Abujam Amuba Singh vs State of Manipur and Others

J.N. Sarma, J.—This writ application has been filed by an employee who was dismissed from service. The order of dismissal is at Annexure-A/4 and that is quoted below:

ANNEXURE-A/4

GOVERNMENT OF MANIPUR

OFFICE OF THE COMMANDANT 9TH BN

MANIPUR RIFLES.

ORDER BY THE COMMANDANT:

9TH BN MANIPUR RIFLES.

Karong, the 21st February, 1992.

No. b 2/4/92-9M.R.DE No.7/91-9 M.R/dated 13.12,91 was drawn against Rfn. No. 60818 A. Amuba Singh ''D'' Coy for his alleged misconduct and unauthorised absence while he was posted Maphou Post, he challenged the post Commander on 4.11.91 and he had remained absent for 10 days w.e.f. 4th to 19th November 1991. He had availed 4 days C/L from 16th to 19th November 1991 from which he 5th December 1991. Hence, he was placed under suspension and a regular D.E. taken up against him which was endorsed to Shri K.C. Lokho, A.C. 9 MR-Karong for enquiry. The EO on completion of inquiry submitted finding on 21st January, 1992.

The enquiry officer in his finding concluded that the charge levelled against the Rfn. was held proved I have gone through the findings minutely and carefully and of the view that retention of such character in the service is nothing but a liability last show cause notice was service to him accordingly on 31.1.92 giving him an opportunity to represent in his own defence. He had submitted a statement in this regard on 8th Feb 1992. However, his complanation for repeated absence is found to be inadequate and unreasonable. The most in discipline part in his profession is that he challenged the lawful orders of his post commander while posted at Maphou. If he is kept in the Bn. Other Jawans may give up him the habit of indiscipline.

Considering his long service in the Manipur Rifles Bn. I perused his service record. Since his joining as Rifleman in 6th M.R. he earned 19 punishments on offences of absence from duty, misbehaviours after consuming liquor. As such I stick to my earlier opinion of dismissing him from the service. He is, therefore, dismissed from service with immediate effect, All the Government properties issued to him shall be recovered from him and deposited at Bn. Store.

Certified that I am competent authority to award major punishment to the delinquent under the relevant provision governing the service condition of the Rifleman.

Certified that relevant provisions in AM part III were scrupulously followed in conducting the DE and in awarding a major punishment.

Sd/- Illegible Commandant 9th Bn. Manipur Rifles, Karong.

From the order it will be seen that the authority took into consideration his past conduct, but that was not told to the employee when the second show cause notice was issued. It is the requirement of law that when the authority wants to take into account the past conduct of the employee, he must be notified for it. If any authority is required for this proposition, one may have a look at State of Mysore Vs. K. Manche Gowda, where the Supreme Court in para 7 the law has been laid down as follows:

Under Art 311(2) of the Constitution, as interpreted by this Court, a Government servant must have a reasonable opportunity not only to prove that he is not guilty of the charges levelled against him, but also to establish that the punishment proposed to be imposed is either not called for or excessive. The said opportunity is to be a reasonable opportunity and, therefore, it is necessary that the Government servant must be told of the grounds on which it is proposed to take such action: see the decision of this Court in the State of Assam and Another Vs. Bimal Kumar Pandit, . If the grounds are not given in the notice, it would be well nigh impossible for him to predicate what is operating on the mind of the authority concerned in proposing a particular punishment he would not be in a position to explain why he does not deserve any punishment at all or mat the punishment proposed is excessive. If the proposed punishment mainly based upon the previous record of a Government servant and that was not disclosed in the notice, it would means that the main reason for the proposed punishment was withheld from the knowledge of the Government servant. It would be no answer to suggest that every Government servant must have had knowledge of the fact that his past record would necessarily be taken into consideration by the Government in inflicting punishment on him; nor would it be an adequate answer to say that he knew as a matter of fact that the earlier punishments were imposed on him or that he knew of his past record. This contention misses the real point, namely that, what the Government servant is entitled to is not the knowledge of certain facts but the fact that those facts will be taken into consideration by the Government in inflicting punishment on him. It is not possible for him to know what period of his past record or what acts or omissions of his in a particular period would be considered. If that fact was brought to his notice, he might explain that he had no knowledge of the remarks of his superior officers, that he had adequate explanation to offer for the alleged remarks or that his conduct subsequent to the remarks had been exemplary or at any rate approved by the superior officers. Even if the authority concerned took into consideration only the facts for which he was punished, it would be open to him to put forward before the said authority many mitigating circumstances or some other explanation why those punishments were given to him or that subsequent to the punishments he had served to the satisfaction of the authorities concerned till the time of the present enquiry. He may have many other explanations. The point is not whether his explanation would be acceptable, but whether he has been given an opportunity to give his explanation. We cannot accept the doctrine of "presumptive knowledge" or that of "purposeless enquiry", as their acceptance will be subversive of the principle of "reasonable opportunity.

