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2022 DIGILAW 96 (MAN)

Pipa Yaima Dangshawa Maring v. State of Manipur

2022-06-03

LANUSUNGKUM JAMIR, SANJAY KUMAR

body2022
JUDGMENT Sanjay Kumar; CJ. - The unsuccessful petitioner in W.P(C) No.602 of 2018 is in appeal, aggrieved by the judgment and order dated 09.04.2021 passed by a learned Judge of this Court dismissing his writ petition. 2. Pipa Yaima Dangshawa Maring, the appellant, entered service as a Constable in the Manipur Police. He was promoted thereafter and became the Head Constable of the Commando Unit (CDO), Imphal East. While so, he was dismissed from service by the Governor, State of Manipur, in exercise of power under sub-clause (c) of the proviso to clause (2) of Article 311 of the Constitution, vide order dated 23.01.2018. Pursuant thereto, his name was struck off from the strength of the District Police, Imphal East District, Manipur, vide order dated 29.01.2018. These orders were assailed by him in W.P(C) No.602 of 2018. However, the learned Judge found no merit in his challenge and dismissed the writ petition. Hence, this appeal. 3. Heard Mr. Anjan Prasad Sahu, learned counsel for the appellant; and Mr. Athouba Khaidem, learned Government Advocate, appearing for the respondents. 4. Mr. Anjan Prasad Sahu, learned counsel, would argue that there was no valid material for exercise of power under sub-clause (c) of the proviso to Article 311(2) of the Constitution. He would point out that only the statements recorded under Section 161 Cr.P.C. were relied upon to draw an adverse inference against the appellant, leading to his dismissal from service without an inquiry, and contend that reliance placed upon such statements would be hit by Sections 25 and 26 of the Indian Evidence Act, 1872. Learned counsel would state that criminal proceedings are still pending as on date and contend that there was no necessity to exercise such drastic power against the appellant before culmination of those proceedings in an actual conviction. He would assert that the appellant must be presumed innocent till proven guilty and argue that the termination of his services without going through the normal procedure is wholly unsustainable in law. Per contra, Mr. Athouba Khaidem, learned Government Advocate, would point out that a Committee of Advisors looked into the material available and then recommended to the Governor, State of Manipur, that this was a fit case for exercise of power under the Constitutional provision. Per contra, Mr. Athouba Khaidem, learned Government Advocate, would point out that a Committee of Advisors looked into the material available and then recommended to the Governor, State of Manipur, that this was a fit case for exercise of power under the Constitutional provision. He would contend that there is no illegality in the termination of the appellant's services and assert that no grounds are made out for appellate interference. 5. Article 311 of the Constitution deals with dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State. It reads thus: 'Article 311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State - (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State, shall be dismissed or removed by an authority subordinate to that by which he was appointed. (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.' The first proviso is not of relevance presently. (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.' The first proviso is not of relevance presently. The second proviso to Article 311(2) is germane to this adjudication and it reads thus: - 'Provided further that this clause shall not apply - (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or (c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.' Article 311(3) provides that if, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final. 6. The ambit and contours of this provision are well settled, given the plethora of case law dealing therewith. The three clauses of the second proviso to Article 311(2) fell for consideration before a Constitution Bench in Union of India and another v. Tulsiram Patel [ (1985) 3 SCC 398 ]. The decision therein makes it clear that clauses (b) and (c) of the second proviso operate independently and in different spheres. The Bench pointed out that under clause (b), the satisfaction is of the disciplinary authority while under clause (c), it is of the President or the Governor of a State, as the case may be. Further, under clause (b), the satisfaction is with respect to it not being reasonably practicable to hold an inquiry, while under clause (c), it is with respect to it not being expedient in the interest of the security of the State to hold an inquiry. Further, under clause (b), the satisfaction is with respect to it not being reasonably practicable to hold an inquiry, while under clause (c), it is with respect to it not being expedient in the interest of the security of the State to hold an inquiry. The Bench