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Tripura High Court · body

2016 DIGILAW 56 (TRI)

Swapan Debbarma v. State of Tripura

2016-02-26

S.TALAPATRA

body2016
ORDER : 1. By means of this writ petition, the petitioner has challenged the order under No.F.26(3)ESTT/DF/2009 dated 17.01.2012, Annexure-6 to the writ petition and the order under No.F.26(9)ESTT/DF/2012 dated 25.06.2012, Annexure-9 to the writ petition by the Principal Secretary to the Government of Tripura, Food, Civil Supplies and Consumer Affairs Department (the Appellate Authority). 2. By the memorandum under No.F.2B(61)DF/90 dated 05.03.2009, Annexure-2 to the writ petition, the petitioner, an UDC was imputed of misconduct or mis-behaviour which are as under:- “ARTICLE-I That Sri Swapan Debbarma, U.D.C. (F) (now under suspension), while attached to the B.D.O. Mandai under Sadar Sub-Division w.e.f. April, 2007 was entrusted with the dealing of Food related works including preparation of Delivery Order (D.O.) of ration commodities etc. for F.P. Shops on the basis of actual card strength. But said Sri Debbarma, U.D.C. (F) prepared D.Os for F.P. Shops of Mandai R.D. Block in excess of actual monthly entitled quantity of F. P. Shop violating the procedural norms, details of which are given below:- S. No. Name of F.P. Shop Name of PDS item Actual monthly entitled quantity of the F.P. Shop D.O. Prepared for the quantity against the month Misappropriated quantity of issue of excess in two months April 2008 May 2008 1. Harbang Khangrai F.P. Shop APL rice 2300 kg 4000 Kg 7500 kg 6900 kg 2. Kairai F.P. Shop Sugar 1667 kg 2700 Kg 1500 kg 866 kg 3. Dinakobra F.P. Shop APL rice 3240 kg 9500 kg 5500 kg 8520 kg 4. Dinakobra F.P. Shop Sugar 1131 kg 1700 kg 900 kg 338 kg 5. Mandai F.P. Shop APL rice 8000 kg 11000 kg 7000 kg 2000 kg 6. Aisha Bari F.P. Shop APL rice 3900 kg 4000 kg 3900 kg 100 kg 7. Khamting F.P. Shop APL rice 1560 kg 7100 kg 1500 kg 5480 kg 8. Vrigudas F.P. Shop APL rice 2720 kg 4500 kg 2000 kg 1060 kg 9. Ajendra Bazar F.P. Shop APL rice 8720 kg 9000 kg 9000 kg 560 kg 10. Lalit Bazar F.P. Shop No.2 APL rice 2000 kg 3600 kg 1600 kg 1200 kg 11. Kainta Kobra F.P. Shop APL rice 3460 kg 5700 kg 3000 kg 1780 kg 12. Vrigudas F.P. Shop APL rice 2720 kg 4500 kg 2000 kg 1060 kg 9. Ajendra Bazar F.P. Shop APL rice 8720 kg 9000 kg 9000 kg 560 kg 10. Lalit Bazar F.P. Shop No.2 APL rice 2000 kg 3600 kg 1600 kg 1200 kg 11. Kainta Kobra F.P. Shop APL rice 3460 kg 5700 kg 3000 kg 1780 kg 12. Shib Nagar F.P. Shop APL rice 2080 kg 3500 kg 2000 kg 1340 kg By indulging in such omission, the said Sri Debbarma has acted in a manner which is unbecoming of a Govt. Servant. ARTICLE-II That Sri Debbarma, U.D.C.(F) (now under suspension) has prepared D.O. without obtaining certificate/clearance from F.P. Shop Level Vigilance Committee of the concerned village committees ignoring the standing practice and procedure as followed in issuing D.Os. By indulging in such omission, the said Sri Debbarma has acted in a manner which is unbecoming of a Govt. Servant. ARTICLE-III That Sri Debbarma, U.D.C. (now under suspension) has misguided and managed in obtaining the signature of the D.O. Issuing Authority, i.e., the B.D.O. Mandai keeping him in dark by concealing the practice and procedure in issuing D.Os while the authority was busy with other official works. By indulging in such omission, the said Sri Debbarma has acted in a manner which is unbecoming of a Govt. Servant. ARTICLE-IV That Sri Debbarma, U.D.C. (now under suspension) misbehaved with the Chairperson of A.D.C. villages and officials of other Deptts., like, Education (School) Deptt., while they approached for official purposes for related works of Food Section of the said Block. By indulging in such omission, the said Sri Debbarma has acted in a manner which is unbecoming of a Govt. Servant.” 3. The petitioner, in order to controvert the ARTICLE of charges, filed the written statement on 12.03.2009, Annexure-3 to the writ petition, however reserving his right to file the effective written statement on having the copies of the documents as mentioned in Annexure-III to the said memorandum dated 05.03.2009. According to the petitioner the allegations are highly exaggerated, purposive and indicative of non-appreciation of the relevant records. 4. According to the petitioner the allegations are highly exaggerated, purposive and indicative of non-appreciation of the relevant records. 