LALTHAHLUNA Vs. STATE OF MIZORAM

JUDGEMENT

(1.) HEARD Mr. Zochhuana, learned counsel for the petitioners and Mrs. Dinari T. Azyu, learned Govt. Advocate for the respondents.

(2.) THIS is a second round of litigation. In this writ petition the petitioners once again have challenged the impugned order (annexure-XIX) issued under Memo No.2IR/R/Common-DEDVR-3/09/2092 dated 18.11.2009, whereby and whereunder petitioners are removed from service. It would appear from the perusal of the records that on account of removal of the writ petitioners by the Commandant, 2nd IR Battalion by order dated 25.8.2006, the petitioners approached this court challenging their removal by filing Writ Petition (c) No. 31 of 2008, which came to be disposed of by this court vide judgment and order dated 1.4.2009. The removal of the petitioners made by impugned order dated 25.8.2006 was made without holding a disciplinary proceeding as mandated under Article 311(2) of the Constitution of India. THIS court while disposing the aforesaid writ petition, in paragraph-6 of the judgment and order observed as under:

(3.) MR. Zochhuana, learned counsel for the petitioners at the very outset of his argument submits that the impugned removal order cannot sustain in law since there is violation of the procedure of conducting departmental proceeding against the delinquent. It is submitted by MR. Zochhuana that Saidingliana Sailo, Deputy Commandant, 2nd IR Battalion was appointed as Enquiry Officer. Said Saidingliana, the Enquiry Officer assumed dual role while conducting the inquiry against the writ petitioners. MR. Zochhuana referring to the inquiry report, Annexure-17 submits that during inquiry 3(three) witnesses for the department were examined to prove article of charges against the writ petitioners. The Enquiry Officer by assuming the role of Presenting Officer examined those 3(three) witnesses in order to prove the article of charges against the petitioners. It is submitted by MR. Zochhuana that the Enquiry Officer being in the position of a Judge cannot assume dual role while conducting a disciplinary proceeding which is quasi judicial in nature against the delinquents. During the pendency of the writ petition, the learned State counsel was directed to place the entire records of the disciplinary proceeding to substantiate whether for the purpose of disciplinary proceeding any Presenting Officer was appointed or not. The records of disciplinary proceeding having been placed before this court we do not find anywhere that the disciplinary authority appointed a Presenting Officer to present its case before the Enquiry Officer against the petitioners. Since the records of the disciplinary proceeding are silent in regard to the appointment of a Presenting Officer, it would appear to this court that the witnesses examined in the disciplinary proceeding were examined by the Enquiry Officer himself and thus it would go to show in clear terms that Saidingliana Sailo, Deputy Commandant, 2nd IR Battalion assumed dual role of Enquiry Officer as well as Presenting Officer.