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Judgment
N.S. Singh, J.—These 2 (two) writ petitions involved common question of facts and law and, as such, I propose to dispose of these 2 writ petitions with the following judgment and order upon hearing the learned Counsel for the parties.
In both the cases namely, Civil Rule No. 72 of 1995 and Civil Rule No. 73 of 1995, the writ Petitioners 7 (seven) in numbers had questioned and challenged the validity of the impugned dismissal order dated 15th November, 1994 bearing No. 9/3(15)/94-H as in Annexure-A/1 to the writ petition by contending inter alia, that action of the competent authority dismissing the Petitioners are quite arbitrary, capricious, wrongful, malafide and unconstitutional. Mr. A. Bimol Singh, learned Counsel appearing for the Petitioners contended that there is no misconduct whatsoever on the part of the Petitioners and on account of the circumstances of the case beyond their control, no inference of their guilty or misconduct can be spelled out to deserve the harsh penalty of dismissal from service; rather the Governor of Manipur had not applied his mind at or before the time of issuing the impugned order; that there is no tenable or plausible reason recorded in writing for the satisfaction of the competent authority that Clause (c) of the Article 311(2) of the Constitution of India was applicable so as to justify the inquiry being dispensed with and the imposition of the gravest penalty contemplated under the Service Jurisprudence and that there were several earlier instances in which service arms and ammunitions had been snatched away by the insurgents, terrorists and other underground militant groups in the past from (and by overpowering) the security personnel including the members of the Manipur police Department, the Army and the paramilitary forces, under circumstances similar to those of the occurrence of 5th November, 1994 resulting in the dismissal of the writ Petitioners but those personnel involved in those earlier instances have not been visited with any major penalty without the inquiry and, as such, the order of dismissal of the writ Petitioners from their services in invidiously discriminatory and contravenes Articles 14 and 16 of the Constitution of India. It is also urged by the learned Counsel that the Constable No. 1598 Md. Mafizuddin, who is very much involved in the incident of 5.11.1994 and similarly situated with the writ Petitioners has been spared of the major penalty while the Petitioners have been dealt with very severely in a discriminatory manner and on a misconception of the facts and circumstances of the similar incidents and in view of the above position, the impugned dismissal order is merely based on surmise and conjectures thus, violating the principles of natural justice. The learned Counsel further argued that the concerned authority while issuing the impugned order of dismissal has not at all taken into its consideration the human limitations and did not consider the considerable length of dedicated and dutiful services rendered by them while dealing with them in relation to the fateful/unfortunate incident. It is further submitted by the learned Counsel appearing for the Petitioners that there is no material on record or no evidence for invoking the extra ordinary power of the competent authority as required under Clause (c) of the Article 311(2) of the Constitution of India and, as such, the impugned order of dismissal deserves to be quashed and the Petitioners should be allowed to work and serve in their respective post/posts as usual with all service benefits including prior/back salaries because of the fact that it was beyond their power that when the armed militants overpowered them with heavy arms and large numbers of militants. The learned Counsel further contended that it was not the dereliction of the duty on the part of the Petitioners as the writ Petitioners were overpowered by large numbers of militants with huge arms including sophisticated arms.
At the hearing Mr. Ibohal Singh, learned Additional Govt. Advocate representing the State Respondents contended that these writ Petitioners ought to have discharged their duties sincerely, lawful, loyally and diligently and, in such situation and unforeseen circumstances they ought to have made utmost resistance in order to control those militants and, apart from it, they neither raised any hue and cry nor did they inform immediately the C.R.P.F. personnel detailed at nearby location i.e. to the next door, to give the good reply from their and in the interest of the security of the public but these Petitioners did not discharge their lawful duties. In view of the above position, there writ Petitioners had been afforded major punishment, like dismissal from services and, as such there is no infirmity in the related impugned order of dismissal Mr. Ibohal Singh, learned Additional Govt. Advocate contended. 4. The learned Additional Govt. Advocate also argued that the Petitioner No. 1 was a Guard Commander at the relevant time; and the other Petitioners Nos. 2, 4, 5, and 6 were detailed for sentry duties at the Kote of Police Reserve Line on 5th November, 1994 and the Petitioner No. 3 was also attached to the police Reserve Line and he was also present on 5th November, 1994 and, apart from it, the Petitioner in Civil Rule No. 73 of 1995 namely Shri Y. Ibopishak Singh was acting as a Reserve Officer under the related order of 15th January, 1994 at the relevant time and because of their complete lack of supervision and duties, they are responsible for snatching the arms and ammunitions from their custody and, accordingly, the Governor of Manipur considered the fact, situation and materials placed before him and he was satisfied that in the interest of security of the State it was not expedient to hold an inquiry against the Petitioners and, accordingly, the Governor of Manipur in exercise of the powers conferred upon him under Article 311(2)(c) of the Constitution of India dismissed the Petitioners from their services rightly. So far the case of Constable No. 1598 Mr. Mafizuddin is concerned, he was posted to police Reserve while he was engaged as literate constable during office hours but he was not engaged in the Police Reserve Line, Tamenglong for sentry duty at the relevant time and, as such, no action was called for the rather, there is no infirmity in the impugned dismissal orders Mr. Ibohal Singh, learned Addl. Govt. Advocate argued.
