It is obligatory on the part of Inquiry Officer to ask the delinquent as to whether he wants to examine any defence witness in his favour - No such opportunity was offered to the delinquent in the Departmental Enquiry - Enquiry held to be vitiated

It is obligatory on the part of Inquiry Officer to ask the delinquent as to whether he wants to examine any defence witness in his favour - No such opportunity was offered to the delinquent in the Departmental Enquiry - Enquiry held to be vitiated

GAUHATI HIGH COURT (Aizawl Bench)

Before :- H. Baryah, J.
W.P. No. 99 of 2006. D/d. 10.12.2009.

S.N. Yadav - Petitioner
Versus
State of Mizoram and Ors. - Respondents


For the Petitioner :- P.C. Prusty, Advocate.
For the Respondents :- N. Sailo, Addl. Advocate. General.

A. Police Act, 1861, Section 7 - Assam Police Manual, Rule 66 - Constitution of India, Article 311 - Departmental enquiry against Asst. Sub-Inspector of Police on the charge of shooting with revolver at his colleague - It was obligatory on the part of Inquiry Officer to ask the delinquent as to whether he wants to examine any defence witness in his favour - No such opportunity was offered to the delinquent - Plea that he was asked to produce witness during preliminary inquiry would not satisfy the said procedural defect and for an impartial enquiry - Enquiry held to be vitiated.

B. Police Act, 1861, Section 7 - Assam Police Manual, Rule 66 - Constitution of India, Articles 311 and 309 - Central Civil Services (Classification, Control and Appeal) Rules 1965, Rule 15 - Removal from service - Whether removal can be given effect retrospectively - Delinquent, was removed from service on account of shooting at his colleague, not on account of his desertion or conviction in a Court of law - Charge and proof of the same would fall within purview of Instructions No. 4 under Rule 15 of CCS Rules - Therefore, such removal could be made effective only from the date of issuance of the order and not from an earlier date.

Cases Referred :

Dr. Rajyamalla Buzarbarua v. Assam Administrative Tribunal and Ors., 1983 Lab IC 1839.
Baharul Islam (CT) v. Union of India and others, 2001 (1) GLT 62.
Dr. Rash Lal Yadav v. State of Bihar, 1994 AIR SCW 3329.
G. M. Tank v. State of Gujarat and others,(2006) 5 SCC 446 : AIR 2006 SC 2129.
Nelson Motis v. Union of India, AIR 1992 SC 1981 : 1992 Lab IC 2037.
Privy Council, Nazir Ahmed v. Emperor, AIR 1936 PC 253 (2).
Ramchandra Keshav Adke (dead) v. Govind Joti Chavare and Others, (1975) 1 SCC 559
Senior Supdt. of Post Offices v. A. Gopalan, AIR 1999 SC 1514 : 1999 Lab IC 234.
South Bengal State Transport Corpn. v. Sapan Kumar Mitra and others, (2006) 2 SCC 584
State of Gujarat v. Shantilal Mangaldas and Others, AIR 1969 SC 634.
State of Rajasthan v. B. K. Meena and others, (1996) 6 SCC 417 : AIR 1997 SC 13 : 1996 Lab IC 2750.

ORDER


H. Baryah, J. - In this writ petition the dismissal orders dated 16-3-2006 passed by the Superintendent of Police. Aizawl and the appellate order dated 26-9-2006 passed by the Appellate Authority are impugned. Order dated 16-3-2006 in particular was alleged to have been made without adhering to the established procedure of conducting of departmental inquiry. The writ petitioner in view of the facts and the grounds contended in the petition asks for quashing the aforesaid orders and to reinstate him in the service with all benefits.
