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2014 DIGILAW 230 (TRI)

Judhistir Debnath v. State of Tripura

2014-06-20

S.TALAPATRA

body2014
JUDGMENT S. Talapatra, J. 1. Heard Mr. D. Chakraborty, learned counsel appearing for the petitioners as well as Mr. S. Chakraborty, learned Addl. Govt. Advocate appearing for the respondents. 2. By means of this writ petition, the discharge orders dated 17.04.2002, Annexure-B series to the writ petition, have been challenged. By the respective discharge orders, the petitioners had been discharged from the services of the Tripura State Rifles (TSR) as the Riflemen, in terms of Rule 15(1) of the Tripura State Rifles (Recruitment) Rules, 1984, on the premises that their retention in the service is 'detrimental' to the Tripura State Rifles. 3. Being aggrieved by the impugned discharge orders, the petitioners filed respective appeals before the Deputy Inspector General of Police (AP), Annexure-C series to the writ petition, in terms of Rule 46 of the Tripura State Rifles (Discipline, Control, Service Conditions etc.) Rules, 1986, questioning that the misconduct that was alleged against them in the impugned discharge orders were not enquired into by the Company Commander and the said report of enquiry was made the foundation of passing the impugned discharge orders. Initially, the appeals filed by the petitioners were not disposed of by the appellate authority, which promoted them to file some applications for disposal of their appeals in accordance with the law. Those applications for expeditious disposal of the appeals since did not bring any positive yield, the petitioners had jointly filed a writ petition before the Agartala Bench of the Gauhati High Court, being W.P.(C) No. 283/2002. The said writ petition was disposed of by the order dated 27.09.2007, the operative part of which reads as under: In view of the aforesaid submissions of the learned counsel for the parties, this writ petition is disposed of with a direction that the appellate authority, namely, Deputy Inspector General of Police (AP), Govt. of Tripura, Agartala shall dispose of the appeals filed by the petitioners dated 6.5.2002 on merit as expeditiously as possible and at any rate not later than six weeks from the date of receipt of the certified copy of this order. The petitioners shall furnish a certified copy of this order along with the copies of the appeals so filed by them and on receipt of the same, the respondent authority shall comply with the aforesaid direction by passing a speaking order. The petitioners shall furnish a certified copy of this order along with the copies of the appeals so filed by them and on receipt of the same, the respondent authority shall comply with the aforesaid direction by passing a speaking order. It is needless to say that in the event of any adverse order, the petitioners would be entitled to pursue the necessary legal remedies as may be available to them. 4. Thereafter, the appellate authority, by the uniform order dated 02.12.2007, Annexure-F series to the writ petition, had dismissed the respective appeals filed by the petitioners, by observing as under: 04. The delinquent *........... raised the following points in his appeal petition dated 6.5.02 and stating inter alia that; (a) the allegation brought against him is baseless, concocted and fabricated and he did not commit such offence; (b) reasonable opportunity was not given to him before issue of discharge order. It is evident from the allegation report submitted by Shri B.P. Chakraborty, Asstt. Comdt. As well as from the written statement submitted by Nb/Sub Narendra Debbarma, Nb/Sub Tapan Das and Hailder Swapan Muhari, there is no doubt that delinquent *........... took away *........... with ulterior motive. So the allegation brought against him was proved beyond doubt. In the instant case, the individual was called in orderly room of the disciplinary authority on receipt of allegation report of above-mentioned officer and in the said orderly room, the delinquent confessed his guilt. Therefore, it is not a fact that the delinquent was not given opportunity before issue of discharge order. 05. Theft of live ammunition of the force with ulterior motive is a serious misconduct by a member of regimental force like TSR. 06. Tripura State Rifles is a disciplined force and all the members of these Rifles are governed as per TSR (Act) 1983, TSR (Recruitment) Rules 1984 and TSR (DCSC etc.) 1986 from the date of their appointment. 07. The act of *........... 06. Tripura State Rifles is a disciplined force and all the members of these Rifles are governed as per TSR (Act) 1983, TSR (Recruitment) Rules 1984 and TSR (DCSC etc.) 1986 from the date of their appointment. 07. The act of *........... is pre-judicial to good order and discipline and his offence attracts the provision of rule 15 of TSR (Recruitment) Rules 1984 in which it is clearly mentioned that a member of the Rifles shall be on probation for the period of 03 years during which he shall be liable to discharge at any time on one month notice or on payment of one month's salary in lieu of the same under the order of the appointing authority. In accordance with the provision of rule 15 of TSR (Recruitment) Rules 1984, he was paid one month's advance salary in lieu of one month's notice. 5. Since the appellate authority did not interfere with the impugned discharge orders on the grounds as assigned in the memorandum of appeals, the petitioners have approached this court by filing this writ petition. 