Partly allowed

Shibu Debbarma v. State Of Tripura And Another

Tripura HC15 May 2017WP(C)/243/2013

Case brief

AI extract

What is this about?

The High Court set aside impugned departmental orders imposing penalty and recovery of funds from a Junior Store Keeper. The court held that the petitioner was denied natural justice as Rule 15(2) of CCS (CCA) Rules was violated by not affording him an opportunity to respond to the note of disagreement. The court remanded the matter for proper consideration of representations.

What did the court decide?

Impugned orders dated 07.12.2010 and 19.10.2011 set aside; petitioner given opportunity to respond to note of disagreement; amounts withdrawn if representation is favorable to be returned.

Shibu Debbarma Vs State Of Tripura And Another — Service and Employment | Tripura HC (2017)

¶1

THE HIGH COURT OF TRIPURA AGARTALA

¶2

WP(C) 243 of 2013

¶3

Sri Shibu Debbarma, son of late Bimal Debbarma, Junior Store Keeper, resident of Uttar Maharani Pur, P.S.Kalyanpur, District : Khowai, Tripura presently residing at Ujjan Abhoynagar, P.S. East Agartala, District : West Tripura

¶4

…………Petitioner

¶5

– Vs –

¶6

1. The State of Tripura, represented by the Secretary of Food, Civil Supplies and Consumer Affairs Department, Secretariat P.O. Kunjaban, Agartala, Tripura(West)

¶7

2. The Director of Food, Civil Supplies and Consumer Affairs Department, Government of Tripura, P.O. Kunjaban, P.N. Complex, Gurkhabasti

¶8

…………Respondents

¶9

B E F O R E

¶10

THE HON‟BLE MR. JUSTICE S. TALAPATRA

¶11

For the petitioner : Mr. B.N. Majumder, Advocate For the respondents : Ms. A.S. Lodh, Addl. G.A. Date of hearing : 05.05.2017 Date of delivery of : 15.05.2017 Judgment and order Whether fit for reporting : YES

¶12

Judgment and Order

¶13

By means of this writ petition, the petitioner who has

¶14

been working as the Junior Store Keeper has challenged the order No. F.2-6(6)-ESTT/DF/2006 dated 07.12.2010 [the petitioner has

¶15

Page 1 of 20

¶16

WP(C) 243 of 2013

¶17

erroneously mentioned the date as 30.04.2010], Annexure-P/3 to the writ petition and the order No. F.2-6(6)-Estt/DF/2006 dated 19.10.2011 [Annexure-P/5 to the writ petition]. The petitioner has further urged for restraining the respondents from deducting any amount in terms of the said orders dated 07.12.2010 and 19.10.2011 respectively Annexures P/3 and P/5 to the writ petition.

¶18

By the order dated 07.12.2010 [Annexure P/3 to the writ petition] the disciplinary authority (The Director of Food, Civil Supplies & Consumer Affairs) imposed minor penalty directing recovery of the purported amount which has been assessed as the pecuniary loss to the tune of Rs.1,21,748.90 from the salary of the petitioner by installments. By the order dated 19.10.2011, the appellate authority, the Commissioner & Secretary, Government of Tripura, Food Civil Supplies & Consumer Affairs Department affirmed the final order of the disciplinary authority.

¶19

It is not disputed that by the memorandum under No.F.2-6(6)-DF/2006 dated 31.10.2006, the following article of charge was framed against the petitioner :

¶20

“That, Sri Shibu Debbarma, Jr. Store-keeper while in the charge of Hrishymuk Govt. Food Go-down, Belonia SubDivision in South Tripura District during the period from 04.11.1998 to 06.10.2001 exhibited gross dereliction of duty, absolute carelessness, lack of integrity and devotion to duty entrusted with him by way of not maintaining the books of accounts and other records properly thereof in the manner prescribed/instructed by the competent Authority which is unbecoming on the part of a Government Servant and amounts to gross misconduct. By resorting to such activities with malafide intention to derive personal benefit, said Sri Shibu Debbarma, Jr. Store-keeper misappropriated 9945 Kg Rice, money value of which comes to Rs.1,21,748.90

¶21

Page 2 of 20

¶22

WP(C) 243 of 2013

¶23

(Rupees one lakh twenty one thousand seven hundred forty eight and paise ninety) only.

¶24

These sorts of activities on the part of said Sri Shibu Debbarma, Jr. Store-keeper of Hrishyamuk Govt. Food Go-down, Belonia, Sub-Division in South Tripura District attract Rule-3 of Tripura Civil Services (Conduct) Rules, 1988 and action thereof under Central Civil Services (Classification, Control & Appeal) Rules, 1965,”

¶25

In Annexure-2 to the said memorandum dated 31.10.2006, the statement of imputation of misconduct or misbehavior in support of the said article of charge has been placed in the following manner :

¶26

“That, Shri Shibu Debbarma, Jr. Store-Keeper while functioning as Store-Keeper in Kamalpur Govt. Food Godown, Belonia Sub-Division in South Tripura during the period from 04.11.1998 to 06.10.2001 was entrusted with the task of maintenance of stock of Rice with proper entry in the concerned books of account., As a godown-in-Charge (Store Keeper), he had to maintain Bin Card and Bin Card register for each and every incoming and outgoing stock and also to issue SAV for the stock found short or excess, as also to maintain gunny bag register and make proper entry of account of empty gunny bags.

