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2014 DIGILAW 169 (TRI)

Sudarsan Singh Sardar v. State of Tripura

2014-05-06

DEEPAK GUPTA, S.TALAPATRA

body2014
JUDGMENT S. Talapatra, J.:- The petitioner has been proceeded for committing misconduct in breach of Rule 21 of the Central Civil Services (Conduct) Rules, 1964 (for short, CCS (Conduct) Rules, 1964) read with Rule 11 of the Tripura State Rifles (Recruitment) Rules, 1984 (for short, TSR (Conduct) Rules, 1984) by the Memorandum dated 25.01.2003 (Annexure-P/2 to the writ petition). In breach of Rule 21 of the CCS (Conduct) Rules, 1964, the petitioner has allegedly married one Smt. Sukla Nath on 06.08.2002 having his wife, namely Smt. Gopa Devi Sardar (Chakma) living. The petitioner had disputed such allegations. As a result, the Disciplinary Authority had decided to inquire into the imputation of misconduct as slapped against the petitioner, by appointing one Inquiring Officer. Accordingly, Sri Jayanta Chakraborty, Assistant Commandant, 4th Battalion Tripura State Rifles (TSR) was appointed as the Inquiring Officer/Authority by the order dated 25.01.2003 (Annexure-P/3 to the writ petition). The said Inquiring Officer had conducted the proceeding and submitted the report to the Disciplinary Authority on 30.05.2003, holding that it has been conclusively proved beyond all doubts that the petitioner had entered into ’plural marriage’ keeping his first wife alive and thus has violated the provisions of Rule 21 of the CCS (Conduct) Rules, 1964 and Section 11 of the TSR (Conduct) Rules, 1984. 2. On purported examination of the Enquiry Report, the Disciplinary Authority, 4th Bn. TSR had passed the provisional order of dismissal of the petitioner on 06.07.2003. Concurring with the findings returned by the Inquiring Officer and proposing major punishment of dismissal of the petitioner from the service, the petitioner was afforded thirty days time to submit representation in his defence, if any. Thereafter, the impugned order of dismissal dated 01.11.2003 (Annexure-P/4 to the writ petition) has been passed by the Disciplinary Authority as the petitioner was found guilty of "plural marriage" in breach of Rule 21 of the CCS (Conduct) Rules, 1964. The petitioner, for gross violation of the principles of natural justice, has approached this court without taking recourse to other remedies. According to the petitioner, he has been denied reasonable opportunity to defend him. 3. After receipt of the complaint from the Tripura Commission for Women that the petitioner has contracted a second marriage and he has been denying the maintenance to his first wife, a preliminary inquiry was directed. Mr. L.S. Hrangkhawl, Asstt. Commandant, 4th Bn. According to the petitioner, he has been denied reasonable opportunity to defend him. 3. After receipt of the complaint from the Tripura Commission for Women that the petitioner has contracted a second marriage and he has been denying the maintenance to his first wife, a preliminary inquiry was directed. Mr. L.S. Hrangkhawl, Asstt. Commandant, 4th Bn. TSR had conducted the preliminary inquiry and submitted the report on 16.01.2003. But, the petitioner was never supplied with the copy of the said preliminary inquiry report with all its enclosures or the statements of the witnesses. One deed of the purported settlement arrived at by the petitioner and Smt. Gopa Devi Chakma, whom the petitioner had married, has been used against the petitioner. But, the copies of those materials were never cited as the documents to be relied on to substantiate the imputation of misconduct nor the copies were supplied to the petitioner. That apart, the petitioner has submitted that he was not allowed to cross-examine the witnesses in the course of inquiry. 4. The respondents by filing the reply have denied all such allegations as levelled by the petitioner. However, the respondents have admitted that there had been a preliminary inquiry against the petitioner by the order dated 14.11.2002. That inquiry had started on the basis of the allegations of Smt. Gopa Devi Chakma, wife of the petitioner on 08.11.2002. Smt. Gopa Devi Chakma had also filed another written complaint on 21.11.2002 and, on reference thereof, the Tripura State Commission For Women has brought the said misconduct to the knowledge of the Disciplinary Authority. When the Preliminary Inquiry Report was submitted on 16.01.2003, the allegations were found prima facie true and accordingly the memorandum containing the charges was issued to the petitioner. On 25.01.2003, Sri Jayanta Chakraborty, Assistant Commandant, 4th Bn. TSR was appointed as the