Shri Lokho Mao Vs. the State of Manipur. - Court Judgment

Excerpt:
[v.jagannathan j.] wp no.7220/2008 is filed under articles 226 and 227 of the constitution of india, praying to pronounce judgement against helwlett-packard globaslsoft private limited. for having continuously disobeyed the orders of the labor court to file its objection statement, within the time fixed by the honorable labor court, as per the order vffl, rule 10 of the code of civil procedure 1908. wp no.2109/2009 is filed under articles 226 and 227 of the constitution of india, praying to direct the management of the hewlett packard global soft private limited, to grant petitioner ks.e:oq,oc,000/- for causing enormous amount of exhaustion & hardship to 'my life11 for months together, with its deceitful offences. wp no.10816/2003 is filed under articles 226 and 227 of the constitution.....1. heard mr. l. sarat sharma, learned counsel for the petitioner and mr. th ibohal singh, learned senior g. a., manipur. 2. the hearing of the case was concluded on 16. 9. 2010 with a direction to the learned sr. g. a., manipur, to submit the relevant file to the court through the bench clerk within three days. no file, as directed by the court has been submitted despite lapse of two weeks. 3. facts which are relevant for disposal of this writ petition as ascertained from the records and pleadings of the parties may be noticed as hereunder. 3(i) the petitioner who belongs to mao naga tribe of manipur was appointed as rifleman no. 8510 in the 8th bn, manipur rifles, vide order dated 18. 11. 87. it is stated that the petitioner was absent from duty for four days with effect from 31. 12......

Judgment:
1. Heard Mr. L. Sarat Sharma, learned counsel for the petitioner and Mr. Th Ibohal Singh, learned Senior G. A., Manipur.

2. The hearing of the case was concluded on 16. 9. 2010 with a direction to the learned Sr. G. A., Manipur, to submit the relevant file to the Court through the Bench Clerk within three days. No file, as directed by the Court has been submitted despite lapse of two weeks.

3. Facts which are relevant for disposal of this writ petition as ascertained from the records and pleadings of the parties may be noticed as hereunder.

3(i) The petitioner who belongs to Mao Naga tribe of Manipur was appointed as Rifleman No. 8510 in the 8th Bn, Manipur Rifles, vide order dated 18. 11. 87. It is stated that the petitioner was absent from duty for four days with effect from 31. 12. 1989 to 3. 1. 1990 and thereafter he reported for duty on 6. 1. 1990. The petitioner was again absent from duty for a period of seventeen days with effect from 6. 1. 1990 to 22. 1. 1990. The explanation given by the petitioner for the first instance, i. e., with effect from 31. 12. 1989 to 3. 1. 1990 is that he had an out -pass from the Guard Commander to enable him to participate and enjoy the celebration of Christmas and New Year day. Further explanation of the petitioner for the period from 6. 1. 1990 to 22. 1. 1990 is that he fell ill suddenly, thereby compelling him to take treatment of a recognised doctor and a certificate issued in this regard was submitted when he joined duty on 22. 1. 1990. However, on that day he was served with the termination order dated 22. 1. 1990 but without holding any enquiry whatsoever. The termination order which was issued by one Shri D. Mishra in his capacity as Commandant, 8th Bn. Manipur Rifles, is reproduced herein below:

ORDERS BY THE COMMANDANT, 8TH BN. MANIPUR RIFLES, LEIKUN.

Leikun, the 22nd January, 1990.

No. B2/8/86-8 MR: Whereas Rifleman No 8510 Lokho Mao absented from 31. 12. 90 to 3. 1. 90 and again from 6. 1. 90 to till date without leave or permission from the competent authority.

Whereas it is found that Rfm No 8510 Lokho Mao is a habitual delinquent having been punished in the past for a several misconduct which has not been able to improving.

Whereas Rfm No. 8510 Lokho Mao was appointed on 18. 11. 97 and is a temporary hand.

Rfm No 8510 Lokho Mao will be entitled to draw one months extra salary in lieu of one months notice as admissible under the rule and all the Government properties issued to him will be deposited to the quarter Master, 8th Bn. Manipur Rifles, Leikun.

