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2020 DIGILAW 121 (GAU)

S. I. C. Lalramtluanga v. State Of Mizoram

2020-02-04

SONGKHUPCHUNG SERTO

body2020
JUDGMENT S Serto, J. - This is a writ petition under Article 226 of the Constitution of India, challenging the order dated 18.10.2016 of Superintendent of Police, Lunglei District, issued under his Office Memorandum No. SP(L)/ROG/DE-6/2016/2549 wherein the petitioner, who was under suspension was reinstated but awarded the punishment of stoppage of increment for a period of 1 (one) year with cumulative effect. 2. Heard Mr. Zochhuana, learned counsel for the petitioner and Ms. Mary L. Khiangte, learned Govt. Advocate for the State respondents. 3. The petitioner, who is an S.I in Mizoram Police was deputed to attend 3 days State Level Training Programme on Social Defence for Middle Level Functionaries of Police Department scheduled to be held from 07.09.2016 09.09.2016 at Superintendent of Police Conference Hall, Aizawl vide letter No. SP(L)/ROG-62/2016/2227 dated 05.09.2016 of the Superintendent of Police, Lunglei. Accordingly, he attended the first day of the training but could not attend the training on the subsequent 2 days. On 05.10.2016, vide order No. SP(L)/ROG/PF/SI-C.LRT/2016/2469 the Superintendent of Police, Lunglei suspended the petitioner from service with immediate effect in contemplation of a departmental enquiry on his misconduct and negligence of duty. On 07.10.2016, he was given a memorandum stating that an enquiry is being contemplated under the Article of charge and statement of imputation which are reproduced herein below: "STATEMENT OF ARTICLES OF CHARGE FRAMED AGAINST SI.C.LALRAMTLUANGA OF LUNGLEI D.E.F ARTICLE-I That on 07.09.2016 SI.C. Lalramtluanga of Crime Branch, Lunglei who was deputed to attend "State Level Training Programme on Social Defence for Middle Level Functionaries of Police Department" held at Superintendent of Police Conference Hall, Aizawl Vide this office Signal No. SP(L)/ROG- 62/2016/2148 dt. 29.08.2016 and letter No. SP(L)/RPG-62/2016/2227 Dt. 05.09.2016 was found attending the said training under the influence of liquor and created nuisance in the Training Hall. ARTICLE-II That SI.C. Lalramtluanga of Crime Branch, Lunglei who was deputed to attend 3 (three) days "State Level Training Programme on Social Defence for Middle Level Functionaries of Police Department" scheduled to be held from 07.09.2016 to 09.09.2016 at SP Aizawl Conference Hall Vide this office Signal No. SP(L)/ROG-62/2016/2148 dt. 29.08.2016 and letter No. SP(L)/RPG- 62/2016/2227 Dt. 05.09.2016 was found willfully absent from the said training on 8th & 9th September, 2016 without obtaining prior permission from competent authority. 29.08.2016 and letter No. SP(L)/RPG- 62/2016/2227 Dt. 05.09.2016 was found willfully absent from the said training on 8th & 9th September, 2016 without obtaining prior permission from competent authority. Consumption of alcohol while on duty and willful absent by a Police personal is a deplorable act and the above acts of SI.C. Lalramtluanga of Crime Branch, Lunglei amounts to gross negligence of duty and misconduct liable to face disciplinary action under Section 94 of Mizoram Police Act, 2011 (Act No. 3 of 2012) r/w rule 1038/1044 of Mizoram Police Manual, 2005. ANNEXURE-II STATEMENT OF IMPUTATION OF MISCONDUCT AND NEGLICENCE OF DUTY IN SUPPORT OF THE ARTICLES OF CHARGE FRAMED AGAINST SI. C. LALRAMTLUANGA OF LUNGLEI D.E.F ARTICLE-I That on 07.09.2016 S.I. C. Lalramtluanga of Crime Branch, Lunglei who was deputed to attend "State Level Training Progamme on Social Defence for Middle Level Functionaries of Police" Department held at Superintendent of Police Conference Hall, Aizawl vide this office Signal No. SP(L)/ROG- 62/2016/2148 dated 29.08.2016 and letter No. SP(L)/RPG-62/2016/2227 Dt. 05.09.2016 was found attending said training under the influence of liquor and created nuisance in the Training Hall. He was forwarded to Medical Officer, I/C Casualty Department, Civil Hospital, Aizawl to ascertain his consumption of alcohol. The Doctor on call opined that SI. C. Lalramtluanga has consumed alcohol at the time of examination. ARTICLE-II That SI. C. Lalramtluanga of Crime Branch, Lunglei whos was deputed to attend 3 (three) days "State Level Training Progamme on Social Defence for Middle Level Functionaries of Police Department" scheduled to be held from 07.09.2016 to 09.09.2016 at SP Aizawl Conference Hall Vide this Signal No. SP(L)/ROG-62/2016/2148 dated 29.08.2016 and letter No. SP(L)/RPG- 62/2016/2227 Dt. 05.09.2016 was found willfully absent from the said training on 8th & 9th September, 2016 without obtaining prior permission from competent authority. Consumption of alcohol while on duty and willful absent by a Police personal is a deplorable act and the above acts of SI. C. Lalramtluanga of Crime Branch, Lunglei amounts to gross negligence of duty and misconduct liable to face disciplinary action under Section 94 of Mizoram Police Act, 2011 (Act No. 3 of 2012) r/w rule 1038/1044 of Mizoram Police Manual, 2005." 