06020475 RFN (GD) Fulkumar Sarkar vs State Of Tripura

[1] By filing this writ appeal, the appellant has challenged the judgment and order dated 21.05.2020 delivered by the learned Single Judge in WP(C) No.185 of 2017 declining to interfere with the order of dismissal dated 04.05.2016 issued by the Commandant, 2nd Battalion, Tripura State Rifles (TSR in short) whereby the appellant was dismissed from service on the ground of misconduct.

[2] The factual background is as under:

The appellant was appointed as a Rifleman in TSR on 19.01.2006. For his unauthorized absence from duties from 04.02.2015 onwards, notice followed by reminders was issued to the appellant asking him to resume duties. Since he did not resume duties despite issuance of such notice, departmental proceedings were drawn up against him vide memorandum dated 09.06.2015 [Annexure-1of the writ petition]. The said memorandum contained the article of charge and statement of the imputations of misconduct as well as the list of documents on the basis of which the department proposed to prove the charges against the appellant. At this stage it would be necessary to refer to the said article of charge and the statement of imputation of misconduct which are as under:

"ANNEXURE-I

STATEMENT OF ARTICLES OF CHARGE FRAMED AGAINST 06020475 RFN (GD) FULKUMAR SARKAR, OF 'C' COY, 2ND BN TRIPURA STATE RIFLES

ARTICLE-1

In that he, 06020475 RFN (GD) Fulkumar Sarkar , of 'C' Coy, 2nd Bn TSR is charged for gross misconduct to the effect that while he was performing the duty at Lembucherra Post. 2nd Bn TSR absented himself wef 04.02.2015 at 1100 hrs unauthorizedly without obtaining prior permission of the competent authority

Commandant

2nd Bn Tripura State Rifles

ANNEXURE-II

STATEMENT OF IMPUTATION OF MISCONDUCT OR MISBEHAVIOUR IN SUPPORT OF THIE ARTICLES OF CHARGE FRAMED AGAINST NO 06020475 RFN (GD) FULKUMAR SARKAR , of 'C' Coy, 2nd Bn TSR

No. 06020475 RFN (GD) Fulkumar Sarkar , of 'C' Coy, 2nd Bn TSR absented himself from Lembucherra post, 2nd Bn TSR wef 04.02.2015 at 100 hrs unauthorizedly without prior permission of the competent authority. The following notices were served to him at his home address through registered post (with A/D) directing him to join duty forthwith with copy to O/C Lefunga. PS to inform individual to report at HQ 2nd Bn TSR for duty. But he did not turn up for duty and still absenting.

i) No. 64/TSR-II/Estt/AWL-OSL/15/1150-55 dated 07.02.2015(RLAD-0225 dated 10.02.2015)

ii) No. 64/TSR-II/Estt/AWL-OSL/15/2970-74 dated 19.03.2015 (RLAD-F REA90552955IN)

iii) No. 64/TSR-II/Estt/AWL-OSL/15/3766-70 dated 16.04.2015(RLAD-2177 dated 18.04.2015)

This act on the part of No. 06020475 RFN (GD) Fulkumar Sarkar amounts to gross misconduct and unbecoming on the part of a member of the Rifles u/s 11(m) of TSR Act 1983 followed by Rule-14 of CCS (CCA) 1965 and CCS(Conduct) Rules.

Commandant

2nd Bn Tripura State Rifles"

[3] The appellant was asked to submit his representation admitting or denying the said charge. Vide his representation dated 27.06.2015[Annexure-2 of the writ petition] the appellant admitted the charge of unauthorized absence from 05.02.2015 and it was pleaded by him in his defence that he could not perform duty because of his sickness and the sickness of his wife and child who were ill from 05.02.2015 to 25.03.2015. It was also pleaded by him that since there was no other male member in his family, he could not submit any intimation to his department regarding his illness.

[4] The Department initiated inquiry against him. The Assistant Commandant of 2nd Battalion, TSR, Shri Paresh Debbarma was appointed as the Inquiry Officer to conduct the inquiry. In the course of inquiry, 7 witnesses were examined on behalf of the Disciplinary Authority and several documents were also taken into evidence. Despite opportunity granted to the appellant, he declined to appoint defence assistant and cross- examine the witnesses.

