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2005 DIGILAW 43 (GAU)

Adhir Ch. Dhar v. State of Tripura

2005-01-20

TINLIANTHANG VAIPHEI

body2005
JUDGMENT T. Vaiphei, J. 1. In this writ petition, the Petitioner challenges the legality of the departmental proceedings against him, which resulted in imposing a penalty of withholding one increment for a period of three years with cumulative effect with effect from the date of his next increment on 01.01.1998. 2. I have heard Mr. A.K. Bhowmik, the learned senior Counsel, assisted by Mr. S. Ghosh and Mr. S.R. Dey, the learned Counsel appearing for the Petitioner. I have also heard Mr. D.K. Bhattacharjee, the learned Counsel for the State-Respondents. 3. The factual matrix leading to the institution of the writ petition may be briefly noticed. The Petitioner is serving as Sub-Inspector of Police under the Home Department of the Government of Tripura. In the year 1996, the State-Respondents issued the Memorandum dated 20.06.1996 (Annexure-1 to the writ petition) proposing to hold a departmental enquiry against him under Rule 861 of the Police Regulation of Bengal, 1943, which is made applicable to the State of Tripura, requiring him to submit a written statement of defence, etc. The Articles of charges are as follows: Article-I That SI (UB) Adhir Chandra Dhar of West Tripura District is charged for gross negligence and disobedience to duties in thana while he was functioning at Ranir Bazar OP, under Jirania PS. As O/C OP, on 28.7.95 he was specifically asked by O/C Jirania PS to perform mobile duty covering Burakha, Binankobra Chambli, Patni, Jibansardar Para area on 29.7.95 on the day of A.D.C. election. But the said SI A. Dhar did not visit for a single time at Jibansardar Para on 29.7.95 for his malafide intension. Thus the above SI has intentionally violated the order of his superior and showed such a conduct which is unbecoming of a Police Officer. Article-II That SI (UB) Adhir Chandra Dhar of West Tripura is charged for gross misconduct, negligence in duty and cowardice in that while he was functioning at Ranirbazar OP under Jirania PS as O/C OP. he was provided with vehicles and CRPF, for mobile duty covering Burakha, and its adjoining areas on 29.7.95 on the day of ADC election on 29.7.95 at 1700/1730 hrs. the police escort party with poling party while returning in vehicles from Jibansardar para was ambushed by extremist near ADC Colony resulting death of 3 Police personnel and one poling officer. he was provided with vehicles and CRPF, for mobile duty covering Burakha, and its adjoining areas on 29.7.95 on the day of ADC election on 29.7.95 at 1700/1730 hrs. the police escort party with poling party while returning in vehicles from Jibansardar para was ambushed by extremist near ADC Colony resulting death of 3 Police personnel and one poling officer. Even after getting timely information and instruction from O/C Jirania PS. The above SI did neither promptly reacted nor rushed to the spot to help the police party. Thus the above SI has showed negligence, misconduct and cowardice which is unbecoming of a police officer. Article-III That SI (UB) Adhir Chandra Dhar of West Tripura District is charged for gross negligence, misconduct and dereliction of duty in that while he was functioning at Ranirbazar OP under Jirania PS. As O/C OP. on 29.7.95 he was provided with from vehicle 12 CRPF. Staff and 4 (U/B) Constables for mobile duty in Borakha and its adjoining areas covering Binankobra, Chamblis, Jibansardarpara, Bhuban Chantaipara and Kalikapur area on the day of ADC Election. But the said SI did not use the force and (UB) staff with him properly and violated the instruction of his superiors. Thus he showed negligence, misconduct and dereliction in duty which is unbecoming of a police officer. 4. The Petitioner submitted his written statement of defence denying the charges against him and also stated therein that the preliminary enquiry report submitted by the SDPO, Sadar did not disclose any lapses on his part. He also prayed therein that he be supplied with copies of the documents mentioned in Annexure-III to the said Memorandum. According to the Petitioner, repeated requests by him vide his written application at Annexures-2, 3 and 5 did not yield any result. It is also the case of the Petitioner that during the inquiry cited material witnesses such as B. Das, the Sub-Divisional Officer, Sadar, Agartala, who made the preliminary enquiry exonerating him from the charges, Shri Sanjit Goswami and Shri Babul Gosh, were not examined without giving any reason but one Nityananda Debnath, Inspector of Police, who was never cited as a witness was examined on behalf of the department. Moreover, continues the Petitioner, those documents relied upon in Annexure-3 to the said Memorandum were