¶27

It is found during the physical verification of the said Hrishyamukh Govt. Food Godown for the period from 04.11.1998 to 06.10.2001 when Shri Shibu Debbarma was the godown in-Charge (Store Keeper) of the said godown that there had been shortage as per SAVs issued by him which are detailed below :-

¶28

Sl.	SAV No. & date	Commodities	Total Shorta ge (in Kg)	Rate P/Kg	Amount
1	2	3	4	5	6
1	01 dt. 06.10.200 1	Gr-A Boiled Rice	251	@ Rs.12.25	Rs…..3,074.7 5
2	02 dt. 06.10.200 1	C.B Rice	110	@ Rs.11.60	Rs…..1,276.0 0
3	01 dt. 06.10.200 1	C.B. Rice	9	@ Rs.11.60	Rs…..104.40
4	05 dt. 06.10.200 1	Gr-A Boiled Rice	590	@ Rs.12.25	Rs…..7,227.5 0
5	04 dt. 06.10.200 1	Gr-A Rice	8985	@ Rs.12.25	Rs…..1,10,06 6.25
			9945		Rs.1,21,748.9 0

¶29

Page 3 of 20

¶30

WP(C) 243 of 2013

¶31

The value of above said shortages amounting to Rs.1,21,748.90 (Rupees One Lakh Twenty-one thousand Seven hundred forty-eight & paise Ninety) only in respect of Hrishyamukh Govt. Food Godown, Belonia during the aforesaid period was attributable to gross negligence, carelessness and fraudulent activities of the said Sri Shibu Debbarma, Jr. Store Keeper since he failed to maintain propriety as entrusted with him.

¶32

The said Shri Shibu Debbarma, Jr. Store-Keeper did not maintain the books of accounts and other relevant papers, like Bin Card, Bin Card Register, SAV etc. with malafide intention to mislead the Authority to derive his personal benefits which caused loss to the Govt. and thereby Sri Debbarma, Jr. Store Keeper exhibited lack of integrity, devotion to duty in violation of the instructions of the competent/superior authority which is unbecoming on the part of a Govt. Servant.”

¶33

The petitioner was asked to submit his written statement of defence. Initially, the petitioner prayed for extension of time by filing an application dated 21.11.2006. The extension as sought for was granted by the memorandum dated 08.12.2006 by the disciplinary authority. The petitioner nowhere, in the writ petition has asserted that he filed the written statement within the time as stipulated by the disciplinary authority. By the memorandum dated 28.02.2007, the disciplinary authority has further extended the time to enable the petitioner file the written statement. From the records, however, it appears that on 14.01.2007 the petitioner filed the written statement of defence against the charge which was received by the disciplinary authority on 22.01.2007. In the said written statement, the petitioner has asserted as under :

¶34

“Sir,

¶35

In obedience to your communication mentioned above, I beg to bring to your kind knowledge that there is no malafide intention or neglegency in duty on my part for the shortages occurred in Hrishyamukh Godown

¶36

Page 4 of 20

¶37

WP(C) 243 of 2013

¶38

during the period from 04.11.1998 to 06.10.2001 and I am in no way responsible for the shortages. (2) That sir, I maintained Bin Card and Bin Card Register of all incoming and outgoing stock with proper entry. I also maintained the Gunny Bags accounts. But unfortunately made me responsible for the shortage for non maintenance of Bin Card and Bin Card Register and Gunny Bag Register with malafide intention to mislead the authority which is not based on fact. So, the importance on the point does not stand good.

¶39

(3) That sir, the shortage actually occurred on the ground of defective /damage floor and roof of the godown in this connection my letter dated, 02.06.1999, 15.07.1999, 18.06.1999, 16.01.1999 and 02.08.1999 may kindly be referred to it is pertinent to refer the inspection report of the Go-down dated, 29.04.1998 of Asst. Director, Food & Civil Supplies, Belonia. Inspection report dated 17.10.1998 of the SDM Belonia, Inspection report dated 02.04.1999 of Inspector Food, Belonia, Inspection report dated 18.09.1999 and 25.03.2000 of the Senior Teach. Asst., Central store A.D. Nagar, Agartala.

¶40

It will appear from the above said reports that the shortage occurred on account of damage of the floor and roof of Go-down. Thus, I am not at all responsible for the shortage.

¶41

(4) In view of the obtaining circumstances, it will appear Crystal clear that the charge has been frame against me without basing on fact and records. It is made as a routine.

