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Judgment
The petitioner has filed this writ petition seeking the following reliefs:
“i.Issue Rule upon the Respondents to show cause as to why a writ in the nature of Mandamus and/or order/orders and/or direction directions of like nature shall not be issued whereby modifying the Order, dated 21.03.2024, issued by the Chief Secretary to the Government of Tripura, to the extent of deleting the penalty of reduction to one stage in the time scale of the pay of Rs.10,230-34,800/- with Grade Pay Rs.4,800/- for 3(three) years from the date of the Order & stoppage on release of increments for 3(three) years.
ii.Make the rules absolute.
iii.Call for records. iv. Pass any further order/orders as this Hon‟ble High Court considered fit and proper.
AND
For this act of kindness, the Petitioner, as is duty bound, shall ever pray.”
Heard Learned Senior Counsel, Mr. Purusuttam Roy Barman assisted by Learned Counsel, Mr. Dipjyoti Paul appearing on behalf of the petitioner. Also heard Learned Addl. GA, Mr. Dipankar Sarma appearing on behalf of the respondents-State.
After hearing both the sides and considering the materials on record, this Court is of the view that to decide the present writ petition following point arises for determination:
Whether the appellate authority at the time of passing the order is bound to follow the observation made by the inquiring authority in the departmental proceeding drawn up against the petitioner?
Now, to answer the aforesaid point, let us summarise hereinbelow the facts of the case as projected by the petitioner:
It is the case of the petitioner that by an office order dated 19.08.1998, the petitioner was appointed as Junior Engineer (Grade-I) and was attached to the office of BDO, Bishalgarh (Annexure-1). Thereafter, vide one memorandum dated 26.09.2017, a departmental proceeding was drawn up against him with some article of charges(Annexure-2). Against the said memo, the petitioner submitted his written statement of defence (Annexure-3). After that, by an office order dated 06.11.2019 (Annexure-4), the Disciplinary authority appointed the Commissioner of Departmental Inquiries as the Inquiring authority. The petitioner preferred one writ petition bearing WP(C) No.42 of 2020 challenging the departmental inquiry initiated against him and this Court vide order dated 22.01.2020 disposed of the writ petition directing the authority to complete the departmental proceeding arising out of the charge-sheet dated 26.09.2017 within a period of 6(six) months from 22.01.2020 (Annexure-5). After that, by another order dated 28.04.2020, Sri Amit Kr. Karmakar, TCS Grade-II, BDO, Bishalgarh, R.D. Block, Sepahijala District was appointed as the Presenting Officer in the said DP (Annexure-6). Thereafter, the Commissioner of Departmental Inquiries passed an order on 20.07.2020 (Annexure-7) and exonerated the petitioner from the article of charges. Thereafter, the then District Magistrate & Collector, Sepahijala District, Bishramganj by sending one official communication to the Principal Secretary, Government of Tripura, RD Department sought clarification from the Law Department as to whether all financial benefit be allowed in favour of the petitioner since the departmental proceeding was ended and he was not found guilty. After that, being dissatisfied with the order of the inquiring authority, the Secretary, RD Department, Government of Tripura by another office order dated 11.11.2020 asked the petitioner to submit his representation as the disciplinary authority was disagreed with the findings of the inquiring authority. Against that, the petitioner submitted his representation on 30.11.2020 (Annexure-10). In the meantime, by another order dated 04.03.2021 in IA No.1 of 2021 arising out of WP(C) No.42 of 2020, a co-ordinate Bench of this Court further extended the period of completion of departmental inquiry till 31.03.2021. But, thereafter by another memo dated 28.04.2021 (Annexure-12) the disciplinary authority imposed major penalty of compulsory retirement upon the petitioner. It was the contention of the petitioner that on 11.05.2021, he submitted another representation to the Secretary, RD Department informing that in view of the order dated 04.03.2021 passed by a co-ordinate Bench of this Court in IA No.1 of 2021 of WP(C) No.42 of 2020, the DP was ceased to exist but the disciplinary authority did not adhere to that. The petitioner submitted another representation against the memo dated 28.04.2021 on 16.06.2021 (Annexure-14). Thereafter, the Additional Secretary, Govt. of Tripura, RD Department by a communication dated 26.07.2021, communicated the copy of concurrence/advice of TPSC to the petitioner (Annexure-15). Further, this Court by another order dated 13.08.2021 in WP(C) No.551 of 2021 extended the direction contained in order dated 22.01.2020 in WP(C) No.40 of 2020 till 30.09.2021(Annexure-16). Finally, by order dated 23.09.2021 he was passed an order of major penalty of compulsory retirement (Annexure-17).
