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2021 DIGILAW 690 (GAU)

Lalhmingsanga v. State of Mizoram

2021-11-12

MICHAEL ZOTHANKHUMA

body2021
JUDGMENT : Michael Zothankhuma, J. 1. Heard Mr. B. Lalramenga, learned counsel for the petitioner and Mrs. H. Lalmalsawmi, learned Government Advocate appearing for the State respondents. 2. The petitioner being aggrieved by the imposition of the penalty of removal from service vide the impugned Order dated 14.10.2014 and the rejection of his appeal by the appellate authority on 13.11.2015 has approached this Court. 3. The case in brief is that the petitioner was appointed as a Constable in the Mizoram Police vide Order dated 25.07.2007. While serving as a Constable in the 3rd IR Battalion at Mangdalai, Assam, a departmental enquiry was initiated against the petitioner vide Memorandum dated 05.09.2014, wherein 4 (four) Articles of Charges were framed against the petitioner. 4. The statement of imputation of misconducts or misbehaviour in support of the Articles of Charges framed against the petitioner, as given in the Memorandum dated 05.09.2014 are as follows:- ARTICLE-I: C/347 Lalhmingsanga (u/s), 3rd IR Bn. while being detailed in Magazine Guard duty on 24.08.2014 @ 8:15 p.m. was found in a state of total drunkenness. He was taken for Medical examination and the Medical report clearly confirmed that he consume alcohol and was drunk. ARTICLE-II: C/347 Lalhmingsanga (u/s), 3rd IR Bn. was found assaulting his superior under the influence of liquor on 24.08.14 @ 8:15 p.m. while being detailed as Magazine Guard duty. He throttled his 2nd Commander Naik. Dinesh Shah and was stopped by the Guard Commander Hav. R.B. Gurung. He even threatened the two Commanders that he would kill them as soon as he would be released from the Quarter Guard. Hence, he was placed under suspension vide this Office Order No. 3IR/R-PF(ASM)/C-347/14/1827 dt. 27.08.2014. ARTICLE-III: C/347 Lalhmingsanga (u/s), 3rd IR Bn. was found absented from the Battalion Headquarters on 02.09.2014 while being placed under suspension and went outside the camp area without obtaining permission from the competent Authority. He even steals a dog from the civilian resulting to which the civilian pursued upto Unit Main Gate. However the situation was kept under control by Main Gate Commander Hav. R. Lalchungnunga and his men. He was produced before the Medical Officer for medical examination and the report confirmed that he consumed alcohol and was drunk. ARTICLE-IV: C/347 Lalhmingsanga (u/s), 3rd IR Bn. was found under total influence of liquor on 03.09.14 @ around 5:30 p.m. while being placed under suspension. R. Lalchungnunga and his men. He was produced before the Medical Officer for medical examination and the report confirmed that he consumed alcohol and was drunk. ARTICLE-IV: C/347 Lalhmingsanga (u/s), 3rd IR Bn. was found under total influence of liquor on 03.09.14 @ around 5:30 p.m. while being placed under suspension. He was produced before the Medical Officer of this Unit for medical examination and the report confirmed that he consumed alcohol and was drunk. His act and behaviour indicated that he was not trying to improve himself inspite of being given several chances to rectify himself by the authority. The above act and behaviour of C/347 Lalhmingsanga (u/s), 3rd IR Bn. amounts to a grave misconduct, subjecting him liable for punishment under section 91, Chapter-XI of Mizoram Police Act 2011 (Act No. 3 of 2012) r/w Rule No. 1029(1) & (2) of Mizoram Police Manual, 2005." 5. The petitioner thereafter submitted his written statement of defence dated 08.09.2014 against the Memorandum dated 05.09.2014 stating that he had received the Memorandum No. 3IR/R-PF(ASM)/C-347/14/1961 dated 05.09.2014 and that he admitted to all the charges framed against him. He also states that henceforth he would not do things which his superiors did not allow. He accordingly prayed that he should be forgiven for the mistakes committed by him. The interpretation of the petitioner's written statement of defence dated 08.09.2014, as made by this Court, is as follows:- "To, The Commandant, 3rd IR, Battalion, Mangaldai, Assam. Subj: Reply to your Memorandum Sir, I have seen the Memorandum No. 3IR/R.PF(ASM)-C-C 347/14/1961 dt. 5th Sept, 2014. I admit that I am in the wrong with respect to all the charges framed against me. Henceforth, I will not do things which are prohibited by my superiors. I beg your forgiveness and mercy with regard to the above. Dt. 8.9.2014 Yours faithfully, Sd/- C/347 (LALHMINGSANGA) 3 IR Mangaldai Hqrs. Assam." 6. Subsequent to the above, the Presenting Officer and the Inquiry Officer were appointed and the proceedings started in the departmental enquiry. The Inquiry Officer came to a finding that the charges framed against the petitioner were proved. The petitioner was thereafter given a copy of the Enquiry Report and asked to make a representation against the Enquiry Report. Assam." 