So, this order of dismissal is bad on that ground.

The next submission of Mr. N. Kotishwor, learned Counsel for Petitioner is that this enquiry was absolutely a perfunctory one inasmuch as the Petitioner was not given his defence assistant as required under the law. The Petitioner herein read upto Class VII and was only a constable and he belongs to the lower rank in the service and such an assistance is to be given to him, and that has been consistently held by the court. If any authority is required for this proposition, one may have a look at (1996) 2 GLR 343 Phanindra Nath Sarma v. Union of India through the General Manager NF Railway and four Ors. wherein para 12 the court held as follows ;

As held by the Apex Court and as well as by the Division Bench of this Court that failure to provide the defence assistant to the delinquent employee is fatal. Further, the enquiry was conducted in curious manner. No doubt there was laches and negligence on the part of the Petitioner but when the authority wanted to take away the source of livelihood of a person it is reasonable and proper that the authority should have given a chance to the Petitioner to file his written statement but it is stated in the writ application that prayer was also rejected. Further it is not understood as to how and under what circumstances the statements of the Petitioner was recorded in the enquiry and the same was utilised in the enquiry. In a departmental enquiry the Petitioner is not bound to examine himself inasmuch as the burden is always on the authority to establish the charges brought as against the Petitioner but it is found that the statements recorded was utilised as against the Petitioner.

In AIR 1983 SC 450 Bhagat Ram v. State of Himachal Pradesh and Ors. the Supreme Court in para 6 has held as follows:

Where in a joint enquiry a class IV Government servant, a forest Guard, recruited either in late fifties or early sixties when the expectation of higher educational qualification for service as a forest Guard could not have been expected had to participate in disciplinary proceeding and was pitted against a Presenting Officer representing the disciplinary authority and a co-delinquent who was his superior being defended by another officer and three important witnesses out of five whose evidence was relied upon against the delinquent were examined before he became aware that he had a right to engage someone to defend him and availed of that opportunity when the Inquiry Officer had not recalled the 3 witnesses who were examined when the delinquent was personally present the enquiry must be deemed to have been vitiated.

Further the Supreme Court pointed out that in an enquiry where the department is represented by a Presenting Officer, it would be the duty of the delinquent officer, more particularly where he is a class IV Government servant whose educational equipment is such as would lead to an inference that he may not be aware of technical rules prescribed for holding inquiry, that he is entitled to be defended by another government servant of his choice. If the Government servant declined to avail of the opportunity, the inquiry would proceed. But if the delinquent officer is not informed of his right and an over all view of the joint inquiry of the delinquent and his superior officer shows that the deliquent Government servant was at a comparative disadvantage compared to the disciplinary authority represented by the Presenting Officer and a superior officer, Co-delinquent, is also represented by an officer of his choice to defend him, the absence of anyone to assist such a Government servant belonging to the lower echelons of service would unless it is shown that he had not suffered any prejudice, vitiate the enquiry. In fact, justice and fairply demand that where in a disciplinary proceeding the department is represented by a Presenting Officer, it would be incumbent upon the disciplinary authority while making appointment of a Presenting Officer to appear on his behalf simultaneously to inform the delinquent of the fact of appointment and the right of the delinquent to take help of another Government servant before the commencement of inquiry. At any rate the inquiry officer at least must enquire from the delinquent officer whether he would like to engage any one from the department to defend him and when the delinquent is a Govt. servant belonging to the lower echelons of service, he would further be informed that he is entitled under the relevant rules to seek assistance of another government servant belonging to department to represent him. If after this information is conveyed to the delinquent Government servant, he still chooses to proceed with the inquiry without obtaining assistance, one can say there is substantial compliance with the rules. That is what has happened in this particular case. The Petitioner here in read only upto Class VIE and that also in Manipuri language and the enquiry was conducted by the authority in english. So, it can be very well seen that the Petitioner suffered prejudice on this ground also.