4. On 18.10.2016, the respondent No. 5 issued the impugned order, which reads as follows: "OFFICE ORDER Whereas a Departmental Enquiry No. 6/2016 Dt. 7.10.2016 has been drawn up against SI. On 18.10.2016, the respondent No. 5 issued the impugned order, which reads as follows: "OFFICE ORDER Whereas a Departmental Enquiry No. 6/2016 Dt. 7.10.2016 has been drawn up against SI. C. Lalramtluanga (U/S) of Lunglei D.E.F for his misconduct and negligence of duty whereas he has been charged that on 07.09.2016 SI. C. Lalramtluanga (U/S) of Lunglei D.E.F who was deputed to attend "State Level Training Progamme on Social Defence for Middle Level Functionaries of Police Department" scheduled to be held from 07.09.2016 to 09.09.2016 at SP Aizawl Conference Hall Vide this Signal No. SP(L)/ROG-62/2016/2148 dated 29.08.2016 and letter No. SP(L)/RPG-62/2016/2227 Dt. 05.09.2016 was found attending the said training under the influence of liquor and created nuisance in the Training hall. He was forwarded to Medical Officer, I/C Casualty Department, Civil Hospital, Aizawl to ascertain his consumption of alcohol at the time of examination. Besides, SI. C. Lalramtluanga (U/S) of Lunglei D.E.F who was deputed to attend 3 (three) days "State Level Training Programme on Social Defence for Middle Level Functionaries of Police Department" scheduled to be held from 07.09.2016 to 09.09.2016 at SP Aizawl Conference Hall was found willfully absent from the said training on 8th and 9th September, 2016 without obtaining prior permission from competent authority. And whereas, Charge memorandum against SI. C. Lalramtluanga (U/S) of Lunglei D.E.F was issued vide No. SP(L)/ROG/DE-6/2016/2498 Dt. 07.10.2016 giving reasonable opportunity to submit his defense statement. And whereas, the charge official SI. C. Lalramtluanga (U/S) of Lunglei D.E.F submitted his reply of the Charge memorandum on 12.10.2016 in which he fully admitted the charge framed against him and expressed that he is aware of his commission of serious indiscipline act and further begged leniency and undertook not to repeat in future. Now, therefore, the undersigned in exercise of power conferred by section 91(2) (b) of Mizoram Police Act, 2011 (Act No. 3 of 2012) read with Rule 1029(1) (e)/1044 of Mizoram Police Manual, 2005 do hereby awarded SI. C. Lalramtluanga (U/S) of Lunglei D.E.F a punishment of "Stoppage of increment for a period of One (1) year with cumulative effect". Now, therefore, the undersigned in exercise of power conferred by section 91(2) (b) of Mizoram Police Act, 2011 (Act No. 3 of 2012) read with Rule 1029(1) (e)/1044 of Mizoram Police Manual, 2005 do hereby awarded SI. C. Lalramtluanga (U/S) of Lunglei D.E.F a punishment of "Stoppage of increment for a period of One (1) year with cumulative effect". He is hereby re-instated with immediate effect and his suspension period w.e.f. 5.10.2016 till date of issue of this order is treated as "Not on duty", hence he is not entitled to any financial benefit other than subsistence allowance already drawn by him and the Departmental Proceedings instituted against him is hereby dispensed with. (ZOSANGLIANA) MPS, Superintendent of Police, Lunglei District, Lunglei." Being aggrieved, the petitioner is before this Court, challenging the impugned order given above on the ground that the same is dehors the rules provided in the Mizoram Police Manual and it is also against the established principle of law since no departmental enquiry was ever conducted. 5. Mr. Zochhuana, learned counsel for the petitioner submitted that the impugned order was issued because of the presumed admission of guilt by the petitioner as per his letter dated 12.10.2016, addressed to the Superintendent of Police, Lunglei District. The learned counsel submitted that this letter in the true sense of the term does not amount to admission of guilt. Therefore, for that reason alone, the departmental enquiry could not have been stopped from proceeding further and culminated into issuance of the impugned order. The learned counsel also submitted that even presuming that it is an admission of guilt even then, in view of the ratio of the judgment passed by the Hon'ble Supreme Court in the case of Jagdish Prasad Saxena v. State of Madhya Bharat (now Madhya Pradesh), (1961) AIR SC 1070 the impugned order is not sustainable in law. The learned counsel particularly referred to the portion of para No. 13 of the judgment, which reads as follows: "13. ... ... ...The departmental enquiry is not an empty formality; it is a serious proceeding intended to give the officer concerned a chance to meet the charge and to prove his innocence. In the absence of any such enquiry it would not be fair to strain facts against the appellant and to hold that in view of the admissions made by him the enquiry would have served no useful purpose. In the absence of any such enquiry it would not be fair to strain facts against the appellant and to hold that in view of the admissions made by him the enquiry would have served no useful purpose. That is a matter of speculation which is wholly out of place in dealing with cases of orders passed against public servants terminating their services." To further strengthen his submission, the learned counsel also submitted that following the same principle of law a Coordinate Bench of this High Court in Writ Petition (Civil) No. 7/2014, has also set aside and quashed the dismissal order of a Bank Officer and directed the Bank authorities to initiate fresh proceeding. 