Gauhati High Court
Protosius Lyngdoh vs State Of Meghalaya And Anr. on 11 April, 2006
Equivalent citations: (2006)3GLR218
Author: Ranjan Gogoi
Bench: Ranjan Gogoi
JUDGMENT Ranjan Gogoi, J.
1. A common projection against separate but identical orders dated 16.7.1992 removing each of the petitioners from service by invoking the power under Clause (c) of the proviso to Article 311(2) of the Constitution, being discernible, all the writ petitions were heard analogously. The subject-matter of the fifth case, i.e., W.P.(C)No. 161 of 2001 being with regard to the entitlement of two of the petitioners to retain the official accommodation allotted to them has also been heard together.
2. The writ petitioner in W.P.(C) No. 252(SH) of 2002, Sri P. Lyngdoh, was appointed as a Constable in the Special Branch of the Meghalaya Police on 12.5.1982. Likewise, the petitioner in W.P.(C) No. 253(SH) of 2002, M. Momin, was appointed-as a Armed Branch Constable in the Meghalaya Police on 24.5.1976. On the other hand, the petitioner in W.P.(C) No. 405(SH) of 2002, C. N. Vijayen was appointed as an Unarmed Branch Constable on 21.8.1991 whereas the petitioner in W.P.(C) No. 406(SH) of 2002, Tildesh Sangma, was appointed as a Unarmed Branch Constable on 8.8.1979.
The pleadings contained in the writ petitions challenging the removal of the petitioners are same and similar. According to the petitioners, they were detained by separate orders, each dated 4.6.1992, passed by the District Magistrate, East Khasi Hills under Section 3(2) of the National Security Act, 1980. The grounds of detention were furnished to them on 6,6.1992 and after confirmation of their detention by the State Government, as required under the Act, they had filed representations against their detentions which representations were rejected. The detentions of the petitioners were also approved by the Advisory Board constituted under the Act. While the petitioners were under detention by separate but identical orders dated 16.7.1992 they were removed from service by invoking the power under Clause (c) of the proviso to Article 311(2) of the Constitution.
According to the petitioners, while they were in custody, two criminal cases, i.e., G.R. Case No. 363(S)/1992 and G.R. Case No. 364(S)/1992 were instituted against them. Though they were released from detention on 4.6.1993 and though by judgment and orders passed in the criminal cases on 21.9.1998 [G.R. 361(S)/92] and 22.10.2001 [G.R. 360(S)/92], they were acquitted of the charges levelled against them, such acquittal was not followed by the reinstatement of the petitioners in service. Accordingly, the petitioners filed separate representations dated 15.4.2002 seeking reinstatement in service. As the aforesaid representations were not disposed of by the authority the writ petitions in question were filed. While entertaining the writ petitions, this Court had directed the concerned authority in the Meghalaya Government to pass orders on the representations of the petitioners. Thereafter, by orders passed by the competent authority the said representations were rejected whereafter this Court had ordered that the writ petitions challenging the removal of the petitioners made by Order dated 16.7.1992 shall be heard on merits.
3. The pleadings made in the writ petitions are somewhat scanty. Apart from contending that the removal of the petitioners did not follow the procedure laid down by law and that the petitioners have been denied a reasonable opportunity to contest the proceedings against them, no other case has been pleaded by the writ petitioners.
4. The respondents have filed their affidavits in each of the cases. While the affidavits of the respondents in W.P.(C) No. 252(SH) of 2002 and W.P.(C) No. 253(SH) of 2002 are similar, the affidavits filed in W.P.(C) No. 405(SH) of 2002 and W.P.(C) No. 406(SH) of 2002 bear striking similarities.
