Allowed

Anantahari Jamatia v. the State of Tripura and Ors.

Tripura HC17 Aug 2017WP(C)/294/2017

Case brief

AI extract

What is this about?

This writ petition challenged departmental orders dismissing a rifleman from service due to absence and misconduct charges. The High Court held that the proceedings were vitiated because the petitioner was denied the Inquiry Report, violating Rule 15(2) of CCS (CCA) Rules, 1965. The petition was allowed, orders set aside, and matter remitted to restart proceedings.

What did the court decide?

Impugned orders set aside; matter remitted to respondent No.3 to supply Inquiry Report and complete proceedings within 3 months.

Anantahari Jamatia Vs the State of Tripura… — Labour and Industrial Disputes | Tripura HC (2017)

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THE HIGH COURT OF TRIPURA AGARTALA

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W.P.(C)No.294 of 2017

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Sri Ananta Hari Jamatia, son of Shri Ramani Dayal Jamatia, resident of Sankatram Para, P.O. & P.S. Jampuijala, District: Sepahijala

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………… Petitioner

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– Vs –

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1. The State of Tripura, represented by the Secretary, Home Department, Government of Tripura, Agartala

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2. The Director General of Police, Government of Tripura, Agartala

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3. The Commandant, 6^th Battalion, Tripura State Rifles, (IR-II), P.O. Ramchandraghat, District: Khowai

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4. Shri Ranaditya Das, Assistant Commandant, 6^th Battalion, Tripura State Rifles, (IR-II) P.O. Ramchandraghat, District: Khowai [as the Inquiring Authority]

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5. Deputy Inspector General of Police, (AP & Ops), Tripura, Agartala

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………… Respondents

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B E F O R E THE HON‟BLE MR. JUSTICE S. TALAPATRA

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For the petitioner : Mr. R. Dutta, Advocate For the respondents : Mr. S. Chakraborty, Addl. G.A. Date of hearing and delivery of judgment and order : 17.08.2017 Whether fit for reporting : No

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W.P.(C). No. 294 of 2017

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Page 1 of 7

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Judgment and Order (Oral)

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Heard Mr. R. Dutta, learned counsel appearing for the petitioner as well as Mr. S. Chakraborty, learned Addl. G.A. appearing for the respondents.

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02. By means of this writ petition, the petitioner who was serving as the Rifleman under the 6^th Battalion of TSR (IR-II) has challenged the provisional punishment order No.TSR-6/DP04/2011/Estt/11/10597-98 dated 20.10.2011 [Annexure-5 to the writ petition], the final order of dismissal under No.TSR-6/DP04/2011/Estt/11/11430-52 dated 11.11.2011 [Annexure-7 to the writ petition], the Corrigendum dated 17.11.2011 [Annexure-7A to the writ petition], the order dated 11.11.2011 in respect of the suspension period [Annexure-8 to the writ petition], the order dated 16.12.2011 [Annexure-10 to the writ petition] and the revisional order dated 26.03.2012 [Annexure-12 to the writ petition]. All those orders have admittedly emanated from the disciplinary proceeding as was drawn up against the petitioner by the memorandum No.TSR-6/DP04/2011/Estt/11/5418-19 dated 27.05.2011. By the said memorandum dated 27.05.2011 [Annexure-2 to the writ petition] four articles of charge were framed against the petitioner alongwith one Narayan Ghosh. The charges are as under:

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“Article-I

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That the said No.97040845 LNK (GD) Narayan Ghosh and No.00060158 Rfn (GD) Ananta Hari Jamatia, „E‟ Coy of the 6^th Bn TSR (IR-II) while they were posted at Aidangkur TSR Post, on 18.02.2011 at about 2200 hours they had absented themselves from their camp without prior permission of the Competent authority which is a gross misconduct punishable under section 12(1) of TSR Act 1983.

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W.P.(C). No. 294 of 2017

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Page 2 of 7

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Article-II

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That the said No.97040845 LNK (GD) Narayan Ghosh and No.00060158 Rfn (GD) Ananta Hari Jamatia, „E‟ Coy of the 6^th Bn TSR (IR-II) while they were posted at Aidangkur TSR Post, they were detailed as Guard Commander and Front Sentry respectively of Aidangkur TSR Post for the day of 18.02.2011 from 0700 hrs, but on that day at about 2200 hrs they had absented themselves from their camp without prior permission of the Competent authority keeping the camp personnel and Govt. properties of the post as well in in-secured condition which is a gross misconduct punishable under section 12(1) of TSR Act 1983.

