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2017 DIGILAW 1494 (GAU)

Beihai Hlychho v. State of Mizoram

2017-12-01

SONGKHUPCHUNG SERTO

body2017
JUDGMENT : Songkhupchung Serto, J. 1. This is a writ petition praying for quashing and setting aside the Enquiry Report dated 9.3.2013 submitted by the SDPO, Lawngtlai and the Order dated 31.07.2014 passed by the Superintendent of Police, Saiha District, Saiha based on the Enquiry Report and the Order dated 28.10.2014 passed by the Deputy Inspector General of Police (Southern Range), Mizoram rejecting the appeal of the petitioner and the Order dated 18.11.2015 passed by the Director General of Police, Mizoram on the review petition of the petitioner. Heard Mr. Victor L. Ralte, learned counsel for the petitioner. Also heard Mr. A.K. Rokhum, learned Addl. Advocate General representing the State of Mizoram. 2. Brief facts of the case leading to filing of this appeal are as follows:- On 10.07.2010, an FIR was registered at Saiha Police Station stating that fake notes amounting to Rs. 1,48,500/- was seized from the possession of Smt. Suichhinpari of Saiha. On the registration of the FIR, the petitioner/charged officer was endorsed to be the Investigating Officer of the case. In the course of the investigation, he arrested one Mr. Ngunthawnga of Sangau village and seized a sum of Rs. 74,000/-, which according to the charged officer is only 68,000/-. After the charge sheet was submitted, criminal trial ensued against the accused person in the Court of the Addl. Session Judge, Lunglei and vide Order dated 6.12.2012, the learned Addl. Sessions Judge, Lunglei acquitted the accused. Thereafter, one of the accused Smt. Suichhinpari claimed for a sum of Rs. 68,000/- to be returned to her. The learned Sessions Judge directed that the Superintendent of Police, Saiha should do the necessary enquiry in respect of the seizure of Rs. 68,000/- and to settle the matter amicably. He also observed that if Smt. Suichhinpari has any grievance, she can approach the proper forum. Thereafter, the Superintendent of Police, Saiha ordered that a preliminary enquiry be conducted by SDPO, Saiha. In compliance of the direction, the SDPO, Saiha conducted his preliminary enquiry and submitted the same on 24.04.2013 to the Superintendent of Police, Saiha. The Superintendent of Police, Saiha on receipt of the enquiry report formed and opinion that there was prima facie case against the petitioner/charged officer, therefore ordered a departmental enquiry against him. 3. As per Order dated 22.07.2013 issued by the Superintendent of Police, Saiha, Mr. The Superintendent of Police, Saiha on receipt of the enquiry report formed and opinion that there was prima facie case against the petitioner/charged officer, therefore ordered a departmental enquiry against him. 3. As per Order dated 22.07.2013 issued by the Superintendent of Police, Saiha, Mr. J. Laicha, DSP, Saiha was appointed as Enquiry Officer and Mr. SI Zirsanga was appointed as Presenting Officer. In pursuance of the said order, Mr. J. Laicha, DSP, (Headquarter), Saiha framed a charge against the petitioner/charged officer which is reproduced here below:- "Statement of Article of Charges framed against Si Beihai Hlychho of Saiha Def Article-1 That, SI Beihai Hlychho of this Unit has been imputed to have seized Rs. 68,000/- from the possession of Pi. Suichhinpari of New Saiha in connection with Saiha PS C/No. 61/10 Dt. 10.07.2010 U/s. 489 (B) IPC and rather detained the said money till date than releasing it to the rightful owner. The above act of SI Beihai Hlychho of this Unit is a serious misconduct, gross indiscipline, negligence of duty and highly unbecoming of a member of a discipline force like Police thereby rendering himself liable to severe punishment U/s. 7 of Indian Police Act R/w Rule 1044 of MPM 2005 Vol-1." Copies of the same alongwith the required enclosures were given to the petitioner/charged officer. During the enquiry, 3 PWs were examined and the petitioner/charged officer was also examined. The petitioner was asked to appoint a person to assist him. However, vide his letter dated 5.08.2013 submitted to the Deputy Superintendent of Police (Hqrs), Saiha District who was the Enquiry Officer stated that he will not appoint any defense assistant, however, 2 witnesses, namely, H.C. Vanbuanga of Saiha P.S along with a constable who accompanied him to Sangau may kindly be examined. After the enquiry was completed, the Enquiry Officer submitted his Enquiry Report on 10.03.2013 to the Superintendent of Police, Saiha stating that the charge under Article 1 against the petitioner/charged officer is proved. Following the enquiry report, the disciplinary authority i.e. the Superintendent of Police, Saiha vide his Order dated 31.07.2014 (Annexure-19) imposed a