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2008 DIGILAW 780 (GAU)

Nandan Dey v. State of Tripura

2008-11-11

BROJENDRA PRASAD KATAKEY

body2008
JUDGMENT B.P. Katakey, J. 1. The Petitioner who was a Rifleman under the 5th Bn. Tripura State Rifles by the present petition has challenged the order of his dismissal from service dated 7.3.2007. The Petitioner, while serving as such was served with a Charge Memo dated 8.11.2006 issued by the Commandant, 2nd Bn. Tripura State Rifles, the disciplinary authority, under Rule 14 of the CCS (CCA) Rules, 1965 ('the Rules'), levelling the charge of gross misconduct committed by him by allegedly submitting a false Class-VIII Pass Certificate from East Durjoy Nagar High School, Sadar at the time of his appointment as Rifleman on 4.1.1999 in Tripura State Rifles. Along with the charge memo, the list of documents to be relied upon and the list of witnesses to be examined by the disciplinary authority in support of the charge have also been furnished. The Petitioner, on receipt of the charge memo, submitted his reply on 19.11.2006 denying the charge leveled against him and praying for exonerating him from such charge. The disciplinary authority being not satisfied with the reply submitted by the Petitioner decided to hold a departmental proceeding against him into the said charge and accordingly, the Assistant Commandant has been appointed as enquiry officer, who conducted the departmental proceeding. On completion of such proceeding, the enquiry officer has submitted his report. Thereafter, the disciplinary authority vide communication dated 31.1.2007 informed the Petitioner about the proposed penalty of his dismissal from service, asking him to make representation against such proposed penalty. The Petitioner submitted his reply on 25.2.2007, basically contending that the enquiry was conducted in violation of the provisions of the rules; that he has not been given the defence assistance thereby depriving him to effectively defend himself in the proceeding; that he has not been furnished with the copies of the deposition of the witnesses, the copies of the documents relied upon by the Department in the enquiry proceeding and the report of the enquiry officer dated 29.1.2007, on the basis of which the disciplinary authority has provisionally taken the decision for dismissing him from service. The disciplinary authority thereafter vide order dated 7.3.2007 dismissed the Petitioner from service, which has been challenged in the present writ petition. 2. I have heard Mr. A.K. Bhowmick, learned senior Counsel for the Petitioner as well as Mr. D.C. Nath, learned State counsel appearing on behalf of the Respondents. 3. The disciplinary authority thereafter vide order dated 7.3.2007 dismissed the Petitioner from service, which has been challenged in the present writ petition. 2. I have heard Mr. A.K. Bhowmick, learned senior Counsel for the Petitioner as well as Mr. D.C. Nath, learned State counsel appearing on behalf of the Respondents. 3. The learned senior Counsel, referring to the provisions contained in Rule 15 of the rules, more particularly Sub-rule 2 and 2A thereof, has submitted that the disciplinary authority is duty bound under the rules to furnish the copy of the enquiry report submitted by the enquiry officer to the delinquent, so as to enable him to make representation against the finding recorded by him in such report and thereafter to deal with the points raised by the delinquent in the reply to be filed against such finding and also against the proposed penalty. In the instant case, according to Mr. Bhowmick, the report of the enquiry officer has not been furnished to the Petitioner and the disciplinary authority has also not dealt with the points raised by him in his representation dated 25.2.2007 against the proposed penalty as proposed vide communication dated 31.1.2007. It has been submitted that keeping in view the fact that the Petitioner is a. Rifleman, i.e., in the lowest strata of that organization and the enquiry having been conducted by an officer in the rank of Assistant Commandant, prejudice has been caused to the Petitioner in not furnishing the copy of the enquiry report as it is the case of the Petitioner all through that he has been denied with the reasonable opportunity of defending himself in the enquiry. It has further been submitted that in fact it is a case of no evidence at all and, therefore, the order of dismissal from service in any case cannot be sustained in law. 4. Mr. Nath, learned State counsel, referring to the averments in the affidavits-in-opposition filed, has submitted that the contention of the Petitioner that he has been denied with the reasonable opportunity of defending himself in the proceeding conducted against him is not at all correct as he was informed about his right of taking the defence assistance and in fact the Petitioner has declined to have any defence assistance. It has further been submitted that the department has examined the