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2006 DIGILAW 241 (GAU)

Nepal Ch. Debnath v. State of Tripura

2006-03-13

A.B.PAL

body2006
JUDGMENT A.B. Pal, J. 1. The Petitioner was appointed as a Rifleman in the Tripura State Rifles (for short, 'TSR') in the year 1985. He was attached to 1st Bn. TSR. He was promoted to the post of Lance Naik in the year 1989 and to the post of Naik in 1993. He was then attached to 'D' Coy of 2nd Bn. TSR. On 29.6.94, he was placed under suspension in contemplation of a disciplinary proceeding and Sri I. M. Singha, Deputy Commandant was detailed on 30.6.94 as inquiry officer to find out circumstances under which the Petitioner absented himself from duty of the rear store from 27.6.94 at 1130 hrs. to 28.6.94 at 0330 hrs. The said inquiry officer recorded the statement of the Petitioner during the course of inquiry wherein the Petitioner admitted that he had left the place of his duty, gone his home at Bishalgarh and spent the night there without informing anybody and without obtaining permission of the competent authority. The Petitioner was awarded censure by the Commandant, 2nd Bn., TSR, the fourth Respondent herein under Section 11(m) of the Tripura State Rifles Act, 1983 (for short, 'the Act'). It is, however, the plea of the Petitioner different from his statement to the Inquiry officer that though he reported for duty on 27.6.94 at 1800 hrs to replace Havildar N.G. Singha, he was informed that Shri Singh had received no instruction to handover the duty. The Petitioner then informed the Adjutant immediately about this position who advised him to sleep anywhere at night and come the next morning. This specific plea taken in the writ petition, however, is absent in the statement recorded by the inquiry officer. The Petitioner has assailed this order of punishment on the ground that it is not a speaking order, has not disclosed under which provision the same was imposed and contains no indication whether the inquiry report was taken into consideration. 2. The Petitioner went on earned leave from 5.2.96 to 15.3.96 with the approval of the competent authority. But of 15.3.96, he fell sick and on the advice on the Medical Officer, he continued to remain on leave. On 17.4.96, he applied for 45 days medical leave with effect from 16.3.96, which was, however, sanctioned later. 2. The Petitioner went on earned leave from 5.2.96 to 15.3.96 with the approval of the competent authority. But of 15.3.96, he fell sick and on the advice on the Medical Officer, he continued to remain on leave. On 17.4.96, he applied for 45 days medical leave with effect from 16.3.96, which was, however, sanctioned later. But, for extension of the leave without prior permission he was again awarded a punishment of censure under Section 11(m) of the Act on 13.5.96. It is his contention that the second punishment of censure was also without any communication to the Petitioner and without holding any inquiry affording him opportunity of defending himself. 3. The name of the Petitioner was included in list 'C for promotion to the post of Havildar. The list was prepared under Rule (4) of Tripura State Rifles (Discipline, Control, Service Conditions, etc.) Rules, 1986 (for short, 'the Rules') containing l0 Naiks including the Petitioner. All the Naiks of the list were sent for a training course for the period from 18.9.95 to 17.10.95. The Petitioner like other Naiks had successfully completed the training. Though all the 9 Naiks were promoted to the post of Havildar on 25.11.95, the Petitioner was denied the promotion, which is in violation of the provisions of Sub-rule (3) of Rule (4) of the Rules. Being aggrieved, the Petitioner submitted a representation to the Commandant of the 2nd Bn. who explained the reasons for not promoting the Petitioner to the post of Havildar in his letter dated 29.7.96 which also has been assailed by this writ petition. It has been contended in the reply that his service records regarding punishments of 'severely censured' stood in the way of the promotion to the post of Havildar. The Departmental Promotion Committee (DPC) declared him "failed" on consideration of the service records and because of that reason though the Petitioner had done better during training he could not be promoted. Further contention recorded in that letter is that a review DPC Board was held on 26.6.96 at 1st Bn. TSR and the Petitioner was asked to attend the DPC Board. But he declined to do so and refused to give reasons for not attending the said DPC. The Petitioner, however, denied the said contention that he was ever asked to attend the review meeting of the DPC. TSR and the Petitioner was asked to attend the DPC Board. But he declined to do so and refused to give reasons for not attending the said DPC. The Petitioner, however, denied the said contention that he was ever asked to attend the review meeting of the DPC. In the premises noted above, it is the prayer of the Petitioner that the order dated 5.6.96 (Annexure-G) which records that the Petitioner was awarded by the Commandant, 2nd Bn. censure on 4.6.96 for an offence committed under Section 11 (n) of the Act, 1983 and the communication dated 29.7.96 (Annexure-II) whereby the Petitioner was informed by the Commandant about the reasons for not promoting him to the post of Havildar should be quashed and a direction should be given to promote the Petitioner to the post of Havildar with effect from 29.11.95. 