In the affidavits filed in W.P.(C) No. 405(SH) of 2002 and W.P.(C) No. 406(SH) of 2002, the stand of the respondents is that the petitioners were involved in activities prejudicial to the maintenance of public Order and security of the State which necessitated the exercise of power under Clause (c) of the proviso under Article 311(2) of the Constitution. In the affidavits filed in the above two cases the official respondents have taken the stand that the records will show that the petitioners had formed an illegal Union within the police force, i.e., All Meghalaya Subordinate Police Officers Association of which they were the leaders/ office bearers. It is alleged that the petitioners, in several meetings, had delivered inflammatory speeches with communal undertones and had instigated their associates to attack non-tribal officers, destroy Government property and overawe the Government by staging a mutiny. According to the official respondents, the petitioners had succeeded in causing widespread hatred amongst different communities within the police force and on these facts the Governor was satisfied that the removal of the petitioners was necessary in the interest of the security of the State and further that it was not expedient to hold an enquiry in the interest of such security of the State.
5. The affidavits of the official respondents in W.P.(C) No. 252(SH) of 2002 and W.P.(C) No. 253(SH) of 2002 contain a narration of the detailed activities of the petitioners with reference to specific dates and places whereby each of them had instigated the subordinate police officers to raise in rebellion/mutiny against the State. According to the respondents, the petitioners alongwith others had obstructed police personnel on duty and had forced such police personnel to abandon their duties thereby causing a threat to public Order and security of the State. The respondents, in the affidavit filed, have further stated that the actions of the petitioners were aimed at undermining the Rule of law and the security of the State by provoking a mutiny in the police constabulary. It is in these circumstances that the Governor felt it necessary to invoke the power under Clause (c) of the proviso to Article 311(2) of the Constitution to remove the petitioners from service without holding any enquiry as such enquiry was considered to be inexpedient in the interest of the security of the State.
6. At the hearing Mr. T. T. Diengdoh, learned Government Advocate, has placed before the Court the records in original containing the recommendations of the authority in the police department for invocation of the power under Clause (c) of the proviso to Article 311(2) by the Governor on the facts specifically enumerated in the said recommendations. The manner in which the recommendations were processed at different levels leading to the eventual Order of removal in the file, pursuant to which the impugned orders dated 16.7.1992 were issued, have also been placed before the Court. No privilege in respect of the said documents has been claimed. In such circumstances and having regard to the fact that the incidents alleged had occurred as far a back as in the year 1992, the Court had thought it appropriate to allow the learned Counsel for the petitioners to have an inspection of the records so as to enable the learned Counsel to effectively address the Court on the grievances raised. Accordingly, inspection of the records was carried out by the learned Counsel for the petitioners.
7. The arguments advanced by Ms. A. Paul, learned Counsel for the petitioners, after inspection and verification of the records in original as placed before the Court, are to the effect that the initial recommendations for invocation of the power under Clause (c) of the proviso to Article 311(2) was made by the Inspector General of Police, c who, according to the learned Counsel for the petitioners, was an interested party. In fact, the demonstrations/strike and some of the acts of assault and intimidation alleged against the petitioners were committed in respect of the Senior Officers of the police. learned Counsel for the petitioners, therefore, has argued that the initial recommendations ought to have been by a multi-member body to ensure fairness and objectivity in the decision making process. learned Counsel for the petitioners has also argued that the expression 'security of State' as appearing in Clause (c) of the proviso to Article 311(2) has to be understood with reference to the State as a Nation and not to the geographical boundaries of the State of Meghalaya. learned Counsel for the petitioners has further argued that a consideration of the materials against the petitioners as mentioned in the recommendations of the Inspector General of Police, at best, shows that the activities of the petitioners' had created a law and Order problem in the State of Meghalaya and no security of State was threatened by such acts.
learned Counsel has further argued that the materials on record do not disclose that any satisfaction was reached by the Governor that an enquiry against the petitioners before their removal from service should be dispensed with in the interest of the security of the State. Rather, the satisfaction reached, as it appears from the records inspected, is that the removal of the petitioners from service is necessary in the interest of security of the State.
learned Counsel has further submitted that the petitioners have been victimised for taking part in Union activities to espouse the legitimate service grievances of the police personnel like ration allowance and holiday allowance. The petitioners have also been victimized for being office bearers of the All Meghalaya Subordinate Police Officers Association which was an unregistered and unrecognized body. Relying on the provisions of Section 4 of the Police (Incitement to Dissatisfaction) Act, 1922 learned Counsel for the petitioners has contended that their a participation in Union activities as members of an unregistered association cannot, per se, be construed to be illegal.