[5] On appreciation of the statement of witnesses and documentary evidence, the Inquiring Officer held that the article of charge was proved against the appellant beyond doubt and submitted his report dated 08.09.2015[Annexure-3 of the writ petition]. Based on the said inquiry report, department issued provisional punishment order dated 25.04.2016[Annexure-4 of the writ petition] whereby the department proposed to award the punishment of dismissal from service to the appellant. The appellant was provided with opportunity of making representation on the proposed punishment and he was asked to submit such representation in writing to the Commandant, 2nd Battalion, TSR within 15 days failing which final order would be issued under Section 12(1) of the Tripura State Rifles Act, 1983. In response, the appellant appeared in the department and submitted the written representation dated 03.05.2016[Annexur-5 of the writ petition] to the department pleading further that he could not perform duties for his illness which was supported by medical documents. In his said representation he also appealed to the department to condone his conduct and he assured the department that he would not repeat such conduct in future.

[6] The department did not find any merit in the said representation of the appellant and issued punishment order dated 04.05.2016[Annexure-6] dismissing him from service. The total period of his absence for 337 days in two spells from 04.02.2015 to 20.07.2015 and from 16.11.2015 to 04.05.2016 was treated as die-as-non and it was ordered that the outstanding dues would be adjusted with the terminal benefits admissible to him.

[7] Against the dismissal order, the appellant preferred departmental appeal to the Dy. Inspector General of Police vide memo of appeal dated 19.05.2016 [Annexure-7 of the writ petition] for revocation of the dismissal order his reinstatement in service. After consideration, the departmental authority dismissed his appeal vide order dated 17.08.2016 [Annexure-8 of the writ petition] observing as under:

"02. After careful examination of the appeal petition, para-wise comments on the appeal petition together with the relevant records and original DP file (No.04/2015) in r/o said appellant, in c/w the "Dismissal from Service" of the appellant, received from CO 2nd Bn. TSR vide No.5481/F.Pers/TSR- II/Estt/FKS/2016 dated 08.06.2016 who made the order appealed, the following facts are seen:

i) There was no procedural lacuna in conducting of Departmental Proceeding against the said appellant.

ii) Findings of the Enquiry Officer as well as Disciplinary Authority are warranted by the evidence on record.

iii) Penalty "Dismissal from Service" as was imposed upon the said appellant is commensurate with the nature of offense of above appellant.

iv) Before and after initiation of DP against, the said appellant was given reasonable opportunities to defend himself."

[8] The appellant then filed WP(C) 185 of 2016 challenging the impugned order of his dismissal from service mainly on the following grounds:

i) The punishment of dismissal from service is disproportionate to the alleged misconduct.

ii) Dismissal from service is a major punishment which cannot be imposed for unauthorized absence under the Tripura State Rifles Act, 1983.

iii) The department held him guilty of misconduct on the ground of unauthorized absence without considering the fact that serious illness of him and his wife and child prevented him from discharging duties.

iv) He was not given adequate opportunity to defend his case during the departmental proceedings held against him.

[9] In their counter affidavit dated 23.06.2017, the respondents asserted that when the appellant started absenting from duties without any intimation to the department, several notices followed by reminders were sent to him to resume duties. The appellant did not respond to any of those notices. Only after the notice of departmental proceedings was issued, he appeared and submitted a representation stating that he could not discharge his duties due to sickness of him and his wife and child. In the course of the departmental proceedings, full opportunity was provided to the appellant to defend himself and after considering his representation, punishment of dismissal from service was imposed on him. His appeal against the order of dismissal was also considered by the departmental appellate authority and by a reasoned order, the departmental appellate authority dismissed the appeal. According to the respondents, there was no merit in his writ petition.

