JUDGMENT : Songkhupchung Serto, J. 1. This is a writ petition which was filed by one Mr. Tarepmenba Jamir by the father of the present petitioners who was NCO No. 10447, Havildar in the 2nd NAP unchallenging the termination order No. PHQ (B-II)DE/104/2009 dated 2/6/2015 issued by the DGP, Nagaland terminating him from service and order No. POL/1/ESTT/13/2010 dated 29/3/2016 dismissing his appeal filed under Rule 16 of the Nagaland Service (Discipline & Appeal) Rules 1967 issued by the Home Commissioner to the Government of Nagaland and praying for re-instatement to his service. While the writ petition was pending, the petitioner Government servant (who shall hereafter be referred to as the deceased petitioner) died on 23/12/2016. Thereafter, his two sons filed an application being I.A.(C) No. 10(K)/2017 praying for substitution of their names in place of the deceased father. The same was allowed vide order dated 16/3/2017 passed by this Court. 2. Heard Mr. Tongpok Pongener, learned counsel for the petitioner at length. Also heard Ms. S. Mere, learned Government Advocate appearing on behalf of the State respondent Nos. 1 to 4. Respondent Nos. 5 and 6 did not appear inspire of notice issued and served to them. 3. The case of the petitioners as submitted by the learned counsel Mr. Tongpok Pongener is as follows: That Late Mr. Tekasashi NCO No. 10447, Havildar in 2nd NAP Bn while he was posted along with the rest of the personnel of the battalion at New Delhi was suspended from service by order No. PHQ(B-II)/DE/104/2009 dated 12.3.2009 issued by the DGP Nagaland in connection with a incident which took place on 12.1.2009 where one Mr. Mukem Shio, Dy. Commandant of the 2nd NAP was allegedly assaulted and manhandled by the personnel of 2nd NAP numbering about 50 to 60 including the deceased Government servant at his office at New Delhi and some properties of the office were also alleged to have been destroyed and damaged. After the suspension order was issued, Late Tekasashi was served with a Memorandum and Articles of and charges on 31.8.2009. The charges as given in the articles of charges are as follows:- "Statement of Imputation of Misconduct/Misbehaviour in support of the articles of charges framed against No. 10447 Havildar Tekasashi (under section) of 2nd NAP Bn, Alichen. Article-I That on 12.1.09 No. 10447 Havildar Tekasashi (U/S) of 2nd NAP Batallion while functioning as Hav. The charges as given in the articles of charges are as follows:- "Statement of Imputation of Misconduct/Misbehaviour in support of the articles of charges framed against No. 10447 Havildar Tekasashi (under section) of 2nd NAP Bn, Alichen. Article-I That on 12.1.09 No. 10447 Havildar Tekasashi (U/S) of 2nd NAP Batallion while functioning as Hav. A. Coy on deputation at 1st NAP Bn. Delhi, along with No. 10453 Hav. Hukato Sumi of 2nd NAP Bn. Was involved in committing physical assault on Shri Mukem Shio, Dy. Commandant 2nd NAP BN. This intentional and reckless action is total negation and transgression of all established rules of discipline and conduct of police force. He has therefore committed misconduct unwarranted in the disciplined force. Article-II That said No. 10447 Hav Tekasashi (U/S) of 2nd NAP Batallion along with No. 10453 Hav. Hukoto Sumi of 2nd NAP BN. And around 50 to 60 personnel's entered the room of Shri Mukem Shio, Dy. Commandant 2nd NAP manhandled and assaulted the officer hereby causing serious head and body injury causing profuse bleeding and his chest and ribs were injured due to kicking and punching for which he has to undergo medical treatment, such brutal barbaric, and violent action on the defenseless officer is subversive of all established discipline and conduct of police force. Therefore he is charged for lack of devotion to duty and behaving in a manner unbecoming of a responsible NCO of the uniform force. Article-III That said No. 10447 Havildar Tekasashi (U/S) of 2nd NAP Battalion, Alichen acted as ring leader of the group of 50 to 60 police jawans and created a riot like and rebellious situation inside the office which is unwarranted and uncalled for from a police personnel and therefore pre-judicial to the interest of the government and the reputation of the police force for committing the unwarranted act he has exhibited failure to maintain absolute integrity, lack of devotion to duty and unbecoming of a Government servant. Therefore he is charged for violation of Rule 4(1) (i) (ii) (iii) of Nagaland Government Servants Conduct Rules, 1968. Article-IV That the said No. 10447 Hav. Tekasashi (U/S) of 2nd NAP Bn. Alichen instead of preventing his men to obtain from committing such a violent act, rather he acted as ring leader, misguided and misleader the group of police jawans and created such a situation of indiscipline. Article-IV That the said No. 10447 Hav. Tekasashi (U/S) of 2nd NAP Bn. Alichen instead of preventing his men to obtain from committing such a violent act, rather he acted as ring leader, misguided and misleader the group of police jawans and created such a situation of indiscipline. Such irresponsible behavior of the said No. 10447 Hav. Tekasashi (U/S) of 2nd NAP Bn. Alichen clearly speaks of his total lack of command and control of his Men. Thus he has committed an act of total failure and incompetence of devotion of duty and acted in manner unbecoming of a responsible police officer. Article-V That the said No. 10447 Hav. Tekasashi (U/S) of 2nd NAP Batallion, Alichen, and No. 10453 Hav. Hukoto Sumi of 2nd NPA, BN, along with 50 to 60 police jawans was involved in damaging Government properties on 12.1.09. Hav. Tekasashi and Hav. Hukoto Sumi forcibly entered the room of Shri Mukem Shio, Dy. Commandant, 2nd NAP and broke office furniture and partition wall in the office of Shri Mukem Shio, Dy. Commandant, 2nd NAP by damaging Government properties without any rhyme and reason he has committed an act of arson and violent rebellion in front of his officer. Such callous barbaric act is totally unwarranted and uncalled for from a disciplined police force. Article-VI That the said No. 10447 Hav Tekasashi (U/S) of 2nd NAP Batallion, Alichen while functioning as Havildar A coy on deputation at 1st NAP BN. Delhi left his place of duty without obtaining prior permission from authority on 11.12.08 to conduct a meeting. By leaving his duty on his own freewill he has committed an act of gross negligence and devotion in performance of duty, and also exhibited complete disregard and in subordination to his superior officer which is subversive of discipline and conduct by a police personnel. Article-VII That the said No. 10447 Hav Tekasashi (U/S) of 2nd NAP Batallion, Alichen while functioning as Havildar A coy on deputation at 1st NAP BN. Delhi did not adhere the advise of his superior officers when he and the jawans were asked to express freely of what they wanted. Such doing is intentional and reckless and has executed with a pre planned, pre medicated and intentional motive and intention without caring the outcome of such violative activity. These sort of action is unbecoming of a disciplined personnel of a police force. Such doing is intentional and reckless and has executed with a pre planned, pre medicated and intentional motive and intention without caring the outcome of such violative activity. These sort of action is unbecoming of a disciplined personnel of a police force. He has shown disregard and insubordination of authority by disobeying the advise of superior authority. Sd/- Director General of Police Nagaland, Kohima." 