BIJAY GURUNG Vs. STATE OF SIKKIM AND OTHERS

JUDGEMENT

(1.) The impugned Office Order bearing No.10/SPE/RDR/ 2004(Vol-II)558/SPIC, dated 09-07-2016 (Annexure P5), of the Respondent No.3, Superintendent of Police, East District, Gangtok, Sikkim, imposed the penalty of compulsory retirement on the Petitioner pursuant to a departmental enquiry under the Sikkim Police Force (Discipline and Appeal) Rules, 1989 (hereinafter "1989 Rules"). Claiming irregularities and non-compliance of statutory provisions in the departmental enquiry which culminated in the impugned Office Order supra, the Petitioner exhorts that his fundamental rights have been abrogated and seeks reprieve.

(2.) In the year 1996, the Petitioner was recruited in the first batch of the Indian Reserve Battalion (hereinafter "IRB") and posted in Delhi from 1996 to 2011, where, according to him, he served with honesty, integrity and to the best of his ability. In the year 2015, the IRB was merged with the Sikkim Police and the Petitioner transferred to the said Force. Beset with family problems at the relevant time, his performance declined following which he was ordered to undergo Reformatory Course at the Sikkim Armed Police, Pangthang, East Sikkim (hereinafter "SAP") from 19-02-2016 to 20- 03-2016. In compliance thereof, he joined the Course on 19-02- 2016, where on 20-02-2016 on an alleged search of his bag, controlled substances comprising of eight bottles of "Khoos Khoos" cough syrup, eight strips of Spasmo Proxyvon containing sixty-four capsules and one strip of Nitrosun 10, containing ten tablets were recovered. That, the allegation being false was consequently not reported to the concerned Police Station despite the mandate of the Sikkim Anti Drugs Act, 2006. Office Order bearing No.010/POL/SPE/ RDR/2004(Vol-II)/161, dated 20-02-2016 (Annexure P1), impugned herein, came to be issued by the Respondent No.3 placing the Petitioner under suspension in contemplation of departmental proceedings. The Office Order was allegedly issued on a Complaint received from the Training Officer, SAP, informing the Respondent No.3 of recovery of the aforestated controlled substances. This was followed by Memorandum bearing No.10/POL/SPE/RDR/2004/193, dated 27-02-2016 (Annexure P2), also impugned, issued by the Respondent No.3 proposing to hold an enquiry against the Petitioner and directing him to submit within ten days of the receipt of the Memorandum, a written statement of his defence and whether he desired to be heard in person, duly appending the statement of articles of charge. That the list of documents on the basis of which the articles of charge were to be proved were not made over to the Petitioner. Although Sl. No.2 of the list pertains to a Property Seizure Memo but as no criminal case was registered against the Petitioner the requirement of such a document is questionable. Vide Order of the disciplinary authority, Respondent No.3, bearing No. 10/POL/SPE/RDR/2004(Vol-II)/213, dated 09-03-2016, (Annexure P3), one Prasad Dewan, Dy. SP, SDPO, Pakyong was appointed as the Inquiry Officer (hereinafter "I.O.") and PI Bikash Tiwari, SHO, Pakyong P.S., as the Presenting Officer (hereinafter "P.O.") to present the matter on behalf of the disciplinary authority. Both Officers being subordinate to and working under the Respondent No.3 are alleged to be amenable to his directions. Upon his appointment the I.O. issued a letter dated 09-03-2016 (Annexure P4) to the Petitioner directing him to file his written statement of defence, without furnishing the relevant documents, within a period of ten days from the receipt of the said letter revealing thereby his ignorance of the Memorandum dated 27-02-2016 (Annexure P2) supra, thereby indicating the ulterior motive of the authorities. That, the records made over to the Petitioner reveal that the Respondent No.3 and the I.O. were evidently at the same place on 09-03-2016 to have issued Annexure P3 (supra) and Annexure P4 (supra). It is alleged that the Petitioner who was directed to be stationed in the Office of the Respondent No.3 vide Office Order dated 20-02-2016 (Annexure P1) was coerced and intimidated not to assail the abovementioned Office Orders and Memorandum with assurances of leniency in the enquiry. That, the Petitioner till then was neither served with the Office Order dated 20-02-2016 nor a copy of the Memorandum but his signature obtained on blank paper on the pretext that it would be used to mark his attendance. In such hostile circumstances, the Petitioner was compelled to file his written statement without fully comprehending the charges levelled against him sans documents or statement of witnesses. Nevertheless, the Petitioner has denied the charges framed against him in his written defence as false and fabricated. Pursuant thereto, the enquiry was conducted without following the procedure prescribed in Rule 7 of the 1989 Rules and without extending an opportunity to the Petitioner of making any verbal representation or the benefit of examining documents or cross-examining the witnesses. Admittedly he appeared before the I.O. on four occasions but alleges the absence of the P.O. except on one date. Further, that none of the listed witnesses were seen by him at the enquiry, nor was he allowed to take the help of his superiors or legal assistance. On subsequent realisation by the Respondents that the departmental enquiry against the Petitioner would not sustain, the Respondents coerced him to admit and plead guilty to the charges levelled against him, following which, the impugned Order bearing No.10/POL/RDR/2004(Vol-II)558/SPIC, dated 09-07-2016 (Annexure P5), was issued by the Respondent No.3. In the month of August 2016, the Petitioner with false assurances and in the absence of records of the enquiry was persuaded to apologise but his apology was treated as an Appeal under Rule 11 of the 1989 Rules by the Respondent No.2 before whom he was neither summoned nor proceedings initiated. Office Order dated 22-08- 2016 (Annexure P7) instead was served on him confirming the penalty imposed. The Petitioner on legal advice approached the Respondent No.3 seeking the departmental enquiry records on several occasions, but none were forthcoming. Hence, the prayers in the Petition as follows;