6. Mr. D. Chakraborty, learned counsel appearing for the petitioners has submitted that against all the four petitioners, identical orders of discharge by the appointing authority as well as identical orders by the appellate authority have been passed and there is no variation in the factual aspects of the matter. On consideration thereof, the petitioners have preferred a common petition for having the reliefs as prayed in this writ petition. Mr. Chakraborty, learned counsel has drawn attention of this court to the observation of the appellate authority as made in the appellate orders dated 02.12.2007 which reads as under: On receipt of the allegation report of the above-mentioned officer and in the said orderly room, the delinquent confessed his guilt. Even the appellate authority has observed that: Therefore, it is not a fact that the delinquent was not given opportunity before issue of discharge order. 7. What has surfaced from those observations is that the theft of live cartridges with ulterior motive is a serious misconduct by a member of regimented force like TSR and, in unambiguous words, it has been stated that only for that misconduct the petitioners were discharged from their services. As such, motive was to punish on the foundation of the alleged misconduct. Thus, it is not a discharge simpliciter. As such, motive was to punish on the foundation of the alleged misconduct. Thus, it is not a discharge simpliciter. As such, without affording any opportunity to defend themselves, the petitioners have been discharged by the veiled discharge orders. Those are absolutely arbitrary and in contrast to the principles of natural justice. To support his contentions, Mr. Chakraborty, learned counsel appearing for the petitioners has relied on the few decision of the apex court. 8. In Anoop Jaiswal Vs. Government of India & Anr., reported in AIR 1984 SC 636 , the apex court has enunciated the law as under: 12. It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the Court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee. 13. In the instant case, the period of probation had not yet been over. The impugned order of discharge was passed in the middle of the probationary period. An explanation was called for from the appellant regarding the alleged act of indiscipline, namely, arriving late at the Gymnasium and acting as the ring leaders on the occasion and his explanation was obtained. Similar were called for from other probationers and enquiries were made behind the back of the appellant, only the case of the appellant was dealt with severely in the end. The cases of other probationers who were also considered to be ring leaders were not seriously taken note of. Even though the order of discharge may be non-committal, it cannot stand alone. Though the noting in the file of the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is the basis or foundation for the order should be read alongwith the order for the purpose of determining its true character. Though the noting in the file of the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is the basis or foundation for the order should be read alongwith the order for the purpose of determining its true character. If on reading the two together the Court reaches the conclusion that the alleged act of misconduct was cause of the order and that but for that incident it should been passed then it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided in Article 311(2) of the Constitution. [Emphasis supplied] 9. In Jarnail Singh & Ors. Vs. State of Punjab & Ors., reported in AIR 1986 SC 1626 , the apex court has re-stated the law as enunciated in Anoop Jaiswal. For purpose of reference, the passages from Jarnail Singh as relevant to the context are reproduced hereunder: 31. In the instant case as we have stated already hereinbefore that though the impugned order was made under the camouflage or cloak of an order of termination simpliciter according to the terms of the employment, yet considering the attendant circumstances which are the basis of the said order of termination, there is no iota of doubt in inferring that the order of termination had been made by way of punishment on the ground of misconduct and adverse entry in service record without affording any reasonable opportunity of hearing to the petitioners whose services are terminated and without complying with the mandatory procedure laid down in Article 311(2) of the Constitution of India. 32. The position is now well-settled on a conspicuous of the decisions referred to hereinbefore that the mere form of the order is not sufficient to hold that the order of termination was innocuous and the order of termination of the services of a probationer or of an ad-hoc appointee is a termination simpliciter in accordance with the terms of the appointment without attaching any stigma to the employee concerned. It is the substance of the order i.e. the attending circumstances as well as the basis of the order that have to be taken into consideration. It is the substance of the order i.e. the attending circumstances as well as the basis of the order that have to be taken into consideration. In other words, when an allegation is made by the employee assailing the order of termination as one based on misconduct, though couched in innocuous terms, it is incumbent on the court to lift the veil and to see the real circumstances as well as the basis and foundation of the order complained of. In other words, the Court, in such case, will lift the veil and will see whether the order was made on the ground of misconduct, inefficiency or not. In the instant case we have already referred to as well as quoted the relevant portions of the averments made on behalf of the State respondent in their several affidavits alleging serious misconduct against the petitioners and also the adverse entries in the service records of these petitioners, which were taken into consideration by the Departmental Selection Committee without giving them any opportunity of hearing and without following the procedure provided in Art. 311(2) of the Constitution of India, while considering the fitness and suitability of the appellants for the purpose of regularising their services in accordance with the Government Circular made in October, 1980. Thus the impugned orders terminating the services of the appellants on the ground that "the posts are no longer required" are made by way of punishment. 