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2014 DIGILAW 285 (TRI)

Tapan Majumder v. State of Tripura

2014-07-22

S.C.DAS

body2014
JUDGMENT S.C. Das, J.:-- 1. Heard learned Sr. counsel Mr. A.K. Bhowmik assisted by learned counsel Mr. R.C. Debnath for the petitioner and learned Addl. G.A. Mrs. A.S. Lodh for the respondents. 2. Facts, in short, necessary for disposal of this writ petition are that the petitioner was appointed as a Postgraduate teacher on 28.04.1988 and while he was posted at Srinagar Higher Secondary School he went unauthorisedly absent from duty on different spell and for the period of absence from 05.11.1993 to 06.03.1995 (487 days) and 14.03.1995 to 28.12.1995 (290 days), the respondent No. 2 by Memo dated 10.08.1998 (Annexure-1 to the writ petition) declared the period of absence as “dies-non” for all purposes i.e. increment, leave, pension, etc. but the period of service prior to the period of “dies-non” was not forfeited. The petitioner challenged the said Memo dated 10.08.1998 by filing Civil Rule No. 240 of 1998 in the Agartala Bench of the Gauhati High Court and Single Bench of the High Court by order dated 13.11.1998 (Annexure-2 to the writ petition) disposed the writ petition with the following direction:- After hearing the learned counsel of both the parties, I am of the view that the Director of School Education may examine the case of the petitioner sympathetically and pass appropriate orders regularizing the services of the petitioner in accordance with the Rules. The petitioner is directed to file certified copy of this order together with the copies of the representations submitted to the authority earlier. He may also file the copies of the applications for leave supported by the documents to the Director of School Education within 15 days from today and on receipt of such papers from the petitioner the Director of School Education will pass appropriate orders regularizing the service of the petitioner during the period of leave. In case the petitioner is still aggrieved by the order of the Director of School Education he may approach this Court afresh. With the aforesaid direction the writ petition is disposed of. 2.1 The petitioner, thereafter submitted his representation as per the above order and by Memo dated 21.01.1999 (Annexure-3 to the writ petition) respondent No. 2 disposed the representation with a speaking order holding that the petitioner’s representation could not be entertained. With the aforesaid direction the writ petition is disposed of. 2.1 The petitioner, thereafter submitted his representation as per the above order and by Memo dated 21.01.1999 (Annexure-3 to the writ petition) respondent No. 2 disposed the representation with a speaking order holding that the petitioner’s representation could not be entertained. The petitioner, thereafter challenged the Memo dated 21.01.1999 by filing WP(C) No. 382 of 2000 in the Agartala Bench of the Gauhati High Court and the Single Bench of the Court by order dated 12.06.2001 (Annexure-4 to the writ petition) dismissed the writ petition with the following order:- Subsequent order of ‘Dies-Non’ passed by the impugned order dated 21.1.1999 as per direction of this Court passed in Civ. Rule No. 240/1998 reveals that the period of absence for 81 days with effect from 1.8.93 to 20.10.93 had been regularized by granting 27 days Half-pay leave, 30 days Earned Leave and 24 days Extra Ordinary Leave by the authority vide order dtd. 6.7.98. But the period of absence from 5.11.93 to 6.3.95 was treated as ‘Dies-Non’. The authority held that the period of absence from duty for the period from 16.3.95 to 28.12.95 cannot be regularized by granting any sort of leave and that was treated as ‘Dies-Non’. Having regard to the aforesaid decision it appears that the petitioner’s entire past service has not been forfeited by putting ‘Dies-Non’, but only the period not covered by the leave has been treated to be ‘Dies-Non’ and, as such, entire past service of the petitioner has not been vitiated with any forfeiture consequences, but the forfeiture consequences or break in service is confined to the period not covered by the leave. This being the position, in my considered opinion, the authority on examination of the available documents including the petitioner’s own admission as revealed from the leave petition, arrived at a decision by the impugned order which does not call for any interference in this writ petition. In that view of the matter, the petition is dismissed. No order as to costs. In that view of the matter, the petition is dismissed. No order as to costs. 2.2 Felt aggrieved, the petitioner preferred writ appeal No. 85 of 2001 in the Division Bench of the Gauhati High Court at Agartala and the Division Bench by judgment dated 3.4.2007 (Annexure-5 to the writ petition) allowed the writ appeal with the following order:- In view of the facts and circumstances, we are of the considered view that the period from 16.03.1995 to 28.12.1995 which was declared as ‘Dies-Non’ by the Director of School Education and also upheld by the learned Single Judge cannot sustain in law and, therefore, the order dated 12.06.2001 passed by the learned Single Judge in W.P.