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Meghalaya High Court · body

2018 DIGILAW 29 (MEG)

Grewith Marak v. State of Meghalaya

2018-07-11

MOHAMMAD YAQOOB MIR

body2018
ORDER : Mohammad Yaqoob Mir, J. 1. By medium of this petition orders, dated 02.09.2014 passed by the respondent No. 5 (Commandant) in terms whereof, the petitioner has been removed from service and dated 24.07.2015 passed by the respondent No. 4 (Inspector General of Police, (TAP) Government of Meghalaya, Shillong) in terms whereof, appeal filed by the petitioner against the order of removal has been rejected are sought to be quashed. 2. During the course of hearing, learned counsel for the petitioner has confined his arguments vis-a-vis severity of punishment by projecting that the punishment of removal as awarded is disproportionate to the act allegedly committed by the petitioner. According to the learned counsel, the punishment is harsh as a result whereof, it is not only the petitioner but his family consisting of his wife and three children have to suffer. He would submit that the act committed by the petitioner was not deliberate. His service record of 20 years is unblemished and same has not been taken into consideration while awarding harsh punishment of removal from service. In support of his contentions placed reliance on the judgments reported in: (i) (1995) 5 SCC 682 (ii) (1995) 6 SCC 157 and (iii) (1987) 4 SCC 611 3. Learned Sr. GA in opposition submits that the petitioner belonged to the discipline force and was holding the position of Havildar, he could not afford to be negligent. It is his sheer negligence that a carbine machine gun along with two empty magazines were allegedly stolen by Darmen R. Marak, private cook on 10.04.2014. He has compounded his negligence by not reporting the matter to his superior officers for a period of about 13 days. After a gap of 13 days, he has lodged the FIR on 23.04.2014 and thereafter, on 24.04.2014 has been placed under suspension. Later on, it surfaced during investigation of the case as registered against the cook that the carbine machine gun and two empty magazines were given by the said cook to Shri Philiport D. Shira @ Rakban GNLA, Area Commander. Thereafter, the said cook has also deserted from the banned GNLA organization and has formed a new organization, which by itself suggests that the punishment of removal is proportionate. Thereafter, the said cook has also deserted from the banned GNLA organization and has formed a new organization, which by itself suggests that the punishment of removal is proportionate. In support of his contentions has relied on the judgments reported in: (i) (2011) 13 SCC 553 (ii) (2013) 6 SCC 313 (iii) (2015) 2 SCC 410 (iv) (1997) 7 SCC 463 (v) (2001) 2 SCC 386 and (vi) (2010) 10 SCC 539 4. For appreciating the rival submissions of the learned counsel for the parties in the right perspective, it shall be advantageous to precisely notice the background of the case. 5. The admitted position as has emerged from the records and submissions as made by the learned counsel for the parties is that, (i) the petitioner on 18.10.1995 was appointed as Armed Branch Constable No. 831 in the regular pay scale subsequently, was issued Appointment Certificate by the Superintendent of Police, East Khasi Hills, Shillong on 27.07.1999; (ii) was promoted as Lance Naik posted in 2nd MLP Battalion on 18.06.2010 and; (iii) was further promoted as Havildar vide order dated 29.08.2011 was posted under the 6th MLP Battalion and deployed at United Bank of India, Nongshilliang, West Khasi Hills District, Meghalaya along with Havildar Paimether Momin and BNC/594 Leckson B. Marak and as such both were staying at Camp Nongshilliang, United Bank of India. 6. On 10.04.2014, the lock of the room where weapons were kept was opened, two others Havildars Paimether Momin and BNC/594 Leckson B. Marak took their respective weapons from the Camp for performing duty at United Bank of India. The room was again locked because the carbine machine gun along with two empty magazines of the petitioner were kept in the room. A civilian cook Darmen R. Marak, who appeared to have been engaged by the three officials, remained available at the Camp. On the same day, Darmen R. Marak (cook) allegedly had stolen the carbine machine gun and two empty magazines of the petitioner. According to the petitioner, when the petitioner's colleagues reached the Camp for keeping their weapons inside the same room it was found that the lock of the room was broken and carbine machine gun with two empty magazines were found missing. According to the petitioner, when the petitioner's colleagues reached the Camp for keeping their weapons inside the same room it was found that the lock of the room was broken and carbine machine gun with two empty magazines were found missing. The petitioner did not report to the superior officers under the pretext that he tried to locate the cook and to get back the carbine machine gun and two empty magazines, which he could not and then, after a gap of 13 days he reported the matter to the superior officers and also lodged the report (FIR) before the Officer-in-Charge, Nongstoin Police Station. 