Now, this Court is to see and examine as to whether the present writ Petitioners have enforceable legal rights in the instant case or not, and whether this impugned dismissal order was issued/passed by the competent authority in accordance with the provisions of law laid down under Article 311(2)(c) of the Constitution of India or not.
It is an admitted position that the Petitioner No. 1 in the main Civil Rule No. 72 of 1995 had been serving as Head Constable in the Manipur Police Department for a numbers of years till the time of his dismissal from service on 15.11.1994 and, likewise, the other writ Petitioners had been rendering their services for a numbers of years till the time of their dismissal from their respective services. It is also not disputed that at about 7.30 p.m. of 5.11.1994, about 2 (two) dozen unknown youths believed to be underground anti-social desperados who were armed with sophisticated fire-arms sneaked into the Reserve Line, which had then no fencing and they suddenly overpowered the sentry on duty and other Police personnel including the Petitioners in Civil Rule No. 72 of 1995 and one other constable No. 1598 Md. Mufizuddin (though disputed by the State Respondents about his presence) and they tied their hands with ropes and snatched away all the arms and ammunitions deposited in the said Kote by breaking the lock and key of the door and, soon after the desperados had departed with the looted articles, some of the Petitioners went to the Reserve Officer. Y. Ibopishak Singh, S.I. of Police who is the writ Petitioner in Civil Rule No. 73 of 1995 and informed him about the incident and latter inspected the Kote and then lodged a report promptly with the O/C, Tamenglong Police Station about the commission of crimes by the desperados and also sent various messages to all the concerned authorities of the police C.R.P.F. and Army and a case being F.I.R. No. 67(11)94/TML P.S. under Sections 382/457/121-6/34 IPC was registered against the unknown criminals which has been under investigation by the O/C, Tamenglong P.S. It is also a fact that at the relevant time of the incident/occurrence, the senior police officers like the S.P., S.D.P.O. and Ors. were not present at the District Headquarter, Tamenglong but only Shri Y. Ibopishak Singh, the Reserve Officer, S.O. of Police i.e the sole writ Petitioner in Civil Rule No. 73 of 1995 was then at the said District Headquarter as his official quarter is lying about 800 feet away from the said Reserve Line. It is also not disputed that there were several earlier instances in which arms and ammunitions had been snatched by the terrorists/insurgents and other underground antisocial elements from and by overpowering the security personnel including the members of the Manipur Police Department; but they have not been visited with such major penalty without due inquiry but the Petitioners were dismissed from service under the impugned order and they have been discriminated inviously even though the State Respondents urged and contended in paragraph 11 (in Civil Rule No. 72/95) and paragraph 9 (in Civil Rule No. 73/95) of the counter affidavit that such statement and plea taken by the writ Petitioners suffered from vagueness and, as such, no specific comment is called for. In my considered view, to such a statement and plea so far taken and made by the writ Petitioners; the state Respondents ought to have made specific reply so such statement and plea of the writ Petitioners and, as such, I am of the view that the statements made by the writ Petitioners in paragraph No. 8(4) (in Civil Rule No. 72/95) and paragraph No. 10(4) (in Civil Rule No. 73/95) shall be treated as correct and genuine statement with the reasons enumerated in the following paragraphs.