4. Along with Memorandum and Articles of charges, the deceased petitioner was also served with a statement of imputation which are nothing but re-statement of what was stated in the articles of charges. As directed, the Government servant submitted a reply in written form to the charges imputed against him. The written statements of reply submitted by the Government servant are as follows:- "Articles of Charges: That in reply to the statement of Imputation of Misconduct/Misbehavior framed in articles of charges from 1 to 7, I may be allowed to submit the following: Article 1: Charge made in article 1 is not admitted and to state that I did not assaulted the Deputy Commandant nor had intention or acted recklessly. Article 2: Charge made in article 2 is also not admitted being I did not manhandled or assault Shri Mukem Shio Dy. Commandant nor cause any injury on him. Article 3: Charges made in article III are also not admitted and to state that on the said day jawans of the three companies went to Dy. Commandant Shri Mukem Shio to submit a memorandum on three points: 1. To strengthen the company. 2. To issue proper rations and 3. To give a clear pay roll to the jawans. On reaching the Dy. Commandant's place, all the jawans were in attention and send the memorandum through the three company Commanders. But on handing over the memorandum to the commandant by the three company commanders, we were told to come inside his office one by one but before we enter, he came out from his office and caught hold of one of the jawan and started abusing all the jawans saying that jawans coming from Mokokchung are uncivilized and third class and also said that had he were having pistol he could have shoot all the jawans which enraged the jawans and broke lose the situations. But I did not manhandled neither assaulted nor injured the officer. But I did not manhandled neither assaulted nor injured the officer. Article 4:The charges made in article 4 is also not admitted, I may be allowed submit that I did not misguided and mislead the jawans nor acted as ring leader. Rather, I tried my best to prevent the jawans and save the officer. Article 5: The charge made in article 5 is also not admitted. It is to state that I did not enter the office of the Commandant being the officer came out from inside his office before the jawans enter his office. As such I did not enter his office nor question of damaging the office wall or furniture does not arise. Further, I say that I did not commit the act of arson and rebellion. Article 6: The charge made in article 6 is partly admitted and to say that I have attended the meeting without prior permission from the superior officer. Article 7: The charge made in article 7 is partly not admitted. It is to say that, though the commandant told the jawans to enter his office and express of what they wanted to say, the commandant did not give chance to enter his office rather he came out and caught hold of one jawan and started abusing as stated in my reply to the charge in Article 3. Sd/- Havildar Tekasashi No. 10447." 5. Thereafter, the DGP vide his order No. PHQ(B-II)DE/104/2009 dated 28.10.2009 appointed an Enquiry Officer and Presenting Officer to conduct enquiry against the deceased petitioner on the charges given in the articles of charges. Thereafter, Mr. P. Talimeren Ao ABI, in RHQ Mokokchung was also appointed as the Defending Officer by the Enquiry Officer vide his order No. MDP/RO-8/08-09/2143 dated 7.1.2010. The enquiry was thereafter conducted and the findings were submitted to the DGP, Nagaland. The DGP on receipt of the enquiry report considered the same and came to the conclusion that the charges against the Government servant was proved therefore, vide his order No. PHQ (B-II)DE/104/2009 dated 7.9.10 ordered termination of the Government servant from service with immediate effect. In pursuant thereto, the Commandant 2nd NAP Battalion vide his order No. 2NAP (A)87/TS/2010-11 dated 13.9.2010 struck off the Government servant from the strength of the unit. In pursuant thereto, the Commandant 2nd NAP Battalion vide his order No. 2NAP (A)87/TS/2010-11 dated 13.9.2010 struck off the Government servant from the strength of the unit. Being aggrieved by the termination order, the Government servant submitted a written appeal as provided under Rule 16 of the Nagaland Service (Discipline & Appeal) Rules 1967 to the Principal Secretary (Home), Nagaland. In pursuant thereto, the Under Secretary to the Government of Nagaland, Home Department vide his order No. POL-1/ESTT/13/2010 dated 12.6.2012 requested the DGP, Nagaland to conduct fresh enquiry and to furnish the findings to the Department. Thereafter, the same Under Secretary vide letter his order No. POL-1/Estt/13/2010 dated 15.11.2012 once again requested the DGP Nagaland to furnish details of action taken against the other 3 main accused of the incident. Finally, the Home Commissioner who is the Appellate Authority vide his order No. POL-1/ESTT/13/2010 dated 24.1.2013 informed the deceased Government servant that his appeal has been considered but he is in agreement with the decision of the DGP, therefore, has upheld the termination order issued by the DGP. Not being satisfied with the said order of the Home Commissioner, the Government servant approached this Court through W.P.(C) No. 90 (K)/2013 challenging the termination order and the order passed by the Home Commissioner. This Court took up the matter along with another writ petition being W.P.