Achinta Dutta v. State of Tripura — 1998 DIGILAW 140 (GAU)

A. K. Patnaik, J.- In this writ appeal, the appellant, has challenged the judgment and order dated 30.11.95 of the learned Single Judge passed in CR No. 166 of 1989. 2. The facts briefly are that the appellant while working as a Forester under the Govt. of Tripura received a letter dated 16.8.79 from the Conservator of Forest, Southern Circle, calling for his explanation with regard to misappropriation of Govt. property, gross irregularity and negligence in discharging official duties with dishonest motive. The appellant furnished his explanation dated 30.8.79 to the Conservator of Forest, Southern Circle, but the explanation was not accepted and by memo dated 5.6.80, the Chief Conservator of Forest, Tripura, initiated disciplinary proceedings against the appellant under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 which are applicable to Govt. servants in the State of Tripura. The charge against the appellant was that while functioning as Patrol Officer, Harinadhepa, he misappropriated Govt. property and failed to maintain absolute integrity and devotion to Govt. duty by sawing seized Karai timber without permission and payment of royalty for his personal gain to the detriment of Govt. interest. An inquiry was conducted into the said charge by the Inquiring Authority and in the said inquiry 17 witnesses were examined on behalf of the department and one witness was examined by the appellant. Several documents, were also exhibited by the parties. The Inquiring Authority submitted his report on 1.6.84 holding the appellant guilty of the charge. The Chief Conservator of Forest, Tripura in his order dated 12.11.84 agreed with the said finding of the Inquirying Authority and proposed a penalty of reduction of pay of the appellant to the lowest stage in the time scale of pay for a period of 2 years and called upon the appellant to submit his representation against the said proposed penalty. The appellant submitted his representation dated 8.5.85 against the proposed penalty, but by order dated 9.7.85, the Chief Conservator of Forest, Tripura, acting as the disciplinary authority confirmed the said penalty against the appellant. The appellant then preferred an appeal against the said order of penalty before the Chief Secretary to the Govt. of Tripura. The appellant submitted his representation dated 8.5.85 against the proposed penalty, but by order dated 9.7.85, the Chief Conservator of Forest, Tripura, acting as the disciplinary authority confirmed the said penalty against the appellant. The appellant then preferred an appeal against the said order of penalty before the Chief Secretary to the Govt. of Tripura. The Chief Secretary while holding that the charge against the appellant had been proved reduced the penalty to a period of one year reduction of pay of the appellant in the lowest stage in the time scale of pay by his order dated 11.12.86. Subsequently, by order dated 30.8.88, the Principal Chief Conservator of Forest directed that since the charge levelled against the appellant had ended in penalty, he will not get any other pay and allowance except what he has drawn as subsistence allowance and that the period of suspension of the appellant with effect from 5.9.79 to 25.11.88 will be counted towards superannuation and gratuity and for no other purpose. Thereafter, the Principal Chief Conservator of Forest passed an order dated 29.10.88 to the effect that the appellant will not be allowed to cross efficiency bar. Aggrieved, the appellant filed CR No. 166 of 1989 before the Agartala Bench of this Court with a prayer to quash the order of penalty passed by the Chief Conservator, the appellate order of the Chief Secretary, the order of the Principal Chief Conservator of Forest, directing that the appellant will not be allowed any pay and allowances other than subsistence allowance during the period of suspension and the order of the Principal Chief Conservator of Forest directing that the appellant will not be allowed to cross efficiency bar. By the impugned judgment and order dated 30.11.95 in the said CR No. 166 of 1989, the learned Single Judge quashed the order dated 29.10.88 of the Principal Chief Conservator of Forest directing that the appellant will not be allowed to cross the efficiency bar but did not interfere with the other orders passed by the disciplinary authority and the appellate authority. 3. At the hearing of this appeal, Mr. A.M. Lodh, learned counsel for the appellant, submitted that by a petition dated 27.6.81 filed before the Inquiring Authority, the appellant had required some documents in support of his defence, but the said documents were not called for by the Inquiring Authority. 3. At the hearing of this appeal, Mr. A.M. Lodh, learned counsel for the appellant, submitted that by a petition dated 27.6.81 filed before the Inquiring Authority, the appellant had required some documents in support of his defence, but the said documents were not called for by the Inquiring Authority. As a result, reasonable opportunity was not afforded to the appellant to defend himself against the charge during the enquiry. Mr. P. Devroy, learned counsel for the respondents, on the other hand, contended that all opportunities were given to the appellant to defend himself during the enquiry and this would be evident from the records produced before the Court. 