Further it is a case of unauthorised absence. The backgrounds leading to the unauthorised absence are as follows:

The father of the Petitioner died on 10.11.91 and he was on leave from 4.11.91 to 13.11.91, 16.11.91 to 19.11.91. The period of overstay as will be seen froms charge is from 24.11.91 to 5.12.91 i.e. 12 days without even applying for leave or informing the competent authority. The whole of the charge is at Annexure-A/1 and that is quoted below:

Orders by the Commandant 9th Bn. Manipur Rifles Karong the 18th December, 1991.

No. B2/2/91-9MR Refn. No.60818 A. Amuba Singh of ''D'' Coy 9th Bn Manipur Rifles is placed under suspension with immediate effect for his gross indiscipline, absence from duty insubordination in that (1) while posted at Maphou out post he disobeyed the lawful orders of the post commander (2) absented himself from RHQ, Imphal from 4.11.91 to 13.11.91 i.e. 10 days without any leave or permission from the competent authority (3) cheated his senior officer in granting CL for 4 days w.e.f. 16.11.91 to 19.11.91 on the ground that his father expired during the relevant period but his father is still alive (4) overstayed his clause w.e.f. 24.11.91 to 5.12.91 i.e. 12 days without even applying or informing the competent authority.

A departmental enquiry will be initiated against the said Rfn. with Asst. Commandant Shri KC Lokhe as the enquiry officer.

During the period the Rfn. is under suspension only the subsistance allowance will be given to him.

Sd/- Illegible Commandant 9th Bn. Manipur Rifles, Karong,

Annexure-A/8 is the application dated 17th March, 1993 and that application reads as follows:

''To,

The Dy Inspector General of Police (Ops) Manipur, Imphal Subject: Request for reinstatement to the post

of Rifleman.

Sir,

I undersigned have the honour to draw your kind attention to the following few words for your kind consideration.

That unfortunately on the 11th Feb, 1991 I went to the my home, Mayang Imphal and I could not return on the same day, because my father has expired. Thus, I was compelled to stay at my home upto Swardha ceremony of late father and next day I came to the Battalion of 9th Bn. M.R. Manipur in the meantime I am told that I was not allowed to join my Bn. because of some day absence.

I beg to request you to excuse me this time and reinstate me to my former post. For which I shall ever remain grateful to you. Dated the 17th March''93.

Your faithfully Sd/-Illegible (A Amuba Singh) No. 60818.

Thereafter, he applied for leave vice Annexure-A/9 at page 20 to the writ application and that was duly received and it was forwarded to the Coy Commander. So, it will be seen that there was absence from duty because of the death of his father and because of the obligation of a pious son to go to Brindaban to perform the Shardh ceremony of his father. In such a situation, the authority should not have taken such a harsh view of the matter.

The law on this point was considered by the Supreme Court in Union of India and others Vs. Giriraj Sharma, There also the person overstayed for a period of 12 days, though while he was on leave he sent telegram for extension of leave which request was rejected and thereafter by holding a departmental enquiry his service was terminated. An appeal as well as revision was filed and that also was rejected. Thereafter writ application was filed before the High Court and that writ application was allowed. There was a direction to reinstate the Petitioner with all monetary and other service benefits and the Union of India preferred an appeal against that order. There also he was an employee of the CRPF. The Supreme Court pointed out that dismissal from service for such unauthorised absence which was not wilful was disproportionate punishment with the gravity of the offence and the Supreme Court in the facts and circumstances of that case directed the authority to give some minor punishment to the employee. That is a judgment by two Judges.

