S. Talapatra, J.@mdashHeard Mr. C.S. Sinha, learned counsel appearing for the petitioner as well as Mr. S. Chakraborty, learned Addl. Govt. Advocate appearing for the respondents. The petitioner who was working as the NK(GD) in the 8th Battalion of the Tripura State Rifles (TSR) had been slapped with the following articles of charge by the Memorandum dated 09.03.2007, Annexure-2 to the writ petition:
"That the said No. 91010636 Nk(GD) Arunaksha Das of ''F'' Coy, 8th Bn TSR (IR-III) while performing the duties at Karamcherra post of this unit committed an act of misconduct on 23.02.2007 at about 2100 hrs, in that he involved himself in a hot altercation with Nb(Sub Kanailal Saw, the post I/C. The said Nk(GD) Arunaksha Das scuffled with Nb/Sub Kanailal Saw and pushed him on the floor as a result of which the SO received injury on the back side of his head.
Thus No. 91010636 Nk(GD) Arunaksha Das is charged for gross misconduct U/s. 12(1) of TSR Act 1983."
2. The petitioner, within the time stipulated by the Disciplinary Authority, disputed the charge by filing the written statement of defence and explained the circumstances relevant for his reply. In para 4 of the reply dated 21.03.2007, Annexure-3 to the writ petition, the petitioner has categorically stated that he was rather assaulted by Kanailal Saw, the Post In-charge.
3. Having received the said reply, the Disciplinary Authority, the Commandant, 8th Bn. TSR (IR-III), by the order dated 23.04.2007, Annexure-4 to the writ petition, appointed Sri Kanu Ranjan Debbarma, Asstt. Commandant of the said Battalion for inquiring into the charge. Though the said Enquiry Officer had filed the Enquiry Report, but all on a sudden, by the order dated 02.12.2007, Annexure-5 to the writ petition, Sri Rajesh Bardhan, Asstt. Commandant of the said battalion was again appointed for inquiring into the charges afresh against the petitioner. Thereafter, by the report of the latter Enquiry Officer, the petitioner was held guilty of the charge and, accordingly, he had been punished with the penalty of stoppage of increment without cumulative effect for a period of one year. The said order of punishment dated 23.07.2008, Annexure-6 to the writ petition as well as the appointment of the latter Enquiry Officer dated 02.12.2007, Annexure-5 to the writ petition, are questioned in this writ petition.
4. Mr. C.S. Sinha, learned counsel appearing for the petitioner has submitted that the order dated 02.12.2007 has been passed by the Disciplinary Authority without assigning any reason whatsoever and, based on the said order, a de-novo enquiry had been carried on and a set of seven witnesses was examined afresh by the latter Enquiry Officer. Thereafter, the latter Enquiry Officer filed the Enquiry Report on 12.06.2008, based on which the impugned order of penalty has been passed. Mr. Sinha, learned counsel has further submitted that the former Enquiry Officer, Kanu Ranjan Debbarma, Asstt. Commandant had submitted his report on 14.12.2007. It has surfaced that the appointment of the latter Enquiry Officer was made on 02.12.2007 for all purposes, the enquiry by the first Enquiry Officer was complete before the said appointment Mr. Sinha has underlined that no reason whatsoever has been assigned for the de-novo enquiry either in the order dated 02.12.2007, Annexure-5 to the writ petition or in the order dated 23.07.2008, Annexure-6 to the writ petition, except the following observations:
"AND WHEREAS, Shri Kanu Ranjan Debbarma, AC has conducted enquiry and submitted his findings before the disciplinary authority on 14.12.07. On perusal of his findings, it was seen that the prayer submitted by one Hav (GD) Dipu Kumar Das of F Coy, a vital witness to the enquiry, has been kept in the file but the prayer has not been entertained. The disciplinary authority felt it necessary for the interest of justice to get the enquiry conducted afresh."
5. On a bare reading of the said observation as placed by the Disciplinary Authority in the order dated 23.07.2008, it would inescapably appear that on consideration of the findings as furnished by the former Enquiry Officer, the decision of denovo enquiry was taken up, but in fact, the latter Enquiry Officer was appointed on 02.12.2007. Apart that, what has appeared before this court is that one Dipu Kumar Das who was examined in the departmental proceeding, had filed one application to say something more against the petitioner, as would be apparent from para 6 of the counter-affidavit, which runs as under:
"That, I state that relief claimed by the petitioner may not be granted in view of the fact that the disciplinary authority has power to order for de-novo enquiry when there is justified ground to do so. In the case in hand the disciplinary authority found that in the Departmental proceeding one prosecution witness namely Sri Dipu Kumar, Das filed one application before the enquiry officer that in his evidence he did not state one point that he saw that Naib Subedar Kanai Lal Sana was lying on the floor and Rfn Uttam Debbarma and Rfn Bhupendra Debbarma giving water on his head and Nk Arunaksha Das is standing nearby. According to disciplinary authority the enquiry authority with considering the said application of prosecution witness concluded the findings."
