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2003 DIGILAW 138 (GAU)

Shyamal Kumar Das v. State of Tripura and Ors.

2003-03-27

RANJAN GOGOI

body2003
R. GOGOI, J. — Heard Mr. A.K. Bhowmik, learned senior counsel being assisted by Mr. A.K. Deb, learned counsel for the petitioner and Mr. R. Dasgupta, learned counsel for the respondents. 2. Though there appears to be a formal defect in the writ petition as two separate causes of action have been combined, yet having regard to the fact that this case has been pending for over almost a decade now, this court is not inclined to refuse to the writ petitioner an adjudication on the merits of the controversy. 3. The facts, in brief, may be noted as hereunder:- The writ petitioner was appointed as a Sub-Inspector of Police by an order dated 16.10.1989. The aforesaid appointment was made on the basis of the recommendation of the Public Service Commission and was against a vacancy earmarked for the candidates belonging to Scheduled Castes. The petitioner at the time of his selection and prior to his appointment had claimed to be a member of a Scheduled Caste and had furnished a certificate to that effect which was issued by the competent authority some time in the year 1981. The petitioner continued to be in service for about two years and in the year 1991, the caste certificate given to the petitioner was cancelled by the authority by an order dated 16.3.1991 after issuing a show cause notice to the writ petitioner which according to the authority was not responded to. Thereafter, it appears that a charge Memo, dated 3.7.1991 along with the statement of Article of Charges and statement of imputation in support of the charges had been served upon the writ petitioner. The essence of the charge brought against the writ petitioner is that though he is not a member of the Scheduled Castes community, yet he had represented himself to be a Scheduled Caste candidate and on that basis, secured employment under the State. The writ petitioner submitted his reply to the show cause and the authority not being satisfied, appointed an Enquiry Officer to hold an inquiry into the charges levelled against the writ petitioner. The Enquiry Officer after a detailed inquiry, in course of which a large number of witnesses were examined, submitted a report dated 27.2.1992 exonerating the writ petitioner of the charges levelled. The Enquiry Officer after a detailed inquiry, in course of which a large number of witnesses were examined, submitted a report dated 27.2.1992 exonerating the writ petitioner of the charges levelled. The disciplinary authority disagreed with the findings reached by the Enquiry Officer and on the basis of the materials and evidence, adduced in the course of the inquiry, came to the conclusion that the charges against the writ petitioner were proved. Accordingly, the punishment of dismissal from service was proposed against the writ petitioner and he was asked to show cause against the proposed punishment. The petitioner unsuccessfully showed cause and eventually by a final order dated 21.3.1993, the petitioner was dismissed from service. Aggrieved, the instant writ petition has been filed. 4. The first limb of the writ petition, i.e., regarding the validity of the cancellation of the Caste certificate, issued in favour of the writ petitioner may be considered first. 5. The writ petitioner affirms and contends that the cancellation was made without any notice to him whereas the respondents contend that notice asking the writ petitioner to show cause against the proposed cancellation was issued to him. A copy of the said notice has also been enclosed to the affidavit filed by the respondents. There is no manner of doubt that the cancellation of the caste certificate, issued in favour of the writ petitioner, entailed serious civil as well as penal consequences on the writ petitioner and, therefore, the same could not have been cancelled without due and adequate notice of opportunity. Though the averments in the writ petition that such opportunity was denied has been stoutly controverted in the affidavit filed by the respondents, even accepting the averments made in the affidavit in their entirety, what is demonstrated is that a show cause notice was issued to the writ petitioner at his permanent address. Though the respondents aver that the said notice was sent by registered post, there is no proof of such dispatch nor is there any satisfactory proof that the notice was served on the writ petitioner. Though the respondents aver that the said notice was sent by registered post, there is no proof of such dispatch nor is there any satisfactory proof that the notice was served on the writ petitioner. Even assuming that the notice to the writ petitioner was sent by registered post, there can be no concept of deemed service of such notice in the facts of the present case and it was obligatory on the part of the respondents to issue a newspaper publication asking the writ petitioner to take part in the proceedings, a course of action which admittedly was not adopted by the respondents in the instant case. For the aforesaid reasons, I am inclined to hold that the cancellation of the caste certificate of the writ petitioner was made in flagrant violation of the elementary principle of natural justice and that the said cancellation cannot be taken cognizance of by this court. It will, therefore, now be open for the respondents to proceed in the matter, if they so wish, by giving due and proper notice to the writ petitioner and after holding a detailed inquiry into the matter. 6. Coming to the second aspect of the petitioner's case, i.e., validity of the order of dismissal though elaborate arguments have been advanced on behalf of the rival parties on the merits of the order of dismissal, this court does not consider it necessary to go into any of the said questions raised for the reasons indicated herein below. The report of inquiry of the Enquiry Officer was in favour of the writ petitioner. The disciplinary authority was at full liberty to agree or disagree with the said report but in case it was in disagreement, an obligation was cast on the disciplinary authority to record the tentative reasons for the disagreement and to communicate the same to the writ petitioner to enable him to show cause and persuade the authority not to dis-agree with the report of the Enquiry Officer, but to accept the same. This is the essence of the larger doctrine of reasonable opportunity which a delinquent officer is entitled to. The opportunity must be made available to the delinquent officer at a stage when the disciplinary authority is yet to make up its mind either to agree or dis-agree with the views of the Enquiry Officer. This is the essence of the larger doctrine of reasonable opportunity which a delinquent officer is entitled to. The opportunity must be made available to the delinquent officer at a stage when the disciplinary authority is yet to make up its mind either to agree or dis-agree with the views of the Enquiry Officer. Thus the law laid down by the Hon'ble Apex Court in the case of S.B.I and others, Appellants-Vs-Arvind K. Shukla, Respondent, reported in AIR 2001 SC 2398 , on the basis of which law, this court in the case of Md. Safiqul Hague, Petitioner-Vs-State of Assam and others, Respondents, reported in (2002) 1 GLR 183 has answered a similar question in favour of the delinquent officer. Admittedly, in the instant case, the tentative views of the disciplinary authority to dis-agree with the report of the Enquiry Officer were not communicated to the writ petitioner at any stage prior to the proposed penalty. Consequently, following the law laid down by the Hon'ble Apex Court in the case of S.B.I.-Vs-Arvind K. Shukla(supra), I am of the firm view that the actions impugned in the present writ petition have been vitiated by a breach of the doctrine of reasonable opportunity. Consequently, the impugned order of dismissal shall stand set aside and interfered with. 7. As the aforesaid order of dismissal has been set aside by this court on a technical ground and the petitioner is yet to be exonerated of the charges levelled, I do not consider it appropriate to pass any further order so as to entitle the writ petitioner any consequential relief by way of re-instatement. The inquiry may be now brought to its logical conclusion by the disciplinary authority, if it is so advised, by following the correct procedure mandated by law within a period of three months from the date of receipt of this order. In the event, the disciplinary authority is not inclined to continue with the inquiry, it will be open for the disciplinary authority to pass necessary orders for re­instatement of the writ petitioner. 8. The writ petition shall stand allowed to the extent indicated above.