Page No.# 1/14 GAHC040006352023 2025:GAU-AP:272-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WA/16/2023 THE STATE OF AP and 3 Ors. Through the Secretary, Home Department, Govt. of Arunachal Pradesh, Itanagar. 2: The Inspector General of Police Age: Occupation : Govt. of Arunachal Pradesh BHQ Chimpu Itanagar. 3: The Deputy Inspector General of Police Age: Occupation : Govt. of Arunachal Pradesh PHQ Chimpu Itanagar. 4: The Commandant Age: Occupation : 1st AAPBn BHQ Chimpu Govt. of Arunachal Pradesh Itanagar VERSUS Tai Tache S/o Tai Nikam, Chimpu Village, PO RK Mission, Itanagar, PS Itanagar, District Papumpare, Arunachal Pradesh, presently serving as Lance Naik, 1st AAP Bn, PHQ, Chimpu, Itanagar, Arunachal Pradesh, Itanagar. Advocate for the Petitioner : Subu Tapin, Page No.# 2/14 Advocate for the Respondent : Lissing Perme, T Gamlin,A Perme,William Yirang,Wintet Sawin,Signal Yirang,Jumge Riram,Krishna Dubey :::BEFORE::: HON’BLE MR. JUSTICE ROBIN PHUKAN HON’BLE MR. JUSTICE N. UNNI KRISHNAN NAIR Date of hearing : 12.12.2024 Date of Judgment: 18.02.2025 JUDGMENT & ORDER (CAV) (By N. Unni Krishnan Nair, J.) Heard Mr. Subu Tapin, learned Senior Government Advocate, appearing on behalf of the appellants-State of Arunachal Pradesh. Also heard Mr. Lissing Perme, learned counsel, appearing on behalf of the respondent/writ petitioner. 2. The present intra-Court appeal has been instituted by the appellants assailing the judgment & order, dated 02.02.2023, passed by the learned Single Judge in WP(c)205(AP)2022, interfering with a penalty imposed upon the respondent/writ petitioner, herein. 3. The facts requisite leading to the institution of the connected writ petition being WP(c)205(AP)2022, is noticed as under: The respondent/writ petitioner was issued with a memorandum of charge, dated 17.08.2015, wherein, an article of charge was framed alleging that the respondent/writ petitioner, while working as Lance Naik with the 1st Arunachal Pradesh Police Battalion, BHQ, Chimpu, had claimed and sold the standing trees to a National Highway constructing agency on a plot of land located between the RP Gate and NH52, which was contended to be under the possession of the 1st Arunachal Pradesh Police Battalion, BHQ, Chimpu, since 1989. The said act on the part of the respondent/writ petitioner, was Page No.# 3/14 treated to be a gross misconduct/indiscipline being a member of the disciplined force. On conclusion of the Disciplinary Proceeding held in the matter against the respondent/writ petitioner and the Inquiry Report being submitted by the Inquiry Officer; the Commandant, 1st Arunachal Pradesh Police Battalion, BHQ, Chimpu, vide order, dated 18.11.2016, on examining the materials brought on record in the inquiry as well as the charge, was pleased to exonerate the respondent/writ petitioner, herein, from the charges so framed against him vide the memorandum of charge, dated 17.08.2015. However, a direction was issued for initiating a separate Disciplinary Proceeding against the respondent/writ petitioner on the charge of claiming and occupying government allotted plot of land to the Police Department. Accordingly, a fresh memorandum of charge, dated 17.11.2016, came to be issued against the respondent/writ petitioner and therein, under the article of charge No. 1, it was alleged that the respondent/writ petitioner was claiming a plot of land located between the RP Gate and NH52 which was contended to be under the possession of the 1st Arunachal Pradesh Police Battalion, BHQ, Chimpu, since 1989, and such act on the part of the respondent/writ petitioner was held to be a gross misconduct/indiscipline committed by him. The statement of imputation as annexed to the said memorandum of charge, goes to allege that the respondent/writ petitioner was claiming and illegally trying to grab the plot of land, in question. On conclusion of the inquiry held in the matter; the Inquiry Officer submitted a report and the same was forwarded by the disciplinary authority, vide communication, dated 28.12.2016, by the Battalion Inspector, 1st Arunachal Pradesh Police Battalion, BHQ, Chimpu, for service upon the respondent/writ petitioner. The Inquiry Officer in his said report, had, basing on the depositions so made in the inquiry by the prosecution witnesses appearing in the matter, had recorded a finding to the effect that it was found that the respondent/writ petitioner was claiming and illegally trying to grab the plot of land, in question, and accordingly, the charge against Page No.