(C) No. 382/2000 is set aside and also the order dated 21.01.1999 passed by the Director of School Education is quashed with observation that the authorities are to proceed with disciplinary proceedings against the appellant afresh. Since the controversy is mainly relatable to the documentary evidences, therefore, expeditious disposal of the disciplinary proceeding is expected after giving reasonable opportunity of hearing to the appellant to complete the same preferably within a period of six months after receipt of this order and decision of ‘dies-non’, if any, for the absence period from 16.03.1995 to 28.12.1995 of the appellant may be taken on the basis of the outcome of the disciplinary proceedings to be concluded in view of the prevailing provisions of law. In view of the above observations, the present writ appeal is allowed. No order as to costs. 2.3 Pursuant to the above order, the respondent No. 2 vide Memo dated 27.08.2007 (Annexure-6 to the writ petition) proposed to initiate a proceeding under Rule 16 of CCS(CCA) Rules, 1965 and asked the petitioner to submit his representation within 10 days. Memo of imputation also accompanied with the Memo dated 27.08.2007. No order as to costs. 2.3 Pursuant to the above order, the respondent No. 2 vide Memo dated 27.08.2007 (Annexure-6 to the writ petition) proposed to initiate a proceeding under Rule 16 of CCS(CCA) Rules, 1965 and asked the petitioner to submit his representation within 10 days. Memo of imputation also accompanied with the Memo dated 27.08.2007. The petitioner accordingly submitted his representation dated 03.10.2007 (Annexure-7 to the writ petition) in response to Memo dated 27.08.2007 and thereafter respondent No. 2 issued Memo dated 16.01.2008 (Annexure-8 to the writ petition) which shows that a personal hearing was given to the petitioner and thereafter the petitioner was asked to submit a detailed representation stating all his circumstances along with documentary evidence in support of his statement at an early date for disposal of his case and in response thereto, the petitioner submitted his detailed representation dated 16.01.2008 (Annexure-9 to the writ petition) with 15 annexures and thereafter, respondent No. 2 issued impugned Memo dated 28.08.2008 (Annexure-10 to the writ petition) and thereby disposed the case finally holding that the impugned period from 5.11.1993 to 06.03.1995 (487 days) and from 14.03.1995 to 28.12.1995 (290 days) shall be treated as ‘Dies-Non’ for all purposes. 2.4 Aggrieved, the petitioner filed the present writ petition alleging that respondent No. 2 assigned no reason at all while rejecting the representation of the petitioner and that by a cryptic order dated 28.08.2008 disposed the representation of the petitioner which is not tenable in law. 3. It is submitted by learned Sr. counsel Mr. Bhowmik that all administrative or quasi judicial action must be taken assigning reason. No unfettered right is vested on any authority to dispose an issue arbitrarily without assigning any reason. 4. Learned Addl. G.A. Mrs. Lodh has fairly submitted that reasons has been clearly assigned in Memo dated 21.01.1999 (Annexure-3 to the writ petition) issued by the respondent No. 2 but it is an admitted position that the said Memorandum has been set aside by the Division Bench of the Gauhati High Court in the writ appeal mentioned above. It is an admitted position that in the impugned Memo dated 28.08.2008, the respondent No. 2 has assigned no reason at all while arriving at a decision of passing the order of ‘Dies-Non’. It is an admitted position that in the impugned Memo dated 28.08.2008, the respondent No. 2 has assigned no reason at all while arriving at a decision of passing the order of ‘Dies-Non’. The disciplinary authority may take any decision according to its wisdom judiciously but it must be supported by reason and any cryptic order which is not supported by any reason is liable to be interfered by Court in exercise of the power of judicial review. 5. Therefore, the impugned Memo dated 28.08.2008 (Annexure-10 to the writ petition) is set aside and quashed. The matter is remanded back to the Director of School Education, Govt. of Tripura for consideration afresh after issuing notice to the petitioner and in the process, the respondent No. 2 may give a personal hearing to the petitioner and thereafter pass appropriate order in respect of the disciplinary proceeding sympathetically as per law. 6. Since it is long pending issue, the Director of School Education is to dispose the matter within 90 days from the date of receipt of a copy of this order. 7. A copy of this order may be made available to the Director of School Education, Govt. of Tripura through learned Addl. G.A. at the earliest. 8. The writ petition accordingly stands disposed of. 9. Parties to bear their own costs.