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2014 DIGILAW 188 (TRI)

Pinaki Samanta v. State of Tripura

2014-05-27

S.TALAPATRA

body2014
JUDGMENT S. Talapatra, J.:- The petitioner while functioning as the Assistant Commandant, TSR, 9th Bn., was detained in a criminal case being Ompi PS Case No. 09 of 2008 and he was detained in the custody on 02.04.2008 and that continued for a period exceeding 48 hours. Having referred to that detention, the petitioner was placed under suspension in terms of Rule 10(2) of the CCS (CCA) Rules, 1965 by the order dated 04.04.2008, Annexure-P/1 to the writ petition. The petitioner was released on bail on 30.05.2008. Thereafter, the Deputy Inspector General of Police by an order dated 15.06.2008, Annexure-P/2 to the writ petition, has observed as under: The Headquarters of Shri Samanta will be at Agartala as per G.A. (P & T) Department order No. F.35(17)-GA(P & T)/98 dated 04/04/2008. He has been asked to report to the DIGP, AP (Adm. & Trg), Tripura, A.D. Nagar where he will give his attendance. Shri Samanta has further been asked not to leave the Headquarters without obtaining prior permission from the commissioner & Secretary, GA (P & T) Dept. Govt. of Tripura. 2. By another order dated 17.06.2008, the petitioner was asked to give his daily attendance in the Office of the Dy. Inspector General of Police, AP (Adm. & Trg), Tripura, Agartala and for that purpose a new attendance register was opened. The petitioner made a representation on 19.08.2008 to express his dismay by the arrangement made by the Dy. Inspector General of Police, AP (Adm. & Trg), Tripura, Agartala and asked for paying the duty pay w.e.f. 05.06.2008 as he was attending the duty in terms of those orders. By the said representation dated 19.08.2008, Annexure-P/3 to the writ petition, he further asked for clarification to that whether he was still under suspension or not. However, on 09.02.2009 the petitioner made a prayer for review of the subsistence allowance and also for early disposal of the issue raised by him as regards his attendance and payment of the duty pay. The said representation dated 09.02.2009 was followed by another representation dated 17.03.2009, Annexure-P/4 to the writ petition, whereby the petitioner had firmly asked for revoking the order of suspension in terms of the judgment and order dated 04.03.2009 delivered in GR Case No. 41 of 2008 whereby the petitioner was acquitted from the charge levelled against him in the said criminal case. Since the petitioner did not receive any response, he submitted a fresh representation on 03.06.2009 for enhancement of his subsistence allowance in terms of FR 53(1)(i). 3. There is no dispute that the petitioner was acquitted from the charge by the judgment and order dated 04.03.2009 delivered in GR Case No. 41 of 2008 by the Sub-Divisional Judicial Magistrate, Amarpur, South Tripura holding that: In view of the above perspective, I have no hesitation in holding that the prosecution has totally failed to prove their case beyond reasonable doubt. Both the accused persons are found not guilty for the charges framed against them and therefore they are liable to be acquitted from the charges framed against them at once. 4. The State had questioned that judgment and order of acquittal by filing an appeal being Criminal Appeal No. 02(2) of 2009 in the Court of the Sessions Judge, South Tripura, Udaipur but the said appeal was also dismissed and the appellate court has exonerated the petitioner totally. The reasons that is borne in the finding is extracted hereunder: There is not an iota of evidence that both the accused respondents had trespassed into the house of PW-1. The statements of PW-8 & PW-10, who had not been arrayed as accused in this case should face trial in the instant case along with both the respondents. Plea of both PW-8 & PW-10 is that they only obliged the instruction of their superior is not tenable in law. 5. The said judgment and order dated 24.09.2009 passed in the said appeal has been allowed to reach its finality as the respondents did not carry out any further action against the said judgment and order. The petitioner had submitted a series of representations dated 01.10.2009, 21.10.2009, 29.10.2009, 04.03.2010 and 27.03.2010 for revocation of the order of suspension, to release the duty pay and regularising the period under suspension etc. but no positive result whatsoever has yielded. Finally, by the order dated 30.09.2010, Annexure-P/10 to the writ petition, the order of suspension dated 04.04.2008 was revoked by the competent authority. Be that as it may, before the revocation of the order of suspension one meeting of the