7. The petitioner was placed under suspension on 24.04.2014 and the enquiry was ordered vide Memorandum dated 01.05.2014, statements of charges were framed and substance of imputation of charge was prepared and same is quoted here under:- "STATEMENT OF CHARGE FRAMED AGAINST HAV GREWITH MARAK OF 6TH BATTALION MEGHALAYA POLICE 1. Carbine machine Gun SAF (Butt No. 65 Body No. 8297) issued to HAV. Grewith Marak of 6th MLP Bn for duty was found missing from his room at UBI, Nongshillong on 10-04-2014 morning. This incident took place due to his negligence as he went out keeping his weapon inside his room in a very insecure manner as no one was guarding the room where the door was also not strong enough for safe custody of a prohibited weapon. His action amounts to gross misconduct unbecoming of a member of a discipline force. 2. Hav Grewith Marak did not report to his senior officers the fact that his service weapon had gone missing till Hav Paimether Momin reported the matter to ABSI Blasius Sten on 23-04-2014 morning. His action amounts to gross misconduct unbecoming of a member of a discipline force. Sd/- (Shri J. Rymmai, IPS) Commandant 6th Battalion Meghalaya Police, Meghalaya, Shillong SUBSTANCE OF IMPUTATION OF CHARGE 1. Carbine machine gun SAF (Butt No. 65 Body No. 8297) issued to Hav. Grewith Marak of 6th MLP Bn for duty was found missing from his room at UBI, Nongshillong on 10-04-2014 morning. This incident took place due to his negligence as he went out keeping his weapon inside his room in a very insecure manner as no one was guarding the room where the door was also not strong and safe. 2. Grewith Marak of 6th MLP Bn for duty was found missing from his room at UBI, Nongshillong on 10-04-2014 morning. This incident took place due to his negligence as he went out keeping his weapon inside his room in a very insecure manner as no one was guarding the room where the door was also not strong and safe. 2. Hav Grewith Marak did not report to his senior officers the fact that his service weapon had gone missing at all till Hav Paimether Momin reported the matter to ABSI Blasius Sten on 23-04-2014 morning. Sd/- (Shri J. Rymmai, IPS) Commandant 6th Battalion Meghalaya Police, Meghalaya, Shillong" 8. The petitioner in response has submitted a written statement amongst other details as mentioned therein has stated that on 10.04.2014, his colleagues Paimether Momin and Leckson B. Marak went for bank duty and took along with them their weapons whereas, carbine machine gun along with two empty magazines were left in the Kote Room. Between 11:30 and 12:00 PM, he received a phone call from his colleagues who went for election duty to Mairang asking him to prepare a meal for them. While preparing meal, Darmen R. Marak (cook) who has been with them since 2013 wanted to go to the market. Shortly thereafter, his colleagues who went to Mairang for duty arrived and asked him to open the Kote Room for depositing the arms and ammunitions. While reaching the Kote Room they found the room was open and carbine machine gun along with two empty magazines missing from the Kote Room. He tried to locate/search the missing 9mm carbine machine gun and the person named Darmen R. Marak for more than two weeks. Therefore, he could not report the matter to the superior officers at the earliest. 9. The Assistant Commandant who was appointed as the Inquiry Officer commenced the enquiry and recorded the statements of 12 prosecution witnesses in presence of the petitioner and has also given ample opportunity to the delinquent (petitioner) to cross examine the witnesses which he declined. In the analysis, the Inquiry Officer has noticed that the Havildar is a rank holder as a guard commander whose job is not as a cook. His colleagues might have called him up to prepare food for them yet he was not supposed to cook food. Rather, he should have directed the boy he had kept to cook. In the analysis, the Inquiry Officer has noticed that the Havildar is a rank holder as a guard commander whose job is not as a cook. His colleagues might have called him up to prepare food for them yet he was not supposed to cook food. Rather, he should have directed the boy he had kept to cook. Further, in a disciplined force seniority is to be respected, it sounds strange that he would cook food when they had a cook. His plea of cooking cannot be accepted. Regarding charge No. 2, the Inquiry Officer has concluded that the petitioner should have immediately reported the matter to his authority which he did not. It was PW 3 Havildar Paimether Momin who reported the matter to PW 2 ABSI Blasius Sten. Even PW 3 has stated that the delinquent havildar had asked him not to tell anybody as he was searching the weapon by himself. The Inquiry Officer has also mentioned that the petitioner was afforded an opportunity to cross examine the prosecution witness and to produce defense witness which he refused. Finally, he has concluded that both the charges stand proved. 