Thereafter, the petitioner preferred an appeal before the departmental appellate authority (Annexure-18) and he was asked to appear before the Chief Secretary i.e. the appellate authority on 06.01.2022 (Annexure-19). After that, the Special Secretary, Govt. of Tripura by another order dated 19.01.2022 (Annexure-20) dismissed the appeal preferred by the present petitioner. Challenging the order of the appellate authority, the petitioner again preferred one writ petition before this Court which was numbered as WP(C) No.149 of 2022 and this Court by judgment and order dated 14.12.2023 remanded the matter back to the appellate authority for reconsideration. Thereafter, the appellate authority by another office order dated 21.03.2024 (Annexure-24) passed the following order:
“reduction to one stage in the time scale of the pay of Rs.10,230-Rs.34,800/- with Grade Pay Rs.4,800/-, for a period of 3 (three) years from the date of this order. It is further clarified that no increments will be released during the aforesaid 3 (three) years i.e. during the penalty period upon the Accused Officer Shri Kishore Kumar Banik.”
Challenging the order dated 21.03.2024, this present writ petition is filed.
At the time of hearing, Learned Senior Counsel first of all referred the entire subject matter of the case and thereafter drawn the attention of this Court to the judgment and order dated 14.12.2023 passed by this Court in WP(C) No.149 of 2022. Referring the same, Learned Senior Counsel submitted that the order of the appellate authority is not in conformity with the order passed by this Court and the appellate authority acted beyond the direction of this Court. As such, the same cannot stand in the eye of law. Learned Senior Counsel further submitted that since the inquiring authority gave clean chit in the departmental proceeding against all the charges framed against the petitioner as such, there was no scope on the part of the appellate authority to sit over the findings of the inquiring authority and to make a different finding imposing the punishment as indicated above. It was submitted by Learned Senior Counsel that the order dated 21.03.2024 was passed in excess of jurisdiction, violating the principles of natural justice. So, Learned Senior Counsel urged before this Court for issuing rule by setting aside the order dated 21.03.2024 passed by the appellate authority (Annexure-24). Referring the entire findings of the inquiring authority in the departmental proceeding, Learned Senior Counsel submitted that the inquiring authority after elaborate discussions of the evidence on record gave the findings and exonerated the petitioner from the charges leveled against him. Learned Senior Counsel further submitted that the provisions of Rule 14 and 15 of CCS (CC&A) Rules, 1965 have not been followed in this case and urged for allowing this writ petition.
Learned Addl. GA, Mr. Dipankar Sarma appearing on behalf of the respondents-State first of all drawn the attention of this Court to para No.16 of the counter affidavit and submitted that the petitioner has committed irregularities during the tenure from 01.04.2012 to 31.03.2014 under the capacity of Junior Engineer but by this time he has been promoted as Group-B Gazetted Officer w.e.f. 19.02.2015. The charge-sheet was submitted after the promotion of the petitioner and as such, in view of the notification dated 11.01.2019 of the GA (AR) Department, the disciplinary authority for the Group-B Gazetted officers would be the Secretary of the concerned Department. So, the Secretary, RD Department was appointed as the disciplinary authority of the petitioner and there was no infirmity to that.