# 4/14 the respondent/writ petitioner, was held to be proved. The disciplinary authority on receipt of the said Inquiry Report and on examination of the materials coming on record, vide order, dated 27.06.2017, proceeded to agree with the findings so arrived at in the matter by the Inquiry Officer in his report. Further, the claim of the respondent/writ petitioner that he was in peaceful possession of the land, in question, since 1994, was rejected. Basing on the said conclusions; the disciplinary authority proceeded to impose upon the respondent/writ petitioner, the penalty of withholding of two increments with cumulative effect with further direction to him to vacate the plot of land, in question. The respondent/writ petitioner, being aggrieved, preferred an appeal before the appellate authority on 21.08.2018, and the appellate authority, vide order, dated 10.10.2018, on consideration of the appeal so preferred by the respondent/writ petitioner; proceeded to reject the same and uphold the order passed by the disciplinary authority, vide order, dated 27.06.2017. Thereafter, the respondent/writ petitioner submitted a revision petition in the matter. The revisioning authority, vide order, dated 14.02.2019, on consideration of the materials available on record as well as appreciating the contentions raised by the respondent/writ petitioner in his revision petition and also after providing to the respondent/writ petitioner, a personal hearing, proceeded to modify the penalty so imposed upon the respondent/writ petitioner and reduced the same to that of withholding of one increment with cumulative effect. The respondent/writ petitioner being aggrieved by the imposition of the above- noted penalty upon him; approached the writ Court by way of instituting a writ petition being WP(c)100(AP)2019. The writ Court upon appreciating the issue arising in the said writ petition, was pleased, vide order, dated 06.04.2022, to dispose of the same by interfering with the order, dated 17.11.2016, passed by the disciplinary authority and the order, dated 14.02.2019, passed by the revisioning authority and remanded back the matter to the disciplinary authority to consider afresh as to whether the act of Page No.# 5/14 unauthorizedly occupying a plot of government land would also amount to misconduct and indiscipline in service law. On an examination of the said aspect of the matter, the disciplinary authority was directed to pass a reasoned order. Liberty was further granted to the appellants, herein, to proceed with the respondent/writ petitioner in accordance with law as regards the illegal occupation of a government plot of land, in question, by him. In terms of the directions passed by this Court, vide order, dated 06.04.2022, in WP(c)100(AP)2019; the disciplinary authority re-considered the allegations levelled against the respondent/writ petitioner vide the memorandum of charge, dated 14.11.2016, in terms of the directions passed by the learned Single Judge, to ascertain as to whether the same amounted to a misconduct and indiscipline committed by him. On a consideration of the same, the disciplinary authority came to a conclusion that the act of unauthorized occupation of a plot of government land by the respondent/writ petitioner which was under the possession of the 1st Arunachal Pradesh Police Battalion, BHQ, Chimpu, since 1989; amounted to a misconduct under Section 6 Rule 2(11) of the Central Civil Services(Conduct) Rules, 1964. Basing on the said conclusion; the disciplinary authority proceeded to hold that the penalty of withholding of one increment with cumulative effect in terms of the order of the revisioning authority, would hold the field. Being aggrieved by the said order, dated 26.05.2022, the respondent/writ petitioner had approached this Court by way of instituting a writ petition being WP(c)205(AP)2022. The learned Single Judge, vide order, dated 02.02.2023, upon hearing the learned counsels appearing for the parties and examining the issue arising in the said proceeding; recorded a finding to the effect that the provisions of Section 6 Rule 2(11) of the Central Civil Services (Conduct) Rules, 1964, which was held to having been violated by the respondent/writ petitioner, herein, was not found to exist in the Statute Books. Basing on the said finding; the charge levelled against the respondent/writ Page No.