JUDGMENT
Ranjan Gogoi, J.
1. An Order dated 27.7.1996 removing the petitioner from service passed by the Superintendent of Police, West Garo Hills District, Tura has been assailed in the present writ petition.
2. The brief facts that will be required to be noticed for an effective adjudication of the questions raised are as follows:
The petitioner, at the relevant point of time, was a Sub-Inspector in the Meghalaya Police. On 22.1.1991, a charge memo was issued against the petitioner alleging misconduct and negligence in performance of duties. The facts stated in the charge memo dated 22.1.1991 are that, on 25.12.1990, the petitioner was detailed for duty to proceed to William Nagar to arrest an accused. He had gone to that place armed with a service revolver and 12 rounds of ammunitions. On 27.12.1990, at about 6:30 PM, the petitioner is alleged to have consumed liquor with one LNK Noliston Marak of 2nd MLP Bn. in the house of Bindu was while on duty armed with the service revolver and the ammunitions allotted to him. In the charge memo, it is further alleged that while consuming liquor, the petitioner had taken out the service revolver pointing the same towards LNK Noliston Marak and threatened to kill him. It is further alleged in the charge memo that a bullet was fired from the service revolver of the petitioner, which hit on the left chest of NLK Noliston Marak, who died on the spot. In the above facts, it was alleged that gross misconduct and negligence in handling the service revolver a was committed by the petitioner rendering him unfit to be retained in the police force. Accordingly, the petitioner was asked to submit his written statement of defence to the charges levelled.
3. The petitioner replied to the charge memo dated 22.1.1991, denying the allegations of consumption of alcohol and stating that on 27.12.1990 he was in the house of Bindu Das discussing the possible arrest of the accused for which he was ordered to go to William Nagar. According to the petitioner, at that time, LNK Noliston Marak pulled out the revolver and started playing with it. At that stage, the petitioner requested Noliston Marak to hand over the revolver back to him and as the said person kept on playing with the revolver, the petitioner tried to take the revolver out of the hands of Noliston Marak and in the process one shot got accidentally fired from the revolver, which hit Noliston Marak. On receipt of the reply of the petitioner, the disciplinary authority, not being satisfied, decided to hold an enquiry and accordingly a departmental enquiry was held against the petitioner. It must be noticed at this stage that as many as 17 witnesses were examined in course of the enquiry in support of the charges levelled against the petitioner. The petitioner was also examined in course of the enquiry. Thereafter, the enquiry officer submitted his report to the disciplinary authority holding the charge(s) levelled to be proved. The said authority forwarded a copy of the report to the petitioner asking for his reply thereto. The petitioner submitted a reply to the notice issued by the disciplinary authority. Thereafter, the impugned Order dated 27.7.1996 had been passed removing the petitioner, from service. Aggrieved, the present writ petition has been filed.
4. I have heard Shri S.K. Deb Purkayastha, learned Counsel for the petitioner and Shri N.D. Chullai, learned senior eminent advocate, Meghalaya appearing for the respondents.
5. In the course of the very elaborate arguments advanced on behalf of the writ petitioner, Shri S.K. Deb Purkayastha, learned Counsel has submitted that the charges framed against the writ petitioner by the charge memo dated 22.1.1991 are vague and indefinite. No specific misconduct with reference to the provisions of the Conduct Rules has been mentioned in the charge memo. On the aforesaid basis, the further h contention advanced is that the disciplinary proceeding and the punishment imposed on the basis of such indefinite and vague charges would have no legs to stand. It is submitted that the list of documents by which the charge was proposed to be proved as well as the list of witnesses proposed to be examined in the course of the enquiry, were not furnished to the petitioner. In this regard, learned Counsel, by relying on the provisions of Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 (hereinafter referred to as the Rules), as applicable to the State of Meghalaya, has submitted that furnishing of list of documents and list of witnesses is a mandatory requirement under the Rules and is an essential and integral part of the principle of fair opportunity that the petitioner is entitled to. Relying on a judgment of this Court in the case of Madhab Chandra Das v. The State of Assam and Ors. reported in (1987) 2 GLR 210, learned Counsel for the petitioner has contended that the, petitioner has been denied a reasonable opportunity to defend himself in the enquiry and, therefore, the proceedings of the enquiry and all actions taken on that basis must be adjudged to be vitiated in law. Continuing, Shri S.K. Deb Purkayastha, learned Counsel for the petitioner has submitted that in the enquiry held against the petitioner, no presenting officer was appointed as mandatorily required under the is provisions of Rule 9(5) of the Rules. The petitioner was not informed of his right to have the services of a defence assistant and no defence assistant was also appointed. Placing reliance on a judgment of this Court in the case of Shri Nagendra Sen Chakma v. The State of Tripura and Ors. reported in 1988 (2) GLJ NOC 9, learned Counsel has contended that the aforesaid lacuna on the part of the disciplinary authority would vitiate the proceedings of enquiry held against the petitioner.