6. Mr. Zochhuana, learned counsel referred to Rule 1029 (e) of the Mizoram Police Manual, 2005 and submitted that withholding of increment with cumulative effect is a major penalty therefore, before such punishment is awarded, conducting of a departmental enquiry is a must as per Rule 1028 (3) of the same Manual. The provisions of the Manual referred to by the learned counsel are reproduced herein below one after the other: "1029. Classification of Punishment: Penalties are divided into (1) Major and (2) Minor Penalties. (1) Major Penalties include: - (a) ... ... ..... (b) ... ... ..... (c) ... ... ..... (d) ... ... ... (e) Withholding increment with cumulative effect. 1028. General Instruction: 1. ... ... ... . 2. ... ... ... . 3. No major punishment shall be imposed on a Police Officer unless Departmental Enquiry have been conducted against him." After having referred to the above given provisions of Mizoram Police Manual, the learned counsel submitted that the punishment of withholding increment with cumulative effect being a major punishment, such punishment cannot be awarded against any Police Officer unless departmental enquiry has been conducted against him. However, in this case, the enquiry though it was initiated was snapped at the stage of furnishing Article of Charge to the petitioner (Charged Officer) and the subsequent receipt of the so called letter of admission of the charge from the petitioner. Therefore, provisions of cwhich is mandatory has been violated or the enquiry is dehors the Rule as such, it is no enquiry in the eye of law. Therefore, provisions of cwhich is mandatory has been violated or the enquiry is dehors the Rule as such, it is no enquiry in the eye of law. In support of his submission, the learned counsel referred to the judgment of the Hon'ble Supreme Court passed in the case of Kulwant Singh Gill v. State of Punjab, (1991) Supp1 SCC 504 . The contents of the relevant para is given herein below: "5. ... ... ... Conducting an enquiry, dehors the rules is no enquiry in the eye of law. It cannot be countenanced that the pretence of an enquiry without reason- able opportunity of adducing evidence both by the Dept. as well as by the appellant in rebuttal, examination and cross-examination of the witnesses, if examined, to be an enquiry within the meaning of Rules 8 and 9 of the Rules." 7. Anticipating that an objection may be raised by the respondents on the ground that the petitioner should have approached the statutory appellate authorities, the learned counsel relied upon para 19 of Reference Case No. 1/2017 Young Lai Association & Anr v. State of Mizoram & 3 ors, which reads as follows: "19. Now coming to the next question as to whether such a claim can also be maintained in a writ petition, as already discussed above, claim of interest and solatium is a statutory right of the person interested and non-payment of such interest and solatium would be a failure on the part of the Collector to discharge statutory duty vested on him. If there is such failure on the part of the public authority in the discharge of statutory duty, certainly a writ Court would be well within its jurisdiction to issue a writ of mandamus to compel the public authority to discharge his statutory duty. The fact that alternative remedy is available under Sections 13(A) and 18 of the LA Act, 1894 would not debar the writ Court from exercising such jurisdiction in an appropriate case." 8. Ms. Mary L. Khiangte, learned Govt. Advocate for the State respondents submitted that because of the alternative remedy such as provided in the Mizoram Police Manual Rule 1045, this Court by self restrain may not entertain the writ petition. In support of her submission, the learned Govt. Ms. Mary L. Khiangte, learned Govt. Advocate for the State respondents submitted that because of the alternative remedy such as provided in the Mizoram Police Manual Rule 1045, this Court by self restrain may not entertain the writ petition. In support of her submission, the learned Govt. Advocate referred to the judgment of the Hon'ble Supreme Court passed in the case of Commissioner of Income Tax & Others v. Chhabil Dass Agarwal, (2014) 1 SCC 603 . The contents of the relevant para - para 11 are reproduced herein below: "11. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226." The learned Govt. Advocate further submitted that the petitioner has not made out a case that would justify his coming to this Court without first approaching the statutory appellate authority. Therefore, this case can be dismissed on that ground alone. The learned Govt. Advocate also submitted that the letter dated 12.10.2016 of the petitioner, addressed to the respondent No. 5 is a clear admission of guilt by the petitioner and that is the reason why the enquiry officer did not feel the need to go any further. And with such admission of guilt from the charged officer, no further enquiry was called for. Therefore, there is nothing wrong in the order impugned in the writ petition. 9. I have considered the submissions of both the learned counsels and I have also considered the contents and meanings of the provisions of relevant law referred to and the judgments cited by them. 10. Therefore, there is nothing wrong in the order impugned in the writ petition. 9. I have considered the submissions of both the learned counsels and I have also considered the contents and meanings of the provisions of relevant law referred to and the judgments cited by them. 10. There is no dispute on the fact that the enquiry contemplated was initiated but terminated at the very initial stage because of the contents of the letter dated 12.10.2016 of the petitioner (charged officer), addressed to the Superintendent of Police, Lunglei District. Though the letter can be termed as partly admitting the charge, it also contents certain explanations especially regarding his non-attendance of the training for the next two days. Therefore, the letter cannot be fully accepted as admission of guilt by the petitioner. For the nature of offence charged against the petitioner and the punishment contemplated and actually given, the enquiry should have proceeded further by giving the full opportunity of being heard to the petitioner (charged officer). Awarding major punishment to a government servant can lead to serious consequence in his or her service career. Therefore, it has been provided in the Mizoram Police Manual under that no major punishment shall be awarded to any Police Officer unless departmental enquiry is conducted. The words of the Rule clearly indicate that it is mandatory to conduct an enquiry before any major penalty is given. In other words, no major punishment shall be awarded unless a departmental enquiry is conducted. Initiation of the enquiry in this case cannot be termed as a full-fledged departmental enquiry, contemplated under the Rule. Therefore, the enquiry initiated against the petitioner as a result of which the impugned order was passed and the major punishment was awarded is dehors the Rules. Therefore, it cannot be sustained in law. 11. According to the principle of law enunciated in the case of Jagdish Prasad Saxena v. State of Madhya Bharat (supra), which still holds the field, a departmental enquiry is a chance to meet the charge and to prove his innocence for the Government Officer against whom a departmental proceeding is initiated or taken up. Therefore, to end or snap an enquiry as soon as it is initiated, on the ground that an admission has been made, that too, which lacks the quality of a clear or unambiguous admission of guilt, would be against such settled principle of law. Therefore, to end or snap an enquiry as soon as it is initiated, on the ground that an admission has been made, that too, which lacks the quality of a clear or unambiguous admission of guilt, would be against such settled principle of law. Further, as stated in the said judgment, departmental enquiry is not an empty formality, as such, it should be held and concluded as provided under the relevant Rule. 12. On the submission of the learned Govt. Advocate that in view of the availability of statutorily provided appellate forum, this Court by self restrain ought not to entertain the writ petition, I am of the view that this is a fit case where this Court can intervene in view of the facts and circumstances of the case as submitted by the learned counsel of the petitioner. It has been submitted by the learned counsel that due to the major punishment awarded to the petitioner, at least 4 of his juniors have been promoted to a higher rank. For a Government Servant, though promotion is an incident of service, it is something most look forward to. Therefore, it would be unfair if the petitioner is directed to approach the statutory appellate forum at this stage, which may further delay consideration of his case. It may so happen that while the matter is pending before the statutory appellate forum, the petitioner might again miss another opportunity to be promoted. In a discipline force, it is both humiliating and demoralizing for a person to be superseded by his juniors. As such, and as stated above, the case of the petitioner is a fit case for this Court to intervene under Article 226 of Constitution. 13. In view of the above discussion, conclusions drawn and the reasons given, the impugned order is quashed and set aside to the extent of the punishment awarded to the petitioner only. The respondents may proceed with the enquiry, if so adviced, by starting from where it was left and conclude the same within a period of 2 (two) months from the date of receipt of a certified copy of this order. Writ petition is accordingly disposed of.