(3.) Respondents No.1, 2 and 3 filed a joint Counter-Affidavit disputing and denying the allegations made in the Writ Petition or violation of fundamental rights of the Petitioner. That, on the recommendation of the concerned SDPO on 15-02-2016, the Petitioner along with eight others was sent to SAP, Pangthang, for a Reformatory Course from the Sadar P.S., Gangtok, where they were posted, on failure to perform their duties diligently. During the morning physical training on 20-02-2016 the Petitioner's inability to walk/run was noticed following which at around 0730 hours after the morning session a surprise check of the belongings of the Petitioner was conducted by two ASIs and one Head Constable (H/C) stationed at SAP. The search led to recovery of the controlled substances detailed supra from a pair of black boots belonging to the Petitioner kept under his bed. The seized items were duly handed over to the Respondent No.3 along with a Property Seizure Memo prepared by the Training Officer, SAP. Consequently, the Petitioner was placed under suspension vide impugned Office Order dated 20-02-2016 and disciplinary proceedings initiated against him for gross misconduct and negligence in terms of Rule 7 of the 1989 Rules and the Sikkim Police Force (Disciplinary & Appeal) Amendment Rules, 1995 (hereinafter "Amendment Rules 1995"). Pursuant thereto, the Memorandum dated 27-02-2016 (Annexure P2) was issued by the Respondent No.3 to the Petitioner while the I.O. issued correspondence dated 09-03-2016 (Annexure P4). Although on 17- 03-2016 when the Petitioner filed his written statement to the articles of charge (Annexure R6) he accepted the charges framed against him contrarily when the I.O. recorded his statement he denied ownership of the articles. On 30-03-2016, the I.O. also recorded the statements of six witnesses in the presence of the P.O. PI Bikash Tiwari. On 28-06-2016, the I.O. recorded the statements of the Training Officer and thereafter afforded an opportunity to the Petitioner to cross-examine the Officer, which he declined. On completion of departmental enquiry on 30-06-2016, the I.O. submitted report to the Respondent No.3, who after taking into consideration the report, imposed the penalty of compulsory retirement on 09-07-2016 with effect from 20-02-2016, the date of suspension of the Petitioner. On 01-08-2016, the Petitioner filed an Appeal before the appellate authority requesting grant of pardon who on 22-08-2016 after hearing the Petitioner upheld the Orders of the disciplinary authority. As per the Respondents the Writ Petition is liable to be dismissed as it is neither maintainable in law or facts and suffers from delay and laches as penalty imposed was confirmed on 22-08-2016 but the Writ Petition has been filed only on 21-11-2016.