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Article-III

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That the said No.97040845 LNK (GD) Narayan Ghosh and No.00060158 Rfn (GD) Ananta Hari Jamatia, „E‟ Coy of 6^th Bn TSR (IR-II) while they were posted at Aidangkur TSR Post, on 18.02.2011 at about 2200 hrs they had absented themselves from their camp without prior permission of the Competent authority and consumed liquor with civilian women in a civil house which is a prejudicial to good order and discipline of the Rifles punishable under section 12(1) of TSR Act 1983.

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Article-IV

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That the said No.97040845 LNK (GD) Narayan Ghosh and No.00060158 Rfn (GD) Ananta Hari Jamatia, „E‟ Coy of 6^th Bn TSR (IR-II) while they were posted at Aidangkur TSR Post they were arrested by the Police of Champahowar PS on 20.02.2011 as suspects in connection with Champahowar PS Case No.07/11 U/S 376(2)(G)/302/201/34 IPC alleging to be involved in rape with murder of one Nilima Debbarma of Aidangkur which is a prejudicial to good order and discipline of the Rifles punishable under section 12(1) of TSR Act 1983.

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03. By the memorandum dated 22.06.2011 [Annexure-3 to the writ petition] the Article of Charge-IV was dropped and the departmental inquiry proceeded on the remaining three charges. It is also to be noted that since the petitioner was detained in connection with CPH PS case No.07/2011 under Sections 376(2)(G)/302/201/34 for more than 48 hours, he was placed under suspension in terms of sub-rule(2) of Rule 10 of the CCS (CCA) Rules, 1965 read with Rule 43(2) of the TSR(DCSC) Rules, 1987 until further order.

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W.P.(C). No. 294 of 2017

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Page 3 of 7

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04. However, subsequently the suspension was revoked by the order dated 31.08.2011 [Annexure-4 to the writ petition]. After completion of the departmental inquiry as conducted by one Ranaditya Das, Asst. Commandant, 6^th Battalion TSR (IR-II) by virtue of the office order dated 30.06.2011, the provisional punishment order dated 20.10.2011 [Annexure-5 to the writ petition] was issued, having concurred with the finding of delinquency, proposing the penalty of dismissal from service under Section 12(1)(j) of TSR Act, 1983. The petitioner was asked to file the representation ‘on the proposed penalty’. The petitioner filed one representation on 27.10.2011 urging the disciplinary authority to provide access to a few records including the report of Inquiry Officer. The disciplinary authority, as it appears, did not give any heed to such notice and passed the final order dated 11.11.2011 [Annexure-7 to the writ petition] imposing penalty of dismissal from service under Section 12(1)(j) of TSR Act, 1983 with immediate effect. However, the said order dated 11.11.2012 was marginally modified by the Corrigendum dated 17.11.2011 [Annexure7A to the writ petition] by correcting the improper description. However, the penalty of dismissal from service remained unaltered. Further, by the order dated 11.11.2011 [Annexure-8 to the writ petition] the period which the petitioner was under suspension was treated as ‘dies-non’. The petitioner shall not get the pay and allowance beyond the substantive allowance.

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05. Being aggrieved, the petitioner filed an appeal to the Deputy Inspector General of Police (AP & OPS). In the memorandum of

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Page 4 of 7

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appeal dated 21.11.2011, the petitioner has asserted that even though there was no foundation of misconduct, the said order of penalty had been passed. By the order dated 16.12.2011, the appeal was dismissed holding that there was nothing to interfered with. Thus, the order of penalty from the dismissal from the service was confirmed by the appellate authority. Finally the petitioner filed a revision petition to the Director General of Police on 26.12.2011 [Annexure-11 to the writ petition]. The said revision petition was also dismissed by the Director General of Police, Tripura by the order dated 26.03.2012 [Annexure-12 to the writ petition]. The petitioner has further submitted that by the judgment dated 05.09.2016 the petitioner was acquitted from the charge framed against him under Section 302/376/34 of the IPC. The said judgment dated 05.09.2016 was delivered in Case No.S.T(T-1) 08 of 2013 by the Addl. Sessions Judge, West Tripura, Khowai.