Inquiring Officer and he has submitted his report on completion of the inquiry. On consideration thereof, the Disciplinary Authority had passed the impugned order of punishment dated 01.11.2003. The respondents have, however, emphatically contended that the petitioner was given all opportunities as per law in the proceeding and the petitioner was not in any way prejudiced by the action of the Inquiring Officer or the Disciplinary Authority. It is the petitioner who did not submit his written statement. The respondents have, however, emphatically contended that the petitioner was given all opportunities as per law in the proceeding and the petitioner was not in any way prejudiced by the action of the Inquiring Officer or the Disciplinary Authority. It is the petitioner who did not submit his written statement. Even though the petitioner has alleged that he was not given the opportunity of cross-examination, during examination of Sukla Nath and other witnesses, but the petitioner’s presence is discernible from his signature on the deposition sheet. The respondents have also admitted that in the representation filed by the petitioner in response to the provisional dismissal order dated 06.07.2003, he has acceded that he has married twice. Accordingly, after the impugned order of dismissal dated 01.11.2003 was passed the petitioner’s name was struck off from the roll of the 4th Bn. TSR w.e.f. 01.11.2003. According to the respondents, there is no infirmity or breach of rule of natural justice as alleged or otherwise. 5. Mr. B. Das, learned senior counsel appearing for the petitioner has submitted that it would be apparent from the preliminary statement recorded by the Inquiring Officer that the petitioner has denied the charge as brought against him and he had participated in the inquiry proceeding, but he was denied the valuable rights such as the right to cross-examine the witnesses as well as to inspect the documents those were supposed to be used against him by the Inquiring Officer. That apart, Mr. Das, learned senior counsel has submitted that the charge itself is unsustainable, inasmuch as, Section 11 of the TSR (Conduct) Rules, 1984 has no manner of application in regard to misconduct as that Rule provides the eligibility criteria for enrolment in the Tripura State Rifles. Rule 21 of the CCS (Conduct) Rules, 1964 has no manner of application so far the employees of the Government of Tripura are concerned. Rule 21 of the CCS (Conduct) Rules, 1964 provides that no Government servant shall enter into, or contract, marriage with a person having his spouse living or no Government servant, having his spouse living, shall enter into, or contract, a marriage with any person. In the premises, Mr. Rule 21 of the CCS (Conduct) Rules, 1964 provides that no Government servant shall enter into, or contract, marriage with a person having his spouse living or no Government servant, having his spouse living, shall enter into, or contract, a marriage with any person. In the premises, Mr. Das, learned senior counsel has submitted that all the orders based on the Inquiry Report, such as the provisional order of dismissal dated 06.07.2003, impugned order of dismissal dated 01.11.2003 alongwith the Inquiry Report, be interfered with by this court and the respondents be directed to reinstate the petitioner forthwith. 6. Appearing for the respondents, Mr. B. Datta, learned counsel has submitted that the respondents have produced the records and it would be apparent from the records that the petitioner was afforded with all opportunities of defence. 7. For purpose of appreciation, we have scrutinised the records and found that the Inquiring Officer has utilised the copy of the agreement submitted by the Tripura Commission For Women dated 10.02.2003, letter of the petitioner addressed to the In-charge D/Coy, 4th Bn. TSR, Preliminary Inquiry Report submitted by Mr. L.S. Hrangkhawl, Asstt. Commandant, 4th Bn. TSR alongwith its enclosures, Service Book of the petitioner as well as the complaint filed by Smt. Gopa Devi Sardar (Chakma) against the petitioner. But, those records/documents were not cited in the catalogue of documents by which the articles of charge framed against the petitioner were sought to be proved. While examining the deposition of Smt. Sukla Nath in the record, what has transpired, has immensely surprised us. It has been recorded by the Inquiring Officer as under: Read over and explained to the witness in the language she understands and admitted correct. The copy of the recording is handed over to the delinquent taking his signature. Even though the signature of the petitioner was taken on the deposition-sheet of the witness, namely Smt. Sukla Nath, but there is no record to have that the petitioner was asked to cross-examine the said witness or the other witnesses. In the same manner, the depositions of other witnesses were also recorded. 