WP(C)/309/2021 of LALRINMAWIA RALTE Vs STATE OF MEGHALAYA AND 2 ORS. on 24 July 2024

J U D G M E N T

1. It is the case of the petitioner that he was appointed in the policeforce of the Meghalaya Police as a BN Constable on 14.03.1996 and iscontinuing his service since then.

2. The petitioner while posted at the 1[st] Battalion of the MeghalayaPolice at Mawiong, Shillong in the East Khasi Hills was issued a noticedated 02.02.2021 by the Commandant, 1[st] Battalion, Meghalaya Policefor reportedly being found absent from General Roll Call w.e.f.15.12.2020 and was directed to report to the office of the Commandant.The petitioner was also made known that earlier, two notices, dated17.12.2020 and 08.01.2021, respectively were also issued upon him, buthe had no knowledge of such notices.

3. The petitioner in response to the notice dated 02.02.2021 thenreported to the office of the Commandant, 1[st] MLP, Bn. and resumedduty on 08.02.2021 where he was assigned guard duty at Covid-19Centre, Mawiong, Shillong.

4. The petitioner was then served with a show cause notice dated10.02.2021 under Rule 9 of the Meghalaya Services (Discipline &Appeal) Rules, 2011 read with Rule 66 of the Assam Police Manual Part-III as adopted by the Government of Meghalaya and Article 311 of theConstitution of India. He was called upon to response to the show causenotice wherein charges against him were indicated therein, including thecharge that he was found absent from General Roll Call w.e.f.15.12.2020 (AM) without any leave or permission from the competent authority.

5. In response to the said show cause notice dated 10.02.2021, thepetitioner filed his written statement dated 17.02.2021 wherein he hadexplained the reasons of his absence from duty for the said periodindicated.

6. However, the relevant authority, not being satisfied by his replyand explanation, then proceeded to draw up disciplinary proceedingsagainst the petitioner and Shri. E.B. Kyndiah, MPS, AssistantCommandant, 1[st] MLP Bn. was appointed as the Enquiry Officer toenquire into the allegations made against the petitioner.

7. The Enquiry Officer then proceeded to conduct the enquiry andon completion of the same, the findings were returned to conclude thatthe charges against the petitioner stands “Proved beyond reasonabledoubt”. Consequently, the competent authority then awarded the majorpunishment of “dismissal from service”, conveyed to the petitioner videNotification B.O. No. 2770, dated 19.05.2021 issued by theCommandant, 1[st] Battalion Meghalaya Police, Mawiong, Shillong.

8. The petitioner, not being satisfied with the said order ofdismissal dated 19.05.2021, preferred the statutory appeal before theDirector General of Police, Meghalaya Police on 05.08.2021 with aprayer for reconsideration of the dismissal order. However, the appellateauthority rejected his appeal vide order dated 11.08.2021.

9. Being highly aggrieved with the said order of dismissal fromservice dated 19.05.2021 and the dismissal of the appeal vide order dated11.08.2021, the petitioner has accordingly preferred this instant writ petition with a prayer to set aside and quash the aforesaid impugnedorders.

10. Heard Mr. S.A. Sheikh, learned counsel for the petitioner whohas submitted that the proceedings against the petitioner is vitiatedinasmuch as the proper procedure in accordance with the relevant ruleshas not been followed by the relevant respondents when the disciplinaryproceeding was initiated against him.

11. The learned counsel has submitted that Rule 9 of the MeghalayaServices (Discipline & Appeal) Rules, 2011 provides for procedure toimposed penalties. Under sub-Rule 2 of Rule 9 of the same it is providedthat whenever a disciplinary authority delivers the charges to adelinquent, a list of witnesses and documents is also required to beattached to the same to prove the charges so made. This provision ismandatory and any deviation from it would vitiate the entireproceedings.

12. It is the contention of the petitioner that the show causenotice/charge memo contains only the statement of allegations (article ofcharge) but did not contain the list of documents and witnesses. This is aviolation of the said provision of sub-Rule 2 of Rule 9 of the said 2011Rules for which the petitioner ought not to have been proceeded against.