witnesses in presence of the delinquent which witnesses, however, have not been cross-examined by the Petitioner. It has further been submitted that the copies of the documents, which were relied upon in enquiry have also been furnished. According to Mr. Nath, there is absolutely no violation of the principles of natural justice in conducting the enquiry by the enquiry officer against the Petitioner Mr. Nath, however, fairly submits that in none of the affidavits-in-opposition filed on behalf of Respondents, there is denial relating to the contention of the Petitioner about non-furnishing of the enquiry report, Mr. Nath has failed to draw the attention of the court to any document reflecting that the copy of the enquiry report has been furnished to the Petitioner. 5. Rule 15 of the Rules provides the action, to be taken by the disciplinary authority on the enquiry report. Sub-rule (2) of Rule 15 of the Rules requires the disciplinary authority, where he is not himself the enquiry authority, to forward a copy of the report of the enquiry authority with its tentative reasons for disagreement, if any, with the finding of the enquiry officer on any article of charge to the government servant, giving him an opportunity to make written representation or submission to the disciplinary authority within 15 days, irrespective of whether the report is favour or not to the government servant. Even otherwise also such report is required to be furnished to the government servant concerned so as to enable him to make representation against the finding recorded by the enquiry officer in his report. However, to interfere with the disciplinary action taken, on the ground of non-furnishing such report and not affording opportunity to make such representation, the delinquent officer is required to demonstrate the prejudice caused to him; Sub-rule (2)(a) of the said Rules also requires the disciplinary authority to consider the representation, if any, submitted by the Govt. servant and record its finding before proceeding further in the matter as specified in Sub-rule (2) and (4) thereof. 6. In the instant case, as noticed above, the copy of the enquiry report submitted by the enquiry officer has not been furnished to the Petitioner. servant and record its finding before proceeding further in the matter as specified in Sub-rule (2) and (4) thereof. 6. In the instant case, as noticed above, the copy of the enquiry report submitted by the enquiry officer has not been furnished to the Petitioner. The Petitioner being a rifleman and the enquiry having been conducted by an officer in the rank of Assistant Commandant and it is being the allegation of the Petitioner that no reasonable opportunity has been given to him, non-supply of such enquiry report to the Petitioner, more particularly keeping in view the allegations levelled against him, in my view, caused prejudice to the Petitioner. It also appears from the order dated 7.3.2007 whereby and where under the Petitioner has been dismissed from service that the plea taken by the Petitioner in the representation dated 25.2.2007 in reply to the communication dated 31.1.2007 has not at all been considered by the disciplinary authority, which the disciplinary authority is duty bound to do in view of the provisions contained in Sub-rule (2)(a) of Rule 15 of the rules. 7. In view of the aforesaid position, I set aside the order dated 7.3.2007 and remit the matter to the disciplinary authority directing the said authority to furnish the copy of the enquiry report and to allow the Petitioner 15 days time thereafter, to make representation against the finding recorded by the enquiry officer in such report and thereafter to take a decision on such enquiry proceeding upon consideration of the contention raised by the Petitioner in the representation dated 25.2.2007 as well as the representation that may be filed by the Petitioner after receipt of the enquiry report submitted by the enquiry officer. The disciplinary authority, shall, in the event the Petitioner asked for it in writing within 10(ten) days from today, supply copy of the deposition of witnesses as well as of the documents which have been relied upon in such enquiry. The entire process is directed to be completed within a period of 3 months from the date of furnishing the copy of the enquiry report to the Petitioner. 8. It is needless to say that in the event the Petitioner is aggrieved by any action that may be taken by the disciplinary authority, he may prefer appeal before the departmental authority as required under the rules and, thereafter, if still aggrieved, may approach this Court. 8. It is needless to say that in the event the Petitioner is aggrieved by any action that may be taken by the disciplinary authority, he may prefer appeal before the departmental authority as required under the rules and, thereafter, if still aggrieved, may approach this Court. 9. The writ petition stands allowed to the extent indicated above. 10. No costs. Petition allowed