never proved or exhibited during the inquiry. Moreover, continues the Petitioner, those documents relied upon in Annexure-3 to the said Memorandum were never proved or exhibited during the inquiry. It is the further case of the Petitioner that he was never furnished with copies of the police arrangement of the district as well as police detailment chart of Jirania Sector for the ADC election, 1995, which caused serious prejudice to his case. The Inquiry Officer after conclusion of the enquiry, submitted his enquiry report to the Respondent No. 4, who accepted the findings of the Inquiry Officer and provisionally agreed to impose a penalty against the Petitioner and required the latter to show cause within 10 days as to why the proposed punishment should not be inflicted upon him vide the order dated 30.1.1997 (Annexure-8). The Petitioner duly submitted his representation against the proposed penalty. It would appear that the Respondent No. 4, after receiving the said representation passed the final order dated 20.11.1997 (Annexure-10) imposing a penalty referred to earlier. Aggrieved by the same, the Petitioner preferred statutory appeal before the Respondent No. 3, which was subsequently endorsed to the Respondent No. 5, who turned out to be the competent appellate authority. The Respondent No. 5 ultimately dismissed the appeal vide the order dated 07.04.1998. Thereafter, the Petitioner filed a revision petition before the Respondent No. 2, who, however, declined to entertain the same in view of the provisions of the Police Regulation vide the order dated 07.09.1998. It may be noted that when the revision petition was filed, the Respondent No. 4 passed an order dated 25.4.1998 keeping the operation of the impugned order in abeyance pending disposal of the revision but when the revision petition was rejected, the Respondent No. 4 revoked the said order dated 25.4.1998 and directed recovery of the amount overdrawn by the Petitioner w.e.f. 01.01.1998 due to non-implementation of the impugned order of penalty from his salary in five equal instalments. The Petitioner thus contends that the disciplinary proceedings against him and the impugned order emanating therefrom are illegal, violative of principles of natural justice, mala fide and are liable to be quashed. 5. The State-Respondents contested the writ petition and filed their counter-affidavit. It is the contention of the State-Respondents in their counter-affidavit that all the related documents relied on by them were supplied to the Petitioner. According to the State-Respondents, as desired by the Petitioner, Mr. 5. The State-Respondents contested the writ petition and filed their counter-affidavit. It is the contention of the State-Respondents in their counter-affidavit that all the related documents relied on by them were supplied to the Petitioner. According to the State-Respondents, as desired by the Petitioner, Mr. U. Debbarma, the then Inquiry Officer on 05.10.1996 supplied some additional documents but a copy of the central police arrangement was not supplied as the same was not considered relevant. It was further stated by the State-Respondents that the said B. Das, the SDPO, Sadar was not examined during enquiry since he had no knowledge of the subject matter of the enquiry. In so far as Sanjit Goswamy and Babul Ghosh are concerned, the State-Respondents averred that they were summoned to appear before the Inquiry Officer on 20.03.1997 but when they did not turn up in the enquiry, their appearance had to be dispensed with, which was duly noted in the note-sheet dated 23.03.1997. Moreover, continued the State-Respondents, since evidence already on record were sufficient to bring home the charges against the Petitioner, the Enquiry Officer did not consider it necessary to examine them. The State-Respondents denied that Shri Nityananda Debnath was not a cited witness. The State-Respondents admitted that none of the documents listed in Annexure-III to the said Memorandum were exhibited by the Enquiry Officer and the findings of the Enquiry Officer were based on oral evidence of the witnesses. The State-Respondents claimed that the documents cited at SI. No. 1 and 2(i) to 2 (ix) in the said Memorandum were preliminary reports and statements of witnesses recorded during the preliminary enquiry and the same were not exhibited since the rule did not permit their exhibition. It was also pointed out by the State-Respondents that except for G.D. Entry No. 1071 dated 28.07.1995, all the documents cited in Annexure III did not have bearing on the charges framed against the Petitioner. In so far as G.D. Entry No. 1071 dated 28.07.1995 is concerned, the same would not be exhibited by the Enquiry Officer since the O/C, Jirania P.S. The State-Respondents contended that the Enquiry Officer gave