# 6/14 petitioner was held to be levelled without any basis and consequently, the order, dated 26.05.2022, passed by the disciplinary authority was held to be illegal and accordingly, set aside. Being aggrieved; the State Respondents have instituted the present intra-Court appeal assailing the order, dated 02.02.2023, passed by the learned Single Judge in WP(c)205(AP)2022. 4. Mr. Tapin, learned Senior Government Advocate, appearing for the appellants, by reiterating the facts as noticed hereinabove, has submitted that mere wrong quoting of a provision of law, could not have the effect of rendering the order passed by the disciplinary authority, illegal. The learned Senior Government Advocate has submitted that the respondent/writ petitioner having failed to vacate the plot of land, in question, inspite of directions being issued to him, had committed insubordination by violating the directions issued to him by his superiors. The learned Senior Government Advocate has further submitted that the respondent/writ petitioner being a member of the disciplined force, could not have violated the directions issued to him by his superiors and accordingly, it is also submitted by the learned Senior Government Advocate that the respondent/writ petitioner had committed a misconduct in the matter. 5. Mr. Tapin, learned Senior Government Advocate, has submitted that the Inquiry Officer in the inquiry so held in the matter pursuant to the issuance of memorandum of charge, dated 17.11.2016, basing on the materials brought on record, concluded that the charge levelled against the respondent/writ petitioner, to be established and such conclusion, admittedly, being on the basis of the materials coming on record, the penalty as imposed upon the respondent/writ petitioner by the disciplinary authority and thereafter, reduced by the revisioning authority; ought not to have been interfered with by the learned Single Judge only on the wrong quoting of a provision of law. 6. Per contra, Mr. Perme, learned counsel for the respondent/ writ petitioner; has submitted that a perusal of the article of charge so framed against the respondent/writ petitioner vide the memorandum of charge, dated 17.11.2016, would go to reveal that no Page No.# 7/14 misconduct therefrom, is borne to have been committed by the respondent/writ petitioner. It has been further submitted by the learned counsel that the charge so levelled against the respondent/writ petitioner is only to the effect that he was claiming a plot of land located in between the RP Gate and NH52 which was contended to be under the possession of the 1st Arunachal Pradesh Police Battalion, BHQ, Chimpu, since 1989. 7. Mr. Perme, learned counsel, by drawing our attention to the Inquiry Report, more particularly, the deposition of the respondent/writ petitioner as recorded therein during the inquiry, wherein, he had stated that the land, in question, was being occupied by him since January, 1994, has submitted that such contention raised by the respondent/writ petitioner, was required to be factored in by the Inquiry Officer, while drawing his conclusions with regard to the charge so framed against him. However, the Inquiry Officer ignored the same, which has the effect of rendering the conclusions so reached by him in the Inquiry Report to be vitiated. 8. Mr. Perme, learned counsel for the respondent/writ petitioner, has, accordingly, submitted that in fact, if the land, in question, is claimed by the appellants, herein; the same has to be so claimed by way of instituting an appropriate proceeding in terms of the provisions of law holding the field. The learned counsel has further submitted that the article of charge having not so alleged that the respondent/writ petitioner was directed to vacate the plot of land, in question, and he had not carried-out such instructions; the allegation of insubordination being committed by the respondent/writ petitioner, as raised by the learned counsel for the appellants, would not be sustainable in the matter. 9. Mr. Perme, learned counsel, has further submitted that even if it is held that the learned Single Judge had interfered with the order, dated 26.05.2022, only on the ground of a wrong quoting of a provision of law therein; the order, dated 26.05.2022, passed by the disciplinary authority, would not be sustainable, in-as-much as, no misconduct by the respondent/ writ petitioner in the matter is borne-out from the allegations so levelled against him vide the memorandum of charge, dated 17.11.2016. 10. We have heard the learned counsels appearing for the parties and also perused the Page No.