(C) No. 89 (K)/2013 which was filed by none other than the colleague of the deceased petitioner who also met the same enquiry on the same incident and faced the same fate like him. The two writ petitions were disposed of on 2.7.14. This Court found that the enquiry conducted against the Government servant was in gross violation of the statutory provisions and the principles of natural justice as such, quashed and set aside the impugned termination order and the order passed by the Home Commissioner and directed that the deceased petitioner be re-instated in service immediately and on his re-instatement, he will be entitled to pay etc., in accordance with the relevant rules and procedures. However, the learned Single Judge observed that the State respondents may if so desires initiate fresh enquiry against the Government servant in accordance with law and such enquiry must commence from the stage of examination of witnesses. The deceased petitioner was accordingly reinstated and given all consequential benefits. However, the learned Single Judge observed that the State respondents may if so desires initiate fresh enquiry against the Government servant in accordance with law and such enquiry must commence from the stage of examination of witnesses. The deceased petitioner was accordingly reinstated and given all consequential benefits. However, fresh enquiry as observed by the learned Single Judge was preferred by the State respondents and it was accordingly initiated but based on the same articles of charges with no changes made. The deceased petitioner was accordingly informed through WT message to appear before the Commandant 3rd NAP Bn Tuensang on 28.10.2014. As directed, he appeared before the Commandant 3rd NAP, Tuensang on 28.10.2014 at his office. On appearing before the Commandant 3rd NAP BN, the deceased petitioner was asked few questions without really going into the details about the incident which was the subject matter and told to leave office. Later on he came to know that fresh enquiry was conducted by examining witnesses in his absence and based on the same, a memorandum being No. (PHQ)B-IIDE/104/2009 dated 10.2.2015 and 5.2.2015 (2 dates given) wherein it was proposed that the deceased petitioner be given penalty of termination from service. The deceased petitioner was given opportunity to submit a representation. The report of the departmental enquiry submitted to the DGP based on which the said memorandum was prepared and issued by the DGP which are annexed in the writ petition are reproduced herein below:- "Report on Departmental Enquiry held in respect of No. 10447 Hav. Tekasashi of 2nd NAP Battalion 1. Name of delinquent -No. 10447 Hav. Tekasashi 2. Presenting Officer - Shri. Asangba Longkumer, Dy. S.P. (R) Mokokchung 3. Enquiry Officer - Shri. M. Rhovisie Nyuwi, Commandant, 3rd NAP Battalion 4. Place of enquiry - 3rd NAP Battalion, Tuensang 1. This is an enquiry against No. 10447 Hav. Tekasashi Ao of 2nd NAP Battalion who is charged for dereliction of duty and involvement in committing physical assault on Dr. Mukemshio of 2nd NAP Battalion. The order appointing me as Enquiry Officer in this case by the Director General of Police, Nagaland Kohima was received on 8th October 2014; As per the Hon'ble Court's order and DGP's order, the enquiry commenced from the stage of examination of witnesses on 28th October 2014 at the Commandant's Office 3rd NAP. Mukemshio of 2nd NAP Battalion. The order appointing me as Enquiry Officer in this case by the Director General of Police, Nagaland Kohima was received on 8th October 2014; As per the Hon'ble Court's order and DGP's order, the enquiry commenced from the stage of examination of witnesses on 28th October 2014 at the Commandant's Office 3rd NAP. The process of enquiry was completed the same day pending return brief by the Presenting Officer. The charges against the delinquent No. 10447 Hav. Tekasashi Ao of 2nd NAP Battalion is as follows:- That on 12.01.09 No. 10447 Hav. Tekasashi Ao of 2nd NAP Battalion while functioning as Hav. A.'Coy on deputation at 2d NAP Battalion Delhi was involved in committing physical assault on Dr. Mukemshio 2n NAP Battalion. He was also involved in damaging Govt. properties including furniture, partition wall and window panes by leaving his place of duty without obtaining prior permission from the authority. He as a responsible NCO instead of preventing his men from committing such violent act rather acted as a ring leader and misguided the police personnel and created such unruly situation of indiscipline. For which he is charged of his total failure and incompetence of devotion to duty and action unbecoming of a responsible Police Officer (Nagaland Government Servants Conduct Rule 1968) Rule- 4 (I)(i) (ii)(iii) 2. No charge has been dropped or not pressed. The prosecution in support of his case has examined 8 witnesses. 3. The prosecution case in brief is that on 12.01.09 No. 10447 Hav. Tekasashi Ao of 2nd NAP Battalion while functioning as Havildar on deputation at 1st NAP Battalion, Delhi was part of a group of jawans who had left their place of duty without permission and were subsequently involved in mutiny like agitation leading to the damage of Govt. property and physical assault on Dr. Mukemshio, Dy. Commandant of 2nd NAP Battalion. It is further alleged that No. 10447 Hav. Tekasashi Ao of 2nd NAP Battalion along with 50/60 personnel of 2nd NAP left their places of duty without permission from competent authority on 11.12.08 to conduct a meeting which implies that they had planned well ahead for he unruly incident that took place on 12.01.09. 4. In this regard, the Govt. vide order No. PHQ (B-II) DE/104/2009 Dt. 31st August, 2009 issued on memorandum proposing to hold an enquiry against No. 10447 Hav. 4. In this regard, the Govt. vide order No. PHQ (B-II) DE/104/2009 Dt. 31st August, 2009 issued on memorandum proposing to hold an enquiry against No. 10447 Hav. Tekasashi Ao of 2nd NAP Battalion, Alichen under Rule -9 (ii) of the Nagaland Service (Discipline and Appeal Rule-1967), Further an enquiry against the article of charges framed against No. 10447 Hav. Tekasashi Ao of 2nd NAP Battalion was instituted vide Govt. order No. PHQ (B-II) DE/104/2009 Dt. 28th October 2009 appointing Shri. Irshad Wali, IPS, SP Mokokchung as Enquiry Officer to enquire into the charges while Shir. Krodi Rhetso, Dy. Commandant, 10th NAP (IR) Battalion as the Presenting Officer. 5. Accordingly, the Enquiry Officer Shri. Irshad Wali, IPS, SP Mokokchung on completion of the enquiry submitted his enquiry report to the disciplinary authority on 21st April, 2010. Based on the enquiry report the Delinquent No. 10447 Hav. Tekasashi Ao of 2nd NAP Battalion was terminated from service having proved the article of charged farmed against him. However, Hav. Tekasashi Ao aggrieved with the termination order moved the court by way of filing WP(C) No. 90 (k) 2013 for re-instatement into service with all consequential benefits the Hon'ble Court in its common order Dt. 02.07.2013 ordered for re-instatement of the petitioner No. 10447 Hav. Tekasashi Ao of 2nd NAP Battalion into service immediately. However, the Court gave the State respondents if so desire to initiate a fresh enquiry against him in accordance with the law and such enquiry must commence from the stage of examination of witnesses. 