pointed out that clause (b) expressly requires that the reasons for dispensing with an inquiry should be recorded in writing but clause (c) does not require it, either expressly or impliedly. The Constitution Bench also observed that the question, under clause (c), would not be whether the security of the State has actually been affected or not, as the expression used in that clause is 'in the interest of the security of the State' and it was pointed out that the interest of the security of the State may be affected by actual acts or even the likelihood of such acts taking place. The Bench further pointed that what is required under clause (c) is not the satisfaction of the President or the Governor that the interest of the security of the State is or will be affected but the satisfaction that in the interest of the security of the State, it is not expedient to hold an inquiry as contemplated by Article 311(2). The satisfaction so reached by the President or the Governor, per the Bench, must necessarily be a subjective satisfaction and the reasons for the satisfaction cannot therefore be required to be recorded in the order of dismissal nor can they be made public. As regards the remedies available to an aggrieved Government servant, the Constitution Bench held that an appeal or revision, as the case may be, would lie in the case of a dismissal falling under clauses (a) and (b) and in the event such a person invokes the Court's power of judicial review, it would be open to the Court to interfere if the penalty imposed is found to be arbitrary or grossly excessive or out of proportion to the offence committed or not warranted by the facts and circumstances of the case. 7. In Sardari Lal v. Union of India [ (1971) 1 SCC 411 ], the Supreme Court had held that the satisfaction of the President or the Governor under Article 311(2)(c) was his personal satisfaction and he himself must reach such satisfaction as delegation was not possible. 7. In Sardari Lal v. Union of India [ (1971) 1 SCC 411 ], the Supreme Court had held that the satisfaction of the President or the Governor under Article 311(2)(c) was his personal satisfaction and he himself must reach such satisfaction as delegation was not possible. However, this decision was overruled by a Constitution Bench in Samsher Singh v. State of Punjab [ (1974) 2 SCC 831 ]. It was pointed out therein that the President or the Governor would act upon the advice of the Council of Ministers and, therefore, it would not be necessary that the satisfaction must be personal to the President or the Governor, as the case may be. This legal position was affirmed in Tulsiram Patel (supra). 8. In A.K. Kaul and another v. Union of India and another [ (1995) 4 SCC 73 ], the Supreme Court observed that in a case where the validity of an order passed under clause (c) of the second proviso to Article 311(2) is assailed before a Court, it would be open to the Court to examine whether the satisfaction of the President or the Governor is vitiated by malafides or is based on wholly extraneous or irrelevant grounds, and for that purpose, the Government is obliged to place before the Court the relevant material on the basis of which satisfaction was arrived at. This decision indicates the scope of judicial review in a case pertaining to clause (c) of the second proviso to Article 311(2) 9. In Union of India and another v. M.M. Sharma [ (2011) 11 SCC 293 ], the Supreme Court again considered whether it would be necessary to disclose reasons in a case falling under clause (c) to the second proviso to Article 311(2). The High Court had held to that effect but the Supreme Court reversed the view and observed that it is not mandatory to disclose reasons as to why the President or the Governor, as the case may be, had arrived at the satisfaction that it was not expedient in the interest of the security of the State to hold a departmental inquiry. The original record was placed before the Supreme Court in that case and having perused the same, the Supreme Court noted that a High-Level Committee considered the entire record and came to the conclusion that action could be taken for dismissal under clause (c) to the second proviso to Article 311(2). The same was accepted by the President and thereupon, the order of dismissal came to be passed. 