Akhil Chandra Bhowmik vs State Of Tripura And Ors

By means of this writ petition, the petitioner has challenged the D.O. No.2399/2015 dated 24.07.2015 which is the final order in the departmental proceeding No.18/2006 [Annexure-C to the writ petition]. The petitioner has further challenged the order dated 27.11.2006 passed in the appeal by the Deputy Inspector General of Police, South Range [Annexure-D to the writ petition]. The petitioner has urged this court to issue mandamus on the respondents to reinstate the petitioner in the service with all service and pecuniary benefits.

This is the second round of litigation. Earlier, the petitioner filed the writ petition being WP(C)No.306 of 2008 challenging the provisional order of punishment dated 17.08.2008 on culmination of the departmental proceeding. The said writ petition was disposed of by the judgment dated 10.03.2015 with the following directions :

"(i) That the government, if it so desires, may appoint a new inquiry Officer within 15 days of receipt of the order of this Court.

(ii) This Inquiry Officer can simultaneously conduct inquiry with regard to both the disciplinary proceeding by holding one disciplinary proceeding which will be analogous in nature and evidence with regard to both the charges and proceedings can be recorded in one proceeding.

(iii) The Inquiry Officer shall permit the delinquent official to have a defence assistant of his choice. However, the defence assistant must be chosen as per the Police Regulations of Bengal, 1943 as applicable to the State of Tripura. It is for the Inquiry Officer to decide who has to be permitted to serve as the defence assistant but once such an official is permitted to serve as defence assistant it is the duty of the Inquiry Officer and the department to ensure that the defence assistant is available to the delinquent official on each and every date on which the inquiry is held. The delinquent official shall be supplied with all the statements of the witnesses already recorded and all other documents on which the department relies upon. This entire process be completed by 20th May, 2015.

(iv) The Inquiry Officer shall proceed from the stage of recording evidence and all the statements of the witnesses may be recorded again in the presence of the accused and he will be permitted to cross-examine the said witnesses.

(v) The inquiry is a very old one and it shall be continued on day to day basis w.e.f. 1st June, 2015. No date shall be given and it is made clear that if the petitioner-delinquent official does not cooperate with the Inquiry Officer or in any manner tries to delay the proceedings the Inquiry Officer shall be fully within his rights to proceed against the delinquent official ex-parte and no sympathy shall be shown to the delinquent official in this regard.

(vi) The inquiry proceedings be completed latest by 15th July, 2015. Thereafter a copy of the inquiry report be sent to the delinquent official and in case the inquiry report is against the delinquent official, the disciplinary authority may take further action in the matter and shall ensure that final order is passed latest by 31st August, 2015."

The writ petition is extremely sketchy and the relevant documents are not made part of it. Even the memorandum of charge has not been placed with the writ petition. On the face of it the writ petition should have been dismissed but considering the petitioner has been thriving for justice for long, this court has tried to pull up the materials from all the available records. It appears that the petitioner was appointed as the constable of police on 31.10.1987. The petitioner had served the respondents for more than 25 years when he filed the present writ petition on 02.12.2015. Two departmental proceedings being D.P.No.22/1994 (later on, renumbered as D.P.No.18/2006) and D.P.No.23/1994 (later on, renumbered as D.P.No.19/2006) were drawn on 06.04.1994 on the following article of charges :

"Charge I-"C/4889 Akhil Chandra Bhowmik of Armed Branch (C/6876), South Tripura District is charged with gross misconduct in that while he got recruited himself in the Police service as constable with effect 31.10.1987 after producing a false School Certificate from Charpara H.S. School showing him read upto Class-X."

AND

"Charge II-"C/4889 Akhil Chandra Bhowmik of Armed Branch, South Tripura District is charged with gross misconduct in that, he married second time with one Smti. Dulu Rani Sarkar (Bhowmik) while his first wife Smti. Santi Rani Bhowmik is alive and thus he violated the provision of Rule 21(1) of C.C.S. (Conduct) Rule 1964 (corrected up to 1st May, 1984). Thus, the act of the constable is highly unbecoming of a member of member of Police force."

