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2022 DIGILAW 82 (TRI)

Bishnu Pada Dhar v. State of Tripura

2022-02-16

S.TALAPATRA

body2022
JUDGMENT S. Talapatra, J. - Heard Ms. S. Debgupta, learned counsel appearing for the petitioner as well as Mr. D. Bhattacharya, learned G.A. assisted by Mr. S. Saha, learned counsel appearing for the respondents. 2. By means of this writ petition, the petitioner has challenged the Inquiry Report dated 26.12.2018 [Annexure-4 to the writ petition], the Provisional Order dated 29.12.2018 [Annexure-5 to the writ petition], the Final Order of Penalty dated 31.01.2019 [Annexure-7 to the writ petition] whereby the petitioner has been dismissed from the service, the Order dated 15.07.2019 passed by the appellate authority [Annexure-9 to the writ petition], the Order dated 15.09.2020 [Annexure-R/6 to the reply filed by the respondents] whereby the purported review petition filed by the petitioner was dismissed. 3. This is the second round of litigation. The petitioner had approached this court earlier by filing a writ petition being WP(C) No. 289 of 2017. The said proceeding was disposed of, by returning the following observation and direction: 'The inquiry report dated 28.09.2013 and the impugned orders dated 29.09.2013, 22.10.2013, 19.11.2013 and 09.12.2013 are hereby set aside. The respondents were given liberty to commence a fresh inquiry from the stage subsequent to submission of the written statement of defence. It was made clear that the petitioner shall be provided with all safeguards as provided under Rule 14 and 15 of the CCS(CCA) Rules, 1965 as well as every constituents of natural justice. The disciplinary proceeding shall be brought to its logical end as expeditiously as possible but by any rate, within a period of 6(six) months from the day of receipt of that order.' The petitioner was levelled with four articles of charge which are as follows: Article-I 'That the said No. 97040552 NK (GD) Bishnu Pada Dhar of C Coy was detailed to perform the duties of guard commander for 24 hrs w.e.f. 27.05.2013 at 0700 hrs at Birmani Post, but before engaging him his duty he consumed country made liquor in the house of Shri Nehendra Reang (58) S/o Lt. Muktadhar Reang of Birmani Para at about 0830 hrs. Thus he has committed a gross misconduct, which is an act of prejudicial to good order and discipline of the Rifles U/S. 12(1) of the TSR Act, 1983. Article-II That the said No. 97040552 NK (GD) Bishnu Pada Dhar of C Coy 13th Bn. Muktadhar Reang of Birmani Para at about 0830 hrs. Thus he has committed a gross misconduct, which is an act of prejudicial to good order and discipline of the Rifles U/S. 12(1) of the TSR Act, 1983. Article-II That the said No. 97040552 NK (GD) Bishnu Pada Dhar of C Coy 13th Bn. TSR (IR-IX) on 27.05.2013 at 2030 hrs made a quarrel in a booze condition with Rfn (GD) Jadav Chandra Das in the recreation room and further in the Jawan Mess. He has kicked in the door of all jawan barracks. Thus he has committed a gross misconduct, which is an act of prejudicial to good order and discipline of the Rifles U/S. 12(1) of the TSR Act, 1983. Article-III That the said No. 97040552 NK (GD) Bishnu Pada Dhar of C Coy 13th Bn. TSR (IR-IX) on 27.05.2013 at 20345 hrs kicked the door of Post I/C N/S(GD) Sudeb Das using filthy language and also said that earlier he had murdered one and nothing will be happened if he murder one more. Creation of indiscipline activities in the camp premises is a strictly violation of TSR norms. Thus he has committed a gross misconduct, which is an act of prejudicial to good order and discipline of the Rifles U/S. 12(1) of the TSR Act, 1983. Article-IV That the said No. 97040552 NK (GD) Bishnu Pada Dhar of C Coy 13th Bn. TSR (IR-IX) on 27.05.2013 during arms cleaning parade had broken the Gas Plug locking pin of a Insas 5.56 strictly due to his inattention and later the matter has not been highlighted before the concerned authority in time. His inattention practice and later negligency to inform authority in time in respect to the arm caused damage to Govt. property. Thus he has committed a gross misconduct, which is an act of prejudicial to good order and discipline of the Rifles U/S. 12(1) of the TSR Act, 1983.' 4. Pursuant to the said judgment dated 14.12.2017 [Annexure-1 to the writ petition], the petitioner was reinstated in the service, but he was asked to face a fresh inquiry as initiated by the order dated 28.10.2018 [Annexure-3 to the writ petition]. After the inquiry was concluded, the findings of the inquiry authority were placed before the disciplinary authority. Those findings dated 26.12.2018 are available at Annexure-4 to the writ petition. After the inquiry was concluded, the findings of the inquiry authority were placed before the disciplinary authority. Those findings dated 26.12.2018 are available at Annexure-4 to the writ petition. Immediately, thereafter, on 29.12.2018, by the provisional order [Annexure-5 to the writ petition], the disciplinary authority had proposed the punishment of dismissal from service. However, the petitioner was granted fifteen days time for making representation against the provisional order. Against the provisional order for punishment, the petitioner had filed his representation on 11.01.2019 [Annexure-6 to the writ petition] placing inter alia that the inquiry officer did not record his statement in terms of Rule 14(18) of CCS(CCA) Rules, 1965 and hence, the inquiry report is unsustainable. 