¶42

I hope that the above said submission will convince you that I am not responsible for non-maintenance of records and shortage thereof as mention in the charge and exonerate me, for which act of kindness I shall remain ever grateful to you.”

¶43

On the face of such statement, the disciplinary authority instituted the inquiry in terms of Rule 14 of the CCS (CCA) Rules, 1965 and the matter was referred to the Additional Commissioner of Departmental of Inquiries, Government of Tripura, Agartala. The said inquiry officer had registered that reference under Case No. 1118/INQ/Food/2007 and completed the inquiry without much trouble. According to the inquiry officer, the charge as brought against the petitioner could not be established. Therefore, the petitioner (the accused officer) was not found guilty for violation of Rule 3(1) Tripura Civil Services (Conduct) Rules, 1988. For understanding the basis of such finding, the relevant

¶44

Page 5 of 20

¶45

WP(C) 243 of 2013

¶46

part of the said inquiry report [Annexure-P/1] is extracted hereunder :

¶47

“6. POINTS FOR DECISION

¶48

(I) Whether the Accused Officer, during the period from 04.11.1998 to 06.10.2001 with a malafide intention to derive his personal benefit, mis-appropriate 9945 kgs Rice, money value of which comes to Rs.1,21,748.90.

¶49

(II) Whether the Accused Officer mis-lead the authority to derive his personal benefits by not maintaining the book of accounts and other relevant records like BIN cards, BIN card register, SAVs register with a malafide intention.

¶50

(III) Whether the Accused Officer has violated the provisions of Rule 3 (I) of Tripura Civil Services (Conduct) Rules, 1988.

¶51

7. ANALYSIS AND ASSESSMENT OF EVIDENCE AND FINDINGS

¶52

Point No.(I) : To meet this point, PW1 has stated in his deposition that as per his direction the then DCM, Belonia, Shibani Dey conducted physical of the Govt. Food Go-down, Hrishyamuk for the period from 04.11.1998 to 06.10.2001 and after completion offer physical verification Smt. Dey submitted verification report in Form „A‟ & „B‟ and endorsing 5 nos. SAVs with her comments which he forwarded with his further comments to the Director of Food, Civil Supplies & Consumers Affairs.

¶53

In cross, PW.1 has denied that his comments in the SAVs and his comments in the verification report of Exbt. S/1 are contradictory. PW-2 has stated that he remained present during the physical verification of the concerned go-down conducted by Smt. Shibani Dey in the year 2004 and he also put his signature in the report in proforma „A‟ & „B‟(Exbt. S/1 series). On the other hand, DW-1 has stated that at the relevant time he was holding the post of Sr. Technical Assistant under the Directorate of Food, Civil Supplies and Consumers Affairs and during his incumbency on many occasions he visited the Hrishyamuk Govt. Food go-down mainly when the A.O. was posted in the concerned go-down and during visit he found that the concerned go-down was not scientifically fit for storage of food grains and due to damaged condition of the floor of the concerned go-down there was rats‟ trouble for which he submitted his inspection report in the inspection book for shifting transaction of concerned go-down to Belonia to avoid to qualitative deterioration of the food grains and by said inspection note the Authority was requested to renovate the said go-down.

¶54

In cross, DW-1 has admitted that he made a routine visit to the concerned go-down for inspection but not based on any complain. He also admitted that

¶55

Page 6 of 20

¶56

WP(C) 243 of 2013

¶57

qualitative deterioration does not mean qualitative loss and he did not specifically send his inspection report to the Director of Food Department but he noted down his report in the report book for information to the all concerned but it was not aware of whether the A.O. Jr. Store keeper of the concerned go-down intimated the same to his authorities .

¶58

DW-2 has stated in his deposition that at the relevant time being the Area Inspector, Hrishyamuk godown was under his control for inspection. Accordingly, on many occasions he inspected the concerned go-down and found that the floor of the concerned go-down was almost damaged and there was rat troubles and also access of sparrow through the ventilators.

¶59

In cross, DW-2 has admitted that there were 32/33 nos. of ration shop for being caterred under this godown and within the Hrishyamuk there was only one godown and during his incumbency he looked after those ration shop and concerned go-down and he also admitted if any stock is qualitatively deteriorated, there should be substandard stock in the go-down.

¶60

Perused the above deposition and documentary evidences adduced by the prosecution through witnesses and as well as the written brief of argument submitted by the parties to the proceedings.

¶61

It is true that one Smt. Shibani Dey who conducted the physical verification was outside the state for training and as such she did not turn up for giving her deposition but PW-1 appeared and gave his deposition being the then SDM, Belonia. Though the then SDM, Belonia had no any personal knowledge about the physical verification but he acted upon in those reports (Exbt. S/1) series submitted by the verifying officer (Shibani Dey) by giving his valuable comments. Defence here agitated that there was no physical verification for the period from 04.11.98 to 06.10.2001 . The period of physical verification for which charge has been framed against the A.O. is from 04.11.98 to 06.10.2011 whereas the physical verification of stock annexed with the charge is on 01.11.2004 or 19.11.2004. The verifying officer Smt. Dey signed the verification report on 19.11.2004 whereas the concerned store keeper Sri Manik Nama , PW-1 mentioned that the physical verification was done w.e.f. 01.11.2004 and as such the defence claimed that the physical verification report was a got up case to harass the Accused Officer.

