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2014 DIGILAW 175 (TRI)

State of Tripura v. Shib Chandra Debbarma

2014-05-07

DEEPAK GUPTA, S.C.DAS

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JUDGMENT Deepak Gupta; C.J.:- By means of this appeal, the State of Tripura has challenged the Judgment dated 27.01.2009 delivered by a learned Single Judge of the Agartala Bench whereby he allowed the writ petition filed by the respondent herein and quashed the order dated 28.11.2005 passed by the disciplinary authority. 2. Briefly stated the facts of the case are that at the relevant time the original writ petitioner was working as Executive Engineer and had been promoted to the post of Superintending Engineer in the State of Tripura. Disciplinary proceedings were initiated against him in respect of two charges. The first charge was that he had acquired homestead land, constructed residential building thereon and purchased a Maruti car without permission of the competent authority. The second charge was that he had submitted false property returns in respect of liquid assets including the homestead land and residential building as well as the Maruti car. 3. The inquiry officer vide his report dated 11.12.2003 held that both the charges were not proved against the writ petitioner. It would be pertinent to mention that in support of its allegations, the presenting officer at the stage of filing written arguments in the inquiry had relied upon certain documents which had not been relied upon at the earlier stage of the inquiry. These documents had not also been proved. The defence objected to the documents being read in the evidence since they had neither been proved nor produced at an earlier stage. The inquiry officer upheld the objection of the delinquent officer and did not take those documents into consideration and exonerated the officer. 4. The disciplinary authority, before whom the inquiry report was placed, on consideration of the inquiry report agreed and accepted the findings of the inquiry officer in respect of Article of Charge-I. However, in respect of Article of Charge-II, he held that the exoneration of the accused was based on the technical ground that some of the evidence had not been exhibited and therefore, he was prima facie of the view that the matter should be remitted to the inquiry officer for fresh inquiry in respect of Article of Charge-II. Notice was therefore, issued to the delinquent official (writ petitioner) on 28th November, 2005, relevant portion of which reads as follows:- WHEREAS, the Disciplinary Authority accepts the findings of the inquiring officer in respect of Article of charge-I but dis-agrees with the findings of Inquiry Officer in respect of the Article of charge-II vide Sub-Rule-2 of Rules-15 of CCS(CC & A) Rules, 1965 on the ground that the finding is based purely on the technical ground of non-exhibition of some documents cited in Annexure-III to the charge-sheeted and not on the basis of consideration of the documentary and oral evidences. The disciplinary authority, therefore, proposes to remit the case to the inquiring Authority for further inquiry on Article of charge-II. NOW THEREFORE, Sri S.C. Debbarma is given an opportunity of furnishing his representation, if any, against the above dis-agreement of the disciplinary authority in respect of Article of charge-II of the inquiring officer, within 15(fifteen) days from the date of receipt of this Memo. In case, no representation is received within the scheduled date it will be presumed that Sri S.C. Debbarma has nothing to say on this and further action will be taken ex-parte. 5. The writ petitioner filed a petition challenging this notice and the learned Single Judge quashed this notice virtually treating it to be an order. We are of the considered view that normally the Court should not entertain a writ petition against the issuance of a show cause notice because the noticee has the right to reply to the show cause notice and to take all objections in the reply to be filed in the notice. A "show cause notice" by its description itself means that it is a notice to show cause why some action should not be taken. The Court would only interfere when such show cause notice is totally without jurisdiction or where the show cause notice itself visits the noticee with penal consequences. That is not the case here. There were no penal consequences and the writ petitioner was issued notice to show cause why the matter may not be remitted to the inquiry officer. In all fairness, the petitioner should have approached the disciplinary authority, filed the reply and then contested the matter. That is not the case here. There were no penal consequences and the writ petitioner was issued notice to show cause why the matter may not be remitted to the inquiry officer. In all fairness, the petitioner should have approached the disciplinary authority, filed the reply and then contested the matter. Thereafter, if the disciplinary authority had still remitted the matter he may have been entitled to have approached the Court, but we are doubtful whether he could have been permitted to approach the Court at the stage of issuance of show cause notice itself. 