JUDGMENT
A.H. Saikia, J.
1. Heard Mr. George Raju, learned counsel for the petitioner. Also heard Mr. T. Vaiphei, Addl. Advocate General assisted by Mr. N. Sailo, learned Govt. Advocate Mizoram for the State/Respondents.
2. The writ petitioner, who was a constable while serving in 3rd Bn., Mizoram Armed Police since 1996 was removed from service vide impugned order dated 2.9.1998 (Annexure-5 to the Writ Petition) issued by the Commandant, 3rd Bn, MAP, Aizawl. This impugned order is under challenge.
3. The removal of the Petitioner according to Mr. Raju, learned counsel for the petitioner, is challenged only on the sole ground of non-furnishing of enquiry report for which the Petitioner was highly prejudiced and the same has hit the principle of natural justice. On the other hand Mr. Vaiphei, learned Addl. Advocate General, Mizoram, defending the impugned removal order, has contended that though enquiry report was not furnished to the Petitioner, he was no way prejudiced by the impugned order inasmuch as the finding of the enquiry officer was mainly based on evidences of the witnesses produced by the prosecution including the admission of the petitioner himself as regards his guilt.
4. Before appreciation of the submissions advanced on behalf of the parties, let me refer to the impugned order which runs as follows : –
“Office of the Commandant Third Battalion Mizoram
Armed Police Mizoram, Aizawl
Order
Whereas a departmental proceedings was contemplated against C/625 H. Lalmuanthanga of 3rd Bn. MAP for his misconduct as intrevenous drug user (drug addict). Charge memorandum was also issued to him vide this office memo No. Bn/3MAP/RO-PF/98/1007dt. 15.7.1998.
And whereas, Pu O.K. Brahma Asstt. Commandant 3rd Bn. MAP is appointed as Enquiry Officer to enquire into the charge framed against C/625 H. Lalmuanthanga of 3rd Bn. MAP who submitted his findings on 1.9.1998 as charges levelled against C.625 H. Lalmuanthanga proved. On careful perusal of the enquiry report submitted by the Enquiry Officer, I fully agreed with the findings of the Enquiry Officer, I fully agreed with the findings of the Enquiry Officer. The gravity of the charge is serious and the same warranted to a punishment of major penalty.
Now, therefore, the undersigned, in exercise of the power conferred by Section 7 of the Indian Police Act, 1861 r/w Rule 66 of Assam Police Manual Part-III, do hereby imposed a penalty of ‘Removal from service upon C/625 H. Lalmuanthanga of 3rd Bn. MAP with immediate effect. He should deposited back all Govt’s. full kits issued to him to Quarter Master 3rd Bn. MAP immediately. GPF, GIS etc. if any should be released in favour him as per existing rules.
Sd/- Illegible
Commandant
3rd Bn. MAP : Aizawl
Mizoram
No. Bn/3 MAP/RO-PRCS/98 1613 Dated Aizawl, the 2nd Sept., 98.”
5. It is admitted fact that no enquiry report was ever furnished to the petitioner before passing of the impugned order. The relevant records have been placed before this Court at the time of hearing. I have perused the records so produced before me and also gone through the affidavit-in-opposition filed on behalf of the State/Respondents. The enquiry report as made available before this Court may be noticed as under:
“Enquiry report on the departmental enquiry against C/625 H. Lalmuanthanga of 3rd Bn. MAP Mualpui
I. Introduction:
Under section 7 of the Indian Police Act, 1861 read with rule 66 of Assam Police Manual Part-Ill, I was appointed by the Commandant, 3rd Bn. MAP, Mualpui as the Enquiry Officer to enquire into the charges framed against C/625 H. Lalmuanthanga of 3rd Bn. MAP vide his Memo No. BN/3MAP/ RO-PROS/98/1342, dt. 13.8.1998.1 have since complete the enquiry and on the basis of documentary and oral evidences adduced before me, prepared my Enquiry Report as under —
The charged official C/625 H. Lalmuanthanga participated In the enquiry from beginning to end. He was not assisted by any
Defence Assistant throughout the enquiry proceedings as he did not engage any Defence Assistant. Further, he did not produce any Defence witnesses/documents in his Defence though he was asked to do so, if he liked. He has no objection in appointing me as Enquiry Officer in D.E. against him.
II. Article of charge and substance of imputation of misconduct or misbehavious :
The following in the article of charge against C/G25 H. Lalmuanthanga of 3rd Bn. MAP :
That, C/625 H. Lalmuanthanga is using intravenous drug injection of Proxyvon which is a clear indication of violation of departmental norms and rules”.