By the judgment dated 10.03.2015, this court allowed the enquiry officer to conduct the enquiry simultaneously in respect of both the disciplinary proceedings by holding one disciplinary proceeding, meaning the evidence, as can be recorded in one proceeding. Thus, the proceedings were converted into one D.P. bearing No.18/2006. The petitioner [the delinquent] denied the charge in both DPs stating those as baseless. A new enquiry officer namely Sri Harimohan Das, SDPO was appointed for conducting the enquiry. In conclusion of the enquiry, the enquiry officer submitted his enquiry report on 08.07.2015 [Annexure-B to the writ petition] by returning the finding that the petitioner forged the school certificate at the time of his appointment as constable and he had committed bigamy as he married another woman when his 1st wife was/is alive. In the enquiry report it has been categorically observed that the enquiry officer had given ample opportunity to the delinquent constable to defend himself against the charge. The enquiry officer recorded the statement of PWs and DWs in presence of his defence assistant but some of the witnesses could not be examined for their premature death but their statements were recorded by the previous enquiry officer. On the basis of the said enquiry report, the final order dated 24.07.2015 [Annexure-C to the writ petition] imposing the penalty of dismissal from the service w.e.f. 24.07.2015 [afternoon] has been issued. Against the said order, an appeal was filed to the appellate authority [the Deputy Inspector General of Police (South Range)], the said appeal was dismissed by the order dated 30.09.2015 [Annexure-D to the writ petition].

On a bare reading, it appears that the appellate authority is satisfied that the delinquent has been given all opportunities to build up his defence and after the judgment of this court, as referred, he had engaged Tushar Kanti Bhattacharjee, Deputy S.P., Vigilance. The relevant part of the appellate order dated 30.09.2015 is reproduced for reference :

""On perusal the DP file it is also seen that the previous EO Shri Desha Bondhu Majumder, the then Dy.SP(L/R) of South Tripura District recorded the statement of Subodh Kanti Chakraborty, the then Head Master of Chairpara HS School. From the statement of S.K. Chakraborty available in record, it is seen that he being Head Master of Charipara H.S. School had examined all relevant documents/registers available at School to verify the authenticity of issuing transfer certificate in the name of Akhil Chandra Bhowmik in the year 1983. He also stated that the transfer certificate being Sl No.14 as submitted by Akhil Chandra Bhowmik was false. As per the statement of the Head Master, during the year 1983, one transfer certificate was issued in the name of one Bimal Chandra Nath bearing Sl. No.14 dated 16/03/1983 and another certificate was issued in the name of Shri Jaharlal Bhowmik in Sl. No.104 in the same year. E.O. Shri Harimohan Das has taken various aspects into consideration including the facts viz; statement of the Ex- Head Master Subodh Kanti Chakraborty (now dead) and verification report submitted bgy Asstt. H/M of Charipara Higher Secondary School vide No.F.4(1)-CPH/87/1055 dated 11th February, 1994 and opined that the Article of Charge No.I has been proved.

Findings of the enquiry also suggest that the allegation of second marriage had also been proved. This allegation has further substantiated by the Judgment and order of the Ld. Family Court, Agartala, West Tripura vide No.Civil Miscellaneous 37 of 2005. The order of the Ld. Family Court was challenged in the Courts of Ld. Civil Judge and Ld. District and Session Judge but the order of Ld. Family Court was upheld. Therefore, allegation of second marriage despite having his first wife alive has been proved beyond doubt."

The final order dated 24.07.2015 and the appellate order dated 30.09.2015 are challenged in this writ petition.

Ms. R. Purakayastha, learned counsel appearing for the petitioner has submitted that neither in compliance of Rule 15(2) of CCS (CCA) Rules nor in observance of the Police Regulation of Bengal (PRB) without any reference to the specific regulation, any copy of the enquiry report was sent to the delinquent officer [the petitioner] by providing him opportunity to submit representation against the enquiry report. Even no provisional order on conclusion of the enquiry was supplied to the petitioner. The disciplinary authority passed the final order without affording any such opportunity to the petitioner. Hence, there is serious breach of fair procedure causing prejudice to the petitioner inasmuch as the petitioner has been deprived of the scope to show how the enquiry report is flawed and unreliable. Thereafter, it has been stated that the statement of one Subodh Kanti Chakraborty was recorded by the previous enquiry officer, but the petitioner could not cross-examine the said Head Master who expired before the second Enquiry Officer could summon and examine him providing opportunity of cross-examination to the petitioner. The evidence introduced by the said witness has been made the basis of holding the Charges proved. The petitioner had evidently been deprived of the cross-examination and as such, the evidence of Subodh Kanti Chakraborty could not be read into, for purpose of holding the charge proved. That apart the petitioner has stated that he had no occasion to marry one Santi Rani Bhowmik who has been styled at his first wife for purpose of proving the charge in respect of bigamy.

