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2005 DIGILAW 617 (GAU)

Kamal Kanti Debnath v. State of Tripura

2005-08-24

BROJENDRA PRASAD KATAKEY

body2005
JUDGMENT B.P. Katakey, J. 1. By this petition, the Petitioner has challenged the order dated 19.6.1995 issued by the Joint Secretary, Government of Tripura, imposing penalty of withholding increments of pay for a period of two years without cumulative effect. 2. The facts leading to the filing of the present writ petition is that the Joint Secretary, Government of Tripura, on 23.8.1993 issued a Memorandum asking the Petitioner to explain the reason as to why disciplinary action shall not be taken against him for using abusive languages in his application dated 14.10.1992 addressed to the Deputy Secretary, Appointment and Service Department, which is unbecoming by a Government servant. The Petitioner on receipt of the said memorandum submitted his reply on 29.9.1993 denying using any abusive language and explaining circumstances under which the letter dated 14.10.1992 was issued by the Petitioner through proper channel. The Joint Secretary, Government of Tripura, Administrative Reforms Department thereafter vide Memorandum dated 2nd February, 1994 initiated a departmental proceeding under Rules 16 of the C.C.S. (C.C.A.) Rules, 1965 asking him to show cause within 10 days on the charges levelled against him which was enclosed to the said memorandum. The Petitioner on receipt of the said charge Memo submitted his reply dated 21.2.1992 denying the charges levelled against him. The Joint Secretary to the Government of Tripura, Administrative Reforms Department, vide order dated 19.6.1995 thereafter, upon consideration of the charges levelled against the Petitioner as well as the written statement submitted by him and upon consultation with the Tripura Public Service Commission awarded the minor punishment of withholding of increments of pay for a period of 2 years without cumulative effect. Being aggrieved, the Petitioner filed an appeal before the Chief Secretary, Government of Tripura on 9.8.1995 challenging the said order of punishment dated 19.6.1995, which, according to the Petitioner was served him on 3.7.1995. However, the said appeal was dismissed as barred by time vide order dated 13.11.1995 issued by the Deputy Secretary to the Government of Tripura, Administrative Reforms Department. Hence, the present writ petition. 3. I have heard Mr. A.R. Barman, learned Counsel appearing on behalf of the Petitioner and Mr. R.B. Sinha, learned State counsel appearing on behalf of the Respondents. 4. Mr. Hence, the present writ petition. 3. I have heard Mr. A.R. Barman, learned Counsel appearing on behalf of the Petitioner and Mr. R.B. Sinha, learned State counsel appearing on behalf of the Respondents. 4. Mr. Barman, learned Counsel for the Petitioner has submitted that though Rule 16 of C.C.S. (CCA) Rules, 1965 gives a discretion to the disciplinary authority to hold an enquiry after receipt of the show cause reply submitted by the delinquent officer, while imposing the minor punishment, such discretion is required to be exercised judiciously and taking into consideration of the relevant factors and also whether the proposed punishment of withholding of increments of pay would adversely effect the amount of pension payable to the Government servant. According to the learned Counsel, the disciplinary authority without recording any reason for not holding the enquiry, though the Petitioner denied the charges levelled against him and claimed to be heard in person, imposed the punishment of withholding increments for 2 years without cumulative effect vide order dated 19.6.1995. According to the learned Counsel for the Petitioner since Sub-rule (1A) of Rule 16 of the C.C.S. (CCA) Rules provides that if the punishment of withholding increments of pay adversely affect the amount of pension payable to the Government servant, holding an enquiry is a must and, therefore, the authority before deciding not to hold any enquiry and to exercise the discretionary power for not holding an enquiry under Rule 16(1) of C.C.S. (CCA) Rules, as to record the reason and its satisfaction that the punishment awarded to the Petitioner will not adversely affect the amount of pension payable. According to the learned Counsel for the Petitioner, no such satisfaction has been recorded by the Respondents before exercising the discretionary power conferred on it for not holding an enquiry by virtue of Rule 16(1) of the Rules, and therefore, the imposition of penalty is illegal. 5. Mr. According to the learned Counsel for the Petitioner, no such satisfaction has been recorded by the Respondents before exercising the discretionary power conferred on it for not holding an enquiry by virtue of Rule 16(1) of the Rules, and therefore, the imposition of penalty is illegal. 5. Mr. Sinha, learned State counsel appearing on behalf of the Respondents, on the other hand, relying on affidavit-in-opposition filed on their behalf, has submitted that Rule 16 of C.C.S. (CCA) Rules does not provide for holding of an enquiry for imposition of the minor penalties specified in Clauses (i) to (iv) of Rule 11 of the C.C.S. (CCA) Rules, 1965 and hence, no enquiry was held by the disciplinary authority after receipt of the show-cause reply submitted by the Petitioner and before passing the impugned order of punishment. 6. I have considered the submission of the learned Counsel for the parties and also perused the pleadings. No record has been produced by the Respondents. 7. The facts in this case are not in dispute. The Joint Secretary to the Government of Tripura, Administrative Reforms Department issued a charge Memo dated 2.2.2004 asking the Petitioner to show cause, within 10 days, against the Article of charges enclosed to the said Memo. It is evident from the said charge Memo that the authority proposed to take action against the Petitioner under Rule 16 of C.C.S. (CCA) Rules, 1965. The Petitioner on receipt of the said charge Memo submitted his reply on 21.2.2004 denying the charges levelled against him and claimed to be heard in person. The disciplinary authority, thereafter, without holding any enquiry and upon consultation with the Tripura Public Service Commission passed the order dated 19.6.1995 imposing punishment of penalty of withholding of increments of pay for a period of 2 years without cumulative effect, which is a minor punishment. Though an appeal was preferred before the Chief Secretary, being the appellate authority, the same was rejected being barred by time. 8. Rule 16 of the C.C.S. (CCA) Rules, 1965 gives a discretion on the disciplinary authority either to hold an enquiry and not to hold it, after receipt of the show-cause reply from the officer concerned to the charge Memos issued to him, while imposing any of the minor penalties specified in Clauses (i) to (iv) of Rule 11 of the said Rules. Sub-rule (1A) of Rule 16 provides that holding of a regular enquiry is a must, if the penalty of withholding the increments of pay, is likely to affect adversely the amount of pension payable to the Government servant or the penalty of withholding of pay for a period of exceeding three years, withholding increment of pay with cumulative effect for any period is passed. For better appreciation Rule 16 of the C.C.S. (CCA) Rules, 1965 is quoted below: 16. Procedure for imposing minor penalties.