The preliminary hearing of the proceedings was held on 27.8.1998 in which when asked by me, the charged official admitted to have received the charge Memorandum No. Bn/3MAP/RO-PF/98/1007, dt. 15.7.1998 with Annexure -I to IV and to have understood the charges levelled against him fully. He, however, admitted his guilt stating that he has been using intravenous injection of Proxyvon off and on since January, 1998. Further, he stated that on 1.7.1998, he was medically examined by the Medical and Health Officer of 3rd Bn. MAP, Mualpui and the Medical Officer found injection marks present on his both inquinal region. The Medical Officer also found healing would present on his right inquinal region. Though, the charged official admitted his guilt before me as stated above, still, I further proceed to record the statements of the prosecution witnesses with a view to collecting more supporting/corroborative evidences in this case.
III. Recording statements of the prosecution witnesses :
PW 1 — Admn. Inspr. Lalchhuanawma of 3rd Bn. MAP Mualpui:
He stated that he has been working as Admn. Inspector in the 3rd Bn. MAP Mualpui. He knows C/625 H. Lalmuanthanga who is working in ‘F’ Coy of 3rd Bn. MAP since 1997 to be a drug addict who has been using intravenous injection of Proxyvon. On 1.7.1998, he was sent to the Hospital of 3rd Bn. MAP, Mualpui for medical examination. The medical and Health Officer Pi Zepuii after medically examined him, declared him to be a drug addict. The Medical Officer found injection marks present on his Inquinal region. The Medical Officer further, found healing would present on his right inquinal region.
PW 2 – Lalnuntluanga, CHM, ‘Boy’ Coy of 3rd Bn. MAP
Mualpui:
He stated that he has been working as SHM in ‘B’ Coy of 3rd Bn. MAP Mualpui. He knows C/625 H. Lalmuanthanga who is working in ‘F Coy of 3rd Bn. MAP. He knows that the Constable has been using intravenous injection of Proxyvon for which, on 1.7.1998 he was sent to the Unit Hospital at the Bn Hqrs., Mualpui for medical examination him, declared him to be a drug addict.
PW 3 – Dr. Zepuii of 3rd Bn. MAP Mualpui:
She stated that she has been working as Medical and Health Officer in the 3rd Bn. MAP Mualpui. On 1.7.1998, C/625 H. Lalmuanthanga of 3rd Bn. MAP was sent to 3rd Bn. MAP Hospital at Bn. Hqrs., Mualpui for medical examination. Accordingly, she medically examined him and the following are the findings : –
(1) Injection marks (one each) are found on both inquinal region.
(2) Healing would is present on his right inquinal region.
She found him to be a intravenous drug user and as such, a drug addict.
IV. Findings:
From the statements of PW 1 Admn Inspr. Lalchhuanawma and PW 2 Lalnuntluanga, CHM, it is clear that both of them know C/625 H. Lalmuanthanga well since the constable has been working under them. Both of them know the constable to be a drug addict as the constable has been using intravenous injection of proxyvon. On 1.7.1998, C/625 H. Lalmuanthanga was sent to the Hospital on 3rd Bn. MAP, Mualpui for medical examination. The medical officer after medically examined him, declared C/625 Lalmuanthanga to be a intravenous drug user who has been using Proxyvon injection (intravenous) off and on since January 1998.
V. Conclusion:
Thus, taking an over all view of the entire evidences on record, I held the prosecution witnesses have been able to prove the case beyond reasonable doubt. Further, the charge is also proved at the admission of the charged official C/625 H. Lalmuanthanga who admitted before me during the preliminary hearing of the proceedings on 27.8.1998.
Submitted to the Commandant, 3rd Bn. MAP Mualpui for favour of information and necessary action.
Sd/- (D.K. Bhahma) MPS
Asstt. Commandant, 3rd Bn. MAP &
Enquiry Officer ….”
6. Abare perusal of the enquiry report, it appears that the finding was mainly based on the evidences of the prosecution witnesses and also on the basis of the admission of the petitioner, who, according to the enquiry officer, admitted before him about his guilt during the preliminary hearing of the proceedings on 27.8.1998. This reference of the admission in the enquiry report which was never furnished to the petitioner, has necessitated this court to go through the statements of the delinquent, which has also been annexed as Annexure-9 to the writ petition. The said statement is read as under :-
“Statement of C/625 H. Lalmuanthanga S/o Rochungnunga of 3rd Bn. MAP in connection with D.E. Against him.
I am to state that I joined 3rd Bn, MAP in January, 1997 as a constable. I have gone through the Article No. 1 and found that the charge framed against me is correct.
It is a fact that I used to take intravenous injection of Proxyvon off and on since January 1998. But, I have not taking the said injection since May 1998.
On 1.7.1998, I was sent to Police Hospital of 3rd Bn, MAP Mualpui for medical examination.
The medical and Health Officer Pi Zepuii medically examined me and found some injection marks on by both inquinal region. She also found healing wound present in my right inquinal region. On the whole, I admit that I was a drug addict for which I am very sorry since it is against the Police behaviour, I may kindly be execused for my misconduct. I have nothing to say anymore.
Recorded my me:
Sd/-
D.K. Bhrahma MPS C/625 H. Lalmuanthanga Asst Commandant, 3rd Bn, 3rd Bn, MAP 'F Coy, MAP & Enquiry Officer. Mizoram, Aizawl."
