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2022 DIGILAW 150 (MEG)

Albert Suting v. State of Meghalaya

2022-06-07

H.S.THANGKHIEW

body2022
JUDGMENT 1. The writ petitioner is before this Court challenging the impugned order of termination dated 01.09.2016 whereby the petitioner was inflicted with major penalty of removal from service, pursuant to ex parte Departmental Proceedings. Against the order of termination, the petitioner had preferred a statutory appeal assailing the same on the ground of denial of opportunity of being heard which came to be dismissed by order dated 06.03.2017, affirming the findings of the Disciplinary Authority. In the course of hearing of the instant matter, the records of the said departmental proceedings were also requisitioned from the respondent authority. 2. As it appears from the pleadings and submissions that have been made on behalf of the petitioner, the main ground is the alleged denial of opportunity of hearing being afforded to the petitioner and consequently, contentions have also been raised as to the arbitrariness and irregularity in the proceedings, especially on the factum of service of show cause notice and non-supply of the enquiry report. 3. The respondents on the other hand have outlined the track record of the petitioner and have from the records endeavoured to show that there has been no denial of rights as alleged and that in fact, even after due notice, the petitioner voluntarily and with full knowledge did not participate in the said enquiry, and as such no prejudice has been caused. 4. Mr. K.C. Gautam, learned counsel for the petitioner submits that the proceedings against the petitioner was drawn up even before the stage of issuance of show cause notice, and an Enquiry Officer was appointed on 22.01.2016, prior to the issuance of show cause notice and statement of allegations dated 18.02.2016. He further submits that there is nothing on record to show that the showcause notice dated 18.02.2016, was ever served upon the petitioner. It has also been contended that even the newspaper publication dated 03.08.2016, directing the petitioner to appear was published after the completion of the enquiry, and a copy of the enquiry report was never served upon the petitioner. The learned counsel submits that the proceedings were vitiated on account of serious procedural lapses which has resulted in grave injustice being caused. The learned counsel submits that the proceedings were vitiated on account of serious procedural lapses which has resulted in grave injustice being caused. Reliance has been placed on the following judgments in aid of the petitioners' case, on the points of the essentiality the service of a show cause notice, the supply of documents and list of witnesses, apart from the appointment of an Enquiry Officer before commencement of the proceedings and the non-supply of the Enquiry Report. i) UOI v. Dinanath Shantaram Karekar (1998) 7 SCC 569 ii) State of Punjab v. V.K. Khanna (2001) 2 SCC 330 iii) State of Uttaranchal v. Kharak Singh (2008) 8 SCC 236 iv) State of U.P. v. Saroj Kumar Sinha (2010) 2 SCC 772 5. Mr. K.P. Bhattacharjee, learned GA for the State respondents in reply, has submitted that this is a case where the petitioner has voluntarily abandoned his duties/service, and this fact is clearly reflected from his long and un-authorized absence of a period of 807 days, which ought to be viewed strictly, as the petitioner is a policeman and a member of a disciplined force. It is also submitted that the petitioner has filed the instant writ petition by suppressing certain facts with a view to mislead this Court and that the records as produced will make it amply clear that the petitioner was afforded adequate opportunity which was not availed by him. 6. The learned GA submits that as per office records the petitioner on falling ill on 17.06.2014 was sent for medical check-up to the Civil Hospital, Jowai and thereafter was referred to Nazareth Hospital, Shillong as he was suffering from fatty liver, and after being referred, never reported for duty thereafter, nor did he make a single communication with his Department regarding his absence from duty, or make a single effort to resume his duties. It is contended that there was nothing that could have prevented the petitioner from re-joining his duties, or from informing his superior authorities, and the petitioner's absence of 807 days without any information, would by itself render the petitioner unfit to be retained in a disciplined service like the police force. 7. It is contended that there was nothing that could have prevented the petitioner from re-joining his duties, or from informing his superior authorities, and the petitioner's absence of 807 days without any information, would by itself render the petitioner unfit to be retained in a disciplined service like the police force. 7. The learned GA on the facts regarding the disciplinary proceedings, has taken this Court through the records to show that the petitioner has been repeatedly served with notices since 12.02.2015, asking him to report for duty, the receipt of the show cause notice dated 18.02.2016 and also a subsequent notice dated 30.05.2016 directing the petitioner to appear before the Enquiry Officer on 17.06.2016. He submits that witnesses were examined which corroborated the conduct of the petitioner and notices were even issued in the newspapers as the petitioner failed to make any appearance, which however failed to evoke any response from the petitioner. He lastly submits that there is no infirmity or irregularity in the proceedings, and in the context of the said proceedings, supply of the enquiry report, was inconsequential taking into account the refusal of the petitioner to participate or to respond to the repeated reminders. The learned counsel apart from distinguishing the judgments placed by the counsel for the petitioner has relied upon the case of Rajan Kumar Mitra v. Andrew Yule & Co. Ltd., & Ors. reported in (1997) 10 SCC 386 , where he submits it has been held that where a delinquent has chosen not to participate in the enquiry proceedings, he thereafter cannot assail his termination on merits. 