petitioner challenged it by way of the present writ petition on various grounds. The learned counsel for the petitioner commenced his argument by submitting that the charges levelled against the petitioner were vague and not clear which vitiated the disciplinary proceedings by relying upon the decision rendered by the Hon'ble Supreme Court in Anant R. Kulkarni Vs. Y.P Education Society & ors., reported in (2013) 6 SCC 515 . His second submission was that during the course of enquiry, the petitioner was not given an opportunity of cross-examining the witnesses and the witnesses were examined in a separate room without the knowledge of the petitioner. Y.P Education Society & ors., reported in (2013) 6 SCC 515 . His second submission was that during the course of enquiry, the petitioner was not given an opportunity of cross-examining the witnesses and the witnesses were examined in a separate room without the knowledge of the petitioner. This being the serious issue, this court enquired from the learned counsel appearing for the respondents as to whether the contention of the learned counsel for the petitioner was correct or not. The learned counsel appearing for the respondents did not seriously dispute the contention. In order to confirm it, this court perused the relevant file produced by the counsel appearing for the respondents and found that no opportunity of cross-examination was given to the petitioner. 5. It is an elementary principle that to find out the guilt or otherwise of a public servant, the Enquiry Officer should give an opportunity to test the evidence by cross-examining the witnesses. When no opportunity is given to cross-examine the witnesses whose statements are relied upon, it violates the principles of natural justice. In S.C. Girotra Vs. United Commercial Bank reported in 1995 Suppl (3) SCC 212, the bank obtained certain prepared reports on which the charges were based and these reports were submitted by the bank officers who were examined by the enquiry officer. On the basis of the report, an employee was dismissed and the Hon'ble Supreme court held that there was violation of principles of natural justice as the employee was not allowed to cross-examine the officers who deposed orally before the enquiry officer. Similarly, in Union of India Vs. Y.S. Sadhu, Ex-Inspector reported in (2008) 12 SCC 30 the order of dismissal of the respondent from service was interfered by the Hon'ble High Court on the ground that the witnesses examined earlier were not produced for cross-examination and the respondent was directed to be reinstated in service. On an appeal, by way of a petition for special leave to appeal, preferred by the Union of India, the Hon'ble Supreme Court held: "7. Keeping in view the aforesaid position of law indicated in the aforesaid decisions, we are of the view that the course adopted in the two cases above, is to be followed. On an appeal, by way of a petition for special leave to appeal, preferred by the Union of India, the Hon'ble Supreme Court held: "7. Keeping in view the aforesaid position of law indicated in the aforesaid decisions, we are of the view that the course adopted in the two cases above, is to be followed. There shall not be any reinstatement, but the proceedings shall continue from the stage where it stood before the alleged vulnerability surfaced." Thus, considering the rival submissions of the counsels appearing for the parties, this court is of the view that the disciplinary proceedings are vitiated on account of the petitioner being denied an opportunity of cross-examining the witnesses resulting in violation of the principles of natural justice and therefore, the impugned order dated 09-05-2014 is not sustainable in law and is liable to be quashed. 6. In view of the above observations, we allow the writ petition; set aside the enquiry proceedings from the stage of enquiry report and consequently, quash the impugned order dated 09-05-2014 issued by the Addl. Director General of Police (Prisons), Government of Manipur. However, we direct that the enquiry be held afresh from the stage, where the irregularity had occurred, by giving the petitioner an opportunity of cross-examination of the witnesses and the same be completed as quickly as possible preferably within three months from the date of receipt of a copy of this judgment and order.