6. Subsequently the Director General of police, Nagaland, Kohima issue order vide No. PHQ (B-II)DE/104/1551 Dt. 20th September, 2014 for conduct of a fresh enquiry against the petitioner in WP (C) No. 9(K) 2013 No. 10447 Hav. Tekasashi Ao of 2nd NAP battalion from the stage of examination of witnesses thereby, appointing me as the Enquiry Officer to enquire in to the charge framed against No. 10447 Hav. Tekasashi Ao of 2nd NAP Battalion and Shri M. Asangba Longkumer, DSP, Mokokchung as the Presenting Officer in support of the charges against No. 10447 Hav. Tekasashi Ao of 2nd NAP battalion before the Enquiry Officer. 7. Accordingly enquiry was fixed on 28.10.14 in the office chamber of commandant 3rd NAP battalion Tuensang where the following persons:- 1. Shri. M. Asangba Longkumar - Presenting Officer 2. Shri. Tekasashi, Hav - Delinquent 3. Shri. Nrilo Rengma, Dy. Tekasashi Ao of 2nd NAP battalion before the Enquiry Officer. 7. Accordingly enquiry was fixed on 28.10.14 in the office chamber of commandant 3rd NAP battalion Tuensang where the following persons:- 1. Shri. M. Asangba Longkumar - Presenting Officer 2. Shri. Tekasashi, Hav - Delinquent 3. Shri. Nrilo Rengma, Dy. Comdt - PW 1 4. Shri. Nokti Ao, Asst. Comdt. (Rtd) PW 2 5. Shri. Medemsunep, ABSI - PW 3 6. Dr. Mukemshio, Dy. comdt. - PW 4 7. Shri. Tsukjemwati Ao Dvr (Rtd)-DWl 8. Shri. Imyangluba Ao Naik (Rtd) - DW2 9. Shri. Moatemsu C/N (Rtd) - DW 3 Including the Presenting Officer, delinquent and witnesses were present during the enquiry. During the enquiry the delinquent and all witnesses were examined and cross examined and their oral statements and evidences provided by them were recorded along with their written statements and written brief submitted by the presenting officer. 8. The delinquent. No. 10447 Hav. Tekasashi Ao of 2nd NAP battalion was explained about the Hon'ble Court order and DGP, Nagaland order for conduct of fresh enquiry, however under the same article of charges which was read out to him (Article I to VII). He was also explained that the enquiry will commence from the stage of examination. Further, he way also explosive that he can engage a Defending Officer (D.O.) or defend the case/charges himself, to which he stated that since he would stand by what he had stated in the previous enquiry he will defend himself. 9. Statement of the delinquent. Hav. Tekasashi Ao No. 10447 Hav. Tekasashi Ao of 2nd NAP Battalion, the delinquent state that while he was detailed for duty at the residence of the Supreme Court Judge at House No. - 8, Tukhlak Road on static guard duty, he received a phone call that 2 (two) personnel each from A/C/D Coys were called for writing a Memorandum at Nehru park, New Delhi. Accordingly, the personnel of the 3 (three) Coys gathered at the office premises of the Dy. Commandant, 2nd NAP Battalion, Delhi, TAC HQ on 12.01.2009 and submitted the memorandum to the Coy Commanders and further it was submitted to the Dy. Commandant through A/C Nokti Ao. Then, A/C Nokti Ao came out and directed the personnel to meet Dy. Commandant one by one. However, the personnel refused saying that they had come to meet as a group and not individually. Commandant through A/C Nokti Ao. Then, A/C Nokti Ao came out and directed the personnel to meet Dy. Commandant one by one. However, the personnel refused saying that they had come to meet as a group and not individually. Then, the Dy. Commandant Mukemshio came out and shouted at the personnel to behave in a civilized manner which agitated the personal and they started man handling the Dy. Commandant in his office. He also stated that he tried to pull back the personnel but in the process, he himself got punched by the personnel. Then after sometime, the 1st NAP Commandant, Shri Sandeep arrived and controlled the situation by assuring the personnel to sort put the issue, after which the personnel left the office area for their respective places of duty (copy of statement enclosed). 10. Statement of Dy. Commandant Nrilo Rengma, 6th NAP battalion PW. Dy. Commandant Nrilo Rengma of 6th NAP battalion, who was a coy Commander and Asst. Commandant during the period of incident stated that on 12.01.2009 at around 12:00 noon while he was with Dy. Commandant. Dr. Mukemshio for official work around 40-50 jawans of 2nd NAP Battalion gathered in front of the office. Since the reason was not known, the CHM of A'Coy and Asst. Commandant Nokti Ao asked the jawans to fall-in and express their grievances but the jawans refused and rushed inside the Dy. Commandant's office and started assaulting the Dy. Commandant, Dr. Mukemshio causing him serious injury. They also damaged the furnitures like tables, chairs, walls and window panes of the A' Coy Commander and Dy. Commandant. He also stated that the jawans submitted one written copy of memorandum which was earlier submitted by 1st NAP Battalion personnel in 2008 which mean that 2nd NAP Battalion agitation personnel did not have any Memorandum as such of their own. Then Mukemshio, Dy. Commandant was taken to hospital for medical treatment by A/C Nokti and Inspector Bharat. The mob (jawans) still refused to dispersed and only when the 1st NAP Commandant Shri. Sandeep, IPS arrived and asked them the jawan dispersed In the incident he stated that Hav. Tekasashi was present and as senior NCO he was part and parcel of the mob as he had come along with the agitating jawans. 11. Statement of Asstt. Commandant Nokti Ao (Rtd), PW 2. Asst. Tekasashi was present and as senior NCO he was part and parcel of the mob as he had come along with the agitating jawans. 11. Statement of Asstt. Commandant Nokti Ao (Rtd), PW 2. Asst. Commandant Nokti Ao (Rtd.) stated that he was Coy Commander in Delhi, 2nd NAP when the incident happened. He stated that, on 12.01.2009 while he was working in the office, some 2nd NAP personnel led by few NCOs who were deployed for static guard duties at various location came to the office at Vijay Ghat, Delhi and started shouting in the office premises when he tried to calm down the jawans and asked them to fall in and express there demands/grievances, they barged inside the office of the Dy. Commandant and stated vandalizing the whole office. They damage the furniture and window panes and assaulted the Dy. Commandant Dr. Mukemshio and caused serious injury to his body. After that he had to rush the Dy. Commandant to hospital for treatment. He also stated that as per his knowledge, Hav. Tekasashi Ao and Hav. Lt. Hokoto Sumi were the main ring leaders who led the jawans in creating such unwanted situation. 12. Statement of ABSI Medemsunep 2nd NAP Battalion PW 3. ABSI Medemsunep stated on 12.01.2009 at around 12.30 Hrs while he was in office some 2nd NAP Bn personnel led by few NCOs who were deployed for static guard duties came to the office at Vijay Ghat, Delhi and started shouting in the office premises. As he was in the next room when he came out he found that around 20-30 personnel were already inside the office Chamber of the Dy. Commandant and started vandalizing the office. They broke the furniture and assaulted the Dy. Commandant Dr. Mukemshio as a result of which he was rushed to hospital for medical treatment. He also stated that Hav. Tekasashi Ao was involved in the incident and said such behavior of the personnel has brought shame and disgrace to the entire Nagaland Police in Delhi. 