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06. Mr. R. Dutta, learned counsel appearing for the petitioner has succinctly submitted that the copy of the Inquiry Report was never supplied to the petitioner and as such the impugned orders suffer from serious infirmity inasmuch as the safeguard as provided under Rule 15(2) of the CCS (CCA) Rules, 1965 has been clearly denied to the petitioner. Mr. Dutta, learned counsel has further submitted that the similar action was challenged by the co-delinquent namely Narayan Ghosh by filing a writ petition being W.P.(C) No.234 of 2012 in this court.

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07. This court while deciding the said case had observed by the judgment and order dated 12.01.2017 that the petitioner could not file any informed representation as the disciplinary authority had

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W.P.(C). No. 294 of 2017

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Page 5 of 7

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admittedly omitted to supply a copy of the Inquiry Report to the petitioner in terms of Rule 15(2) of the CCS(CCA) Rule, 1965 along with the provisional observation made on the basis of the said Inquiry Report. Finally this court had observed as under:

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“12. Notwithstanding whatever as observed above, this court will not pass any further order as it would be appropriate in the circumstances to remit the matter back to the disciplinary authority to commence the proceeding from the stage when the disciplinary authority would supply a copy of the inquiry report in terms of Rule 15(2)of the CCS & CCA Rule, 1965 read with Rule 40 of the Tripura State Rifles (Discipline, Control, Service Conditions etc.) Rules, 1986. The disciplinary authority shall provide a copy of the said inquiry report within a period of 15 days from the date when the disciplinary authority shall receive a copy of this order providing the petitioner 15 days time for filing his representation, if any. The petitioner will be entitled to raise all defences as he would deem appropriate. It is further directed that in view of the pendency of the matter for a long time, the disciplinary authority shall pass the final order within a period of three months from the date of receipt of the representation from the petitioner. It is made clear that the provisional observations may also be communicated to the petitioner along with the copy of the inquiry report. It goes without saying that if the petitioner is aggrieved by the action of the respondents, the petitioner would be at liberty to approach this court. Since the petitioner has been dismissed after due inquiry this court is not inclined to pass any direction for his reinstatement at this stage, but if it is found by the disciplinary authority that the petitioner is not liable to be imposed with the major punishment like dismissal or termination, he shall be immediately reinstated in the service and necessary orders be passed by the disciplinary authority in respect of his period of suspension and other financial benefits.”

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08. Mr. Dutta, learned counsel appearing for the petitioner has submitted that the similar infirmity has visited the decision of the respondents as reflected in the impugned orders. Hence, the similar order may be passed by affording the petitioner to represent against the Inquiry Report.

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09. Mr. S. Chakraborty, learned Addl. G.A. appearing for the

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respondents has fairly submitted that the Inquiry Report was not W.P.(C). No. 294 of 2017

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Page 6 of 7

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furnished to the petitioner. Thus it has surfaced clearly that the petitioner had no opportunity to represent against the Inquiry Report. The safeguards as provided under Rule 15(2) of the CCS (CCA) Rules, 1965 are the statutory rights and denial thereof renders the final decision based on the Inquiry Report vitiated. As such, the impugned orders dated 20.10.2011, 11.11.2011, 17.11.2011, 11.11.2011, 16.12.2011 and 26.11.2011 are interfered with and set aside. The matter is remitted back to the disciplinary authority and the disciplinary authority shall commence the proceeding from the stage of supplying the Inquiry Report to the petitioner in terms of Rule 15(2) of CCS (CCA) Rules, 1965. The respondent No.3, the Commandant, 6^th Battalion, TSR (IR-II) shall complete the disciplinary proceeding within a period of 3(three) months from the date of receipt of a copy of this order.

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Having observed thus, this writ petition stands allowed to the extent as indicated above.

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There shall be no order as to costs.

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JUDGE

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Moumita

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W.P.(C). No. 294 of 2017

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Anantahari Jamatia v. the State of Tripura and Ors.

Case brief

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Anantahari Jamatia v. the State of Tripura and Ors.

Case brief

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