8. I have heard learned counsels for the parties, considered their submissions, examined the materials on record, especially the records of the proceedings which has been produced before the Court by the respondents. This Court though not sitting in appeal over the findings of the Respondent authority, is concerned only in examining as to whether adequate procedural safeguards were adopted and whether natural justice has been violated as alleged and as such, while considering this matter had called for the records, as there were pointed contentions raised on the denial of opportunity being given to the petitioner. 9. 9. Without further alluding to the submissions and contentions raised on behalf of the parties, the examination of the records by this Court, especially of the Departmental Proceedings, has revealed as follows: i) After falling ill and referred to Nazareth Hospital on 17.06.2014, by order dated 01.12.2014, under the hand of the Commandant, it has been noted that till the said date, no information was received from the petitioner and his pay was sought to be withheld. (Exhibit IV) ii) On 19.01.2015, a notice was issued to the petitioner directing him to report back for duty within 7 days, the same was received by the petitioner duly signed on 12.02.2015 (signature marked as Exhibit-VI A in the proceedings). iii) On 13.10.2015, a second notice was issued asking the petitioner to report for duty failing which disciplinary action was contemplated. This notice as per the report has also been served upon the petitioner (signature marked as Exhibit-VII B in the proceedings). iv) 22.01.2016, order drawing up ex parte proceedings against the petitioner on failure to respond to notices duly served. v) 18.02.2016, a show cause notice along with statement of allegations issued, however, the fact that the show cause has been served cannot be conclusively established from the records. vi) 30.05.2016, notice issued directing the petitioner to appear before the Enquiry Officer on 07.06.2016 duly received by the petitioner on 31.05.2016 and again on 01.06.2016 (signature marked as Exhibit-X A, and XV A in the proceedings). vii) 07.06.2016 onwards statement of the PWs, eight in number were recorded and it is noted before each sitting, notices duly issued to the petitioner on 17.06.2016, received on 18.06.2016 (Exhibit-XVI A) 23.06.2016 received on 27.06.2016 (Exhibit-XX A). 22.07.2016 received on 27.07.2016 (Exhibit XXII). viii) Newspaper publications/notices dated 03.08.2016 directing the petitioner to appear within 5 days failing which the Departmental Proceedings which was initiated was to be disposed of ex parte. (Exhibit -XXV Shillong Times, and Exhibit- XXVI Mawphor, Vernacular daily) 10. The chronology of events as seen from the records show that the petitioner from the date of referral to the Hospital in Shillong i.e., 17.06.2014, remained in un-authorized absence and despite notices being issued to him from 2014 onwards, for reasons best known chose not to re-join his Battalion to resume his duties, nor did he make any attempt to justify his unauthorized absence. It is not a case where the proceedings were initiated behind the back of the petitioner or that he was un-aware, as he was in receipt of repeated notices during the pendency of the said proceedings. The respondents as noted, had even resorted to publication of a notice in a few prominent daily newspapers seeking his attendance which however, did not evoke any response from the petitioner. 11. The allegations of the petitioner as to the non-observance of the principles of natural justice and that the proceedings were highly irregular and not in accordance with law, are belied by his own conduct as evidenced from the records. Notwithstanding the fact that he may not have been in receipt of the show cause notice dated 18.02.2016, this alone cannot be taken in isolation to be a valid or a cogent ground to be considered sufficient to annul the proceedings or declare them invalid. A pertinent fact that cannot be overlooked is that the proceedings were held ex-parte, as the petitioner refused to respond even after being fully aware about the disciplinary proceedings and the consequences it would entail on his non-participation. The further ground taken that the enquiry report had not been supplied, is inconsequential in the facts of the present case and is of no relevance, as in the view of this Court, the petitioner by his actions had totally waived his rights in every respect to seek any other relief or to question his termination at this stage. 12. As observed by the Hon'ble Supreme Court 'one who seeks equity must do equity' and the petitioner being a member of a disciplined force, where the standards of behavior and conduct stand at a much higher plane than employees in other trades and professions, the relief as claimed therefore cannot be sustained. 13. For the foregoing reasons, and without further discussing or dwelling upon the facts or the decisions as cited by the counsels, this writ petition deserves no further consideration and is accordingly dismissed. 14. Parties to bear their own costs. 15. Registry to return the records to the learned Government Advocate.