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2016 DIGILAW 59 (TRI)

State of Tripura v. Sajal Deb

2016-03-08

DEEPAK GUPTA, S.C.DAS

body2016
ORDER : 1. This writ appeal is directed by the State against the judgment dated 26th September, 2012 passed by a learned single Judge of the Agartala Bench of the Gauhati High Court whereby he allowed the writ petition filed by the writ petitioner and directed that the petitioner be reinstated in service with all service benefits. 2. Briefly stated the facts of the case are that the petitioner (respondent herein) was working as a Rifleman in Tripura State Rifles. He had been sanctioned Casual Leave w.e.f. 7th October, 2003 to 15th October, 2003. He, however, did not report for duty after 15th October, 2003 and disciplininary proceedings were initiated against him on the ground that he had absented himself without reasonable cause. Finally, an order of dismissal from service was passed against him. 3. Along with the writ petition the petitioner filed certain medical certificates in support of his plea that he was ill after 15th October, 2003 and therefore, could not rejoin his duties. According to Ms. S. Deb Gupta, the petitioner could not even take part in the earlier proceedings because he was unwell during these proceedings. The learned single Judge has relied upon the medical certificates filed by the petitioner. It was urged on behalf of the State that these medical certificates were manufactured or had been procured but the learned single Judge rejected this plea on the ground that no inquiry report or examination report about the authenticity of the medical certificates had been placed on record. 4. We are unable to agree with this line of reasoning of the learned single Judge. It was for delinquent official to have produced the documents before the inquiry officer and these were never produced before him. Some of these documents were filed with the representation made to the higher authority later on. Those cannot be taken into consideration because the Court has to decide the matter only on the basis of the evidence led before the disciplinary authority. Some of these documents were filed with the representation made to the higher authority later on. Those cannot be taken into consideration because the Court has to decide the matter only on the basis of the evidence led before the disciplinary authority. If the Court wants that some documents which were not placed before the inquiry officer should be taken into consideration then the only proper course is to remand the matter to the inquiry officer where the delinquent official can be given an opportunity to lead evidence and prove the documents and the department will also have a right to cross-examine the witnesses of the delinquent official and also to prove otherwise that these documents are either false or cannot be relied upon or do not show sufficient cause for absence from duty. 5. The learned single Judge dealing with Rule 38(3) of the Tripura State Rifles (Discipline, Control, Service Conditions etc.) Rules, 1986 also in our opinion totally misinterpreted the said provision which reads as follows:- “5. Learned counsel for the petitioner cited Section 12 of Tripura State Rifles Act, 1983, which prescribes about the minor punishment. Learned counsel further contended that disciplinary authority without considering the facts and circumstances of the absence of the petitioner from service, dismissed him from the service so he may be reinstated.” The learned single Judge went on to hold as follows:- “9. On bare perusal of the Rule 38 sub-Rule (3) of Tripura State Rifles (Discipline, Control, Service Conditions etc.) Rules, 1986 as referred above, it is understood and apparent to me that the Commandant has no authority to pass a dismissal order. From that point of view also, the dismissal order dated 30th August, 2004 (Annexure 12) is defective and bad in law.” 6. We are not at all in agreement with this portion of the judgment of the learned single Judge. What Rule 38(3) provides is that a Commandant cannot impose punishment of dismissal or removal from service or compulsory retirement or deduction in rank upon a member of the Tripura State Rifles holding the rank of Subedar. The Commandant has full right to impose such penalties on persons holding the rank lower than that of Subedar. The petitioner was only a Rifleman and the Commandant could very well have imposed such punishment. 7. The Commandant has full right to impose such penalties on persons holding the rank lower than that of Subedar. The petitioner was only a Rifleman and the Commandant could very well have imposed such punishment. 7. In view of the above discussion, we set aside the judgment of the learned single Judge. However, we do feel that an opportunity should be given to the petitioner to put forth his case. We, therefore, also set aside the report of the inquiry officer and direct that an inquiry may start again from the post charge stage. The petitioner is directed to appear before the Commandant respondent No.2 in WP (C) No. 207 of 2005 on 27th April, 2016 who shall intimate the petitioner who is the new inquiry officer to be appointed and thereafter the inquiry officer shall proceed from the post charge stage and shall record the evidence of the department afresh and give an opportunity to the delinquent official to cross-examine the departmental witnesses and thereafter the delinquent official, if he so desires, may lead evidence in support of his case. This inquiry be completed latest by 31st August, 2016. In case the petitioner tries to delay or hamper the inquiry the department shall be at liberty to approach this Court for modification of this order. 8. The petitioner shall not be reinstated in service at this stage and his reinstatement etc. will depend upon the final order passed by the disciplinary authority after the inquiry is completed and at that stage the disciplinary authority may also decide how this period has to be treated. The appeal is disposed of in the aforesaid terms.