10. The Disciplinary Authority (Commandant) has issued second show cause notice along with the finding of Inquiry Officer, to show cause as to why major punishment should not be awarded. Responding to the said second show cause notice amongst other things has stated that he did not inform the matter immediately to the superior officers as he had decided to search and trace it out by himself as he knew the address and parents of Darmen R. Marak (cook). Unfortunately, he could not trace him because Darmen R. Marak (cook) had gone to the jungle and never returned home, it was presumed that he had joined the militants outfit called GNLA. Thereafter, petitioner's friend Paimether Momin reported the matter to ABSI Blasius Sten and subsequently, he lodged an FIR before Nongstoin Police Station against Darmen R. Marak. He also stated therein that he has full trust and believe that nobody would steal his carbine machine gun and also apologized for failure of not checking the room frequently. He also stated that he should have asked the boy Darmen R. Marak to prepare food for them but he told him that he wanted to go to the market for his own personal purposes. He also stated that he should have asked the boy Darmen R. Marak to prepare food for them but he told him that he wanted to go to the market for his own personal purposes. It is also mentioned therein that brother of Darmen R. Marak informed him that Darmen R. Marak had joined the militant outfit called GNLA. Finally, he has stated that he is the victim of circumstances. 11. The Disciplinary Authority (Commandant) after considering the cause i.e. reply submitted by the petitioner has passed a detailed order dated 02.09.2014 while agreeing with the finding submitted by the Inquiry Officer has recorded as under:- "The gravity of the offence is significant against the back drop of havildar Grewith Marak's indifference and sheer negligence towards the safe custody of his service weapon as evident from the facts stated above. Secondly, after the incident, what was more bizarre and baffling was the fact that he kept the matter under wraps for 12 (twelve) days till it was brought to light on 23.04.2014 by his colleagues. Such behaviour is inexplicable and hard to condone as suppression of crime is culpable in law. He should have instantly realized that missing of prohibited weapon is a serious issue and should have informed the authority as immediately as possible in order to take step to retrieve the lost arm and nab the culprits. Such lackadaisical attitude particularly when dealing with prohibited service weapons cannot be taken lightly. However, the worrying aspect here is that the weapon might have fallen into the hands of subversive elements. The irresponsible behaviour of havildar Grewith Marak will set a very bad example and erode the discipline, particularly amongst the budding constables of this battalion if such glaring act of negligence is not meted with exemplary punishment." 12. Finally, the petitioner was awarded the punishment of removal from service. 13. In appeal before the Inspector General of Police (TAP) and Appellate Authority Training and Armed Police, Meghalaya, Shillong, various pleas were taken regarding the applicability of Assam Police Manual. The Appellate Authority after referring to the relevant provisions and adoption of Assam Police Manual by the State of Meghalaya has finally rejected the appeal. 14. While going through the records, it is clear that the departmental proceedings i.e. enquiry proceedings are flawless that is why learned counsel for the petitioner confined his arguments vis-à-vis quantum of punishment. The Appellate Authority after referring to the relevant provisions and adoption of Assam Police Manual by the State of Meghalaya has finally rejected the appeal. 14. While going through the records, it is clear that the departmental proceedings i.e. enquiry proceedings are flawless that is why learned counsel for the petitioner confined his arguments vis-à-vis quantum of punishment. Now, the question is as to whether punishment of removal as awarded is proportionate or disproportionate. 15. In the context of law as has been laid down by the Hon'ble Apex Court in the judgments as have been relied upon by the learned counsel for the parties, it is quite clear that quantum of punishment depends on the facts and circumstances of each case. It is the fact position wherefrom it can emerge as to what is the gravity of the offence committed. It is also trite that punishment shall not be shockingly disproportionate to proved misconduct. 