There is another judgment in (1995) SCC 749 BC Chaturvedi v. Union of India and Ors. wherein the Supreme Court in that case pointed out that the High Court or the Tribunal in exercise of the review power cannot normally interfere with the punishment imposed by the disciplinary or appellate authority except where it shocks the judicial conscience and in such a case, it can mould the relief directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases impose appropriate punishment with cogent reasons in support thereof. In the concurring judgment Hansaria, J opined that even the High Court can also modify the punishment to do complete justice instead of remitting back the matter again to the authority.

There is another case on this point reported in AIR 1992 SC 417 Ex. NK Sardar Singh v. Union of India and Ors. where an Army Jawan was sentenced for a period of 3 months R.I. for carrying illegally 11 bottles of Rum and 1 bottle of Brandy when he was on way for attending his sister''s marriage taking proper leave. On way he was arrested for carrying illegally the liquor bottles and he was put behind the bar and he was sentenced as mentioned above. Thereafter, his service was terminated by the authority as he was convicted by the court. Writ application was filed before the Delhi High Court and that was rejected. Thereafter special leave application was filed before Supreme Court and the Supreme Court admitted the application and quashed the order of termination holding that it was absolutely disproportionate punishment to the gravity of offence committed. The Supreme Court further found that the order of punishment by the Criminal Court itself was illegal inasmuch the army jawan had valid licence for purchasing of 11 btls. of Rum and 1 btl. of Brandy for celebration in the marriage ceremony of his sister.

The learned Counsel for Respondents, Mr. Th Ibohal Singh relies on State of U.P. and others Vs. Ashok Kumar Singh and anothers, wherein the Supreme Court pointed out that the question of showing leniency will not arise where a police constable absented himself from duty without leave on several occasions. The Supreme Court pointed out that delinquent being in service of disciplined force, it demands strict adherence to rules and procedure. There is no quarrel with this proposition of law. But that is not the position in hand as pointed out above, the Petitioner herein overstayed for a period of 12 days and that also under compelling circumstances because of the death of his father and the subsequent necessity to perform the religious rites of his father.

In view of that matter, the order of dismissal at Annexure-A/4 to the writ application shall stand quashed and set aside. The Petitioner shall be taken back in service within a period of 1 (one) months from the date of receipt of this order, but he will be entitled only to 25% of his backwages and the forfeiture of balance 75% shall be deemed to be adequate punishment.

The learned Counsel for Respondents further makes a submission that the Petitioner misbehaved with the superior officer. There is no charge to that effect. The only charge was that while he was posted at Maphou out post he disobeyed the lawful order of the Post Commander. But what was the lawful order he disobyed that was not mentioned in the charge. It is submitted that the misbehaviour of the Petitioner with the superior officer was established in the enquiry. I have gone through the enquiry report and I find that was taken into consideration without any charge. Further the finding in the enquiry report that he challenged the Post Commander on 4.11.91 is also based on no evidence and to that effect their is no charge and all these are extraneous matters taken into consideration by the disciplinary authority to punish the Rifleman. A disciplinary proceeding cannot be farce and/or mockery. Certain reasonable procedure must be adopted to punish a particular person. If procedure are laid down these procedures must be strictly adhered to as the disciplinary authority wants to take away the source of livelihood of a person. If any authority is required for this proposition, one may have a look at Ranjit Thakur Vs. Union of India (UOI) and Others, where the Supreme Court in Para 5 quoted a statement made by Frankfurter, J as follows:

The oft quoted Words of Frankfurter, J in Vitarelli. V. Seaton, 359 US 535 are again worth recalling" : if dismissal from employment is based on a defined procedure, even thouth generous beyond the requirements that bind such agency, that procedure must be scrupulously by observed...

This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword.

The history of liberty" said the same learned Judge" has largely been the history of observance of procedural safe-guards.1942 318 US 332.

In this particular case, that procedural safeguard was thrown to the wind and the authority adopted its own procedure according to its own whims, pleasure and sweet will. This cannot be allowed.

Heard Mr. N. Kotishwar Singh, learned Counsel for Petitioner and Mr. Th. Ibohal Singh, learned GA appearing on behalf of the Respondents. He has produced before me the whole record. I have gone through the record and I find that there was no adherence to the procedural safeguard as indicated above. Affidavit-in-opposition also has been filed on behalf of Respondents.

This disposes of this writ application with the directions and observations as indicated above.