7. A conjoint reading of the statements of the petitioner as well as enquiry report reveals that when the petitioner categorically stated that he did not take the intravenous injection of proxyvon since May 1998 though, he used the said drug till January 1998 and he admitted saying that “I was a drug addict” for which he asked mercy of the authority, the finding as regards his admission in the enquiry report goes to show to the extend that the petitioner had been using the intravenous injection of Proxyvon off and one since January 1998. This finding of the enquiry officer is surely going to prejudice the petitioner and non-furnishing of this enquiry report to the petitioner, as it appears, resulted in the denial of reasonable opportunity of hearing to the petitioner before the impugned order of removal was passed.
8. Mr. Raju, learned counsel in order to clinch his submissions on the fact of non-furnishing of enquiry report, has relied on the decision of the Apex Court in Union of India and ors. v. Mohd. Ramzan Khan reported in (1991) 1 SCC 588 as well as the Constitutional Bench decision in Managing Director, ECIL, Hyderabad and Ors. v. Karunakar and Ors. reported in (1993) 4 SCC 727, In Karunakar case (supra) the Apex Court affirmed the decision of Mohd Ramzan’s case (supra) holding that delinquent employee is entitled to a copy of enquiry report of the enquiry officer before the disciplinary authority takes decision on the question of guilt of the delinquent inasmuch as the delinquent has right to reasonable opportunity to represent against findings of enquiry officer. The instant case, in my opinion, is clearly covered by ratio of the decision of the case cited above. At this stage, Mr. Vaiphei, learned Addl. Advocate General has submitted that in a recent decicion reported in (2001) 6 SCC 392 (State of UP v. Harendra Rora and Anr.) the Apex Court, discussing the above cited cases, held that non-furnishing of enquiry report would not be fatal to the order of punishment unless prejudice is shown. His contention is that in the instant case, non-furnishing of such enquiry report has not caused prejudice to the petitioner. According to him, ultimately it is to be seen whether the petitioner was afforded a fair hearing or not and in the case in hand, as it reveals from the enquiry report itself, petitioner was given enough opportunities for which the enquiry report was not furnished to the petitioner, He has also referred to a decision of Hon’ble Supreme Court reported in (1999) 8 SCC 90 (R.S. Saini v. State of Punjab and Ors.) which deals with the power of judicial review of the High Court in a matter relating to departmental enquiry. Relying on the said decision, the learned Addl. Advocate General has contended that this Court cannot go to scrutinise the adequacy or reliability of the evidences on the basis of which the enquiry officer arrived at the finding and also arrived at its own independent finding.
9.1 do not find any force in the submissions put forward on behalf of the State-Respondents. Obviously the adequancy or reliability of the evidences relied upon by the enquiry office to reach the final conclusion cannot be a subject-matter of judicial scrutiny in exercise of power under Article 226. But when the enquiry report as in the present case, was not furnished as required under the law to the delinquent, who was manifestly prejudiced for not getting the opportunities of defending his case of removal, definitely this Court has enough power to interfere with the impugned removal of the petitioner on the basis of enquiry report.
10. On perusal of the materials available on record, an interesting aspect has been noticed. Testimony of two official witnesses except the deposition of the doctor before the enquiry officer, goes to show that admittedly there are drug addict personnel in the 3rd Bn. MAP where the petitioner was serving and they are generally not posted at the posts/out posts as they may create trouble for which they are kept at the Bn. Headquarters after medically examining them by medical officer of 3rd Bn, MAP Headquarter and they are detailed for various duties at the Headquarters. This testimony gives the indication that when those other drug addicts are allowed to continue in their services assigning them other posts, the petitioner was singled out by imposing punishment of removal on the ground of drug addict. This can be said to be a clear case of discrimination and arbitrariness attributed to the petitioner.
11. Be that as it may, having regard to the proposition of law laid down in the judicial decision of Ramjan’s’ case (supra) Karunakar’s case (supra), Harendra Arora’s case (supra) and also upon hearing the learned counsel for the parties, I am of the firm view that non-furnishing of the enquiry report has gravely prejudiced the petitioner because he was deprived of reasonable opportunity of hearing before the impugned order was passed. It is also seen from the material available on record that petitioner was not afforded any reasonable opportunity of hearing though, he has not admitted his guilt in clear term as found by the enquiry officer. On this count alone, i.e., non-furnishing of enquiry report, I am constrained to hold that the impugned order of removal is contrary to the settled principles of law and the same is liable to be set aside and quashed and accordingly, the impugned order is hereby quashed and set aside. The Respondents are directed to re-instate the petitioner forthwith. However, Respondents may initiate a fresh enquiry after reinstatement of the petitioner if so advised. It is also made clear that on the reinstatement of the petitioner he shall be entitled to his back wages subject to out come of the fresh enquiry, if so held.
12. In the result, this writ petition is allowed. However, parties are directed to bear their own costs.