Sd/ - D Mishra,

Commandant,

8th Bn. Manipur Rifles, Leikun.

3(ii) After the aforesaid termination order was issued, a representation dated 4. 2. 90 was submitted by the petitioner by enclosing medical certificates, stating therein that he was under treatment for malaria during the 2nd period of absence and this was followed by reminder applications dated 23. 3. 91,20. 6. 94 and 15. 9. 2001. As the Commandant 8th Bn. Manipur Rifles had not responded to any of the representations submitted by the petitioner for revocation of his termination order and reinstatement to service, the last representation was submitted to the Additional Director General of Police, Manipur, on 1. 10. 2010 and that too without any response. Having left with no other option, the petitioner approached this Court by filing WP(c) No 1900/2001 praying for a direction to the respondents to consider and dispose of the representations referred to above. This Court after hearing the learned counsel for the parties disposed of the aforesaid writ petition on 14. 12. 2001 by directing the Additional Director General of Police, Manipur and the Commandant, 8th Bn. Manipur Rifles, to consider the case of the petitioner and dispose of the representations within a period of one month from the date of receipt of the order, and a further direction was also given to communicate the results to the petitioner. In terms of the aforesaid order dated 14. 12. 2001 passed by this Court, the petitioner was informed by the office of the Additional Director General of Police (Law and Order), Manipur, vide communication No. D- 4/57/2001/ADGP (L/O) 5738, dated 20. 2. 2002 that the petitioner should submit a fresh representation in connection with his case for reinstatement along with relevant documents to the Deputy Inspector General of Police (Ops), Manipur, as he was the appellate authority in respect of the case of the petitioner. Pursuant to the aforesaid communication, the petitioner submitted his representation in the form of an appeal accompanied by all relevant documents to the Deputy Inspector General of Police (Ops), Manipur.

3(iii) After receipt of the memo of appeal from the petitioner, the Deputy Inspector General of Police (Ops), Manipur, who is the appellate authority as per the Assam Police Manual, passed an order dated 19. 9. 2002 rejecting the appeal of the petitioner. The aforesaid order dated 19. 9. 2002 issued by the DIG of Police (Ops), Manipur, Imphal, is reproduced herein below:

ORDERS BY THE DY. INSPECTOR GENERAL OF POLICE (OPS)

MANIPUR.

Imphal. The 19th September, 2002

No. -7/OPS/PHQ 2001/ Whereas, Ex. Rfm. No. 8510 Lokho Mao of MR. Leikun has preferred an appeal to the undersigned to re-enlist him to his former post of Rfm. Vide his letter dated 11. 3. 2002.

Whereas, the undersigned asked C. O 8 MR to furnish his parawise comment on the basis of the application along with other important records for review. Accordingly, C. O 8- MR submitted the necessary documents.

Whereas, on perusal of the comment submitted by the C. O. 8-MR along with the Service Book, it is seen that the Ex-Rfm. Was terminated from service under temporary service rule owing to his habitual act of absence from his place of posting without any leave or permission. Whereas, it is also observed that the appeal submitted by the Ex. Rfm is a time-barred and also that grounds given by him are unacceptable.

Whereas, to re-instate such person in service would tarnish the image of the force.

Now, therefore, I Shri D. Mishra, IPS, by virtue of the power vested in me by the relevant provisions of the A. P. Mannual Part-III hereby reject the appeal preferred by the Ex-Rfm. No. 8510 Lokho Mao of 8-MR Leikun. (D. Mishra)

Dy. I. G. of Police (Ops)

