Tsukjemwati Ao vs State of Nagaland and Others

Lanusungkum Jamir, J—The petitioner is a dismissed constable, driver of the 2nd NAP Battalion, Alichen, Mokokchung, Nagaland. The petitioner along with others were deputed to Delhi for a period of three years. The petitioner was assigned the duty of driving a Mahindra Pick Up to distribute food/ration to the jawans of NAP who were on duty at various parts of Delhi city. On 12-01-2009, the petitioner after completing his duty, returned to the camp at around 11:00 a.m. and on reaching the barrack, the petitioner heard some voices coming from the Deputy Commandant''s Office. He, therefore, went towards the office to inquire about the same where he saw a big mob of jawans arguing with the Deputy Commandant. The said mob allegedly assaulted the Deputy Commandant and also ransacked his office by way of breaking furniture etc. As such, the incident was brought to the notice of the Commandant 2nd NAP Battalion, Alichen by W.T. Message dated 12-01-2009. The said W.T. Message was followed up by another letter dated 14-01-2009 written by the Deputy Commandant to the Commandant 2nd NAP Battalion, wherein, a detailed report was made about the said incident. Another report was also made by the Deputy Commandant by a communication dated 17-01-2009. Thereafter, a preliminary inquiry was held and the Commandant 2nd NAP Battalion submitted its report on 27-01-2009. The respondent No. 3, thereafter, passed an order dated 19-02-2009 by which the petitioner was placed under suspension on disciplinary ground with effect from 19-02-2009. The respondent No. 3 again issued a memorandum dated 18-03-2011 proposing to hold an inquiry against the petitioner. The said memorandum was served to the petitioner along with a direction to submit written statement of defence within ten days after receipt of the memorandum. The said memorandum contained the statements of articles of charges and the statement of imputation of misconduct/misbehavior in support of the articles of charges. The petitioner submitted his written statement of defence denying the allegations levelled against him.

By an order dated 13-04-2011, the Inquiry Officer and the Presenting Officer was appointed. Thereafter, the departmental proceeding proceeded and the Inquiry Officer submitted his final report on 23-08-2011. On the basis of the inquiry report, the disciplinary authority passed the impugned order dated 18-08-2012, dismissing the petitioner from service with immediate effect. Being aggrieved, a statutory appeal was filed before the respondent No. 2 on 18-03-2013. The said appeal was disposed of by an order dated 08-04-2013 upholding the dismissal order issued by the disciplinary authority. Being aggrieved, the present writ petition.

I have heard Mr. Tongpok Pongener, learned counsel for the petitioner as well as Ms. S. Mere, learned Government Advocate appearing for the State respondents.

At the outset, the learned counsel for the petitioner submits that the present case is squarely covered by a judgment and order dated 17-10-2014 passed in W.P (C) No. 46 (K) of 2014 and therefore, he submits that the present writ petition be also disposed of in line with the judgment and order passed in the said writ petition.

This Court has considered the submission made by the learned counsel for the petitioner.

By the said judgment and order dated 17-10-2014 passed in W.P (C) No. 46 (K) of 2014, this Court on consideration of the entire facts and circumstances of the case has made the following conclusions:--

"13. The finding of the Enquiry Officer, therefore, that mere presence of the petitioner in the mob is sufficient to hold him guilty of the offence of the articles of charges of the present case cannot be said to be just, reasonable and sustainable. The finding of the Enquiry Officer, therefore, cannot be said to be based on materials on record.

Apart from the question as to correctness or otherwise of the findings recorded by the Enquiry Officer, it is conspicuous to note here that records of the disciplinary proceeding do not contain any evidence in support of the proposition that the Enquiry Officer provided any opportunity whatsoever to the writ petitioner to cross-examine the prosecution witnesses. The minutes of the proceeding also do not establish that the witnesses were examined in presence of the delinquent employees. This omission on the part of the Enquiry Officer are gross non-compliance of Rule 9 (6) of the Rules as well as the principles of natural justice and fair play. The inevitable conclusion is that disciplinary proceeding has been vitiated for non-compliance of the mandatory provisions of Rule 9 (6) of the Rules. The consequence of such finding is that the impugned order dated 18/08/2012 imposing punishment of dismissal on the writ petitioner and the appellate order dated 15/12/2012 are unsustainable in law. They are accordingly set aside."

I have also considered the inquiry report made by the inquiry officer and on consideration of the same, this Court is of the opinion that the discussions and the decisions made in W.P (C) No. 46 (K) of 2014 by judgment and order dated 17-10-2014 would also cover the present writ petition. Without discussing the entire facts and circumstances of the case, this writ petition is allowed by quashing and setting aside the impugned order 18-08-2012 by which the petitioner was dismissed from service with immediate effect by the disciplinary authority as well as the order dated 08-04-2013 passed by the appellate authority whereby the dismissal order issued by the disciplinary authority was upheld. Accordingly, it is directed that the petitioner shall be reinstated back into service forthwith along with all consequential benefits.

However, liberty is given to the respondents to initiate a fresh inquiry against the petitioner in accordance with law, if so advised. Such inquiry, if so initiated, shall commence from the stage of examination of witnesses. It is also made clear that in the event of initiating a fresh inquiry, the respondents are directed to complete such inquiry within a period of six months from the date of receipt of a certified copy of this order. If such inquiry cannot be completed within the stipulated period of six months, the inquiry shall automatically stand closed.

With the above directions, this writ petition is disposed of. No costs.