Allowed

Manoranjan Sharma v. the State of Tripura and Ors.

Tripura HC1 Jun 2017WP(C)/1048/2016

Case brief

AI extract

What is this about?

This writ petition challenged the dismissal of a military cook from service for overstaying leave. The court found while the inquiry procedure was valid, the penalty of dismissal was excessive for the established misconduct and the petitioner was not properly heard. The writ was allowed, quashing the dismissal and directing a fresh inquiry to afford the petitioner an opportunity to file a reply.

What did the court decide?

The impugned orders were quashed. The petition is allowed. The disciplinary authority is directed to reconsider the case and afford the petitioner an opportunity to file a reply.

Manoranjan Sharma Vs the State of Tripura… — Pension and Retirement Benefits | Tripura HC (2017)

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THE HIGH COURT OF TRIPURA AGARTALA WP(C) 1048 of 2016

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Sri Manoranjan Sharma, S/o Lt. Umesh Chandra Sharma, resident of Village – Nagicherra, Agartala, P.O. Nagicherra, P.S. Srinagar, Sub-Division-Sadar, District-West Tripura, PIN799004.

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………… Petitioner

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- Vs –

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The State of Tripura, represented by the Chief Secretary to the Department of Home, Government of Tripura having his office at New Secretariat Complex, Agartala, P.O. Kunjaban, P.S. West Agartala, Sub Division-Sadar, District-West Tripura, PIN-799006.

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The Director General of Police, Government of Tripura, having his office at Police Head Quarters, Agartala, P.O. Head Post Office, P.S. West Agartala, Sub-Division-Sadar, District-West Tripura, PIN-799001.

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The Commandant, 1^st Battalion, Tripura State Rifles, Veer Bandhu Gram, Gokulnagar, P.O. & P.S. Bishalgarh, Sub-Division-Bishalgarh, District-Sepahijala, PIN-

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………..Respondents.

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BEFORE

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THE HON’BLE MR. JUSTICE S. TALAPATRA

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For the petitioner : Mr. A Pal, Advocate For the respondents : Mr. B Dutta, Advocate Date of hearing and delivery of order : 01.06.2017. Whether fit for reporting : No.

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WP(C)1048/2016

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JUDGMENT AND ORDER (ORAL)

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Heard Mr. A Pal, learned counsel appearing for the petitioner as well as Mr. B Dutta, learned counsel appearing for the respondents.

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2. The petitioner, being aggrieved by the final order under No.F.592/TSR-I/MS/Pers/Estt/13/6743-47 dated 31.08.2013 (Annexure-P/3 to the writ petition) has preferred this petition inasmuch as the appellate authority by the order dated 13.10.2014 under No.9803-06/F.47(835)/DAP/TSR/RSV/13 (Annexure-P/4 collectively to the writ petition) has dismissed the appeal affirming the said final order dated 31.08.2013 as passed by the disciplinary authority, the Commandant, 1^st Bn, Tripura State Rifles (TSR). Even the revision preferred by the petitioner has been dismissed by the order dated 24.02.2015 under No.7642-44/F.8(309) -PHQ/TSR/2014 (Annexure-P/5 collectively to the writ petition) by the Director General of Police, Tripura.

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3. Mr. Pal, learned counsel for the petitioner has at the outset submitted that the entire proceeding is vitiated for following the wrong procedure. According to Mr. Pal, by the memorandum under No.F.592/TSR-I/Pers/MS/Estt/13/1879 dated 14.03.2013 (Annexure-P/1 to the writ petition) an inquiry was directed under Rule 14 of the CCS(CCA) Rules,1965 with the substance of imputations of misconduct based upon which the said inquiry had been directed. For purpose of reference, the charge as framed against the petitioner is extracted hereinunder:

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“STATEMENT OF ARTICLES OF CHARGE FRAMED AGASINT NO.20030592 E/F (COOK) MANORANJAN SHARMA OF „B‟ COY, 1^ST BATTALION TSR.

ARTICLE-I

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No.20030592 E/F (Cook) Manoranjan Sharma of „B‟ Coy, 1^st Bn TSR proceeded on 01(One) day Casual Leave w.e.f. 26.10.2012 (AN) to 27.10.2012 (AN). As such he was supposed to resume durites on 28/10/2012. But after expiry of leave 20030592 E/F (Cook) Manoranjan Sharma did not resume duties and has been absenting without any intimation which is prejudicial for the interest of discipline of a member of Rifles.