It is also argued by the learned Counsel for the petitioners that in the recommendations for invocation of the power under Clause (c) of the proviso to Article 311(2) though many cases of illegal and prejudicial b activities of the petitioners including incidents of assault had been mentioned and several F.I.Rs. had been filed, only two of the said cases were charge-sheeted. The aforesaid two cases also ended in acquittal and the judgments acquitting the petitioners would reveal that no prosecution witnesses had come to depose in support of the allegations made which would go to show that the said allegations are, per se, false/untrue. The basis on which the petitioners had been removed from service being substantially the same, a departmental proceeding, if initiated, would have met the same fate. This, learned Counsel for the petitioners argue, is the real reason for dispensing with the enquiry, and resort to the power under Clause (c) of the proviso to Article 311(2) is a mere sham and/or pretence.
8. The arguments made on behalf of the petitioners have met with stiff resistance offered by Mr. T. T. Diengdoh, learned Government Advocate, appearing for the respondents. Sri Diengdoh has argued that the writ e petitions, having challenged the Order of removal made as far back as on 16.7.1992, are inordinately delayed and there is no explanation whatsoever for the said delay.
Arguing further, Sri Diengdoh, learned Counsel appearing for the official respondents, has submitted that Clause (c) of the proviso to Article 311(2) unlike Clause (b) does not contemplate recording of reasons as to why it is considered expedient not to hold an enquiry in the interest of security of the State. According to Sri Diengdoh, learned State Counsel, if a removal of a Government servant is necessary in the interest of security of the State by dispensing with the enquiry, recording of reasons as to why the enquiry is required to be dispensed with would be self-defeating and self-contradictory and recording of such reasons itself will not be in the interest of the security of the State.
Sri Diengdoh, learned State Counsel, has also relied on the observations of the Apex Court contained in paragraph 140 of the decision in the h case of Union of India v. Tulsiram Patel in support of the contentions that the expression 'security of State' is not capable of any precise meaning. The learned Government Advocate has further contended that the criminal cases against the petitioners is not the only basis for their removal and hence the acquittal of the petitioners in the criminal cases cannot be a relevant factor for interference with the Order of removal.
Sri Diengdoh, learned State Counsel, has further argued that the power of the Court under Article 226 of the Constitution while examining an Order of removal under Clause (c) of the proviso to Article 311(2) is an extremely circumscribed power as held in the case of A.K. Kaul and Anr. v. Union of India and Anr. . That the power of the Court would extend only to an examination of the question as to whether the action of the Governor suffers from any mala fides or is based on extraneous or collateral reasons. Sri Diengdoh, learned State Counsel has also submitted that the satisfaction of the Governor being subjective, on the materials on record it cannot be said that any case of male fide or consideration of irrelevant factors had entered into the decision making process so as to vitiate the impugned Order of removal. In this regard, Sri Diengdoh, learned State Counsel, has further submitted that the pleadings contained in the writ petitions are conspicuously lacking in so far as any plea of mala fide is concerned.
9. Having noticed the arguments advanced on behalf of the rival parties the Court may now proceed to consider the decisions cited at the Bar in support of the respective propositions. In this regard, both sides having relied on the judgments of the Apex Court in the cases of Union of India v. Tulsiram Patel , A.K. Kaul v. Union of India and Union of India v. Balbir Singh , the task of the Court would be confined to an attempt to understand the law laid down by the Apex Court in the aforesaid judgments. But before embarking upon the discussion enumerated above, it will be necessary to deal with the argument raised on behalf of the State that the writ petitions being inordinately delayed, the petitioners are not entitled to an adjudication of the merits of the controversy/dispute raised.