13. Statement of Dr. Mukemshio, Dy. Commandant 2nd NAP Bn PW 4 Dr. Mukemshio stated that on 12.01.2009 while he was working in his office at Vijay Ghat Delhi, he heard some commotion and persons shouting unusually outside his office. 13. Statement of Dr. Mukemshio, Dy. Commandant 2nd NAP Bn PW 4 Dr. Mukemshio stated that on 12.01.2009 while he was working in his office at Vijay Ghat Delhi, he heard some commotion and persons shouting unusually outside his office. All of a sudden some personnel barged inside his office room and without any rhyme or reason started vandalizing his office breaking the partition wall, chairs, tables, window panes etc. On seeing such rowdy behavior he told the personnel to behave but instead of paying heed they started to assault him physically causing him serious injury on his body. During the incident he also saw among the group Hav. Tekasashi, Naik Imyangluba, C/N Moatemsu and Dr. Tsukjemwati taking active part in leading the other personnel in the rowdy act. He also stated that the above mentioned personnel had instigated and called out other personnel from their places of duty to converge at the Battalion office at Vijay Ghat. The personnel left their places of duty including VVIP House guards, vital installation and foreign embassies thereby causing grave risk to security threat and security breach. He also stated that many of the jawans were drunk and their act of mutiny like situation was pre planned with ulterior motive since they did not have any specific grievance. 14. Statement of Tsukjemwati Ao. Dvr (Rtd.), DW1 Dvr. Tsukjemwati stated that he was performing duty as driver in Delhi D' Coy 2nd NAP Bn. and dropping food for jawans at different locations. On 12.01.2009 while returning back after duty to the barrack he saw around 50/60 personnel in the office premises of the Dy. Commandant Mukemshio, So he rushed towards his office and attended in the fall-in. That time he heard the Dy. Commandant saying that if he had a pistol with him he would shoot them one by one. He also shouted about Mokokchung District to which he (Tsukjemwati) replied that the jawans are not talking about Mokokchung District but about ration. He further stated that the meantime the Dy. Commandant pushed him and at that time some jawans came and beat the Dy. Commandant. He then left the office area and went for dropping food at different locations again. He stated that he did not see Hav. Tekasashi Ao going inside the Dy. Commandant office but saw him in the office premises among the jawans. 15. Commandant pushed him and at that time some jawans came and beat the Dy. Commandant. He then left the office area and went for dropping food at different locations again. He stated that he did not see Hav. Tekasashi Ao going inside the Dy. Commandant office but saw him in the office premises among the jawans. 15. Statement of Imyangluba Ao, Naik (Rtd.), DW2 Naik Imyangluba Ao stated that on 12.01.2009 he was on duty at Madhura Road, Delhi at the residence of a lawyer. At around 7:00 am the ration vehicle party informed him that there will be Battalion meeting at the office premises. Accordingly he went to the battalion office for the meeting and while reaching the office, he saw about 70/80 personnel in the office premises of the DY. Commandant Mukemshio and about 15 (fifteen) personnel rushed inside the office of the Dy. Commandant Mukemshio came out of his office and called Dy. S.P. Nokti Ao to go with him to hospital. He also stated that he did not see Hav. Tekasashi Ao going inside the Dy. Commandant office but saw him in the office premises among the jawans. 16. Statement of C/N Moatemsu (Rtd.), DW3. C/N Moatemsu stated that on 12.01.2009 he was on duty at the Reserve Bank from 7:00 a.m. to 9:00 a.m. after completion of duty he was informed by Hav, Moakokba that there will a meeting in the Battalion office, Delhi, and sent him to attend the meeting. However, he reached late as he did not get the bus on time. When he reached the office premises, the meeting was over and he also did not see what had happened, and he only saw the 1st NAP Commandant who came and asked them why they have assembled and what were their grievances. The commandant further told that he will look into the matter and asked them to disperse from there. So, accordingly they dispersed and he went back to his place of duty at the Reserve Bank. 17. Argument by Shri. M. Asang Longkumer Presenting Officer M. Asang Longkumer, the presenting Officer stated that he had gone through all the relevant records and documents and at the same time examined all the witnesses. Based on their statements and records records he said that though Hav. 17. Argument by Shri. M. Asang Longkumer Presenting Officer M. Asang Longkumer, the presenting Officer stated that he had gone through all the relevant records and documents and at the same time examined all the witnesses. Based on their statements and records records he said that though Hav. Tekasashi denied his involvement in the incident and denied all the article of charges against him, he admitted that during the incident on 12.01.2009 he was also part of the group/mob. Therefore as a senior NCO who was very much present during the rowdy incident cannot rule out his involvement in the following sequence of events which is ascertained from his own statement and the statement of witnesses. (i) Unauthorized meeting without obtaining approval from authority. (ii) Leaving place of duty without permission from authority. (iii) Damaging the Government properties including furniture, window panes & wall partition. (iv) Assault of Dy. Commandant Dr. Mukemshio. (v) Being party to the group/mob as ring leader of the whole episode in damaging office, govt. Properties and assault on Dy. Commandant Mukemshio. Findings Based on the above enquiry proceedings and thorough examination of all witness and evidences the following facts are observed; (i) The delinquent No. 10447 Hav. Tekasashi Ao of 2nd NAP Battalion admitted to having attended the meeting held on 11.01.09 at Nehru Park along with 3/4 personnel each from all Static guards. He himself was on static guard duty at the residence of the Supreme Court Judge House No. 8, Tukhlak road, Delhi. It was clear case of dereliction of duty and absence from such sensitive static guard duty without permission could have led to serious security lapses. (ii) The delinquent No. 10447 Hav. Tekasashi Ao of 2nd NAP Battalion though denied the charges framed against him could not deny the fact that he was also present at the Battalion office premises at Vijay Ghat New Delhi where a mob like situation was created leading to the damage of Govt. property and physical assault on Dr. Mukemshio 2nd NAP Battalion. The fact that he along