Manipur High Court
Md. Zakir Hussain Aged About 36 Years vs The State Of Manipur Represented By The ... on 23 May, 2024
Author: A. Guneshwar Sharma
Bench: A. Guneshwar Sharma
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
WP(C) No. 70 of 2023
Md. Zakir Hussain aged about 36 years, S/o Mrs. Khomei of
Sangaiyumpham Nungphou Mamang P.O. Wangjing & P.S. -
Thoubal, Thoubal District, Manipur - 795148 earlier serving as
VDF Thoubal District having V.D.F. No. 1185 presently
disengaged from the VDF strength.
...... Petitioner/s
- Versus -
1. The State of Manipur represented by the Chief
Secretary/Special secretary/Secretary (Home), Government of
Manipur, Babupara, Old Secretariat South Block P.O. & P.S.
Imphal, Imphal West District, Manipur - 795001;
2. The Director General of Police, Manipur, Babupara, Police
Headquarter, P.O. & P.S. Imphal, Imphal West District, Manipur
- 795001;
3. The Superintendent of Police, Thoubal District, Thoubal, P.O.
& P.S. Thoubal, Thoubal District, Manipur - 795138.
........Respondent/s
B E F O R E
HON'BLE MR. JUSTICE A. GUNESHWAR SHARMA
For the petitioner :: Mr. Ajmal Hussain, Advocate.
For the respondents :: Mr. Shyam Sharma, G.A.
Date of Hearing :: 08.05.2024
Date of Judgment and Order :: 23.05.2024
WP(C) No. 70 of 2023 Page 1
JUDGMENT & ORDER (CAV)
[1] Heard Mr. Ajmal Hussain, learned counsel for the petitioner
and Mr. Shyam Sharma, learned G.A. for the State respondents.
[2] The present writ petition has been filed under Article 226 of the
Constitution of India to quash and set aside the impugned disengagement
order dated 02.01.2021 issued by the Superintendent of Police, Thoubal.
The petitioner was disengaged from being a member of Village Defence
Force (VDF) without affording an opportunity of being heard and without any
enquiry on allegation of dereliction of duty upon escape of an accused from
police custody.
[3] Vide order dated 24.10.2015 issued by the Superintendent of
Police, Thoubal, the petitioner was engaged as VDF (Village Defence Force)
bearing VDF No. 1185 in the strength of VDF, Thoubal District and he was
serving in the said discipline for the last 6 years till he was disengaged vide
disengagement order dated 02.01.2021 issued by the Superintendent of
Police, Thoubal on the ground of dereliction of duty without any enquiry.
[4] On 02.01.2021, the petitioner was assigned duty at Bazar as a
normal course of duty under a commander and on the same day, the
petitioner was assigned another duty for both Gate Sentry as well as to look
after the lock-up during which one accused person namely Naorem Romen
@ Nanao who was in the custody of Thoubal Police station. While the
petitioner was attending his duty, the said accused person escaped from the
WP(C) No. 70 of 2023 Page 2
custody. The incident happened as it was beyond the control of the petitioner
alone, as the other person (the commander) was absent at that time and due
to dilapidated wall/fencing of the police station. Subsequently, the escaped
person was apprehended and re-arrested, but the petitioner was later asked
to stay home by taking away the service ID without assigning any duty and
later on, after 3 or 4 months, the petitioner came to know that he was
disengaged from his service. However, no order copy was served to him at
the time of disengagement from the service.
[5] The petitioner being aggrieved approached the competent
authorities to review and revoke the impugned disengagement order dated
02.01.2021 and to consider his re-engagement by filing a representation
dated 26.08.2022 to the respondents but the same is not considered till date.
[6] The respondent No. 3 filed counter affidavit stating that the
petitioner was disengaged and struck off from the strength of Thoubal District
VDF member for his dereliction of his duty in connection with the escape of
one accused person namely Naorem Romen @ Nanao Singh from the police
custody of Thoubal PS while the petitioner was on his duty. It is stated that
on 08.01.2021, an enquiry report was submitted by the Sub-Divisional Police
Officer, Thoubal wherein it is stated that the petitioner who was on sentry
duty had committed negligence and dereliction of duty while on sentry. It is
prayed that the writ petition may be dismissed as being devoid of merit.