selection committee was held on 02.02.2010 for consideration for promotion to the post of TPS Gr. I, (selection grade) from the eligible Gr. II TPS Officers. Be that as it may, before the revocation of the order of suspension one meeting of the selection committee was held on 02.02.2010 for consideration for promotion to the post of TPS Gr. I, (selection grade) from the eligible Gr. II TPS Officers. The junior officers of the petitioner in the category of the SC officers namely Shri Timir Das (the respondent No. 6), Shri Ananta Das (the respondent No. 10), Shri Anup Kumar Das (the respondent No. 15) and Shri Haripada Das (the respondent No. 11) were considered for the said post but the petitioner was not considered for recommendation as he was reeling under the order of suspension. From the copy of the Minutes of the DPC as appended to the writ petition, Annexure-P/7 to the writ petition, it appears that Shri Timir Das (the respondent No. 6) was recommended for promotion and the case of the petitioner had been kept in a sealed cover. 6. By the Notification dated 19.02.2010, Annexure-P/7 to the writ petition, the said respondent No. 6 was appointed in the TPS Gr. I (Selection Grade) w.e.f. 19.02.2010. Again on 22.07.2010 another selection committee meeting was held for considering the promotion of TPS Gr. II officers to the post of TPS Gr. I (Selection Grade). The selection committee considered the said Shri Ananta Das (the respondent No. 10), Shri Anup Kumar Das (the respondent No. 15), Shri Haripada Das (the respondent No. 11) and Shri Nalini Ranjan Das (the respondent No. 14), but the petitioner’s name was again not considered for recommendation for his being under suspension by the selection committee. The petitioner’s juniors namely Shri Ananta Das (SC) and Shri Haripada Das (SC) were recommended for appointment against the UR vacancy whereas officer much junior to the petitioner, namely Shri Nalini Ranjan Das (SC) was recommended against the SC vacancy. However, the sealed cover of the petitioner had been allowed to be continued and one post in the category of the SC officers kept vacant. 7. By the Notification dated 02.08.2008, Shri Ananta Das (SC), Shri Haripada Das (SC) and Shri Nalini Ranjan Das (SC) along with other junior officers were appointed in the TPS Gr. I (Selection Grade) on promotion on regular basis. 7. By the Notification dated 02.08.2008, Shri Ananta Das (SC), Shri Haripada Das (SC) and Shri Nalini Ranjan Das (SC) along with other junior officers were appointed in the TPS Gr. I (Selection Grade) on promotion on regular basis. After the order of suspension was revoked, the petitioner had submitted a representation on 18.12.2010, Annexure-P/11 to the writ petition, for regularisation of his period of suspension but no such step had been taken by the official respondents. On 15.03.2011, 15.06.2011, 04.04.2011, 27.06.2011 and 16.01.2011 the petitioner had submitted representations for regularisation of his period of suspension and for consideration of his promotion to the post of the TPS Gr. I (Selection Grade) from the date on which his junior was first promoted, however without any yield. 8. The petitioner was also implicated in another case along with some other police personnel on allegation of fake encounter with the extremists in Champahawer PS Case No. 10 of 2007 under sections 302/34 of the IPC. From the same occurrence another case was registered by the police being Ompi PS Case No. 09 of 2008 under Sections 148/149/353/307 of the IPC and 27 of the Arms Act and Section 5 of the Exclusive Substance Act. The case against the petitioner was also chargesheeted and the petitioner after a full fledged trial was acquitted from the said charge by the judgment and order of acquittal dated 05.06.2012 delivered in ST 51(WT/K) of 2011 by the Addl. Sessions Judge, West Tripura, Khowai. The petitioner had brought the said development to the notice of the competent authority. Despite that while the selection committee was convened again for considering the promotion to the post of TPS Gr. I (Selection Grade) on 18.06.2012, the petitioner’s case was not considered on the purported ground of pending of a disciplinary proceeding and his case was again kept in a sealed cover and for that purpose one post was kept vacant for him till finalisation of the disciplinary proceeding. Even there is no dispute that a disciplinary proceeding was initiated by the Memorandum dated 25.10.2010, Annexure-P/17 to the writ petition, in the perspective of the allegations made in the Ompi PS Case No. 09 of 2008. As already stated, the petitioner was acquitted from those charges where the observation was made that there was no