all reasonable opportunities to the Petitioner to defend himself and that the Petitioner would have produced by himself all the documents considered essential before the Enquiry Officer. It was denied that the provisional order dated 30.01.1997 had been issued mechanically. It was denied that the provisional order dated 30.01.1997 had been issued mechanically. The impugned order, contended the State-Respondents, was issued by the Respondent No. 4 after duly applying his mind and after appreciating the evidence on record and after taking into account all the points raised by him. The State-Respondents did not deny that Shri T.K. Sanyal, DIG (CID), who disposed of the appeal, was the officer who framed the charges against the Petitioner but it was submitted that he had been duly authorized by the PHQ to hear the appeal, which could not be assailed by the Petitioner. Finally, it was submitted that there was no infirmity in the impugned order or the order passed by the appellate authority calling for the interference of this Court. It was, therefore, prayed that the writ petition, being devoid of merits, was liable to be dismissed. 6. It is vehemently submitted by Mr. A.K. Bhowmik, the learned senior counsel for the Petitioner that the impugned orders suffer from the following infirmities: (i) by refusing to supply copies of the documents referred to in Annexure-III to the said Memorandum and by not examining material witnesses such as Shri B. Das, SDPO, Sadar, who exonerated the Petitioner in his preliminary inquiry, Shri Sanjit Goswami and Shri Badal Ghosh, (ii) by examining Shri Nityananda Debnath, Inspector of Police, who was never cited as a witness and (iii) by making perverse findings. He, however, does not press the other points in the course of hearing. On the other hand, Mr. D.K. Bhattacharjee, the learned Counsel for the State-Respondents contends that as long as the aforesaid documents in Annexure-III were not used for proving the misconduct of the Petitioner, and when the findings were based on oral evidence of the witnesses adduced on behalf of the department, no serious grievance can be made by the Petitioner. Secondly, he urges that all the relevant documents had been supplied to the Petitioner during enquiry and even if some documents mentioned in Annexure-III are considered by him to be essential, he was at liberty to produce the same and having not done so, he could not now complain of denial of reasonable opportunity. Both the disciplinary authority and the appellate authority, submits the learned Counsel for the State-Respondents, duly applied their mind in appreciating the evidence on record and thereafter passed the impugned orders. Both the disciplinary authority and the appellate authority, submits the learned Counsel for the State-Respondents, duly applied their mind in appreciating the evidence on record and thereafter passed the impugned orders. It is further submitted by the learned Counsel for the State-Respondents that in a judicial review of disciplinary proceedings, this Court has no power of re-appreciating the evidence and in the absence of perverse findings made by the disciplinary authority, which is the case here, this Court should not interfere with the impugned orders. 7. After going through the pleadings of both the parties, the first point for determination is whether copies of the documents mentioned in Annexure-III to the said Memorandum were supplied to the Petitioner by the Enquiry Officer and, if not, what will be the legal effect for such omission? As pointed out by the State-Respondents in paragraph 7 of their counter-affidavit, the said documents are the preliminary reports dated 13.09.1995 and dated 03.06.1996 and the statements of the witnesses recorded in connection with the preliminary report dated 13.09.1995. On going through the preliminary report dated 13.09.1995,I find that the said B. Das, the SDPO, Sadar did not find any lapses on the part of the Petitioner on the selection day. It is, however, interesting to note that the same officer in his report dated 03.06.1996 found fault with the Petitioner and observed that the Petitioner did not visit Jiban Sardar Para on the said date. This observation is quite inconsistent with his observation made in his report dated 13.09.1995 which says that on the day of election all the police personnel right from Constables to upwards were more active for which they were able to prevent more incident and that SI, Shri A. Dhar, O/C Ranirbazar OP was not able to take more initiative after the occurrence due to non-cooperation of the CRPF personnel. The Petitioner admittedly requested the Enquiry Officer to supply a copy of the report dated 13.09.1995 but the request was refused. The ground for refusal, according to the State-Respondents, was that the rules