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2017 DIGILAW 842 (GAU)

Lalremruata v. State of Mizoram

2017-06-23

AJIT BORTHAKUR, MICHAEL ZOTHANKHUMA

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JUDGMENT : Michael Zothankhuma, J. Heard Mr. P.C. Prusty, learned counsel for the petitioners. Also heard Mr. Rosangzuala Ralte, Govt. Advocate for the respondent Nos. 1 to 5. 2. The petitioners have challenged the Order dated 27.08.2006, by which they have been removed from service. The petitioners were appointed as Constables in the 2nd India Reserve Battalion. While serving in the 2nd India Reserve Battalion, they were detailed to go to a Pre-Induction Training Course at CIJW school, Vairengte during the year, 2006 for further deployment to Chattisgarrh for Anti Naxalite Operation. 3. The petitioner's counsel submits that as the petitioners had not been given TA/DA for the two weeks training period that they were in CIJW school at Vairengte, they requested their superior officers for release of their TA/DA. The petitioners thereafter left the camp at Vairengte and proceeded towards Khawzawl to collect their TA/DA. When they reached Khawzawl, they were handed over suspension Order dated 22.08.2006 and removal Order dated 24.08.2006 by the Commandant. The removal order had been issued under the proviso to Article 311(2) (b) and in exercise of powers conferred under Section 7 of the Indian Police Act, 1861 read with Rule 1030 of the Mizoram Police Manual. 4. The petitioners being aggrieved filed WP(C) No. 18/2008 before this Court. WP(C) No. 18/2008 was allowed vide Judgment and Order dated 10.12.2008, whereby the impugned removal order dated 24.08.2006 and the consequential orders passed therein were set aside by this Court. The reason for allowing WP(C) No. 18/2008 vide Judgment and Order dated 10.12.2008 was due to the fact that the requirement for dispensing with the departmental enquiry against the petitioners, contemplated under the proviso (b) to Article 311(2) of the Constitution of India had not been fulfilled. 5. The petitioners were issued memorandum of charge dated 18.02.2009, wherein the following Articles of charge was framed against them:- "Article - I That on the night of 21.8.06 at around 7:30 P.M the following 29 Police Constables of 2nd IR Bn while undergoing Pre-induction training course at CIJW School, Vairengte for further deployment to Chhattisgarh for Anti Naxalite Operation, assembled at 'C' Coy complex at Lailapur Army Camp and instigated their colleagues to join them to desert from the training camp area on that night. They even created problems and tried to manhandle Hav. They even created problems and tried to manhandle Hav. Thangpiankhuma @ T.Piana (now promoted to S.I) while he was obstructing personnel of his section to join the instigators. Article - II That on the night of 21.08.2016 the following 29 Constables of 2nd IR Bn while undergoing Pre-induction training course at CIJW School, Vairengte for further deployment to Chhattisgarh for Anti Naxalite Operation deliberately refused to obey the command/order of their controlling officers while they were ordered to fall in but left the camp area with their luggages. All efforts made by their superiors to prevent them from leaving the camp area were in vain. Article - III That on the night of 21.08.2006 the following 29 Constables of 2nd IR Bn while undergoing Pre-induction training course at CIJW School, Vairengte for further deployment to Chhattisgarh for Anti Naxalite Operation forcibly and deliberately broken the check gate being manned by Vairengte Police Station staff and proceed towards Aizawl side." 6. The petitioners submitted their written statement to the Articles of charge stating that as they were not given their TA/DA in their training camp, it became difficult for them to purchase basic necessities, such as "washing soap, hair oil, drinking water and tea etc." They also stated that as their colleagues had told them that the TA/DA had already been drawn by the authorities and was being kept at their battalion Headquarters at Khawzawl, they proceeded to Khawzawl due to their acute financial hardship. They also stated that at the Vairengte Police check gate, five of their colleagues went to the Vairengte Police Station asking for clearance and accordingly, they left Vairengte. 