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Manipur High Court
T. N. R. TIRUMALPAD, J.
Laisram Tombi Singh, Imphal
Versus
Laisram Gopal Singh, Imphal
Civil Writ Appln. No. 3 of 1961
Decided On : 06-06-1962
CONSTITUTION OF INDIA, 1950 - ARTICLE 311(2) - CENTRAL CIVIL SERVICE RULES, 1957 - RULES 12(4), 13, 15(7), 15(9), 15(10) - ASSAM POLICE MANUAL - RULE 66 - DISMISSAL OF GOVERNMENT SERVANT - REASONABLE OPPORTUNITY - DOUBLE JEOPARDY - RETROSPECTIVE SUSPENSION - RETROSPECTIVE DISMISSAL - VALIDITY.
Fact of the Case:
The petitioner, a dismissed constable, challenged the order of dismissal passed by the Superintendent of Police, Manipur, on the ground that he was not given a reasonable opportunity to defend himself against the charge framed against him and that the order of dismissal was passed with retrospective effect.
Finding of the Court:
The Court held that the petitioner was given a reasonable opportunity to defend himself against the charge framed against him and that the order of dismissal was not passed with retrospective effect. However, the Court held that the portion of the order giving retrospective effect to the order of dismissal was not in conformity with Article 311(2) of the Constitution and was, therefore, set aside.
Issues: 1. Whether the petitioner was given a reasonable opportunity to defend himself against the charge framed against him? 2. Whether the order of dismissal was passed with retrospective effect? 3. Whether the portion of the order giving retrospective effect to the order of dismissal was in conformity with Article 311(2) of the Constitution?
Ratio Decidendi: 1. The Court held that the petitioner was given a reasonable opportunity to defend himself against the charge framed against him as he was given a chance to show cause against the proposed action and was provided with a copy of the charge sheet and the relevant documents. 2. The Court held that the order of dismissal was not passed with retrospective effect as it was to take effect from the date of the order and not from the date of the alleged misconduct. 3. The Court held that the portion of the order giving retrospective effect to the order of dismissal was not in conformity with Article 311(2) of the Constitution as the petitioner was not given an opportunity to show cause against the retrospective dismissal.
Final Decision: The Court refused to set aside the order of dismissal in toto, but declared that the order of dismissal would take effect only from the date of the order and the portion of the order that it shall take effect from the date of the alleged misconduct was set aside.
Key Points: - The petitioner was found to have been given a reasonable opportunity to defend himself, including a chance to show cause and access to the charge sheet and documents. (!) (!) - The court held that the portion of the dismissal order giving retrospective effect to the date of the alleged misconduct was not in conformity with Article 311(2) and set aside that portion, keeping the rest of the order intact. (!) (!) - Rule 12(4) of the Central Civil Services Rules allows a second enquiry on the same allegations if a court set aside the original dismissal for lack of due process, deeming the officer under suspension from the original dismissal date until further orders. (!) (!) (!) - The retrospective suspension is permitted under Rule 12(4) and does not bind the disciplinary authority to retrospective dismissal, and subsistence rights under FR 53 may apply during suspension. (!) (!) (!) - The disciplinary authority’s decision need not provide reasons under Rule 15(10) if there is no disagreement with the Enquiry Officer’s findings; the authority may still impose a punishment after its own consideration. (!) (!) - The charge indicating possible punishment does not by itself amount to bias if proper opportunity to defend exists; the court emphasizes fair opportunity and natural justice. (!)
2. The petitioner had put in 7 years of permanent service as constable by 1955. On 2-6-1955, he made a report to the O/C Imphal Police Station that he was assaulted by one Laman Kabui, while he was on duty. A criminal case was started against the said Laman Kabui on the said report under Section 332, I. P. C. In the course of the trial which followed, the petitioner gave evidence that he was not assaulted by the accused, but that Laman Kabui had dashed against him in the darkness of the night accidentally. As a result of the said evidence, Laman Kabui was discharged by the Court. Thereupon, Departmental action was taken against the petitioner and he was ordered to be dismissed from service on 24-9-1955. He filed Title Suit No. 55 of 1956 against the said dismissal and the Second Subordinate Judge, Manipur, by his judgment dated 30-5-1960 held that the punishing authority did not comply with the provisions of article 311(2) of the Constitution and hence the dismissal order was illegal. Thereupon, the Superintendent of Police re-instated the petitioner, but placed him under suspension on 28-7-1960 by Annexure D and directed that a further enquiry should be held under the provisions of the Central Civil Service Rules, 1957.
Accordingly a fresh charge was framed against him regarding the same matter and a regular enquiry was held by Shri J. M. Singh, Deputy Superintendent of Police and in the enquiry, the charge was found to be proved against the petitioner as seen from the report Annexure G. But the Enquiry Officer recommended a light punishment, namely, loss of half of his salary for the period of suspension. The reason for taking this lenient view was stated in the report to be the dogged perseverance of the petitioner during the period of 5 years to get his remedy with the help of Court which showed that he had a great liking for the Police service and the suffering which he must have undergone during the period, which might have taught him a good lesson. But the Superintendent of Police did not accept the recommended punishment and issued the show cause notice Annexure H why the petitioner should not be dismissed from service.
The petitioner filed his representation. But the Superintendent of Police refused to accept his representation and stated in his final order Annexure, J. dismissing the petitioner with effect from the date of his suspension, that the petitioner had made two contradictory statements - one before the O/C Imphal Police Station and the other before the Court and for this serious misconduct, he was dismissed from service. This order was passed on 1-2-1961. Thereupon, the petitioner has come forward with the present application.
3. It was contended in the application that the petitioner having been dealt with and punished for the same charge on 24-9-1955 and the said punishment having been set aside by Court, he cannot be punished on the same charge a second time, as it will amount to double jeopardy. It was also pointed out that the petitioner should not have been suspended with retrospective effect from the date of the original dismissal, namely, 24-9-1955. It was next stated that the charge framed against him was vague and misleading and the fact that the punishment to be inflicted on the petitioner was mentioned in the charge clearly showed that the case against him had been pre-judged. The next point urged was that in the enquiry report Annexure. G, the previous service record of the petitioner was taken into consideration and this has prejudiced the disciplinary authority in determining the punishment to be imposed.
Next it was contended that when the disciplinary authority disagreed with the recommended punishment by the Enquiry Officer, h
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