10. While it is correct that the orders dated 16.7.1992 removing the petitioners from service have been challenged in the present writ petitions filed in the year 2002 and there is no explanation for the delay, certain features of the case, as unfolded in course of the oral arguments, cannot escape the Court's attention. The petitioners against whom the impugned orders of removal have been passed were, naturally, not aware of the facts and circumstances which had necessitated their removal from service and that too without holding an enquiry. As already noticed, while the petitioners were under preventive detention, two criminal cases were instituted against them which relate to alleged assaults by the petitioners of their superior officers. In such circumstances, if the petitioners understood their removal from service to be on account of the criminal cases filed against them and, therefore, once the criminal cases ended in their acquittal, they had preferred representations dated 14.5.2002 seeking reinstatement and only upon failure of the State authorities to answer their representations within a reasonable time they had approached the Court, the petitioners can hardly be blamed. In deciding the question as to whether delay should be construed to be a relevant factor to refuse, an adjudication of the merits of the dispute raised by the petitioners, the Court must also have regard to the fact that the writ petitioners have been waiting for a period of nearly four years for an answer to the grievance raised. That apart, in so far as the jurisdiction under Article 226 is concerned, the rule/principle of delay is not an absolute principle and invocation of the said principle is essentially a question of judicial discretion. In this regard, the following observations of the Apex Court in the case of Ramchandra Shankar Deodhar and Ors. v. State of Maharashtra and Ors. would be appropriate.
...There was a delay of more than ten or twelve years in filing the petition since the accrual of the cause of complaint, and this delay, contended the respondents, was sufficient to disentitle the petitioners to any relief in a petition under Article 32 of the Constitution. We do not think this contention should prevail with us. In the first place, it must be remembered that the rule which says that the Court may not inquire into belated and stale claims is not a rule of law, but a rule of practice based on sound and proper exercise of discretion, and there is no inviolable rule that whenever there is delay, the court must necessarily refuse to entertain the petition. Each case must depend on its own facts. The question, as pointed out by Hidayatullah, CJ, in Tilockchand Motichand v. H.B. Munshi "is one of discretion for this Court to follow from case to case. There is no lower limit and there is no upper limit.... It will all depend on what the breach of the Fundamental Right and the remedy claimed are and how the delay arose."...
It may also be noted that the principle on which the Court proceeds in refusing relief to the petitioner on grounds of laches or delay is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is reasonable explanation for the delay.
For the aforesaid reasons, I am of the view that the present would not be appropriate cases for denying the petitioners the benefit of an adjudication on merits merely on the ground of delay.
11. This would bring the Court to the core question, i.e., the nature, scope and extent of the power conferred by Clause (c) the proviso to Article 311(2) of the Constitution and the extent of the power of judicia' review against exercise of such power by the President or the Governor, as the case may be. As already noticed, learned Counsels for both sides a have relied on the very same decisions of the Apex Court, i.e., Tulsiram Patel (supra), A, K. Kaul (supra) and Balbir Singh (supra) in support of their respective cases.
12. In Tulsiram Patel (supra) it was laid down by the Apex Court that while invoking the power under Clause (c), the President or the b Governor, as the case may be, is not required to be satisfied as to whether the disciplinary action against the delinquent is necessary in the interest of the security of the State ; the satisfaction that is required to be generated under Clause (c) is whether in the interest of the security of the State it is expedient to hold an enquiry. The satisfaction required to c be reached by the President or the Governor is a subjective satisfaction and such satisfaction may be derived from a wide range of facts and circumstances which may be incapable of precise enumeration. However, as in Tulsiram Patel (supra) the Apex Court, on consideration of the materials placed before it, came to the conclusion that the satisfaction of the Governor cannot be said to have been reached mala fide or as being based upon extraneous or irrelevant grounds, the extent of the power of judicial review available against such satisfaction reached was not gone into. The said question was really answered by the Apex Court in A. K. Kaul (supra) in which decision the view was taken that the principles of judicial review against exercise of power by the President under Article 356 of the Constitution as laid down in S.R. Bommai v. Union of India , would also govern a decision taken by the President or the Governor, as the case may be, under Clause (c) of the proviso to Article 311(2) of the f Constitution. The aforesaid principles as stated in para 21 of the judgment may be usefully extracted hereinbelow.