It has also been argued by Shri S.K. Deb Purkayastha, learned Counsel for the petitioner, that the proceedings of the enquiry held against the petitioner would stand vitiated in law for the failure of the enquiry officer to furnish to the petitioner a copy of the statements of the witnesses on each day of the enquiry and furthermore a consideration of the enquiry report would go to show that the enquiry officer failed to record his findings on each of the charges brought against the petitioner, which is mandatory under the provisions of Rule 9(8) of the Rules in force. The writ petitioner was not allowed to cross-examine the witnesses in support of the charges, contends Shri Purkayastha, learned Counsel for the petitioner, who has also argued that there are admittedly no eye witnesses to the incident and no medical evidence or the evidence of the ballistic expert has been placed in the enquiry to bring home the charge levelled. Lastly, it has been pointed out by Shri Purkayastha that in respect of the same incident, a criminal case under Section 302 IPC had been registered against the writ petitioner and the subject-matter of the charges enquired into in the departmental proceeding being similar, the disciplinary authority ought not to have proceeded with the proceedings of enquiry. Reliance in this regard has been placed on an Apex Court judgment reported in AIR 1999 SC 1416 (Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr.).
6. The arguments advanced : on behalf of the petitioner, have been resisted by Shri N.D. Chullai, learned Senior Government Advocate, Meghalaya. Relying on two judgments of this Court in the case of Dibrugarh University, Dibrugarh and Ors. v. Bhabananda Barman, reported in 1997 (1) GLJ 492 and Achinta Dutta v. State of Tripura and Ors. reported in 1998 (2) GLJ 231, Shri Chullai has argued that omission on the part of the disciplinary authority to furnish to the delinquent a list of documents would not necessarily be fatal. According to Shri Chullai, the ultimate test is one of prejudice and the provisions of Rule 9 of the Rules having engrafted the principles of natural justice, the said principles cannot be understood to operate within any set parameters. Prejudice, on account of non-supply of documents, has to be proved by the delinquent. The same argument has been advanced by Shri Chullai to overcome the admitted omission of the disciplinary authority to furnish to the petitioner a list of witnesses by which the charges were proposed to be proved. In this regard, Shri Chullai has also contended that in the departmental proceeding against the petitioner, as many as 17 witnesses were examined and all such witnesses were examined in the presence of the petitioner. The petitioner was afforded opportunity to cross-examine the said witnesses, which he declined. This, Shri Chullai contends, is evident from the records of the enquiry, which have been placed before the Court in original.
Coming to the question of the alleged failure of the disciplinary. authority/enquiry officer to intimate the petitioner his right to have the services of a defence assistant as provided by Rule 9(5) of the Rules, Shri Chullai has argued that such failure, ipso facto, will not vitiate the enquiry unless the prejudice is demonstrated to have been caused. This, learned Counsel contends, is the ratio of the law laid down by the Apex Court in the decision (Bhagat Ram v. State of Himachal Pradesh and Ors.). Several judgments of this Court including a Division Bench judgment in the case of Saroj Bhattacharyya v. Union of India and Ors. reported in (2003) 3 GLR 77 has also been relied upon.
Shri Chullai has further contended that a perusal of the report of enquiry, which has been brought on the record of the present case, would amply demonstrate that there were sufficient materials to come to the conclusion that the charges of misconduct and negligence alleged against the petitioner, have been proved. Lastly. Shri Chullai has contended that the ratio of the decision of the Apex Court in the case of Paul Anthony (supra) will have no application in the facts of the present case as the subject-matter of the criminal case and the departmental proceeding is not the same.
7. The rival submissions advanced on behalf of the respective, parties have received all such attention of the Court as was considered necessary.
While it is correct that a departmental proceeding cannot be initiated on the basis of indefinite and vague charges, a consideration of the charge memo, in the present case, would belie the contention advanced on behalf of the petitioner. The charge against the petitioner is that while he had gone to William Nagar in connection with official duty armed with the service revolver, he was found to have been consuming alcohol while on duty and that he was negligent in handling the fire arm allotted to him from which a bullet was fired resulting in the death of LNK Noliston Marak. The charge against the petitioner is not that c he had shot LNK Noliston Marak either intentionally or accidentally. The charge is that the death of LNK Noliston Marak was the consequence that had emanated from the negligent conduct of the petitioner in handling the fire arm allotted to him.