So far the case of the constable No. 1598 Md. Mafizuddin is concerned, according to the State Respondents he was posted at the police Reserve Line and engaged as Reserve Officer as a literate constable during office hours but he was not engaged in the police Reserve Line, Tameglong for sentry duty at the relevant time and, as such, no action was called for against him. At this stage, a reference can be made to paragraph 7 of the counter affidavit of the State Respondents (in civil Rule No. 72/95) and paragraph 6 of the counter affidavit of the State Respondents (in Civil Rule No. 73/95) which are very much important and material for just determination of the real points in controversy between the parties and, as such, the same are quoted below:
That, with reference to para 7 of the writ petition, it is to state that C/No. 1598 Md. Mafijuddin was posted to police Reserve Line and engaged at Reserve Office as a Literate Constable during office hour, he was not engaged in the police Reserve Line and as such no action was called for.
That, with reference to para No. 9 it is to state that constable No. 1598 Md. Mafijuddin was posted to police Reserve Line and he was engaged as a literate constable during office hours but he was not engaged in the Police Reserve Line, Tamenglong for sentry duty at the relevant time and as such no action was called for.
A bare perusal of this statement made in the aforementioned paragraphs 7 and 6 of the related counter affidavits clearly shows that the statements made by the State Respondents in the related paragraphs are not tallied with in as much as, in the counter affidavit of C.R. No. 72 of 1995, the State Respondents do not whisper about the engagement of the said constable No. 1598 Md. Mafijuddin in the Police Reserve Line for sentry duty and, whereas, in the related counter affidavit in Civil Rule No. 73 of 1995, the State Respondents speak about the engagement of the said constable in the said police Reserve Line for sentry duty and, as such, this controversial fact and statement cannot be admitted and cannot be relied upon in the eye of law.
Now this Court is further require to examine as to whether the Governor of Manipur had rightly invoked the provisions of Article 311(2)(c) while passing the impugned dismissal order and whether he was really satisfied in the matter that in the interest of the security of the State it was not expedient to hold such inquity as prescribed under the said Article 311(2)(c) or not. It is well settled that if the satisfaction of the President or the Governor is not based on circumstances which have at bearing on the security of the state, the court has ample power and jurisdiction to examine the circumstances on which the satisfaction of the President or the Governor is based and if the court finds that such circumstances having no bearing on the security of the State, the court can hold that the satisfaction of the President or the Governor which is required for passing such an order of dismissal is vitiated by wholly extraneous and irrelevant consideration. At this stage, I hereby recall the decision of the Apex Court rendered in A.K. Kaul and Anr. v. Union of India and Anr. reported in 1995 (Vol. IV) SCC 73 wherein the Apex Court recalled the decisions rendered and referred S.R. Bommai and others Vs. Union of India and others etc. etc., and Union of India and Another Vs. Tulsiram Patel and Others, and other earlier cases and held thus:
The President or the Governor while exercising the power under Article 311(2)(c) has to bear in mind this distinction between situations which affect the security of the State and the situations which effect public order or law and order and for the purpose of arriving at his satisfaction for the purpose of passing an order under Article 311(2)(c) the President or the Governor can take into consideration only those circumstances which have a bearing on the interests of the security of the State and not on situations having a bearing on law and order or public order. The satisfaction of the President or the Governor would be vitiated if it is based on circumstances having no bearing on the security of the State. If an order passed under Article 311(2)(c) is assailed before a court of Law on the ground that the satisfaction of the President or the Governor is not based on circumstances which have a bearing on the security of the State the court can examine the circumstances on which the satisfaction of the President or the Governor is based and if it finds that the said circumstances have not bearing on the security of the State the Court can hold that the satisfaction of the President or the Governor which is required for passing such an order has been vitiated by wholly extraneous or irrelevant considerations.
According to me, in the instant cases, the Governor of Manipur has to be satisfied personally that in the interest of the security of the State, it was not expedient to hold the inquiry prescribed by Article 311 Clause 2(c) of the Constitution of India and, such power in the matter of satisfaction and passing of dismissal order cannot be delegated and, apart from it, a matter in which the interest of the security of the State had to be considered should receive the personal attention of the Head of the State and he should be satisfied that an inquiry under the substantive part of Clause 2(c) of Article 311 was not expedient for the reasons stated about in case of a particular Government servant.
At the hearing the learned Additional Govt. Advocate produced related file bearing No. 9/3(15)/94-H wherein the related Note Nos. (1), (2) & (3) are reflected. These notes are very important and material for just determination of the real points in controversy between the parties and, accordingly, the same are quoted below:
On 5.11.94, a large quantity of arms and ammunitions were looted from the reserve police lines without any resistance on the part of the police people on duty. The investigations by the D.G.P. have revealed grave negligence on the part of the policeman detailed for guard duty. There has been gross negligence on behalf of the Reserve Officer also. He was the supervisory officer. It appears that, so far as policeman are concerned, ethnic loyalty overrode the devotion to duty. The conduct subsequent to the looting has also thrown doubts on their loyalty towards the police force. They in fact made up evidence to conceal their misconduct.