13. In support of this contention, the learned counsel for thepetitioner has cited the following cases:-

i.Madhab Chandra Das v. The State of Assam & Ors., 1987SCC Online Gau 84, para 11, 13 & 16;SCC Online Gau 84, para 11, 13 & 16;

ii.Nazrul Islam v. State of Assam & Ors., 2013 SCC OnlineGau 745, para 12, 13, 14, 15 &16;

iii.Indrajit Sen v. State of Assam & Ors., 2015 SCC OnlineGau 579, para 23 & 24; and

iv.Shahjahan Ali v. State of Assam & Ors., 2018 SCCOnline Gau 2115, para 7, 10 & 11.

14. Yet another contention raised by the petitioner is that in thedisciplinary proceedings, no Presenting Officer was appointed to presentthe case on behalf of the Department, however, only the Enquiry Officerwas appointed who had himself put questions to the petitioner to elicitthe response from him. The Enquiry Officer had also himself examinedthe witnesses and proved the documents relied upon by the Departmentand thus the Enquiry Officer had acted as both the prosecutor and judgewhich is a clear violation of the relevant rules, regulations and norms. Infact, the petitioner was not even afforded the opportunity to appoint adefense assistant on his behalf which is again a clear violation of theaccepted norms.

15. It is the allegation of the petitioner that the witnesses on behalfof the Department, being four of them, were never examined by theEnquiry Officer in the presence of the petitioner who was asked by theEnquiry Officer to simply sign on the body of the pre-recorded statementof the said witnesses. Even the right to cross-examine such witnesses hasalso been denied to the petitioner, submits the learned counsel. The caseof Md. Fakhrul Islam v. State of Assam & Ors., 2017 SCC Online Gau983, para 11 was referred to by the petitioner to support the contention in this regard.

16. The learned counsel for the petitioner has also submitted thatthe rule of natural justice postulates the entitlement of the delinquentemployee to receive the copy of the enquiry report prepared by theEnquiry Officer who had submitted the same to the concernedauthorities. However, in this case, the petitioner was not supplied copy ofthe enquiry report to enable him to prepare his defense before anypenalty is imposed on him or to allow him to prefer an appeal before theappellate authority. It was only on his own effort by way of an RTIenquiry that the petitioner was able to obtain the relevant enquiry report.This has cause prejudice to the petitioner inasmuch as from the enquiryreport it is seen that the Enquiry Officer has relied upon severaldocuments to prove the charges against the petitioner, such documentswhich includes the alleged 1[st] notice (Exhibit-II) dated 17.12.2020 aswell as the 2[nd] notice (Exhibit-III) dated 08.01.2021, which according tothe petitioner have not been received by him and therefore the chargeNo. 2 “That inspite of issuing several notice in his address available inthe Service Sheet record, he failed to neither report nor resume hisduties” could not have been proved in the positive against the petitioner.The case Managing Director, ECIL, Hyderabad & Ors v. B. Karunakar &Ors., (1993) 4 SCC 727 para 26, 27, 28, 29, 30(i), 30(ii), 30(iii), 30(iv),57 & 61 has been cited in this regard.

17. The learned counsel has submitted that it is a well settledprinciple of law that the Enquiry Officer is not permitted to rely orcollect evidence or materials beyond the parameters of the articles ofcharge framed to come to a finding in the enquiry. However, in the impugned order of dismissal, the competent authority, that is, theCommandant 1[st] Bn, MLP has referred to the past records of thepetitioner to come to the conclusion that such records only confirmed thefact that the charges against him stands proved beyond reasonable doubtand thereby it is a fit case for imposition of a major punishment, whichis, dismissal from service. In making such observations and findings, thedisciplinary authority had gone beyond the findings of the EnquiryOfficer, which is not the proper approach.

18. The last contention of the petitioner is that the punishment ofdismissal from service is too harsh and disproportionate to the allegedoffence, the same being imposed without taking into account the lengthof service of the petitioner which is 24 years at the relevant time, and forthe alleged misconduct, even if major penalty is to be imposed, it couldwell be a direction for compulsory retirement. The case of KumudChoudhury v. State of Assam & Ors., reported in (2020) 3 GLR 244,para 10 & 11 has been cited in this regard.