(i) the satisfaction of the President while making a Proclamation under Article 356(1) is justiciable ;
(ii) it would be open to challenge on the ground of mala fides or being based wholly on extraneous and/or irrelevant grounds ;
(iii) even if some of the materials on which the action is taken is found to be irrelevant, the court would still not interfere so long as there is some relevant material sustaining the action ;
(iv) the truth or correctness of the material cannot be questioned by the court nor will it go into the adequacy of the material and it will also not substitute its opinion for that of the President;
(v) the ground of mala fides takes in, inter alia, situations where the Proclamation is found to be a clear case of abuse of power or what is sometimes called fraud on power ;
(vi) the court will not lightly presume abuse or misuse of power and will make allowance for the fact that the President and the Union Council of Ministers are the best judge of the situation and that they are also in possession of information and material and that the Constitution has trusted their judgment in the manner ; and
(vii) this does not mean that the President and the Council of Ministers are the final arbiters in the matter or that their opinion is conclusive.
In A. K. Kaul (supra) the Apex Court also took the view that having regard to the language of Clauses (c) and (b), recording of reasons under Clause (c) as to why it is considered inexpedient to hold an enquiry is not necessary. However, if an Order passed under Clause (c) is challenged before the Court it would be obligatory on the part of the State to satisfy the Court, by making available the materials on which satisfaction was reached by the President or the Governor, that such satisfaction could have been reasonably reached on such materials. The Apex Court further laid down that in the event a claim of privilege under Sections 123 and 124 of the Evidence Act is raised on behalf of the State, in that event also, it will be obligatory on the part of the State to disclose the nature of activities of the employee on the basis of which satisfaction was arrived at. However, on due application of the principles laid down in S. R. Bommai (supra) the Apex Court recorded the view that the satisfaction recorded under Clause (c) of the proviso to Article 311(2) of the Constitution can be assailed before the Court only on the ground that such satisfaction is vitiated by mala fide or is based on wholly extraneous or irrelevant grounds. No new principle of law had been laid down by the Apex Court in Balbir Singh (supra). What must, however, be noticed with regard to the aforesaid decision is that the enumeration of the activities which may prejudicially affect security of the State and the composition of a multi-member body to make recommendations for invoking the power under Clause (c) of the proviso to Article 311(2) was specifically laid down in a Government Notification which was to apply to the affected employees in that case.
13. The materials on which disciplinary action against the petitioners was taken in the present case including the materials on which satisfaction was reached that it is not expedient to hold an enquiry have been laid before the Court in the form of dossiers prepared for each of the writ petitioners highlighting their various activities which were considered prejudicial to the security of the State. The facts contained in such dossiers came to be incorporated in the recommendations made by the Inspector General of Police. The manner in which the file made its progress through several tables eventually culminating in the approval of the Chief Minister has also been placed before the Court. The essence of the materials against the petitioners is a that they were the functionaries/office bearers of an unregistered Association ostensibly formed for the purposes of ensuring redressal of the grievances of the members of the police force. Such materials also indicate that large amount of funds were collected in the name of the Association which funds were controlled by the President of the , Association through a bank account in the name of a fictitious person. The materials placed before the Court also indicate that the unregistered and unrecognised Union/Association had links with other political organisations which could not be connected with the Police Force in any manner. The said materials also reveal that on several dates spread out for a sufficiently long time meetings of the Association were held c where the leaders of the Association including the petitioners had made speeches appealing to the rank and file in the Police Force to rise in rebellion. That apart, the materials laid before the Court also indicate that the petitioners, as leaders/office bearers of the Association, had tried to inculcate a sectarian if not a communal feeling, in the Police " Force. The materials also disclose the activities of the petitioners compelling the rank and file in all wings of the Police Force to abandon their duties to bring the system of administration of laws to a grinding halt. In the face of such materials it will be difficult for this Court to take the view that the ultimate decision to invoke Clause (c) of the e proviso to Article 311(2) was either mala fide or was based on materials which have no nexus with the security of the State. In this regard, the following observations of the Apex Court contained in paragraph 140 of the judgment in Tulsiram Patel (supra) would succinctly sum up the situation.
