Satya Narayan Roy vs State Of Meghalaya & Ors.

The factual aspects of this case as culled out from the materials on record is that the Petitioner was appointed as UB/Constable in the Meghalaya Police w.e.f. 15.02.1990 vide appointment Order No. 1584 dated 15.02.1990 issued by the Superintendent of Police, East Khasi Hills District, Shillong.

On 26.03.1999 the Petitioner was promoted as Assistant Sub-Inspector of Police. Thereafter, in the year 2004, the post of Assistant Sub-Inspector was abolished and he was then promoted to the rank of Sub-Inspector vide D.O. No 3157 dated 20.09.2004 issued under the authority of the Director General of Police, Meghalaya.

In the year 2011, the Petitioner was placed under suspension and disciplinary proceedings were initiated against him allegedly on the charge of availing 30 days earned leave without obtaining prior permission from the competent authority. The said proceedings culminated in penalty of stoppage of 3(three) increments, but however he was reinstated in service.

The Petitioner then received another Show Cause notice dated 29.11.2011 appended thereto includes the Statement of Allegation, wherein it has been alleged that he was involved in a criminal case being Laitumkhrah P.S. Case No 18(3) 2011 under Section 365/366 A IPC which included a charge that he has indulged in immoral activities which amounts to moral turpitude, thereby tarnishing the department as a whole.

Departmental Proceedings No. 13 of 2011 was then drawn up against the Petitioner and an Enquiry Officer, Shri S.A. Rynjah, MPS, Additional Superintendent of Police (Traffic), East Khasi Hills, Shillong was appointed to take up the proceedings.

The Enquiry Officer has then examined 12(twelve) witnesses and apparently, on completion of the same, the Petitioner, vide Memo No. RE/GEN/PT-III/2013/5443 dated Shillong, the 01.07.2013 (Annexure-18 of the writ petition) was served with the second Show Cause notice along with a copy of the Enquiry Report, directing him to show cause within 5(five) days as to why the sternest punishment as laid down in Rule 66 of Part III of Assam Police Manual should not be inflicted on him.

The Petitioner then filed his show cause and the Superintendent of Police, East Khasi Hills, Shillong vide D.O. No 1993 dated 10.08.2013 (Annexure-21 of the writ petition) issued the order discharging the Petitioner from service with immediate effect. This order was later modified vide D.O. No. 2013 dated 13.08.2013 (Annexure-22 of the writ petition) to modify the penalty imposed from that of 'Discharge' to one of 'Dismissal'.

Aggrieved by the said order of dismissal from service, the Petitioner then preferred an appeal before the Appellate Authority/ Deputy Inspector General of Police(ER), who vide Memo No MRF/IV-278/9-A dated 08.01.2014 rejected the appeal. This prompted the Petitioner to prefer another appeal before the Hon'ble Governor of Meghalaya which was not accepted since an appeal was already preferred before the Appellate Authority.

Finally, the Petitioner has approached this Court with this instant petition with a prayer to set aside and quash the impugned Show Cause notice dated 29.11.2011, the Inquiry Proceedings and related report and the Termination Letter dated 13.08.2013.

It may be mentioned that the Petitioner was released from suspension vide D.O. No 4102 dated 13.08.2012 and was allowed to join his duties, however the condition is that departmental proceedings against him will continue.

Heard Mr. P. Nongbri, learned counsel for the Petitioner who has submitted that at the time when the Show Cause was issued to the Petitioner, no copies of the documents to be relied on by the Respondents were furnished to him, nor was the list of witnesses to be examined by the Respondents made known to him, thus hampering his preparation of the written statement of defence. Inspite of this, the Petitioner has filed his statement of defence. The case of Committee of Management, Kisan Degree College v. Shambhu Saran Pandey & Ors: (1995) 1 SCC 404, paragraph 5 and the case of Chandra Tiwari v. Union of India: (1987) Supp. SCC 518, paragraphs 4, 9 was relied upon by the Petitioner in this connection.