19. Per contra, Mr. N.D. Chullai, learned AAG appearing for theState respondent has submitted that the fact that the petitioner wasdismissed from service was due to his unauthorised absence from dutyfrom 15.12.2020 to 07.02.2021 wherein in spite of three notices issued tohim, the first notice dated 17.12.2020 directing him to report for dutywent unheeded. It was only after the third notice which was issued on02.02.2021 did the petitioner resumed his duty on 08.02.2021.

20. The learned AAG has also submitted that this is not the firstoccasion where the petitioner was found to have been missing fromactive duty without any cause or intimation to the authorities concerned,

but in fact, he is a habitual absentee who have been found absent fromduty without obtaining prior permission or approval from the competentauthority on several occasions. For this, he has been punished with hispay being held up and leave without pay being awarded. The petitionerhas also committed indiscipline of various types for which fourdisciplinary proceedings were initiated against him. This would showthat he is a person unbecoming of serving in a police force. Therefore,the punishment that was meted out to him, that is dismissal from serviceis just and proper under the circumstances. The case of Maan Singh v.Union of India reported in (2003) 3 SCC 464, at para 11 was relied uponby the learned AAG to lay stress on this point.

21. The next contention raised by the learned AAG is that thepetitioner on receipt of the show cause notice consisting of the chargesalong with the statement of allegations framed against him, in his writtenstatement filed on 17.02.2021, the petitioner had categorically admittedthat he was absent without proper leave or permission from thecompetent authority. Even in his statement before the Enquiry Officermade on 22.03.2021, the petitioner had reiterated his admission that hewas absent from duty since 15.12.2020. Therefore, in view of suchadmission and in terms of the provision of Section 58 of the EvidenceAct, charges having been admitted were not required to be proved and assuch, it was not even necessary for the Enquiry Officer to go through themotion of the enquiry proceedings in the light of such admission of guilt.To support this point, the case of Chairman & Managing Director, V.S.P.& Ors. v. Goparaju Sri Prabhakara Hari Babu, (2008) 5 SCC 569, para16, 18 and 19, the case of Chairman-cum-Managing Director, Coal IndiaLimited & Anr. v. Mukul Kumar Choudhuri & Ors., (2009) 15 SCC 620, para 13 and 14 and the case of Channabasappa Basappa Happali v. Stateof Mysore, (1971) 1 SCC 1, para 5 have been cited.

22. In response to the contention of the petitioner that he was notsupplied with a copy of the enquiry report, the learned AAG hassubmitted that this is not a fact since the said enquiry report along withall relevant documents have been forwarded to the petitioner. In thisregard, the petitioner had himself admitted at para 9 of his petition thathe was in possession of the said enquiry report, copy of which has beenannexed as Annexure-9 to the petition. Even if the contention of thepetitioner that the enquiry report has not been receive by him, the learnedAAG has submitted that there are no pleadings that he is prejudiced bynon-receipt of such enquiry report. Non furnishing of enquiry reportwould not be fatal to the order of punishment, reiterates the learned AAGwhile citing the following cases in this regard:

i.State of U.P. v. Harendra Arora & Anr., (2001) 6 SCC392, para 12;392, para 12;

ii.Haryana Financial Corporation & Anr. v. KailashChandra Ahuja, (2008) 9 SCC 31, para 17, 20 and 21;Chandra Ahuja, (2008) 9 SCC 31, para 17, 20 and 21;

iii.U.P. State Spinning Co. Ltd. v. R.S. Pandey & Anr.(2005) 8 SCC 264, para 25; and(2005) 8 SCC 264, para 25; and

iv.Union Bank of India v. Vishwa Mohan, (1998) 4 SCC310, para 12.310, para 12.