4. Briefly stated, the relevant fact is that exhibiting gross dereliction of duty and in breach of the trust, the petitioner prepared and issued the delivery orders (DO) of excess quantity of rice over the actual monthly requirement of rice and sugar to the fair price shop dealers without conforming to the procedural norms and it has been alleged that such act of the petitioner is grossly unbecoming of a Government servant. The petitioner had been attached to the Office of the Block Development Officer from the month of April 2007 and he managed to obtain the signature of the delivery orders from the issuing authority i.e. the BDO, Mandai keeping him in dark by deviating from the practice and procedure in issuing the delivery orders while the authority was busy with other official works. 5. By the written statement of defence dated 12.03.2009, the petitioner has asserted that prior to April, 2008 a different practice was in vogue. On 09.01.2001, the Food Department issued a memorandum, providing for issue of ration at the double of the normal scale throughout the year for village panchayats under 17 RD Blocks. The ration card holders were provided entitlement to get double of the normal scale of the supply of rice for lean period of five months. Thereafter, by radiogram dated 30.04.2008 and the memorandum dated 10.04.2008, the system of allowing double ration in 19 identified RD Blocks was discontinued. As a result, there had been public agitation for which the Director had issued the radiogram dated 02.05.2008 restoring the previous system of double ration. The period of discontinuation of the double ration system was very brief and as such according to the petitioner, the double rationing system prevailed during the maximum period. The petitioner has asserted that after getting the information of discontinuation of the double rationing system he had stopped preparation of the delivery order under the double ration system but later on he restored the previous system. 6. The petitioner has asserted that his predecessor in the office used to issue the delivery orders on the basis of the ration card strength per fair-price shop in Mandai RD Block, certified by the BDO. There was no written or oral instruction to prepare delivery order. 6. The petitioner has asserted that his predecessor in the office used to issue the delivery orders on the basis of the ration card strength per fair-price shop in Mandai RD Block, certified by the BDO. There was no written or oral instruction to prepare delivery order. Only after obtaining certificate/ clearance from FP Shop Level Village Committee, the subsequent delivery orders were supposed to be issued. The petitioner has admitted that his predecessor did not prepare the delivery order after getting the clearance certificate. The petitioner has asserted that he did not know the practice of issuing the delivery order after getting clearance from the said village committee. He has further asserted that the practice that he followed was in vogue when his predecessor was in charge and as such he did not violate any practise/direction as alleged. He has denied that he was ever warned for breach of the procedure. The allegations those have been levelled against him are ill motivated. 7. Since the petitioner disputed the allegations, save and except, admission of breach for lack of knowledge, the case was referred to the Additional Commissioner of the Departmental Inquiries for inquiry. The reference being case No.1279/INQ/Food/2009 was disposed by the Inquiry Report dated 23.04.2011 holding that the ARTICLE- of Charge-I and ARTICLE of Charge-IV have been proved and the remaining two charges were held as not proved. 8. By the memorandum under No.F.26(3)ESTT/DF/2009 dated 16.06.2011, Annexure-5 to the writ petition, the copy of the said inquiry report dated 23.04.2011, Annexure-4 to the writ petition was supplied to the petitioner, asking him to make his representation on the findings of the Inquiring Authority, if any, within 15 days. The petitioner had submitted his representation on 22.11.2011 against the findings of the Inquiring Authority. The petitioner attended in the personal hearing on the same day before the Director, Food, Civil Supplies and Consumers Affairs. By the order dated 17.01.2012, Annexure-6 to the writ petition, the Disciplinary Authority imposed penalty of withholding 3 (three) periodical future increments of the petitioner that would fall due after passing of the said order for 3 (three) years with cumulative effect. 