According to the Petitioner, the relevant documents required to be inspected by him includes (1) Copy of the FIR in Laitumkhrah P.S Case No. 18(3) 2011 under Section 365/366A IPC (2) Entry of the Hotel Register of Hotel Assembly dated 17.03.2011 (3) Statements of witnesses recorded under Section 161/164 Cr.P.C (4) Forwarding Report of the I/O (5) Order sheet of the Court of Laitumkhrah P.S Case No. 18(3) 2011 under Section 365/366A IPC (6) Case Diary of Laitumkhrah P.S Case No. 18(3) 2011 under Section 365/366A IPC (7) Confessional Statements made by any accused person and (8) D.P. No. 2/11. However, only the report of the O/C Laitumkhrah Police Station and letter No. MG/XX-37/2008/88, dated 21.11.2011 were made available to him. This according to the Petitioner has caused serious prejudice to his case as far as his written statement of defence is concerned.

The next contention of the Petitioner is that he was not given an opportunity to cross-examine the 12(twelve) witnesses produced on behalf of the department and also the fact that the alleged victims were not called for examination in the proceeding, which has seriously affected the cause of the Petitioner, inasmuch as, he was not able to confront the witnesses with his side of the story. On this issue, the Petitioner has relied on the following case laws;

(i) Hardwari Lal v. State of U.P: (1999) 8 SCC 582, paragraphs 3 & 5.

(ii) Bhupinder Pal Singh v. Director General of Civil Aviation: (2003) 3 SCC 633, paragraph 3.

(iii) A. Sudhakar v. Postmaster General, Hyderabad & Anr: (2006) 4 SCC 348, paragraphs 25 & 26.

On the second Show Cause notice dated 01.07.2013, the Petitioner has submitted that he was denied an opportunity to represent against the findings in the enquiry report and was asked to Show Cause as to why the sternest of punishment as laid down under the rules should not be inflicted on him which is an empty formality since the disciplinary authority has already prejudged his case. Nevertheless, the Petitioner has submitted his Show Cause dated 10.07.2013. Thereafter, the impugned order of dismissal was issued against him. The case of Babulal Das v. State of Assam: (2004) 2 GLT 259, paragraph 13 was cited in this regard.

Mr. Nongbri has submitted that it is the contention of the Petitioner that the entire disciplinary proceedings initiated against him is vitiated and not maintainable, inasmuch as, the alleged incident happened in the year 2011 and by that time, the Meghalaya Police Act, 2010 which has repealed the Police Act which is prevalent in the State of Meghalaya, had come into force vide Notification dated 07.02.2011. The said disciplinary proceeding against the Petitioner was initiated in exercise of power under Section 7 of the Police Act, 1861 read with Rule 66 of the Assam Police Manual Part II and as such, the purported exercise of the said powers was a nullity from its inception. The case of Meytush Ch. Sangma v. State of Meghalaya & Ors in W.P. (C) No. 96 of 2016 was referred to by the learned counsel wherein this Court vide order dated 05.04.2018 has held that the old police Act was amended in the year 2010 by the Meghalaya Police Act, 2010 and as such, any inquiry to be done should be under the Meghalaya Police Act, 2010 and not under the old repealed Act.

Another contention raised by the Petitioner according to Mr. Nongbri is that there has been a violation of the provisions of Article 311 (1) of the Constitution of India, inasmuch as, the Petitioner was initially appointed as Constable by the Superintendent of Police, East Khasi Hills, Shillong. Subsequently, he was promoted to the rank of Sub Inspector of Police under the orders of the Director General of Police, Meghalaya and as such, the Director General of Police being the Appointing Authority for the Petitioner in the post of Sub-Inspector, the Superintendent of Police being inferior in rank to the Director General of Police does not have the competence to discharge or dismiss the Petitioner from service. The case of Gojendra Chandra Bora v. State of Assam: (1987) 2 GLR 183 was cited in support of this contention.

Finally, Mr. Nongbri has submitted that because of the arbitrary action of the Respondents as far as the conduct of the disciplinary proceedings against the Petitioner is concerned, the rules of procedural natural justice has been violated and therefore, the entire proceeding is liable to be set aside and quashed. The case of Dr. Rash Lal Yadav v. State of Bihar: (1994) 5 SCC 267, paragraph 6 was relied upon on this point.