8. Coming to the question of the mandatory nature of. Rule 9 of the Rules and the alleged infraction thereof by the failure of the disciplinary authority to furnish to the petitioner the list of documents and the list of witnesses, it must be made clear at the outset that the aforesaid grievance raised by the petitioner insofar as the list of documents is concerned, will have no legs to stand. This is because no document had e been relied upon by the enquiry officer to come to the findings recorded. Be that as it may, while it is correct that in Madhab Chandra Das (supra), this Court had held infraction of Rule 9, on account of failure of the disciplinary authority to furnish to the delinquent a list of documents and a list of witnesses, as violative of the mandatory f requirement of law, in the subsequent Division Bench judgment in Dibrugarh University (supra), this Court had held that what Rule 9 engrafts and lays down is a requirement of the principles of natural justice. The Division Bench of this Court held that principles of natural justice cannot operate within any straitjacket formula and much would g depend on the facts and circumstances of each case. The Division Bench further held that every departure from Rule 9 would not result in violation of the principles of natural justice and it is the spirit of Rule 9 rather than a rigid and mechanical adherence that is required to be followed. In the present case, while it is correct that list of witnesses was not furnished to the petitioner, but at no stage of the proceeding before the enquiry officer the petitioner had expressed any difficulty in the conduct of his defence on account of the said omission. Rather the records of the enquiry, available in original, would go to show that the petitioner fully participated in the proceeding and while he had declined to cross-a examine most of the witnesses examined in support of the charges, Same witnesses were cross-examined by him. In the above facts, the omission on the part of the disciplinary authority to furnish to the petitioner the list of documents and list of witnesses cannot be considered by the Court to be fatal.
9. Coming to the argument advanced on the point of services of a defence assistant being denied to the petitioner, what this Court finds from a consideration of the law laid down by the Apex Court in Bhagat Ram (supra) is that the Apex Court had insisted on such service being made available to the delinquent in a situation where the department was represented by a presenting officer and the delinquent, by virtue of his being from a lower echelon of service, was unable to match the skill of the presenting officer. In the aforesaid facts, the Supreme Court held that prejudice was caused to the delinquent on account of the1 failure of the disciplinary authority/enquiry officer to inform the delinquent of . his right to have the services of a defence assistant. The decision of the Apex Court, being in the aforesaid facts, cannot be understood to have laid down any law to the effect that in every case where a delinquent is not informed of his right to have the services of a defence assistant, the disciplinary proceeding must necessarily be held to be vitiated. This is the view taken by the Division Bench of this Court in Saroj Bhattacharyya (supra). In the present case, admittedly, no presenting officer was appointed the petitioner is not a lowly placed Grade IV employee. He is a Sub Inspector of Police. Above all, the petitioner, at no point of time, appears to have expressed any discomfort in facing the departmental enquiry on account of non-availability of the services of a defence assistant.
10. The argument advanced on behalf of the petitioner that enquiry must be held to have been vitiated on account of the failure of the, disciplinary authority to make available copies of the statements of the witnesses recorded every day or for that matter as the enquiry officer ” had not recorded his findings separately on each of the charges levelled, has now to be considered. While a consideration of the report of enquiry makes it abundantly clear as to how the enquiry officer had proceeded in the matter and had applied his mind in coming to the impugned findings, requirement of furnishing to the petitioner copies of the statements of witnesses examined every day, without any prejudice being caused by any such alleged omission, cannot be understood by the Court to be fatal for the case brought against the petitioner. In so far as the allegation that he was not allowed cross-examine the witnesses, the Court must take notice of the fact that the said allegation has been levelled in the memo of appeal filed by the petitioner before the appellate authority. No such grievance was pointed out to the enquiry officer. A perusal of the record of enquiry, placed before the a Court, in original, would go to show that it is the petitioner, who, in fact, had declined to cross-examine some of the witnesses while some of the witnesses were actually cross-examined by him.