23. Similarly, as regard the contention of the petitioner that he wasnot supplied with the list of documents at the initiation of the enquiry

Procedure

proceedings which has caused prejudiced to him, the learned AAG hassubmitted that as in the case of the earlier contention as regard thealleged non-supply of the enquiry report, here too, the contention of theState respondent is that the petitioner was duly supplied with all thedocuments relied upon by the respondent authority for conducting thedisciplinary proceedings against him. Even assuming that the saiddocuments have not been supplied, the petitioner has not pleaded anyprejudice in this regard as to how he was handicapped without the saidlist of documents. To answer this contention, the following cases havebeen cited:

i.Md. Rajab Uddin Ahmed v. Numaligarh Refinery Limited& Ors., (2005) 2 GLR 418, para 14;& Ors., (2005) 2 GLR 418, para 14;

ii.Motilal Cheran v. State of Meghalaya & Ors., (2006) 3GRL 17, para 11 and 12;GRL 17, para 11 and 12; iii.State Bank of India & Ors. v. Bidyut Kumar Mitra &Ors., (2011) 2 SCC 316, para 32; and Ors., (2011) 2 SCC 316, para 32; and

iv.Syndicate Bank & Ors. v. Venkatesh Gururao Kurati,(2006) 3 SCC 150, para 18.(2006) 3 SCC 150, para 18.

24. The last contention of the learned AAG in reply to the plea ofthe petitioner that he was not able to defend his case in a proper mannersince he is an illiterate person and was not aware of the procedurefollowed in the disciplinary proceedings and also that he was not allowedto be provided with the assistance of any Government servant or legalpractitioner is that the same is not a fact since the proper procedure wasfollowed by the Enquiry Officer and every possible opportunity was given to the petitioner to defend himself. Nothing in the service rulesapplicable to the petitioner provides for the assistance of a legalpractitioner to the charged officer in disciplinary proceedings, furthersubmits the learned AAG. In this respect, reliance is placed in the case ofTage Habung v. State of Arunachal Pradesh & Ors., (2003) 3 GLR 657,para 20 and 21 and also the case of D.G. Railway Protection Force &Ors. v. K. Raghuram Babu (2008) 4 SCC 406, para 9, 10 and 11.

25. This Court has taken note of the narration of facts andcircumstances of the case between the parties and the contention madeby the respective counsels in support of their case. Facts as stated aboveneed not be reiterated, except if required for the purpose of reference.

26. The petitioner in defence of his contention would seek toimpress upon this Court that the entire disciplinary proceedingsproceeded against him is vitiated inasmuch as proper procedure has notbeen followed as mandated by rules of law and procedure in this regard.

27. Certain instances in this regard have been cited, one being thatthe petitioner was not afforded opportunity to know the list of documentsand witnesses relied upon by the Department to prove the article ofcharges against him, such charges being mentioned in the show causenotice/charge memo which was issued upon him. The learned counselfor the petitioner would submit that Rule 9 of the Meghalaya Services(Discipline & Appeal) Rules, 2011 provides for such procedure andviolation of the same has rendered the entire proceedings against thepetitioner vitiated.

28. Another instance cited by the learned counsel for the petitioner

is that the disciplinary authority pressing the charges against thepetitioner has appointed an Enquiry Officer and in order to prove suchcharges, has also brought in four prosecution witnesses who have beenexamined and have also proved certain documents exhibited during suchproceedings. However, it is the contention of the petitioner that as ismandatory in such disciplinary proceedings that apart from the EnquiryOfficer, a Presenting Officer should also be appointed, no suchPresenting Officer was appointed and it was the Enquiry Officer himselfwho has put questions to the prosecution witnesses. No opportunity wasgiven to the delinquent officer to cross-examine the witnesses and thepetitioner was made to sign on the deposition without his consent.

29. Yet another anomaly in the whole process which is pointed outby the petitioner is that after the examination of the prosecutionwitnesses the Enquiry Officer had prepared the enquiry report but a copyof such enquiry report was not furnished to the petitioner before thepassing of the impugned dismissal order and as such, he did not get anyopportunity to controvert the findings of the Enquiry Officer.

30. The State respondent on the other hand, had countered theabove contention of the petitioner to say that it is on record that thepetitioner on receipt of the third notice dated 02.02.2021 that he rejoinedduty on 08.02.2021. Thereafter, he was issued with the show causenotice along with the statement of allegation on 10.02.2021. In reply tosuch show cause notice, the petitioner had filed his written statementdated 17.02.2021 on 19.02.2021 wherein in reply to the article of chargeNo. 1, that is as regard his absence from General Roll Call w.e.f.15.12.2020 without any leave or permission from the competent authority, he had admitted to the same though his explanation would bethat he was suffering from illness during the relevant period.