6. Subsequent to the above, the Presenting Officer and the Inquiry Officer were appointed and the proceedings started in the departmental enquiry. The Inquiry Officer came to a finding that the charges framed against the petitioner were proved. The petitioner was thereafter given a copy of the Enquiry Report and asked to make a representation against the Enquiry Report. The petitioner was also informed about the proposed penalty of removal from service in accordance with Rule 1037 of the Mizoram Police Manual, 2005, to which the petitioner submitted a representation. After the same was considered, the petitioner was imposed with the penalty of removal from service vide the impugned Order dated 14.10.2014. 7. Thereafter, the petitioner filed WP(C) No. 84/2015 before this Court challenging the impugned Order dated 14.10.2014. This Court vide Order dated 01.09.2015 disposed of WP(C) No. 84/2015, holding that as there was an alternative remedy available for filing an appeal under Rule 1045 of the Mizoram Police Manual, 2005, the petitioner should approach the Appellate Authority by filing an appeal. The petitioner thereafter filed an appeal before the Appellate Authority and the same being rejected, he has approached this Court by way of the present writ petition. 8. Mr. B. Lalramenga, learned counsel for the petitioner submits that the fact of the petitioner being drunk on duty is not proved, even though the medical examination reports were made a part of the departmental enquiry. He submits that though the Doctor, who wrote the medical examination reports was of the opinion that the petitioner was drunk, the said Doctor was not examined during the departmental proceedings to prove the medical examination reports dated 24.08.2014 and 02.09.2014. In support of this submission, the learned counsel has referred to the judgment of the Apex Court in the case of State of Uttar Pradesh and Others Vs. Saroj Kumar Sinha, (2010) 2 SCC 772 and in the case of Roop Singh Negi Vs. Punjab National Bank and Others, (2009) 2 SCC 570 . 9. The petitioner's counsel also submits that the petitioner was examined by the Presenting officer instead of the Inquiry Officer. He also submits that in a departmental enquiry, the prosecution should first takes steps to lead evidence against the delinquent officer and thereafter give him an opportunity to cross examine the witness. 9. The petitioner's counsel also submits that the petitioner was examined by the Presenting officer instead of the Inquiry Officer. He also submits that in a departmental enquiry, the prosecution should first takes steps to lead evidence against the delinquent officer and thereafter give him an opportunity to cross examine the witness. He submits that as the petitioner was examined prior to the prosecution evidence being closed, there was serious infirmity in the departmental proceeding. In support of his submission the learned counsel has referred to the Judgment & Order dated 04.10.2013 passed by this Court in WP(C) No. 2031/2006, "Shri Nabin Mohan Vs. State of Assam & Others. 10. The learned counsel for the petitioner submits that while the petitioner was asked whether he would like to have a defence witness, the petitioner had replied that except for the allegation that he stole a dog from a civilian mentioned in Article-III of the charge memorandum, he did not need any evidence witness. He submits that the above answer given by the petitioner was not taken into consideration by the respondents and accordingly, the petitioner did not produce any defence witness in respect of the charge of stealing a dog in Article-III of the Memorandum of Charge. 11. The petitioner's counsel also submits that the petitioner had been confined to a Quarter Guard as can be seen from the statement of the witness Hav. Lalkanglova, who stated that:- "My particulars are as above. I have been posted in Assam since 16th February 2010. I am posted as BHM in the Battalion from 19th February 2009. On the night of 24th August, 2014, before 9:00 p.m., Hav. Jessie and I heard noise coming from the Magazine guard. When we went there, DO TK Siama and CHM Zodingliana were there, they were asking C/347 Lalhmingsanga some questions. When we approached I think C/347 Lalhmingsanga was drunk. He was on Guard Duty. Mr. T.K Siama and Mr. Zodinga informed the Adm. C/347 Lalhmingsanga was medically examined and sent to the Quarter guard. On 2.09.2014 C/347 Lalhmingsanga went outside without permission. He had a problem regarding Dog and the Gate Commanders in fear of further problems did their best to avoid trouble, and manage to help him clear his trouble. Since he went outside without permission and there was danger of conflict with the civilians the ADM was informed of the matter. On 2.09.2014 C/347 Lalhmingsanga went outside without permission. He had a problem regarding Dog and the Gate Commanders in fear of further problems did their best to avoid trouble, and manage to help him clear his trouble. Since he went outside without permission and there was danger of conflict with the civilians the ADM was informed of the matter. As C/347 Lalhmingsanga was