Gauhati High Court
B. Hmangaisanga vs State Of Mizoram And Ors. on 4 July, 2003
Equivalent citations: (2004)2GLR276
Author: S.K. Kar
Bench: S.K. Kar
JUDGMENT S.K. Kar, J.
1. This is an petition under Article 226 of the Constitution of India filed by B. Hmangaihsanga Constable No. 356, 1st I.R. Bn. In the context of his alleged resignation and subsequent orders passed by the appellate authority punishing him with stoppage or three increments with cumulative effect. The petitioners contends there is a case of violation of Articles 14, 16 and 21 of the Constitution of India along with violation of natural of justice etc.
2. Brief facts are that petitioner being a constable while in service was charged by his senior colleague with the accusation of attempting to steal a shirt. Authorities took steps to lodge a FIR but refrained from doing so as the petitioner offered to resign from his service on condition that no police case will be filed against him. Thereafter, he tendered his resignation which was accepted. Against this acceptance of his resignation later on he filed a writ petition, W.P. (C) No. 73 of 2001, alleging that resignation was submitted under duress. Writ petition was closed with direction to file appeal before higher authority. Accordingly, the appeal was preferred and appellate authority revoked the order of accepting resignation but rendered an order of punishment by with holding his increments for three years with cumulative effect. He was reinstated in service with direction that period of absence will be counted only for the purpose of pensionary benefits. Hence this petition alleging arbitrary action.
3. I have heard both sides through learned counsels.
4. The contention of the learned Government advocate appearing for the respondents is that the petitioner was guilty of misconduct and there was a semblance of inquiry before accepting the resignation letter and accordingly the punishment was rightly given and there is nothing for the court to interfere.
5. Considering the submissions of the both sides, this court finds that undisputedly there was no formal inquiry instituted against the petitioner and the punishment above-mentioned was given in lieu of setting aside the order of acceptance of resignation. This cannot be permissible in law. It is also not in dispute that the punishment rendered was a major punishment which can be given only after holding a inquiry as per the provision in the concerned police manual (Rule 66 of Part III). It is also not in dispute that the petitioner is confirmed police constable. That being so his service cannot be disturbed without adherence to due process of law.
6. In the result, this petition succeeds. The part of impugned order dated 12.10.2001 passed vide Memo No. C 16014/30/98 - range /634 dated 12.10.2001 is set aside in so far it relates to the punishment of withholding three increments with cumulative effect. It is clarified that petitioner will continue to be in service with all service benefits save and except back wages from the period from 19.1.1998 to 12.10.2001.
7. Notwithstanding the aforesaid order of allowing petition, the department will have full liberty, to contemplate or go ahead with any fresh disciplinary proceedings against the petitioner, if so desired ; and on conclusion thereof, to pass appropriate orders as per law. The question of back wages also may be decided on the basis of the result of any such departmental proceedings, at the option of the Disciplinary Authority.