4. In the affidavit-in-opposition, the Respondents contended, inter alia, that the minor punishment of censure was inflicted after giving the Petitioner personal hearing during which he pleaded guilty and for such minor punishment no elaborate inquiry is required as per provision contained in the rules. As regards the first punishment of censure the Petitioner in his statement recorded by the inquiry officer admitted that he had left the guard command duty at rear store on 27.6.94 and went home without informing anybody in the TSR. Therefore, on his admission alone, the punishment of censure was recorded. As regards the second punishment, it is contended that the Petitioner went on earned leave for 45 days from 5.2.96 to 15.3.96. But even after the expiry of the leave, he did not report for duty without making any prior application for extension of his leave later he submitted his application for extension of his leave on medical ground from 16.3.96 to 3.5.96, though according to the rules, he was required to report for guard duty (GD) and then to Unit M. I for treatment. The Petitioner reported for duty only on 3.5.96 overstaying a period of 49 days without prior permission. He was awarded censure for such overstay without permission though later his leave was regularized by granting admissible leave. The allegation that he is unaware of this punishment has been strongly denied by the Respondents stating that the charge was read over to him in the language he understood and he pleaded guilty. He was awarded censure for such overstay without permission though later his leave was regularized by granting admissible leave. The allegation that he is unaware of this punishment has been strongly denied by the Respondents stating that the charge was read over to him in the language he understood and he pleaded guilty. As regard the promotion to the post of Havildar, it has been admitted by the Respondents that the Petitioner was included in the list "C' cadre, but he obtained a result "failed" because he could not pass the pre-promotion cadre list 'C. It was explained in the letter dated 29.7.96 that he could not obtain the minimum pass marks under "service records" which is compulsory for promotion test. He failed to score the minimum pass marks because he was found guilty for deserting from rear store leaving behind his personal weapon. He was again found guilty for overstaying leave in the month of June 96 and the third punishment of censure was awarded. Every time he was placed before the Commandant and he was asked to explain his conduct and only after recording his plea of guilt the minor punishment of censure was awarded. However, a review DPC was held on 26.6.96 and the Petitioner was asked to attend the same. But he declined to attend and refused to give the reasons in writing therefore. As regards the question of discrimination raised in the writ petition stating that Arabinda Dutta, Anr. Havildar was promoted though he also was awarded the punishment of censure, the reply of the Respondents is that during the 5 years of service records under consideration for promotion, Arabinda Dutta was not awarded any such punishment. Thus, it cannot be said that both the Petitioner and Arabinda Dutta were similarly situated. The question of discrimination, therefore, does not arise. 5. I have heard Mr. P. Roy Barman, learned Counsel for the Petitioner and Mr. S. Chakraborty, learned Counsel for the Respondents. 6. Mr. P. Roy Barman submits that in para 3 of the impugned communication dated 29.7.96 (Annexure-H) the Respondents admitted that the Petitioner possessed all requisite standard to attend pre-promotion cadre Naik to Havildar. Once the name of the Petitioner is included in list 'C for such promotion, Sub-rule (3) of Rule 4 of the Rules provides that the promotion should be an automatic process. Once the name of the Petitioner is included in list 'C for such promotion, Sub-rule (3) of Rule 4 of the Rules provides that the promotion should be an automatic process. The denial of the promotion to the Petitioner who has been found to have possessed all the requisite standard is thus, in violation of the said provision. Mr. Chakraborty, on the other hand, contended that Sub-rule (3) of Rule 4 has nowhere provided that the promotion should be automatic once the name is included in the list. The words "ordinarily promoted" cannot be held to mean that even if the incumbent is found to be guilty of misconduct he is to be promoted without consideration of the same. In the impugned communication dated 29.7.96, the response of the Commandant against para 3 of the application of the Petitioner reads as follows: On scrutiny of your service records, it is observed that you possessed all requisite standard to attend pre-promotion cadre Naik to Havildar except some adverse entries in the service record. You were placed under suspension during the month of 3.6.94 being a deserter from Rear store and leaving behind your personal weapon and the suspension was revoked w.e.f. 11.7.94. But having you found guilty, you were put up before the competent authority on offence report under Section 12(f) of TSR Act 1983 and awarded punishment "severely censured". At that time you got one good entry only (reckoned from last 5 years only). You attended DPC held on 26.10.95 and declared failed due to bad entries in service book. This was the only reason for you not getting promotion when your companions made it during November, 1995. At that time you were not eligible to get promotion as per promotion Rule due to bad entry in service record. 