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2018 DIGILAW 1307 (GAU)

Johny Hmingthansanga v. State of Mizoram

2018-09-04

MICHAEL ZOTHANKHUMA

body2018
JUDGMENT : MICHAEL ZOTHANKHUMA, J. 1. Heard Mr. Zoramchhana, learned counsel for the petitioner. Also heard Mr. A.K. Rokhum, learned Addl. Advocate General, Mizoram for the State respondents. 2. The petitioner has challenged the penalty of compulsory retirement inflicted upon him vide the impugned Order dated 06.05.2015. 3. The petitioner's case in brief is that while serving as a Constable in the 4th I.R Battalion, the petitioner was issued show cause notices for unauthorized absence from duty for 30 days, with effect from 18.06.2017 to 16.07.2014. The petitioner submitted an explanation to one of the show cause notices dated 17.07.2014, vide letter dated 19.07.2014. Pursuant to the above, a departmental enquiry was initiated against the petitioner, in which the petitioner did not participate in the proceeding. The enquiry report was thereafter submitted by the enquiry officer on 21.04.2015. The petitioner was thereafter inflicted with the penalty of compulsory retirement vide the impugned Order dated 06.05.2015. 4. The petitioner's counsel submits that prior to imposition of the penalty vide the impugned Order dated 06.05.2015, the State respondents were bound to comply with the provisions of Rule 1037 and 1039 of the Mizoram Police Manual, 2005. The same not having been done, the impugned Order dated 06.05.2015 should be set aside and the petitioner reinstated into service. 5. Mr. A.K. Rokhum, learned Addl. Advocate General, Mizoram, on the other hand, submits that Rule 1037 and 1039 of the Mizoram Police Manual, 2005 have been followed. He also submits that as the petitioner had admitted to the charges framed against him with regard to his unauthorized absence from duty, there is no infirmity with the decision of the respondents in imposing the penalty of compulsory retirement of the petitioner, on his admission of guilt. 6. I have heard the learned counsels for the parties. 7. Rule 1037 and 1039 of the Mizoram Police Manual, 2005 states as follows: "1037. 6. I have heard the learned counsels for the parties. 7. Rule 1037 and 1039 of the Mizoram Police Manual, 2005 states as follows: "1037. Show Cause: In every case where it is contemplated to impose on a member of any of the State Police the major punishments he shall be given a reasonable opportunity of making any representation that he may desire to make and such representation, if any, shall be taken into consideration before the order imposing the punishment is passed: Provided that the requirements of this rule shall not apply where it is proposed to impose on a member of the service any of the punishment aforesaid on the basis of facts which have led to his conviction by a Court or where the officer concerned has absconded or where it is for other reasons impracticable to communicate with him. 1039. Copy of Report furnishing of: After the inquiry has been completed the person charged shall be supplied with a copy of the report of the inquiring authority and be called upon to show cause, within 15 days of receipt of the Report to enable him to make his submission or representation in regards to the findings of the inquiry before the disciplinary authority passes its order imposing the penalty." 8. A perusal of Rule 1039 shows that after an enquiry has been completed, the person charged should be supplied with a copy of the report so as to enable him to make a representation, with regard to the findings made in the enquiry against him and before the disciplinary authority passes its order. 9. In the present case, there is nothing in the records to show that the petitioner had been given a copy of the enquiry report as contemplated under Rule 1039 of the Mizoram Police Manual, 2005, as there is no signature of the petitioner showing receipt of the said enquiry report. However, the further question is with regard to whether any prejudice is caused to the petitioner by non-furnishing of the enquiry report. In the case of Managing Director, ECIL, Hyderabad & Others v. B. Karunakar & Others, (1993) 4 SCC 727 , the Apex Court has held at para 31 as follows: "31. However, the further question is with regard to whether any prejudice is caused to the petitioner by non-furnishing of the enquiry report. In the case of Managing Director, ECIL, Hyderabad & Others v. B. Karunakar & Others, (1993) 4 SCC 727 , the Apex Court has held at para 31 as follows: "31. Hence, in all cases where the Inquiry Officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short-cuts. Since it is the Courts/ Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Courts/ Tribunals finds that the furnishing of the report would have made a difference to the result in the case that should set aside the order of punishment. Where after following the above procedure the Courts/Tribunals sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. Where after following the above procedure the Courts/Tribunals sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law." 10. In the present case, the petitioner in his explanation dated 19.07.2014, given in reply to the explanation/show cause notice dated 17.07.2014, has admitted to his unauthorized absence from 18.06.2014 to 16.07.2014, on the ground of being under the influence of alcohol. He also stated that he has got no excuse for his unauthorized absence and that his unauthorized absence may be forgiven. Keeping in mind the admission made by the petitioner to the charge of unauthorized absence for 30 days, this Court finds that no prejudice had been caused to the petitioner due to non-supply of the enquiry report to the petitioner, as the facts stated by the petitioner would still remain the same, as given in his letter dated 19.07.2014, even if he was to make a representation against the findings made in the Enquiry Report. 11. 11. However, with regard to Rule 1037 of the Mizoram Police Manual, 2005, this Court on going through the records, finds that the petitioner has not been given a copy of the show cause notice made under Rule 1037. The records produced by the learned Addl. Advocate General, Mizoram, shows that various documents and notices have been made pertaining to the petitioner. A lot of the documents, which requires the same to be furnished to the petitioner, bears the signature of the petitioner. A show cause notice dated 12.09.2014, issued by the respondent No. 4 states that receipt of the same should be acknowledged. The document bears the signature of the petitioner. The show cause notice dated 27.04.2015, issued by the respondent No. 4, which the learned Addl. Advocate General, Mizoram submits is the notice under Rule 1037, also states that the receipt of the show cause notice should be acknowledged. However, there is no signature of the petitioner in the said show cause notice. Accordingly, in view of the above, an inference can be drawn that the petitioner had not been given the show cause notice under Rule 1037 of the Mizoram Police Manual, 2005, prior to the disciplinary authority imposing the penalty upon the petitioner. Accordingly, in view of the above reason, this Court is of the view that the petitioner could not have been imposed with a penalty of compulsory retirement without giving a show cause notice under Rule 1037. 12. In view of the reasons stated above, the impugned order dated 06.05.2015, imposing the penalty of compulsory retirement upon the petitioner is hereby set aside. The State respondents are directed to reinstate the petitioner into service. However, the respondents are given the liberty to proceed with the disciplinary enquiry from the stage of issuance of an enquiry report to the petitioner as required under Rule 1039 and show cause notice under Rule 1037 of the Mizoram Police Manual, 2005. 13. In the case of Metropolitan Transport Corporation v. V. Venkatesan, (2009) 9 SCC 601 , the Apex Court has held that there is a misconception that whenever reinstatement is directed, continuity of service and consequential benefits should follow, as a matter of course. 13. In the case of Metropolitan Transport Corporation v. V. Venkatesan, (2009) 9 SCC 601 , the Apex Court has held that there is a misconception that whenever reinstatement is directed, continuity of service and consequential benefits should follow, as a matter of course. Keeping in view the facts and circumstances of this case and the fact that petitioner did not submit any appeal to the appropriate authority as required under the Mizoram Police Manual, 2005, with regard to the impugned Order dated 06.05.2015, this Court is not inclined to pass any order with respect to any consequential benefits to the petitioner. The same would be subject to the outcome of the disciplinary enquiry. Writ petition is accordingly disposed off.