Manipur, Imphal

4. Aggrieved by the aforesaid order of the Deputy Inspector General of Police (Ops), Manipur, as extracted hereinabove, the instant writ petition has been filed by the petitioner substantially on the following grounds:

a) The maxim NEMO DEBET ESSE JUDEX IN PROPIASUA CAUSA? that the same person in a higher/appellate position cannot sit over his own order passed earlier in a lower post/post is applicable in the instant case inasmuch as Shri D. Mishra, DIG of Police ( Ops), Govt. of Manipur, considered and rejected the appeal filed by the petitioner against the impugned order of termination dated 22. 1. 1990 passed earlier by the same officer, namely Shri D. Mishra in his capacity as the Commandant 8th Bn Manipur Rifles and therefore, the impugned order dated 19. 9. 2002 to which the original order of termination dated 21. 1. 1990 has been merged, is liable to be set aside and quashed as not sustainable in law.

b)The impugned termination order dated 21. 1. 1990 was issued without holding any enquiry leave alone affording any chance of hearing to the petitioner and as such the same is in complete violation of the principle of natural justice and also in breach of procedural safeguards as provided under Article 311 (2) of the Constitution of India.

c)In addition to the above, it is also contended that Rule 66 of the Assam Police Manual, Part-III, which is adopted by the Governor of Manipur as a rule framed under the Indian Police Act, 1861, has not been followed while issuing the impugned termination order which was issued by invoking the provisions of the Central Civil Service (Temporary Service) Rules, 1965. In this regard, the petitioner has relied upon a judgment of this Court passed in WP(C) No. 1083/95 dealing with a similar situation wherein the termination of a Rifleman, who was constable under Assam Police Manual, by invoking the provisions of the Central Civil Service (Temporary Service) Rules, 1965, was held to be illegal as CCS (T. S) Rules, 1965 was not applicable in the service condition and disciplinary proceeding of a Rifleman/ Constable inasmuch as the Rule 66 of the Assam Police Manual alone holds the field on the subject matter.

5. The State respondents have filed an affidavit disputing and controverting the contentions of the writ petitioner. It is contended by the State Respondents in their affidavit that the petitioner was not confirmed in service at the time of termination. It is further contended that as the petitioner had served for two years two months and ten days only, he was a temporary hand who could be terminated by invoking Central Civil Service (Temporary Service) Rules, 1965. A plea has also been taken that the petitioner was absent from duty on earlier occasions with effect from 08. 01. 89 to 31. 01. 89, in addition to his absence from duty as reflected in the termination order and, therefore, his service was not satisfactory. As a result, the impugned termination order was issued by giving one months salary in lieu of one months notice. It was also contended that the termination order is termination simpliciter without showing any ground for punishment and, therefore, Article 311(2) is not attracted.

6. From the narration of facts and pleadings as discussed above, this Court will now consider and decide the issues raised by the parties. Firstly, it is a matter of record that the impugned termination order dated 22. 1. 1990 was issued by Shri D. Mishra in his capacity as the Commandant of the 8th Bn. Manipur Rifles and the same impugned termination order was examined, in a statutory appeal, by the same Officer in his capacity as the appellate authority i. e. DIG of Police (OPS) and thereby rejected the appeal. In this view of the matter, the maxim? NEMO DEBET ESSE JUDEX IN PROPIA SUA CAUSA? is squarely applicable in the case and in consequence thereto, the impugned orders are reiterated.

Mr. L. Sarat Sharma, learned counsel for the petitioner relied upon a decision of the Apex Court reported in (1996) 9 SCC 281 (Principal Commissioner (Taxation) v. Punjab and others) in support of his contention. In the aforesaid case, the Settlement Commissioner was the same person who sat over his own earlier order passed as Settlement Officer. The Apex Court held that the Settlement Commissioner cannot sit over its own earlier order passed as Settlement Officer in view of operation of the aforesaid maxim. However, in the aforesaid case, the Apex Court also observed that there can be no bar to examine the aforesaid order by the Settlement Commissioner in his revisional jurisdiction, if the order in question is sought to be revised. In view of the above position, the impugned termination order dated 19. 9. 2002 to which the original termination order dated 22. 1. 1990 has already been merged, is liable to be set aside as not sustainable in law.

