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2001 DIGILAW 137 (GAU)

Bidhan Chandra Dey v. State of Tripura and Ors.

2001-05-18

B.B.DEB

body2001
In the present writ petition, the petitioner seeks for issuing an appropriate writ quashing/setting aside the impugned order of suspension dated 22.2.1991 and also the order of dismissal dated 21.9.1994 and also seek for issuing a writ of Mandamus directing the respondents to reinstate the petitioner in service with all retrospective service benefits. 2. The petitioner's case, in short, is as follows : While the petitioner had been in service as a Rifleman being posted under B Company of Tripura State Rifles, he was implicated in a murder case and as such the petitioner was kept under suspension vide order bearing No.TSR/85010746/BCD/Pers/91/5871-76 dated 25.2.1991 (Annexure A) wef 22.2.1991 on the ground of pendency of the criminal case viz Nutanbazar PS Case No. 6 (2)/91 under section 302 IPC read with section 27 of the Arms Act. The petitioner was charge sheeted in the aforesaid criminal case and faced trial and unfortunately the petitioner was convicted under section 302 IPC by the learned Sessions Judge, South Tripura, Udaipur and he was sentenced to suffer RI for life vide judgment dated 8.7.1994. Few days after the conviction, the appointing authority, respondent No. 3 issued a notice upon the petitioner bearing No.TSR/Pers/85010746/BCD/94/8071 dated 20.8.1994 asking the petitioner to show cause as to why on conviction of the petitioner, he should not be dismissed from service as a measure of penalty. The petitioner received the same and while he had been in the Central Jail, Agartala he furnished the show cause reply informing the authority that he already preferred appeal, but unfortunately the Commandant, appointing authority vide letter No. TSR/8501746/BCD/91/8596-8603 dated 21.9.1994 dismissed the petitioner from service. The petitioner prosecuted the appeal vigorously and he was, of late, acquitted in appeal by the Hon'ble High Court vide judgment dated 12.3.1996 from the charge of murder. On 1.7.1996 the petitioner made a representation to the appointing authority demanding reinstatement in service with all service benefits. On receipt of the said representation the Commandant asked the petitioner to submit the legible copy of the judgment of the High Court and the petitioner complied the same by registered post. On 1.7.1996 the petitioner made a representation to the appointing authority demanding reinstatement in service with all service benefits. On receipt of the said representation the Commandant asked the petitioner to submit the legible copy of the judgment of the High Court and the petitioner complied the same by registered post. Since the Commandant did not respond, the petitioner made another representation to the Chief Secretary on 23.9.1996 demanding reinstatement in a service and the Chief Secretary vide his letter bearing No. F.2 (l)-CS/Court/96 dated 1.10.1996 informed the petitioner that his representation had been transmitted to the competent authority and the Commandant, 1st Bn, TSR and Director General of Police would do the needful, but since the petitioner received no response either from the Commandant or from the Director General Police, being compelled, filed this writ petition seeking the reliefs as already mentioned above. 3. All the respondents including the Director General of Police and Commandant contested the petition by filing joint counter-affidavit. The counter affidavit contains that since the petitioner convicted by a competent criminal Court under section 302 IPC (culpable homicide amounting to murder) and also under section 27 of the Arms Act, the petitioner was rightly dealt with and in view of Rule 19 of the CCS (CCA) Rules, 1965 no formal inquiry was called for and the petitioner was dismissed from service following his conviction in the criminal case. 4. The fact of conviction sustained by the petitioner, the fact of preferring appeal by the petitioner before the High Court against his conviction, the fact that the petitioner was acquitted by the High Court and the fact that the petitioner made representation to the Commandant seeking reinstatement remained admitted in the counter affidavit. The fact that the petitioner made representation to the Chief Secretary and in turn the Chief Secretary informed the petitioner that the matter would be taken care of by the Commandant and Director General of Police remained not answered. 5. I have heard Mr. B. Das, learned senior counsel for the petitioner Mr. R. Dasgupta, learned counsel for the respondents. 6. 5. I have heard Mr. B. Das, learned senior counsel for the petitioner Mr. R. Dasgupta, learned counsel for the respondents. 