The counter of Mr. A.H. Hazarika, learned GA with regard to the contention of the Petitioner that the entire proceeding in exercise of the power under Section 7 of the Police Act, 1861 read with Rule 66 of the Assam Police Manual is a nullity from its inception since the said Police Act of 1861 was repealed by the Meghalaya Police Act, 2010, is that it is not correct as the relevant Notification dated 09.07.2015 No. HPL.181/2003/140 conveyed the order of the Governor that pending finalization of the Meghalaya Police Manual, Part I to VI of the Assam Police Manual as adopted by the State of Meghalaya shall continue to remain in force with effect from the date of coming into force of the Meghalaya Police Act, 2010 and until further orders. This Notification has not been challenged by the Petitioner at the relevant time and as such, the provisions of the Assam Police Manual as stated above is still in force in the State of Meghalaya and the Petitioner has rightly been dismissed under the said provisions.

Mr Hazarika has further submitted that it is not a fact that the Petitioner was not allowed to cross-examine the witnesses. On the contrary, he has clearly declined to cross-examine the witnesses and his signature has also been noted in the depositions, being an educated police officer, he is very much aware of the procedure and as such, he cannot come at this stage and say that he was forced to sign by the Enquiry Officer.

On the contention of the Petitioner that the copies of the documents relied upon by the department at the Enquiry was not supplied to him, the learned GA has submitted that all the documents have been supplied to the Petitioner, except the privileged documents which are documents from the criminal case against the Petitioner and here too, he was advised to apply for the same from the concerned court as he is the accused in the said case and there is no difficulty for him to get the said documents.

Mr. Hazarika has also submitted that the contention of the Petitioner that he was promoted by the Director General of Police and hence the Superintendent of Police who is inferior in rank could not have dismissed him from service is not correct as Rule 11 and 30 of the Assam Police Manual Part III provides that the Superintendent of Police is the Appointing Authority of Sub-Inspector of Police.

In support of the case of the Respondents, Mr. Hazarika has cited the following cases:

(i) Tage Habung v. State of Arunachal Pradesh & Ors: (2003) 3 GLR 657, paragraphs 37, 41-45.

(ii) Sarva Uttar Pradesh Gramin Bank v. Manoj Kumar Sinha: (2010) 3 SCC 556, paragraphs 28, 29, 36, 37, 38 & 39.

(iii) Union of India & Ors v. Bishamber Das Dogra: (2009) 13 SCC 102, paragraphs 21, 22, 31-36.

In his reply, Mr. Nongbri has submitted that the Notification No. HPL 181/2003/140 dated 09.07.2015 as regard the applicability of the Part I to VI of the Assam Police Manual to the State of Meghalaya in view of the repeal of the Police Act, 1861 has no relevance in the case of the Petitioner as the impugned notification clearly states that the action initiated was according to section 7 of the Police Act, 1861, which has since been repealed.

That the contention that the Superintendent of Police is the Appointing Authority is not correct asserts Mr. Nongbri, since the related communication being copy of the D.O. No 3157 dated 20.09.2004 (Annexure-4 of the writ petition) has clearly indicated that it was the Director General of Police who has promoted the Petitioner and others from the post of Assistant Sub-Inspector of Police to Sub-Inspector of Police.

Again, on the contention of the Respondents that the Petitioner was supplied with all the documents relied upon by the Department at the Enquiry and was further advised to approach the Court for the privileged documents, Mr. Nongbri has submitted that this statement was refuted in the Rejoinder Affidavit of the Petitioner at paragraph 7 when he averred that inspite of reminders issued to the department being letter dated 13.12.2011 and 20.01.2012, the same was never supplied to the Petitioner.

I have carefully considered the argument advanced by the respective counsels for the parties and having done so, what is required to be dealt with by this Court to come to a proper finding is to examine the main issue of contention between the parties.

Without going back to the submission of the parties which has been enumerated above, the first point to be considered is whether the disciplinary proceeding against the Petitioner was rightly and properly initiated under the relevant provision of the laws and rules. Admittedly, vide related Memo No. RE/GEN/PT-III/2011/912, dated Shillong the 29.11.2011 which is the Show Cause notice issued to the Petitioner in connection with D.P No. 13 of 2011, the Superintendent of Police in exercise of power conferred under Section 7 (seven) of the Police Act (Act V of 1861) read with Rule 66 of Assam Police Manual Part III, as adapted by the Government of Meghalaya has called upon the Petitioner to Show Cause as to why penalty specified in Rule 66 of the Assam Police Manual Part III should not be inflicted on him. The Petitioner has referred to the Meghalaya Police Act, 2010 which came into force in the State of Meghalaya vide notification dated 07.02.2011 and leading this Court to Section 136 of the same has submitted that the Police Act, 1861 have been repealed by the said Meghalaya Police Act and as such, any exercise of powers under the old Act was a nullity right from inception thereby rendering the proceedings against the Petitioner null and void.