In reply, Mr. M. Debbarma, learned Addl. G.A. appearing for the respondents has quite emphatically submitted that a verification report of the records was produced in the enquiry by the Asstt. Headmaster and the said report has been taken in the evidence. From the said report it transpired that no such certificate, as produced by the petitioner, was issued from that school. Mr. Debbarma, learned Addl. G.A. has contended that despite giving opportunity to the petitioner, he did not take any chance to cross-examine Subodh Kanti Chakraborty. Subodh Kanti Chakraborty expired as stated before the second enquiry officer could summon him. Mr. Debbarma, learned Addl. G.A. has submitted that no transfer certificate was issued in the year 1983 in the name of Akhil Chandra Bhowmik, the petitioner. The transfer certificate bearing Serial No.14 of 1983 is thus proved to be false and forged.

Mr. Debbarma, learned Addl. G.A. has submitted that Panchayat Secretary of Belabarh Gram Panchayat Sadhan Chandra Debnath had given a statement showing the name of the petitioner in the the Panchayat register in the name of Akhil Chandra Bhowmik. The said witness has stated that Akhil Chandra Bhowmik [the petitioner] and Shanti Rani Bhowmik are married to each other. Shanti Rani Bhowmik was Akhil Chandra Bhowmik's first wife. But the petitioner was living as the husband and wife with Smt. Dulu Rani Sarkar (Bhowmik) during subsistence of his first marriage. By judicial records of conclusive nature, the said charge has been proved.

Mr. Debbarma, learned Addl. G.A. has categorically plucked out from the report of the enquiry officer, as well as from the records of the proceeding that Sukhu Rani Bhowmik and Gouranga Chandra Das of Village Laxmipur have stated in their respective statements in the enquiry that the marriage between Shanti Rani Bhowmik and the petitioner was solemnized in Bangladesh having been negotiated by his father, Aditya Bhowmik. After marriage, Shanti Rani Bhowmik gave birth two children, one son and a daughter. Another witness Rupashi Sarkar of South Charilam has corroborated such statement by stating that she had attended the marriage ceremony of Shanti Rani Bhowmik and Akhil Chandra Bhowmik [the petitioner]. After marriage, they lived as husband and wife. One witness namely Sadhan Chandra Debnath of Village Hairmara was serving as the Panchayat Secretary of the village where Akhil Chandra Bhowmik had been living. As stated, he produced in the enquiry the panchayat register and the records like ROR [the register of ordinary residents] to contend that in the Volume No.4, page No.176 and serial No.51 Dulu Rani Sarkar (Bhowmik) has been shown as the wife of Akhil Chandra Bhowmik and name of Sri Pabitra Bhowmik has been shown as the son of Aditya Bhowmik. From the affidavit filed by the petitioner along with the writ petition, it transpires that Aditya Bhowmik is the father of the petitioner whereas according to Sukhu Rani Bhowmik, Pabitra is the son of Akhil Chandra Bhowmik and Shanti Rani Bhowmik.

Having observed thus, the petitioner has been found guilty of both the charges as noted above. True it is that on the basis of the said report, the final order of dismissal dated 24.07.2015 [Annexure-C to the writ petition] was passed by the Superintendent of Police, Agartala. The appellate authority had by the finding as reproduced above dismissed the appeal. On the face of such rival contention to explore further, this court passed the order on 21.01.2020 by observing that whether the disciplinary authority is obligated to comply the requirement of Rule 15(2) of the CCS (CCA) Rules, 1965 be intimated. The petitioner has raised a specific plea that since the respondents did not supply the petitioner a copy of the findings of the enquiry officer and nor was he provided with the copy of the enquiry report affording opportunity to file the representation the proceeding is vitiated. But the respondents did not file any response in this regard, however they have produced the records of the enquiry. But no record is available wherefrom it can be gathered that the copy of the enquiry report was served on the petitioner. Even, there is no record under which provision the enquiry was carried out against the petitioner.

Mr. Debbarma, learned Addl. G.A. has made a statement that usually the departmental proceedings are conducted in accordance with the Police Regulation of Bengal, 1943 (PRB). Regulation 861 of PRB provides that (a) no major punishment shall be awarded to any police officer of the subordinate ranks except by conducting a proceeding in the prescribed form (b) the grounds from which it is proposed to take action shall be reduced to the form of a definite charge or charges and shall be communicated in writing to the person charged within a reasonable time together with a statement of allegation on which each charge is based and any of other circumstances which is proposed to take into consideration in passing orders on the case (c) the person charged shall be required to put in within a reasonable time a written statement of his defence and to state whether he desires to be hard in person. If he states that he does not desire to put in a written statement or to be heard in person that fact shall be recorded in the proceeding. Where the person charged from whom a written statement is so required fails to present the same within the time fixed by the enquiry officer, the enquiry officer may record the finding against him or make such order in relation to the proceeding as he thinks fit (d) An oral enquiry shall then be held if the person charged so requires or if the authority who has drawn up the proceeding so directs. At that enquiry oral evidence shall be heard as to such of the allegation as are not admitted in, the persons charged shall be entitled to cross examine the witnesses and to have such witnesses called as he may require :

Provided that officer conducted the enquiry may for special and sufficient reasons to be recorded in writing, refuse to call any such witness the person charged shall be allowed to take copy of all evidence, both oral and documentary, contained in the proceeding. (e) After the evidence of the witnesses and the further statements if any, in defence of the persons charged have been placed on record, the officer who conducted the enquiry in writing (i) discuss separately such charge (ii) arrive at a finding on each charge; (iii) make an order or recommended to the authority empowered to pass an order. When the enquiry officer belongs to a department other than the police, the proceeding shall always be forwarded to the parent district/unit for the final order.

