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HC concludes 13-year-old Police Department’s “dismissal-from-service” case

Nagaland News

DIMAPUR, FEBRUARY 9: Another long-running courtroom drama came to an end on Wednesday with the Kohima Bench of Gauhati High Court ruling in favour of a dismissal-from-service order issued by the Nagaland Police against one of its employees, Vihoto Sale.
Aggrieved by the dismissal order issued by the Commandant of 12th NAP Bn (India Reserve) on November 2, 2019, and the subsequent order passed by the Appellate Authority (DGP) on December 20, 2019, the petitioner (Vihoto Sale) had filed a write petition before the High Court praying for quashing and setting aside of the two orders and issuance of appropriate order to re-instate him in service with all consequential benefits.
13-year-old incident
As per the order issued by Justice Songkhupchung Serto on Wednesday, the circumstances that gave birth to the legal tussle had their origin 13 years ago. On August 19, 2009, the petitioner (Sale), while at his place of posting (not specified), had left for home purportedly to attend his ailing mother without the sanction of leave.
As his absence from work stretched to the end of the month, a ‘calling notice’ directing him to report to duty within 15 days was issued on August 31, 2009.
However, he failed to report for duty and another notice was issued on September 23, 2009. His failure to return prompted a third notice on October 13, 2009 ~ with the warning that he’d be declared a deserter and dismissed from service without further notice if he didn’t report for duty.
But despite the three notices, Sale failed to report for duty.
Accordingly, on February 3, 2010, the Commandant of 12th NAP Bn (India Reserve) issued an order dismissing the petitioner from service with effect from the date he left his place of posting.
Sale filed an appeal against the order to the Director General of Police, Nagaland but was rejected. So he went to the High Court by filing a writ petition in 2018.
“The main ground on which the dismissal order and the order passed by the Appellate Authority (DGP) were assailed was that no inquiry was conducted before the dismissal order was issued; therefore, both the orders i.e. dismissal order and the order passed by the Appellate Authority, were passed in violation of the provisions of Rule 9(a) of the Nagaland Services (Discipline and Appeal) Rules 1967 which provides that no penalty specified in Rule 7 of the same Rule shall be imposed on a Government servant except after an inquiry has been held in the manner provided in the said Rule.
“The writ petition was disposed of by order dated 6/3/2019 wherein both the dismissal order and the order passed by the Appellate Authority were held to have been passed in violation of Rule 9 of the Nagaland Services (Discipline and Appeal) Rules 1967 and the provision of Article 311 of the Constitution of India and as in consequence quashed and set aside the two orders; but liberty was granted to the authorities to initiate denovo inquiry”, read the order.
Re-instatement and inquiry
Accordingly, Sale was re-instated to his service through an order issued by the Commandant of 12th NAP on April 5, 2019.
But on the same day, the Commandant also issued a memorandum proposing to hold an inquiry against the petitioner for his unauthorised absence from his place of posting and directing the petitioner to submit his written statement within 10 days.
The next day, on April 6, 2019, the Commandant appointed an Inquiry Officer and a Presenting Officer; the petitioner also submitted his written statement declaring that he had left his place of posting after being told over the telephone that his mother was sick and needed his care.
According to his statement, he had left despite his request for casual leave not being granted by the Commandant.
“He also stated in the written statement that though he received the three calling notices issued by the office he could not join his duty as the condition of his mother did not improve, therefore his absence from place of posting was not in deliberate dereliction of duty or with intentional disobedience to superiors”, the order stated.
Then on August 7, 2019, he was assigned a Defending Officer as per his request.
Nine days later, on August 16, 2019, a preliminary hearing was conducted “and as per record, the petitioner was made to understand that inquiry will be held in respect of only those charges which are not admitted by him” and that “if he admits to all the charges framed against him, no further inquiry will be necessary”.
Thereafter, as per the Court document, the petitioner was asked whether he admits to the charges framed against him and pleads guilty.
“In reply, he admitted the charges and pleaded guilty. Accordingly, a proceeding was drawn and the same was submitted”, the order stated.
Upon receipt of the inquiry report, the Commandant, who is the Disciplinary Authority, then issued a memorandum on September 3, 2019, stating that since Sale had admitted to all the charges framed against him, he was liable to be dismissed from service with immediate effect.
Therefore, he was asked to submit “a written representation on the proposed penalty within 7 days from the date of issue of the memorandum” ~ which the petitioner did on September 9, 2019, “basically reiterating what he had stated in his earlier representation, and also contending that the proposed punishment is disproportionate”.
After considering the representation, the Commandant passed an order on November 2, 2019 dismissing Sale from service once again.
This time too, Sale filed an appeal to the DGP but it was dismissed again “on the ground that no new grounds for consideration are there in the appeal”.
Back to Court
So, Sale filed another petition before the High Court challenging the orders issued by the Commandant and the Appellate Authority (DGP).
After hearing both the parties involved in the case, the Court remarked that the petitioner did not dispute his absence from his place of posting without any sanctioned leave by the competent authority from August 18, 2009 till his first dismissal order was issued on February 3, 2010.
“The only contention raised by the petitioner is that since his presence at home was required for looking after his ailing mother, he left his place of posting without his casual leave being sanctioned and therefore, he cannot be dismissed from service. However, from the record submitted by the learned Government Advocate there is no sign that the petitioner had ever submitted such an application requesting for leave.
“This shows that the petitioner never requested for casual leave. Further, there is nothing in the record to show that the petitioner ever requested any kind of leave thereafter even when notices were issued to him to report back for duty. His plea that he had to leave his place of posting and remained absent from duty due to his mother’s sickness was never reported to his superior authority or any authority concerned even despite the three notices issued to him, receipt of which, he acknowledged. A Government servant is supposed to know the rules by which his service conditions are governed. If he does not act within such rules he has nobody to blame”, read the order.
He also pointed out that there was a period of more than 5 months between the day he left his place of posting and the first dismissal of order was issued.
For any reasonable person, who is in active service, it should have occurred to him that at least a letter requesting for leave stating the circumstances under which he was unable to return to his place of posting should be sent to the competent authority, Serto stated.
“None of these were done by the petitioner even after receiving the three notices. This shows that he was not bothered at all to do anything to bring to the notice of his superior officers the reason or reasons for his absence, if at all he had any. Counting from the date on which the last notice was issued and the date on which the dismissal order was issued, there were more than 3 months.
“This also shows that the petitioner was not bothered at all about the rules governing the conditions of his service. He had mentioned in his petition that his mother was taken to hospital at Kohima but no medical papers were submitted with it and he had also not filed with the writ petition. Therefore, his claim has no credibility”, the order read.
He also stated that it was unbecoming “of a person in uniform service, that too in a place like Nagaland”, to remain absent from his place of posting without the sanction of any leave.
“As rightly stated in the order of dismissal, unless a person found guilty of such offence is punished adequately, it is bound to send negative message among the forces when it comes to maintenance of discipline. If such things happen it would be a sad day for the State forces. Therefore, I am of the view that the punishment meted out to the petitioner is the right one and there is no reason to interfere with it”, Serto ruled.
On the issue raised by the petitioner that the Appellate Authority did not pass a “reason order” while dismissing the appeal, the Court ruled that the statutory Appellate Authority is not a civil or criminal court, and cannot be expected “to write such elaborate judgment or order, especially when it has agreed with the order passed by the Disciplinary Authority”.
“Therefore, I find nothing wrong with it”, Serto ruled.
(Page News Service)

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