believed to be drunk, he was medically examined, after which the intoxication was proved and because of which he was sent to the Quarter Guard. He was sent to the Quarter Guard for going outside without permission and intoxication." The petitioner's counsel submits that as confinement to the Quarter Guard is a minor punishment under Rule 1034 of the Mizoram Police Manual, 2005, the petitioner could not have been punished again by way of removal from service, by way of the disciplinary proceeding initiated against him. 12. The petitioner's counsel submits that though the respondents issued a show cause notice to the petitioner with regard to the contemplated major punishment to be imposed upon him and though the petitioner had submitted a representation against the same, the representation was not considered by the respondents. 13. The petitioner's counsel submits that besides the above grounds of challenge made to the impugned order of removal passed by the respondents, the evidence taken during the departmental proceeding were perfunctory in nature and that there was a contradictory report with regard to the date when the petitioner was alleged to have been drunk. He submits that as per Article-IV of the Memorandum of Charge, the petitioner was alleged to be drunk on 03.09.2014, while the medical examination report stated that the petitioner was drunk on 02.09.2014. He accordingly submits that the discrepancy in the above dates clearly proved that the petitioner could not have been drunk on both dates. He also submits that the petitioner was not allowed to cross examine the witnesses. 14. The petitioner's counsel also submits in the alternative that the penalty imposed upon the petitioner was disproportionate to the offence and accordingly a lesser punishment should have been imposed upon the petitioner. 15. Mrs. H. Lalmalsawmi, learned Government Advocate appearing for all the respondents submits that the petitioner was informed of his right to have a defence witness at the time of preliminary hearing. 15. Mrs. H. Lalmalsawmi, learned Government Advocate appearing for all the respondents submits that the petitioner was informed of his right to have a defence witness at the time of preliminary hearing. However, the petitioner stated that he did not find it necessary to have a defence witness. She also submits that at the time of preliminary hearing, the petitioner admitted to all the charges framed against him except for Article-III, where he was alleged to have stolen a dog and left camp during his suspension without any permission being given. She also submits that the petitioner was given full opportunity to cross examine the witnesses, which he had declined to do. She submits that as there has been an admission of the charges by the petitioner, there is no infirmity with the decision of the State respondents in removing the petitioner from his service. 16. Mrs. H. Lalmalsawmi, learned Government Advocate also submits that the date 03.09.2014 appearing at Article-IV of the Memorandum of Charge is a typographical mistake and the same should be read as 02.09.2014. 17. I have heard the counsels for the parties. 18. The petitioner, being a member of a disciplined force is expected to be governed by a high standard of discipline. The first Article of Charge is with regard to the petitioner being found in a state of total drunkenness while being detailed Magazine Guard on 24.08.2014. The second Article of Charge is that the petitioner was found assaulting his superior under the influence of liquor on the same date, i.e., 24.08.2014. The third Article of Charge is with regard to the petitioner being absent from the Battalion Headquarters on 02.09.2014 while being placed under suspension. He had gone outside the camp area without obtaining permission from the Competent Authority and was alleged to have stolen a dog from a civilian, due to which the civilian apparently pursued the petitioner upto the Main Gate of the Battalion. He was again found drunk on medical examination. The fourth Article of Charge against the petitioner is that he was found to be drunk under the influence of liquor on 02.09.2014. 19. As is clear from the pleadings and the records, the petitioner has admitted to being guilty in respect of all the 4 Articles of charges framed against him. He was again found drunk on medical examination. The fourth Article of Charge against the petitioner is that he was found to be drunk under the influence of liquor on 02.09.2014. 19. As is clear from the pleadings and the records, the petitioner has admitted to being guilty in respect of all the 4 Articles of charges framed against him. The petitioner has only denied Article III of the charge memorandum, insofar as it relates to stealing a dog from a civilian. He has not denied the fact that he has been absent from the Battalion Headquarters on 02.09.2014, without obtaining permission from the Competent Authority and despite being under suspension. 