[7] It may be noted that vide order dated 05.12.2023, this Court
directed learned GA to explain the procedures for disengagement of VDF
WP(C) No. 70 of 2023 Page 3
personnel in the proposed counter-affidavit. However, in the counter-affidavit
dated 23.02.2024 filed by the respondent No.3 (Superintendent of Police,
Thoubal), nothing is mentioned in this regard. In the circumstances, this
Court is compelled to do extra research through Google and ChatGTP 3.5.
The following important information regarding the VDF is collected.
[8] The Village Defence Force, popularly known as VDF, in
Manipur was established to enhance local security and assist the police in
maintaining law and order, especially in the rural areas. Initiated under the
Manipur Police, the VDF consists of volunteers from the local communities
who are trained and equipped to guard their villages against various threats,
including insurgent activities and ethnic violence. After completing the
training successfully and passing any required assessments, the candidates
are formally appointed as members of VDF. Once appointed, VDFs are
assigned duty along with the police force. However, there is no material on
record regarding the service conditions of VDF personnel.
[9] On further search, this Court comes across an Office
Memorandum dated 18.10.2022 issued by the Home Department,
Government of Manipur laying down service conditions of VDF. The OM,
inter-alia, stipulates at para (vi) that a show cause notice to explain the
charges against a VDF personnel be given mandatorily and an appeal lies
to DIG from any adverse order passed by the SP against a VDF personnel.
However, this OM is not mentioned in the counter-affidavit of the respondent
in spite of specific direction of this Court in order dated 05.12.2023. The OM
is reproduced below:
WP(C) No. 70 of 2023 Page 4
"Government of Manipur
Secretariat: Home Department
............
Office Memorandum
Imphal, the 18th October, 2022
Subject: Service Conditions of Village Defence Force (VDF).
No. H/1/2022-HD-HD: The State Government is seized of the issues
highlighted by the Village Defence Force (VDF) regarding their working
conditions. In order to improve the engagement conditions of the
people engaged as Village Defence Force (VDF), the State
Government has decided to provide the following facilities to VDF
personnel of the State:
i.VDF will be given annual increment of Rs. 500/- in the monthly
honorarium, w.e.f 1th January, 2022 onwards.
ii.VDF will be allowed to avail 15 days compensatory leave in a year.
iii.10% of the direct recruitment vacancies in the rank of Police
Constable and Rifleman may be reserved (horizontal reservation) for
filling up by eligible VDF personnel.
iv.Yearly physical & medical test shall be conducted by the police with
the assistance of Health Department to assess their
performance/duties.
v.Three ranks will be created viz: 8 (eight) years of engagement will
be designated as Corporal and those with 16 (sixteen) years will be
designated as Sergeant after being found fit by a Screening
Committee.
vi.A Show Cause Notice will mandatorily be issued to the VDF
personnel and given an opportunity to explain in case of any alleged
charges. Decisions on the Charges including dis-engagement can
be taken at the level of Superintendent of Police. An appeal against
the decision can be made to the DIG concerned within 30 days of
the decision.
vii.VDF personnel with outstanding performance will be felicitated
during National and State Level Functions and Police Raising Day
after proper recommendation by a two tier Committee structure, one
at District and the higher one being at the State Level.
viii.Concerned District Superintendent of Police shall take action to enrol
VDF personnel to eligible health care programme like Ayushman
Bharat or CHHT. They may also -2-2covered in social security
schemes such as National Pension Scheme (NPS), Atal Penson
Yojana Jeevan Jyoti Bima Yojana, etc. in consultation with Finance
Department.
ix.Recruitment criteria/eligibility conditions, age, physical recruitment
and educational qualifications for future recruitment/engagement of
VDF will be issued separately.
WP(C) No. 70 of 2023 Page 5
2. This has a reference to decision taken by State Cabinet in its
meeting held on 21.07.2022.
3. This is issued with concurrence of FD's U.O. No. 228/2022-
2023/FD(PIC), dated 17.07.2022 and DP's U.O. No. 71/2022-2023/DP
dated 10/10/2022.
(Rajesh Agrawal)
Principal Secretary (Home)
Government of Manipur.
......."
[10] In a recent case of Nasim Bano v. The State of Manipur &
Ors [WP(C) No.209 of 2023 order dated 17.01.2024]-
MANU/MN/0008/2024, this Court held that even in absence of the statutory
rules, an employee should be given an opportunity of being heard before
terminating his service, when the termination is stigmatic. Relevant para are
reproduced below:
"[15] The next question to be decided is whether the
service of Anganwadi Worker, who is not a regular Government
Employee, be terminated without any due process when the
termination order is stigmatic.