2. The factual matrix of this case is as follows :
    The petitioner was initially appointed as Constable on 6-2-1982 by Superintendent of Police, Lunglei District, Lunglei and promoted to ASI for Asst. Inspector General of Police-I, Mizoram, Aizawl. Thereafter by an order dated 8-10-1990 the services of the petitioner was confirmed in the grade on satisfactory completion of his probationary period of two years. By an order dated 29-11-1991 he was regularized in the post. On 12-3-1995 while the petitioner was working as an Assistant Sub Inspector of Police (ASI) in Sairang police out post under Bawngkawn police station, on account of shooting at ASI Robert L. Hnamte with his revolver at 7.30 p.m. and causing hurt, he was put under suspension by respondent No. 4 herein. Thereafter a departmental proceeding was started against the petitioner. The First Information Report being lodged on account of shooting at Robert L. Hnamte, the officer in-charge of Sairang police out post, a police case was registered and after due investigation, a charge sheet was laid against the petitioner under Section 307/326 IPC. The departmental inquiry so conducted against the petitioner received its completion before the conclusion of the criminal trial. By an order dated 6-10-1995 (Annexure-5) Superintendent of Police, Aizawl, respondent No. 4 herein removed the petitioner from his service with immediate effect. Statutory appeal was filed challenging the legality and propriety of his removal before the Deputy Inspector General of Police (Range), Mizoram, respondent. No. 3 herein on 30-10-99 under Rule 66 of Assam Police Manual. Part-III but the Appellate Authority remained inactive in respect of his appeal for the long time. In the meantime, the criminal trial which proceeded against him came to an end and the trial Court acquitted him from the charge by its judgment and order dated 10-11-1999. After completion of the criminal trial the petitioner again submitted another representation to respondent No. 3 on 24-2-2000 with a request to dispose of his statutory appeal made on 30-10-1995 keeping in view the judgment of acquittal dated 10-11-1999. No action was taken. The petitioner finding no other alternative approached this Court by filing writ petition numbered as W. P. (C) No. 60 of 2001. Said writ petition was disposed of by judgment and order dated 24-7-2001 with a direction to the respondent No. 3 to examine and consider the statutory appeal filed by the petitioner on 30-10-1995 along with the subsequent representation dated 24-2-2000 and pass appropriate order in accordance with law within a period of two months. Being directed thus, the Appellate Authority vide order dated 6-9-2001 rejected the statutory appeal filed by the petitioner. The writ petitioner again approached this Court challenging the order of removal and dismissal of the appeal by filing another writ petition being No. W. P. (C) No. 19 of 2002. By judgment and order dated 8-12-2003 the aforesaid writ petition was dismissed. Being aggrieved by the judgment and order of dismissal a writ appeal No. 1 of 2004 was filed challenging the judgment and order of the learned single Judge. The Division Bench of this Court by its judgment and order dated 27-1-2006 set aside the impugned order dated 6-10-1995 including the appellate order dated 6-9-2001 on the ground of non-supply of the inquiry report in particular to the writ petitioner. The Division Bench of this High Court in paragraph-20 of the judgment rendered by it speaks as follows :
    "the respondents shall now proceed with the enquiry de-novo from the stage of the furnishing of the copy of the enquiry report enabling the appellant to make a representation against the same. If such representation is made by the appellant, the Disciplinary Authority shall deal the same in accordance with law and consistently with the observations made above. In the event of the appellant being aggrieved by the orders to be passed by the Disciplinary Authority, it will open for him to make statutory appeal to the departmental Appellate Authority. With this direction the judgment and order dated 8-12-2003 passed in W. P. (C) No. 19 of 2002 stood interfered with and allowed partially.
3. From the reading of the judgment of the Division Bench it would be apposite that on account of non-supply of the Enquiry Report to the writ petitioner herein, the Division Bench while dealing with the Writ Appeal No. 1 of 2004 directed a de-novo inquiry from the stage of furnishing the copy of inquiry report enabling the writ petitioner to make a representation against the same. It would also be apposite to mention at this stage that the Division Bench of this Court also set aside the impugned order dated 6-10-1995 and the appellate order dated 6-9-2001 which goes to show that the removal order dated 6-10-1995 became non-existent.
4. Per direction of this Division Bench vide judgment and order dated 27-1-2006 passed in Writ Appeal No. 1 of 2004, the petitioner was supplied with a copy of the inquiry report against which the petitioner submitted a detailed representation on 27-2-2006 challenging therein the findings of the Inquiry Officer on various grounds and prayed for exoneration. However, Disciplinary Authority without paying any attention to the representation as indicated above removed the petitioner from service by order dated 16-3-2006 giving retrospective effect from 5-10-1995. Against the order of removal dated 16-3-2006 petitioner submitted a statutory appeal before the respondent No. 3 on 3-4-2006. However, the Appellate Authority rejected the aforesaid appeal and confirmed the punishment of removal order dated 16-3-2006 passed by respondent No. 4. It is contended that the appellate order was passed by the authority mechanically and without due application of its mind which, therefore, cannot sustain in law. The writ petitioner, therefore, being aggrieved by the order of removal dated 16-3-2006 and the appellate order dated 26-9-2006 approached this Court with this instant petition under Article 226 of the Constitution.