¶62

It is also true that PW-1 being the then SDM, Belonia has passed his commence in the proforma-B of Exbt. S/1 series that the shortage may be accepted and he has also passed his comments in proforma-B of Exbt. S/1 series that the shortage is justifiable. But in the inspection report of the concerned go-down submitted by Smt. Shibani Dey, the then DCM, Belonia, she passed no comments whether the shortage was justifiable or not. On the other hand, 5 no. of SAVs were issued by the Accused Officer and verifying officer passed her comments that SAVs were within permissible limits may be allowed considering the go-down condition whereas

¶63

Page 7 of 20

¶64

WP(C) 243 of 2013

¶65

during examination PW-1 has stated that he passed his comments to the effect that during physical verification conducted by Smt. Dey detected shortage of food grains and the said shortage was not justifiable. In such a position there is a vital contradiction in the deposition of the PW-1 and his comments in the inspection report, proforma-A, proforma-B and 5 no. of SAVs of Exbt. S/1 series. Besides, Smt. Shibani Dey conducted physical verification of the concerned go-down for the period from 04.11.1989 to 06.10.2001 and she has also recommended in the SAVs of Exbt. S/1 series that shortage may be accepted. On the other hand, she passed her comments that store keeper has failed to produce Bin card , Bin card register as a result it was quite impossible to ascertain the duration of stock or stock wise actual shortage of rice, quantities of stock against SAVs was permissible or not. But I find in the body of the SAVs of Exbt. S/1 series that the said verifying officer passed her comments having mentioned that the commence of the verifying officer in those SAVs and in the proforma-B of Exbt. S/1 series. Inspection report of Exbt. S/1 series also indicates that the verifying officer prepared by the report by putting her signature as on 19.11.2004 but on the other hand, the said report indicates that it was countersigned on 01.11.2004 by the store keeper (PW-2). Accordingly, it seems to me that before preparation of the said inspection report of verifying officer of Exbt. S/1 series was countersigned by the store keeper (PW-2) and as a result it will be evident that the said verifying officer put the cut before the horse. Therefore, a doubt creates in my mind whether there was any proper physical verification of the concerned go-down conducted by Smt. Dey. Considering the all aspects the shortages shown by the Accused Officer in the concerned Go-down during the period are almost permissible. Accordingly, I find no force to give the answer on this point in favour of the prosecution. Therefore, this point is decided in negative.

¶66

Point No.(II) : In view of the aforesaid discussions, I find that the prosecution case suffers from irregularities and infirmities. Therefore, I find no reason to give the answer on this point in favour of the prosecution. Accordingly, this point is decided in negative.

¶67

Point No.(III) : In view of the discussions and decisions arrived at in the aforesaid points, I find no force to give the answer on this point in favour of the prosecution. Therefore, this point is also decided in negative.”

¶68

On receipt of the said inquiry report dated 29.11.2008, the disciplinary authority recorded his note of disagreement by the memorandum under No. F.2-6(6)ESTT/DF/2006 dated 08.04.2010 [Annexure P/2 to the writ petition]. The relevant part of the said note of disagreement as

¶69

Page 8 of 20

¶70

WP(C) 243 of 2013

¶71

contained in the memorandum dated 08.04.2010 is also extracted:

¶72

“Whereas, after careful examination and going through the relevant records in file, I do not find reasonable grounds to agree with the said findings of the Inquiring Authority dated 29.11.2008. The findings of the Inquiring Authority cannot be agreed upon mainly on the following grounds :

¶73

(i) There is no denying the fact that there is admitted storages in the go-down since 5(five) Stock Adjust Voucher (SAVs) had been issued by the concerned A.O. being the Store-Keeper (Store-inCharge) of the godown, wherein, it appeared that total 9945 kg. of rice was adjusted as storage.

¶74

(ii) There is no justified grounds recorded in the relevant SAVs for such shortages either by Store-Keeper or Verifying Officer or concerned Sub-Divisional Magistrate, though there is one specific comment of the SDM, Belonia in the 22-Point Inspection Report “Shortage is not justifiable”. There is a standing guideline which provides that “in normal case, shortage not exceeding 0.5 % may only taken into consideration if the particular consignments remain in store for a period not less than one year.” But such shortage cannot be taken as granted automatically without proper justification of shortages of stocks. Acceptance of shortages within the limit could be considered only when there is compliance of other statutory instructions, such as, proper maintenance of book of accounts, Bin Card, Bin Card Register, SAV etc. In the instant case, there is specific report that the A.O. failed to produce proper records in respect of Bin Card, Bin Card Register etc. maintained by him.