7. There are specific averments in the writ petition that the impugned termination order dated 22. 1. 1990 was issued without holding any enquiry nor was any opportunity of hearing given to the petitioner at any point of time and as such, the impugned termination order dated 22. 1. 90 suffered from violation of the Principles of Natural Justice. This statement is not denied by the respondent and the only explanation given by the respondents is that the petitioner was a temporary hand and it was a termination simpliciter. A bare perusal of the impugned order dated 22. 1. 90 as well the order dated 19. 9. 2000 would clearly go to show that it was not a termination simpliciter; it is termination byway of punishment on charges mentioned therein and, therefore, enquiry was necessarily required which was not done in this case. In order to find out from the records as what procedure was adopted by the authority, the learned Government Advocate was directed to produce the relevant records but despite lapse of two weeks from the date of conclusion of the judgment, the record was not produced and therefore, the Court is to presume that no enquiry, whatsoever, was held and the averment of the petitioner stands substantiated. On this count also the impugned order of termination is liable to be quashed. Further, if a probationer is not discharged in the manner provided by law, he will definitely be entitled to the procedural safeguards as provided under Article 311(2) of the Constitution of India, as held by the Apex Courtin Chandra Prakash Shahi v. State of UP and others reported in (2000) 5 SCC 152. The procedural safeguards are not at all followed by the respondents in the instant case.

8. There is no dispute at the bar that Rule 66 of the Assam Police Manual Part III has already been adopted by the Governor of Manipur as a Rule framed under the Indian Police Act 1861 and in this regard, a notification dated 22. 9. 1983 was issued by the Home Department Govt. of Manipur. Rule 66 (II) of Part III has been amended and the same is reproduced herein below :

GOVERNMENT OF MANIPUR

SECRETARIAT: HOME DEPARTMENT.

ORDERS BY THE GOVERNOR: MANIPUR.

Imphal the 21st September, 1983

No. -13(1)/ 79/81-H:In pursuance of this Government Order No. 7/41/73-Pol (1) dated the 4/6th Sept. , 1974, the Governor of Manipur is pleased to order the modification to Rule 66 of the Assam Police.

Rule66-II of Part III of A. P. Manual.

A new sub-clause (a) (a) & (d) (d) be added as ?(a) (a) fine not exceeding 1/3 of the pay for Head Constables and above only and (d) (d) termination of service (in respect of temporary hands) and compulsory retirement (in respect of permanent hands as per rules)?.

Schedule to Rule 66 of Part-III of AP Manual.

Following punishments are to be added & treated as Minor punishment:-

(a)

(c)

(g)

(h)

By order in the name of Governor.

Sd/- Kh. Mohendro Singh

Under Secretary (H) Govt. of Manipur

9. According to the amended Rule, the termination of a temporary hand in Manipur Police has been statutorily declared as punishment and, therefore, imposition of any punishment ought to have been preceded by an enquiry as contemplated under Article 311(2) of the Constitution and not having done so, the impugned orders are also liable to be quashed on this count too.

10. As Rule 66 of the Assam Police Manual Part III has been adopted by the Governor as a Rule under the Indian Police Act, 1861 and the amendment thereto, the service condition and disciplinary proceeding of a Constable/Rifleman will necessarily be governed by Rule 66 of the Assam Police Manual Part III on the principle of occupied field and to the ouster of other service Rules. In this view of the matter, Central Civil Service (Temporary Service) Rules, 1965 is not applicable in the instant case and the earlier decision of this Court passed in CR 1083/95 is reiterated.

11. For the foregoing discussions herein above, the petitioner has been able to make out a case for interference by this Court. Accordingly, the impugned termination order dated 22. 1. 90 and the order dated 19. 9. 2002 passed by the appellate authority are hereby quashed and set aside as illegal and not sustainable in law. Consequently, the respondents are directed to reinstate the petitioner in service forthwith with all service benefits treating the period of his termination vide order dated 22. 1. 90 till the date of reinstatement as on duty for all purposes. However, considering the nature of the case, the back wages shall be limited to 25% of the pay and allowances which would have been entitled to the petitioner had he not been terminated illegally by the authority.

12. The writ petition stands allowed. There shall be no order as to costs.