# 8/14 materials available on record. 11. At the outset, it is to be noted as to what would mean a misconduct. The Hon'ble Supreme Court in the case of State of Punjab & ors. v. Ram Singh, Ex- Constable, reported in (1992) 4 SCC 54; in this connection, has held as follows: “5. Misconduct has been defined in Black's Law Dictionary, Sixth Edition at page 999 thus: "A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.' Misconduct in office has been defined as: "Any unlawful behavior by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act." P. Ramanatha Aiyar's Law Lexicon, Reprint Edition 1987 at page 821 defines 'misconduct' thus: "The term misconduct implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskillfulness are transgressions of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected." 6. Thus it could be seen that the word 'misconduct' though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour: unlawful behaviour, willful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears for-bidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the ser-vice causing serious effect in the maintenance of law and order.” Page No.# 9/14 12. A perusal of the order, dated 02.02.2023, passed by the learned Single Judge in WP(c)205(AP)2022, would go to reveal that the order, dated 26.05.2022, was so interfered only on the ground that, therein a non-existent provision of law was so quoted to hold that the respondent/writ petitioner, had committed a misconduct in the matter. It is a settled position of law that mere wrong quoting of a provision of law, would not render an order illegal. Having kept the said position of law in mind; we proceed to consider the contentions raised by the learned counsels appearing for the parties in the present proceeding. 13. The respondent/writ petitioner, as noticed hereinabove, was initially vide the memorandum of charge, dated 17.08.2015, charged of having claimed and sold the standing trees on the plot of land located between the RP Gate and NH52, to the Highway Constructing Agency, which was construed to be a misconduct. However, the charge of having sold the standing trees not having found to be established against the respondent/writ petitioner; the said proceeding was dropped and a fresh Disciplinary Proceeding on the charge of claiming and occupying a government land, was directed to be so instituted. Accordingly, the memorandum of charge, dated 17.11.2016, came to be issued by the disciplinary authority to the respondent/writ petitioner, and therein, the following article of charge, was framed: “ARTICLE -I PIS No. 8820348 L/Nk. Tai Tache of 1st AAPBn, BHQ Chimpu claiming a plot of land located in between R.P. Gate and NII 52 which is under the possession of 1stAAPBn since 1989 as per described map and Govt, allotment No. CP/LA-177/88 dated, 03/02/1989 is amounts to gross misconduct / indiscipline on the part of PIS No. 8820348 L/NK. Tai Tache being a member of disciplined force. Thus, the charge.” 14. In the statement of imputation as annexed to the Annexure 2 to the said memorandum of charge, dated 17.11.2016, in support of the article of charge so framed against the respondent/writ petitioner; the following was recorded: “ARTICLE -II PIS No. 8820348 L/Nk. Tai Tache of 1st AAPBn, BHQ Chimpu claiming and illegally trying to grab a plot of land located in between R.P. Gate and NH 52 which is under the possession of 1st AAPBn since 1989 as per described map and Govt. allotment No. CP/LA- 177/88 dated, 03/02/1989 is amounts to gross misconduct / indiscipline on the part of PIS Page No.# 10/14 No. 8820348 L/NK. Tai Tache being a member of disciplined force. Hence, he is liable to be proceeded departmentally.” 15. The materials on record reveals that an inquiry was directed into the matter by the disciplinary authority and the Inquiry Officer, on completion of the inquiry, submitted his report. It is found that 3(three) prosecution witnesses were examined in the inquiry against the respondent/writ petitioner. From the depositions of the prosecution witnesses so deposing in the matter from the Inquiry Report; it is seen that the prosecution witnesses No. 1 & 2 had deposed that they had verified the fact regarding the claim made by the respondent/writ petitioner in respect of his occupation over the plot of land located between the RP Gate and National Highway, in question; of he, having been occupying the said plot of land since 1994, and on such verification; the said prosecution witnesses had deposed that