major penalty of withholding of 2 years annual service increment with cumulative effect on the petitioner/charged officer. Following the enquiry report, the disciplinary authority i.e. the Superintendent of Police, Saiha vide his Order dated 31.07.2014 (Annexure-19) imposed a major penalty of withholding of 2 years annual service increment with cumulative effect on the petitioner/charged officer. The operative portion of the order is given here below: "Now, therefore, I, the undersigned in exercise of power conferred upon by Section 91 of the Mizoram Police Act, 2011 (Act No. 3 of 2012) R/w Rule 1044 and 1032 of Mizoram Police Manual, Volume-1, 2005, do hereby impose a 'Major Punishment of withholding of 2 (two) years annual service increment with cumulative effect upon SI Beihai Hlychho of this Unit. Further, the delinquent has the right to appeal to the Appellate authority within the stipulated time period from an order imposing upon him. The present Department Enquiry is hereby closed with immediate effect." 4. Being aggrieved by the said Order, the petitioner as provided under Rule 1045 of the Mizoram Police Manual, 2005 submitted an appeal before the appellate authority i.e. the Deputy Inspector General of Police (Southern Range), Government of Mizoram. The appellate authority after receiving the appeal considered the same and disposed of the same vide his Order dated 28.10.2014 rejecting it on the ground that the same was submitted after the expiry of the period of two months provided in the said Rule. Not being satisfied with the result of his appeal, the petitioner submitted a review petition as provided under the Rule 1055 of the said Manual to the Director, General of Police (Southern Range), Mizoram. The Director General of Police vide his Order dated 18.11.2015 dismissed the review petition. The operative portion of the Order dated 18.11.2015 is reproduced here below:- "That on careful perusal and examination of both the rejection order of appeal dated 28.10.2014 and order of major punishment dt. 31.07.2014 passed by the Appellate Authority and the Disciplinary Authority respectively and all other available records, I found that the petitioner SI Behai Hlychho of Saiha DEF was given ample chances of defence of the whole proceedings. There is no reasonable ground on the revision petition for setting aside the order of rejection of appeal passed by the Appellate Authority and order of punishment passed against SI Behai Hlychho of Saiha DEF by the Disciplinary Authority. There is no reasonable ground on the revision petition for setting aside the order of rejection of appeal passed by the Appellate Authority and order of punishment passed against SI Behai Hlychho of Saiha DEF by the Disciplinary Authority. I, Thianghlima Pachuau IPS, DGP, Mizoram, therefore, do hereby reject the Revision Petition submitted by the petitioner SI Bechai Hlychho of Saiha DEF and uphold the order of Rejection of Appeal passed by the Appellate Authority vide DIG (SR)/CR-54/Appeal-II/2014/357 dated 28.10.2014 and the order of major punishment passed by the Disciplinary Authority vide No. D/D-3/RO-SHA/13/588 dt. 31.07.2014 against the petitioner for the interest of justice." 5. Being aggrieved by the review order passed by the DGP, Mizoram and the orders passed by the Appellate Authority and the disciplinary authority, the petitioner has approached this Court for issuance of appropriate writ or direction or order quashing and setting aside the impugned Enquiry Report and the orders as stated above. 6. The main grounds on which this writ petition has been filed by the petitioner are:- 1. that the petitioner/charged officer was not given chance of cross examining the prosecution witnesses. 2. that the petitioner/charged officer was not given a chance of producing defence witness and 3. that the Presenting Officer was never present in all the enquiry proceedings and as such, the enquiry officer had assumed the role of prosecution as well as that of a Judge which is not permissible in law. 7. Mr. Victor L. Ralte, learned counsel for the petitioner submitted that at the very beginning of the enquiry, the petitioner/charged officer submitted an application dated 5.08.2013 to the enquiry officer i.e. Deputy Superintendent of Police (Hqrs), Saiha District stating amongst others that one Mr. H.C. Vanbuanga of Saiha PS be examined as a witness. But despite such letter/application, he was not given opportunity to produce the witness and examined him before the enquiry officer. 