Pipa Yaima Dangshawa Maring vs The State Of Manipur Through The ...
2022 Latest Caselaw 243 Mani

KABORA    Digitally signed
          by
MBAM      KABORAMBAM
          SANDEEP SINGH
SANDEE    Date:

P SINGH
          2022.06.03
          14:41:01 +05'30'
                                                 IN THE HIGH COURT OF MANIPUR
                                                         AT IMPHAL


                                                 WRIT APPEAL NO. 72 OF 2021

                 Pipa Yaima Dangshawa Maring, aged about 32 years,
                 s/o. P.Angphum Maring, resident of Langol Khullen, Chandel,
                 P.O. Pallel, P.S. Tengnoupal and Chandel District,
                 Manipur-795135.                                             .......Appellant



                                                      - versus -


                 1. The State of Manipur through the Principal Secretary/Commissioner/
                    Secretary (Home), Government of Manipur, Secretariat Building,
                    P.O. & P.S., Imphal, Manipur -795001.
                 2. The Director General of Police, Police Headquarters, Babupara,
                    Government of Manipur, Imphal, Manipur-795001.
                 3. The Deputy Inspector General of Police (Range-1),
                    Police Headquarters, Babupara, Government of Manipur, Imphal,
                    Manipur-795001.
                 4. The Superintendent of Police, Porompat, Imphal East,
                    Manipur -795001.


                                                                                 ....... Respondents

BEFORE HON'BLE THE CHIEF JUSTICE MR. SANJAY KUMAR HON'BLE MR. JUSTICE LANUSUNGKUM JAMIR

For the appellant : Mr. Anjan Prasad Sahu, Advocate

For the respondents : Mr. Athouba Khaidem, Government Advocate Date of reserving of Judgment : 31.05.2022

Date of delivery of Judgment : 03.06.2022

WA No.72 of 2021 Page 1 JUDGMENT & ORDER (CAV) Sanjay Kumar (C.J.):

[1] The unsuccessful petitioner in W.P(C) No.602 of 2018 is in appeal,

aggrieved by the judgment and order dated 09.04.2021 passed by a learned Judge of

this Court dismissing his writ petition.

[2] Pipa Yaima Dangshawa Maring, the appellant, entered service as a

Constable in the Manipur Police. He was promoted thereafter and became the Head

Constable of the Commando Unit (CDO), Imphal East. While so, he was dismissed from

service by the Governor, State of Manipur, in exercise of power under sub-clause (c) of

the proviso to clause (2) of Article 311 of the Constitution, vide order dated 23.01.2018.

Pursuant thereto, his name was struck off from the strength of the District Police,

Imphal East District, Manipur, vide order dated 29.01.2018. These orders were assailed

by him in W.P(C) No.602 of 2018. However, the learned Judge found no merit in his

challenge and dismissed the writ petition. Hence, this appeal.

[3] Heard Mr. Anjan Prasad Sahu, learned counsel for the appellant; and

Mr. Athouba Khaidem, learned Government Advocate, appearing for the respondents.

[4] Mr. Anjan Prasad Sahu, learned counsel, would argue that there was no

valid material for exercise of power under sub-clause (c) of the proviso to Article 311(2)

of the Constitution. He would point out that only the statements recorded under Section

161 Cr.P.C. were relied upon to draw an adverse inference against the appellant, leading

to his dismissal from service without an inquiry, and contend that reliance placed upon

WA No.72 of 2021 Page 2 such statements would be hit by Sections 25 and 26 of the Indian Evidence Act, 1872.

Learned counsel would state that criminal proceedings are still pending as on date and

contend that there was no necessity to exercise such drastic power against the appellant

before culmination of those proceedings in an actual conviction. He would assert that

the appellant must be presumed innocent till proven guilty and argue that the

termination of his services without going through the normal procedure is wholly

unsustainable in law.

Per contra, Mr. Athouba Khaidem, learned Government Advocate, would

point out that a Committee of Advisors looked into the material available and then

recommended to the Governor, State of Manipur, that this was a fit case for exercise

of power under the Constitutional provision. He would contend that there is no illegality

in the termination of the appellant's services and assert that no grounds are made out

for appellate interference.

[5] Article 311 of the Constitution deals with dismissal, removal or reduction

in rank of persons employed in civil capacities under the Union or a State. It reads thus:

'Article 311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State -

(1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State, shall be dismissed or removed by an authority subordinate to that by which he was appointed.