they found that the land, in question, was under the possession of the 1st Arunachal Pradesh Police Battalion, BHQ, Chimpu, since 1989. However, during their cross-examination; the said two prosecution witnesses had stated that the plot of land occupied by the respondent/writ petitioner was the land left behind by the constructing agency of the National Highway. The prosecution witness No. 3 who was the Inquiry Officer, in the earlier inquiry conducted against the respondent/writ petitioner; had deposed that in the earlier inquiry, the respondent/writ petitioner had claimed of having occupied the land, in question, and utilizing the same as a Kitchen Garden since 1994. However, the charge of selling the trees was not proved. 16. A perusal of the Inquiry Report and the statements of the prosecution witnesses so recorded therein, would bring to the forefront that there was no material brought on record to demonstrate that the respondent/writ petitioner was at any point of time, required by his superiors to vacate the plot of land, in question, which was stated to have been illegally occupied by him. Accordingly, the fact that there was no direction to the respondent/writ petitioner for vacation of the land, in question, there would arise no occasion of he committing any insubordination by not complying with such direction. Insubordination by an employee of valid directions passed by his superiors would amount to commission of a misconduct. However, in respect of the allegations levelled against the respondent/writ petitioner involved in the present proceeding, no such insubordination is Page No.# 11/14 found to have been alleged against the respondent/writ petitioner. 17. Staying with the Inquiry Report, it is seen that therein, the Inquiry Officer had recorded the deposition made by the respondent/writ petitioner and on perusal of the same, it is revealed that the respondent/writ petitioner had deposed as to how he had come into possession of the plot of land, in question. The said statement of the respondent/writ petitioner, however, was not considered by the Inquiry Officer in his report. 18. The disciplinary authority, thereafter, basing on the findings recorded by the Inquiry Officer, vide order, dated 27.06.2017, proceeded to impose a penalty upon the respondent/writ petitioner of withholding of two increments with cumulative effect. The Inquiry Officer considered the depositions made by the respondent/writ petitioner to the extent that he was in possession of the land, in question, since 1994, and rejected the same by holding that the same does not hold ground. 19. As noticed hereinabove, the appeal so preferred by the respondent/writ petitioner against the order, dated 27.06.2017, having been rejected, he had preferred a representation before the revisioning authority. The revisioning authority, vide order, dated 14.02.2019, on considering the matter, was pleased to reduce the penalty so imposed upon the respondent/writ petitioner by the disciplinary authority in the matter. Accordingly, the revisioning authority reduced the penalty upon the respondent/writ petitioner to that of withholding of one increment with cumulative effect. The respondent/writ petitioner being aggrieved by the order passed by the revisioning authority, assailed the same by way of instituting the writ petition being WP(c)100(AP)2019. The learned Single Judge, vide order, dated 06.04.2022, interfered with the order, dated 17.11.2016, passed by the disciplinary authority and the order, dated 14.02.2019, passed by the revisioning authority, and remanded back the matter to the disciplinary authority to consider afresh as to whether the act of unauthorizedly occupying a plot of government land, in question, also amounted to a misconduct and indiscipline in service law. Basing on the said conclusion required to be arrived at by the disciplinary authority, it was directed that a reasoned order be passed. Page No.