[10] The learned Single Judge dismissed the writ petition by the impugned order dated 21.05.2020 observing as under:

"6. The documents on record would suggest that the petitioner remained absent from duty from 04.02.2015 without leave. Despite several reminders he did not resume duty. He did not even reply to the department citing reasons for his absence. It was only when the charge-sheet was issued that he cited the reason of illness of his wife and son. He resumed duty on 20.07.2015, worked till 16.11.2015 and again remained absent without leave till the order of dismissal was passed on 04.05.2016. His ground of personal illness must be tested on the basis of his reluctance to appear before the Medical Board for examination. Despite communication from the Medical Board he refused to appear for physical test. Thus his justification for remaining absent without leave cannot be accepted. The Inquiry Officer gave him full opportunity to defend himself. The findings of the Inquiry Officer were accepted by the disciplinary authority after allowing the petitioner to make a representation. He eventually passed the impugned order which suffers from no illegality. The petitioner was absent from duty for more than 300 days. He was a rifleman in Tripura State Rifles which is a disciplined force and cannot afford willful unauthorized long absenteeism.

In the result, no case is made out. Petition is dismissed..."

[11] Heard Mr. R.G.Chakraborty, learned counsel appearing for the petitioner and Mr. D.Sharma, learned Addl. GA appearing for the respondents.

[12] Counsel appearing for the appellant submits that the Tripura State Rifles Act, 1983 has classified unauthorized absence from duty as one of the 'less heinous offences' under Section 11 of the Act which is punishable with imprisonment for a term which may extend to 1 year or with fine which may extend to 3 months' pay or with both. The 'more heinous offences' defined under Section 10 of the said Act does not include unauthorized absence from duty. According to Mr.Chakraborty, learned counsel of the appellant, punishment of dismissal from service for a less heinous offence is not justified. Counsel has further submitted that the appellant justified his absence from duty by producing medical certificates in support of his own sickness and the sickness of his wife and child which was not considered by the Disciplinary Authority.

[13] Further submission on behalf of the appellant is that though several minor punishments were prescribed under the Act and Rules, applicable to the case, the Disciplinary Authority maliciously imposed the most severe punishment of dismissal from service on the sole ground of unauthorized absence from duty which is a 'less heinous offence' under the TSR Act, 1983. According to learned counsel, learned Single Judge did not consider these facts. Therefore, the impugned judgment calls for interference in appeal.

[14] Appearing for the respondents, Mr.D.Sarma, learned Addl.GA opposed the contentions of the appellant contending that the appellant was so adamant and negligent to duty that he remained absent from duty for a period of 337 days without even giving any intimation to his employer and when he was asked to appear before the Medical Board to verify his claim of sickness, he declined. According to Mr. Sarma, learned Addl. GA, the department rightly dismissed him from service for such gross undisciplined conduct after drawing up the disciplinary proceedings against him and providing a full opportunity of hearing.

[15] Section 12 of the TSR Act, 1983 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'. Several minor punishments are provided under clause (a) to (f) of sub-section (1) of said Section 12 and several major punishments are also provided under clause (g) to (j) under the said sub-section(1) of Section 12 of the Act. Dismissal from service is one of the major punishments provided under clause (j) of sub-section (1) of Section 12 of the Act. It is therefore, clear that the Commandant or any other authority as may be prescribed by rules, may, impose major punishment of dismissal from service on a member of the 'Rifles'. Member of the 'Rifles' is defined under clause (i) of Section 3 of the Act which reads as under:

"3...(i) "Member of the Rifles" means a person who has been appointed to the Rifles by the Inspector General or, as the Case may be, by the Commandant and includes a Subordinate Officer, a Rifleman, an Enrolled Follower and a person appointed in subordinate rank under the Police Act, 1861 or in Defence service or a para-military personnel, posted to the Rifles on deputation in such ranks;"

There is, therefore, no doubt that the appellant is a member of the 'Rifles' and as such the Commandant or any other authority prescribed under Rules is empowered to impose penalty of dismissal from service on the appellant for misconduct subject to such rules.

[16] With regard to procedure of disciplinary proceedings for imposing major penalty on a member of the 'Riles' it is provided under Rule 40 of the Tripura State Rifles (Discipline, Control, Services Condition etc.) Rules,1986 that the procedure for award of major punishments specified in Section 12 of the TSR Act shall (mutatis mutandis) be the same as is provided for imposing major penalties on government servants under the CCS(CCA) Rules, 1965. Under the proviso to Rule 40 it has been provided that defaulter/ accused member of the 'Rifles' shall not be permitted to take the assistance of any one, who is not a serving officer or serving member of the 'Rifles' to present the case on his behalf.

