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2006 DIGILAW 23 (GAU)

State of Tripura v. Nalini Kanta Majumder

2006-01-04

A.B.PAL, ANIMA HAZARIKA

body2006
JUDGMENT 1. By this appeal instituted by the State of Tripura and other State functionaries, the judgment dated 14.3.2000 passed by the learned Single Judge in C.R. No. 271 of 1991 has been called in question. 2. The material facts giving rise to the writ proceeding are that the respondent-petitioner while working as Upper Division Clerk (UDA) in the office of the Sub-Registrar, Dharmanagar, North Tripura faced a disciplinary proceeding on the charge that he contracted a second marriage during the life time of his first wife which is a misconduct within the meaning of the Service Conduct Rules applicable to him. After an enquiry into the charge framed against him, he was found guilty and was punished with compulsory retirement invoking the provisions under FR 56(J). In the writ petition, the said penalty was put under challenge on the ground that FR 56(J) could not be pressed into service as the respondent-petitioner did not complete 50 years of age. The second limb of argument advanced before the learned Single Judge is that the copy of the enquiry report was not supplied to him though it is the basic requirement in Order to provide an opportunity to make suitable representation against the said report and, thus, the principles of natural justice was violated. The third contention advanced is that no notice was served upon him with regard to the proposed penalty which is also, according to him, a legal requirement. Learned Single Judge accepted the last two arguments relating to non-service of notice about the proposed penalty and non-supply of the enquiry report and on these grounds quashed the impugned Order of punishment with a direction to re-instate the petitioner in service. The learned Single Judge, however, remitted the case back to the disciplinary authority with a direction to issue notice indicating proposed punishment along with the copy of the enquiry report and to give opportunity to the petitioner to show cause before passing Order regarding penalty other than the penalty of dismissal or removal or compulsory retirement from service. Though the State and the other appellants have filed the present appeal, the direction to reinstate the respondent-petitioner was carried out and as a result, the petitioner has been in service since his reinstatement in 2000. 3. We have heard Mr. D. K. Bhattacharjee, learned Counsel for the appellant and Mr. K. N. Bhattacharjee, learned senior counsel assisted by Mr. Though the State and the other appellants have filed the present appeal, the direction to reinstate the respondent-petitioner was carried out and as a result, the petitioner has been in service since his reinstatement in 2000. 3. We have heard Mr. D. K. Bhattacharjee, learned Counsel for the appellant and Mr. K. N. Bhattacharjee, learned senior counsel assisted by Mr. S. Acharjee, learned advocate for the respondent-writ petitioner. 4. The first question that has been advanced by the learned Counsel for the appellant is that in view of the provision contained in Article 311 of the Constitution no notice about the proposed penalty is required to be issued and, therefore, the findings and direction of the learned Single Judge to this effect is erroneous and perverse. The relevant part of Article 311 of the Constitution is gainfully quoted below: Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed. No authority needs to be cited in support of the contention that a notice about the proposed penalty is not a sine qua non for imposing a penalty in a disciplinary proceeding in view of the clear and unambiguous provision in the above proviso to Article 311 of the Constitution. We are fully in agreement with the above submission that a show cause notice about the proposed penalty is not at all required particularly because the delinquent has no right to make any representation against the proposed penalty. 5. As regards the requirement of supplying a copy of the inquiry report, in a line of decisions the Apex Court set at rest all controversies on this issue laying down the law that in each and every case of disciplinary proceeding the copy of the inquiry report must be supplied d to the delinquent Government servant in Order to enable him to make a representation against the findings contained in the inquiry report. Though it has been contended by the appellant in their counter affidavit in the writ proceeding that all the relevant documents were supplied to the delinquent Government servant, we have noticed that the statement made by the respondent-petitioner in para 24 of the writ petition that with the Order of punishment a copy of the report of the inquiring officer was given to him has not been specifically controverted. The factual position that can be gathered from the writ petition and counter affidavit when read together is that the bunch of papers supplied to the respondent-petitioner contained the Order dated 10.11.1989 imposing the punishment of compulsory retirement and the copy of the report of the inquiring officer dated 9.11.1989. In other words, the copy of the Order of punishment and the copy of the report of inquiry were given to the respondent-petitioner together and, therefore, it can be safely held that this did not amount to reasonable opportunity to make representation or response to the disciplinary authority about the findings contained in the report. We are, therefore, in agreement with the learned Single Judge that non-supply of the copy of the inquiry report before the punishment was imposed was a gross violation of the legal rights of the respondent-petitioner and for that reason alone, the impugned punishment is not sustainable in law as correctly held by the learned Single Judge. We, therefore, find no reason to interfere with the direction given by the learned Single Judge remitting the matter back to the disciplinary authority, but the said direction stands modified to the extent that the proceeding shall be continued from the stage when the copy of the inquiry report is required to be served and there shall be no requirement to serve a show cause notice in respect of the proposed penalty. There will, thus, be no de novo proceeding or inquiry as we held above, but we are not inclined to put any restriction on the disciplinary authority about the penalty to be imposed after conclusion of the disciplinary proceeding and consequently the direction of the learned Single Judge contained in para 6 of the impugned judgment to pass orders with regard to penalty other than the penalty of dismissal/removal/compulsory retirement from service stands quashed. The position will, however, be different if the respondent-petitioner has meanwhile retired from service and in that event the fate of the said proceedings shall be determined and drawn to its logical conclusion in accordance with relevant laws all the directions of ours notwithstanding. 6. For tile foregoing discussions, this writ appeal is closed subject to the observations and directions made above.