¶75

(iii) The Inquiring Authority in his finding reported that “……it seems to me that before preparation of the said inspection report of verifying officer of Exbt. S/1 series was countersigned by the Store-Keeper (PW-2) and as a result, it will be evident that the said verifying officer put the cut before the horse. Therefore, a doubt creates in my mind whether there was any proper physical verification of the concerned godown conducted by Smt. Dey. Considering the all aspects the shortages shown by the Accused Officer in the concerned Godown during the period are almost permissible.”

¶76

The said findings of the Inquiring Authority cannot be agreed upon as it is an admitted fact that during undertaking of Physical Verification of Food Godown, consultation with all the relevant records are a must, to ascertain the actual state of affairs and the extent of irregularities in the godown. In the instant case, the Verifying Officer conducted in the same manner and based on the records, she prepared the statement and reports and also obtained the signature of the concerned Store-Keeper of the godown (dated

¶77

Page 9 of 20

¶78

WP(C) 243 of 2013

¶79

01.11.2004) before putting her signature in the report (dated 19.11.2004). As such, there appears no irregularities in conducting Physical Verification of the said godown.

¶80

AND

¶81

(4) Whereas, with this in view, I do hereby propose to disagree with the findings of the Inquiring Authority dated 29.11.2008 favourable to the charges employee, Sri Shibu Debbarma, Jr. Store-Keeper.

¶82

(5) Now, therefore, A.O., Sri Debbarma, Jr. StoreKeeper is hereby to Show Cause as to why the value of shortage amounting to Rs.1,21,749.00 (Rupees one lakh twenty one thousand seven hundred fourty nine) only would not be recovered from his salary. His reply should reach this office within 15 days from the receipt of this Memo.”

¶83

It is apparent that the showcause was restricted to why from the petitioner the value of the shortage amounting to Rs.1,21,749/- would not be recovered from his salary. By the order dated 07.12.2010, Annexure-3, the disciplinary authority imposed the minor penalty on the petitioner by directing recovery of the amount of pecuniary loss to the tune of Rs.1,21,749/- in monthly installments of Rs.3000 from his pay starting from the month of January, 2001. The petitioner being aggrieved by the said order dated 07.12.2010, Annexure 3 to the writ petition filed an appeal under Rule 23 of the CCS (CCA) Rules, 1965 to the Commissioner & Secretary, Government of Tripura, Food, Civil Supplies and Consumer Affairs on 28.01.2011 [Annexure-P/4 to the writ petition]. In the appeal, the petitioner has elaborately laid his grounds of objection in the following manner :

¶84

“That Sir, the Director, FCS & CA, Tripura have proposed to disagree the findings of I.A. dated 29.11.2008 favourable to the charged employee i.e. myself Sri Shibu Debbarma, Junior Store- Keeper and asked me to show cause as to why the value of shortage would not be recovered from my salary and instruction was given in the manner that my reply should reach his office within 15 days from date of receipt of Memo issued from his

¶85

Page 10 of 20

¶86

WP(C) 243 of 2013

¶87

end vide No. F.2-6(6)-Estt/DF/2006 dated 08.04.2010 (copy enclosed). In response to the same I submitted my reply through proper channel vide my prayer dated 30. 04.2010 (copy enclosed) with the justification and requested for exoneration from the charge taking into consideration of all relevant

¶88

records/documents/depositions of witnesses and the Findings of the Inquiring Authority appointed by the Disciplinary Authority in the instant case. But vide order under above reference final penalty order was imposed with the direction to recover the losses due to shortage of food grains @ Rs.3,000.00 per month from my salary of January, 2011 (Copy enclosed).

¶89

That Sir, in the Article of Charge-I below Annexure-I the Charge was brought against myself Sri Shibu Debbarma, Junior Store-Keeper as In-charge of Hrishyamukh Govt. Food Godown, Belonia Sub-Division in South Tripura during my tenure as Store-Keeper for the period from 04.11.1998 to 06.10.2001 but in the statement of imputation vide Annexure-II of the charge sheet it was shown I was functioning as Store-keeper in Kamalpur, Govt. Food Godown, Belonia, Sub-Division in South Tripura during the period from 04.11.1998 to 06.10.2001, which is self contradictory and not maintainable in the court of law.

¶90

That Sir, from listed documents Sl. No. 1 below Annexure-III of the charge sheet it may be seen that the physical verification report(copy enclosed) was for the period from 04.11.1998 to 06.10.2001 which was signed by (i) Sri Manik Nama, Store-keeper on 01.11.2004, (ii) Shivani Dey, Deputy Collector & Magistrate, Belonia, South Tripura on 19.11.2004 and remarks of Controlling Officer i.e. S.D.M. , Belonia, South Tripura was given and signed on 17.09.2005 on the verification report and the annexed proforma A & B (copy enclosed) of the said report. The comments of Controlling Officer on verification report and on proforma A & B are not similar and contradict each for which the verification report not bear any value to establish the charge.