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Thus, No.20030592 E/F (Cook) Manoranjan Sharma is charged for gross misconduct.”

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[Emphasis added]

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4. Mr. Pal has candidly submitted that the petitioner did not file the written statement at any stage. However, he has on the basis of averments submitted that, the petitioner when wanted to resume his duties was not allowed even to enter into the battalion premises and even he was not allowed to participate in the preliminary hearing before the inquiring authority and as such he has been deprived of the reasonable opportunity as provided under Rule 14 of the CCS (CCA) Rules, 1965. Thereafter, the proceeding advanced ex parte against the petitioner, as it appears from the provisional order dated 14.08.02013 under No.F.590/TSR-I/MRS/Pers/Estt/13/6096 (Annexure P/2 to the writ petition). The inquiring authority submitted a finding holding that the petitioner was guilty of the charge. On the basis of that, the said provisional order was issued asking the petitioner as to why he shall not be dismissed from service and why the period of absence to the extent of 284 days shall not be treated as dies non . The petitioner did not file any representation against that provisional order dated 14.08.2013 and as a consequence thereof the final order dated 31.08.2013 has been passed by dismissing the petitioner from his service with immediate effect. The period of absence w.e.f. 28.10.2012 till the day of passing of final order has

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WP(C)1048/2016

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Page 3 of 8

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been directed to be treated as dies non . The petitioner has been struck off from the strength of 1^st Bn. TSR, w.e.f. 01.09.2013.

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5. The petitioner having received that order filed an appeal on 10.09.2014 but the appellate authority by the said order dated 13.10.2014 has regretted to interfere with the final order. Being persuaded by the desperate situation, the petitioner filed one revision petition to the Director General of Police on 25.10.2014. The said revision petition has also been dismissed on observation that the charge framed against the petitioner has been established beyond any doubt. Even the penalty for committing gross misconduct under Section 12(1)(j) of the TSR Act, 1983 has been affirmed.

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6. Mr. Pal, learned counsel at this juncture has submitted that Section 12(1)(j) provides only for dismissal in respect of major offences for disobedience, negligence in duty, remissness in the discharge of any duty or other misconduct which is prejudicial to good order and discipline of the Rifles. Mr. Pal, learned counsel has submitted that if the charge is read it would be apparent on the face of S.11 (m) of the TSR Act, 1983 that the misconduct as alleged to have been indulged in by the petitioner falls under that provision which reads as under:

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“S.11(m) absents himself without leave, or without sufficient cause overstays leave granted to him; or

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(n) is guilty of any act or omission which, though not specified in this Act, is prejudicial to good order and discipline; or”

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Even S.11 (o) of the TSR Act.1983 provides that [the act] ‘contravenes any provisions of this Act for which no punishment is expressly provided’ also be guided under Section 11 of the said Act.

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7. Mr. Pal, learned counsel has resorted to an additional ground to attack the impugned proceeding by contending that in view of Section 18(3)(i), the disciplinary authority does not have the jurisdiction to hold the inquiry by itself or by any other officer inasmuch as that provision clearly provides that when the offender is on leave or absent from duty or not on active duty, then such misconduct shall be inquired into or tried by the Rifles Court which may be convened under Section 18(A) of the Act.

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8. Mr. B Dutta, learned counsel for the respondent has submitted that the allegation made in the writ petition about not allowing him to enter into the premises or take part in the preliminary hearing is baseless and fabricated. No such occurrence has ever been reported to the authority by the petitioner. This cannot be taken into cognizance by the Court. These are mostly afterthought for building up a case against the respondents. Thereafter, Mr. Dutta has submitted that this is not the first misconduct or negligence in duty indulged by the petitioner. In the past also on several occasions the petitioner had indulged in the misconduct and as such his misconduct is well covered by S.12(1) of the TSR Act, 1983 which provides that the Commandant or any other authority as may be prescribed, may, subject to any rules made under this Act, impose on a member of the rifles one or more of the punishments for disobedience, negligence in duty, remissness in the discharge of any duty or other misconduct which is prejudicial to good order and discipline of the Rifles. Therefore, the dismissal is a just one inasmuch as in the previous occasion also the petitioner had been found indulging in negligence in duty and remissness in discharge of the duty which was prejudicial to the good order and discipline of the rifles.