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.'

WA No.72 of 2021 Page 3 The first proviso is not of relevance presently. The second proviso to

Article 311(2) is germane to this adjudication and it reads thus: -

'Provided further that this clause shall not apply -

(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or

(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or

(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.'

Article 311(3) provides that if, in respect of any such person as aforesaid,

a question arises whether it is reasonably practicable to hold such inquiry as is referred

to in clause (2), the decision thereon of the authority empowered to dismiss or remove

such person or to reduce him in rank shall be final.

[6] The ambit and contours of this provision are well settled, given the

plethora of case law dealing therewith. The three clauses of the second proviso to Article

311(2) fell for consideration before a Constitution Bench in Union of India and

another vs. Tulsiram Patel [(1985) 3 SCC 398]. The decision therein makes it

clear that clauses (b) and (c) of the second proviso operate independently and in

different spheres. The Bench pointed out that under clause (b), the satisfaction is of

the disciplinary authority while under clause (c), it is of the President or the Governor

of a State, as the case may be. Further, under clause (b), the satisfaction is with respect

to it not being reasonably practicable to hold an inquiry, while under clause (c), it is

with respect to it not being expedient in the interest of the security of the State to hold

WA No.72 of 2021 Page 4 an inquiry. The Bench pointed out that clause (b) expressly requires that the reasons

for dispensing with an inquiry should be recorded in writing but clause (c) does not

require it, either expressly or impliedly.

The Constitution Bench also observed that the question, under clause (c),

would not be whether the security of the State has actually been affected or not, as the

expression used in that clause is 'in the interest of the security of the State' and it was

pointed out that the interest of the security of the State may be affected by actual acts

or even the likelihood of such acts taking place. The Bench further pointed that what is

required under clause (c) is not the satisfaction of the President or the Governor that

the interest of the security of the State is or will be affected but the satisfaction that in

the interest of the security of the State, it is not expedient to hold an inquiry as

contemplated by Article 311(2). The satisfaction so reached by the President or the

Governor, per the Bench, must necessarily be a subjective satisfaction and the reasons

for the satisfaction cannot therefore be required to be recorded in the order of dismissal

nor can they be made public.

As regards the remedies available to an aggrieved Government servant,

the Constitution Bench held that an appeal or revision, as the case may be, would lie in

the case of a dismissal falling under clauses (a) and (b) and in the event such a person

invokes the Court's power of judicial review, it would be open to the Court to interfere

if the penalty imposed is found to be arbitrary or grossly excessive or out of proportion

to the offence committed or not warranted by the facts and circumstances of the case.

WA No.72 of 2021                                                                       Page 5
 [7]           In Sardari Lal vs. Union of India [(1971) 1 SCC 411], the Supreme

Court had held that the satisfaction of the President or the Governor under Article

311(2)(c) was his personal satisfaction and he himself must reach such satisfaction as

delegation was not possible. However, this decision was overruled by a Constitution

Bench in Samsher Singh vs. State of Punjab [(1974) 2 SCC 831]. It was pointed

out therein that the President or the Governor would act upon the advice of the Council

of Ministers and, therefore, it would not be necessary that the satisfaction must be

personal to the President or the Governor, as the case may be. This legal position was

affirmed in Tulsiram Patel (supra).

[8] In A.K. Kaul and another vs. Union of India and another [(1995)

4 SCC 73], the Supreme Court observed that in a case where the validity of an order

passed under clause (c) of the second proviso to Article 311(2) is assailed before a

Court, it would be open to the Court to examine whether the satisfaction of the

President or the Governor is vitiated by malafides or is based on wholly extraneous or

irrelevant grounds, and for that purpose, the Government is obliged to place before the

Court the relevant material on the basis of which satisfaction was arrived at. This

decision indicates the scope of judicial review in a case pertaining to clause (c) of the

second proviso to Article 311(2)

[9] In Union of India and another vs. M.M. Sharma [(2011) 11 SCC

293], the Supreme Court again considered whether it would be necessary to disclose

reasons in a case falling under clause (c) to the second proviso to Article 311(2). The

High Court had held to that effect but the Supreme Court reversed the view and

WA No.72 of 2021 Page 6 observed that it is not mandatory to disclose reasons as to why the President or the

Governor, as the case may be, had arrived at the satisfaction that it was not expedient

in the interest of the security of the State to hold a departmental inquiry. The original

record was placed before the Supreme Court in that case and having perused the same,

the Supreme Court noted that a High-Level Committee considered the entire record and

came to the conclusion that action could be taken for dismissal under clause (c) to the

second proviso to Article 311(2). The same was accepted by the President and

thereupon, the order of dismissal came to be passed.