10. This being the settled legal position, it may be noted that Office Memorandum dated 16.08.2008 was issued by the Department of Personnel and Administrative Reforms (Personnel Division), Government of Manipur, setting out instructions apropos Government servants engaged in or associated with subversive activities and revising the procedure to deal with them. This Memorandum provided for a Committee of Advisors to be constituted, comprising the Chief Secretary, Government of Manipur; the Principal Secretary (Home), Government of Manipur; the Director General of Police, Manipur; the Secretary, Department of Personnel and Administrative Reforms; the Secretary (Law); the Secretary of the Department concerned with the case; and the Deputy Director General (SIB). This Committee was to decide first whether the allegations made against the employee should be disclosed to him and he should be given an opportunity to furnish his explanation or whether, on the grounds of security or the nature of the allegations made, it would not be advisable or necessary to disclose the allegations against the employee or to call for his reply. The Committee has to record its reasons as to the adequacy and veracity of the evidence available and makes its recommendation as to whether there is no case for taking action against the official or whether action may be taken for dismissal or removal from service under proviso (c) to Article 311(2) of the Constitution. If the latter recommendation is made by the Committee, then the same should be placed before the Home Department and then, the Minister-in-Charge of the Department concerned. In case the Minister-in-Charge agrees with the Home Minister, the Secretary of the said Ministry is to issue orders endorsing a copy of the order to the Department of Personnel and Administrative Reforms and the Home Department. In the event of disagreement between the Ministers, the matter is to be placed before the Chief Minister for final orders and then forwarded to the Governor, State of Manipur, for appropriate further orders. 11. In the event of disagreement between the Ministers, the matter is to be placed before the Chief Minister for final orders and then forwarded to the Governor, State of Manipur, for appropriate further orders. 11. In the case on hand, one Sapam Nanda Singh @ Maker and the appellant were arrested on 13.08.2017 during the morning hours and, thereafter, one Thingbaijam Sanjoy Singh, another Head Constable, was arrested in the evening on the very same day. Their arrests were made in connection with FIR No.252(8) 2017 SJM-PS under Sections 307, 506, 427 and 34 IPC; Section 20 of the Unlawful Activities (Prevention) Act, 1967, and Section 3 of the Explosive Substances Act, 1908. The case against these arrested persons was that they were involved in causing the explosion of an IED (Improvised Explosive Device) on 13.08.2017 at around 9.45 am near the electric transformer located at Naorem Leikai, Kakwa, Imphal West. Their statements were recorded and their disclosures revealed that they were about to undertake some more activities detrimental to the security of the State. Upon due investigation, the police found that the appellant was associated with an unlawful organization, despite being the member of a law enforcing agency, and opined that it would not be expedient to hold an inquiry against him in the interest of security. A proposal was made thereupon to the State Government in that regard. The matter was then placed before the Committee of Advisors constituted under the Office Memorandum dated 16.08.2008 for appropriate inquiry and recommendation. After considering the material placed before it, the Committee recorded its satisfaction that the appellant and Thingbaijam Sanjoy Singh, the other Head Constable, had willingly indulged in the activities of an unlawful organization and the same were prejudicial to the security of the State. The Committee opined that it would not be advisable to disclose the allegations against them or call for their replies and accordingly recommended their dismissal from service under sub-clause (c) of the proviso to Article 311(2) of the Constitution. The Governor, State of Manipur, accepted the recommendation and, in consequence, the dismissal order dated 23.01.2018 came to be issued. 12. On these obtaining facts, Mr. The Governor, State of Manipur, accepted the recommendation and, in consequence, the dismissal order dated 23.01.2018 came to be issued. 12. On these obtaining facts, Mr. Anjan Prasad Sahu, learned counsel, would also contend that recovery of incriminating material was effected from the residence of Thingbaijam Sanjoy Singh, the other Head Constable, basing on his statement recorded under Section 161 Cr.P.C., and assert that the same could not be attributed to the appellant herein. Perusal of the statement of Thingbaijam Sanjoy Singh, recorded under Section 161 Cr.P.C., reflects that this is a fact. 13. However, it is also a matter of record that the appellant and Sapam Nanda Meitei @ Maker were arrested on 13.08.2017 at 10.30 am, in the first instance, while Thingbaijam Sanjoy Singh, the other Head Constable, was arrested only at 5 pm on that day. The requisition for remand filed on 14.08.2017 by the Sub-Divisional Police Officer, Singjamei, before the learned Chief Judicial Magistrate, Imphal West, records this. It also reflects that after the explosion of the IED at Naorem Leikai, a search operation was launched and relying on inputs, Sapam Nanda Singh @ Maker and the appellant were arrested at 10.30 am on that day. It appears that, based on their disclosures, Thingbaijam Sanjoy Singh, the other Head Constable, stood implicated and he was finally picked up at around 5 pm on the same day, after a massive manhunt. On the strength of his disclosures, recovery of incriminating material was effected from his residence. The extract of the Case Diary in relation to FIR No.252(8) 2017 SJM-PS dated 14.08.2017 also reflected these facts. 