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2016 DIGILAW 596 (GAU)

LALSANGLORA v. STATE OF MIZORAM

2016-06-28

MICHAEL ZOTHANKHUMA

body2016
JUDGMENT : Michael Zothankhuma, J. Heard Mr. A.R. Malhotra, learned counsel appearing for the petitioners in W.P(C) Nos. 38 of 2013 & 43 of 2013 and Mr. Lalremtluanga, learned counsel appearing for the petitioner in W.P(C) No. 93 of 2015. Also heard Mr. Aldrin Lallawmzuala, learned Addl. Advocate General and Ms. Melody L. Pachuau, learned Govt. Advocate appearing for all the respondents. 2. The present 3 (three) Writ petitions are disposed of by this common Judgment & Order. 3. The brief facts of the case is that the petitioners were all S.I of Police and due to a disciplinary proceeding initiated against them for alleged misappropriation of Rs. 92,04,007/-, the petitioners were removed from service vide various orders in the year 2002. The petitioners being aggrieved filed W.P(C) Nos. 58, 71 & 89 of 2006. 4. In W.P(C) Nos. 58, 71 & 89 of 2006, the petitioners had taken the stand that the evidence recorded by the Enquiry Officer was unsufficient to hold the petitioners guilty of charges framed against them. The second ground taken was that the provision of the Assam Police Manual Part- III had not been followed while conducting the departmental proceeding. The third ground taken by the petitioners was that, in view of the criminal proceedings being initiated against the petitioners, the departmental proceedings should not have been proceeded with simultaneously with the criminal cases against the petitioners. The fourth ground taken by the petitioners was that the removal of the petitioners by the Superintendent of Police was illegal as the appointing authority was the Inspector General of Police. The fifth ground taken by the petitioners was that the penalty of removal was disproportionate to the offense. 5. This Court disposed of W.P(C) No. 58/2006, W.P(C) No. 71/2006 & W.P(C) No. 89/2006 by a common Judgment & Order dated 03.07.2008. This Court in the Judgment & Order dated 03.07.2008 held that in view of the facts and evidence on record and the law laid down by the Apex Court, this Court could not open for scrutiny the Enquiry report made by the Enquiry Officer under Article 226 of the Constitution. This Court also rejected the petitioners argument that the departmental proceeding could not been held simultaneously while a criminal Trial was being held. This Court also rejected the petitioners argument that the departmental proceeding could not been held simultaneously while a criminal Trial was being held. This Court in the common Judgment & Order dated 03.07.2008 agreed with the submissions of the petitioners that the removal order of the petitioners in the year 2002 could not have been issued by the Superintendent of Police and the same should have been issued by the Inspector General of Police, who was the appointing authority of the petitioners. This Court thereafter, quashed the removal orders and gave liberty to the State respondents to start De-novo departmental proceedings against the petitioners in view of the alleged misappropriation of money under the "salary head". 6. In pursuance to the common Judgment & Order dated 03.07.2008 passed in W.P(C) No. 58/2006, W.P(C) No. 71/2006 & W.P(C) No. 89/2006, the petitioners were re-instated into service and a departmental proceeding was initiated de-novo against them. Thereafter, Enquiry reports were issued to the petitioners who submitted their representations against the same. Subsequently, all the petitioners were imposed a penalty of "Removal from service" vide separate orders dated 25.02.2013 issued by the Director General of Police, Mizoram. 7. The petitioners' counsels submit that as per Rule 1037 of the Mizoram Police Manual, 2005, the respondents are to issue a show cause notice to the petitioners if the authorities contemplated to impose a major punishment to the petitioners. The petitioners' counsels submit that no show cause notice was issued to the petitioners. 8. The petitioners' counsels also submit that as the appointing authority is the Inspector General of Police, the impugned Orders dated 25.02.2013 has to be set aside, in view of the fact that there is no avenue of filing an appeal as per the Mizoram Police Manual, 2005, when the order imposing a penalty has been issued by the Director General of Police. The petitioners' counsels submit that as the appointing authority being the Inspector General of Police, the order of penalty of removal from service should have been issued by the Inspector General of Police and not the Director General of Police. 9. The petitioners' counsels also submit that the charged officials cannot be made to give evidence against themselves. They also submit that the Enquiry report made against the petitioners is based on a preliminary enquiry made by the Addl. Superintendent of Police, H.L Nundanga (L). 9. The petitioners' counsels also submit that the charged officials cannot be made to give evidence against themselves. They also submit that the Enquiry report made against the petitioners is based on a preliminary enquiry made by the Addl. Superintendent of Police, H.L Nundanga (L). The petitioners' counsels submit that preliminary enquiry does not have any relevance after initiation of a regular enquiry. The petitioners' counsels submit that the charge framed against the petitioners is vague and ambiguous. The petitioners' counsels thus pray that impugned orders dated 25.02.2013 should be set aside. 10. The counsels for the respondents submit that there is no infirmity in the departmental proceeding and that the respondents have followed all the relevant procedure prescribed by law. They also submit that a perusal of the Enquiry reports clearly show the involvement of the petitioners in the misappropriation of Rs. 92,04,007/-. The respondents' counsel also submit that the impugned orders dated 25.02.2013 were issued by the DGP as there was no person holding the post of IGP at the relevant period of time. They thus pray that the removal orders be up-held. 11. I have heard the learned counsels for the parties and perused the records. 12. The statement of Articles of charge framed against the petitioners show that they are liable to be dealt with under Section 7 of Police Act (Act V of 1861) read with Rule 66 of Assam Police Manual Part-III (Now Rule 1038/1044 of Mizoram Police Manual, 2005, Vol-I). It is clear that the provisions of the Mizoram Police Manual, 2005 has to be applied in the present case. Rule 1037 of the Mizoram Police Manual, 2005 states as follows: "1037. Show Cause: In every case where it is contemplated to impose on a member of any of the State Police the major punishments he shall be given a reasonable opportunity of making any 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." 13. In the case of Ngurthansanga Sailo v. State of Mizoram & Ors reported in 2014 5 GLT 424, this Court has held that issuance of a show cause notice under Rule 1037 of the Mizoram Police Manual, 2005 is mandatory before the disciplinary authority imposes any major punishment on the delinquent officer. In the present case, no such show cause notice has been issued as per Rule 1037 of the Mizoram Police Manual, 2005 to the petitioners, prior to issuance of the impugned orders dated 25.02.2013. In view of the above reasons, the impugned Orders dated 25.02.2013 are hereby set aside. 14. The State respondents should reinstate the petitioners immediately. The State respondents are however given liberty to continue with the departmental proceeding initiated against the petitioners and issue a show cause notice under Rule 1037 of the Mizoram Police Manual, 2005 if they are contemplating to impose a major punishment/penalty on the petitioners and thereafter take the departmental proceeding to a logical conclusion, if so advised. The other points raised by the petitioners are not being gone into as this Court finds that there has been violation of Rule 1037 and that the finding of this Court on the other issues may have a bearing or influence on the authorities, if the petitioner preferred an appeal, in the event of the authorities removing the petitioner from service again. The State respondents should also bear in mind the fact that the Apex Court in the case State of Uttar Pradesh Power Corporation Limited v. Virendra Lal reported in (2013) 10 SCC 39 has held that if the higher authority above the competent authority passes an order of punishment, the same would withstand scrutiny of law if the right of appeal is not taken away. 15. Petitions are accordingly allowed. No cost.