MOATEMSU AO Vs. STATE OF NAGALAND AND ORS.

JUDGEMENT

(1.) IN this petition the Petitioner challenges the order of dismissal on ground of desertion issued by the Superintendent of Police vide No. MDP/RO -15/90 -91/1993 dated 20th December 1991, on the ground that the impugned order was issued without affording an opportunity of being heard to the Petitioner.

(2.) THE Petitioner was appointed as Constable w.e.f. 15.1.83. Thereafter he successfully completed training and remained in service for about eight years. While serving at Changtongya Police Station in Mokokchung District, the Petitioner took leave (out pass) on 18 and 19 October, 1991 from O.C. of Changtongya Police Station on ground of some domestic affairs, It is contended that as the Petitioner was facing some problems at home he could not report back for duty in time. It appears the Petitioner had overstayed his leave (out pass), The manor was reported by O.C. to Supdt. of Police, Mokokchung on 19.11.91. The Supdt. of Police directed on the same day i.e. 19.11.91 that seven days notice be served upon the Petitioner to report back for duty, Obviously notice was served on 21.11.91. According to the Petitioner he duly reported to R.O. at S.P.'s office but he was informed verbally by R.O. that he was dismissed from service. It appears the Petitioner had not persisted in the matter and had simply gone home and stayed on with his family.

(3.) THE first submission made on behalf of the Petitioner is that the impugned order of dismissal on ground of desertion is Impermissible in the circumstances of this case in as much as the fact that the Petitioner was physically available in Mokokchung was known to the office of S.P. The proof that the Petitioner was at all times available in Mokokchung Town is that notice to report back for duty within seven days was duty received by the Petitioner on 21.11.91. It is also contended that being a local person residing pear Fazl Ali College of Mokokchung the question of desertion in a manner stated in the order cannot be sustained. Another submission made on behalf of the Petitioner is that in the event of desertion also the manner in which the dismissal order is issued is illegal in as much as no enquiry was made. There is absolutely no material to show that the Petitioner deserted. It is also submitted as stated above that the Petitioner in fact reported to R.O. but it was simply told not to come for duty. The other submission of the learned Counsel for the Petitioner is that having put in eight years service as Constable the Petitioner could not have been dismissed in the manner sought for to be done by the impugned order. The Petitioner claims that he had right to be heard before such drastic action was taken in dismissing the Petitioner from service. It is also contended on behalf of the Petitioner that no copy of impugned order of dismissal dated 20th December, 1991 was ever served. As stated above only when the Petitioner approached the office of S.P. on 9.11.92, that a copy of the said order of dismissal was furnished to the Petitioner. It is also submitted that there is nothing to show that any effort was made to find out whether the Petitioner was available in his residence with his family. According to the counsel, the Petitioner has four minor children. It is the case of the Petitioner that since no enquiry was made he had absolutely no opportunity of explaining how he had over stayed leave obtained by him from O.C.