¶91

That Sir, remarks of S.D.M., Belonia, South Tripura and Deputy Collector & Magistrate on SAV‟s are also not coinciding with their comments on the physical verification report for which physical verification report bears no value to establish the charge brought against me (copy of SAV‟s and verification report enclosed).

¶92

That Sir, after submission of my reply dated 30.04.2010 the Disciplinary Authority vide his order under reference at Item-3(II) he has taken the plea that “There is no justified ground recorded in the relevant SAV‟s for such shortage either by Store-keeper or verifying officer or concerned SDM” ; though in the SAV‟s (Copy enclosed) it is clearly mentioned that the cause of shortage is due to damaged floor, wall, door, rats and birds, absent of ventilator, damage etc. ; which was not taken into consideration by the Disciplinary Authority during imposition of penalty order finally.

¶93

Page 11 of 20

¶94

WP(C) 243 of 2013

¶95

That Sir, the Govt. food godown at Hrishyamukh was visited/inspected by the (i) Inspector (Food) on 17.03.1999, 22.04.1999, 13.01.2K, 22.06. 2K, 20.07.2K, 09.11.2K & 19.05.2K; (ii) Additional Director, Food, Belonia on 05.11.1999, 25.03.2K, 29.04.2K, 17.06.2K & 21.07.2001; (iii) Senior Technical Assistant Mr. N. Chakraborty of Central Store, A.D. Nagar during his camp at Hrishyamukh on 11.02.1999, 18.09.1999, 25.03.2K & 19.03.2001; (iv) Shri N.B. Roy, Senior Technical Assistant of Central Food Godown on 30.01.2K; (v) Addl. Sub-Divisional Officer, Belonia on 13.07.2K and (vi) the Sub-Divisional Office, Belonia on 28.07.2001. it will not be out of track to mention here that all the Inspection/visiting reports were sent to the appropriate Authority from time to time for taking necessary action from their end.

¶96

That Sir, in the Inspection report these were clearly mentioned that (i) Dunn age were broken and damaged and require replacement, (ii) Condition of floor is very poor, (iii) Birds are coming through ventilator hole and destroying rice, (iv) Rats are damaging the floor and through these holes rats are taking rice outside the Godown for which an immediate maintenance of Godown is necessary. The repairing work of the Godown of Hrishyamukh was undertaken after visit of Addl. Director, Food Belonia along with SDO, PWD Belonia on 25.03.2000.

¶97

That Sir, as per item 3(ii) of punishment order under reference of the Director of Food & Civil Supplies and Consumer Affairs, Tripura dated 07.12.2010. It may be seen that “in normal case shortage not exceeding 0.5% may only be taken into consideration” but in the instant (as per my representation dated 30.04.2010 against the proposed punishment order, Copy enclosed) the total shortage in 3(three) years is 0.483 % i.e. average shortage is 0.161% per year which is very minimum in compare to allowable percentage for 3 years which comes to 3 x 0.5% per year = 1.5 % in total. ”

¶98

The ground of objection are exactly similar to what the petitioner had projected as his defence in his written statement. But the said appellate authority by the order dated 19.10.2011 [Annexure P/5] has affirmed the finding of the disciplinary authority on observing that the inquiry officer did not give proper weight to the facts and circumstances of the case. Thus, the inquiry officer had failed to assess the deposition of witnesses in the evidence on records. The statement of one prosecution witness namely Manik Nama according to the appellate authority

¶99

Page 12 of 20

¶100

WP(C) 243 of 2013

¶101

was not properly appreciated. But the inquiry officer had given disproportionate weight to the statement of two defence witnesses. By challenging the said orders dated 07.12.2010 and 19.10.2011, the petitioner has approached this court for interference.

¶102

Mr. B.N. Majumder, learned counsel appearing for the petitioner has submitted that the disciplinary authority has ignored totally the defence evidence and various admitted documents as relied by the inquiry authority. The disciplinary authority has discarded the vital part of the evidence. The verification report dated 19.11.2004 [part of Exbt. S-1 series] was seriously doubted, particularly in respect of the mode of verification and its authenticity. It is also observed by the inquiry officer that the said verifying officer had opined that it was quite impossible to ascertain the duration of the stock or stock-wise actual storage of rice, quantities of stock. On the body of SAVs [Exbt. S-1 series] the said comments of the verifying officer were located by the inquiry officer. But by the memorandum dated 08.04.2010, the said observation has been disagreed by the disciplinary authority. On reading of the note of disagreement, it transpires that on the basis of the observation made in the Stock Adjustment Vouchers (SAVs), the shortage was located. Even it has been observed by the verifying officer that the shortage was not justifiable. The said verification report was signed by the petitioner and hence, the petitioner cannot allowed to hold that he had no knowledge of the said record.

