B CHHAWNKIMA Vs. STATE OF MIZORAM

JUDGEMENT

(1.) HEARD Mr. Zochhuana, learned counsel for the petitioner and Mr. N. Sailo, learned Additional Advocate General, Mizoram, for the State respondents.

(2.) THE material facts, necessary for disposal of this writ-petition, are that the petitioner was appointed as a Constable in 1st Mizoram Armed Police Battalion ('map Bn. ', in short), on 28. 02. 1990, and his service was confirmed on 02. 05. 1994. He was thereafter transferred and posted to 2nd MAP Bn. at Lunglei. While he was working in the 2nd MAP Bn. , a criminal prosecution was launched against him by Lunglei police on alleged charge of assaulting and causing death to one Havilder Driver Neilhaia in the night of 23. 03. 1996 and the petitioner, on being charged under Section 302 of IPC in Lunglei Police Station Case No. 27/96 was tried by the Court of ADM (J), Lunglei District, Lunglei. While the investigation and trial of the aforesaid criminal case was in progress, the petitioner was placed under suspension w. e. f. 23. 03. 1996 and a departmental proceeding was initiated against him by serving show-cause notice to him on 21. 07. 1997 on the same charge of assaulting and causing death to his colleague Havildar Driver Neilhaia. The petitioner, thereafter, submitted written-statement denying the charge of murder and he took the plea of self-defence. The Disciplinary Authority not being satisfied with the defence taken by the petitioner decided to proceed with the enquiry by appointing one Mr. M. Lalthanhaula Sailo, Deputy Commandant, of the said Battalion as Enquiry Officer who conducted the inquiry and submitted a report holding that the petitioner was guilty of the charge framed against him and recommended for taking stern disciplinary action against him under Section 7 of the Indian Police Act read with Rule 66 of the Assam Police Manual, Part-III. On the basis of the aforesaid report, the Disciplinary Authority served a 2nd show-cause notice to the petitioner on 03. 09. 2003 stating that he has agreed with the finding of the Enquiry Officer and proposed to inflict the punishment of removal from service. The petitioner was accordingly directed to make representation, if any, within a period of 15 days, against the proposed penalty of removal from service. The petitioner submitted reply to the aforesaid show-cause notice within the stipulated time taking the stand that the action was taken by him against the Havildar Driver Neilhaia in self-defence only and that the said Driver was under the influence of liquor and had become wild and violent at the relevant time. The Disciplinary Authority was not satisfied with the plea taken by the petitioner and passed order dated 03. 11. 2004 removing the petitioner from service with immediate effect and treating the period of his suspension w. e. f. 23. 03. 1996 till passing of the removal order dated 03. 11. 2004 as not spent in duty.

(3.) MR. Zochhuana learned counsel for the petitioner, broadly urges upon the following points :