Learned Addl. GA further submitted that this Court by order dated 14.12.2023 in WP(C) No.149 of 2022 did not give any observation to follow the findings of the inquiring authority in the departmental proceeding drawn up against the petitioner. Rather, this Court, at the time of remanding the matter back directed the authority to consider the findings of the inquiring authority and thereafter to give a specific observation. Accordingly, the appellate authority after considering the materials on record, by order dated 21.03.2024 (Annexure-24) has imposed minor punishment, which was the lesser punishment imposed upon the present petitioner earlier and there was no infirmity to that. As such, according to Learned Addl. GA, the petitioner has failed to make out any case for grant of the relief sought.
In support of his contention, Learned Addl. GA relied upon one judgment of the Hon’ble Supreme Court of India in High Court of Judicature at Bombay v. Shashikant S. Patil & Anr. reported in (2000) 1 SCC 416 wherein in para Nos.14, 16, 17, 20, 24 and 25, Hon’ble the Apex Court observed as under:
“14.Fourth is the fact that the roznama (proceedings diary of the Court) maintained in the said criminal case as it is now made available is a fabricated document. We perused the original of that fabricated roznama. It is unnecessary for us to enumerate the various broad grounds for showing that the present roznama is a fabricated document, for even the first respondent's counsel was unable to explain the glaring features of fabrication thereof. It was so fabricated as to suit the present stand of the first respondent that the complainant was not arrested and produced before him on 16-10-1985. It is important to point out that the first respondent did not dispute that the aforesaid forged roznama contains his signature at a number of places where the Magistrate's signature should appear.
16.The Division Bench of the High Court seems to have approached the case as though it was an appeal against the order of the administrative/disciplinary authority of the High Court. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the enquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution.
17.In State of A.P. v. S. Sree Rama Rao [AIR 1963 SC 1723 : (1964) 3 SCR 25] this Court has stated so and further observed thus:
“The High Court is not constituted in a proceeding under Article 226 of the Constitution as a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Whether there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence.”
20.The legal position on that score has been stated by this Court in A.N. D'Silva v. Union of India [AIR 1962 SC 1130 : 1962 Supp (1) SCR 968] that neither the findings of the enquiry officer nor his recommendations are binding on the punishing authority. The aforesaid position was settled by a Constitution Bench of this Court way back in 1963 (Union of India v. H.C. Goel [AIR 1964 SC 364 : (1964) 4 SCR 718] ). The Bench held that “the Government may agree with the report or may differ, either wholly or partially, from the conclusions recorded in the report”. Their Lordships laid down the following principle:
“If the report makes findings in favour of the public servant and the Government disagrees with the said findings and holds that the charges framed against the public servant are prima facie proved, the Government should decide provisionally what punishment should be imposed on the public servant and proceed to issue a second notice against him in that behalf.”
24.When such a constitutional function was exercised by the administrative side of the High Court any judicial review thereon should have been made not only with great care and circumspection, but confining strictly to the parameters set by this Court in the afore-cited decisions. In the present case, as per the judgment under appeal the Division Bench of the Bombay High Court appears to have snipped off the decision of the Disciplinary Committee of the High Court as if the Bench had appeal powers over the decision of the five Judges on the administrative side. At any rate the Division Bench has clearly exceeded its jurisdictional frontiers by interfering with such an order passed by the High Court on the administrative side.
25.We, therefore, allow this appeal and set aside the impugned judgment of the Division Bench of the Bombay High Court.”
Relying upon the said judgment of Hon’ble the Apex Court, Learned Addl. GA submitted that this present case is squarely covered by the observation made by the Hon’ble Supreme Court in the aforenoted case and urged for dismissal of this writ petition.
Heard both the sides at length and perused the writ petition along with the documents annexed with the writ petition as well the counter affidavit filed by the State-respondents and the documents annexed thereto.
Since the scope of the present writ petition is confined to the order dated 21.03.2024 passed by the appellate authority in pursuance of the judgment and order dated 14.12.2023 passed by this Court in WP(C) No.149 of 2022, this Court shall confine its consideration to the aforesaid point only as formulated earlier.