9. By the order dated 17.01.2012, Annexure-6 to the writ petition, the Disciplinary Authority imposed penalty of withholding 3 (three) periodical future increments of the petitioner that would fall due after passing of the said order for 3 (three) years with cumulative effect. 9. The petitioner being aggrieved by the said order dated 17.01.2012, preferred an appeal under Rule 23 of the CCS (CCA) Rules, 1965 to the Appellate Authority, the Commissioner, Food, Civil Supplies and Consumer Affairs, Government of Tripura by submitting the memorandum of appeal containing several grounds of objection, Annexure-7 to the writ petition. By the order dated 25.06.2012, Annexure-9 to the writ petition, the said appeal was dismissed after laying elaborate reasons for discarding the grounds of objection. In the appeal, the petitioner’s main stay for challenging the final order dated 17.01.2012 was that: (1) He prepared delivery order for FP Shops of Mandai Block in proper scale as per instruction of the Director, FCS&CA by the memorandum dated 30.08.2007 (2) The quantity of the delivery order made in consecutive three months during April 2008 to June 2008 is less than the total entitlement taking double ration into account. (3) He prepared the delivery order without certification of the concerned vigilance committee following the practice of the predecessors and he was not aware of such standing practice. He violated such practice and procedure being unaware and the petitioner followed the practice that was prevalent. The Appellate Authority has observed as under for discarding such pleas by the order dated 25.06.2012. “7. On examination, it is observed that the Memo dated 30.08.2007 of the Director, FCS & CA only speaks about “Target oriented approach towards distribution of rice under APL through PDS in the state of Tripura” wherein godown-wise/Subdivision wise monthly target of APL rice was revised and re-fixed taking into account the demand of the relevant period w.e.f. 1st September 2007. Moreover, the prosecution side established that the Memo dated 09.01.2001 of the Joint Secretary, Govt. of Tripura, FCS & CA Department clearly indicated allotment of double ration only in 3 (three) F.P. Shop areas (namely Harbang Khangrai F.P. Shop, Dinakobra F.P. Shop and Khamting F.P. Shop) out of 12 Nos. F.P. Shops of Mandwi R.D. Block. But the appellant had prepared D.O.s for rice in double ration quantity for 10(ten) F.P. Shops of the area, as the charge framed, violating the Govt. order. F.P. Shops of Mandwi R.D. Block. But the appellant had prepared D.O.s for rice in double ration quantity for 10(ten) F.P. Shops of the area, as the charge framed, violating the Govt. order. The prosecution side also established that the appellant had prepared D.O.s of levy sugar in excess of the entitlement for Kairai F.P. Shop and Dinakobra F.P. Shop and Dinakobra F.P. Shop consciously since during deposition of witness, the appellant agreed that there was no order of issuance of excess sugar in the month of April and May, 2008. 8. Examining the entire issue in details, I found no force in the statement of the appellant. It is established that the Memo dated 09.01.2001 of the Joint Secretary, Govt. of Tripura, FCS & CA Department did not at all spoken of the entitlement of double ration to all the F.P. Shops under Mandwi R.D. Block, rather it was restricted to only 3 (three) F.P. shops. But the appellant prepared D.O. in excess to the regular entitlement to at least 7(seven) F.P. Shops, if the 3 (three) F.P. Shops which are listed in the Memo dated 09.01.2001 are taken into consideration for their eligibility to get double ration. Moreover, the appellant prepared excess D.O. for 2(two) F.P. Shops for sugar also, which does not come under the purview of double ration. 9. In the appeal petition, it appears that the appellant tried to establish his act by maintaining and bringing forward an “average formula”, which is not acceptable. He cannot be allowed to settle the account by taking average of three month’s issuable quantity. This is an attempt of clear forgery by the appellant and he must be held accountable for preparation of D.O. in excess than the actual monthly entitlement. 