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2002 DIGILAW 203 (GAU)

Dinesh Ch. Roy v. State of Tripura and Ors.

2002-05-14

B.B.DEB

body2002
B.B. Deb, J.- Heard Mr. B. Das, learned senior counsel being assisted by Mr. S. Chakraborty, learned counsel for the petitioner and also Mr. U.B. Saha, learned senior Government Advocate, assisted by Mr. B.R. Das Roy, learned counsel for the respondents. 2. The petitioner while had been serving as Driver attached to the Office of the District Public Relations Officer, South Tripura, under the Directorate of Information, Cultural Affairs and Tourism, Government of Tripura was kept under suspension in contemplation of the departmental proceeding vide order bearing No. E.5(72)-ICAT/82/Estt., dated 8.3.1982 (Annexure-A). That suspension order was followed by formulation/drawing up a departmental proceeding vide Memorandum of even number dated 26.11.1982 (Annexure-B). The authority proposed to proceed against the petitioner with a disciplinary proceeding under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 as has been adopted in the State of Tripura. 3. The charge levelled against the delinquent petitioner was that during the period from 18.2.1981 till the date of initiation of proceeding failed to maintain absolute integrity and devotion to duty in that he assaulted Shri S. Chatterjee, D.P.R.O., South Tripura physically on 20.2.1982 in the office of the D.P.R.O., South Tripura during office hours. 4. An Inquiring Officer was appointed, who after investigation/inquiry found the petitioner guilty of his charge. Accepting the said inquiry report the authority vide Memorandum bearing No. F.1(6-1)Pub/ 62/Estt, dated 27.12.1984 issued second show cause notice upon the petitioner proposing "the penalty of removal from service which shall ordinarily be a disqualification for future employment under the Government" and accordingly, the delinquent petitioner was asked to make his representation why such penalty should not be imposed. The delinquent petitioner made his representation on 10.1.1985 denying the charge and raising some legal questions and challenge. However, on consideration of the representation and the gravity of the proved charge, the disciplinary authority vide order bearing No. F.1(6-1)Pub/62/Estt/8872-82, dated 25.4.1985 imposed a major penalty upon the petitioner awarding him "the compulsory retired from service". Being aggrieved, the petitioner preferred a departmental appeal and that departmental appeal was also rejected by the Secretary to the Government of Tripura, the appellate authority, vide Memorandum of even number dated 12.7.1985. Being aggrieved, the petitioner preferred a departmental appeal and that departmental appeal was also rejected by the Secretary to the Government of Tripura, the appellate authority, vide Memorandum of even number dated 12.7.1985. The petitioner could not accept the departmental verdict, as a result he filed a Civil Suit bearing No. T.S. 255/1985 before the learned Munshiff, West Tripura, Agartala and that suit was dismissed by the learned Trial Court on 10.9.1987. Against that order of dismissal passed by the learned Munshiff, the petitioner carried an appeal bearing No. Title Appeal 56 of 1987 before the learned Additional District Judge, West Tripura, Agartala. The learned Additional District Judge vide his judgment dated 29.2.1988 set aside the order of dismissal and allowed the appeal in part. For convenience sake, the paragraph 16 of the judgment dated 29.2.1988 is reproduced below 16. In view of the aforesaid circumstances both the orders Exts-5 & 7 are thereby declared illegal and set aside. It remains undisputed that Mr. M. L. Roy, TCS Grade-I held enquiry as enquiring authority against the plaintiff-Appellant and there is no allegation of bias against him. The plaintiff did not challenge the enquiry proceeding conducted by Mr. M.L. Roy and thereby, I send back the case to the Secretary of the Department to appoint a disciplinary authority to consider the representation of the delinquent officer submitted to the disciplinary authority on 10.1.1985 in view of the observation made above. Under the facts and circumstances of the case the appeal is partly allowed with costs of Rs. 5007- (Rupees five hundred) to be paid by the Defendants to the plaintiff-appellant. Judgment and decree of the trial court is set aside." 5. From the aforequoted judgment, the following factual aspects have been emerged: (1) The impugned penalty of compulsory retirement imposed by the disciplinary authority vide order dated 25.4.1985 was set aside. (2) The appellate order confirming the order of imposition of punishment was also set aside. (3) The Secretary of the Department concerned was asked to appoint a disciplinary authority to consider the representation filed by the delinquent petitioner in response to the second show cause notice containing the proposed punishment of removal from service. There is nothing on record whether the Secretary appointed any disciplinary authority for the purpose. (3) The Secretary of the Department concerned was asked to appoint a disciplinary authority to consider the representation filed by the delinquent petitioner in response to the second show cause notice containing the proposed punishment of removal from service. There is nothing on record whether the Secretary appointed any disciplinary authority for the purpose. However, the Director of Information, Cultural Affairs & Tourism, Government of Tripura passed an order and communicated to the petitioner vide No. F.5(8)-ICAT/82/Estt, dated 6.6.1989. The operative portion of the said order is reproduced below :- As circumstances above, the undersigned does not find any mitigating circumstances in his representation dated 10.1.85 to consider the case of the delinquent officer (Sri Dinesh Ch. Roy) otherwise and to pass orders in his favour. A copy of this be sent to Sri Dinesh Ch. Roy, represented." 6. In the meantime, the petitioner moved a writ petition bearing No. Civil Rule No. 126/1989 seeking a direction to the respondents to comply or abide by the decree passed by the learned Additional District Judge, West Tripura, Agartala in Title Appeal No. 56/1987. This writ petition was disposed of by the Hon'ble Division Bench of this court vide order dated 2.5.1989. The Hon'ble Division Bench without making any direction only reminded the course to be adopted by the petitioner under the provisions of Code of Civil Procedure. Thereafter the petitioner filed an execution petition before the learned Trial Court (Munsiff, Sadar, Agartala) seeking recovery of Rs. 1,25,935/-. The State respondents filed objection under Section 47 of the CPC and that was numbered as Misc. 123/1992. The executing Court vide order dated 18.9.93 held that the decree is "inexecutable". Thereafter this writ petition has been filed. 7. The petitioner's right, if any, was accrued by the judgment dated 29.2.1985 passed by the learned Additional District Judge, West Tripura, Agartala in Title Appeal No. 56/1987, arising out of T.S. 255/1985. So, the remedy, if any, to be obtained by the petitioner is under the provisions of Code of Civil Procedure and not by filing a writ petition. The respondents complied with the order of the learned Additional District Judge, West Tripura, Agartala by disposing the representation. It may be a wrong decision, it may be a decision not inconformity with the decree to the Civil Court but in. The respondents complied with the order of the learned Additional District Judge, West Tripura, Agartala by disposing the representation. It may be a wrong decision, it may be a decision not inconformity with the decree to the Civil Court but in. Tany event remedy lies in the Civil forum and as such this writ petition is not maintainable. Right accrued to any party pursuant to the judgment, decree and order of the Civil Court governed and controlled by the provisions of Code of Civil Procedure that cannot be exerted, enforced or implemented by filing a writ petition. 8. In that view of the matter, the writ petition is dismissed. No order as to costs. -----------------