6. However, much water has flown. The show cause notice was issued in the year 2005, set aside in the year 2009 and we are in the year 2014. The petitioner in the mean time has retired from service. From the charges leveled against the petitioner, especially charge No-II which is sought to be remitted we find that the only allegation against the petitioner was that there was some discrepancy in his property statement submitted by him. On perusal of the record, we find that the discrepancy is in respect of `90,000/- in cash and the fact that the purchase of the Maruti car is not reflected in the statement. Relevant portion of Rule 18 of the Tripura Civil Services(Conduct) Rules, 1988 reads as follows:- (2) No Government employee shall, except with the previous knowledge of the prescribed authority, acquire or dispose of any immovable property by lease, mortgage, purchase, sale, gift or otherwise either in his own name or in the name of any member of his family. Provided that the previous sanction of the prescribed authority shall be obtained by the Government employee if any such transaction is- (i) with a person having official dealings with the Government employee; or (ii) otherwise than through a regular or reputed dealer. (3) Where a Government employee enters into a transaction in respect of movable property either in his own name or in the name of the member of his family, he shall, within one month from the date of such transaction, report the same to the prescribed authority, if the value of such property exceeds(Rs. 2000/-) in the case of a Government employee holding any Class-I or Class-II post or (Rs. 1000/-) in the case of a Government employee holding any class III or Class IV post. 2000/-) in the case of a Government employee holding any Class-I or Class-II post or (Rs. 1000/-) in the case of a Government employee holding any class III or Class IV post. Provided that the previous sanction of the prescribed authority shall be obtained if any such transaction is- (i) with a person having official dealings with the Government employee; or (ii) Otherwise than through a regular or reputed dealer. 7. As far as immovable property is concerned, an officer governed by the rules is not required to seek prior permission, but he must, at least one month before acquiring or disposing of immovable property, inform the Government about his intention to do so. In case, he is to deal with the property with some person having official dealings with the Government with him or through a person, who is not a regular or reputed dealer, he is also required to take prior sanction of the Government. This clearly shows that no prior sanction is required otherwise, but still prior intimation of one month has to be given by the Government employee to the Government. 8. With regard to movable property, sub-rule(3) of Rule 18 provides that where the transaction is in respect of movable property, the employee shall within one month from the date of such transaction report the same to the prescribed authority if the value of the property exceeds `2,000/-. In this case, admittedly the writ petitioner had not apprised the Government within one month about the purchase of the car. No previous sanction is required when movable property is to be purchased. 9. The last allegation against the petitioner was that in the property return for the year 31.12.1995, he had shown his liquid cash assets at `1,64,676/- whereas in the property statement submitted by him on 02.07.1998, the same were shown as `2,54,676/-. The explanation given by the Government employee was that he had two life insurance policies in the name of himself and his wife and that he had received sum of `90,000/- i.e. `50,000/- for himself and `40,000/- to his wife on account of money back policy in the year 1995, but these were not reflected in the property statement. The explanation given by the Government employee was that he had two life insurance policies in the name of himself and his wife and that he had received sum of `90,000/- i.e. `50,000/- for himself and `40,000/- to his wife on account of money back policy in the year 1995, but these were not reflected in the property statement. At this stage, we may point out that it is not the case of the State that the petitioner was corrupt or that he had made the wrong statements to hide some income, which he had derived by illegal means. The charge sheet against the petitioner is technical in nature that he had not sought permission/given prior information/given subsequent information with regard to purchase of immovable and movable properties as required under the rules. 10. We have been informed that petitioner has since retired from service. The breach of the rule was technical in nature and the petitioner has said to face inquiry and undergo two rounds of litigation, which in our view are itself sufficient punishment for the technical breach of the rules. Therefore, though on legal issues, we do not agree with the learned Single Judge and we are clearly of the view that the learned Single Judge should not have entertained the writ petition and even if he felt that the notice was not proper he should have remanded the matter back to the disciplinary authority, but could not have set aside the inquiry proceedings themselves. However, keeping in view the fact that the original writ petitioner has retired, we do not interfere in the final result and direct that the inquiry proceedings shall remain closed.