5. It is also contended that during the conduct of the inquiry, the petitioner was refused to have the assistance of a defence assistant. Since he was ignorant and inexperience in the matter relating to departmental inquiries and the intricacies and technicalities involved therein the petitioner asked for assistance of a defence assistant. Further no Presenting Officer was appointed, rather, the Inquiry Officer himself conducted the departmental proceeding which is violative of Article 311(2) of the Constitution of India. It is further contended in the writ petition that the procedural requirements had not been followed while conducting the departmental inquiry. It is also contended that the removal order impugned in this writ petition which has a retrospective effect from 5-10-1995 cannot sustain legally in view of the Government of India's instruction appended in Rule 15 of CCS (CCA) Rules, 1965 which speaks for strict prohibition of giving retrospective effect. The writ petitioner in view of the facts and circumstances of the case and grounds has asked for setting aside of the removal order dated 16-3-2006 and the appellate order dated 26-3-2006 with a prayer to reinstate the petitioner in service with back wages and all other consequential benefits.
6. Respondents resisted this petition on various grounds. In reply to statement made in paragraph-21 of the writ petition and paragraph-22 as well the respondents have taken restraint as under :
    "15. That with regard to the statements made in paragraph No. 21 of the writ petition, I say that the Disciplinary Authority or the Enquiry Officer is not bound to appoint a defence assistant to aid the charged officer. It is upto the charged officer and the discretion of the Enquiry Officer to appoint such defence assistant as found fit and reasonable. The petitioner was informed to engage a defence assistant if desired Vide No. DY.SP(Hqrs.)/DE/SNY/95/8 dated 1-6-1995. However, the petitioner failed to engage the same and therefore, there is no question of refusal on the part of the respondents to provide defence assistant to the petitioner.
    16. That with regard to the statements made in paragraph No. 22 of the writ petition, I say that during the preliminary hearing held on 7-6-1995, the charged officer was asked whether he had any documents to be inspected of any witnesses to produce in his defence and to which, he had none. Therefore, it was not necessary to ask the petitioner after completion of the Departmental enquiry whether he wished to produce a defence witness or not. He could have mentioned the names of defence witnesses if any at the time of hearing. That the witnesses in the instant case are capable and reliable police officers who are well aware of their sense of responsibility and there is no question of the Enquiry Officer dominating and influencing them."
In regard to the statement made in paragraph-28 of the writ petition it is contended by the respondents that the order of removal of the petitioner from service is not retrospective rather the order was dispatched vide No. E/RO/PF-SN/95/1832 dated 6-10-1995.
7. Mr. P. C. Prusty, learned counsel for the writ petitioner as well as Mr. N. Sailo, learned Addl. Advocate General for the respondents were heard at length.
8. Mr. Prusty at the very outset of his argument submitted that the petitioner had to shoot at ASI, Robert L. Hnamte in his right of private defence of person when said Robert L. Hnamte tried to assault him during the course of altercation. On account of shooting, a charge sheet being laid against the petitioner, he (petitioner) faced the trial. But the trial Court was pleased to acquit him from charge. The order of removal dated 6-10-1995 was made prior to the conclusion of criminal trial. The impugned removal order dated 16-3-2006 was however, passed by the Disciplinary Authority after closure of the criminal proceeding which resulted in acquittal. Therefore, it would have been appropriate on the part of the Disciplinary Authority and the Appellate Authority as well to record a favourable finding in view of acquittal of the petitioner from the charge by the trial Court. It was further argued by him that in both the proceedings, the facts are identical and the same set of witnesses is cited for the purpose of arriving at a decision. According to Mr. Prusty in this circumstance on account of acquittal of the writ petitioner from the charges the second removal order dated 16-3-2006 ought not to have made by the Disciplinary Authority and therefore, the finding recorded in departmental proceeding is unjust, unfair and oppressive. The removal order, therefore, is not sustainable and liable to be set aside and quashed. Reliance was put in this context by Mr. Prusty in the judgment rendered by the Supreme Court in the case between G. M. Tank v. State of Gujarat and others; reported in (2006) 5 SCC 446 : (AIR 2006 SC 2129). Mr. Prusty put emphasis in the paragraphs 20, 30 and 32 of the judgment. In the case (supra) Apex Court set aside the order of dismissal as not sustainable on the ground of acquittal of the appellant honourably in the criminal proceeding on account of having same set of facts, evidence and witnesses in both the departmental inquiry and criminal proceedings. Criminal proceeding ended in acquittal for want of evidence.