140. The expressions "law and order", "public order" and "security of the State" have been used in different Acts. Situations which affect "public order" are graver than those which affect "law and order" and situations which affect "security of the State" are graver than those which affect "public order". Thus, of those situations those which affect g "security of the State" are the gravest. Danger to the security of the State may arise from without or within the State. The expression "security of the State" does not mean security of the entire country or a whole State, It includes security of a part of the State. It also cannot be confined to an armed rebellion or revolt. There are various ways in which security of the State can be affected. It can be affected by State secrets or information relating to defence production or similar matters being passed on to other countries, whether inimical or not to our country, or by secret links with terrorists. It is difficult to enumerate the various ways in which security of the State can be affected. The way in which security of the State is affected may be either open or clandestine. Amongst the more obvious acts which affect the security of the State would be disaffection in the Armed Forces or para-military forces. Disaffection in any of these Forces is likely to spread, for disaffected or dissatisfied members of these Forces spread such dissatisfaction and disaffection among other members of the Force and, thus, induce them not to discharge their duties properly and to commit acts of indiscipline, insubordination and disobedience to the orders of their superiors. Such a situation cannot be a matter affecting only law and Order or public Order but is a matter affecting vitally the security of the State. In this respect, the Police Force stands very much on the same footing as a military or a para-military force for it is charged with the duty of ensuring and maintaining law and Order and public order, and breaches of discipline and members of the Police Force cannot be viewed with less gravity than similar acts on the part of the members of the military or para-military Forces...
(emphasis supplied).
14. The repeated emphasis placed on behalf of the petitioners on their acquittal in the criminal cases and the arguments advanced that such acquittal destroys the very sub-stratum of the disciplinary action against the petitioners would melt into insignificance upon due and proper consideration of the materials placed before the Court which amply demonstrates that the impugned acts of physical assaults committed by the petitioners on their superior officers, of which they were charged in the criminal cases, is only a small part on the basis on which satisfaction under Clause (c) of the proviso to Article 311(2) was reached.
15. Before parting with the record the Court considers it appropriate to put on record the fact that the records produced before the Court, particularly the records showing the movement of the file leading to the eventual decision to invoke Clause (c) of the proviso to Article 311(2) of the Constitution, reveals that the satisfaction recorded in the present cases is that of the Chief Minister of the State and not the personal satisfaction of the Governor. In fact, the file did not go to the Governor at all. However, the aforesaid fact would hardly make the satisfaction reached legally fallible in view of the decision of the Apex Court in the case of Samsher Singh v. State of Punjab reported in AIR 1974 (2) SC 831 wherein, after over-ruling the law laid down in Sardari Lal v. Union of India , it has been held that under the Constitutional scheme it is the satisfaction of the Chief Minister and the Ministers appointed under Article 163 of the Constitution which would be the satisfaction of the Governor required under the relevant provisions of the Constitution and that such satisfaction does not signify the personal satisfaction of the Governor.
16. For all the aforesaid reasons, I am of the view that none of the writ petitions under consideration deserve acceptance by the Court. Consequently, all the writ petitions are dismissed. However, in the facts and circumstances of the case, I leave the parties to bear their own costs.