11. Coming to the question as to whether in view of the pendency of the criminal case brought against the petitioner, the departmental enquiry ought not to have proceeded with, what this Court finds is that in Capt. M. Paul Anthony (supra), the Apex Court held that there is no legal bar for a departmental proceeding and a criminal case to continue simultaneously. In fact, the Apex Court had laid down that in certain situations it will he desirable in public interest as well as in the interest of the delinquent/charged officer that the departmental proceeding is not stayed while the criminal proceeding continued. Of course, the Apex Court in Capt. M. Paul Anthony (supra), had laid down that in a situation where the charges in the departmental enquiry and the criminal case are identical, the Courts should carefully weigh the relevant facts and circumstances and if there is any possibility of prejudice to the delinquent/charge officer, the departmental proceeding may be stayed. Not only no law has been laid down by the Apex Court that both sets of proceedings cannot proceed simultaneously, what must be noticed is that in Capt. M. Paul Anthony (supra), the charge in the criminal case and the departmental proceeding was exactly identical and, therefore, as the criminal case had ended in acquittal of the charged officer, the earlier dismissal Order passed on the basis of the departmental proceeding was interfered, with by the Apex Court. In the present case, the criminal proceedings are yet to see the light of the day. That apart what must be noticed by the Court is that in the present case, the f charge in the criminal case and the departmental proceeding against the petitioner are vastly different. The charge in the criminal case is one relating to the commission of the offence of murder under Section 302 IPC whereas the charge in the departmental proceeding is one of misconduct emanating from the actions of the petitioner in consuming g liquor while on duty and, negligence in handling of the fire arm allotted to him, which had resulted in the death of LNK Noliston Marak. The charges in the two sets of proceedings are vastly different. The ratio laid down in Capt. M. Paul Anthony (supra), would, therefore, have no application to the facts of the present case.
12. This would bring the Court to the last aspect of the case, i.e., whether here was any acceptable evidence on the basis of which the findings of the enquiry officer affirming the charges against the petitioner can be upheld by the Court. This aspect of the matter has been, considered in the light of the argument advanced on behalf of the petitioner that there were no eye witnesses to the incident. this Court is not sitting in appeal over the decision of the enquiry officer. The power under Article 226 of the Constitution is a broad supervisory power which would extend only to satisfy the Court that there were materials on the basis of which a reasonable person could have come to the conclusion as has been reached by the enquiry officer. In this regard, the evidence of witness Nos. 3, 6, 7, 8, 9 and 13 would be relevant. Witness No. 3 K. Hajong, in course of the enquiry, had deposed that in his presence the writ petitioner had informed all concerned that LNK Noliston Marak was shot by the petitioner. Witness No. 6 U.B.C. Konendra Sangma in his statement had testified that is presence the writ petitioner had handed over the service revolver to the Officer-in-Charge of the William Nagar Police Station saying that he had shot LNK Noliston Marak. The evidence of witness No. 7, who is the Deputy Superintendent of Police, is also to the same effect. The statement of witness No. 8 Manju Ch. Marak, recorded in the course of the enquiry, would go to show that she was the wife of the deceased and she had stated that the writ petitioner along with her husband had been drinking in the afternoon of the date of occurrence and the writ petitioner was threatening the deceased with his revolver even at that time. The evidence of witness No. 9 Inspector T.K. Das, Officer-in-Charge of the William Nagar Police Station, is to the effect that the writ petitioner had admitted before him that he had shot LNK Noliston Marak and further that medical examination of the petitioner had confirmed that he had consumed liquor. Witness No. 13, examined in the enquiry, is Bindu Das, in whose house the incident took place. At that time, there was another person present by the name of Butul Modok. Bindu Das in his statement before the enquiry officer had admitted that the writ petitioner and the deceased were drinking and that they were playing around with the service revolver of the petitioner. The other person present along with Bindu Das, i.e., Butul Modok was not examined in the enquiry as his whereabouts could not be ascertained. However, the enquiry officer considered the statement of the aforesaid person recorded under Section 164 Cr.P.C, wherein he had clearly stated that the writ petitioner and the deceased were drinking and that the writ petitioner was threatening the deceased with his service revolver. In the above facts, it can hardly be said that the conclusion of the enquiry officer is vitiated by any such fundamental error and/or even by, misappreciation of evidence at would justify interference by this Court under Article 226 of the Constitution.
13. For all the aforesaid reasons, I am inclined to take the view that the conclusions reached by the enquiry officer, have been reached legitimately and reasonably on the basis of materials available on record and there being no defect in the enquiry held against the writ petitioner, the punishment of removal from service imposed by the disciplinary authority is just and adequate. I, therefore, dismiss this writ petition leaving the parties to bear their own cost.