9. This piece of argument has been emphatically resisted by Mr. N. Sailo, learned Addl. Advocate General contending inter alia that the acquittal was recorded on account of failure of the prosecution to produce the witnesses for proof of the charges levelled against the writ petitioner. Therefore, according to Mr. N. Sailo, such acquittal cannot have an over- riding effect on the departmental proceeding proceeded against the writ petitioner. The witnesses cited in the charge sheet being withheld, the charges remained not proved against the writ petitioner. Therefore, by virtue of acquittal in the criminal proceeding, the writ petitioner cannot force the Disciplinary Authority to record a finding in view of the acquittal. According to Mr. Sailo the ratio laid down in the case (supra) would have no application in the present case. Mr. Sailo in support of his contention relied in the decision rendered by Supreme Court in the case between South Bengal State Transport Corpn. v. Sapan Kumar Mitra and others; reported in (2006) 2 SCC 584 : (AIR 2006 SC 3533), wherein in paragraph 9 and 10 it held as under :
    "9. We have heard the learned counsel for the parties and also examined the relevant records of this case. Although the Division Bench had not categorically said that the departmental proceeding could not be continued and punishment could not be imposed on the delinquent employee when the criminal case ended in acquittal, even then the learned counsel for the respondents sought to argue this ground before us. In our view, this ground is no longer res integra. In Nelson Motis v. Union of India (AIR 1992 SC 1981 : 1992 Lab IC 2037, a three Judge Bench of this Court observed in SCC p. 714, para 5, as follows :
    5. So far the first point is concerned, namely, whether the disciplinary proceedings could have been continued in the face of the acquittal of the appellant in the criminal case, the plea has no substance whatsoever and does not merit a detailed consideration. The nature and scope of a criminal case are very different from those of a departmental disciplinary proceeding and an order of acquittal, therefore, cannot conclude the departmental proceeding. Besides, the Tribunal has pointed out that the acts which led to the initiation of the departmental disciplinary proceeding were not exactly the same which were the subject-matter of the criminal case. (Emphasis supplied).
    10. Similarly in Senior Supdt. of Post Offices v. A. Gopalan (AIR 1999 SC 1514 : 1999 Lab IC 234), the view expressed in Nelson Motis v. Union of India was fully endorsed by this Court and similarly it was held that the nature and scope of proof in a criminal case is very different from that of a departmental disciplinary proceeding and the order of acquittal in the former cannot conclude the departmental proceedings. This Court has further held that in a criminal case charge has to be proved by proof beyond reasonable doubt while in departmental proceeding the standard of proof for proving the charge is mere preponderance of probabilities. Such being the position of law now settled by various decisions of this Court, two of which have already been referred to earlier, we need not deal in detail with the question whether acquittal in a criminal case will lead to holding that the departmental proceedings should also be discontinued. That being the position, an order of removal from service emanating from a departmental proceeding can very well be passed even after acquittal of the delinquent employee in a criminal case. In any case, the learned single Judge as well as the Division Bench did not base their decisions relying on the proposition that after acquittal in the criminal case, departmental proceedings could not be continued and the order of removal could not be passed."
Mr. Sailo further in support of his contention also relied in the ratio laid in the case between State of Rajasthan v. B. K. Meena and others; reported in (1996) 6 SCC 417 : (AIR 1997 SC 13 : 1996 Lab IC 2750), wherein the Apex Court laid a distinction between the approach and the objectives in departmental inquiry and criminal trial.
