Meghalaya High Court
Roshan Thakuri vs . Union Of India & Ors on 24 September, 2021
Author: W. Diengdoh
Bench: W. Diengdoh
Serial No.06
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WA No.8/2020
Date of Order: 24.09.2021
Roshan Thakuri Vs. Union of India & ors
Coram:
Hon'ble Mr. Justice Biswanath Somadder, Chief Justice
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. KC Gautam, Adv
For the Respondent(s) : Dr. N Mozika, ASG
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication Yes/No
in press:
JUDGMENT:(per the Hon'ble, the Chief Justice) (Oral) The instant writ appeal arises in respect of a judgment and order dated 3rd February, 2020, passed by a learned Single Judge in WP (C) No.286 of 2017 (Roshan Thakuri v. Union of India & ors).
The appellant before us is the writ petitioner.
The facts of the case, in a short compass, are as follows:-
The writ petitioner who was serving in the Central Industrial Security Force (CISF), in the year 2010, was suspended by an order dated 19th October, 2010, on being charged for being in a state of intoxication while on duty. Thereafter, in the departmental proceedings that followed, by a final order dated 18th March, 2011, the petitioner was imposed with the major penalty of immediate removal from service. Against the said order, though an appeal had been preferred in Page 1 of 4 accordance with the Rules, the writ petitioner came to learn about the dismissal of the appeal only on 9th August, 2016. Though the CISF Rules, 2001, provide for remedy by way of revision against the dismissal of the appeal, it appears that the same could not be availed of due to the time that had lapsed after the appellate order had been passed. Being aggrieved, the writ petitioner had earlier approached this High Court by way of a writ petition, being WP (C) No.273 of 2016. By a judgment and order dated 2nd February, 2017, that writ petition was disposed of by allowing the writ petitioner to file a revision against the said dismissal order as provided under the CISF Act. Thereafter, the writ petitioner had preferred a revision application challenging the final order dated 18th March, 2011. That application came to be dismissed vide order dated 21st June, 2017. As such, the writ petitioner once again approached this High Court, this time assailing the final order dated 21st June, 2017. The matter was taken up for consideration by a learned Single Judge, who passed the impugned judgment and order, wherefrom the instant appeal emanates.
The learned Single Judge while considering the relevant facts of the case took note of the fact that the writ petitioner himself had admitted that he had consumed liquor. While hearing this appeal, the learned Assistant Solicitor General drew our attention to page 65 of the appeal papers and referred to question Nos.1 and 2, which were asked by the Enquiry Officer to the writ Page 2 of 4 petitioner, Roshan Thakuri. These questions and their respective answers are setout hereinbelow:-
"Q1. I have gone through the Prosecution Witness statements and exhibits produced by them vide Annexure-IV of Charge Memorandum that whenever he (CO) has been under influence of any kind of intoxication he has involved in some cases which is not desirable from a member of an Armed Force Union of India what he has to say about it?
Ans:- Consuming intoxicated substances are in his tradition and since his childhood he has been tasting it. After joining the Force he has reduced consuming intoxicated substances. He admits that all the last 07 cases may be due to intoxication but not this present case which is going on.
Q2. When he was told by Dr. Das of OIL Duliajan Medical Officer that intoxication can remain in Blood and Urine for more than 12 hours in human body then why he consumed Liquor on 17.10.10 knowingly that he has „A‟ shift on 18.10.10? Ans:- His mother expired on 28.12.2009 and he use to have discussion with his brother, he was tense on the issue not reaching timely to see his mother. In tension he consumed a half bottle of Mc Dowel rum."
We have also noticed from page 72 of the appeal papers that the writ petitioner was medically examined at the Oil India Hospital, Duliajan, where a breath analysis test was conducted on him and the medical report showed positive result, i.e., he was found to be under the influence of alcohol.
That apart, the learned Single Judge has proceeded to deal with all the judgments cited by the learned advocate representing the writ petitioner including the judgments rendered by the Hon‟ble Supreme Court in the case of Munna Lal v. Union of India & Ors, reported in (2010) 15 SCC 399 and Narendra Dutta Rai v. Union of India, reported in 2018 SCC Online Cal 8613. That apart, the learned Single Judge also considered the judgment of the Calcutta High Court dated 22nd June, 2018. The learned Single Judge proceeded to distinguish all the judgments cited by the learned advocate for the petitioner. Page 3 of 4
At this stage, we wish to observe that any decision cited before a Court by any party is an authority for a proposition based on certain set of facts and even a single distinction of any fact or an additional fact can alter the applicability of its ratio (see, Suparna Debnath v. State of West Bengal reported in AIR 2019 CALCUTTA 99: AIRONLINE 2019 CAL 75).
Having considered the entire conspectus of the facts of the case, as well as the law that has been considered by the learned Single Judge, we are of the view that the impugned judgment and order dated 3 rd February, 2020, does not suffer from any such palpable infirmity or perversity, which would warrant an interference in an Intra-Court Mandamus appeal. Additionally, in an Intra- Court Mandamus appeal, re-appreciation of material facts which have already been duly considered by a competent fact finding authority is not desirable. That apart and in any event, the impugned judgment and order is supported with cogent and justifiable reasons. In such circumstances as stated above, we do not find any merit in the instant appeal, which is liable to be dismissed and stands accordingly dismissed.
Dismissal of this appeal, however, shall not prejudice any right of the writ petitioner (if at all there be any), to make a representation before the concerned authority of CISF.
(W. Diengdoh) (Biswanath Somadder)
Judge Chief Justice
Meghalaya
24.09.2021
"Lam DR-PS"
Page 4 of 4