7. The enquiry thereafter proceeded and on culmination of the departmental proceeding, the enquiry officer submitted his report with regard to the enquiry proceeding and thereafter the impugned Order dated 27.08.2009 was issued by the Commandant 2nd I.R. Battalion under Section 7 of the Indian Police Act read with Rule 1044 of the Mizoram Police Manual, 2005 and imposed the penalty of removal of service upon the petitioners. The suspension period was also treated as not on duty. 8. The petitioner's counsel submits that the impugned removal Order dated 27.08.2009 should be set aside in view of the fact that the Presenting Officer did not attend the examination of all the 29 Charged Officers and the hearing had been conducted in his absence. The suspension period was also treated as not on duty. 8. The petitioner's counsel submits that the impugned removal Order dated 27.08.2009 should be set aside in view of the fact that the Presenting Officer did not attend the examination of all the 29 Charged Officers and the hearing had been conducted in his absence. He also submits that the Mizoram Police Manual, 2005 not having been made in accordance with Section 12 of the Indian Police Act, 1861, the removal of the petitioners on the basis of an invalid Mizoram Police Manual cannot withstand the scrutiny of law and accordingly has to be set aside. He also submits that similarly situated persons like the petitioners, i.e. the respondent Nos. 6 to 9 have only been given the penalty of "severe warning" after enquiry. He submits that the petitioners could not be discriminated against by the State respondents and if at all the petitioners were to be punished, the same penalty awarded to the private respondents should also be given to the petitioners. 9. The petitioner's counsel submits that in the case of Supdt. of Police, Manipur and Others v. R.K. Tomalsana Singh reported in 1984 (Supp) SCC 155, the Apex Court has held that as per section 12 of the Police Act, 1861 the power to make rules and issue orders as may be deemed expedient relating to the organization is conferred on the Inspector General of Police, subject to the approval of the State Government. He submits that the Mizoram Police Manual, 2005 not being made as per Section 12 of the Police, any action taken on the basis of the Police Manual is void. 10. In Bishan Singh and Others v. State of Punjab and Another reported in 1996 (10) SCC 461 , the Apex Court has held that the grievance of inadequate accommodation provided to the Police being a legitimate grievance to be represented by to the Officer for its redressal, violation of the prohibition order by marching peacefully cannot be said that the Police persons had committed mis-conduct warranting the extreme penalty of dismissal from service. He submits that the petitioners not having been given their TA/DA, the present case is similar the facts of Bishan Singh (Supra) as the petitioners had left camp for Khawzawl to take their TA/DA. 11. He submits that the petitioners not having been given their TA/DA, the present case is similar the facts of Bishan Singh (Supra) as the petitioners had left camp for Khawzawl to take their TA/DA. 11. The petitioner's counsel thus prays for setting aside and quashing the impugned order dated 27.08.2009. 12. Mr. Rosangzuala Ralte, learned Government Advocate, on the other hand submits that out of 13 Departmental witnesses, only one witness, Shri J. Lalthafamkima was examined by the presenting officer and the other 12 departmental witness were not examined by the presenting officer. However, those other 12 witnesses were examined by the Enquiry Officer in the presence of the presenting officer. But, the presenting officer did not cross examine the other 12 witnesses as he found it unnecessary to cross examine the others. 13. The respondent's counsel also submits that The Police Act, 1861 has given power for making rules to the Inspector General of Police under Section 12 and the State Government under Section 46. He submits that the Government of Mizoram has framed the said Mizoram Police Manual, 2005 as per proviso of Section 46 of the aforesaid Act by observing all legal formalities as required. He also submits that the Mizoram Police Manual, 2005 has not been made under section 12 of the Police Act, 1861 as the same was made in exercise of the powers conferred by Sub-Section 2 of section 46 of Police Act, 1861, in respect of the procedure adopted in the Departmental Enquiry against the Police personnel and action of State respondents. 14. The respondents counsel also submits that the private respondent Nos. 6 to 9 were present at the time the general roll call was made as such it cannot be said that the respondent Nos. 6 to 9 were not in the training camp. He submits that there was an intention on the part of the respondent Nos. 6 to 9 to leave the training camp by following the footsteps of the petitioners, but they were persuaded by the Controlling Officer to return to the training camp. He submits that the respondent Nos. 6 to 9 were given a severe warning by the authorities as their cases are not similar to the case of the petitioners herein. 15. 6 to 9 to leave the training camp by following the footsteps of the petitioners, but they were persuaded by the Controlling Officer to return to the training camp. He submits that the respondent Nos. 6 to 9 were given a severe warning by the authorities as their cases are not similar to the case of the petitioners herein. 