6. In this case, it remains admitted proved by record that the petitioner was convicted by the learned Sessions Judge, South Tripura, Udaipur on 8,7.1994 and as a consequence the petitioner was dismissed from service wef 20.9.1994 vide impugned order dated 21.9.1994 in exercise of power under Rule 19 of the CCS and CCA) Rules, 1965 read with Rule 42 of the Tripura TSR (Discipline, Control) Service Conditions etc Rules, 1965 and section 12 (j) of TSR Act, 1983. From the copy of the judgment of the Hon'ble High Court dated 12.3.1996 (Annexure R2) in Criminal Appeal No. 18 of 1994, it is revealed that the petitioner was acquitted from the criminal case and was set at liberty. The fact that on acquittal, the petitioner submitted representation to the Commandant seeking reinstatement is also admitted. From the letter dated 1.10.1996 issued by the Chief Secretary, it appears that the petitioner's representation demanding reinstatement was referred to the Commandant/ Director General of Police for doing the needful, but nothing happened. 7. The petitioner was dismissed from service as a consequence of his conviction in a criminal case under section 302 IPC and also under section 27 of the Arms Act and not by any separate departmental proceeding, not for any other misconduct and that was done pursuant to the provision of Rule 19 of the CCS (CCA) Rules, 1965 and as such the order of dismissal of the petitioner from service is not an independent action on any separate misconduct, but as a follow up consequence on his conviction in a criminal trial. The petitioner's dismissal from service and its origin/source in his conviction in the criminal case, but admittedly the said a conviction of the petitioner in criminal case stood reversed/set aside in appeal by the High Court and as such according to the legal friction the conviction imposed upon the petitioner had been evaporated and became non est as soon as the petitioner got acquittal from the criminal case by the High Court and thus it can be held that the source/foundation or origin upon which the order of dismissal had its own standing collapsed and now the order of dismissal cannot stand in vacuum. 8. 8. When an employee is dismissed from service consequent upon his conviction in a criminal case, he is entitled to be reinstated in service on his acquittal from the said criminal charge in criminal appeal, and the authority has no right to deny the reinstatement. In case the authority/department contemplates to take any further action within the permissibility of law, it could only be done after reinstatement, but unfortunately in the present case, despite the authorities c have been apprised of the fact of acquittal of the petitioner supported by documentary evidence, the authorities particularly the Commandant sat idle nor even attended the representation filed by the petitioner. 9. From the letter of the Chief Secretary dated 1.10.1996, it reveals that he transmitted the representation of the petitioner to the Commandant and the Director General of Police for taking appropriate action, but that was not done and as such the Commandant, 1st Battalion TSR (incumbent holding the post at the relevant tune) and the Director General of Police (incumbent holding the post at the relevant time) are personally liable for the delay caused in passing the appropriate order of reinstatement and as such the financial burden should be taken by them and in any event the financial burden from the date of receipt of the letter of the Chief Secretary dated 1.10.1996 by the aforesaid two officers cannot be debited from public exchequer. 10. In the result, the impugned order of dismissal issued by the Commandant, 1st Bn TSR bearing No. TSR/85010746/BCD/91/8596-8603 dated 21.9.1994 (Annexure C to the writ petition) is hereby set aside and the respondents, particularly the respondent No. 3, the Commandant 1st Bn TSR is directed to/reinstate the petitioner in service by issuing a formal order without least delay. The petitioner's past service from the date of dismissal be treated as on duty for continuity of service. The petitioner's past service from the date of dismissal be treated as on duty for continuity of service. So far the back wages is concerned, the Commandant, respondent No. 3 is to take decision after allowing opportunity to the petitioner for the period between 20.9.94 (dismissal date) and the date when the Commandant received the letter of the Chief Secretary dated 1.10.1996 and for & the period thereafter, the petitioner is entitled to be paid his pay and allowances as if he had been in duty and the arrear payment is to be made as early as possible, but that amount is to be recovered from the Commandant and Director General of Police (incumbents holding posts at the relevant time) proportionately without causing any adverse affect to public coffer. 11. The writ petition succeeds as indicated above with a cost to be quantified at Rs. 5,000.