SRI MONOJ KUMAR SINGH vs THE STATE OF ASSAM

1.Heard Mr. S. Choudhury, the learned counsel appearing for the petitioner. The respondents are represented by Mr. D. Nath, the learned Addl. Sr.

Govt. Advocate, Assam.

RELEVANT FACTS

The matter pertains to the disciplinary action against the petitioner, who served as Nayak constable (UB) in the Assam Police. The policeman was

charged with gross negligence of duty and when the charges were found to be established, the Special Superintendent of Police, CID, on 19.12.2009

(Annexure-8), awarded the punishment of stoppage of one increment without cumulative effect. The resultant appeal of the Nayak constable was

dismissed on 24.2.2010 (Annexure-10), by the DIG, CID.

At the relevant time, the petitioner was posted at the Lower Haflong Railway Station, under the General Railway Police. On 7.8.2008, he was

deployed to head a group of policemen from the 11th APBN, to escort a goods train. The late reporting of the escort team led to delayed departure of

the train and this was considered to be an act of gross negligence of duty.

The DSP, Lumding gave a report on 10.8.2008 (Annexure-6) on the incident, stating that the escort party for the goods train was required to report

at 3:30 A.M. on 7.8.2008 but the said party, headed by the Nayak constable (UB) reported late for which, the departure of the goods train was

delayed.

The Disciplinary Proceeding No.8/2008, was drawn up against the delinquent Nayak, under the show cause notice dated 2.9.2008 (Annexure-3),

with the following statement of allegations:-

“Statement of allegation While UB(NK) 200 Monoj Kr. Singh was posted at Lower Haflong GRP OP on 6.8.2008 under his guidance personnel

from 5 th Pln of 11 th APBn Camp at Lower Haflong Railway Station has escorted one up goods train from Lower Haflong to Lumding and taken

rest at Lumding. Next day on 07.08.2008, O/C Lumding GRPs detailed the said escort party under the guidance of him to escort one D.N. Goods

Train No.1 from sub-yard Lumding which was scheduled for departure at 4 AM of date (7.8.2008). And, so the escort party should have reported at

3.30 AM for duty. But the escort party arrived lately due to late reporting by the guide UB(NK) 200 Monoj Kr. Singh for which the said train

departed at 4:30 AM, instead of 4 AM i.e. 30 minutes late of the scheduled departure time. The movement of trains in hills section is monitored at

very high level in police, etc. as it is very important. ……………………â€​.

PETITIONER’S ARGUMENTS

6.1. The learned counsel, Mr. S. Choudhury, submits that the stoppage of increment is categorized as a major penalty under Rule 66 of the Assam

Police Manual Part-III and accordingly, the proportionality of the penalty vis-a-vis the negligence, is questioned by the learned counsel. He further

submits that such major penalty could not have been imposed without furnishing a copy of the enquiry report, prior to issuance of the penalization order

dated 19.12.2009 (Annexure-8).

6.2. The submission of the delinquent is that he himself reported on time at the Railway Station but the other personnel of the group were still sleeping

and that is how the escort party was late in reporting for duty.

RESPONDENTS’ ARGUMENTS

7.1. On the other hand, Mr. D. Nath, the learned Addl. Sr. Govt. Advocate, submits that the delinquent was the leader of the escort party and it was

his responsibility to mobilize the members of his team, to ensure their timely reporting for escorting the goods train. On this basis, the Govt. Advocate

argues that the negligence alleged here is the failure of the delinquent as a group leader and the charge has nothing to do with the delinquent’s

individual conduct.

7.2. The Govt. Advocate refers to the Appeal Memo dated 11.1.2010 (Annexure-9), to project that the delinquent had admitted that the escort party

was delayed by 30/35 minutes and accordingly, it is accordingly submitted that it should be construed to be a case of admission to the allegation of

failure of the escort party to report on time for escorting the goods train. Moreover it is additionally argued that the delinquent is not prejudiced by the

guilty finding, for not furnishing the enquiry report.

DISCUSSION AND DECISION

It can be seen from the un-rebutted averments of the counter affidavit dated 16.12.2010, that the Disciplinary Proceeding No.8/2008, was

conducted in accordance with the Assam Police Act, 2007, read with Rule 66 of the Assam Police Manual Part-III and also the Assam Services

(Discipline and Appeal) Rules, 1964. The delinquent Nayak was made aware of the allegation against him and he was afforded all due opportunities,

to defend the charge. The departmental enquiry was conducted in presence of the delinquent and the enquiry report dated 6.10.2009 reflects that

conclusions are drawn on the basis of the testimony of witnesses and also the relevant documentary evidence. The failure of the escort party headed

by the delinquent to report on time and the resultant delayed departure of the goods train from the Lower Haflong Railway Station, is clearly

established. Even in the Appeal Memo dated 11.1.2010 (Annexure-9), one finds categorical admission of the delinquent that the escort party reported

after a delay of 30/35 minutes.

In the above context, the non-furnishing of the enquiry report, as submitted before the Court, will hardly be fatal for the disciplinary action, since no

prejudice is caused to the delinquent on this count where the charge is substantially admitted by the delinquent. In that sense the furnishing of the

enquiry report will be a mere formality and therefore, it can have no impact on the fairness of the disciplinary action. The arguments to the contrary

raised by the petitioner’s counsel on the non-supply of the enquiry report will have to be rejected in view of the ratio in the Managing Director,

ECIL, Hyderabad vs. B. Karunakar, reported in (1993) 4 SCC 727, where the Supreme Court highlighted the following principle:

“…………………………..

Hence, in all cases where the Inquiry Officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the courts and

Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court!

Tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing

the parties, the Court., Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and

the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should nut mechanically set aside the

order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short-

cuts. Since it is the Courts/ Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the

order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a

denial of the reasonable opportunity. It is only if the Courts/ Tribunals find that the furnishing of the report would have made a: difference to the result

in the case that should set aside the order of punishment ………………………………â€​.

It is important to bear in mind that the petitioner was the leader of the escort party and it was his responsibility to mobilize his men so that they

report on time to escort the goods train from the Lower Haflong Railway Station. But it is seen that the escort party failed to report on time and this

led to the delayed departure of the goods train. In such circumstances, the timely reporting by the leader of the escort party in his personal capacity,

will hardly have any material bearing, as the charge against him was the failure to arrange for reporting of his team in due time, to escort the goods

train. Therefore since this is considered to be the fault of the team and their leader, the petitioner cannot secure any advantage by the fact that he

himself arrived well before the scheduled departure time, of the goods train.

In so far as the punishment of withholding of one increment without cumulative effect, in the context of the penalty specified under Rule 66 of the

Assam Police Manual Part-III, it is seen that the penalty inflicted upon the petitioner is one of the least damaging and it will not have any substantial

impact on the service career of the delinquent. It is not a case of major penalization like dismissal/removal /compulsory retirement/reduction of rank,

etc. Therefore, the punishment appears to be a deserving one and not found to be disproportionate.

For the forgoing discussion, the writ petition is devoid of merit and accordingly, the same is dismissed, without any order on cost.