did not permit the Enquiry Officer to exhibit the same. It may also at this stage be appropriate to mention that the author of the said report dated 13.09.1995 was not examined during the enquiry even though he was cited as the witness on behalf of the Department. The ground for refusal, according to the State-Respondents, was that the rules did not permit the Enquiry Officer to exhibit the same. It may also at this stage be appropriate to mention that the author of the said report dated 13.09.1995 was not examined during the enquiry even though he was cited as the witness on behalf of the Department. The ground for not examining him as witness is stated in the beginning of paragraph 7 of the counter-affidavit, which says that he had no personal knowledge of the fact that constituting the subject matter. Curiously, it was on the basis of the second report made by the same officer on 03.00.1996 that the disciplinary proceeding against the Petitioner was initiated. 8. True, normally in a departmental enquiry, documents, which are not relied upon by the Enquiry Officer in his findings, are not required to be supplied to the delinquent officer and the latter cannot complain of denial of reasonable opportunity of hearing for such act of commission or omission by the Enquiry Officer. But there may be circumstances where documents, considered by the delinquent official to be vital for contradicting the witness on his previous statement, are not supplied by the Enquiry Officer. It must be remembered that the Petitioner in this case is harping on the fact that the said report dated 13.09.1995 had exonerated him from lapses and that the same is required to be considered by the Enquiry Officer for arriving at just findings. It is true that where a delinquent failed to point out that any particular document made use of by Enquiry Officer for establishing the charges, had not been supplied or allowed by the department and where no submission was advanced by the delinquent regarding prejudice which might have been caused to him by non-supply of such a document, the question of violation of principles of natural justice will not arise-see, State of U.P. v. Ramesh Chandra Mangalik, (2002) 3 SCC 443 . In the instant case, there can be no two possible view that the preliminary report dated 13.09.1995 would be essential for the Petitioner to contradict the author thereof to prove his innocence. The refusal by the Enquiry Officer to supply the said document to the Petitioner, despite repeated requests made by him, in my considered view, resulted in denial of reasonable opportunity of hearing to him. The refusal by the Enquiry Officer to supply the said document to the Petitioner, despite repeated requests made by him, in my considered view, resulted in denial of reasonable opportunity of hearing to him. In State of U.P. v. Shatrughan Lal, (1998) 6 SCC 651 , where copies of documents relied on in the charge-sheet were not supplied to the delinquent officer, and where the State admitted non-supply of copies but pleaded that it was open for the delinquent to inspect those documents, it was help by the Apex Court that if the State did not intend to give copies of documents to him, it should have indicated to him in writing that he might inspect those document. It was further held therein that merely saying that the Respondent would have inspected the documents at any time is not enough; he has to be informed that the documents, of which copies were asked by him, may be inspected; access to records must have been assured to him. It was also held therein that if the charged employee is required to submit reply to charge-sheet without having copies of the statements, he is deprived of opportunity of effective hearing and that supplies of copies is also necessary where witnesses making the statements are intended to be examined against him in regular enquiry. In the instant case, the repeated requests made by the Petitioner for supply of the said preliminary report and the statement of the witnesses recorded during the preliminary enquiry, which are referred to in SI. No. 1 and (I to IX) of the said Memorandum, were turned down by the Enquiry Officer on the grounds that the rule did not permit the Enquiry officer to exhibit the same. Furthermore, the evidence of the said B. Das, SDPO, Sadar, who made the preliminary enquiry, was withheld on the ground that he was not aware of the fact constituting the subject matter of enquiry. There is no difficulty in saying that the disciplinary proceeding against the Petitioner was set in motion by the second preliminary report made by him, which, needless to say, is inconsistent with the first preliminary report dated 13.09.1995 made by him. There is no difficulty in saying that the disciplinary proceeding against the Petitioner