33. It also appears on a consideration of the averments made in paragraphs 7 and 8 of the Additional Affidavit sworn by one of the appellants Swinder Singh on August 8, 1984, which has not been controverted at all by the respondent, that the respondents though terminated the services of the petitioners on the ground that "these posts are no longer required" have retained and regularised the service of ad-hoc employees mentioned in paragraph 7 as well as ad-hoc Surveyors who were recruited later in the said post of Surveyors to the prejudice of the rights of the appellants, thereby violating the salutary principle of equality and non-arbitrariness and want of discrimination and as enshrined in Articles 14 and 16 of the Constitution of India. It is pertinent to refer here to the decision rendered by this Court in Sughar Singh's case AIR 1974 SC 423 ) where it had been held that the order of reversion reverting the respondent from his officiating appointment to the post of Platoon Commander to the post of permanent Head Constable while retaining 200 other Head Constables who were junior to him in the officiating higher posts of Platoon Commanders was discriminatory and arbitrary being in contravention of the Arts. 14 and 16 of the Constitution. [Emphasis supplied] 10. On the aspect, whether a person on probation is entitled to the protection provided under Article 311(2) of the Constitution of India, Mr. Chakraborty, learned counsel appearing for the petitioners has referred the Constitutional Bench decision of the apex court in Ishwar Chand Aggarwal Vs. State of Punjab etc., reported in AIR 1974 SC 2192 , where the apex court has enunciated the law as under: 79. The enquiry officer nominated by the Director of Vigilance recorded the statements of the witnesses behind the back of the appellant. The enquiry was to ascertain the truth of allegations of misconduct. Neither the report nor the statements recorded by the Enquiry Officer reached the appellant. The Enquiry Officer gave his finding on allegations of misconduct. The High Court accepted the report of the Enquiry Officer and wrote to the Government on 25 June, 1969 that in the light of the report the appellant was not a suitable person to be retained in service. The order of termination was because of the recommendations in the report. 80. The order of termination of the services of Ishwar Chand Agarwal is clearly by way of punishment in the facts and circumstances of the case. The High Court not only denied Ishwar Chand Agarwal the protection under Art. 311 but also denied itself the dignified control over the subordinate judiciary. The form of the order is not decisive as to whether the order is by way of punishment. Even an innocuously worded order terminating the service may in the facts and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311. In such a case the simplicity of the form of the order will not give any sanctity. Even an innocuously worded order terminating the service may in the facts and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311. In such a case the simplicity of the form of the order will not give any sanctity. That is exactly what has happened in the case of Ishwar Chand Agarwal. The Order of termination is illegal and must be set aside. [Emphasis supplied] 11. From the other side, Mr. S. Chakraborty, learned Addl. Govt. Advocate appearing for the respondents has stoutly submitted that even if some misconduct is referred innocuously in the discharge orders, it cannot be treated that the motive behind was to impose punishment on the petitioners. Mr. Chakraborty, learned Addl. Govt. Advocate, referring to the contents of the discharge orders, has categorically submitted that the conduct of the petitioners was of such nature that they had rendered themselves ineligible to be continued in the service. Accordingly, they have been discharged without any stigma and the orders of discharge simpliciter and, as such, it cannot be held that the respondents have taken a decision on the basis of the alleged foundation of misconduct. Mr. Chakraborty, learned Addl. Govt. Advocate has further submitted that Rule 15(1) of the Tripura State Rifles (Recruitment) Rules, 1984 sufficiently authorises the appointing authority to discharge the probationer during the period of probation with one month's salary in lieu of the notice given. In this case it would be apparent that the petitioners were given such notices. To buttress his submission, Mr. Chakraborty, learned Addl. Govt. Advocate has referred a decision of the apex court in Abhijit Gupta Vs. S.N.B. National Centre, Basic Services & Ors., reported in (2006) 4 SCC 469 , where the apex court had the occasion to examine certain stigmatic words in the discharge order and held that if the motive is not to treat the petitioner with malice or bias, the court may not interfere with the order of the termination simpliciter or discharge, whatever the case may be. For purpose of reference, the following passages from Abhijit Gupta are extracted. 14. The real test to be applied in a situation where an employee is removed by an innocuous order of termination is: Is he discharged as unsuitable or is he punished for his misconduct? For purpose of reference, the following passages from Abhijit Gupta are extracted. 