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2002 DIGILAW 94 (GAU)

State of Tripura v. Kartik Chandra Debabarma

2002-02-26

A.K.PATNAIK, H.K.KUMAR SINGH

body2002
A.K. PATNAIK, J. — Heard Mr. U.B. Saha, learned Sr. Government Advocate assisted by Mr. T.D. Majumdar for the appellant-State. Also heard Dr. J.C. Das, learned counsel for the respondent. 2. The respondent was working as Panchayat Secretary, Jirania Block under the Government of Tripura. By order dated 3.11.98, the Director of Panchayat, Government of Tripura informed the respondent that he was proposing to take action against him under Rule 16 of CCS (CCA) Rules, 1965. Along with the said order, the statement of imputation of misconduct/misbehaviour alleged against the respondent was enclosed and the respondent was asked to submit representation against the proposed action. The respondent submitted the representation on 18.11.98, but the explanation in the said representation was not accepted and by order dated 23.6.99, the Director of Panchayat passed an order imposing minor penalty against the respondent/The respondent filed an appeal against the aforesaid order of punishment before the Commissioner-cum-Secretary to the Government of Tripura, Department of Panchayat, the appellate authority. But, by order dated 19.9.00 the said appeal was rejected by the Commissioner-cum-Secretary, Department of Panchayat. Aggrieved, the respondent filed the Writ petition [W.P.(C) No. 506 of 2000]. In reply to the averments in the writ petition, Mr. Bidur Chandra Debbarma, Under Secretary to the Government of Tripura, Department of Panchayat filed an affidavit-in-opposition. By the impugned judgment and order dated 12.4.01, the learned Single Judge held that the Director of Panchayat who was the disciplinary authority and imposed the punishment and the Commissioner-cum-Secretary who decided the appeal had not come forward to swear any affidavit and the affidavit had been sworn by the Under Secretary, Panchayat Department. By the impugned judgment, the learned Single Judge also held that in absence of specific authorisation in favour of the Under Secretary, Panchayat Department, he was not competent to swear the affidavit on behalf of the respondents. 3. Mr. U.B. Saha, learned Sr. Government Advocate for the appellant-State submitted that the learned Single Judge thereafter decided the matter on merit without taking into consideration the averments and contentions raised by the State respondents in the said affidavit-in-opposition filed by the Under Secretary to the Government of Tripura, Department of Panchayat. Mr. Saha referred to the provisions of Rules of Executive Business to show that the Under Secretary of a Department is competent to sign any instrument on behalf of the Government. Mr. Saha referred to the provisions of Rules of Executive Business to show that the Under Secretary of a Department is competent to sign any instrument on behalf of the Government. He further argued that under the provisions of Civil Procedure Code (CPC), the Under Secretary to the Government of Tripura, Department of Panchayat & Rural development was authorised to swear the affidavit on behalf of the respondent-Government. He also referred to the provisions of Gauhati High Court Rules relating to swearing of affidavit. Dr. J.C. Das, learned counsel for the respondent, on the other hand, vehemently contended that the learned Single Judge rightly rejected the affidavit-in-opposition sworn by the Under Secretary to the Government of Tripura, Department of Panchayat & Rural Development on behalf of the respondents. 4. On perusal of the cause title of the writ petition [W.P. (C) No. 506 of 2000], we find that besides the Commissioner-cum-Secretary, Department of Panchayat, the Director of Panchayat and the Block Development Officer, R.D. Block, Jirania, the State of Tripura was also impleaded as respondent. By an order dated 14.3.72, the Governor of Tripura in exercise of power conferred by clauses (2) and (3) of the article 166 of the Constitution of India has made the Rules of Executive Business of the Government of the State of Tripura, 1972. Rule 12 of the said Rules of Executive Business of the Government of the State of Tripura reads as follows : "Every order or instruments of the Government of the State shall be signed either by a Secretary, an Additional Secretary, a Joint Secretary, a Deputy Secretary, an Under Secretary or an Assistant Secretary or such other officer as may be specifically empowered in that behalf and such signature shall be deemed to be the proper authentication of such order or instrument." It will be clear from the aforesaid rule 12 that an order or instruments of the Government of the State may be signed by an Under Secretary. The expression 'instrument' has been defined in Black's Law Dictionary (Sixth Edition, at page 810) to mean "anything reduced to writing, a document of a formal or solemn character, a writing given as a means of affording evidence". Hence, an affidavit-in-opposition which is a document in writing and is also given in the Court as evidence is an instrument. The expression 'instrument' has been defined in Black's Law Dictionary (Sixth Edition, at page 810) to mean "anything reduced to writing, a document of a formal or solemn character, a writing given as a means of affording evidence". Hence, an affidavit-in-opposition which is a document in writing and is also given in the Court as evidence is an instrument. The Under Secretary to the Government of Tripura of the appropriate department is, thus, authorised to sign the affidavit-in-opposition on behalf of the State Government of Tripura. 