20. In view of the admission by the petitioner in his written statement of defence and also in the departmental proceeding that he was guilty of all the charges framed against him, except for stealing of a dog, this Court does not find any reason to interfere in the departmental proceeding and the decision taken therein. However, as can be seen from the extract of the records, which are a part of the pleadings, the petitioner had been given full opportunity to cross examine witnesses, which he declined to do so, as he had accepted the truthfulness of the testimony of the witnesses. 21. The submission of the petitioner's counsel that the petitioner was examined by the Presenting Officer is not borne out by facts in view of Annexure-5 of the writ petition, which shows that the petitioner was examined by the Inquiry Officer. The submission made by the petitioner's counsel that the examination of the petitioner, prior to the prosecution evidence being closed is a serious infirmity is no doubt true. However, the petitioner has not been able to show as to how the same has prejudiced the interest of the petitioner, especially when the petitioner has admitted to all the charges sans the stealing of a dog from a civilian. 22. With regard to the contention of the petitioner's counsel that as the petitioner had been sent to the quarter guard on 24.08.2014 and 02.09.2014 and as such, the petitioner could not have been punished again by way of removal from service, this Court finds that the sending of the petitioner to the quarter guard on 24.08.2014 and 02.09.2014, as can be gathered from the statement made by the witness Hav. Lalkanglova, was that the same was not done in pursuance to any departmental proceeding, but was for the purpose of restraining him. As such, the confinement of the petitioner to the quarter guard on the two dates due to his intoxication cannot be said to be a minor punishment under Rule 1034 of the Mizoram Police Manual, 2005. 23. In the case of Roop Singh Negi Vs. Punjab National Bank & Ors., reported in (2009) 2 SCC 570 and in the case of State of U.P. & Ors. Vs. Saroj Kumar Sinha, reported in (2010) 2 SCC 772 , the Apex Court has held that an Inquiry Officer performs quasi judicial function and has to arrive at a finding upon taking into consideration the materials brought on record by the charges. It held that reliance placed upon documents which was not proved by witnesses could not be treated as evidence. 24. In the present case, though the Doctor who made the medical reports which states that the petitioner was drunk on 28.04.2018 and 02.09.2014 was not examined during the departmental proceeding, the petitioner has not denied the veracity of the said documents, besides having admitted to the charges framed against him with respect to his drunken state on the said dates. 25. In the case of B.C. Chaturvedi Vs. Union of India and Others, (1995) 6 SCC 749 , the Apex Court has held that the disciplinary authority is the sole judge of facts. It also held that the High Court cannot re-appreciate evidence. In the case of Lalit Popli Vs. Canara Bank and Others, (2003) 3 SCC 583 , the Apex Court has held that while exercising jurisdiction of Article 226, the High Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. 26. Keeping in view the judgments of the Apex Court in B.C. Chaturvedi (Supra) and Lalit Popli (Supra), this Court finds that there is no infirmity with the finding of guilt made by the Inquiry Officer in respect of the charges framed against the petitioner, especially when the petitioner has admitted the charges. It is also the view of this Court that there were no procedural errors while conducting the Departmental Proceedings. 27. It is also the view of this Court that there were no procedural errors while conducting the Departmental Proceedings. 27. In respect to the alternative prayer made by the petitioner's counsel that the penalty imposed upon the petitioner should be modified, as the penalty was disproportionate to the offence, it would be profitable to refer to the case of State of U.P Vs. J.P. Saraswat, 2011 4 SCC 545 , where the Apex Court has held that judicial review is permissible in very rare cases, where punishment is so disproportionate to the established charge, that it would appear unconscionable and actuated by malice. In the present case, the charges framed against the petitioner show that not only was he in a state of total drunkenness, he was also found assaulting his superiors. He throttled the 2nd Commander and even threatened the 2nd Commander that he would kill them as soon as he was released from quarter guard. He was also absent from the Battalion Headquarters, without obtaining permission from the Competent Authority during his suspension period. Keeping the above admitted facts in view, this Court does not find the punishment imposed upon the petitioner to be disproportionate. 28. In view reasons stated above, this Court does not find any reason to interfere with the impugned Order dated 14.10.2014, by which the petitioner has been removed from service. 29. The writ petition is accordingly dismissed.