4. In the case of Managing Director, ECIL vs. B. Karunakaran, AIR 1994 SC 1074 , the Supreme Court has held that the theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights and they are not incantations to be invoked norrites to be performed on all and sundry occasion, and where the delinquent employee makes a complaint that he has not been served with enquiry report before the order of penalty was passed, the Court will have to consider as to whether in fact prejudice has been caused to the employee or not on account of denial of report to him and where after furnishing of the report to the employee, the employee is able to show that a different consequence would have followed if the report had been furnished to him before the order of penalty was passed, the Court would quash the order of penalty but not otherwise. The same principle will have to be applied to the present case where the appellant has made a complaint that he was denied reasonable opportunity of defending himself against the charge, and the Court will have to find out as to what prejudice the appellant has in fact suffered due to the Inquiring Authority not calling for the documents required by the appellant for his defence and as to whether the said documents, if called for, would have made any difference to the findings in the inquiry or to the order of penalty. 5. 5. One of the documents required by the appellant for his defence in his petition dated 27.6.81 before the Inquiring Authority was the personal diary of Shri Lalit Mohan Sana, Beat Officer, Matinagar Beat, for the month of July/ August/79. In the Memo of Appeal filed in this case, the appellant has stated that if the said personal diary of Shri Lalit Mohan Saha would have been produced, it would have proved that Shri Lalit Mohan Saha, Beat Officer, Matinagar seized the Karai tree on-18.7.79 for which the appellant was charged in the proceedings and that seizure marking was also made by him and that some unknown persons fell the Karai tree. But we find that the very case of the department in the Articles of Charges as well as the statements of allegations in support of the charge is that Shri Lalit Mohan Saha, Beat Officer, Matinagar, had seized the illicitly fell Karai tree and had put Hammer Mark No.340 on the said seized Karai tree and informed the appellant to keep watch on the said seized logs. The Inquiring Authority has also recorded a finding in his report that the said tree was seized by the Beat Officer, Matinagar and Hammer Mark No.340 was out on the said tree by the said Beat Officer, Shri Lalit Mohan Saha and after the said seizure on 18.7.79, Shri Lalit Mohan Saha told the appellant to keep watch on the said seized tree and it was only on 8.8.79 that the said seized tree was sawn by Shri Matilal Sarkar and was being taken by the labourers to the office of the appellant. There is, therefore, no dispute over the fact that the Karai tree has been seized in July, 1979, by the Beat Officer, Shri Lalit Mohan Saha and it was only thereafter that it was sawn on 8.8.79 and the sawn timber was being transported. The personal diary of Shri Lalit Mohan Saha, Beat Officer, Matinagar, for the month of July/ August/79, required by the appellant as per his petition dated 27.6.81 before the Inquiring Authority, therefore, would not have made any difference to the findings in the inquiry report and to the order of penalty and it is not possible to hold that any substantial prejudice was suffered by the appellant as such by the said document not being called for at the time of inquiry. 6. 6. The next document that was required by the appellant in support of his defence in his petition dated 27.6.81 which was not called for is the offence report No.41 dated 1.1,79 of the Patrol Officer of Harinadhepa under Sonarnura Range. It is stated in the said petition dated 27.6.81 of the petitioner that the said offence report relates to Shri Jugal Mursum who was a witness in the case in support of the prosecution. In the Memo of Appeal filed in this case, it has been contended by the appellant that if the said offence report would have been called for, the appellant could have shown that the appellant caught red handed three persons including Jugal Mursum while felling a Karai tree. The said offence report therefore was required by the appellant to impeach the credit of the said witness Jugal Musrum. It appears from the records of the disciplinary proceedings that Jugal Mursum was examined as PW 10 on behalf of the department and he stated that Shri Matilal Sarkar (PW 9) had engaged him along with four others for sawing the Karai tree which was cut earlier and accordingly he sawed the tree. He has further stated that PW 9 Shri Matilal Sarkar told him that the tree was sawn for the Patrol Forester. The offence report No.41 dated 1.1.79 required by the appellant for his defence would have utmost shown that the said PW 10 Jugal Mursum had falsely implicated the appellant by stating that the sawn timber were meant for the appellant. But on a reading of the inquiry report, we find that the finding that the tree was sawn and the timber were being transported to the office of the appellant is based not only on the said evidence of Jugal Mursum (PW10) but also on the evidence of Shri Matilal Sarkar (PW 9) and the evidence of labourers who were engaged in sawing the tree and in transportation of the timber to the office of the appellant, namely Shri Nichamanik Mursum (PW 11), Shri Chinta Haran Debnath (PW 12), Shri Shantulal Sarkar (PW 13), Shri Gopal Chandra Dey (PW 14) and Shri Kishore Chandra Das (PW 15). Hence the aforesaid offence report No.41 dated 1.1.79 required by the appellant in his petition dated 27.6.81 even if called for in the inquiry would have made little difference in the finding of guilt against the appellant and to the order of penalty. 7. Yet another document which was required by the appellant for his defence in his petition dated 27.6.81 before the Inquiring Authority was the offence report register of Beat Officer of Matinagar for the period JuIy/August/79. But from the records of the inquiry produced before the Court, it appears that the said offence report register was exhibited through Lalit Mohan Sana (PW 7), the Beat Officer, Matinagar as Ext D2. The appellant, therefore, could have during cross examination of the said PW 7 put any question to him or exhibited any entry of the said register which he thought was relevant for the purpose of the defence. It is, therefore, difficult for the Court to hold that the appellant was not afforded reasonable opportunity to defend himself against the charge by the non-production of the documents mentioned in his petition dated 27.6.81 before the Inquiring Authority. 