5. Having considered the said representation, it is contended by the respondents that the final order dated 31.01.2017 was passed. The petitioner has been dismissed from the service under Section 12(1)(j) of the TSR Act, 1983. This order was challenged by the petitioner by filing an appeal under Rule 23(ii) of the CCS(CCA) Rules, 1965 citing inter alia that the safeguards as provided by Rule 14 have not been provided to him. That apart, he was not given to make representation in his defence against the report of the inquiry authority. However, the petitioner has admitted that he has filed the representation against the provisional order of penalty. 6. The appellate authority having considered that memorandum of appeal, filed on 13.03.2019 [Annexure-8 to the writ petition], passed its final order having observed that there is no reason to interfere with the order of dismissal from service. Accordingly, the final order passed by the disciplinary authority was affirmed. The said order of the appellate authority dated 15.07.2019 [Annexure-9 to the writ petition]was called in question by filing a purported review petition before the Inspector General of Police [TSR & Ops]. In the said review petition, the petitioner has elaborated the grounds, based on which he had contended that findings in the inquiry report are unsustainable. However, the said purported review petition was also dismissed by the order dated 15.09.2020 [Annexure-12 to the writ petition]. It has been observed by the purported reviewing authority that it does not appear that the said order of penalty suffers from any infirmity. Thus, the order of dismissal has been upheld. Even, the order of the appellate authority has been affirmed. 7. It has been observed by the purported reviewing authority that it does not appear that the said order of penalty suffers from any infirmity. Thus, the order of dismissal has been upheld. Even, the order of the appellate authority has been affirmed. 7. The respondents by filing a reply in this writ petition have inter alia stated that all opportunities in terms of the order of this court and in terms of the provisions of Rule 14 and 15 of the CCS(CCA) Rules have been afforded to the petitioner and after affording opportunity of filing a representation against the provisional order of penalty, the final order of penalty was passed. In response to the plea as raised in the writ petition that the penalty that has been awarded is disproportionate to the charge, it has been stated that it is the discretion of the disciplinary authority to appreciate the evidence available before it and to determine the gravity of misconduct, and thereafter to award the punishment. There is no impropriety or illegality in awarding the punishment. Thus, the plea of the petitioner that the misconduct falls within the category of minor penalties cannot be sustained. 8. According to Mr. D. Bhattacharya, learned G.A. appearing for the respondents, the charges are very serious in nature. A person from a disciplined force cannot be allowed to take the discipline at ransom. Mr. Bhattacharya, learned G.A. has relied on a decision of the apex court in Lucknow Kshetriya Gramin Bank (now Uttar Pradesh Gramin Bank) and Another v. Rajendra Singh reported in (2013) 12 SCC 372 where the apex court has restated the law by observing that the award of punishment essentially falls in the domain of the disciplinary authority and the disciplinary authority is to decide the nature and quantum of punishment when the charges of misconduct are proved. 9. In response to the submission of Mr. Bhattacharya, learned G.A., Ms. Debgupta, learned counsel appearing for the petitioner has stated that if the punishment is shockingly disproportionate, the judicial review on the basis of proportionality is permitted, it is not completely prohibited. In this regard, she has referred the decision of the apex court in Syed Zaheer Hussain v. Union of India and Others reported in (1999) 9 SCC 86 and Ranjit Thakur v. Union Of India And Ors. reported in (1987) 4 SCC 411. According to Ms. In this regard, she has referred the decision of the apex court in Syed Zaheer Hussain v. Union of India and Others reported in (1999) 9 SCC 86 and Ranjit Thakur v. Union Of India And Ors. reported in (1987) 4 SCC 411. According to Ms. Debgupta, learned counsel, the punishment is unduly harsh and as such, this court can extend its jurisdiction for review of the punishment vis-à-vis the charge. 10. Ms. Debgupta, learned counsel has further submitted that in Ministry of Finance and Another v. S.B. Ramesh reported in (1998) 3 SCC 227 the apex court has held that the enquiry was conducted in a manner which can be called unsatisfactory because the enquiry officer did not attempt to question the delinquent on the evidence appear against him in the proceedings as per Rule 14(18) of CCS(CCA) Rules. 