15. The respondent's counsel also submits that in the 2nd I.R. Battalion, there were 791 police personnel, only 29 police personnel which included the petitioners herein defied the orders of the superior officers and left the camp. They broke open the barricade erected by the Vairengte police at Vairengte police check gate and proceeded to Khawzawl with their luggage and empty ammunition magazines. The Government Advocate also submits that the petitioners case with regard to them not being given their TA/DA, was actually related to the petitioners inability to purchase alcohol. 16. We have heard the learned counsels for the parties. 17. The records show that the presenting officer did not attend the examination of all the charged officers because of Government duties. Though the presenting officer did not attend all the days in which the departmental proceedings were held, the petitioners have not made any averment to the effect that the absence of the presenting officer on some days and the non-examination of all the charged officers caused prejudice to the petitioners in some way or the other. As the petitioners have not stated that any prejudice has been caused to them due to the absence of the presenting officer on all the days of the disciplinary proceeding, this Court does not find that departmental proceedings have been vitiated. 18. With respect to the petitioner's submission that the Mizoram Police Manual, 2005 has not been made under section 12 of the Police Act, the same has not been disputed by the State respondents. The additional affidavit-in-opposition submitted by the respondent's states that the Mizoram Police Manual, 2005 has been framed as per section 46(2) of the Police Act, 1861 and not under Section 12. Further, the introduction given in the Mizoram Police Manual, 2005 states as follows:- "Introductory: 1. The additional affidavit-in-opposition submitted by the respondent's states that the Mizoram Police Manual, 2005 has been framed as per section 46(2) of the Police Act, 1861 and not under Section 12. Further, the introduction given in the Mizoram Police Manual, 2005 states as follows:- "Introductory: 1. In exercise of the powers conferred by relevant provisions of the Police Act (Act V of 1861) as applied to Mizoram and of the Code of Criminal Procedures 1973 (Act II of 1974), the State Government of Mizoram in consultation with the Director General of Police Mizoram, framed the "Mizoram Police Manual 2005" as follows: 2. This Manual may be called the "Mizoram Police Manual, 2005". 3. It shall come into force from the date of Notification in the Official Gazette by the Government of Mizoram and will apply to Mizoram Police Forces." 19. Despite the above, the petitioners have not denied nor made any challenge to the contention of the State respondents that the Mizoram Police Manual, 2005 has been made under section 46(2) of the Police Act, 1861. 20. section 7 and 46 of the Police Act, 1861 are reproduced below:- Section 7 "Appointment, dismissal, etc of inferior officers.-[Subject to the provisions of article 311 of the Constitution, and to such rules] as the [State Government] may, from time to time, make under this Act, the Inspector-General, Deputy Inspectors-General, Assistant-General and District Superintendents of Police may at any time dismiss, suspend or reduce any police-officer of the subordinate ranks] whom they shall think remiss or negligent in the discharge of his duty, or unfit for the same; [or may award any one or more of the following punishments to any police-officer [of the subordinate ranks] who shall discharge his duty in a careless or negligent manner, or who by any act of his own, shall render himself unfit for the discharge thereof, namely:- (a) Fine of any amount not exceeding one month's pay; (b) Confinement to quarters for a term not exceeding fifteen days with or without punishment-drill, extra guard, fatigue or other duty; (c) Deprivation of good-conduct pay; (d) Removal from any office of distinction or special emolument]. Section 46 "Scope of Act.-(1) This Act shall not, by its own operation, take effect in any presidency, [State] or place. Section 46 "Scope of Act.-(1) This Act shall not, by its own operation, take effect in any presidency, [State] or place. "But the [State Government] by an order to be published in the [Official Gazette], may extend the whole or any part of this Act to any Presidency, [State] or place, and the whole or such portion of this Act, as shall be specified in such order shall, thereupon, take effect in such presidency, [State] or place. (2) When the whole or any part of this Act shall have been so extended, the [State Government] may, from time to time, by notification in the [Official Gazette], make rules consistent with this Act- (a) to regulate the procedure to be followed by Magistrates and police-officers in the discharge of any duty imposed upon them by or under this Act; (b) to prescribe the time, manner and conditions within and under which claims for compensation under section 15 A are to be made, the particulars to be stated in such claims, the manner in which the same are to be verified, and the proceedings (including laical inquiries, if necessary) which are to be taken consequent thereon; and (c) generally, for giving effect to the provisions of this Act. (3) All rules made under this Act, may, from time to time be amended, added to or cancelled by the [State Government].]" A reading of Section 7 & 46 goes to show that the State Government is competent to make rules for giving effect to the provisions of the Police Act, 1861, including dismissal/removal personnel of subordinate ranks. 