SRI ANJAN MAJUMDER v. STATE OF TRIPURA &
Legal Reasoning
Party Name : SRI ANJAN MAJUMDER Vs STATE OF TRIPURA & 3 ORS. HON''BLE MR JUSTICE U B SAHA
Decision
The instant writ petition is filed by the petitioner, a member of the Tripura State Rifles for quashing the inquiry report dated 06.08.2012 (Annexure-5 to the writ petition) and also for quashing the order of punishment dated 21.08.2012 (Anenxure-7 to the writ petition). Heard Mr. KN Bhattacharjee, learned senior counsel assisted by Mr. S Acharjee, learned counsel for the petitioner as well as Ms AS Lodh, learned Addl. GA for the State respondents. As agreed to by the learned counsel for the parties, the instant writ petition is taken up for final disposal at the order stage. Brief facts needed to be discussed are as follows:- That the petitioner was appointed as Rifle Man in the Tripura State Rifles (for short, “TSR”) and accordingly, he had joined on 15.04.1985. While the petitioner was given the charge of Wet of Dry Canteen of the 7th Bn TSR, the petitioner was asked by the respondent No. 3 to handover charge of the said canteen to one Dipendra Das on 05.02.2012 for which he had to work whole night as per the order of the Assistant Commandant and thereafter the petitioner fell sick and sought for 30 days earned leave which was forwarded by the Incharge ADAM company on 07.02.2012 and he was also recommended 30 days home rest, i.e. from 07.02.2012 to 07.03.2012. Thereafter, a departmental proceeding was initiated by the respondent No. 3, Commandant on 05.04.2012 (Anenxure-2 to the writ petition) as the petitioner allegedly did not comply with the order of attachment to Tac HQ, 7th Bn, TSR at Chawmanu on the following charges:- “Article-I That the said NK(GD) No. 85010538 Anjan Majumdar of “C” Coy, 7th Bn. TSR (IR-VI) while deployed at Bn. HQ, Sangkumabari was ordered for attachment to Tac HQr, 7th Bn TSR at Chawmanu by IGP(TSR & Ops), Tripura, but did not comply with the order and thereby disobeys the lawful command of his Superior Officer punishable under Section 12(1) of TSR Act, 1983”. Article-II That the said NK(GD) No. 85010538 Anjan Majumdar of “C” Coy, 7th Bn. TSR (IR-VI) while deployed at Bn. HQ, Sangkumabari on 10.02.2012 at 1530 hrs denied to receive command certificate No. 0212/TSR-7/GD/Move/2012 dated 10.02.2012 for reporting to Chawmanu post on the plea of illness and grossly insubordinate to his Superior Officer in the execution of his office and thereby punishable under section 12(1) of TSR Act, 1983. That the said NK(GD) No. 85010538 Anjan Majumdar of “C” Coy, 7th Bn. TSR (IR-VI) while deployed at Bn. HQ, Sangkumabari, Jampuijala remained absent from duty w.e.f 11.02.2012 at 0715 hrs till the date issue of this memorandum of charge which is prejudicial to good order and discipline of the Rifles and thereby punishable under section 12(1) of TSR Act, 1983”. Thereafter, an enquiry was held for proving the charges and the petitioner also participated in the inquiry and ultimately, the inquiring authority submitted the report wherein it is stated that Article Nos. 1 and 3 have been proved. Upon receipt of the inquiry report, the respondent No. 3 passed the provisional punishment order dated 21.08.2012 wherein the disciplinary authority, Commandant 7th Bn TSR stated, inter alia, that “I concur with the findings of the Enquiry Officer. The Charged official disobeys the lawful command of the IGP (TSR & OPS) Tripura for attachment to the Tac HQr, Chawmanu and remained absent from duty w.e.f. 11-02-2012 at 0715 hrs to till the date of issue of this provisional punishment order is against discipline of the Rifles. He is not a fit person to be retained in service. Accordingly, the undersigned has decided to impose the major penalty of ‘dismissal’ from service under section 12(1)(j) of TSR Act, 1983 upon No. 85010538 NK(GD) Anjan Majumdar of ‘C’ Coy, 7th Bn TSR (IR-VI)” and asked the petitioner to submit representation on the above proposed penalty. As according to the petitioner, the impugned order dated 21.08.2012 is not a provisional punishment order but a final one, the petitioner has filed the instant writ petition with the prayers as stated supra. The State respondents by way of filing their counter affidavit denied the contention of the petitioner that the impugned order dated 21.08.2012 is not a provisional punishment order rather a final dismissal order. It is also contended in the counter affidavit that in a matter of disciplinary proceeding the Court normally should not interfere with the order of punishment unless the punishment is dis-proportionate and shocking one. In the instant case, the petitioner even before completion of the disciplinary proceeding approached this Court. Thus on that count alone the writ petition is not maintainable. It is also stated that the petitioner has applied for sanction of 30 days commuted leave w.e.f. 07.02.2012 which was not considered by the competent leave sanctioning authority and the matter was communicated to the petitioner on 10.02.2012 and thereafter the petitioner again submitted another application on 06.03.2012 for sanction of 21 days medical leave w.e.f. 05.03.2012 and thereafter he did not turn up to his duty and remained absent without any intimation of this competent authority. Mr. Bhattacharjee, learned senior counsel while urging for the relief sought for would contend that the provisional punishment order is actually the final punishment order, thus question of filing any representation in view of the alleged provisional punishment order would in no way help the petitioner as normally when an authority takes a decision they do not retract from the said decision even if