11. It has been further contended by Ms. Debgupta, learned counsel that it is incumbent on the inquiry authority to question the officer facing the charge, on the evidence appearing against him in a case where the officer does not offer himself in the examination as the witness. According to her, it is a mandatory provision and omission thereof vitiates the entire proceeding. 12. At the direction of this court, the respondents have produced the disciplinary proceeding records and this court has perused the said records. It does not appear from the said records that before the order of provisional punishment was issued, the petitioner was given any opportunity of filing the representation against the findings recorded in the enquiry report. Rule 15(2) of CCS(CCA) Rules, 1965 succinctly provides that the disciplinary authority shall forward or cause to be forwarded the report if the enquiry is not held by the disciplinary authority a copy of the report of the inquiring authority together with its own tentative reasons for disagreement, if any, with the findings of inquiring authority on any article of charge to the Government servant, who shall be required to submit, if he so desires, his written representation or submission to the Disciplinary Authority within fifteen days, irrespective of whether the report is favourable or not, to the Government servant. 13. Rule 15(4) is unequivocal and provides how the further steps should be embarked upon. 13. Rule 15(4) is unequivocal and provides how the further steps should be embarked upon. For purpose of reference, Rule 15(4) of CCS(CCA) Rules, is reproduced hereunder: 'The Disciplinary Authority shall consider the representation under sub-rule (2) and/or Clause (b) of sub-rule (3), if any, submitted by the Government servant and record its findings before proceeding further in the matter as specified in sub-rules (5) and (6).' Sub-rule (5) and Sub-rule (6) of Rule 15 of CCS(CCA) Rules deal with the penalties and the representation on the provisional order of penalty. 14. This court has failed to find out any communication from the departmental proceeding file that the disciplinary authority had observed the mandate of Rule 15(2) of CCS (CCA) Rules, 1965. This is a unique safeguard which has been incorporated in view of law decided by the apex Court in Union of India and Others v. Mohd. Ramzan Khan reported in (1991) 1 SCC 588 . 15. The court is satisfied that denying that opportunity, the respondent has deviated from the laid down procedure which is a substantive in nature. For denial of safeguard, this court is inclined to interfere with the action of the respondents as taken in pursuance to the said inquiry report. Hence, the inquiry report dated 26.12.2018 [Annexure-4 to the writ petition], the provisional order dated 29.12.2018 [Annexure-5 to the writ petition], the final order of penalty dated 31.01.2019 [Annexure-7 to the writ petition] whereby the petitioner has been dismissed from the service, the order dated 15.07.2019 passed by the appellate authority [Annexure-9 to the writ petition], the order dated 15.09.2020 [Annexure-R/6 to the reply filed by the respondents] are interfered with and set aside. But this court will not exonerate the petitioner from the charge, rather would remand the matter to the disciplinary authority to re-appreciate the materials. To be more precise, the respondents are directed to allow the petitioner to file a representation against the findings of the inquiry authority within a period of fifteen days from the date of receipt of their communication. It may also be noted that the objection as raised by the petitioner in respect of non-compliance of Rule 14(18) of CCS (CCA) Rules, 1965 may be taken as a ground to challenge the inquiry report in the representation, as contemplated. It may also be noted that the objection as raised by the petitioner in respect of non-compliance of Rule 14(18) of CCS (CCA) Rules, 1965 may be taken as a ground to challenge the inquiry report in the representation, as contemplated. The disciplinary authority, if such ground is taken, would definitely appreciate whether there was any prejudice for not granting the opportunity of being questioned by the inquiry authority. The disciplinary authority shall on appreciation of the representation take the final decision by ensuring compliance of Rule 15(5) and Rule 15(6) of the CCS(CCA) Rules. The petitioner may be restated during the period of consideration. It is expected that the disciplinary authority shall complete the entire process within a period of two months from today. Consequential benefits, if any, will remain pending subject to the outcome of the disciplinary proceeding. In terms of the above, this writ petition stands allowed and disposed of. There shall be no order as to costs. Records as produced by the Mr. S. Saha, learned counsel stands returned.