For our purpose Regulation 861(f) is of paramount importance and that provides as under :

"(f) The authority empowered to pass the orders of punishment shall grant a personal hearing to the person charged if prayed for and then pass the final orders. When the enquiring officer himself passes the final order, no personal hearing is necessary as the person charged is present throughout the enquiry.

After the enquiry has been completed and after the punishing authority has arrived at a provisional conclusion in regard to the penalty to be imposed the accused officer shall, if the penalty proposed is dismissal, removal, or reduction in rank, be supplied with a copy of the report of the enquiring officer and be called upon to show cause within a reasonable time not ordinarily exceeding one month against the particular penalty proposed to be inflicted except in the following cases-

(i) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge;

(ii) where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is no reasonably practicable to give that person an opportunity of showing cause; or

(iii) where the Government is satisfied that in the interest of the security of the State it is not expedient to give to that person such an opportunity."

It is unfortunate that in the writ petition there is no factual assertion in respect whether a copy of the enquiry report was supplied or sent to the delinquent officer providing him an opportunity to submit the representation against the enquiry report and whether before passing the final order a provisional order/conclusion was drawn for imposing the penalty. But in the grounds, the said plea was raised for violation of Rule 15 of CCS (CCA) Rules which provision does not have any application in conducting an enquiry for major penalty against a police personal. The enquiry in respect of the police personal is carried out under Regulation 861 of PRB. Taking advantage of such slipshod statements, the respondents did not even reply to the assertion in the ground. The simple rule of pleadings is that first the pleadings be placed and thereafter, the grounds be made out. In this case no pleading in respect of non supply of the enquiry report or provisional conclusion in respect of punishment is conspicuous by absent.

Having confronted with such completely unacceptable mode of drawing up a writ petition, this court, for substantive end of justice, passed the order dated 21.01.2020 but the respondents failed to show any record wherefrom it can be inferred that the enquiry report and the provisional conclusion in respect of the penalty were forwarded to the petitioner after the enquiry was conducted in terms of the direction of this court vide judgment dated 10.03.2015. This is a gross violation of Regulation 861(f) of PRB.

In Union of India versus Md. Ramzan Khan reported in AIR 1991 SC 471 which brought change in the statute relating to the disciplinary proceeding, the apex court had observed as follows :

"Deletion of the second opportunity from the scheme of Art. 311(2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Art. 311(2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the inquiry Officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural justice out of the proceedings and the series of pronouncements of this Court making rules of natural justice applicable to such an inquiry are not affected by the 42nd amendment. We, therefore, come to the conclusion that supply of a copy of the inquiry report along with recommendations, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty-Second Amendment has not brought about any change in this position." [Emphasis added]

Hence, the final order dated 24.07.2015 [Annexure-C to the writ petition] whereby the petitioner has been dismissed from service w.e.f. 24.07.2015 and the appellate order dated 30.09.2015 [Annexure-D to the writ petition] are set aside and quashed. But the charges are not interfered. The proceeding will commence from the stage of supplying a copy of the enquiry report. The respondents are directed to comply the provisions of Regulation 861(f) of PRB as the enquiry officer himself has not passed the final order, inasmuch as he does not have such authority. The disciplinary authority shall arrive at a provisional conclusion in regard to the penalty to be imposed on the delinquent officer [the petitioner] and if the penalty proposed is dismissal, removal or reduction in rank the delinquent officer be supplied with a copy of the report of the enquiry officer and be called upon to show cause within reasonable time not ordinarily acceding one month. After having received the reply to the said show cause the disciplinary authority shall pass the final order.

As consequence of the said observation and direction, the petitioner shall be reinstated in the service w.e.f. 25.07.2015 [forenoon] without any break in the service and he shall be paid all pecuniary and service benefit, subject to the final order to be passed by the disciplinary authority.

In terms of the above, the writ petition stands allowed.

There shall be no order as to costs.

The records as produced by Mr. Debbarma, learned Addl.

G.A. shall be returned forthwith under a sealed cover.