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2015 DIGILAW 9 (MAN)

Chongtham Tomba Singh v. State of Manipur

2015-01-19

N.KOTISWAR SINGH

body2015
JUDGMENT N. Kotiswar Singh, J. 1. Heard Mr. Ch. Robinchandra, learned counsel for the petitioners and Mr. R.S. Reisang, learned GA for the respondents. 2. It has been submitted that the present writ petition can be disposed of in terms of this Court's order dated 4.12.2014 in WP(C) No. 372 of 2014. Accordingly, the same is disposed of as follows. 3. The present writ petition has been filed seeking parity in the quantum of punishment as according to the petitioners, the petitioners have been given a different penalty from another person, who was involved in the same incident in connection with which a departmental enquiry was initiated and penalties imposed. 4. The petitioners while serving as Riflemen at the relevant time, were posted at the 5th Bn. M.R. at Khongjaron in the Tamenlong District and they were detailed for election duty in the 13th Lok Sabha Election, 1999 of the Outer Parliamentary Constituency in Tamenlong District. On the fateful day of 6.10.1999 while they were on election duty, they were over-powered by a large number of underground militants/extremists with sophisticated weapons after ambushing them in which all the arms were snatched away from them. A departmental enquiry was initiated accordingly and on completion of the departmental enquiry, the petitioners were dismissed from service vide order dated 02.02.2001. Being aggrieved by the aforesaid dismissal order, the petitioners approached the Hon'ble High Court under Article 226 of the Constitution of India challenging the dismissal order on various grounds including violation of the principles of natural justice which was allowed by the High Court. Ultimately, the matter went to the Hon'ble Supreme Court and the Hon'ble Supreme Court vide order dated 27.4.2006 directed holding of fresh departmental enquiry in accordance with law and also directing that the petitioners shall be deemed to be under suspension. 5. On the basis of the fresh departmental enquiry so held on the direction of the Hon'ble Supreme Court, the petitioners were imposed major penalty of stoppage of 5 years increment of pay with cumulative effect and also recovery of money from their pay for the loss caused to the Government due to snatching of arms. 5. On the basis of the fresh departmental enquiry so held on the direction of the Hon'ble Supreme Court, the petitioners were imposed major penalty of stoppage of 5 years increment of pay with cumulative effect and also recovery of money from their pay for the loss caused to the Government due to snatching of arms. However, as regards the period under suspension, the order of penalty directed that the said period under suspension shall be treated as "non duty" though the said period of suspension shall be counted for the purpose of length of service as Government employee vide orders dated 9.12.2010, 17.12.2010, 18.12.2010, 8.12.2010, 8.12.2010, 10.12.2010, 17.12.2010, 7.12.2010, 9.12.2010, 21.12.2010 and 17.12.2010. According to the petitioners, however, in respect of another person, namely, N. Sharat Singh, who was also involved in the same incident of snatching of arms by the underground armed elements on 6.10.1999 in the same place, he was, however, given a different penalty though other parts of the penalties are similar. As regards the period of suspension, it was ordered to be treated "on duty" in respect of Mr. N. Sharat Singh. According to the petitioners, while in the order of penalty imposed on them, their period of suspension has been treated as "non duty" while in respect of another similarly situated person, namely, N. Sharat Singh, it has been treated to be "on duty", which according to the petitioners, is discriminatory as there ought to be parity in the quantum of penalty in absence of any distinguishable or any other peculiar circumstances which makes the case of the petitioners different from the said N. Sharat Singh and as such, giving a more favourable order in respect of the said N. Sharat Singh by treating his period of suspension as "on duty" is discriminatory and is liable to be interfered with by this Court. 6. The State respondents have filed their objection. The main thrust of the objection of the State respondents is that the orders of penalty in respect of the petitioners and the said N. Sharat Singh were issued by two different Commandants on two different dates and accordingly resulted in the said difference in the nature of penalty but there was no malafide intention to discriminate between the petitioners and the said N. Sharat Singh. It has been also stated by the State respondents that the writ petitioners had preferred an appeal against the said order of penalty before the appellate authority which was ultimately dismissed as time barred vide order dated 20.5.2014. However, in the said order dated 20.5.2014 passed by the appellate authority, the petitioners were also informed that if they were desirous of filing an appeal against the said order, they may do so to the next higher authority as per rules. However, the petitioners have chosen not to file any such appeal to the higher authorities. Moreover, it has been submitted that no such plea was taken in the appeal. Accordingly, it was contended on behalf of the respondent authorities that the relief claimed by the petitioners cannot be granted. 7. Heard the learned counsel for the parties and also perused the materials on record. 8. The fact remains that the orders of penalty in respect of the petitioners dated 9.12.2010, 17.12.2010, 18.12.2010, 8.12.2010, 8.12.2010, 10.12.2010, 17.12.2010, 7.12.2010, 9.12.2010, 21.12.2010 and 17.12.2010 were issued by one Shri K.C. Lokho, who was Commandant of 5th Bn. Manipur Rifles, Khongjaron whereas the order of penalty dated 24.7.2012 in respect of the said N. Sharat Singh was issued by another Commandant, namely, S. James Manao, Commandant of 5th Bn. Manipur Rifles, Khongjaron. However, though the incumbents holding the post of Commandant may be different, this Court is of the view that unless there are different situations or existence of any extenuating circumstances, similar orders of penalty ought to have been passed in respect of the same incident. As submitted by the counsel for the petitioners, nothing has been shown in the affidavit-in-opposition as to how the said N. Sharat Singh stands in a different footing from the petitioners so as to treat his period of suspension as "on duty" while treating that of the petitioners as "non duty" and as such, this Court is of the view that persons involved in the same incident ought to be treated similarly at the time of imposition of penalty unless there be different circumstances calling for different penalties which in the present case seems to be absent. However, it seems the petitioners did not highlight this difference in the order of penalty to the appellate authority while preferring an appeal before the appellate authority. However, it seems the petitioners did not highlight this difference in the order of penalty to the appellate authority while preferring an appeal before the appellate authority. However, on minute perusal of the records, it is seen that the petitioners had preferred the appeal to the appellate authority on 04.5.2012 which is prior to the issuance of the order of penalty dated 24.7.2012 in respect of the said N. Sharat Singh and as such, the petitioners could not have raised this issue of differential treatment at the time of imposition of penalty to the appellate authority. Accordingly, the petitioners could not be faulted with this issue of differential treatment while imposing penalty before the appellate authority. It has been also noted that the appellate authority had dismissed the appeal preferred by the petitioners vide order dated 20.5.2014 not by considering the merit of the case but on the ground that the appeal preferred by them was time barred. 9. In view of the above, this Court is of the opinion that the issue of differential treatment of the period of suspension to the petitioners as well as to the said N. Sharat Singh, who were involved in the same incident, needs to be re-examined by the authorities. Accordingly, the present writ petition is disposed of with a direction to the Director General of Police, respondent No. 2 to examine the case of the petitioners as regards the treatment of period of suspension which been ordered to be "non duty" vis-a-vis the order in respect of N. Sharat Singh, who has been treated "on duty" though they were involved in the same incident. In this regard, the petitioners may submit detailed representations to the respondent No. 2 with supporting documents and the respondent No. 2 will examine the same and pass appropriate orders as regards the period of suspension as claimed by the petitioners as mentioned above. The aforesaid exercise shall be undertaken by the respondent No. 2 within a period of 4 (four) months from the date of receipt of such representations filed by the petitioners. 10. With the above observation and directions, the writ petition stands disposed of.