16. In the judgment "Mehnga Singh Ex-Sub Inspector v. Inspector General of Police, PAP, Jalandhar Cantt. & Ors." reported in (1995) 5 SCC 682 , the fact position was that the appellant therein had unblemished record of service all through. Pursuant to the promotion given to him as Inspector, he was to deposit the service revolver and six live cartridges. He had to share a room with two other colleagues as a consequence of which the revolver and six cartridges were lost and unaccounted for. Therefore, the appellant claimed that exclusive liability may not be appropriate. The contention was found to be having some element of possibility. The explanation offered was noticed to be plausible, keeping with the unblemished record of service, extreme punishment of dismissal from service was found unwarranted. The punishment of dismissal from service was modified to compulsory retirement. The fact position of the reported case is totally different to the present case as given in detail hereinabove. 17. From the judgment "Ram Kishan v. Union of India & Ors." reported in (1995) 6 SCC 157 . Paragraph 11 is advantageous to be quoted: "11. It is next to be seen whether imposition of the punishment of dismissal from service is proportionate to the gravity of the imputation. 17. From the judgment "Ram Kishan v. Union of India & Ors." reported in (1995) 6 SCC 157 . Paragraph 11 is advantageous to be quoted: "11. It is next to be seen whether imposition of the punishment of dismissal from service is proportionate to the gravity of the imputation. When abusive language is used by anybody against a superior, it must be understood in the environment in which that person is situated and the circumstances surrounding the event that led to the use of abusive language. No strait-jacket formula could be evolved in adjudging whether the abusive language in the given circumstances would warrant dismissal from service. Each case has to be considered on its own fact. What was the nature of the abusive language used by the appellant was not stated." 18. In the peculiar facts that on the basis of abusive language against a superior officer, the delinquent was dismissed from service which was held to be disproportionate. This judgment on fact is of no help to the petitioner. 19. In the judgment "Ranjit Thakur v. Union of India & Ors." reported in (1987) 4 SCC 611 , it has been held that a disregard of a direction to accept food might assume the complexion of disrespect to, and even defiance of authority. But an unduly harsh and cruel reaction to the expression of the injured feelings may be counterproductive and even by itself be subversive of discipline. Paragraphs 25, 26 and 27 are advantageous to be quoted: "25. Judicial review generally speaking, is not directed against a decision, but is directed against the "decision-making process". The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-Martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review. Irrationality and perversity are recognised grounds of judicial review. In Council of Civil Service Unions v. Minister for the Civil Service Lord Diplock said: Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community;.... 26. In Bhagat Ram v. State of Himachal Pradesh this Court held: [SCC p.453, SCC (L&S) p.353, para 15] It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution. The point to note, and emphasise is that all powers have legal limits. 27. In the present case the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review." 20. All the three judgments relied upon by the learned counsel for the petitioner in support of his contentions that punishment is disproportionate in the facts situation of the reported cases are of no help to the petitioner. 21. The petitioner (Havildar) belonged to a discipline force was supposed to take extra care about the service weapon issued to him for discharge of duty. The theory that he was preparing food for his two colleagues appears to be after thought theory. When a civilian cook was available with him, what made him to prepare food for his colleagues and then, why he did not keep proper vigil of the Kote Room where his weapons were kept. The Act of negligence has been compounded by another act of not reporting the matter to the superior authority. When a civilian cook was available with him, what made him to prepare food for his colleagues and then, why he did not keep proper vigil of the Kote Room where his weapons were kept. The Act of negligence has been compounded by another act of not reporting the matter to the superior authority. After a gap of thirteen days, he has reported the matter to the Police, which is a biggest lapse because in case he would have reported the matter to the Police immediately, may be the Police might have retrieved the lost arm and nabbed the accused before he could join the banned militant outfit. 