¶103

Page 13 of 20

¶104

WP(C) 243 of 2013

¶105

Mr. Majumder, learned counsel appearing for the petitioner has further submitted that the note of disagreement is not only vague but also does not provide the compelling logic of refutation. To illustrate, he has referred to the fag-end of Paragraph- 3 of the said note of disagreement, contained in the memorandum dated 08.04.2010 [Annexure P/2 to the writ petition]. It has been observed there that during undertaking the physical verification of food go-down, consultation with all the relevant records are must. In the instant case, according to the disciplinary authority, the verifying officer conducted the verification based on the records and thereafter, she prepared the statements. The verifying officer had also obtained the signature of the concerned store keeper i.e. the petitioner on 01.11.2004. According to the disciplinary authority, there is no infirmity in the verification process and as such, the report can be relied on. Mr. Majumder, learned counsel has submitted that the procedure commencing from the note of disagreement is vitiated for nonobserving the requirement of law such as to have the response of the petitioner on the note of disagreement as a whole, without any restriction.

¶106

Ms. A.S. Lodh, learned Addl. G.A. appearing for the respondents has submitted that the disciplinary authority has issued a show cause to the petitioner vide the memorandum dated 08.04.2010 [Annexure P/2 to the writ petition] giving him the opportunity to reply within 15 days. Therefore, there is no infirmity in the process. In the reply, filed by the respondents, it

¶107

Page 14 of 20

¶108

WP(C) 243 of 2013

¶109

has been averred in Para-10 that in the memorandum dated 14.03.1989 issued by the Director of Food, Civil Supplies and Consumer Affairs as referred in the memorandum of charge it has been clearly mentioned that in the normal case, shortage, not exceeding 0.5 percent, may be taken into consideration in the particular consignment which remained in the store for a period not less than one year. The inquiry officer did not analyze the materials in its proper perspective. Ms. A.S. Lodh, learned Addl. G.A. has with adequate emphasis submitted that the petitioner never disagreed about the shortage of rice. When the shortage has been admitted and if it is held that he is responsible for such shortage there cannot be any illegality, it should only demonstrate his lack of integrity or devotion to his duties and he was responsible for mis-appropriation of the food grains.

¶110

This court being surprised at such kind of response from the respondents had asked for production of the records of the disciplinary proceedings which, however, has been placed by Ms. A.S. Lodh, learned Addl. G.A. for inspection of the court. By filing the rejoinder, the petitioner has categorically averred that the inspection report filed by Smt. Shibani Dey did not contain any comment whether the shortage is justifiable or not. By filing the rejoinder, the contention of the respondents in their reply that the petitioner had never disagreed with the shortage as recorded, has been seriously contradicted by stating as under :

¶111

“The further contention that the accused officer never disagree the shortage of the above quantity of rice is also strongly denied by the petitioner. Nowhere during

¶112

Page 15 of 20

¶113

WP(C) 243 of 2013

¶114

the inquiry authority or before any other authority, the petitioner admitted the shortage. The contention of the respondents on the above score is absolutely unsustainable. More so, when the respondents‟ contention in the said paragraph is that “The Inquiring Authority has not analysis the whole matter in his findings leaving the fact that Bin Card, Bin card Resister which were not maintained by the store keeper (A.O.). So, it is quite impossible to ascertain whether the stock was remained in a store for a period not less than one year.” As such, it is most respectfully stated that when the respondents admit that it was impossible to ascertain that whether the stock had remained in the store for a period of not less than one year, the imposition of penalty, holding the petitioner guilty of the offence is redundant.”

¶115

Having appreciated the submissions as advanced by

¶116

the learned counsel for the parties, two cardinal questions emerged for response from this court :

¶117

Whether on the face of record it can be inferred that the note of disagreement is not based on any evidence.

¶118

Whether after recording the note of disagreement by the memorandum dated 08.04.2010, the petitioner was given any opportunity to have his reply over the said note of disagreement in terms of Rule 15(3) & 15(4) of the CCS (CCA) Rules which provide as under :

¶119

“15(3)(a) In every case where it is necessary to consult the Commission, the Disciplinary Authority shall forward or cause to be forwarded to the Commission for its advice :

¶120

(i) 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; and

¶121

(ii) comments of Disciplinary Authority on the representation of the Government servant on the Inquiry report and disagreement note, if any and all the case records of the inquiry proceedings.

¶122

Page 16 of 20

¶123

WP(C) 243 of 2013

¶124

(b) The Disciplinary Authority shall forward or cause to be forwarded a copy of the advice of the Commission received under Clause (a) 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 on the advice of the Commission.

¶125

(4) 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).”

¶126

Thus, it is unambiguously clear that the petitioner has got indefeasible right to have his reply on the inquiry report and the report of the disagreement. Even under Rule 15(2) of the CCS (CCA) Rules it has been provided as under :

¶127

“15(2). The Disciplinary Authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the Disciplinary Authority or where the Disciplinary Authority is not the Inquiring 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.”