10. In the context of non-appointment of a defence assistant as claimed by the writ petitioner, it was argued by Mr. Prusty, learned counsel for the petitioner that under Rule 14(8)(a) of CCS (CCA) Rules the delinquent officer is entitled to seek help of a defence assistant. Such provision was made in the CCS (CCA) Rules to conduct the disciplinary proceeding in an effective manner. When the petitioner prayed to provide him the assistance of a defence assistant, the Inquiry Officer refused to take any action on his prayer stating that there is no need for such defence assistant since no presenting officer is appointed by the department. It was argued by Mr. Prusty that on account of refusal of the Enquiry Officer to take assistance of a defence assistant, petitioner was being denied the reasonable opportunity of defending himself in the disciplinary proceeding against him. It was argued by Mr. Prusty that Article 311, Clause II of the Constitution of India provides such provision and refusal thereto amounts to violation of principle of natural justice. It was also argued that no presenting officer was appointed and the Inquiry Officer himself performed the job of the presenting officer and thus, violated the principle of natural justice. Mr. Prusty in support of his contention relied in the decision in the case between Baharul Islam (CT) v. Union of India and others; reported in 2001 (1) GLT 62, wherein in paragraph-4 of the judgment this Court held as follows :
    "4. I have perused the writ petition as well as the documents and affidavit filed by the respondents. It is settled law that even if the rules does not provide for appointment of presenting officer giving of opportunity to defence and proper information to the petitioner to defend himself and to appoint the defence assistant of his choice. The Disciplinary Authority should at least afford opportunity to the petitioner to defend himself in a proper manner keeping in view the fundamental principle of natural justice. In (1994) 5 SCC 267 : (1994 AIR SCW 3329), a law laid down by the apex Court regarding principle of natural justice is applicable to the instant case. In Dr. Rash Lal Yadav v. State of Bihar (1994 AIR SCW 3329) in said case the Apex Court has also laid down principle of natural justice which as follows : so also in 1983 Lab IC 1839 (Dr. Rajyamalla Buzarbarua v. The Assam Administrative Tribunal and Ors. This Court held as follows :
    "it appears that the Enquiry Officer himself questioned the delinquent officer before he inspected the documents he wanted to inspect. .... .... .... .... .... The right to call and examine witness, is therefore, as a general rule, of the procedure required by natural justice. .... .... .... .... It is well settled that the requirements of natural justice cannot be put in a strait-jacket. .... .... .... ...., the refusal to grant this request would amount to denial of reasonable request to defend himself and the essential principles of natural justice would he violated."
    Keeping in view the above decision, it is a settled law that the minimum opportunity should be given to the petitioner to defend himself which is not done in the instant case, as appeared from the enquiry report, which was produced along with report by the respondents. It is therefore crystal clear that enquiry proceeding was conducted against the petitioner is against the fundamental principles of natural justice and it is violative of the principle of natural justice and consequent thereto the order dated 25-4-95 passed by the respondent No. 2 affirming the disciplinary proceeding is not maintainable as it based on wrong proceeding conducted by the Enquiry Officer. In view of the above discussion, and considering the facts and circumstances of the case, I am of the opinion that, the enquiry report against the petitioner is liable to be set aside and quashed so also the impugned order of penalty dated 20-2-95 passed by the respondent No. 2 is liable to be set aside and quashed. Accordingly the enquiry report and the order dated 20-2-95 passed by the Disciplinary Authority and the order dated 25-4-95 passed by the respondent No. 2 are hereby set aside and quashed and the writ petition is allowed to the extent indicated. No costs."
11. Contrary to the argument advanced by Mr. Prusty in the context of refusal to take assistance of a defence assistant and non appointment of presenting officer, and examination of the witnesses by the Inquiry Officer himself, it was argued by Mr. N. Sailo, Learned Addl. Advocate General that in a disciplinary proceeding Disciplinary Authority or the inquiry authority is not bound to appoint a defence assistant to aid the charged officer. It is up to the charged officer and discretion of the Inquiry Officer to appoint such defence assistant it found fit and responsible. It was argued that the writ petitioner was informed to engage a defence assistant if desired vide No. DY.SP(Hqrs.)/DE/SNY/95/8 dated 1-6-1995 but the petitioner failed to engage a defence assistant of his choice and, therefore, no question of refusal on the part of Inquiry Officer to provide defence assistant to the petitioner. It was argued by Mr. N. Sailo that the claim of the writ petitioner is unfounded and baseless. This particular stand is projected in paragraph 15 of the counter. Therefore, there would be no violation of principle of natural justice as laid down in the case (supra).