8. Mr. Victor L. Ralte also submitted that though a Presenting Officer was appointed vide Order dated 22.07.2013 issued by the Superintendent of Police, Saiha, he never appeared before the Enquiry Officer and conducted the case. It was only the Enquiry Officer who conducted the departmental enquiry and thereby assumed the role of the prosecutor and that of a Judge. Therefore, the proceeding of the enquiry is vitiated, and therefore, is against the settled principle of law. In support of his submission, Mr. It was only the Enquiry Officer who conducted the departmental enquiry and thereby assumed the role of the prosecutor and that of a Judge. Therefore, the proceeding of the enquiry is vitiated, and therefore, is against the settled principle of law. In support of his submission, Mr. Victor L. Ralte, learned counsel for the petitioner referred to the decision of this High Court in the case of Salam Kesho Singh v. State of Manipur & Ors. passed in Writ Appeal No. 35/2009 on 21.04.2010 reported in 2011 (1) GLT 287. The learned counsel mainly relied on paragraph 5 of the said judgment. The contents of paragraph 5 of the judgment is reproduced herein below:- "5. In the present case, there is no dispute that no Presenting Officer was appointed. This fact is confirmed from the relevant record of the disciplinary proceeding produced by the learned senior Govt. Advocate. It is well settled that an Enquiry Officer cannot assume the role of a Judge and also a Prosecutor. Even if the relevant service rules is silent about the appointment of a Presenting Officer, absence of a Presenting Officer will make the enquiry totally vitiated as the Enquiry Officer cannot be allowed to assume the role a Judge as well as a prosecutor. In this connection, we may refer to various decisions of this Court, such as Dr. Rayja Mallu Buzar Barua v. Assam Administrative Tribunal & Ors., 1983 (1) GLR (NOC) 71, Chelfrumog v. State of Tripura & Ors., 2002 (2) GLR 604, Baharul Islam (CT) v. Union of India & Ors., 2001 (1) GLT 621, State of Manipur & Ors. v. Chongtham Homendro Singh, 2005 (3) GLT 154. In Kumar Madal Vikar Nigam Limited v. Giriya Shankar Pant & Ors., (2001) 1 SCC 182 , the Apex Court held the same effect. In the State of U.P & Ors. v. Saroj Kumar Sinha, (2010) 2 SCC 772 , the Hon'ble Apex Court held to the effect that an Enquiry Officer acting in a quasi-judicial authority is in a position of an independent adjudicator, and as such, he is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved." 9. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved." 9. Lastly, the learned counsel for the petitioner submitted that the petitioner has served in the Police Department for the last 30 years and during this time, he was awarded Good Service Mark for his outstanding remarkable service for 3 times apart from other awards numbering 88. 10. Mr. A.K. Rokhum, learned Addl. Advocate General, Mizoram submitted that the petitioner was given opportunity to cross examine the witnesses and in fact the record shows that witnesses were cross examined. He also submitted that the fact that the defence witness/witnesses were not examined is not the fault of the enquiry officer but due to lack of initiative from the side of the petitioner/charged officer. The charged officer should have built his base for the defence and ask the enquiry officer to allow him to examine his defence witness. 11. Mr. A.K. Rokhum also submitted that the 2 witnesses that the petitioner/charged officer had wanted to be examined were already examined by the SDPO, Lawngtlai in his preliminary enquiry. The enquiry officer having considered the report of preliminary enquiry did not feel the necessity of examining them again in the departmental enquiry, therefore, they were not re-examine. The learned Addl. Advocate General also submitted that in a departmental enquiry, conclusions are drawn based on preponderance of probability and not like in criminal trial where the prosecution is required to prove its case beyond reasonable doubt. Therefore, based on the materials available, the charge against the petitioner/charged officer was accepted as proved. 12. The learned Addl. Advocate General submitted also that the learned Addl. Session Judge, Lunglei have recorded in his acquittal judgment that the sum of Rs. 68,000/- have not been returned to the accused. Therefore, the charge against the petitioner/charged officer has been sufficiently proved. 13. At this stage, Mr. Victor L. Ralte, learned counsel for the petitioner in reply submitted that the petitioner has submitted receipt signed by a relative of Ngunthawma, the accused to whom a sum of Rs. 56,000/- was handed over but the same was totally ignored. 14. Therefore, the charge against the petitioner/charged officer has been sufficiently proved. 13. At this stage, Mr. Victor L. Ralte, learned counsel for the petitioner in reply submitted that the petitioner has submitted receipt signed by a relative of Ngunthawma, the accused to whom a sum of Rs. 56,000/- was handed over but the same was totally ignored. 