¶128

By the inquiry report, the inquiry officer had clearly subscribed that from the documents [Exbt. S/1 series] it cannot be held how such shortage occurred against the relevant consignment. Even the petitioner has categorically stated that even if it is acceded that there was shortage, that was merely within the permissible limit @ 0.5 percent per year and thus, the petitioner in such circumstances was entitled to get a total exemption of shortage to the extent of 1.5 percent. Though such ground was taken by the petitioner in his memorandum of appeal asserting that the shortage as asserted for three years is 0.483

¶129

Page 17 of 20

¶130

WP(C) 243 of 2013

¶131

percent and thus, average shortage comes to 0.16 percent per year which is insignificant in nature.

¶132

On perusal of the Exbt. 1 series as produced, this court does not find that there was physical verification of the amount of the stock. The shortage has been ascertained by tabulating entries in the registers. Even the Deputy Collector and Magistrate, Belonia, South Tripura who had verified the registers (Smt. Sibani Dey) in Column 18 and 19 has observed as under :

¶133

“18. Whether Bin-Card has been maintained properly showing commencement of a particular stock of foodgrains and its disposed. The Store-Keeper concerned fail to produced Bin Card and Bin Card Register, so it is not possible to clarify whether the Bin Card been maintain properly or not.

¶134

19. Whether SAV has been issued with reference to a particular Stock of foodgrains showing shortage/excess of Stock. Due to non-maintainance of Bin Card and Bin Card Register it is not possible to ascertained whether the Godown-In-charges issued SAV on reference to the particular Stock.”

¶135

From the Proforma-A showing the result of purported

¶136

physical verification, it appears that in the said go-down when the physical stock was handed over to Mr. Ranjit Das 2,291 kgs damage of GAR rice and 917 kg was salt in excess. From the said proforma-A it would be apparent that there was a shortage of Rs.8,985 kg of rice (Grade-A Raw rice). The said shortage has been found on perusal of the records. But nowhere in the said Proforma-A the petitioner has assigned acknowledgement of its veracity. Thus, the contention of the respondents that the petitioner acceded to such shortage, at least from the records cannot get any support. True it is that even though the petitioner did not accept the said account but he had not raised any strong

¶137

Page 18 of 20

¶138

WP(C) 243 of 2013

¶139

opposition rather he has extended a plea that for damage etc. a permissible limit meaning 0.5% per year has not been deducted also. At no point of time, on the said report the petitioner was asked to have his explanation for such delay, atleast for those which are not available with the records. Whether the petitioner was given opportunity to have his say after note of disagreement recorded by the respondents? As stated earlier, Rule 15(2) of the CCS (CCA) Rules provides the right to have his or her say on the note of disagreement. From the memorandum dated 08.04.2010 as we have already reproduced earlier it transpires that the petitioner was only asked to showcause as to why the shortage amounting to Rs.1,21,749.00 would not be recovered from his salary. But never the petitioner was asked to make his representation in terms of the Rule 15(2) of the CCS (CCA) Rules, 1965. Therefore, the petitioner was deprived of the statutorily structured safeguard (Rule 15(2) of the CCS (CCA) Rules) and hence, this court is inclined to accept the ground of objection as raised by the petitioner. In view of this, the impugned orders dated 07.12.2010 [Annexure P/3 to the writ petition] and 19.10.2010 [Annexure P/5 to the writ petition] are interfered with and set aside inasmuch as no consideration of permissible limit was taken to accept the charge being ‘probably’ proved. Moreover, there was denial of natural justice vis-a-vis Rule 15(2) of CCS (CCA) Rules, 1965. The disciplinary authority, the respondent No.2 is hereby directed to give the petitioner an opportunity to have his say on the note of disagreement as well as on the inquiry

¶140

Page 19 of 20

¶141

WP(C) 243 of 2013

¶142

report in terms of Rule 15(2) of CCS (CCA) Rules, 1965 and if thereafter the disciplinary authority finds that the representation filed by the petitioner has satisfied them, no further action should be taken against the petitioner. For consideration of the representation of the petitioner, the disciplinary authority shall revisit the records for purpose of coming to a reasonable inference in the matter. If it is found that the petitioner is not amenable to any punishment then the amount, if any, already deducted in pursuance to the order dated 07.12.2010, the entire amount shall be returned to the petitioner within a period of 1(one) month from the said decision.

¶143

There shall be no order as to costs.

¶144

Records produced by Ms. A.S. Lodh, learned Addl.

G.A. be returned.

JUDGE

Sabyasachi. B

Page 20 of 20

WP(C) 243 of 2013

Shibu Debbarma v. State Of Tripura And Another

Case brief

What is this about?

What did the court decide?

Shibu Debbarma v. State Of Tripura And Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Debabrata Acharjee and Anr. Vs The State Of Tripura and 12 Ors.

Uma Bhowmik Vs the D. M and Collector and Ors.

Swapan Ch. Debroy Vs the State of Tripura and Ors.

In Charge Hr Er ONGC Ltd. Vs Rani Bala Debnath and Ors.

Bharati Hexacom Ltd. Vs U.O.I. and 3 Ors.

The National Ins. Co. Ltd. Vs Smt. Namita Saha and 2 Ors.