6. Mr. S. Chakraborty, learned Addl. Govt. Advocate appearing for the respondents has submitted that there are sound reasons for directing the de-novo enquiry. He has further submitted that the former Enquiry Officer, Kanu Ranjan Debbarma, Asstt. Commandant had submitted his findings on 13.12.2007, which was received on 14.12.2007. On going through the findings, the Disciplinary Authority had ordered fresh enquiry because of the fact that as per record, Hav. Dipu Kumar Das had made a prayer before the Enquiry Officer that his evidence had not been properly stated. He did not point out in his statement before the Enquiry Officer that Nb./Sub. Kanailal Saw was lying on the floor and that Rfn. Uttam Debbarma and Rfn. Bhupendra Singh gave water on his head and Nk. Arunaksha Das was standing nearby. But, the former Enquiry Officer did not entertain the prayer of the said witness and being not satisfied with the findings of the former Enquiry Officer as well as with a view to reveal the truth, the Disciplinary Authority had appointed the other Enquiry Officer, namely Sri Rajesh Bardhan, Assistant Commandant to conduct the enquiry afresh. In the counter affidavit it has been further averred that:
"In the order for fresh enquiry the date was erroneously shown as 2nd December 2007 due to clerical mistake. As per despatch register the date was 2nd January, 2008. So it is not a fact that the further inquiry was ordered before submitting the findings by the Enquiry Officer, Sri Kanu Ranjan Debbarma, Assistant Commandant".
7. On appreciation of the rival contentions and the records, produced alongwith the writ petition and the counter affidavit, this Court is confronted with the three pertinent questions which are as under:
(i) whether in the circumstances as narrated, the Disciplinary Authority can direct a de-novo enquiry;
(ii) whether any reason has been assigned for directing such de-novo enquiry; and
(iii) whether the reason that has been developed in the counter-affidavit can be held to be a valid reason for directing the de-novo enquiry or not.
8. First of all, what has surprised this court is that, by filing the affidavit the respondents have stated that for the clerical mistake the order, appointing the latter Enquiry Officer, has been shown to be made on 02.12.2007. But no record in support of that contention has been placed before this court. Only on the basis of the Despatch Register it has been stated that the said order was passed and despatched on 02.01.2008. Even a layman can understand the day of that taking a decision or issuing a letter on a particular date, may be different from the day of actual despatch of that communication. On the basis of the Despatch Register, the day of taking a decision cannot be determined. There cannot be any dispute that in a relevant case the Disciplinary Authority can direct a de-novo enquiry, but for that purpose a speaking order supported by the reason has to be passed by the Disciplinary Authority recording why he did not rely on the report submitted by the former Enquiry Officer. Even no communication has been made to the Delinquent Officer. In this case, the reason that has been placed in the counter-affidavit is even more surprising. One of the witnesses has stated that he did not say something before the Disciplinary Authority and, that was the ground for throwing away the Enquiry Report submitted by the former Enquiry Officer. This is unheard of.
9. Therefore, in the circumstances, the order for denovo enquiry cannot be accepted by this Court. Accordingly, the appointment of the latter Enquiry Officer by the order dated 02.12.2007 is to be interfered with. Apart that, it appears that the said decision for appointment of the latter Enquiry Officer was premeditated to frustrate the Enquiry Report submitted by the former Enquiry Officer. As such, the action taken by the Disciplinary Authority smacks of mala fide. The ground for denovo Enquiry as stated is no ground for directing a de-novo enquiry and, as such, this Court is constrained to observe that the Enquiry Report submitted by the latter Enquiry Officer or the decision taken on the said Enquiry Report is vitiated in law.
10. Accordingly, both the Enquiry Report submitted by the latter Enquiry Officer dated 12.06.2008 and, the consequent punishment order dated 23.07.2008, Annexure-6 to the writ petition, are interfered with and quashed. The petitioner shall be given all the benefits that had been taken away by virtue of the impugned order of punishment, within a period of 2 (two) months from today without delay, as it has surfaced that the Enquiry Report of the former Enquiry Officer had exonerated the petitioner from the charge. In the result, the writ petition stands allowed. There shall be no order as to costs.