was set in motion by the second preliminary report made by him, which, needless to say, is inconsistent with the first preliminary report dated 13.09.1995 made by him. The Apex Court in Hardwari Lal v. State of U.P., (1999) 8 SCC 582 , held that where the Appellant was charged of having abused his colleague while he was under the influence of liquor and where neither the complainant nor the other employee, who accompanied the Appellant to hospital for medical examination, were examined as witnesses, the inquiry was vitiated being in violation of principles of natural justice. The Apex Court also rejected therein the plea that there was other materials sufficient to come to conclusion one way or the other by observing that the impact of the complainant's testimony could not be visualized and also evidence of the employee who accompanied the Appellant to the hospital would also bear upon the Appellant's state of inebriation. Thus, it is clear that the evidence of a witness cannot be withheld on the supposition that his evidence may not result in different findings. From the foregoing discussions and the principles laid down by law. I am constrained to hold that the Petitioner has been denied of reasonable opportunity to effectively defend himself due to non-supply of the preliminary report dated 13.09.1995 and the statements of the witnesses recorded in connection therewith. 9. The next question to be determined is whether the findings in the departmental enquiry against the Petitioner are perverse or based on no evidence. At the outset, I may as well reproduce hereunder the findings of the enquiry officer: 7. Findings: Keeping in view of defence statement, above contradictions regarding endorsement of jurisdictions of mobile duty to SI Adhir Chandra Dhar an absence of written police arrangement as noted above I am in the opinion that sufficient evidence are in records by which charge No. 1 of proceeding No. West District, 23/96 (Special Branch D/P No. 2/96) is proved against SI Adhir Ch. Dhar of Special Branch (earlier of West Dist. Staff) Charge No. 2 and 3 not proved since evidence are lacking Moreover charge No. 3 is almost corroborative of charge No. 1. The enquiry officer held that sufficient evidence are on records by which charge No. 1 was proved against the Petitioner. Dhar of Special Branch (earlier of West Dist. Staff) Charge No. 2 and 3 not proved since evidence are lacking Moreover charge No. 3 is almost corroborative of charge No. 1. The enquiry officer held that sufficient evidence are on records by which charge No. 1 was proved against the Petitioner. He, however, held that charge No. 2 and 3 are not proved since evidence are lacking. Yet, he proceeded to observe that moreover, charge No. 3 was almost corroborative of charge No. 1. The above observations are to say the least, confusing and full of ambiguities. It may be recalled that charge No. 1, which was said to have been proved against the Petitioner relates to the failure/omission on the part of the Petitioner to visit Jiban Sardar Para even for once on 29.07.1995 though he was specifically required to perform mobile duty on specific areas including Jiban Sardar Para. A perusal of the discussion on the evidence by the Enquiry Officer does not indicate any finding on the charge in question. The finding nearest to the charge is his observation that after getting information of incident SI Adhir Chandra Dhar, O/C, Ranirbazar OP, proceeded to the place of incident but came back before one furlong as CRPF did not agree to proceed further on the plea of darkness and on the way, they met S.P. (West) going to the spot and O/C PS. also visited the spot and further the accompanied U/B Constables of SI Adhir Dhar deposed to him that SI Dhar could not proceed to the place of incident due to refusal of the CRPF. To say the least, the above findings/discussion of the evidence cannot reasonably support the conclusion of the Enquiry Officer that there were sufficient evidences on records by which charge No. 1 was proved against the Petitioner. I have also carefully gone through the depositions of all the witnesses and except for the evidence of SI Ajoy Majumder, there was no whisper of evidence on charge No. 1, which was held to have been proved. 10. I have also carefully gone through the depositions of all the witnesses and except for the evidence of SI Ajoy Majumder, there was no whisper of evidence on charge No. 1, which was held to have been proved. 