with other NCOs were the senior most police personnel among the agitating group/mob leaves no room for any doubt about his involvement in the whole unruly episode. And his lack of responsibility to control the personnel under him. property and physical assault on Dr. Mukemshio 2nd NAP Battalion. The fact that he along with other NCOs were the senior most police personnel among the agitating group/mob leaves no room for any doubt about his involvement in the whole unruly episode. And his lack of responsibility to control the personnel under him. (iii) The delinquent also stated that he along with other personnel gathered at the office premises to submit a memorandum to the Dy. Commandant. However, on examination of such documents it is found that it was a mere Xerox copy of memorandum of points raised by 1st NAP Battalion before the Commandant 1st NAP Battalion on 02.09.08. This implies that the agitating personnel where the delinquent Hav. Tekasashi was a party to it did not have any genuine agenda or grievance to be raised before the authority. This suggest that without such agenda he along with the other personnel had ambiguous and malicious intention. (iv) Careful examination of the presentation made by the Presenting Officer and prosecution witnesses reveal that Hav. Tekasashi Ao was seen at the place of incident and involved in the incident where Dy. Commandant Dr. Mukemshio was physically assaulted and Govt. properties were damaged. As a responsible NCO, he could have controlled his men which he failed to do so and therefore, it reflects his total failure and incompetence in devotion to duty and thereby acted in a manner unbecoming of a responsible police officer. In view of the above findings and mentioned points the articles of charges (II)(III)(IV)(V) (VI)(VII) and article II/III/IV/V/VI/VII of the statement of imputation of misconduct/misbehavior stands proved against the delinquent Hav. Tekasashi Ao of 2nd NAP Battalion. Submitted to Director, General of Police Nagaland for kind perusal and further necessary action please. Sd/- (M. Rhovisie Nyuwi) Enquiry Officer & Commandant 3rd NAP Battalion Tuensang". "Government of Nagaland Office of the Director General of Police Nagaland: Kohima. No.(PHQ)B-II)DE/104/2009/ Dated Kohima, the th Feb'2015 Memorandum The Hon'ble Gauhati High Court Kohima Bench has passed an order dated 2.7.2014 reinstating Havildar Tekasashi in service and stated in the order "however, State respondents may, if so desire, initiate enquiry afresh against him in accordance with law and such enquiry must commence from the stage of examination of witnesses". The undersigned therefore appointed Shri. M. Rhovisie Nyuwi, NPS Commandant of 3rd NAP Bn, as Enquiry Officer to initiate enquiry a fresh against Hav. The undersigned therefore appointed Shri. M. Rhovisie Nyuwi, NPS Commandant of 3rd NAP Bn, as Enquiry Officer to initiate enquiry a fresh against Hav. Tekasashi. The Enquiry Officer has submitted his enquiry report with findings that the Article of Charges II/III/IV/V/VI/VII stands proved against Havildar Tekasashi of 2nd NAP Bn. Alichen. The undersigned have gone through all available material evidences, written documents, statement of the witnesses, the enquiry reports of Shri. Irshad Wali, IPS (the earlier enquiry officer) and the second enquiry officer. Having gone through the evidences and materials available the misbehaviours and misconducts exhibited by the delinquent are clearly displayed by the following acts: (1) Havildar Tekasashi Ao of holding a meeting with other members of his Battalion at Nehru Park, New Delhi on 11.01.2009, one day prior to the incident of assault on Dr. Mukemshio, Dy. Comdt. 2 NAP at Vijay Ghat, New Delhi on 12.01.2009, clearly indicates that the action is pre-meditated, intentional and malicious. (2) The act of the NCO of leaving his place of Duty, for holding consultation meeting on 11.01.2009 at Nehru Park and also his presence at Camp Office at Vijay Ghat. The next day on 12.01.2009 as per his own admission is a willful absence from the place of duty without permission/authorization of the competent authority, exhibits total lack of devotion to duty, integrity and sense of responsibility which is most unbecoming of member of a Disciplined Force. (3) The representation/memorandum submitted on 12.01.2009 was a Xerox copy of the same letter submitted to the Comdt. 1st NAP Bn. Earlier which only indicates that the excuse of submitting a representation/memorandum but it was only a ruse and not a genuine projection of their grievances. This also indicates malafide intention and the assault confirms criminal intent also. (4) That being an NCO assigned sensitive duty of guarding VVIPs in important parts of New Delhi yet willfully leaving his place of duty betrays not only gross irresponsibility but also total insensitivity to security considerations which is most unbecoming of an NCO of a Security/police force. This also indicates malafide intention and the assault confirms criminal intent also. (4) That being an NCO assigned sensitive duty of guarding VVIPs in important parts of New Delhi yet willfully leaving his place of duty betrays not only gross irresponsibility but also total insensitivity to security considerations which is most unbecoming of an NCO of a Security/police force. (5) That the NCO after so many years of service and having attained the rank of Havildar can indulge in such act of gross misconduct and violation of all established norms of conduct in the disciplined force has forfeited all honour and privileges of being in a disciplined force, and is no longer fit to remain in a disciplined force. Furthermore, the collective act of irresponsible conduct and grave breach of discipline on that day has brought irreparable damage to the image of the Nagaland Police and has brought indignity to the organization as a whole adversely effecting the moral of the force. The act of the DGP Nagaland in ordering termination of Hav. Tekasashi Ao from service is fully justified and further action of the Appellate Authority i.e. the Home Commissioner, Nagaland who has upheld the earlier decision of the DGP, Nagaland as to be most appropriate. The undersigned is of the view that conducting fresh enquiry has only reaffirmed and reiterated the justification of the action taken in this instant case i.e. termination from service of this individual NCO. The undersigned, therefore, proposed to imposed on the delinquent the penalty of termination from service. Hav. Tekasashi of 2nd NAP Battalion, Alichen is however given an opportunity to submit representation on the penalty proposed but only on the basis of the evidence adduced during enquiry. Such representation if any, should be made in writing and submitted to the undersigned for consideration. The reply should reach undersigned not later than 10(ten) days from receipt of the memorandum. The Memorandum should be acknowledged. Sd/- (L.L. Doungel) IPS Director General of Police, Nagaland, Kohima." 