10. The appellant indicated that he prepared excess D.O. in the instance of the BDO, Mandwi to vacate the godown which was flooded with rice and sugar during April 2008. It has been mentioned by him that his intention was to accommodate further arrival of stocks in the godown and to release the vehicles which were in queue for long time and to avoid transporters’ claims of detention charges. Such plea of the appellant also could not be sustained since such issue is not settled at the level of the appellant. Not only this, by trying to take such opportunity, the appellant, ultimately, admitted his guilt. Such plea of the appellant also could not be sustained since such issue is not settled at the level of the appellant. Not only this, by trying to take such opportunity, the appellant, ultimately, admitted his guilt. Moreover, the claim of the appellant regarding instruction of the BDO, Mandwi to prepare D.O. in excess could not be accepted since the BDO, Mandwi Shri Nagendra Debbarma, while deposing before the Inquiring Authority on 03.07.2010 as PW-1, clearly stated that the appellant was served with Show Cause Notices by him on 21.5.2008 for preparing excess D.O. 11. The plea of the appellant to follow his predecessors’ practice regarding not obtaining clearance certificate from concerned Vigilance Committees before preparing further D.O. also not acceptable since being a Govt. employee the appellant is certainly aware that works/jobs under Govt. establishment are run under certain norms/circulars/orders etc., but not under any practice/custom maintained by his predecessors. Moreover, a Notification re-constituting the FPS level Vigilance Committees of the Mandwi RD Block was issued by the SDM, Sadar vide No.F.3(5)-SDMF/SDR/2003/581 dated 25.5.2005 wherein it was clearly stated that further delivery of ration commodities for a particular month will remain withheld if utilization certificate of the previous month, duly signed by the Chairman of the Vigilance Committee, is not produced.” 10. By filing the counter affidavit against the writ petition, the respondents have pointed out that the petitioner had also approached this court earlier for quashing the order of the appellate authority dated 25.06.2012 affirming the order of the disciplinary authority dated 17.01.2012. In order to defend the impugned orders, the respondents have submitted that all reasonable opportunities flowing from the principles of natural justice as well as from Rule 14 of the CCS (CCA) Rules, 1965 have been provided to the petitioner and on receipt of the report of Inquiry Authority, he was given further opportunity for making the representation. Only thereafter, the impugned order has been passed. While deciding the appeal, the reasons have been provided elaborately for returning the finding that the grounds of objections are bereft of merit. That apart, the respondents have contended in the counter affidavit that no Government employee can say that he omitted to do anything for being unaware. That apart, that the other charge of misconduct covered by the Charge No. IV has been so squarely proved that it does not require any further visit at all. 11. Mr. That apart, the respondents have contended in the counter affidavit that no Government employee can say that he omitted to do anything for being unaware. That apart, that the other charge of misconduct covered by the Charge No. IV has been so squarely proved that it does not require any further visit at all. 11. Mr. D.C. Roy, learned counsel appearing for the petitioner has urged this court to reappraise the evidence as recorded in the inquiry proceeding inasmuch as that would reveal the petitioner did indulge in no misconduct. According to him, the petitioner was entirely unaware of the practice/ direction. This court cannot seat as the court of appeal for re-appreciating the materials placed in the records. The scope of judicial review is very limited. This jurisdiction can only be exercised to see whether the order that has been passed is absolutely without evidence or to see whether there is any breach of procedural fairness while awarding the penalty. 12. After going through the records, this court is of the considered opinion that the findings are based on evidentiary materials and the petitioner has partly admitted his omission contending that he was unaware of the practice. This plea is so fragile to accept. The allegations of the misconduct has been proved following the standards of the preponderance of the probability that the petitioner prepared the delivery orders in defiance of the actual monthly entitlement of numerous ration shops under Mandai RD Block. His role cannot be placed beyond suspicion. While passing the order dated 25.06.2012 adequate reasons for discarding the grounds of objection have been provided. Therefore, this court is unable to accept that the findings as returned by the Inquiry Authority or as accepted by the Disciplinary Authority are to be interfered with. However, one ancillary question has been taken up by this court as to the penalty as awarded by the Disciplinary Authority and affirmed by the Appellate Authority. The petitioner has been awarded penalty in the following terms:- “Considering all aspects and having regard to all facts placed before me, I order to impose the penalty to withhold 3(three) periodical future increment of Sri Swapan Debbarma, U.D.C. that would fall due after passing of this order for 3 (three) years with cumulative effect.” 