[10] This being the settled legal position, it may be noted that Office

Memorandum dated 16.08.2008 was issued by the Department of Personnel and

Administrative Reforms (Personnel Division), Government of Manipur, setting out

instructions apropos Government servants engaged in or associated with subversive

activities and revising the procedure to deal with them. This Memorandum provided for

a Committee of Advisors to be constituted, comprising the Chief Secretary, Government

of Manipur; the Principal Secretary (Home), Government of Manipur; the Director

General of Police, Manipur; the Secretary, Department of Personnel and Administrative

Reforms; the Secretary (Law); the Secretary of the Department concerned with the

case; and the Deputy Director General (SIB). This Committee was to decide first

whether the allegations made against the employee should be disclosed to him and he

should be given an opportunity to furnish his explanation or whether, on the grounds

of security or the nature of the allegations made, it would not be advisable or necessary

to disclose the allegations against the employee or to call for his reply. The Committee

WA No.72 of 2021 Page 7 has to record its reasons as to the adequacy and veracity of the evidence available and

makes its recommendation as to whether there is no case for taking action against the

official or whether action may be taken for dismissal or removal from service under

proviso (c) to Article 311(2) of the Constitution. If the latter recommendation is made

by the Committee, then the same should be placed before the Home Department and

then, the Minister-in-Charge of the Department concerned. In case the Minister-in-

Charge agrees with the Home Minister, the Secretary of the said Ministry is to issue

orders endorsing a copy of the order to the Department of Personnel and Administrative

Reforms and the Home Department. In the event of disagreement between the

Ministers, the matter is to be placed before the Chief Minister for final orders and then

forwarded to the Governor, State of Manipur, for appropriate further orders.

[11] In the case on hand, one Sapam Nanda Singh @ Maker and the appellant

were arrested on 13.08.2017 during the morning hours and, thereafter, one

Thingbaijam Sanjoy Singh, another Head Constable, was arrested in the evening on the

very same day. Their arrests were made in connection with FIR No.252(8) 2017 SJM-

PS under Sections 307, 506, 427 and 34 IPC; Section 20 of the Unlawful Activities

(Prevention) Act, 1967, and Section 3 of the Explosive Substances Act, 1908. The case

against these arrested persons was that they were involved in causing the explosion of

an IED (Improvised Explosive Device) on 13.08.2017 at around 9.45 am near the

electric transformer located at Naorem Leikai, Kakwa, Imphal West. Their statements

were recorded and their disclosures revealed that they were about to undertake some

more activities detrimental to the security of the State. Upon due investigation, the

WA No.72 of 2021 Page 8 police found that the appellant was associated with an unlawful organization, despite

being the member of a law enforcing agency, and opined that it would not be expedient

to hold an inquiry against him in the interest of security. A proposal was made

thereupon to the State Government in that regard. The matter was then placed before

the Committee of Advisors constituted under the Office Memorandum dated 16.08.2008

for appropriate inquiry and recommendation. After considering the material placed

before it, the Committee recorded its satisfaction that the appellant and Thingbaijam

Sanjoy Singh, the other Head Constable, had willingly indulged in the activities of an

unlawful organization and the same were prejudicial to the security of the State. The

Committee opined that it would not be advisable to disclose the allegations against

them or call for their replies and accordingly recommended their dismissal from service

under sub-clause (c) of the proviso to Article 311(2) of the Constitution. The Governor,

State of Manipur, accepted the recommendation and, in consequence, the dismissal

order dated 23.01.2018 came to be issued.

[12] On these obtaining facts, Mr. Anjan Prasad Sahu, learned counsel, would

also contend that recovery of incriminating material was effected from the residence of

Thingbaijam Sanjoy Singh, the other Head Constable, basing on his statement recorded

under Section 161 Cr.P.C., and assert that the same could not be attributed to the

appellant herein. Perusal of the statement of Thingbaijam Sanjoy Singh, recorded under

Section 161 Cr.P.C., reflects that this is a fact.