7. To appreciate the above position, the provision contained in Rule 4(3) is to be examined: 4(3)-A person included in a list shall be ordinarily promoted to the next higher rank in the order of his position in the concerned list unless he has in the meanwhile been accused or found guilty of gross misconduct or inefficiency or indiscretion, which renders him, in the opinion of the authority competent to maintain the concerned list, unfit for time being for such promotion. It would, thus, appear that the submission of Mr. It would, thus, appear that the submission of Mr. Roy Barman that once the name is included in the list, the promotion is automatic, is not at all correct. If a person in the list is found to be guilty of gross misconduct or inefficiency or indiscretion, the competent authority may form an opinion whether such person is fit for promotion for the time being. In the case on hand, though the name of the Petitioner was in the list 'C for promotion to the post of Havildar and he successfully completed the training but he "failed" to obtain the minimum pass mark under head "service records" because of adverse entries in consideration of which the DPC recorded the remarks "failed under that head. 8. The next contention of Mr. Roy Barman is that Section 10 of the Act provides for punishment in case of more heinous offences and desertion is such an offence for which punishment is imprisonment for life or with imprisonment for a term which may extend to fourteen years or with fine which may extend to three months pay or with fine to that extend in addition to such sentence of imprisonment for life or imprisonment for any term as aforesaid. His assertive argument is that according to the Respondents, the Petitioner deserted the very guard command of the rear store on 27.6.04, but for such desertion no punishment under Section 10 of the Act was imposed. Instead, a minor punishment of censure was awarded which was beyond the competence of the concerned Respondent. Controverting this submission, Mr. Chakraborty argues that the desertion from guard command of rear store was not considered to be desertion from the Rifles and no proceeding was drawn up for punishment under Section 10 of the Act relating to more heinous offences. In view of this submission, it may be noticed that Section 10 (f) provides for punishment when a member of the Rifles deserts it. The words used in the impugned communication or order of penalty is "desertion from guard common of rear store" which was considered to be a less heinous offence. In view of this submission, it may be noticed that Section 10 (f) provides for punishment when a member of the Rifles deserts it. The words used in the impugned communication or order of penalty is "desertion from guard common of rear store" which was considered to be a less heinous offence. Section 11 (m) provides that every member of the Rifles who absents himself without leave or without sufficient cause overstays leave granted to him shall be punished with imprisonment for term which may extend to one year or with fine which may extend to three-months' pay or with both. Similar punishment has been provided for a member of the Rifles who is guilty of any act or omission which, though not specified in this Act, is prejudicial to good order and discipline. Section 12 of the Act further provides that the Commandant or any other authority or officer as may be prescribed, may in lieu of, or in addition to, suspension or dismissal impose any one or more of the punishments including severe censure or censure for disobedience, neglect of duty or remissness. Section 12(1) of the Act provides as follows: 12. Minor punishments-(1) The Commandant or any other authority or officer as may be prescribed, may subject to any rules made under this Act, award in lieu of, or in addition to, suspension or dismissal, any one or more of the following punishments to any member of the Rifles whom he considers to be guilty of disobedience, neglect of duty of remissness in the discharge of any duty or other misconduct in his capacity as member of the Rifles, that is to say: (a) Reduction in rank; (b) Fine of any amount not exceeding one month's pay and allowances; (c) Confinement to quarters, or camp for a term not exceeding twenty eight days; (d) Confinement in the quarter guard for not more than twenty eight days, with or without punishment drill or extra guard, fatigue or other duty; (e) Removal from any office or distinction or special emoluments in the Rifles? (f) Severe censure or censure. It would, thus, appear that the punishment of censure or severe censure is within the discretion of the Commandant or any other authority in lieu of the punishments prescribed in Section 11. (f) Severe censure or censure. It would, thus, appear that the punishment of censure or severe censure is within the discretion of the Commandant or any other authority in lieu of the punishments prescribed in Section 11. In the case on hand, the Petitioner was found guilty of leaving the guard command of the rear store and overstaying leave for which he was punished under Section 12(f) of the Act for the offences under Section 10(m) and 10 (n). This Court finds it difficult to accept the submission that the punishment of censure or severe censure for deserting duty or overstaying leave is not in terms of the provisions of the Act or the rules framed thereunder. 