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2014 DIGILAW 272 (TRI)

Tapan Das v. State of Tripura

2014-07-10

DEEPAK GUPTA, U.B.SAHA

body2014
JUDGMENT Deepak Gupta; CJ. 1. All these petitions are being disposed of by one judgment since both the factual matrix as well as the legal questions involved are identical. 2. All the petitioners were appointed as Riflemen in Tripura State Rifles on 09.05.2001 and they were on probation for a period of three years from the date of appointment. During probation, the services of the petitioners were discharged on the ground that they were found not suitable for being retained in service. Relevant portion of the order of discharge in one of the cases reads as follows:- ............... And Whereas, During inquiry, it has come to the light that R/Rfn. Bijay Krishna Adhikari had visited brothel at Silchar on the said night and spent few hours with Prostitutes. Report of the Coy Comdr "A" company to this effect is also available with the file. And Whereas, The said R/Rfn. Bijay Krishna Adhikari is unbecoming on the part of member of disciplined force, like TSR, and now therefore, his retention in service is detrimental to the Police Deptt. on the ground of moral turpitude. The said R/Rfn. Bijay Krishna Adhikari presently undergoing basic training has not completed probation period. He can be discharged at any point of time on the month's notice or on payment of one month's advance salary in lieu of the same under Recruitment Rules 1984-for any offence committed by the individual prejudicial to good order and discipline. Now, therefore, I, Shri S.K. Darlong, IPS, the Commandant, 8th Bn being disciplinary authority, in exercise of powers vested upon me under Rule 15(i) of the Tripura State Rifles Recruitment Rules-1984 read with Sec 11(N) of the Tripura State Rifles Act 1983 discharge No. 01080318, R/Rfn. Bijay Krishna Adhikari of this unit from service w.e.f. 17-04-2002 for the reasons as stated above: His name be struck off from the strength of 8th Bn TSR and he be paid one months' advance salary in lieu of one months' notice. All Govt. properties issued to him be closed and deposited to QM Store. ............................... 3. The discharge order clearly shows that the discharge has been made on the ground that the petitioner was not found suitable to be retained in service. There could be no quarrel with such an order of discharge but unfortunately the order of discharge is totally stigmatic in nature. ............................... 3. The discharge order clearly shows that the discharge has been made on the ground that the petitioner was not found suitable to be retained in service. There could be no quarrel with such an order of discharge but unfortunately the order of discharge is totally stigmatic in nature. The order of discharge casts a stigma on the petitioner and with this order of discharge he cannot even apply for a job anywhere else. The law is well settled that the employer can discharge any probationer from service without holding an enquiry but the order of discharge must be an order of discharge simplicitor. Even where an order of discharge is simplicitor, the Court can go behind the order and see what is the motive or foundation for the order. But when the order of discharge is per se on the face of it stigmatic then the order of discharge is a punitive order based on misconduct and in such eventuality an inquiry is necessary and the services of an employee cannot be discharged merely because he is a probationer without holding an enquiry to prove that he is guilty of misconduct. That misconduct must be proved in accordance with the procedure prescribed for disciplinary proceedings. 4. In the present case, we are of the considered view that the order of discharge on the face of it is punitive in nature and casts a stigma on the petitioners and, therefore, the same could not have been issued without giving reasonable opportunity to the petitioners to put forth their case, in accordance with the rules applicable to the Tripura State Rifles. 5. In this view of the matter, the petitions are allowed. The orders of discharge are set aside. However, keeping in view the peculiar facts and circumstances of the case and the very serious allegations leveled against the petitioners, they shall not be entitled to any back wages or entitled to be automatically reinstated in service but their position shall be deemed to be 'trainees' as they were on the date when their services were terminated. The Tripura State Rifles shall be at liberty to conduct disciplinary proceedings in accordance with the Tripura State Rifles Act and the Rules framed thereunder and the final outcome shall abide by the result of the disciplinary proceedings. No order as to costs.