8. From the provisional dismissal order and from the impugned final dismissal order it does not appear that the admission of guilt of the petitioner in any way was taken into consideration by the Disciplinary Authority. In the same manner, the depositions of other witnesses were also recorded. 8. From the provisional dismissal order and from the impugned final dismissal order it does not appear that the admission of guilt of the petitioner in any way was taken into consideration by the Disciplinary Authority. The Disciplinary Authority rather has taken the provisional and the final decision of dismissing the petitioner from the service based on the Inquiry Report. As such, the premises that has been provided in the counter-affidavit filed by the respondents that since the petitioner has admitted of contracting the marriage while his spouse was living, no further material is required for holding him guilty of the charge. After having the provisional dismissal order, what the petitioner had represented, that cannot form the basis of finding of the guilt. Those may be taken as the explanation of certain circumstances or conduct of the petitioner for purpose of determining the proportionality of the penalty. Else the object of having the inquiry before imposing a major penalty would be given a go bye. 9. What is further surprising is that the irrelevant provisions of law have been referred to in the charge-sheet. While passing the provisional dismissal order or the final dismissal order, the Disciplinary Authority has corrected a part of the charge without any notice to the petitioner and held that the petitioner is guilty of contravening the provisions of Rule 21 of the CCS (Conduct) Rules, 1964. The Disciplinary Authority, while framing the charge has made it obscure by making reference to the irrelevant provisions of law. However, on examination, we do find that Rule 21 of the TCS (Conduct) Rules, 1988 is pari materia to Rule 21 of the CCS (Conduct) Rules, 1964 and for quoting a Rule wrongly or incorrectly, the charge cannot be interfered with. The crux of the charge as stated is that the petitioner had contracted a marriage during subsistence of his previous marriage, which act is definitely a misconduct within the meaning of Rule 21 of the TCS (Conduct) Rules, 1988. 10. On appreciating the records, this court is of the considered opinion that there had been serious breach of natural justice inasmuch as the petitioner has been deprived of reasonable opportunities to defend him. 10. On appreciating the records, this court is of the considered opinion that there had been serious breach of natural justice inasmuch as the petitioner has been deprived of reasonable opportunities to defend him. The petitioner was not given opportunity to cross-examine the witnesses in the inquiry proceeding and he was not supplied with the copies of the documents such as the preliminary inquiry report with all its enclosures and the statement of the witnesses. 11. Having held so, the impugned order of dismissal dated 01.11.2003 (Annexure-A/4 to the writ petition) and the Inquiry Report dated 30.05.2003 are interfered with and set aside. However, the respondents will be at liberty to recommence the disciplinary proceeding from the stage after the preliminary statement of the delinquent was recorded. Needless to say, all reasonable opportunities by satisfying the requirement of the principles of natural justice be afforded to the petitioner. The respondents would be at further liberty to re-frame the charge by purging the irrelevant provisions referred to in the Memorandum dated 25.01.2003 (Annexure-P/2 to the writ petition). The petitioner be reinstated in the service till the disciplinary proceeding is completed in consonance to the directions given herein. However, there shall be no direction as regards the payment of arrears of pay and allowances. Such payment shall remain subject to the outcome of the disciplinary proceeding, if any. If the respondents do not recommence the disciplinary proceeding from the day of placing the certified copy of this order to the respondent No. 2, the respondents shall pay the petitioner arrear of pay and allowances within 3(three) months therefrom. 12. With these observation and directions, this writ petition stands allowed to the extent as indicated. There shall be no order as to costs.