6. On receipt of the above stated enquiry report and memorandum, the Government servant submitted a representation to the DGP Nagaland raising objections against the enquiry report and the proposed penalty dated nil February 2015. Thereafter, the DGP vide his order No. PHQ(B-II)DE/104/2009 dated 2.6.2015 terminated the service of the Government servant with immediate effect. On receipt of the above stated enquiry report and memorandum, the Government servant submitted a representation to the DGP Nagaland raising objections against the enquiry report and the proposed penalty dated nil February 2015. Thereafter, the DGP vide his order No. PHQ(B-II)DE/104/2009 dated 2.6.2015 terminated the service of the Government servant with immediate effect. The contents of the order of the DGP are reproduced herein below:- "Government of Nagaland Office of the Director General of Police Nagaland, Kohima No. PHQ(B-II)DE/104/2009 Dated Kohima the th June, 2015 Order Memorandum proposing to impose penalty of termination from service was issued to No. 10447 Hav. Tekasashi of 2nd NAP Bn Alichan by giving him an opportunity to submit representation on the penalty proposed but only on the basis of the evidence adduced during enquiry. The charged Havildar No. 10447 Tekasashi Ao has submitted his representation dated nil stating that the enquiry has been conducted without conforming to the procedure established by law. On perusal of the enquiry report, the undersigned has concurred with the findings of the enquiry officer wherein the enquiry officer in the course of his fresh enquiry into the charges (No charge has been dropped nor no new charges pressed) has examined witnesses and has explained the ground for fresh enquiry to the charged NCO and also offered him to engage a defending officer if he so desired to which the charged Havildar had preferred to defend himself. Further the charged Havildar was allowed to cross-examine the witnesses. The charged Havildar representation to the proposed penalty that enquiry was conducted without conforming to the procedure established by law does not arise, as the fresh enquiry was conducted with all aspects and requirements, there has not arisen any ground or reason to change the facts of the case nor has there been any addition of deletion of the facts of the case. The misconduct and misbehavior committed by the charged Havildar government servant, made out in the article of charges after the fresh enquiry stands proven against him, and he is found guilty of those articles of charges II, III, IV, V, VI & VII. Therefore the original penalty imposed by the DGP against the charged NCO No. 10447 Ha. Tekasashi Ao, vide his order dated 8.9.2010 terminating him from service is fully justified. The fresh enquiry has again confirmed proven the final findings. Therefore the original penalty imposed by the DGP against the charged NCO No. 10447 Ha. Tekasashi Ao, vide his order dated 8.9.2010 terminating him from service is fully justified. The fresh enquiry has again confirmed proven the final findings. Hence the original penalty of termination from service stands, and it shall be with immediate effect. This order should be acknowledge. Sd/- (L.L. Doungel) IPS Director General of Police, Nagaland, Kohima". 7. Being aggrieved, the deceased petitioner once again approached this Court through W.P. (C) No. 163(K)/2015. The writ petition was disposed of vide order dated 24/8/2015 giving liberty to the Government servant to present a statutory appeal before the Appellate Authority. Accordingly, the deceased petitioner presented a statutory appeal dated 4/9/2015 before the Home Commissioner, Government of Nagaland. The Home Commissioner vide his order No. POL-1/ESTT/13/2010 dated 29.3.2016 disposed of the appeal by dismissing the same and upholding the penalty imposed by the D.G. The contents of the order are reproduced herein below:- "Government of Nagaland Home Department: Police Estt. Branch No. POL-1/ESTT/13/2010 Dated Kohima, the 29th March, 2016 Order With reference to the appeal petition under Rule 16 of the Nagaland Service (Discipline & Appeal) Rules 1967 in the matter of the Director General of Police, Nagaland, Order No. PHQ (B-II) DE/104/2002 dated 02.06.2015 imposing the penalty of termination from service in respect of the appellant Shri Tekasashi, Ex Havildar, I have examined the appeal petition and all the relevant documents and records of the case thoroughly. I have also perused the replies submitted by the Director General of Police, Nagaland, vide letter No. PHQ(B-II)DE/104/2009/2205 dated 17.12.2015. Having considered all aspects of the case and the materials on record, I have come to the decision that there is no case for modifying or setting aside the penalty imposed by the Director General of Police, Nagaland. Hence, I uphold the above said order of imposing the penalty of termination from service. The appeal petition is disposed off accordingly. Sd/- Neihu C. Thur, IAS Home Commissioner to the Govt. of Nagaland & Appellate Authority" 8. Mr. Hence, I uphold the above said order of imposing the penalty of termination from service. The appeal petition is disposed off accordingly. Sd/- Neihu C. Thur, IAS Home Commissioner to the Govt. of Nagaland & Appellate Authority" 8. Mr. Tongpok Pongener, learned counsel for the petitioners submits that the case of the deceased petitioner is mainly based on the plea that the enquiry was not conducted in his presence and he was not given the chance to cross-examine the witnesses therefore, he was denied of his right as provided under Rules 9 of the Nagaland Service (Discipline & Appeal) Rules 1967 particularly in clause 6 of the same. The learned referred to Rule 9 of the said Rules, it would not be out of place to reproduce the contents of the relevant rules for easy reference. Therefore, the contents of Rule 9 clause 6 of the Nagaland Service (Discipline & Appeal) Rules 1967 are reproduced herein below:- "(6) The Inquiry Authority shall, in the course of the inquiry consider such documentary evidence and take such oral evidence as may be relevant or materials in regard to the charges. The Government servant shall be entitled to cross examined in witnesses examined in support of the charges and to give evidence in person, and to adduce documentary and oral evidence in his defense. The person presenting the case in support of the charges shall be entitled to cross examine the Government servant and the witnesses examined in his defense. If the Inquiring Authority declines to examine any witness or to admit any document in evidence on the ground that his evidence or such document is not relevant or materials, it shall record its reasons in writing." 