iota of evidence against the petitioner. As already stated, the petitioner was acquitted from those charges where the observation was made that there was no iota of evidence against the petitioner. The petitioner has also filed a written statement of defence on 10.11.2010 denying the charges of mis-conduct and contending that in view of the judgment of the trial court dated 04.03.2009 and of the Sessions Court dated 24.09.2009 the departmental proceeding is not tenable in law. Such objection raised by the petitioner having waived by the disciplinary authority, the inquiry was directed and till now, the said inquiry is incomplete, despite the Memorandum dated 28.12.2010 whereby the inquiry is required to be completed within six months. The petitioner has also expressed his grievances for delay in the proceeding. 9. The petitioner has approached this Court for quashing the finding recorded by the third selection committee dated 18.06.2012 which has observed that for pending of a disciplinary proceeding, the petitioner’s case could not be considered and his case shall remain in the sealed cover. The petitioner has urged for quashing the recommendation dated 22.10.2012 made by the selection committee. His further prayer is that his period of suspension has to be treated as spent on duty for all purposes. The petitioner also has urged for quashing the Memorandum of charges dated 25.10.2010, Annexure-P/17 to the writ petition. By filing the counter affidavit the official respondents has categorically stated that the suspension order of the petitioner was not revoked at the material period. The suspension order of the petitioner was revoked on 30.09.2010 and he was not cleared by the vigilance. However, the case of the petitioner has been kept under sealed cover. One post of TPS Gr. I (Selection Grade) has been kept vacant for the purpose that on conclusion of the departmental proceeding, if the petitioner is fully exonerated and if he is found suitable, then his promotion will be considered w.e.f. the date on which his junior was promoted. 10. Mr. Deb, learned counsel for the petitioner has submitted that after the petitioner was acquitted and the appeal filed by the State was dismissed by the judgment and order dated 24.09.2009 with observation that there is no iota of evidence against the petitioner his order of suspension ought to have been revoked with immediacy from 24.09.2009. But that has not been done. But that has not been done. As a result, when the selection committee met on 02.02.2012, only for continuation of suspension, the petitioner’s case was not considered for promotion to the TPS Gr. I (Selection Grade). It was the bounden duty of the respondents to revoke the suspension order when an employee is acquitted from the criminal case for involvement in which he was placed under suspension in terms of the provisions of Rule 10(2) of the CCS(CCA) Rules, 1965. Thus, Mr. Deb, learned counsel for the petitioner has contended further that non-consideration of the case of the petitioner by the selection committee on 02.02.2012 is the outcome of arbitrary action of the official respondents. He has submitted that by taking into cognizance of the orders dated 15.06.2008 and 17.06.2008, Annexure-P/2 to the writ petition, inasmuch as when someone under suspension is asked to attend his office it amounts to revocation of the suspension order as no one can be asked unless specifically provided in the rules to attend the duty and at the same time to reel under the suspension. He has referred to the office Memorandum dated 06.04.1983 issued by the Ministry of Home Affairs whereby it has been communicated that in the judgment of Andhra Pradesh High Court in the case of Zonal Manager, Food Corporation of India and others Vs. Khaleel Ahmed Siddiqui it has been held that during the period of suspension, a direction to the employee to attend the office and mark attendance at the office daily during the working hours is illegal. A synopsis of the said case as decided by the Andhra Pradesh High Court in Writ Appeal Nos. 687 to 691 of 1981 dated 23.11.1981 has also been placed before this Court for consideration. 