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2014 DIGILAW 389 (TRI)

Santi Kumar Debbarma v. State of Tripura

2014-11-19

DEEPAK GUPTA, S.C.DAS

body2014
JUDGMENT S.C. Das, J. 1. We have heard learned counsel, Mr. C.S. Sinha for the petitioner and learned Additional Government Advocate, Mr. S. Chakraborty for the State-respondents. 2. The petitioner while was working as a constable of Tripura State Rifles (for short 'TSR'), a disciplinary proceeding was drawn up vide Memo dated 12.05.2008 (Annexure-3 to the writ petition), issued by the Superintendent of police, North Tripura, Kailashahar (respondent No. 3) on the following two distinct head of article of charges:- "CHARGE UNDER ARTICLE NO. I. C/4915 Santi Kumar Deb Barma of DAR North Tripura District is charged for 'Gross misconduct' that the person who attended in the recruitment rally of constables on 01.09.2006 under Token No. 472 was different from Santi Kumar Deb Barma Const. No. 4915 (earlier R/C No. 1167). The photograph of the Finger impression on the recruitment Token Slip No. 472 dated 01.09.2006 is not identical with any specimen Finger impression of constable No. 4915 Santi Kumar Deb Barma as revealed from the report of C.F.P.B., NCRB MHA. Govt. of India, Calcutta. This amounts to gross misconduct from the part of C/4915 Santi Kumar Deb Barma. CHARGE UNDER ARTICLE NO. II. C/4915 Santi Kumar Deb Barma of DAR North Tripura District is charged for gross misconduct that the Educational qualification certificate submitted by him at the time of recruitment rally as well as at the time of joining as Const. Vide Sl. No. 313228 dated 12.03.2006 showing issue of transfer certificate by Teacher-incharge namely Bishu Kumar Deb Barma of Chelikhola S.B. School in which Santi Kumar Deb Barma is shown Class-VIII passed is not genuine. From the record of Chelikhola S.B. School and Valuarchar H.S. School educational qualification of C/4915 Santi Kumar Deb Barma is found to be contradictory and the educational certificate produced at the time of recruitment as constable is not genuine which is a gross misconduct from the part of the constable." 3. The above Memorandum along with the article of charges, statement of imputation of misconduct, list of documents and list of witnesses were served on the petitioner and the petitioner in response thereof submitted his written statement of defence on 19.05.2008 (Annexure-4 to the writ petition). Shri B.P. Chakraborty, SDPO, Kailashahar was appointed as inquiry officer and in the course of proceeding, the petitioner prayed for engaging one Sri Tushar Kanti Bhattacharji, Assistant Commandant of 5th Bn TSR as his defence assistant. Shri B.P. Chakraborty, SDPO, Kailashahar was appointed as inquiry officer and in the course of proceeding, the petitioner prayed for engaging one Sri Tushar Kanti Bhattacharji, Assistant Commandant of 5th Bn TSR as his defence assistant. But by a letter dated 13.08.2008, respondent No. 3 rejected the prayer of the petitioner informing that the service of Shri Bhattacharji could not be spared due to his engagement in operations in connection the Independence Day 2008 (Annexure-5 to the writ petition). After the Independence Day was over, the petitioner again made an application to the respondent No. 3 praying for providing the services of Shri Tushar Kanti Bhattacharji as his defence assistant and also requested the Superintendent of Police to move the Director General of Police if necessary and pending appointment of Shri Tushar Kanti Bhattacharji as defence assistant to keep the disciplinary proceeding pending. His such prayer was also turned down and he was requested to propose the name of any other person as his defence assistant within seven days, but thereafter also he insisted for appointment of Shri Tushar Kanti Bhattacharji as his defence assistant. His prayer was not entertained and the disciplinary proceeding was taken up ex parte against him. After conclusion of the disciplinary proceeding the inquiry officer submitted the report to the disciplinary authority, i.e. respondent No. 3, that both the charges were proved against the petitioner and thereafter the petitioner was asked to submit his final statement of defence and the petitioner accordingly submitted his final statement of defence (Annexure-14 to the writ petition). Thereafter, the disciplinary authority passed an order on 08.08.2009 proposing punishment of dismissal from service and ultimately on 05.11.2009 passed the final order (Annexure-15 to the writ petition) and thereby dismissed the petitioner from service. 4. Respondents contended that all reasonable opportunity was afforded to the petitioner to defend his case. His request to spare the services of Shri Tushar Kanti Bhattacharji, Assistant Commandant could not be entertained and he was repeatedly asked to propose the name of any other person as his defence assistant, but he did not name any other person and so he cannot claim that reasonable opportunity was not given to him to appoint a defence assistant of his choice. He did not also adduce any evidence and did not participate in the proceeding and after affording all opportunities to him the disciplinary authority passed the order of punishment which has got no infirmity and, therefore, the order of punishment cannot be interfered in exercise of jurisdiction under Article 226 of the Constitution. 5. Learned counsel, Mr. C.S. Sinha appearing for the petitioner has submitted that the petitioner specifically requested the respondents to spare the services of Assistant Commandant, Shri Tushar Kanti Bhattacharji as his defence assistant, but his repeated requests were turned down and, therefore, reasonable opportunity to defend his case has been denied and hence, this Court in exercise of power under Article 226 of the Constitution should interfere in the order of punishment and that the order of punishment is liable to be set aside. 