13. The petitioner has been awarded penalty in the following terms:- “Considering all aspects and having regard to all facts placed before me, I order to impose the penalty to withhold 3(three) periodical future increment of Sri Swapan Debbarma, U.D.C. that would fall due after passing of this order for 3 (three) years with cumulative effect.” 13. The question that emerges whether the Disciplinary Authority or the Appellate Authority in appropriate cases can award such penalty, inasmuch as the different types of penalty that can be imposed has been provided in Rule 11 of the CCS (CCA) Rules, 1965. Even though in the second proviso, it has been provided that in any exceptional case and for special reasons having recorded in writing, any other penalty may be imposed. In this case, no special reason has been provided either by the disciplinary authority or by the appellate authority. In such circumstances, the Disciplinary Authority or the Appellate Authority cannot go beyond the penalty as prescribed under Rule 11 of the CCS (CCA) Rules, 1965. 14. Mr. B.C. Das, learned Advocate General who appeared in this case at the request of this court has fairly submitted that unless the penalty is available or unless the special reasons is assigned for departure thereof, the Disciplinary Authority or the Appellate Authority cannot device or impose any other penalty as catalogued under Rule 11 of the CCS (CCA) Rules, 1965. 15. This court is in agreement with the submission of Mr. B.C. Das, learned Advocate General that unless departed for special reasons so recorded, from the catalogue of the penalty as prescribed under Rule 11 of the CCS (CCA) Rules, 1965, the Disciplinary Authority or the Appellate Authority is under obligation to impose the penalty from the penalty as catalogued, not beyond that. Departure is permissible in the exceptional cases and for that the special reasons are to be recorded in the order. In this case, no such reason has been recorded either by the Disciplinary Authority or by the Appellate Authority. Departure is permissible in the exceptional cases and for that the special reasons are to be recorded in the order. In this case, no such reason has been recorded either by the Disciplinary Authority or by the Appellate Authority. Rule 11 (iv) provides for withholding of increments of pay whereas Rule11(v) and Rule11(vi) provide for stoppage of the future increment of his pay in conjunction with the major penalty of reduction to a lower stage in the time scale of pay for a specified period, with further direction as to whether or not the Government servant will earn the increments on the pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have any effect of postponing the future increments of his pay. The similar latitude has also been provided in Rule 11(vi) as a part of the major penalty of reduction to the lower time scale of pay, grade, post or service for a period, to be specified in the order of penalty. 16. As such, there is no such penalty like withholding of increments with cumulative effect. The Disciplinary Authority can determine the number of increments those to be withheld but he is not permitted, unless of course, the special reasons are assigned for departing from the rule to direct that withholding of increments will have the cumulative effect. As such, this court is of the considered opinion that the penalty requires to be interfered with for purpose of modification. The penalty that has been awarded is modified in the following term:- “Considering all the aspects having regard to all facts it is ordered to impose the penalty to withhold 3 (three) periodical future increments of Sri Swapan Debbarma, U.D.C. that would fall due after passing of the order dated 17.01.2012 for three years.” With the observation and modification as above, this writ petition stands dismissed. However, in the circumstances of the case there shall be no order as to costs.