-(1) Subject to the provisions of Sub-rule (3) of Rule 15, no order imposing on a Government servant any of the penalties specified in Clauses (i) to (iv) of Rule 11 shall be made except after. (a) Informing the Government servant in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him reasonable opportunity of making such representation as he may wish to make against the proposal; (b) Holding an inquiry in the manner laid down in Sub-Rules (3) to (23) of Rule 14, in every case in which the disciplinary authority is of the opinion that such inquiry is necessary; (c) Taking the representation, if any, submitted by the Government servant under Clause (a) and the record of inquiry, if any, held under Clause (b) into consideration; (d) Recording a finding on each imputation of misconduct or misbehaviour; (e) Consulting the Commission where such consultation is necessary. (1-A) Notwithstanding anything contained in Clause (b) of Sub-rule (1) if in a case it is proposed after considering the representation, if any, made by the Government servant under Clause (a) of that sub-Rule, to withhold increments of pay and such withholding of increments is likely to affect adversely the amount of pension payable to the Government servant or to withhold increments of pay for a period exceeding three years or to withhold increments of pay with cumulative effect for any period, as inquiry shall be held in the manner laid down in Sub-rules (3) to (23) of Rule 14, before making any order imposing on the Government servant any such penalty. (2) The record of the proceedings in such cases shall include- (i) A copy of the intimation to the Government servant of the proposal to take action against him; (ii) A copy of the statement of imputations of misconduct or misbehaviour delivered to him; (iii) His representation if any; (iv) The evidence produced during the inquiry; (v) The advice of the Commission, if any; (vi) The findings on each imputation of misconduct or misbehaviour; (vi) The orders on the case together with the reasons therefor. 9. It is, therefore, evident from Clause (b) of Sub-rule (1) of Rule 16 of the Rules, that a discretion is given on the disciplinary authority either to hold an enquiry or not to hold it. Such discretion given to the authority cannot be exercised whimsically and without any basis. The authority before exercising the discretion, therefore, has to record the reason as to why it has decided not to hold an enquiry before imposing any minor penalties specified in Clauses (i) to (iv) of Rule 11 of the Rules, as by exercising the discretionary power of not holding an enquiry, the authority is going to deprive the employee from his right to defend himself in a regular disciplinary proceeding. It also appears from the Sub-rule (1A) of Rule 16 of the Rules that holding of the regular enquiry is a must, if the penalty of withholding increments adversely affect the amount of pension payable to the Government servant. Reading the Rule 16 as a whole, it is therefore, evident that the authority before deciding not to hold an enquiry, by exercising its discretionary power, has to record the reason that the proposed penalty will not adversely affect the amount of pension payable to the Government servant and such discretion can only be exercised by recording reason for not holding an enquiry. 10. Discretion provides an option to the authority to adopt one or the other alternative. Discretion is said to be exercised properly and legally when the authority examine the facts and decides objectively and rationally. In the name of exercise of discretion, the authority cannot act whimsically or arbitrarily. It must be reasonable and fair. The discretionary jurisdiction, though may be of wide aptitude, but it must be exercised fairly and bona fide, more so when its exercise invite; adverse civil consequence to a party. In the name of exercise of discretion, the authority cannot act whimsically or arbitrarily. It must be reasonable and fair. The discretionary jurisdiction, though may be of wide aptitude, but it must be exercised fairly and bona fide, more so when its exercise invite; adverse civil consequence to a party. Exercise of such discretion is open to judicial review and therefore, must answer the test of reasonableness. Therefore, the authority in exercising the discretionary power is required to record the reason also why it has adopted one or the other option, so that its reasonableness and fairness can be scrutinized by Courts of Law. In the instant case, the Petitioner though in reply to the charge Memo claimed to be heard in person, his said prayer has not been rejected by the authority bypassing any order. The Respondent authority, in fact, has not been able to produce any record before this Court to show that any reason has been recorded to show the reason as to why it has exercised the discretion of not holding enquiry. The stand of the Respondent, as it appears from the counter affidavit filed is that under Rule 16 of C.C.S. (CCA) Rule no enquiry is at all necessary. 11. Since the Respondents have failed to produce any order passed by the disciplinary authority recording the reason for not holding the enquiry and to show that Sub-rule (1A) of Rule 16 was considered before exercising the discretion of not holding the enquiry, order of punishment dated 19.6.1995 imposed by the Joint Secretary is contrary to the requirement of Rule 16 of the C.C.S. (CCA) Rules and hence the same is liable to be set aside, which I hereby do. However, it is open to the authority to take appropriate action against the Petitioner, as per law and in terms of the finding recorded herein, if so advised. 12. The writ petition is accordingly allowed. No cost. Petition allowed.