8. It was next urged by Mr. Lodh, learned counsel for the appellant, that the documents and evidence before the Inquiring Authority would show that the appellant was not present in the station on 8.8.79, the date on which the tree was sawn and the timber were transported. He also submitted that PW 7, Shri Lalit Mohan Saha, Beat Officer, Matinagar, in his evidence before Inquiring Authority and in his offence report dated 8.8.79 exhibited in the said inquiry has not implicated the appellant in any manner in the sawing of the Karai tree seized under Hammer No.340 and transportation of the said sawn timber. According to Mr. Lodh, therefore, the finding of the Inquiring Authority and disciplinary authority as well as the appellate authority that the appellant was guilty .of the charge is perverse and is liable to be quashed by this Court under Article 226 of the Constitution. In reply to the said submission, Mr. According to Mr. Lodh, therefore, the finding of the Inquiring Authority and disciplinary authority as well as the appellate authority that the appellant was guilty .of the charge is perverse and is liable to be quashed by this Court under Article 226 of the Constitution. In reply to the said submission, Mr. Devroy, learned counsel for the respondents, contended that there were sufficient evidence on record to show that the appellant was guilty of the charge and that this Court while exercising its powers under Article 226 of the Constitution cannot interfere with the findings of guilt arrived at by the Inquiring Authority, disciplinary authority and the appellate authority so long as the said findings are based on some evidence. 9. On a reading of the Inquiry Report, the order of the disciplinary authority as well as the order of the appellate authority, we find that their conclusions that the appellant was guilty of the charge were based on the evidence of the PW 9 Shri Matilal Sarkar who has stated that the appellant had engaged him to saw the Karai tree and to transport the sawn timber to his office. The said statement of PW 9 before the Inquiring Authority has been corroborated by the labourers, who were engaged in sawing of the Karai tree and transportation of the timber to the office of the appellant, examined as. PWs 10, 11, 12, 13, 14 and 15 in the inquiry. Therefore, the conclusions of the Inquiring Authority, disciplinary authority and the appellate authority that the appellant was guilty of the charge was based on some evidence. In the case of State of Andhra Pradesh & others vs. S. Sree Ram Rao, AIR 1963 SC 1723 , the Supreme Court has held : "Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence x and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of its is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceedings for a writ under Article 226 of the Constitution." In the facts of the present case, since we have found that reasonable opportunity was afforded to the appellant to defend himself against the charge and that the findings of guilt recorded by the authorities against the appellant are based on evidence, we cannot in exercise of our power under Article 226 of the Constitution review or reappreciate the said evidence and disturb the said findings of guilt recorded by the authorities on the ground that the said evidence is not reliable or inadequate. 10. It was finally urged by Mr. Lodh that before the impugned order dated 30.8.88 was passed by the Principal, Chief Conservator of Forest directing that the appellant would not get any pay and allowances except what has been drawn by him as subsistence allowance, no show cause notice was issued to the appellant and the said order passed under FR 54B is liable to be quashed. FR 54B which is applicable to the Govt. servants in the State of Tripura is quoted herein below : "FR 54B. (1) When a Govt. servant who has been suspended is re-instated or would have been so re-instated but for his retirement on superannuation while under suspension, the authority competent to order re-instatement shall consider and make a specific order - (a) regarding the pay and allowances to be paid to the Govt. (1) When a Govt. servant who has been suspended is re-instated or would have been so re-instated but for his retirement on superannuation while under suspension, the authority competent to order re-instatement shall consider and make a specific order - (a) regarding the pay and allowances to be paid to the Govt. servant for the period of suspension ending with re-instatement or the date of his retirement on superannuation, as the case may be; (b) whether or not the said period shall be treated as a period spent on duty; (2) Notwithstanding anything contained in R.53 where a Govt. servant under suspension dies before the disciplinary or Court proceedings instituted against him are concluded, the period between the date of suspension and the date of death shall be treated as duty for all purposes and his family shall be paid the full pay and allowances for that period to which he would have been entitled had he not been suspended, subject to adjustment in respect of subsistence allowance already paid. (3) Where the authority competent to order re-instatement is of the opinion that the suspension was wholly unjustified, the Government servant shall, subject to the provisions of sub-rule (8), be paid the full pay and allowances which he would have been entitled, had he not been suspended : Provided that where such authority is of the opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reasons directly attributable to the