14. The original record produced before this Court manifests that these documents, along with others, were placed before the Committee of Advisors and the Committee, at its meeting held on 25.11.2017, recorded its findings and recommendation, set out supra. The Note File reflects that the recommendation of the Committee was circulated to the Home Department, Government of Manipur, and was then forwarded to the Governor, State of Manipur, after the Chief Minister endorsed his signature thereon. The Governor, State of Manipur, thereupon affixed her signature on 28.12.2017, approving the recommendation. The dismissal of the appellant from service was conveyed by the Under Secretary (Home), Government of Manipur, vide the order dated 23.01.2018, leading to his name being struck off by the Superintendent of Police, Imphal East District, vide order dated 29.01.2018. 15. The Governor, State of Manipur, thereupon affixed her signature on 28.12.2017, approving the recommendation. The dismissal of the appellant from service was conveyed by the Under Secretary (Home), Government of Manipur, vide the order dated 23.01.2018, leading to his name being struck off by the Superintendent of Police, Imphal East District, vide order dated 29.01.2018. 15. At the cost of repetition, it may be noted that it is not necessary that the security of the State should actually be affected, as the expression used in the provision is: 'in the interest of the security of the State', and such interest may be affected by actual acts or even likelihood of such acts taking place [See Tulsiram Patel (supra)]. The Supreme Court also pointed out therein that what is required is only the satisfaction of the President or the Governor that in the interest of the security of the State, it would 'not be expedient' to hold the inquiry contemplated by Article 311(2) of the Constitution. 16. Significantly, in Union of India and another v. Balbir Singh and another [ (1998) 5 SCC 216 ], the Supreme Court observed that once there is 'some material' relating to the activity which is prejudicial to the security of the State, it would be sufficient to take recourse to Article 311(2)(c) of the Constitution. In that case, the respondent Sub-Inspector was, in fact, acquitted of criminal charges later, yet the order of his dismissal from service under Article 311(2)(c) was upheld. It is therefore clear that conviction or acquittal in criminal proceedings would have no substantial impact on the exercise of power under Article 311(2)(c) on the totality of the material which was considered by the authorities long prior to conclusion of the criminal trial. The Supreme Court further observed therein that, only if the Court finds that the circumstances on which the satisfaction of the President or the Governor is based have no bearing whatsoever on the security of the State, the order would stand vitiated by wholly extraneous or irrelevant considerations. 17. Applying that standard, it was upon the disclosures made by the appellant and Sapam Nanda Singh @ Maker, his co-accused, that the involvement of Thingbaijam Sanjoy Singh, the other Head Constable, came to light. Upon his arrest and disclosures, effective recovery of incriminating material was made from his residence. 17. Applying that standard, it was upon the disclosures made by the appellant and Sapam Nanda Singh @ Maker, his co-accused, that the involvement of Thingbaijam Sanjoy Singh, the other Head Constable, came to light. Upon his arrest and disclosures, effective recovery of incriminating material was made from his residence. This chain of events reveals that there was 'some material' to manifest the involvement of the appellant in subversive activities. Reliance was not placed only upon the confessions of the arrested persons and there was a clear indication of the involvement of the appellant from the unfolding of events on the fateful day. Sections 25 and 26 of the Indian Evidence Act, 1872, are therefore of no avail to the appellant. In the interest of State security, the final decision was taken by the Governor, State of Manipur, on the strength of the recommendation made by the Committee of Advisors, that it would not be expedient to hold an inquiry against the appellant and that he deserved to be dismissed from service outright. The order of the learned Judge upholding such dismissal, therefore, brooks no interference. The writ appeal is devoid of merit and is accordingly dismissed. The original record is returned to Mr. Athouba Khaidem, learned Government Advocate, in the open Court. In the circumstances, there shall be no order as to costs.