[16] In the present case, it is admitted fact that the
petitioner has been appointed in connection with the ICDS Project
on a monthly honorarium basis and in the appointment order
dated 08.07.2008, the tenure is not mentioned. In other words, her
service may be utilised as long as the ICDS Project continues.
[17] There is no material on record to indicate
existence of any Rules or Regulations controlling the service
conditions of Anganwadi Workers and Helpers. In the cases relied
by Mr. K. Roshan, learned counsel for the petitioner, at least some
Rules and Regulations are there governing the
appointment/engagement of such workers or the employees. On
bare reading of the impugned order dated 18.08.2022, this Court
is of the considered view that the termination order is stigmatic,
because the termination was due to her involvement in a criminal
case. In fact, the termination order was issued without affording
any opportunity to the petitioner for her explanation.
[18] This Court is of the opinion that at least a Show
Cause Notice ought to be issued to the petitioner to explain the
WP(C) No. 70 of 2023 Page 6
circumstances leading to her alleged involvement in the criminal
case. The decision of Ajit Kumar Nag (Supra) as relied by the
learned G.A. will not strictly be applicable in the present case, as
the dismissal without enquiry was done under standing order of
India Oil Corporation.
[19] Accordingly, the impugned order dated
18.08.2022 issued by the Child Development Project Officer,
ICDS Project, Imphal East - II, Keirao Bitra is set aside and the
petitioner be re-instated to her service with continuity of service
within a period of 30 days from the date of receipt of this order.
However, the petitioner will not be entitled to back wages for the
period under termination. It is clarified that the respondents are at
liberty to take up any action in compliance with the principles of
natural justice, if so advised."
[11] From the case of Nasim Banu (supra), it is clear that even if
the rule is silent or absent, an opportunity of being heard ought to be
provided to an employee before removing him from service. In the present
case, no such opportunity was given to the petitioner before issuing his dis-
engagement order from being a VDF. In short, dis-engagement order is an
alternative term of removal from service. The reason given in the impugned
order is for dereliction of duty which is stigmatic in nature as held in the case
of Nasim Banu (supra). The disengagement order without any notice is bad
on this ground alone.
[12] As mentioned above in para 9, State Government has issued
an Office Memorandum dated 18.10.2022 laying down the service conditions
of VDF. In para (vi), it is made mandatory to issue show cause notice to a
VDF personnel to explain about the charges against him before passing any
adverse order by SP and appellate forum is provided before DIG.
WP(C) No. 70 of 2023 Page 7
[13] In the present case, the dis-engagement order (ie, removal
from service) was issued on 02.01.2021 itself, the day on which the accused
escaped from police custody without affording any opportunity. The enquiry
was conducted only on 08.01.2021, where some of the regular police
personnel were awarded with minor penalty. The petitioner was awarded
with a major penalty of removal from service without any show cause and
enquiry. This Court is of the opinion that the disengagement order dated
02.01.2021 passed by the Superintendent of Police, Thoubal is in violation
of the principles of natural justice as held in the case of Nasim Banu. Judicial
note is taken about the subsequent Office Memorandum dated 18.10.2022
stipulating brief service conditions of VDF personnel.
[14] In the circumstances, the impugned order dated 02.01.2021
disengaging the petitioner from the strength of Thoubal District VDF is set
aside and the petitioner is restored to the strength and roll of VDF Thoubal
with immediate effect. The period between date of disengagement, ie, from
02.01.2021 to 23.05.2024 (date of this order) shall be treated as in service.
The petitioner shall be entitled to 50% of back honorarium and allowances
as admissible. It is clarified that the State respondents are at liberty to
conduct an enquiry in terms of the Office Memorandum dated 18.10.2022
against the petitioner for the alleged dereliction of duty, if so advised, within
a period of three months from the date receipt of a copy of this order, failing
which the same shall stand abated.
WP(C) No. 70 of 2023 Page 8
[15] With these observations and directions, the writ petition is
allowed. Arrears of honorarium and allowances as directed above shall be
paid within a period of three months from today. No cost.
[16] Send a copy of this order to the Superintendent of Police,
Thoubal for information and necessary compliance.
JUDGE
FR/NFR
Kh. Joshua Maring
KH. Digitally signed
by KH. JOSHUA
JOSHUA MARING
Date: 2024.05.23
MARING 14:56:26 +05'30'
WP(C) No. 70 of 2023 Page 9