Under these circumstance, it is necessary that strict disciplinary action should be taken against the delinquent government servants. As the DGP has pointed the departmental enquiry is usually a long drawn affairs and the delay is likely to encourage other members of the force to behave with irresponsibility, it is proposed that summery action may be taken.
It is, therefore, proposed that the following persons may be dismissed from service, without any departmental enquiry, in terms of Article 311(2) proviso (c) of Constitution.
Shri Y. Ibopishak Singh, Reserve Officer, S.I.
Shri Luangsoroi Kabui @ Nungshirei Kabui, H.C.
Shri Ramjanang Kamei C/No. 821298
Shri G. Guigongam, C/No. 803015
Shri G. Poujon, C/No. 803016
Shri Namlading Kamei C/No. 907039
Shri Ramshing Zemei, C/No. 803024.
May kindly be approved
Sd/- Illegible 14.XI.94 (K.K. Sethi) Chief Secretary. (2)
Advisor (H) Sd/- Illegible 14.11.94 (3)
H.E. Governor
Approved Sd/-AIllegible 14.11.94.
On bare perusal of these notes Nos. (1), (2) & (3) of the file, it has been clearly revealed that the Chief Secretary of the State urged that in those circumstances, it is necessary that strict disciplinary action should be taken against the deliquent government servant and the writ Petitioners may be dismissed from services without departmental enquiry in terms of Article 311(2) proviso (c) of the Constitution and on the basis of the said proposal; the Governor of Manipur approved it with a single word "approved". In the said notes of the Chief Secretary, nothing was mentioned about the ejahar or FIR lodged by the Petitioner in Civil Rule No. 73 of 1995, that nothing was mentioned about the particulars of the arms so far snatched away by the said miscreants or underground elements and nothing was also mentioned about the circumstances for which one of the Constable 1598 Md. Mafijuddin was not present as sentry duty or about his presence at the said police Reserve or not and that no speaking order was made/issued by the Governor of the Manipur in the matter except the word "approved". The said note Nos. (1), (2) & (3) do not whisper about the fact that there are serious and aggravated forms of public order which are calculated to endanger the security of the State which would fell within the ambit and term of the security of the State. The said notes simply stated that there has been gross negligence on the part of the writ Petitioners and, as such, it is necessary that strict disciplinary action should be taken against them and, the D.G.P. has pointed out that departmental enquiry is usually a long drawn affairs and the delay is likely to encourage other members of the forces to behave with irresponsibilities and, accordingly, the D.G.P. proposed that summary action may be taken in other words, the D.G.P. never opined and termed that the action and conduct of those writ Petitioners endangered the security of the State but he simply pointed out that departmental enquiry is usually a long drawn affairs and on the basis of this opinion of the D.G.P., the Chief Secretary proposed for dismissal of the writ Petitioners from services without departmental enquiry in terms of Article 311(2)(c) of the Constitution of India. In my considered view, the said decision so far arrived by the Governor of Manipur for passing the impugned order is to be vitiated as it is based on circumstances having no bearing on the security of the state. This Court need not go more into depth in view of the fact that the impugned dismissal order is vitiated being based on wholly extraneous or irrelevant grounds and rather there is no material on record for invoking the provisions of Article 311(2)(c) of the Constitution of India by the competent authority while passing the impugned dismissal order.
For the above reasons, these 2(two) writ petitions are allowed and the impugned order of dismissal of the writ Petitioners from services shall stand quashed on the ground that it is illegal, unconstitutional and the same is also not tenable in the eye of law for the reasons and grounds mentioned above. It is also made clear that the impugned dismissal order was passed by the Respondents illegally and not in accordance with the established principles of law, and it cannot be deemed that writ Petitioners were dismissed from their services under due process of law and, accordingly, these writ Petitioners shall be entitled for their back/arrear salaries for the period i.e. from the date of their dismissal order on and from 15th November, 1994 till the date of their re-instatement in service for which the Respondents are directed to take back the Petitioners into service within a period of 3(three) weeks from the date of receipt of this judgment and order and they shall be allowed to work and discharge their lawful duties as usual. No. costs.