Government servant, it may, after hearing the representation, if any, submitted by him, directs for reasons to be recorded in writing that the Government servant shall be paid for the period of such delay only such proportion of such pay and allowances as it may determine. (4) In a case falling under sub-rule (3), the period of suspension shall be treated as a period spent on duty for all purposes. (5) In cases other than those falling under sub-rules (2) and (3), the Govt. servant shall subject to the provisions of sub-rules (8) and (9) be paid such proportion of the full pay and allowances to which he would have been entitled had not been suspended, as the competent authority may determine, after giving notice to the Govt. (5) In cases other than those falling under sub-rules (2) and (3), the Govt. servant shall subject to the provisions of sub-rules (8) and (9) be paid such proportion of the full pay and allowances to which he would have been entitled had not been suspended, as the competent authority may determine, after giving notice to the Govt. servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period which in no case shall exceed sixty days from the date of the notice which has been served as may be specified in the notice. (6) Where suspension is revoked pending finalisation of the disciplinary or Court proceedings any order passed under sub-rule (1) before the conclusion of the proceedings against the Govt. servant shall be reviewed on its own motion after the conclusion of the proceedings by the authority mentioned in sub-rule (2) who shall make an order according to the provisions of sub-rules (3) or (5) as the case may be, (7) In a case falling under sub-rule (5), the period of suspension shall not be treated as period spent on duty, unless the competent authority specifically directs that it shall be treated for any specified purposes : Provided that is the Govt. servant so desires, such authority may order that the period of suspension shall be converted into leave of any kind due and admissible to the Govt. servant. Note 1. The order of the competent authority under the preceding proviso shall be absolute and no longer sanction shall be necessary for the grant of- (a) extra-ordinary leave in excess of three months in the case of temporary Government servant; and (b) leave of any kind in excess of five years in the case of permanent or quasi permanent Government servant. Note 2. In a case falling under sub-rules!5) and (7) of Fundamental Rule 54B, the competent authority may pay such proportion of such pay and allowances as admissible under FR 53 read with sub-rule (9) of FR 54B with prior concurrence of Finance Department. (8) The payment of allowance under sub-rule (3) or sub-rule (5) shall be subject to all other conditions under which such allowances are admissible. (8) The payment of allowance under sub-rule (3) or sub-rule (5) shall be subject to all other conditions under which such allowances are admissible. (9) The proportion of the full pay and allowances determined under the proviso to sub-rule (3) or under sub-rule (5) shall not be less than the subsistence allowance and other allowances admissible under R.53." Sub-rule (1) of FR 54B quoted above would show that when a Govt. servant who has been suspended is re-instated, the authority competent to re-instate shall consider and make a specific order regarding the pay and allowances to be paid to the Govt. servant for the period of suspension ending with re-instatement and sub-rule (5) of the aforesaid FR 54B states that he shall be paid such proportion of full pay and allowances to which he would have been entitled had he not been suspended and the competent authority may determine after giving notice to the Govt. servant of the quantum proposed and after considering representation, if any, submitted by him in that connection within such period which in no case shall exceed sixty days from the date of notice which shall be served as has been specified in the notice. Thus a show cause notice was required to be served on the Govt. servant before an order is passed by the competent authority determining the pay and allowances to be paid to him during the period of suspension. This interpretation of FR 54B has also been given by the Central Administrative Tribunal (Gauhati Bench) hi the case of PK Das vs. Conservator of Forest, Arunachal Pradesh, reported in 1989 Lab 1C 705. In the Memo of Appeal filed in this case it has been stated that no show cause notice was issued to the appellant before the impugned order was passed denying the pay and allowances to the appellant during the period of suspension other than the subsistence allowance. The impugned order dated 30.8.88 passed by the Principal Chief Conservator of Forest also does not indicate that any such show cause notice was issued to the appellant before the aforesaid impugned order was passed directing that the appellant will not get any other pay and allowances except what he had drawn as subsistence allowance during the period of suspension with effect from 5.9.79 to 25.11.80. Therefore, the impugned order dated 30.8.88 passed by the Principal Chief Conservator of Forest is liable to be quashed and he has now to pass a fresh order after issuing show cause notice to the appellant. 11. For the reasons stated above, the impugned order dated 30.8.88 of the Principal Chief Conservator of Forest (Annexure 10 to the writ petition in CR No. 166 of 1989) is quashed and the Principal Chief Conservator of Forest, Tripura is directed to serve a notice in accordance with sub-rule (5) of FR 54B to the appellant and thereafter pass fresh order determining the pay and allowances that will be paid to the appellant during the period of suspension ending with reinstatement. The appeal, is partly allowed. Considering, however, the facts and circumstances of the case, parties shall bear their own costs.