12. In the context of refusal on the part of the Inquiry Officer to examine defence witnesses, it was argued by Mr. Prusty that after completion of examination of the prosecution witnesses, he was never asked by the Inquiry Officer as to whether he wishes to examine any defence witness in his defence. Therefore, the Inquiry Officer failed in his duty and to comply with the procedural requirements as required therefor. It was also argued that during the course of inquiry the petitioner wished to examine some of the independent witnesses and accordingly made a request to allow him to do so. But the Inquiry Officer resorted no action in securing attendance of those witnesses named by the writ petitioner. Of the cited witnesses only 4(four) were examined by the Inquiry Officer, such examination of the witnesses infers the picking of some of the witnesses of his choice. These facts, according to Mr. Prusty, the learned counsel for the petitioner entail very much the ratio laid down in the case (supra), reported in 2001 (1) GLT 621.
13. Per contra of this submission it was argued by Mr. N. Sailo, learned Addl. Advocate General that during the preliminary inquiry held on 7-6-1995 the petitioner was asked whether he had any documents to be inspected or any witness to produce in his defence to which he negated, therefore, it was not necessary on the part of the Inquiry Officer to ask him to produce any defence witness after completion of the examination of the prosecution witnesses. It was also argued by Mr. N. Sailo that during the course of hearing of departmental inquiry, the writ petitioner did never mention the names of his defence witnesses, therefore, the claim of the writ petitioner that he was not asked to adduce defence evidence is not acceptable. Such argument of Mr. Sailo cannot inspire confidence of the Court since it was obligatory rather a duty on the part of Inquiry Officer to ask the delinquent officer whether he wishes to adduce any defence witness in his defence. The contention that he was asked to produce witness during the preliminary inquiry would never satisfy the procedural defect as noticed from the averments of the writ petition. I find no force in the facts situation in the argument of Mr. N. Sailo, learned Addl. Advocate General for the State respondents. It was contended by Mr. P. C. Prusty that the finding of the Disciplinary Authority thus turns perversed and the same cannot stand. Every departmental enquiry is guided by some procedure. If such procedure is not adhered to while conducting the enquiry, finding on the basis of such enquiry would be perversed and judicial interference would call for. For an impartial enquiry the right accrued to the delinquent is to be honoured and every opportunity is to be afforded to him/her.
14. The crucial issue to be decided in this writ petition is whether the impugned removal order dated 16-3-2006 can legally sustain. Mr. P. C. Prusty, learned counsel for the writ petitioner very emphatically argued that the impugned order dated 16-3-2006 is not legally sustainable since it has given a retrospective effect on and from 5-10-1995. Referring to Government of India's Instruction No. 4 under Rule 15 of CCS (CCA) Rules 1965 it was submitted that an order of dismissal cannot be given effect to retrospectively from the date of commencement of suspension but only from the date on which the order of dismissal is passed. It was also argued by taking assistance of Instruction No. 4 that whenever orders of dismissal/removal are passed on a Government servant consequent on his desertion or conviction in a Court of law or for any other reason, the orders should be made effective only from the date of issue of the orders and not from an earlier date. According to Mr. P. C. Prusty, the earlier removal order dated 6-10-1995 was set aside by the Division Bench of this Court vide its judgment and order dated 27-01-2006 passed in Writ Appeal No. 1 of 2004. Per direction of the Division Bench the inquiry started de-novo from the stage of supply of the inquiry report to the writ petitioner on the basis of which the writ petitioner made a representation to the Appellate Authority which was turned down. Thereafter the impugned removal order was passed by the Disciplinary Authority against which a statutory appeal was preferred, which was also dismissed. Therefore, the earlier removal order being not existed, by a subsequent removal order, such removal cannot be given retrospective effect from 5-10-1995. Such act has been prohibited strictly by Government of India's Instruction No. 4 under Rule 15 of CCS (CCA) Rules, 1965. In this context, the appellate judgment rendered by the Division Bench of this Court is gone into wherefrom it can be noticed from para-19 that that order dated 6-10-1995 was set aside and quashed including the appellate order dated 6-9-2001. Therefore, the punishment awarded to the writ petitioner by the Disciplinary Authority cannot be said to have been in existence so as to give