11. Mr. Deb, learned counsel for the petitioner has referred to the provisions of FR 54(b) (3). Babu Lal vs. State of Haryana and others reported in (1991) 2 SCC 335 relied by Mr. Deb, learned counsel is very relevant in the context. In Babu Lal it has been considered by the apex court whether the period of suspension in view of the criminal proceeding which has ultimately ended with the acquittal is liable to be regularised or not. Deb, learned counsel is very relevant in the context. In Babu Lal it has been considered by the apex court whether the period of suspension in view of the criminal proceeding which has ultimately ended with the acquittal is liable to be regularised or not. The apex court in Babu Lal has observed that if the person who has been placed under suspension for pendency of the criminal proceeding and he is acquitted from the charge that the person shall be paid all his emoluments from the date of the order of his suspension till the order of revocation of suspension order or reinstatement is made. From the records it does not appear that the official respondents have ever considered of regularising the period of suspension and as such the said action is entirely arbitrary in contrast to the provisions of Article 14 of the Constitution of India. Mr. Deb, learned counsel for the petitioner has further contended having reliance on Delhi Jal Board vs. Mahinder Singh reported in (2000) 7 SCC 210 that once the first disciplinary inquiry resulted in favour of the petitioner, the benefit of the finding of the DPC in the sealed cover should be given to the writ petitioner notwithstanding the pendency of a second inquiry. In Delhi Jal Board it has been observed in the context that because of pendency of certain charges, the findings of the DPC were kept in a sealed cover, the petitioner is entitled to the benefit of the findings of the Selection, if that is in his favour if the disciplinary enquiry has ended in his favour, notwithstanding the fact that by that time some other inquiry might have been pending against him. It has been observed thus: The right to be considered by the Departmental Promotion Committee is a fundamental right guaranteed under Article 16 of the Constitution of India, provided a person is eligible and is in the zone of consideration. The sealed cover procedure permits the question of his promotion to be kept in abeyance till the result of any pending disciplinary inquiry. But the findings of the Disciplinary Enquiry exonerating the officer would have to be given effect to as they obviously relate back to the date on which the charges are framed. If the disciplinary inquiry ended in his favour, it is as if the officer had not been subjected to any Disciplinary Enquiry. But the findings of the Disciplinary Enquiry exonerating the officer would have to be given effect to as they obviously relate back to the date on which the charges are framed. If the disciplinary inquiry ended in his favour, it is as if the officer had not been subjected to any Disciplinary Enquiry. The sealed cover procedure was envisaged under the rules to give benefit of any assessment made by the Departmental Promotion Committee in favour of such an officer, if he had been found fit for promotion and if he was later exonerated in the disciplinary inquiry which was pending at the time when the DPC met. The mere fact that by the time the disciplinary proceedings in the first inquiry ended in his favour and by the time the sealed was opened to give effect to it, another departmental enquiry was started by the department, would not, in our view, come in the way of giving him the benefit of the assessment by the first Departmental Promotion Committee in his favour in the anterior selection. There is, therefore, no question of referring the matter to a larger Bench. 12. Having scaffolded on the principles from Delhi Jal Board, Mr. Deb, learned counsel for the petitioner has submitted that on 02.02.2012 when the selection of the petitioner was kept in the sealed cover by the selection board, the barrier was the continuation of suspension and the same was also the context when the selection committee kept the case of the petitioner under the sealed cover on 22.07.2010. As such, on revocation of the suspension order the official respondents were bound to open the sealed cover to give effect to the recommendation of the selection committee notwithstanding that subsequently a fresh disciplinary proceeding was initiated against the petitioner by the impugned Memorandum dated 25.10.2010. Mr. Deb, learned counsel has further submitted that when the meetings of the first two selection committees were convened there was no departmental inquiry proceeding pending against the petitioner and as such when the barrier obstructing the recommendation of the petitioner was lifted, the petitioner’s sealed cover ought to have been opened notwithstanding the subsequent initiation of the disciplinary proceeding. Mr. Deb, learned counsel has further submitted that when the meetings of the first two selection committees were convened there was no departmental inquiry proceeding pending against the petitioner and as such when the barrier obstructing