# 12/14 20. It is required to be noticed that the writ Court had vide order, dated 06.04.2022, granted liberty to the appellants, herein, to proceed against the respondent/writ petitioner with regard to the illegal occupation of the plot of land, in question. Pursuant to the said directions passed by the learned Single Judge vide order, dated 06.04.2022, in WP(c)100(AP)2019; the disciplinary authority re-considered the matter and vide order, dated 26.05.2022, held that the unauthorized occupation of a plot of government land by the respondent/writ petitioner, amounted to a misconduct under the provisions of Section 6 Rule 2(11) of the Central Civil Services(Conduct) Rules, 1964. The conclusions so drawn by the disciplinary authority in the order, dated 26.05.2022, being relevant, is extracted hereinbelow: “Therefore, in compliance with the aforesaid court order following orders 1. The act of unauthorizedly occupying a plot of Government land by LNk Taí Tache of 1st AAPBn, which is under the possession of the Commandant, 1st AAPBN since 1989 as per Govt. allotment order no CP/LA-177/88 dated 03/02/1989 amounts to misconduct under sec 6 Rule 2 (11) of CCS (Conduct) Rules. 2. Therefore, on the basis of the notice served vide no. BHQ/BN-I/QM-16/CRL/2002 dated 1st July 2015 to refrain from any illegal encroachment of Govt. Land, the Enquiry report submitted by the Enquiry Officer for insubordination and disobedience of the notice served for illegally occupying Govt. land and above facts, the undersigned in exercise of power conferred in sub rule-2(d) of rules-3 of the APP (D&A) rule 1999, read with 2005, the penalty of withholding of 1(one) increment with cumulative effect dated 14/2/2019 stands.” 21. As already held hereinabove, mere quoting of a wrong provision of law would not have the effect of invalidating the order, dated 26.05.2022. Accordingly, what is required to be examined, is the conclusion of the disciplinary authority that the act of unauthorizedly occupying a plot of government land by the respondent/writ petitioner, herein, amounted to a misconduct. 22. As noticed hereinabove; the charge so levelled against the respondent/writ petitioner only alleges claiming of a plot of land by him, which was said to be under the possession of the 1st Arunachal Pradesh Police Battalion, BHQ, Chimpu, since 1989. The above being the charge framed against the respondent/writ petitioner and there being no allegation levelled against the respondent/writ petitioner vide the memorandum of charge, dated Page No.# 13/14 17.12.2016, that he had violated the directions issued by the Battalion authorities to vacate the said plot of land, purportedly belonging to the Battalion and illegally occupied by him, the allegation of insubordination being committed by the respondent/writ petitioner, herein, does not arise. 23. Merely, on account of occupation of a plot of land which again is disputed by the rival contentions brought on record by the parties; the respondent/writ petitioner could not have been proceeded with institution of Disciplinary Proceedings. Accordingly, no misconduct on this count, is borne-out against the respondent/writ petitioner in the matter. In the event, the plot of land, in question, was found to have been illegally occupied by the respondent/writ petitioner, it was open to the Battalion authorities to institute appropriate proceedings for his eviction therefrom. It is to be noted that liberty in this connection was also granted by the writ Court in the earlier round of litigation vide order, dated 06.04.2022, in WP(c)100(AP)2019. 24. As noticed hereinabove, the allegations so levelled against the respondent/writ petitioner, in the present proceeding; in our considered view, would not bring the same within the purview of the term “misconduct”. The respondent/writ petitioner may be in illegal occupation of the plot of land, in question, however, it not being alleged against him that such illegal occupation, on being required to be vacated by his superior authorities, he had not complied with the said directions, he cannot be held to have committed an act of insubordination. In view of the above, the allegations levelled against the respondent/writ petitioner in the memorandum of charge, dated 17.11.2016, in our considered view, would not come within the purview of the term “misconduct”. 25. In that view of the matter, the said Show Cause Notice along with the orders passed thereon including the Inquiry Report, stands set aside. Consequently, the order, dated 26.05.2022, would also stand set aside. Page No.# 14/14 Accordingly, for the conclusions drawn hereinabove; the directions as passed by the learned Single Judge vide the order, dated 02.02.2023, in WP(c)205(AP)2022, would not call for any interference. 26. In view of the above discussions, we are of the considered view that this intra-Court appeal, for the conclusions drawn hereinabove; is held to be bereft of any merit and accordingly, the same stands dismissed. However, there shall be no order as to costs. JUDGE JUDGE Comparing Assistant