[13] However, it is also a matter of record that the appellant and Sapam Nanda

Meitei @ Maker were arrested on 13.08.2017 at 10.30 am, in the first instance, while

WA No.72 of 2021 Page 9 Thingbaijam Sanjoy Singh, the other Head Constable, was arrested only at 5 pm on

that day. The requisition for remand filed on 14.08.2017 by the Sub-Divisional Police

Officer, Singjamei, before the learned Chief Judicial Magistrate, Imphal West, records

this. It also reflects that after the explosion of the IED at Naorem Leikai, a search

operation was launched and relying on inputs, Sapam Nanda Singh @ Maker and the

appellant were arrested at 10.30 am on that day. It appears that, based on their

disclosures, Thingbaijam Sanjoy Singh, the other Head Constable, stood implicated and

he was finally picked up at around 5 pm on the same day, after a massive manhunt.

On the strength of his disclosures, recovery of incriminating material was effected from

his residence. The extract of the Case Diary in relation to FIR No.252(8) 2017 SJM-PS

dated 14.08.2017 also reflected these facts.

[14] The original record produced before this Court manifests that these

documents, along with others, were placed before the Committee of Advisors and the

Committee, at its meeting held on 25.11.2017, recorded its findings and

recommendation, set out supra. The Note File reflects that the recommendation of the

Committee was circulated to the Home Department, Government of Manipur, and was

then forwarded to the Governor, State of Manipur, after the Chief Minister endorsed his

signature thereon. The Governor, State of Manipur, thereupon affixed her signature on

28.12.2017, approving the recommendation. The dismissal of the appellant from service

was conveyed by the Under Secretary (Home), Government of Manipur, vide the order

dated 23.01.2018, leading to his name being struck off by the Superintendent of Police,

Imphal East District, vide order dated 29.01.2018.

WA No.72 of 2021                                                                 Page 10
 [15]          At the cost of repetition, it may be noted that it is not necessary that the

security of the State should actually be affected, as the expression used in the provision

is: 'in the interest of the security of the State', and such interest may be affected by

actual acts or even likelihood of such acts taking place [See Tulsiram Patel (supra)].

The Supreme Court also pointed out therein that what is required is only the satisfaction

of the President or the Governor that in the interest of the security of the State, it would

'not be expedient' to hold the inquiry contemplated by Article 311(2) of the Constitution.

[16] Significantly, in Union of India and another vs. Balbir Singh and

another [(1998) 5 SCC 216], the Supreme Court observed that once there is 'some

material' relating to the activity which is prejudicial to the security of the State, it would

be sufficient to take recourse to Article 311(2)(c) of the Constitution. In that case, the

respondent Sub-Inspector was, in fact, acquitted of criminal charges later, yet the order

of his dismissal from service under Article 311(2)(c) was upheld. It is therefore clear

that conviction or acquittal in criminal proceedings would have no substantial impact on

the exercise of power under Article 311(2)(c) on the totality of the material which was

considered by the authorities long prior to conclusion of the criminal trial. The Supreme

Court further observed therein that, only if the Court finds that the circumstances on

which the satisfaction of the President or the Governor is based have no bearing

whatsoever on the security of the State, the order would stand vitiated by wholly

extraneous or irrelevant considerations.

[17] Applying that standard, it was upon the disclosures made by the appellant

and Sapam Nanda Singh @ Maker, his co-accused, that the involvement of Thingbaijam

WA No.72 of 2021 Page 11 Sanjoy Singh, the other Head Constable, came to light. Upon his arrest and disclosures,

effective recovery of incriminating material was made from his residence. This chain of

events reveals that there was 'some material' to manifest the involvement of the

appellant in subversive activities. Reliance was not placed only upon the confessions of

the arrested persons and there was a clear indication of the involvement of the appellant

from the unfolding of events on the fateful day. Sections 25 and 26 of the Indian

Evidence Act, 1872, are therefore of no avail to the appellant.

In the interest of State security, the final decision was taken by the

Governor, State of Manipur, on the strength of the recommendation made by the

Committee of Advisors, that it would not be expedient to hold an inquiry against the

appellant and that he deserved to be dismissed from service outright. The order of the

learned Judge upholding such dismissal, therefore, brooks no interference.

The writ appeal is devoid of merit and is accordingly dismissed.

The original record is returned to Mr. Athouba Khaidem, learned

Government Advocate, in the open Court.

In the circumstances, there shall be no order as to costs.

                           JUDGE                                     CHIEF JUSTICE
FR/NFR
Opendro




WA No.72 of 2021                                                                  Page 12