a representation is submitted by the delinquent employee. In support of his aforesaid contention he has placed reliance on a decision of the Apex Court in HL Trehan Vs. Union of India and Ors., AIR 1989 SC 568, wherein the Apex Court noted that “the view that has been taken by this Court in the above observation is that once a decision has been taken, there a tendency to uphold it and a representation may not yield any fruitful purpose. Thus, even if any hearing was given to the employees of CORIL after the issuance of the impugned circular, that would not be any compliance with the rules of natural justice or avoid the mischief of arbitrariness as contemplated by Article 14 of the Constitution”. He further submits that in the departmental inquiry the petitioner was not provided any defence assistance though he is entitled to such assistance in accordance with law. Thus, the entire departmental proceeding is vitiated due to non-compliance of principles of natural justice. Per contra, Ms Sarma Lodh while supporting the impugned order of provisional punishment would contend that unless a decision has been taken regarding the nature of punishment, the disciplinary authority cannot ask the delinquent officer to give representation against such proposed punishment. In the instant case, very rightly the authority concerned has taken the decision for imposing the penalty of dismissal from service and provided an opportunity to the petitioner for making representation on the said proposed penalty. She further submits that it would be improper to come to a conclusion that once the disciplinary authority takes a decision for awarding a punishment to be imposed, it would not change its mind upon perusal of representation, if any filed. She also submits that the decision relied upon by the learned counsel for the petitioner in HL Trehan (supra) would in no way help the petitioner as the fact of that case is totally different than the case in hand. In that case, under Section 3 of the Act, the shares in the capital of the CORIL stood transferred to and vested in the Central Government on the appointed day being December 30, 1976. Under Section 5, the right, title and interest of Caltex (India) Ltd. in relation to its Undertakings in India stood transferred to and vested in the Central Government on the appointed day. Section 9 of the Act provides that the Central Government may by a notification direct that the right, title and interest and the liabilities of Caltex (India) Ltd. in relation to any of the its Undertakings in India shall, instead of continuing to vest in the Central Government, vest in the Government Company either on the date of the notification or on such earlier or later date not being a date earlier than the appointed day, as may be specified in the notification, and considering the aforesaid fact the Apex Court said that once a decision is taken then there is a tendency to uphold it, and that case is not a case relating to disciplinary proceeding. Thus, that decision has no direct bearing with the instant case. She further submits that the petitioner was asked to submit representation against the provisional order but without filling any representation the petitioner approached this Court. Having heard the learned counsel for the parties and considering the relevant pleadings as available, this Court is of the considered opinion that the petitioner misunderstood the impugned order dated 21.08.2012 (Annexure-7 to the writ petition) wherein after taking the decision for imposing penalty of dismissal, the petitioner was asked to submit his representation on the proposed penalty. Unless a decision has been taken regarding the nature of penalty to be imposed how the authority would ask the delinquent employee to make a representation on the said proposed penalty. Thus, it cannot be said that the provisional punishment order is virtually a final order of punishment. If a writ petition is filed for quashing the provisional order of punishment before passing the final order by the disciplinary authority then the statutory provisions of preferring appeal in the statute would be frustrated. It is also the admitted position that if a final order is passed by the disciplinary authority, the said order is appealable and if the delinquent officer is aggrieved by that order, he can easily approach the said appellate authority. In the instant case, the petitioner before passing of the final order by the disciplinary authority approached this court even when he was asked to join in his duty on the basis of his application. When a person is asked to join in his duty, it cannot be said that final decision for dismissal has been taken by the authority. In the instant case, the disciplinary authority has yet not taken any final decision regarding the punishment for the misconduct committed by the petitioner. This Court hopes and trusts that if the petitioner submits a representation in terms of the order dated 21.08.2012, the disciplinary authority will consider the same on its merit and pass order in accordance with law after providing the petitioner all opportunity as he is entitled to. As the impugned order is an order of provisional punishment, it is not necessary to interfere with the said order. In view of the above, the petitioner is directed to immediately report the Commandant, and thereafter at his Bn HQr and the respondents are also directed to accept the petitioner’s joining as well as representation, if any filed, and take decision on his representation after providing him a personal hearing. In view of the above, the instant writ petition is disposed of. Download Date: 8-05-2017 16:05 2/2