the recommendation of the petitioner was lifted, the petitioner’s sealed cover ought to have been opened notwithstanding the subsequent initiation of the disciplinary proceeding. Mr. Deb, learned counsel for the petitioner has referred to a decision of the apex court in Bank of India and another vs. Degala Suryanarayana reported in (1999) 5 SCC 762 but that decision has no manner of application in the present context. Even though the Memorandum dated 25.10.2010 has been challenged but after some deliberations Mr. Deb, learned counsel for the petitioner did not continue with the challenge on making a statement that as expeditiously as possible, having regard to the context of the departmental proceeding, the said proceeding shall come to an end. 13. From the other side, Ms. Sharma Lodh, learned Addl. GA appearing for the official respondents has submitted that since the departmental proceeding vide Memorandum dated 25.10.2010 is still pending the sealed cover cannot be opened or the period of suspension cannot be regularised in the manner as prayed by the petitioner. 14. On close scrutiny of the records, what has surfaced is that the suspension of the petitioner was made by the order dated 04.04.2008 under Sub-Rule 2 of Rule 10 of the CCS(CCA) Rules, 1965 as a criminal case was under investigation and the petitioner was detained in the custody for more than 48 hours. The said suspension was revoked by the order dated 30.09.2010 and only thereafter the disciplinary proceeding has been initiated by the memorandum of charges dated 25.10.2010. The suspension has ex facie no link with the departmental proceeding that has been initiated by the memorandum dated 25.10.2010 even though the said departmental proceeding emanates from the same occurrence. It has been also observed that the period of suspension of the petitioner has not been regularised as yet. What Ms. Sharma Lodh, learned Addl. GA has submitted for not regularising the period of suspension is entirely unacceptable to this Court. It has been also observed that the period of suspension of the petitioner has not been regularised as yet. What Ms. Sharma Lodh, learned Addl. GA has submitted for not regularising the period of suspension is entirely unacceptable to this Court. The principle as laid down in Delhi Jal Board, this Court is of the considered view that with the revocation of the suspension order dated 30.09.2010 formally the respondents ought to have opened the sealed cover to consider the recommendation as made by the selection committee convened on 02.02.2012 and if required to open the sealed cover for considering the recommendation made by the selection committee convened on 02.07.2012 or thereafter by not acting accordingly. Those respondents have embarked on the arbitrariness. The contention of the petitioner that asking him to attend the office by marking attendance at the special attendance register during his suspension the respondents has committed illegality is accepted by this Court. But the court cannot give any relief to the petitioner inasmuch as the said direction of the official respondents was not challenged by the petitioner. Rather, he has complied the said direction. It is further clarified that even if it is held that during the period of suspension direction to the employee to attend office and mark attendance at the office daily during the working hours is illegal, but the competent authority can direct such employee not to leave his station without permission. 15. Hence, the official respondents are directed to open the sealed covers kept by the selection committee held on 02.02.2012 and if required that was so kept on 22.07.2012 within a period of one month from today and to act in accordance with the recommendation. It has been further directed that the respondent shall release the full pay and allowances of the petitioner for the period of suspension and release the arrear pay and allowances on deducting the subsistence allowance that has been paid to the petitioner inasmuch as the petitioner has been acquitted from the criminal charge and accordingly he is entitled to get the full pay and allowances for the period of suspension in accordance with Sub-Rule 3 of FR 54(B). On considering the nature of the charges levelled against the petitioner vide Memorandum dated 25.10.2010, Annexure-P/17 to the writ petition, the official respondents are further directed to complete the disciplinary proceeding as expeditiously as possible but by any rate, before 31.12.2014. Having held so the writ petition stands allowed to the extent as indicated above. However, in the facts and circumstances of the case there shall be no order as to costs.