31. This Court has also perused the relevant record produced by theDepartment wherein is found the details of the disciplinary proceedingsagainst the petitioner. It is evident that the petitioner in his writtenstatement had indeed admitted to being absent from duty w.e.f.15.12.2020 and even in his statement before the Enquiry Officerrecorded on 22.03.2021 the same admission was reiterated. Nothing onrecord would show that the petitioner was coerced to make suchadmission, more so since as indicated, the admission is found in twoplaces, one in his written statement and the other in his statement beforethe Enquiry Officer. Of the cases cited by the respondent in this regard,the case of Chairman & Managing Director, V.S.P. (supra) at para 16 and18 reproduced herein below is found to be relevant as far as this point isconcerned:

“16. Indisputably, the respondent was a habitual absentee. He inhis explanation, in answer to the charge-sheet pleaded guiltyadmitting the charges. In terms of Section 58 of the IndianEvidence Act, charges having been admitted were not requiredto be proved. It was on that premise that the enquiry proceedingwas closed. Before the enquiry officer, he did not submit theexplanation of his mother being ill. He, despite opportunitiesgranted to report to duty, did not do it. He failed to explain evenhis prior conduct.

18. It was observed that judicial admissions can be made thefoundation of the rights of the parties.”

32. Again, the case of Chairman-cum-Managing Director, CoalIndia Limited (supra) at para 13 and 14 speaks of the same principle asfar as the issue of admission of charge is concerned. The said paras are also reproduced herein below as:

“13. It has been time and again said that it is not open to theHigh Court to examine the findings recorded by the inquiryofficer as a court of appeal and reach its own conclusions andthat power of judicial review is not directed against the decisionbut is confined to the decision-making process. In a case such asthe present one where the delinquent admitted the charges, noscope is left to differ with the conclusion arrived at by theinquiry officer about the proof of charges. In the absence of anyprocedural illegality or irregularity in conduct of thedepartmental enquiry, it has to be held that the charges againstthe delinquent stood proved and warranted no interference.

14. The Single Judge of the High Court in paras 43 and 44 ofthe judgment observed thus:the judgment observed thus:

“43. This Court is of the view that the so-called order dated29-11-2000 is a mere communication WITHOUTACTUALLY serving the original order of the disciplinaryauthority. Merely transmitting the decision of thedisciplinary authority was not sufficient since this was amatter involving the punishment of removal from serviceentailing civil consequences.” ”29-11-2000 is a mere communication WITHOUTACTUALLY serving the original order of the disciplinaryauthority. Merely transmitting the decision of thedisciplinary authority was not sufficient since this was amatter involving the punishment of removal from serviceentailing civil consequences.” ”

33. As to the contention that the enquiry report was never furnishedto the petitioner, the State respondent has countered this argument byciting the case of State of U.P. v. Harendra Arora (supra) and also thecase of Haryana Financial Corporation (supra) wherein the Hon’bleSupreme Court at para 12 of the former and at para 17 of the latter hasheld that non-supply of enquiry report would not be fatal to the order ofpunishment unless prejudice is shown. The facts of the case as admittedby the petitioner is that he had come in possession of the enquiry reportby way of an RTI enquiry and has therefore been able to file his appealagainst the impugned dismissal order dated 19.05.2021 issued on thebasis of the said enquiry report before the competent authority and assuch, the order of dismissal having been confirmed in appeal vide order dated 11.08.2021 (Annexure-11 to this petition), it is apparent that noprejudice has been caused to the petitioner as far as opportunity todefend his case is concerned.

34. On this one point, that is, the admission of the petitioner as tohis misdemeanor, the other issues and contention raised herein are notrequired to be discussed in detail. Consequently, the authorities cited andduly noted hereinabove, if not referred to by this Court, though relevantto the proposition of law indicated thereto, may not be required orapplicable to the facts and circumstances of this instant case.

35. In any case, in view of the categorical admission of the relevantcharges against him by the petitioner, this Court being in agreement withthe relevant authorities cited in this regard as applicable to the caseherein, is of the opinion that the petitioner has therefore not been able tomake out a case in his favour. Accordingly, this petition is herebydismissed as devoid of merits.

36. Registry is directed to send back the case record.

37. Petition disposed of. No costs.

Judge