9. Ms. S. Mere, learned Government Advocate who appears on behalf of the State respondent Nos. 1 to 4 placed the record of the enquiry and submitted that as per the record, the Government servant was present in the enquiry as his signature can be seen in the record. However, the learned Government Advocate candidly admitted that no specific denial was made in the affidavit-in-opposition filed on behalf of the State respondents that the Government servant was not given the opportunity to cross examine the witnesses. The learned Government Advocate also submitted that it should have been the duty of the respondent Nos. However, the learned Government Advocate candidly admitted that no specific denial was made in the affidavit-in-opposition filed on behalf of the State respondents that the Government servant was not given the opportunity to cross examine the witnesses. The learned Government Advocate also submitted that it should have been the duty of the respondent Nos. 5 and 6 to give specific reply to this as they were the persons who conducted the enquiry. She also refers to paragraph 17, 20 and 21 of the affidavit-in-opposition and submitted that enquiry was conducted as per the rules and the punishment awarded was also given as per the rules. The contents of paragraphs 17, 20 and 21 of the affidavit-in-opposition are reproduced herein below:- "17. That with regard to the statement made in paragraphs-23 & 25 of the writ petition the deponent respectfully begs to state that the termination of service was done with due procedures. It is also stated that in compliance to the Hon'ble Court's order the delinquent/petitioner was taken into service vide order dated 07.08.2014 and continued to be under suspension and a fresh enquiry from the stage of examination of witnesses was ordered by appointing new Enquiry Officers and Presenting Officers vide order dated 20.09.2014. The petitioner/delinquent was also supplied with the said order through his Unit Commander. In regard to appointment of Defending Officers as per the Daily Order Sheet "he was explained that he can engaged a Defending Officer (DO) or defend the case/charges himself, to which he stated that since he would stand by what he had stated in the previous enquiry he will defend himself'. 20. That with regard to the statement made in paragraphs-29 of the writ petition the deponent respectfully begs to state that if the petitioner/delinquent felt aggrieved with the conduct of the enquiry he should have point out at the time of submission of his defense argument before the enquiry officers. As per the enquiry report the delinquent has no point out such discrepancies. 21. That with regard to the statement made in paragraphs 30 of the writ petition the deponent respectfully begs to state that the Disciplinary authority on being found the enquiry report proven the charges framed against the delinquent has issued a memorandum proposing a penalty by given the delinquent an opportunity to submit a representation on the proposed penalty. 21. That with regard to the statement made in paragraphs 30 of the writ petition the deponent respectfully begs to state that the Disciplinary authority on being found the enquiry report proven the charges framed against the delinquent has issued a memorandum proposing a penalty by given the delinquent an opportunity to submit a representation on the proposed penalty. No fresh point has been seen in the replied to consider his case hence the petitioner was terminated from service." 10. On perusal of the relevant portion of the record of enquiry, I find that 8 witnesses out of which 3(three) were defence witnesses were examined during enquiry. But there is nothing which would show that the deceased petitioner was given the chance to cross examine the witnesses and the witnesses were actually cross examined. If the Government servant was given the chance of cross-examining the witnesses the same would have been reflected in the proceedings. However, there is nothing in the record of the proceedings which would indicate or show that Statements of the witnesses in the record also does not show any sign of cross-examination by the Government servant. Further it is also submitted by the learned counsel for the petitioners that the so called DWs were not examined at the instance and in the presence of the deceased petitioner but at the initiative of the Enquiry Officer. This submission of the learned counsel is not countered by the respondents. From these facts, the only conclusion that can be drawn is that as stated by the learned counsel for the petitioner, the deceased appeared before the Enquiry Officer but was not present at the time when witnesses were examined as he was told to leave immediately after his statement was taken. The provision of Rule 9 of Nagaland Service (Discipline & Appeal) Rules 1967 is mandatory. They were enacted to ensure that there is fairness in any enquiry conducted against any Government servant of the State against whom major penalty is contemplated. Therefore, non compliance of the provisions of the Rules would render the proceedings of any enquiry conducted against a Government servant illegal. Clause-6 of Rule 9 in particular mentions clearly that any Government servant against whom major penalty is contemplated is entitled to cross-examine witnesses who are examined in the enquiry. Therefore, non compliance of the provisions of the Rules would render the proceedings of any enquiry conducted against a Government servant illegal. Clause-6 of Rule 9 in particular mentions clearly that any Government servant against whom major penalty is contemplated is entitled to cross-examine witnesses who are examined in the enquiry. This provision of the rule is drawn from the natural principle of justice that no one should be punished unheard. As stated above, from the record of the enquiry proceedings it appears clearly that the deceased Government servant was not given opportunity of being heard properly. Denial of opportunity of being properly heard amounts to violation of principle of natural justice. Therefore, the enquiry is vitiated and it cannot be sustained. In view of what has been stated above, I am of the opinion that the impugned orders i.e. the termination order No. PHQ(B-II)DE/104/2009 dated 2.6.2015 issued by the DGP Nagaland and the order No. POL-1/ESTT/13/2010 dated 29.3.2016 issued by the Home Commissioner which are based on the above stated enquiry deserves to be quashed and set aside. Accordingly, they are quashed and set aside. The respondents shall re-instate the deceased Government servant in the service though posthumously and he should be deemed to have continued in service from the date of his termination i.e. 2.6.2015 till the date of his death i.e. 23.12.2016. In consequence the petitioners or any member or members of the family should be given the benefits that accrues to family members of Government servants in such a situation or circumstances as per rules. Writ petition is disposed of.