a retrospective effect from 5-10-1995. The impugned order was passed on 16-3-2006 and, therefore, it was obligatory on the part of the Disciplinary Authority to remove the delinquent writ petitioner from the date on which it was passed but the effect of removal was given retrospectively from 5-10-1995. Admittedly the impugned order was not passed against the writ petitioner on account of his desertion or conviction in a Court of law. He was, however, removed from service on account of shooting at ASI, Robert L. Hnamte, the Officer In-Charge of Sairang police out post on the relevant night which formed an article of charge in the disciplinary proceeding. This charge and proof of the same would perhaps fall within the purview of "for any other reason" as indicated in Instructions No. 4. Therefore, such a removal should be made effective only from the date of the issuance of the orders and not from an earlier date. Hereinbefore, we have already discussed that the impugned order was passed on 16-3-2006, therefore, by virtue of the Instruction No. 4 the removal of the writ petitioner ought to have been made effective only on and from 16-3-2006 and not from 5-10-1995. Mr. Prusty, learned counsel appearing for and on behalf of the writ petitioner contended that where a power is given to do a certain thing in a certain way or not at all, adoption of any other methods of performance is necessarily forbidden. It was argued by Mr. Prusty that Government of India's Instruction No. 4 under Rule 15 gives a specific power to the Disciplinary Authority to award punishment, in the form of dismissal or removal with restriction. The Disciplinary Authority, therefore, cannot go beyond the restriction imposed by Instruction No. 4 and if traversed beyond the instruction such action would be illegal per intention of Instruction No. 4 under Rule 15 of CCS (CCA) Rules. Mr. Prusty in support of his contention relied in the decisions in the case between Ramchandra Keshav Adke (dead) by LRs. and others v. Govind Joti Chavare and Others; reported in (1975) 1 SCC 559 : (AIR 1975 SC 915), and in the case between State of Gujarat v. Shantilal Mangaldas and Others; reported in AIR 1969 SC 634. In paragraph 25 of the judgment in the case between Ramchandra Keshav Adke (Supra) the Apex Court held as under :
    "25. A century ago, in Taylor v. Taylor, Jassel, M. R. adopted the rule that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time. It was applied by the Privy Council, Nazir Ahmed v. Emperor (AIR 1936 PC 253 (2)) and later by this Court in several cases, to a magistrate making a record under Sections 164 and 364 of the Code of Criminal Procedure, 1898. This rule squarely applies "where, indeed, the whole aim and object of the Legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other. The rule will be attracted with full force in the present case, because non-verification of the surrender in the requisite manner would frustrate the very purpose of this provision. Intention of the Legislature to prohibit the verification of the surrender in a manner other than the one prescribed, is implied in these provisions. Failure to comply with these mandatory provisions, therefore, had vitiated the surrender and rendered it non est for the purpose of Section 5(3)(b)."
15. In view of the law laid down by the Apex Court and the Government of India's Instruction No. 4 under Rule 15 of CCS (CCA) Rules, 1965 it was argued by Mr. P. C. Prusty, learned counsel for the petitioner that order of removal dated 16-3-2006 cannot sustain in law and it is liable to be set aside and quashed on this score alone.
16. Respondents in reply to the statement made in paragraph-28 of the writ petition in the context of this issue raised by the writ petitioner contended nothing in paragraph-21. It is contended simply that the impugned order of removal of the petitioner from service is not retrospective. This naked contention rather objection raised by the respondents fails to goad the Court to take a different view than that of the view adopted by the Supreme Court in the Cases (supra) and the instruction of the Government of India as indicated above under Rule 15 of CCS (CCA) Rules, 1965.
17. Taking care of the facts and circumstances of the case and the law laid down by the Supreme Court and this Court and the provisions of CCS (CCA) Rules, impugned order dated 16-3-2006 as well as the appellate order dated 26-9-2006 cannot stand in the eye of law. Both the orders are accordingly set aside and quashed. The respondents, respondent No. 4 in particular is directed to reinstate the petitioner in his post earlier held by him with all benefits. Such reinstatement should be made from the date of his suspension. However, the respondent authorities would not be precluded from initiating a de novo departmental inquiry against the writ petitioner, if so advised.
18. With the above direction, this writ petition is allowed. No cost.

Petition allowed.
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