9. As regards the procedure for awarding minor punishments, Sub-rules (1), (2) and (3) of Rule 39 of the Rules provides as follows: (1) These punishments shall be awarded by the Competent authority for petty cases of conduct and indiscipline, as far as possible, after hearing in the orderly room on the basis of an allegation report. (2) In orderly room the defaulter shall be informed of allegations against him and evidence available in support of these allegations and asked whether he pleads guilty or not. (3) In case the defaulter pleads guilty, the authority mentioned in Sub-rule (1) shall frame his findings in the case and pass such orders as it may deem fit. However, if the defaulter does not plead guilty, the witnesses in support of allegations shall be examined in presence of the defaulter, who may briefly cross-examine them as has been laid down in Sub-rule (4). The dispute that has been raised in the writ petition is that the Petitioner was not communicated at all that he was punished for overstay of the leave which was later sanctioned. As regards, the first punishment of censure for his desertion from the guard command duty in the rear store, it is on record that he made a statement admitting the guilt stating clearly that he had left the guard duty without informing anybody. Thus, his contention in the writ petition now that he went to his home as per advice of the Adjutant derives support from nowhere and it is bound to fall in view of his own statement. Thus, his contention in the writ petition now that he went to his home as per advice of the Adjutant derives support from nowhere and it is bound to fall in view of his own statement. As regards the second punishment for overstay of the leave, it is the specific contention of the Respondents that the Petitioner was placed before the Commandant for allegation of overstay under Section 11(m) of the Act, the charge was read over to him in the language he understood and he pleaded guilty. Thereafter, he was awarded censure for overstaying leave without permission. Regularisation of his leave later cannot be taken to have absolved him from the liability to be punished for overstaying the leave without prior permission. As in the orderly room the Petitioner had confessed that he was guilty the Commandant awarded the punishment of censure. This disputed fact cannot be examined by this Court which is not a court of facts and more so, the Petitioner acquiesced about this punishment for a considerable period and only when he was denied promotion, he filed the present writ petition taking a plea that he was unaware of the punishment so imposed. Thus, his grievance has arisen only when his promotion to the post of Havildar was put on hold due to his failure to obtain pass mark under the head "service records" and refusal of the DPC to recommend him for promotion on that ground alone. 10. It may further be noticed that though the Petitioner has prayed for quashing the order dated 5.6.96 (Annexure-A) and the communication dated 29.7.96 (Annexure-H), he has not assailed the order of first punishment of censure in April, 1994, second punishment in May, 1996 and third punishment in June, 1996. Even though the punishment for overstay of the leave is said to be in dispute as no statement of the Petitioner admitting the guilt is available on record, his punishment for desertion from guard command on the basis of his own statement admitting the guilt very much in on record. Even though the punishment for overstay of the leave is said to be in dispute as no statement of the Petitioner admitting the guilt is available on record, his punishment for desertion from guard command on the basis of his own statement admitting the guilt very much in on record. If after consideration of the overall service records, the DPC refused him to give pass marks, the writ court cannot interfere with the same as it is not longer res integra that a writ court does not have the expertise to assess the merit and qualities of a person in a particular service for promotion to a particular post. As regards the question of discrimination with one Arabinda Dutta, Havildar, the submission of Mr. Chakraborty on the basis of the contention made in the counter affidavit that the Petitioner cannot be said to be similarly situated if the period of five years of service under consideration for promotion is taken into account appears to be convincing and, therefore, this Court cannot take a view that there was any manner of discrimination on this count. 11. In view of the factual and legal position noted above, I am of the considered view that the minor penalty of censure recorded in the service record of the Petitioner cannot be said to be in violation of any provision of the Act or the Rules and the decision of the D.P.C. upon consideration of the service records not to recommend the Petitioner for promotion cannot be said to be illegal or arbitrary. 12. For these reasons, the impugned order of punishment as well as the decision of the DPC not to recommend the Petitioner for promotion do not call for any interference by this Court and for holding so, this writ petition is devoid of any merit. Consequently, the same is dismissed leaving the parties to bear their own cost. Petition dismissed