In reply to this, the State Respondent has submitted that vide Notification No. HPL 181/2003/140, dated 09.07.2015, the Assam Police Manual Part I to VI as adopted by the Government of Meghalaya shall remain in force from the date of coming into force of the Meghalaya Police Act, 2010 until further orders, this, pending finalisation of the Meghalaya Police Manual.

At this juncture, it would be proper to take a look at sub-Section 2 of Section 136 of the Meghalaya Police Act, 2010 which reads as follows:

(2) Notwithstanding such repeal, anything done or any action taken under the Acts so repealed shall be deemed to have been done or taken under the corresponding provisions of this Act.

The above, read conjointly with the contents of the said Notification No. HPL.181/2003/140 dated 09.07.2015 would show that at the time when the disciplinary proceeding was initiated against the Petitioner, Part I to VI of the Assam Police Manual is still applicable. It may be mentioned that this Court with due respect would say that had this Notification been brought to the notice of the then Hon'ble Judge in the case of Meytush Ch. Sangma (supra), the outcome would have been different. The objection raised by the Petitioner on this point is therefore not sustainable.

The next contention of the Petitioner is that he was not supplied with copies of the relevant documents sought to be relied upon by the Department before the enquiry, this too, inspite of seeking for the same in writing and on non receipt of the same, reminders were issued to no avail. This action of the Department has greatly prejudiced his case and is thus a violation of the principles of natural justice which has resulted in the entire Enquiry to be vitiated.

On this issue, the Petitioner has admitted that some of the documents were furnished to him, however other documents were not supplied to him. The learned GA has however maintained that all the relevant documents were supplied to the Petitioner except some privileged documents which are part of the police papers and documents of the said Laitumkhrah P.S. case No. 18(3)2011. The learned GA has however not been able to convince this Court that such privileged documents were never used against the Petitioner in the Enquiry. In fact, records would show that one of the witnesses on behalf of the Department is the learned Magistrate who has recorded the statements of the alleged victims under section 164 Cr. P.C. The same has figured in the Enquiry Report as part of the findings and this has indeed prejudiced the Petitioner, inasmuch as, he was not made aware beforehand as to what was the contents in the said statement under Section 164 Cr.P.C. to enable him to defend himself.

The case of Committee of Management, Kisan Degree College (supra) at paragraph 5 extract from the same being ... It is settled law that after the charge-sheet with necessary particulars, the specific averments in respect of the charge shall be made. If the department or the management seeks to rely on any documents in proof of the charge, the principles of natural justice require that such copies of those documents need to be supplied to the delinquent. If the documents are voluminous and cannot be supplied to the delinquent, an opportunity has got to be given to him for inspection of the documents. It would be open to the delinquent to obtain appropriate extracts at his own expense. If that opportunity was not given, it would violate the principles of natural Justice. At the enquiry, if the delinquent seeks to support his defence with reference to any of the documents in the custody of the management or the department, then the documents either may be summoned or copies thereof may be given at his request and cost of the delinquent. If he seeks to cross-examine the witnesses examined in proof of the charge he should be given the opportunity to cross-examine him. In case he wants to examine his witness or himself to rebut the charge, that opportunity should be given. In this case, at the earliest, the delinquent sought for inspection of the documents. It is now admitted in the affidavits filed in this Court and in the letter written by the enquiry officer, that some of the documents were seized by the police after the murder of the Manager of the appellant-institution on 31-7-1980 for investigation. In that case the respondent was also one of the accused charged for the offences under Section 302 read with Section 120-B IPC. It is now an admitted fact that in Sessions Trial No.228 of 1981 dated 31-7-1986 he was convicted for the said offence and was sentenced to undergo imprisonment for life. It would appear that he filed an appeal in the High Court and bail was granted to him." and also the case of Chandra Tiwari v. Union of India (supra) at paragraphs 4 and 9 cited by the Petitioner in this regard has some weight and are relevant to the case in hand.

