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2014 DIGILAW 72 (TRI)

Swapan Kr. Chakraborty v. State of Tripura

2014-02-12

DEEPAK GUPTA, S.C.DAS

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JUDGMENT Deepak Gupta; C.J.:- By means of this petition, the petitioner has challenged the Order dated 19-12-2005 whereby his name was struck off from the roll of the Home Guards. 2. We are not going into the other contentious issues raised, but in the year 2005 an inquiry was conducted against the petitioner and in the inquiry, the charge was that though the petitioner was on medical leave from 04-03-2004 to 04-04-2004, he during this period had left the State of Tripura and had gone to places outside Tripura and indulged in activities unbecoming a Home Guard. 3. On 20-06-2005, a show-cause notice was issued to the petitioner which reads as follows:- Government of Tripura Office of the Commandant Home Guards Tripura: Agartala No. 9309-12/P/Folder/HG/RSV/05 Dated, the 20 June' 05 To HG No. 761030 Swapan Chakraborty Notice Whereas it is alleged that on 04.03.04 you submitted a sick report in a plain paper addressed to OC West Agartala PS, but you did not produce any medical certificate of any recognized Medical Officer. and Whereas during aforesaid sick report you left the station unauthorizedly and went to Hyderabad with some political motive. and Whereas during aforesaid unauthorized leave of station you have performed journey from Agartala to Guwahati by private transport and thereafter from Guwahati to Hyderabad by train and the return journey was conducted from Vishakha Pattanam to Guwahati by train, thereafter from Guwahati to Agartala by bus. The entire journey performed by you was totally without prior permission of your authority. and Whereas, after your return from Hyderabad in the first week of March, 2004 you took up some political programmes including campaign, secret meeting, postering, wall writing and distribution of leaflets etc. in favour of proposed disobedience movement scheduled on 07.04.04 which was totally a gross misconduct on your part being a member of Home Guards Organization. and Whereas, you showed a total gross misconduct and indulged yourself in illegal activities, created provocation, mislead the members of Home Guards as well as your controlling authority in very unbecoming manners. Under the above you are hereby asked to explain your position on the above lapses as to why disciplinary action will not be taken against you. Your reply should reach to the undersigned within 15 days on receipt of the same, failing which exparte decision/action will be taken against you. Sd/- (20.06.05) (K.R. Deb Barma) Commandant Home Guards Organisation. Under the above you are hereby asked to explain your position on the above lapses as to why disciplinary action will not be taken against you. Your reply should reach to the undersigned within 15 days on receipt of the same, failing which exparte decision/action will be taken against you. Sd/- (20.06.05) (K.R. Deb Barma) Commandant Home Guards Organisation. 4. From the notice which was issued to the petitioner, it is obvious that the allegation against him on which the inquiry was to be conducted and on the basis of which explanation was called was only that during the period he was on sick leave, he had left the station unauthorizedly and had gone to Hyderabad with some political motive. It was also alleged that in March, 2004 he had taken up some political programmes including campaigning, secret meeting, postering, wall writing and distribution of leaflets. Thus, these were the two charges against the petitioner. 5. The petitioner replied to the notice on 05-07-2005 and stated that he had never left the State of Tripura. According to him, he was ill and he had not done any of the activities which were alleged in the notice. It appears that an inquiry was conducted, but neither the proceedings of the inquiry nor the inquiry report have been placed before us. What has been placed before us is an Office Order dated 21-11-2005 passed on the basis of such inquiry report wherein a provisional decision was taken to remove the name of the petitioner from the Home Guards Organization and he was called upon to submit his reply. In this order, reference has been made to certain evidence recorded in the inquiry. 6. We have carefully gone through this order, but it does not show that the copy of the inquiry report was ever supplied to the petitioner. The petitioner replied to the provisional order proposing the striking off his name. He raised a number of pleas in his reply. On 19-12-2005 after consideration of his reply, the same was rejected. We find that the grounds taken for rejection are not based on the inquiry report, but on the basis of the reply to the show-cause notice and to the reply to the provisional order. He raised a number of pleas in his reply. On 19-12-2005 after consideration of his reply, the same was rejected. We find that the grounds taken for rejection are not based on the inquiry report, but on the basis of the reply to the show-cause notice and to the reply to the provisional order. In fact, a perusal of the order (Annexure-10 to the writ petition) shows that the Commandant did not even take into consideration the various pleas raised by the petitioner in his reply to the provisional order. Two things clearly emerge from the pleadings; (i) that, the copy of the inquiry report was never supplied to the petitioner; (ii) that, the copy of the inquiry report or the proceedings has not even been placed on record of this file. 7. It is a settled principle of natural justice that when a penalty is to be imposed on any official on the basis of an inquiry conducted by an authority, that official must know the contents of the inquiry report. He cannot answer or raise any ground challenging the findings given in the inquiry if he does not have a copy of the inquiry report. The law is so well settled in this regard that there is no need to make reference to any authority. In the present case, the impugned order also suffers from another infirmity that the officer passing the order dated 19-12-2005 has not dealt with the various contentions raised by the petitioner. At this stage, we are not going into the merits of the case because we are only deciding the case on the ground that the petitioner has not been given sufficient opportunity to put forth his version. 8. Therefore, we set aside the impugned order dated 19-12-2005, without expressing any merits on the rival contention of the parties. The respondents can now proceed from the stage of the inquiry report and a copy of the inquiry report along with the copies of the statement of the witnesses, if any recorded during the inquiry, shall be given to the petitioner within 30(thirty) days from today and the petitioner can submit his response to the inquiry report within 15(fifteen) days thereafter and then the Commandant can take a decision on the matter after dealing with all the points which may be raised by the petitioner in his reply to the inquiry report. 9. 9. With the aforesaid orders, the writ petition is disposed of. No order as to costs.