22. The report of the Investigating Officer of the case registered against Darmen R. Marak (cook) is horrific wherein, it is mentioned that he stole the carbine machine gun and two magazines and deposited to Philiport D. Shira @ Rakban, Area Commander, GNLA and later on, he deserted from the banned GNLA and killed three GNLA cadres and formed a new militant organization along with his colleagues. 23. The fall out, of not reporting the matter by the petitioner is quite evident, when a carbine machine gun is stolen and according to him by the cook, he should visualized what can be its fall out of not reporting the matter to the Police, clearly shows sheer negligence. 24. Under stated circumstances, the punishment of removal cannot be treated to be extreme or harsh. The person who belong to a disciplined force has to be disciplined, cannot afford to be remiss. 25. Learned Sr. GA has rightly placed reliance on the judgments as referred to hereinabove. "Union of India & Ors. v. Bodupalli Gopalswami": (2011) 13 SCC 553 . In the reported judgment regarding proportionality of punishment, reliance has been placed on the judgment of "Ranjit Thakur v. Union of India": (1987) 4 SCC 611 . Finally, in the reported judgment based on the facts and circumstances, the punishment was found to be disproportionate, but the facts of the reported case are different to the case in hand. However, while applying the principle, the punishment awarded in the case in hand is proportionate. 26. In the case of "Manoj H. Mishra v. Union of India": (2013) 6 SCC 313 . However, while applying the principle, the punishment awarded in the case in hand is proportionate. 26. In the case of "Manoj H. Mishra v. Union of India": (2013) 6 SCC 313 . In the reported judgment and in the fact situation while referring to various judgments and also the judgment in the case of Ranjit Thakur v. Union of India, the punishment was held to be disproportionate. In the other judgment relied upon by learned Sr. GA, the same principle of proportionate and disproportionate of punishment has been laid down in the context of the principle as have been evolved. 27. Learned Sr. GA has rightly submitted that the case of the petitioner stands on its own serious facts and there are no mitigating circumstances so as to attract the principle of proportionality for reducing the punishment. He has also rightly submitted that it is unbecoming of a senior Havildar having such long service to have committed two serious indisciplines, one that he had failed to exercise extra vigil as a result whereof, carbine machine gun along with two empty magazines were stolen that too by Darmen R. Marak (cook), who had later on joined the banned organization GNLA and another glaring indiscipline and bad conduct, as a Havildar of a disciplined force he has not reported the matter to the superior officers and the Police for 13 long days. 28. True it is that when a person is removed from service, it is not only he but his whole family falls prey to unforeseen circumstances but when a person has chosen to be a member of a disciplined force, he has to maintain discipline at all levels and has to remain extra vigilance. The imputation of charges against the petitioner are very grave same have been proved. There can be circumstances where a conduct or indiscipline of a person belonging to a disciplined force warrants lesser punishment. Imputation of charges referred to above have been proved during disciplinary proceedings. A detailed enquiry has been conducted. The magnitude of misconduct committed makes the petitioner unacceptable to be a member of a disciplined force. 29. There can be circumstances where a conduct or indiscipline of a person belonging to a disciplined force warrants lesser punishment. Imputation of charges referred to above have been proved during disciplinary proceedings. A detailed enquiry has been conducted. The magnitude of misconduct committed makes the petitioner unacceptable to be a member of a disciplined force. 29. The law referred to by the learned counsel for the petitioner by invoking doctrine of proportionality in the background of the case and keeping in view the principles as have been evolved for applying the doctrine of proportionality, no scope to interfere with the orders passed by the Disciplinary Authority (Commandant) on 02.09.2014 and rejection of the appeal by the Inspector General of Police (TAP) dated 24.07.2015. 30. Petition accordingly found to be without merits and as such dismissed. 31. The record of the departmental proceedings as produced by learned Sr. GA be returned to him forthwith.