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9. In response to the ground of lack of jurisdiction by the disciplinary authority, Mr. Dutta has submitted that the case was dealt departmentally and punishment was given under Section 12(1)(j) of the TSR Act, 1983. Thus, the Section 18(3)(i) of the TSR Act does not have any application.

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10. Having regard to the records as well as the averments and submissions of the learned counsel, this Court is of the view that from a bare reading of the charge sheet it would be apparent that the charge against the petitioner is simply overstaying of the leave. There is no allegation against him that by his conduct he has acted in a manner which is prejudicial to the discipline of the force. Mr. Dutta, learned counsel has submitted before this Court that the petitioner’s aberration is repeated again and again and the allegation made in the said memorandum dated 14.12.2013 is not the solitary instance and as such his negligence to duty has been brought under Section 12 of the TSR Act and accordingly the order of dismissal does not suffer from any infirmity. This Court is unable to accept such plea inasmuch as if it is a case of repeated misconduct or negligence in duty by way of absenting from the post, such allegation or charge has to be clearly mentioned in the memorandum of charges. Even, such allegation may form a separate charge. Otherwise the respondent cannot be permitted to take cognizance of such misconduct.

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11. Apparently, it appears that the case is well covered by the misconduct as catalogued under Section 11(m) of the TSR Act. At the same time, contention of Mr. Pal also cannot be accepted that such allegation cannot be inquired under Rule 14 of the CCS(CCA) Rules, 1965.

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Inquiry can be conducted under Rule 14 of the CCS (CCA) Rules even if a minor penalty is proposed inasmuch as Rule 16(1)(b) of the CCS (CCA) Rules provides to hold an inquiry in the manner as laid down in the sub-rule (3) to (23) of Rule 14, in every case in which the Disciplinary Authority is of the opinion that such inquiry is necessary. Therefore, even for a minor offence or misconduct which will warrant a minor punishment, inquiry can be held under Section 14 of the CCS (CCA) Rules, 1965.

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12. As such, there is no defect in proceeding against the petitioner under Rule 14 of the CCS (CCA) Rules. What this Court has found is that the general allegation made against the respondent is that the petitioner was not permitted to participate in the proceedings in an effective manner as he was resisted from participating in the proceedings. 13. Even if this Court does not give a seal of affirmation on such allegation but since it falls within the category of minor penalty, in the considered view of this Court, the petitioner shall be given a fresh chance to say his defence to the disciplinary authority first. If the disciplinary authority is not satisfied with his reply then the disciplinary authority may or may not decide to revert the matter to the inquiry on affording all opportunities to the petitioner. But on the face of it, as this Court is persuaded to observe that the misconduct as depicted in the memorandum dated 14.12.2013 is covered under Section 11(m) of the TSR Act, the penalty ought not to have been dismissal which falls under Section 12(1)(j) of the TSR Act.

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14. Having a cumulative assessment of the emergence as above, the impugned orders are quashed. The disciplinary authority, the Commandant, 1^st Bn TSR is directed to recommence the proceeding from

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the stage of giving opportunity to the petitioner to file a reply in respect of his overstaying and if the disciplinary authority is not satisfied with the reply, then it will be at liberty to institute a departmental inquiry for proceeding against the petitioner appropriately.

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15. Since the memorandum of charge was filed on 14.03.2013 it is expected that the entire exercise including the departmental inquiry, if required, shall be completed within a period of six months from the date when the petitioner shall furnish a copy of this order to the disciplinary authority. It is made clear that if for any reason or for non-cooperation of the petitioner the departmental proceeding cannot be completed within six months the respondent No.1 may approach this Court for extension of time.

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16. The petitioner is also directed to participate in the proceeding with all earnestness. If it is found that he has become instrumental for delaying the proceeding, stern action may be taken, if such conduct is brought to the notice of this Court. At this stage, this Court will not pass any other order. If the petitioner is exonerated or minor penalty is imposed on him, according to such order the petitioner will get other benefits.

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17. In view of the above, the writ petition is allowed to the extent as indicated above. However, there shall be no order as to costs.

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JUDGE

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Manoranjan Sharma v. the State of Tripura and Ors.

Case brief

What is this about?

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Manoranjan Sharma v. the State of Tripura and Ors.

Case brief

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