[17] In the given context, the department seems to have rightly followed the procedure provided under CCS (CCA)Rules for awarding major punishment on the petitioner.

[18] With regard to the powers of the disciplinary authority for awarding the punishments under Section 12 of the Tripura State Rifles Act, 1983 to a member of the 'Rifles', Rule 38 of the Tripura State Rifles (Discipline, Control, Services Condition etc.)Rules, 1986 has provided as under:

"38.Disciplinary Authority:

(1) The Inspector General may award any of the punishments specified in Section 12 to a member of the Rifles;

(2) The Deputy Inspector General may award any of the punishments specified in Section 12 to a member of Rifles;

Provided that he shall not award the punishment of dismissal or removal from service or compulsory retirement or reduction in rank to a Subedar.

(3) A Commandant may award any of the punishments specified in section 12 to a member of the Rifles

Provided that he shall not award the punishment of dismissal or removal from service or compulsory retirement or reduction in rank to a Subedar.

(4) In case where the prescribed disciplinary authority is unable to function as disciplinary authority in respect of member of the Rifles on account of it being persoannally concerned with the charge or being a material witness in, support of the charge, it shall move authority next superior to it in rank and the latter authority may nominate another authority, at least corresponding in rank to the former authority, as ad-hoc disciplinary authority for the case.

(5) Punishment to the member of the Rifles who are on deputation from other organization shall be awarded with due regard to special provision made in these rules for deputationists."

It is therefore, clear from the said rules that a Commandant is empowered to award any of the punishments specified under Section 12 to a member of the 'Rifles' provided that he shall not be competent to award the punishment of dismissal or removal from service or compulsory retirement or reduction in the rank to a 'Subedar'.

[19] In the given case, the Commandant of 2nd Battalion, TSR has imposed the punishment of dismissal from service to the appellant who was a Rifleman (GD). Therefore, under Rule 38 of the said rules, he was competent to impose the major penalty of dismissal from service on the appellant.

[20] It was contended by Mr.Chakraborty, learned counsel appearing for the appellant that absence from duty without leave is 'less heinous offence' in terms of Section 11 of the TSR Act, 1983 for which major penalty of dismissal from service was improper.

[21] We have examined the contention of learned counsel of the appellant in the light of the statutory provisions provided in the Tripura State Rifles Act, 1983. In chapter III of the Act, corporal punishment have been prescribed under Sections 10 and 11 of the Act for certain offences committed by the member of the 'Rifles'. Under Section 10 of the Act certain offences have been classified as 'more heinous offences' for which imprisonment for life or imprisonment of either description for a term which may extend to 14 years or with fine which may extend to 3 months' pay or with both has been prescribed. Certain offences have been prescribed as 'less heinous offences' under Section 11 of the Act including absence from duty without leave or overstay during leave without sufficient cause for which imprisonment for a term which may extend to 1 year or with fine which may extend to 3 months' pay or with both has been prescribed. Section 11A pertains to punishment for attempt or abetment of such offence. Departmental punishments have been provided under Section 12 of the said Act 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'. Such misconduct may be punished by any of the minor penalties provided under clauses(a) to(f) or any of the major penalties provided under clauses(g) to (j) of sub-section (1) of Section 12 of the Act.

[22] From a plain reading of the aforesaid statutory provisions it is clear that Section 10 and 11 deal with offences conducted by a member of the 'Rifles' and punishment thereof whereas Section 12 of the Act deals with departmental punishments which may be either a major punishment or a minor punishment for different misconducts including disobedience, negligence in duty, remissness in the discharge of duties etc. Therefore, contention of Mr.Chakraborty that for a 'less heinous offence' provided under Section 11 of the Act, a major penalty of dismissal from service under Section 12 cannot be given, has no merit at all.

[23] In the given context, the appellant has been dismissed from service for his proven misconduct of unauthorized absence from duty for nearly 337 days without any intimation to the department.

[24] The learned Single Judge has rightly observed that a rifleman in a disciplined force cannot afford such willful unauthorized long absenteeism.

[25] We find no infirmity in the said judgment of the learned Single Judge.

Therefore, the appeal stands dismissed.