10. The law is well settled that interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution, if such authority had held proceeding in violation of the principles of natural justice or in violation statutory regulations prescribing the mode of such inquiry or if the decision of the authority is vitiated by consideration extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the face of it, is wholly arbitrary or capricious that no reasonable man could have arrived at such a conclusion, or grounds very similar to the above. If there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution. Where the Enquiry Officer and the disciplinary authority are different, a duty is also cast upon the disciplinary authority to apply his mind independently on the findings of the Enquiry Officer and not to accept such findings mechanically. 11. It is against the backdrop of the aforesaid settled law that I propose to examine the evidence of SI Ajoy Majumder since the evidence of this witness touched upon the allegations made in charge No. 1. He deposed that after the incident of ADC Colony, he came to learn that no mobile party had gone over there on that day (at ADC Colony) and that he had given a handset wireless to SI Adhir Dhar at about 10/30/11 O'clock on that very day itself. He went on to depose that notwithstanding the availability of enough personnel and vehicles and notwithstanding this order, SI Adhir Dhar did not perform any mobile duty at Jiban Sardar Para School. It may be noted that the duration of the election day was more then 7 hours and that mobile duty was to be performed by the Petitioner at different places including ADC Colony. It may be noted that the duration of the election day was more then 7 hours and that mobile duty was to be performed by the Petitioner at different places including ADC Colony. Mobile duty in the very nature of the assignment means that the duty was to be performed by moving here and there at the specified places. At the time of the incident, it is quite possible that the Petitioner was doing mobile duty at one of the other specified places and not necessarily at Jiban Sardar Para. The fact that he was performing mobile duty at some other place and not at ADC Colony, when the incident took place, cannot possibly lead me to the conclusion that mobile duty was not performed on that day as per charge No. 1, after all, it would have been humanly impossible for the Petitioner to perform mobile duty simultaneously at different places on that day. Moreover, the statements of the SI Ajoy Majumder are apparently based on information since he used the word "I came to learn". The source of his information is not revealed by him. No witness was produced on behalf of the Department to prove that the Petitioner did not visit Jiban Sardar Para for single time. In his statement, he himself admitted that he gave information to the Petitioner that terrorist attack might take place at Binan Kobra Para and that ADC Colony, where the attack occurred, was located at a distance of about 4/5 kilometres from Binan Kobra Para. It is the case of the Petitioner that as per the instruction of the said SI Ajoy Majumder, apart from visiting other centres, he kept sharp vigil at Binan Kobra Para. Reading and rereading of the statements of the witnesses including the statement of the said Ajoy Majumder, there is absolutely no legal evidence to establish the charge that the Petitioner did not visit Jiban Sardar Para even for once on the election day. On the contrary, the statement of this witness is merely an Ipse Dixit. The Enquiry Officer did not give any finding on this charge but contened himself to hold that sufficient evidence are on records by which charge No. 1 was proved against the Petitioner. This is certainly a case in which the evidence cannot reasonably support the conclusion that the charge No. 1 against the Petitioner stood proved. The Enquiry Officer did not give any finding on this charge but contened himself to hold that sufficient evidence are on records by which charge No. 1 was proved against the Petitioner. This is certainly a case in which the evidence cannot reasonably support the conclusion that the charge No. 1 against the Petitioner stood proved. The disciplinary authority acted arbitrary and illegally in acting upon the said enquiry report resulting in the impugned order of punishment. I have also carefully gone through the appellate order dated 07.04.1998 of the Dy. Inspector General of Police, CID dismissing the appeal preferred by the Petitioner. In the light of the findings recorded by me earlier, the appellate order also suffers from the same infirmity, which is not sustainable in law. 12. The offshoot of the foregoing discussion is that this writ petition is allowed. The impugned orders dated 20.11.1997 (Annexure-10) and dated 07.04.1998 (Annexure-12) and the departmental enquiry in connection therewith are hereby quashed. Let a writ of mandamus issue directing the Respondents not to act upon or carry out the impugned orders dated 20.11.1997 and 07.04.1998. However, the parties are directed to bear their own costs. Petition allowed.