21. In N. Mani v. Sangeetha Theatre & Others, reported in 2004 (12) SCC 278 , the Apex Court has held that if an authority has a power under the law, merely because while exercising that power, the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power, so long as the power does exist and can be traced to a source available in law. 22. 22. Accordingly, in view of the Judgment of the Apex Court in N. Mani v. Sangeetha Theatre (Supra) this Court finds that even though the State Government has not referred to section 46(2) of the Police Act, 1861 in the Mizoram Police Manual, 2005, the source of power for making the same exist in the Police Act, 1861 and accordingly, this Court finds that the Mizoram Police Manual, 2005 is validly made. 23. It may be pertinent to mention that the petitioners had not made any challenge to the Mizoram Police Manual, 2005 in the earlier writ petition filed by them i.e. WP(C) No. 18/2008. In any event, this Court has found the Mizoram Police Manual, 2005 to be valid. 24. With regard to the petitioners contention that they should be given the same penalty of "severe warning" given to the respondent Nos. 6 to 9, we are unable to agree with the petitioners contention in view of the fact that, there is nothing on record to show that the fact situation with regard to the petitioners vis-a-vis the respondent Nos. 6 to 9 are similar. In any event, this Court cannot act as an Appellate Court with regard to facts, as the Apex Court in the case of B.C. Chaturvedi v. Union of India and Others reported in 1995 (6) SCC 749 has held that the Court cannot re-appreciate evidence and that the disciplinary authority is the sole judge of facts in a disciplinary proceeding. 25. In the case before us, the stand of the State respondents is that the respondent Nos. 6 to 9 were physically present at the time of general roll call, while the petitioners were absent, as they had disobeyed orders and left the camp and proceeded to Khawzawl. The admitted case of the petitioners is that they had left the camp by directly disobeying the orders of the superior officers. The Enquiry report also states that though Jawans did not receive TA/DA even after two weeks of training at Lailapur, enquiry revealed that though they were running out of money, many of them still managed to buy liquor from Khawzawl on 21.08.2006 and many of them were drunk on the night of 21.08.2006 i.e. the day of the incident. The Enquiry report also states that though Jawans did not receive TA/DA even after two weeks of training at Lailapur, enquiry revealed that though they were running out of money, many of them still managed to buy liquor from Khawzawl on 21.08.2006 and many of them were drunk on the night of 21.08.2006 i.e. the day of the incident. The enquiry report also states that though other Jawans of the 2nd I.R. Battalion also faced financial hardships, they did not follow the actions of the petitioners herein. 26. Though the petitioners counsel contends that the petitioners had not been given their TA/DA for the two weeks' of camp, it is noticed that no representation was filed by the petitioners at any time. In any event, the petitioners being a part of the disciplined force, the petitioners are bound to obey the orders of their superiors and not act in violation of the orders passed by their superiors. In the present case, out of 791 Jawans of the 2nd I.R. Battalion, 29 Jawans, including the present petitioners, directly disobeyed the orders of their superiors and left the camp with their luggage and empty ammunition magazines. 27. In the case of Samar Bahadur Singh v. State of Uttar Pradesh and Others reported in 2011 (9) SCC 94 , the Apex Court has held that punishment for unauthorized absence from duties has been held not to be disproportionate where the delinquent belongs to a disciplined force. In the present case, the petitioners have directly disobeyed the orders of their superiors and left their camp. We find that the said act of the petitioners is of a more serious nature than that of unauthorized absence. 28. In the case of State of Uttar Pradesh and Others v. J.P. Saraswat reported in 2011 (4) SCC 545 , the Apex Court has held that judicial review is permissible in very rare cases where the punishment is so disproportionate to the established charge that it would appear unconscionable and actuated by malice. In the present case, we do not find the punishment to be disproportionate, keeping in view the facts and circumstances of the case. Further, there is no whisper of any mala fides by the petitioners in the present case. 29. For the reasons stated above, we do not find any merit in the writ petition. 30. Accordingly, the same is dismissed.