14. I have considered the facts and circumstances of the case as submitted by both the learned counsels, and as can be seen from the record of the enquiry officer. (a) As for the first ground of the petition that the petitioner/charged officer was not given chance of cross examination has been proved to be wrong since the record of the enquiry officer shows that the witnesses were cross examined. Therefore, there is nothing more to discuss. (b) However, the second ground raised by the petitioner that he was not given a chance to examine his defense witness appears to be having substance, because, on 05.08.2013, he had informed the enquiry officer that two witnesses may be examined. The proceedings of the enquiry nowhere shows when and where the petitioner was given the chance of adducing evidence by producing witnesses whose names he had given in his petition stated above. The enquiry officer should have taken care that the petitioner/charged officer was given ample opportunity to produce his defense witness so that there is fairness in the proceedings of the enquiry. The submission of the learned Addl. Advocate General that the witnesses have been already examined by the SDPO, Lawngtiai in his preliminary enquiry, therefore, there was no need to re-examine them in the departmental enquiry does not appear to be correct in law because, preliminary enquiry is done before the actual enquiry is conducted to ascertain if prima facie case is made out against the petitioner/charged officer whereas the departmental enquiry is a quasi judicial proceeding wherein evidence are laid and examined to come to the conclusion as to whether the charged officer is guilty or not, therefore, every evidence likely to help the enquiry officer to arrive at the right conclusion has to be laid before him. To do that both the parties has to be given ample opportunity to produce their respective evidence. Moreover, it was the petitioner/charged officer who asked for the examination of the witnesses in his defence. To do that both the parties has to be given ample opportunity to produce their respective evidence. Moreover, it was the petitioner/charged officer who asked for the examination of the witnesses in his defence. Therefore, it was not for the enquiry officer to form an opinion ahead of examination of such witnesses in the enquiry proceedings that it was no longer necessary to examine such witnesses in view of the preliminary enquiry report. No one can be denied of this right to fair trial. In this case, the petitioner has been denied of such right. Further, the learned Addl. Advocate General's submission appears to be a little misplaced when it comes to its application in this case, though there can be no different opinion on the settled principle of law. Because in this case, chance of defending himself which is his basic right has been denied to the petitioner/charged officer. Every charged officer, as stated above is entitled to fair trial, and of ample opportunity of defending himself. This is one of the major components of fair trial and the same flows from the principle of natural justice and the Constitution. Therefore, to deny such a right would render the proceedings of the enquiry vitiated, thus not acceptable in law. (c) On the third ground raised by the petitioner, the record of the enquiry officer nowhere shows or recorded the presence of the presenting officer during the proceedings of the enquiry. On this point, I fully agree with the decision of a Coordinate Bench of this High Court cited by the learned counsel of the petitioner, the relevant portion of which has already been reproduced at paragraph 9 of this Judgment Because, the enquiry officer cannot assumed both the role of the prosecutor and that of a Judge at the same time. 15. On the conclusions drawn on the three grounds as given above, I am of the opinion that the proceedings of the departmental enquiry has failed to meet the requirements of law. 15. On the conclusions drawn on the three grounds as given above, I am of the opinion that the proceedings of the departmental enquiry has failed to meet the requirements of law. Therefore, the same is quashed and set aside and, in consequence, the Order dated 31.7.2014 passed by the Superintendent of Police, Saiha District based on the Enquiry Report of the SDPO Lawngtlai dated 9.3.13 and the Order dated 28.10.14 passed by the Deputy Inspector General of Police (Southern Range), Mizoram on the appeal submitted by the petitioner/charged officer, and the Order dated 18.11.2015 passed by the Director General of Police, Mizoram on the review petition of the petitioner/charged officer are also quashed and set aside. 16. The Disciplinary Authority is, however, given the liberty to take up the enquiry once again as per the law provided. With this, the writ petition is disposed.