5. Rule 27 of Chapter-IV of the Gauhati High Court Rules which is titled as "General Rules for Application and Affidavits" provides the manner in which an affidavit is to be prepared and filed in the High Court. The said Rule 27 is extracted herein below: "27. When the particular fact is not within the declarant's own knowledge, but is stated from information obtained from others, the declarant shall use the expression "I am informed", and if such be the case, should add "and verily believe it to be true", and he must also state the source from which he received such information. When the statement rests on facts disclosed in documents or copies of documents procured from any Court of Justice or other source, the deponent shall state what is the source from which they were procured, and his information or belief as to the truth of the facts disclosed in such documents. Copies of documents (other than those on the record of the case) to which it is intended that reference should be made at the time of hearing shall be annexed to the affidavit and shall be marked as an exhibit and shall bear the certificate of the Commissioner before whom the affidavit is made." 6. It will be clear from the aforesaid Rule 27 of Chapter-IV of the Gauhati High Court Rules that a person who has knowledge of a particular fact can swear the affidavit based on such personal knowledge and where a person has no such personal knowledge, but he has some information with regard to the some facts in question, he may swear the affidavit, if he believes such information to be true and indicate the source as to how he received the information. In the present case, it is quite possible that the Under Secretary to the Government of Tripura, Department of Panchayat & Rural Development who filed the affidavit-in-opposition may not have personal knowledge about the facts of the case, particularly when the order of punishment was passed by the Director of Panchayat and the order in appeal was passed by the Commissioner-cum-Secretary to the Government of Tripura, Department of Panchayat. But, he could always swear an affidavit on the basis of information received or derived from such orders of the disciplinary authority and the appellate authority as well as from records. As a matter of fact, it appears from paragraph 24 of the affidavit-in-opposition filed by the said Under Secretary to the Government of Tripura, Department of Panchayat & Rural Development that he has indicated as to which paragraphs in the said affidavit-in-opposition are based on his knowledge and which paragraphs are based on his information derived from official records which he believes to be true. 7. In our considered opinion, the learned Single Judge should not have rejected the said affidavit-in-opposition sworn by the Under Secretary to the Government of Tripura, Department of Panchayat & Rural Development and should have decided the writ petition on merits taking into consideration the averments and the contentions raised in the said affidavit-in-opposition filed by the Under Secretary to the Government of Tripura on behalf of the respondents. 8. It further appears from the averments in the writ petition that there is no allegation of personal mala fide against any of the respondents. In case, such allegations have been made against any one in person, then, obviously such person against whom the allegation of personal malafide is made has to be impleaded as a respondent before any orders are passed on the basis of such allegations of personal mala fide made against him and in such case, such person against whom personal mala fide is alleged has to file his own personal affidavit in reply to the allegations of personal mala fide. But, in the present case, no such allegation of personal mala fide is made against any of the parties in person and, therefore, the respondents who are impleaded as official respondents and not in their personal capacity are not required to file their own affidavit. 9. But, in the present case, no such allegation of personal mala fide is made against any of the parties in person and, therefore, the respondents who are impleaded as official respondents and not in their personal capacity are not required to file their own affidavit. 9. For the aforesaid reasons, we set aside the impugned judgment and order of the learned Single Judge. The writ petition will now be decided afresh after hearing the learned counsel for the parties on merits and after taking into consideration the pleadings in the writ petition as well as the affidavit-in-opposition. 10. The writ appeal is accordingly disposed of. The W.P.(C) No. 506 of 2000 be listed before the Single Bench.