In a similarly situated case, the Supreme Court in the case of State of Uttar Pradesh & Ors v. Saroj Kumar Sinha: (2010) 2 SCC 772 dealing with the issue of application of the principle of natural justice vis-à-vis non-supply of documents, has at paragraphs 20-23 and 32 held that :

"20. We have heard the learned counsel for the parties. We have noticed at some length the sequence of events and the efforts made by the respondent to receive copies of the documents which were relevant for the preparation of his defence in the departmental enquiry. As noticed earlier all the requests made by the respondent fell on deaf ears. In such circumstances, the conclusions recorded by the High Court were fully justified.

Copies of the documents which formed the foundation of the charge-sheet against the respondents have been denied to the respondent on the lame excuse, as projected in the pleadings of the appellant, at different stages before the High Court as well as this Court, that the respondent, at the relevant time, was posted in the same division and the documents could have been received by him and the reply could have been given. According to the appellant all the documents concerned were with the division in which the petitioner (the respondent herein) was posted as Executive Engineer.

In the counter-affidavit filed in the High Court it is specifically mentioned that the documents pertain to the same division in which the respondent had been posted as Executive Engineer and therefore he being in knowledge and custody of the said documents, there was no requirement for the said documents to be supplied to the respondent. The very same submission has been reiterated before us by the learned counsel of the appellants. In our opinion, the submission is without any basis as the respondent had been suspended on 5-2-2001.

Even if the respondent had continued in the same department it would not have been possible for him to take the custody of the documents as he would no longer be in charge of the office. Furthermore, it is evident from the letter dated 19-11-2003 that the documents had to be collected from different offices and made available to the respondent. This fact is so mentioned in the letter of the Executive Engineer. In such circumstances, we are unable to accept the submission of the learned counsel for the appellants that it was possible for the respondent to make an effective representation against the charge-sheet.

The affect of non-disclosure of relevant documents has been stated in Judicial Review of Administrative Action by De Smith, Woolf and Jowell, 5th Edn., p.442 as follows:

"If relevant evidential material is not disclosed at all to a party who is potentially prejudiced by it, there is prima facie unfairness, irrespective of whether the material in question arose before, during or after the hearing. This proposition can be illustrated by a large number of modern cases involving the use of undisclosed reports by administrative tribunals and other adjudicating bodies. If the deciding body is or has the trappings of a judicial tribunal and receives or appears to receive evidence ex parte which is not fully disclosed, or holds ex parte inspections during the course or after the conclusion of the hearing, the case for setting the decision aside is obviously very strong; the maxim that justice must be seen to be done can readily be invoked." In our opinion the aforesaid maxim is fully applicable in the facts and circumstances of this case."

As to the other contentions raised by the Petitioner, that is, on the issue of being dismissed from service by an Officer who is inferior in rank to that of the Appointing Officer, the allegation that no opportunity for cross-examination of the witnesses not being afforded to the Petitioner, also that no Presenting Officer was appointed in the inquiry, this Court is of the view that these issues are not necessary to be dealt with at this juncture given the fact that an opinion is arrived at on the vital issue, that of violation of natural justice and as such, the case laws cited in this regard need not be discussed here.

The case laws cited by the State Respondent relates to the issue of interference of the High Court with the findings arrived at by the Enquiry Officer (Tage Habung) (supra), which is not the case here as the grievance is mostly against the manner in which the proceeding was conducted.

In the case of Sarva Uttar Pradesh Gramin Bank (supra) as well as the case of Bishamber Das Dogra (supra), the issue is about non-supply of the inquiry report which, under the facts and circumstances of the case, the

Hon'ble Supreme Court has held that there has not occurred any violation of natural justice, whereas, in this case, there is no grievance about the inquiry report.

Considering the magnitude of the allegation against the Petitioner, it would be prudent for a proper enquiry against the Petitioner to be conducted, provided he is afforded every opportunity to defend himself.

Consequently, the impugned Termination Letter under D.O. No 2013 dated 13.08.2013 is hereby set aside and quashed and the Petitioner is directed to be reinstated in service with consequential financial benefit, albeit to the extent of 50% of the same, considering the fact that he has been out of active service for the said number of years since his termination.

The competent authority is also hereby directed to initiate fresh disciplinary proceedings against the Petitioner from the stage of supply of documents and as stated above, by affording him all available opportunity to defend himself in accordance with law.

To the extent indicated above, this petition is hereby disposed of. No cost.