14. The real test to be applied in a situation where an employee is removed by an innocuous order of termination is: Is he discharged as unsuitable or is he punished for his misconduct? In Allahabad Bank Officers' Assn. v. Allahabad Bank: (1996) 4 SCC 504 this Court was considering a challenge to a compulsory retirement and formulated a practical test to answer the question posed above. This Court (vide para 17) observed that if the order of compulsory removal from the service casts a stigma in the sense that it contains a statement casting aspersion on his conduct or his character, then it can be treated as an order of punishment but not if it merely amounts to highlighting the unsuitability of the employee. As pointed out in this judgment, expressions like "want of application", "lack of potential" and "found not dependable" when made in relation to the work of the employee would not be sufficient to attract the charge that they are stigmatic and intended to dismiss the employee from service. 15. The learned Counsel for the appellant, however, strongly contends that the "stigma" cast on the employee may not be confined to his personal character but may also affect his capacity to work. The test, learned Counsel for the appellant submitted, is that, if what is stated in the order of termination is read by a future employer, it prejudices the future employment of the employee. In the face of the law laid down in the judgment just referred, we are unable to accept this as the correct test. 16. In Ravindra Kumar Misra v. U.P. State Handloom Corpn. Ltd.: 1987 Supp SCC 739, this Court pointed out that in a large corporation administration is bound to be impersonal and in regard to public officers assessment of service has got to be in writing for purposes of record, though it cannot be assumed that such an assessment recorded and the order of termination made with reference to that record would automatically take a punitive character. [Emphasis supplied] 12. [Emphasis supplied] 12. What has surfaced from the records as placed with the writ petition and the counter-affidavit, that the petitioners were accused of stealing live cartridges and the enquiry was conducted behind their back and there is no record produced with the counter-affidavit that the petitioners were given any opportunity to defend them and, the said report without any amount of doubt was considered as the foundation to discharge the petitioner from the service. In this regard, a particular reference can be made to the appellate orders. 13. In Dipti Prakash Banerjee Vs. Satvendra Nath Bose National Centre for Basic Sciences, Calcutta & Ors., reported in AIR 1999 SC 983 , the apex court has observed as under: 38. On this point, therefore, we hold that the words amounting to 'stigma' need not be contained in the order of termination but may also be contained in an order or proceeding referred to in the order of termination or in an annexure thereto and would vitiate the order of termination. [Emphasis supplied] 14. From the impugned discharge orders, it appears that there was an enquiry regarding the allegation of theft of live ammunition. Even though it was observed by the appellate authority that the opportunity was given to the petitioners for defending themselves, unfortunately, no such record has not been produced before this court, as stated. 15. The Gauhati High Court in Tapas Lal Banik Vs. State of Tripura & Anr., reported in 2000 (2) GLT 351, has explained the words 'stigma' vis-à-vis the 'order of discharge'. Having referred to the precedent governing the field, in Tapas Lal Banik, it has been observed that: A "stigma" is something that detracts from the character or reputation of a person, a mark, sign etc. Webster's New World Dictionary. According to "The Legal Thesaurus" by Burton, "stigma" indicates blemish, defect, discharge, disrepute, imputation, mark of disgrace or shame. The Webster's Third New International Dictionary gives the meaning of "stigma" as a mark or level indicating a deviation from a norm. The Supreme Court in the case of State of Orissa v. Ram Narayan Das: AIR 1961 SC 177 , held that "unsatisfactory work and conduct" in the termination order, would not amount to stigma. In my view, in the instant case, the authority assessed the overall performance of the petitioner/incumbent at the time of discharge as "not satisfactory". The Supreme Court in the case of State of Orissa v. Ram Narayan Das: AIR 1961 SC 177 , held that "unsatisfactory work and conduct" in the termination order, would not amount to stigma. In my view, in the instant case, the authority assessed the overall performance of the petitioner/incumbent at the time of discharge as "not satisfactory". The aforesaid remark in the impugned order cannot thus be faulted as "stigmatic" which may affect the petitioner in future employment. 16. In the present petition, what has surfaced clearly is that the petitioners' misconduct is related to theft of live cartridges and this Court can hold in no uncertain terms that by making the said misconduct as the foundation of the discharge, it has been recorded in the impugned orders that the discharge is for 'offence committed' by the petitioners and their retention in the service is 'detrimental to the Rifles' for that misconduct. So, the impugned discharge orders are of the punitive nature and have been passed without affording any opportunity as provided under Article 311(2) of the Constitution of India and, hence, the impugned discharge orders are absolutely arbitrary and unsustainable in law. 17. In the result, the impugned discharge orders, Annexure-B series to the writ petition, and the appellate orders, Annexure-F series to the writ petition, are set aside and quashed. This order shall not debar the respondents from holding a regular enquiry into the misconduct as reflected in the discharge orders and to take thereafter appropriate action in accordance with law. The petitioners be taken back as the probationers in the services forthwith and for that purpose, the petitioners shall furnish a copy of this order to the appointing authority. The appointing authority shall pass necessary orders as expeditiously as possible, but at any rate, not later than a month from the date of receipt of the copy of this order. 18. Accordingly, this writ petition is allowed to the extent as indicated above. There shall be no order as to costs.