6. Learned Additional Government Advocate, Mr. Chakraborty has submitted that Shri Tushar Kanti Bhattacharji was working as an Assistant Commandant in a different place and the disciplinary authority at the very inception informed the petitioner that services of Shri Tushar Kanti Bhattacharji could not be spared and, therefore, asked the petitioner to name any other person as his defence assistant. But the petitioner remained obstinate and stood strict to his demand and, therefore, he waived his right and he cannot claim that reasonable opportunity was denied to him. 7. What is a "reasonable opportunity" has not been defined in the statute. But the words "reasonable opportunity" have acquired a legal meaning and it cannot be left to the vagaries of each individual, the word "reasonable" must, therefore, mean according to rules of natural justice which are rules of law. In ordinary parlance "reasonable opportunity" means: (a) opportunity to adduce all relevant evidence; (b) evidence to be taken in presence of the delinquent; (c) full opportunity to cross-examine the witnesses and (d) no admission of any material relied upon without opportunity to explain it. The contents of the writ petition itself shows that the petitioner was asked to name any other person else Shri Tushar Kanti Bhattacharji, Assistant Commandant, as his defence assistant, but the petitioner all along insisted that Shri Bhattacharji was his only choice and he should be appointed as his defence assistant. The contents of the writ petition itself shows that the petitioner was asked to name any other person else Shri Tushar Kanti Bhattacharji, Assistant Commandant, as his defence assistant, but the petitioner all along insisted that Shri Bhattacharji was his only choice and he should be appointed as his defence assistant. Such a claim of the petitioner cannot be accepted that he must be given a person of his choice as his defence assistant and otherwise it should be held that reasonable opportunity was not provided to him. It is apparent that the petitioner took a rigid stand with a view to flout the disciplinary proceeding by any means. The documents annexed by the petitioner shows that he was repeatedly asked by the inquiry officer to name any other person as his defence assistant, but he did not do so. It is, therefore, evident that the petitioner waived his right to engage a defence assistant of his choice and he also did not participate in the proceeding though he was given due notice of the date of recording statement of witnesses examined on behalf of the disciplinary authority. He was also asked to give his defence evidence but he did not adduce any defence evidence. He submitted his final statement of defence alleging that reasonable opportunity was not given to engage a defence assistant of his chaos, but that was not entertained by the inquiry authority. Ultimately the inquiry authority submitted report holding that both the charges framed against the petitioner have been proved and considering the report of the inquiry authority the disciplinary authority proposed punishment of dismissal and the petitioner was heard in person, which is evident in the final order of punishment (Annexure-15 to the writ petition). We, therefore, find no merit in the submission of learned counsel, Mr. Sinha on the score that reasonable opportunity to engage a defence assistant of his choice was not afforded to the petitioner by the respondents. 8. Next argument advanced by learned counsel, Mr. Sinha is that a human approach ought to have been given to the petitioner while inflicting the punishment and that the punishment is harsh and disproportionate to the misconduct alleged to have committed by the petitioner. 9. Learned Government Advocate has submitted that the allegation against the petitioner is very serious. 8. Next argument advanced by learned counsel, Mr. Sinha is that a human approach ought to have been given to the petitioner while inflicting the punishment and that the punishment is harsh and disproportionate to the misconduct alleged to have committed by the petitioner. 9. Learned Government Advocate has submitted that the allegation against the petitioner is very serious. He himself did not participate in the selection process, but someone else with the token participated in the selection process, which has been proved. So, under such circumstances, there is no scope of taking a lenient view. 10. The charges framed against the petitioner have already been reproduced hereinbefore, which seems to be very serious. It is alleged that the petitioner himself did not participate in the recruitment rally held on 01.09.2006 under Token No. 472 and that someone else participated in the recruitment rally and subsequently the petitioner managed to join the job, which has been proved on examination of the finger impression of the petitioner by the report from NCRB, Ministry of Home Affairs, Government of India. It is also alleged that the petitioner submitted a false transfer certificate showing his educational qualification and while such charges are proved against the petitioner, he cannot claim a lenient view apart from a punishment of dismissal from service. 11. The disciplinary authority is the sole Judge of facts and is the competent authority to inflict appropriate punishment. The power of judicial review of the decision of a domestic Tribunal is very limited. Such judicial review is possible only when the principles of natural justice has been violated, i.e., opportunities, which ought to be given to the delinquent, as per rules, were not given or that the decision of the domestic Tribunal was based on no evidence and that punishment inflicted is shocking to the judicial conscience. If there is no glaring violation of principles of natural justice and there is some evidence to support the decision taken by the disciplinary authority, the Court or Tribunal cannot sit as a matter of appeal to re-appreciate the fact and to substitute the finding of the disciplinary authority with its own finding. 12. In the given facts and circumstances of the case, the delinquent does not deserve any lenient view. We may gainfully refer here the observation of Apex Court in the case of Chairman & Managing Director, V.S.P. & Ors. 12. In the given facts and circumstances of the case, the delinquent does not deserve any lenient view. We may gainfully refer here the observation of Apex Court in the case of Chairman & Managing Director, V.S.P. & Ors. v. Gopa Raju Sri Prabhakara Hari Babu, reported in : (2008) 5 SCC 569 . The Apex Court has observed that the High Court's power to interfere with disciplinary matters is circumscribed by well-known factors. It cannot set aside a well-reasoned order only on sympathy or sentiments. The High Court in exercise of its jurisdiction under Article 226 also cannot, on the basis of sympathy or sentiment, overturn a legal order. Once it is found that all the procedural requirements have been complied with, the Courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The superior Courts only in some cases may invoke doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when misconduct stands proved. 13. In view of the discussion made above, we find no merit in the writ petition and hence, the same stands dismissed. No order as to costs.