For the sake of convenience, let us mention hereinbelow the relevant portion of the judgment and order dated 14.12.2023 passed by this Court wherein in para No.6, this Court observed as under:
“6.It is seen from the record that various allegations were leveled against the petitioner, but in the inquiry report, the Inquiring Authority has observed that 'the prosecution has failed to establish/sustain the Article of Charges brought against AO‟. Thereafter in the subsequent proceedings, nor the Secretary, to the Government of Tripura (Rural Development Department) or the Appellate Authority has been able to come over or deal with the said finding of the Inquiry Authority. As such this Court is of the opinion that the Appellate Authority should reconsider the entire issue and also take into consideration the said Inquiry report dated 20.07.2020 ad passed a reasoned order.”
From the aforesaid observation, it appears that at the time of disposal of the said writ petition, the co-ordinate Bench of this Court remanded back the matter to the appellate authority for fresh adjudication after taking into consideration the entire issue with further direction that the appellate authority shall take into consideration the inquiry officer’s report passed by the inquiring authority with a further direction to complete the process within a period of 3(three) months.
I have also perused the order of the appellate authority (Annexure-24).
Further, for the sake of convenience let us quote hereinbelow the relevant provision of Rule 14 and 15 of the CCS(CC&A) Rules, 1965:
“14.Procedure for imposing major penalties
(1)No order imposing any of the penalties specified in clauses (v) to (ix) of Rule 11 shall be made except after an inquiry held, as far as may be, in the manner provided in this Rule and Rule 15, or in the manner provided by the Public Servants (Inquiries) Act, 1850 (37 of 1850), where such inquiry is held under that Act.
(2)Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Government servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof.
Provided that where there is a complaint of sexual harassment within the meaning of Rule 3-C of the Central Civil Services (Conduct) Rules, 1964, the Complaints Committee established in each Ministry or Department or Office for inquiring into such complaints, shall be deemed to be the Inquiring Authority appointed by the Disciplinary Authority for the purpose of these rules and the Complaints Committee shall hold, if separate procedure has not been prescribed for the Complaints Committee for holding the inquiry into the complaints of sexual harassment, the inquiry as far as practicable in accordance with the procedure laid down in these rules.
15.Action on the inquiry report
(1)The Disciplinary Authority, if it is not itself the Inquiring Authority may, for reasons to be recorded by it in writing, remit the case to the Inquiring Authority for further inquiry and report and the Inquiring Authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 14, as far as may be.
(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.
(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:
(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
(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.
(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.
(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 proceedings further in the matter as specified in sub-rules (5) and (6).
(5)If the Disciplinary Authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in Clauses (i) to (iv) of Rule 11 should be imposed on the Government servant, it shall, notwithstanding anything contained in Rule 16, make an order imposing such penalty.
(6)If the Disciplinary Authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in Clauses (v) to (ix) of Rule 11 should be imposed on the Government servant, it shall make an order imposing such penalty and it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed;”
From the aforesaid rules, it appears that in the instant departmental proceeding, all the procedures have been exhausted by the disciplinary authority at the time of disposal of the departmental proceeding. So, although Learned Senior Counsel at the time of hearing drawn the attention of this Court that the provisions of the aforesaid rules were not complied with by the authority, this argument advanced by Learned Senior Counsel cannot be accepted as because after going through the entire case record it appears that all the processes were duly followed with.
Learned Senior Counsel further contended regarding how two disciplinary authorities were engaged in this case.
Since in the present case, the charge-sheet was submitted after the petitioner was promoted to the higher post, as such, the Secretary of the Department was duly acted as the disciplinary authority and I find no illegality to that.
The next argument advanced by Learned Senior Counsel was that in pursuance of order dated 04.03.2021 passed in IA 1 of 2021 in WP(C) No.42 of 2020 further proceeding in DP drawn up against the petitioner was ceased to exist after 01.04.2021 but the departmental authority thereafter also continued with the proceeding which was ceased to exist. However, in this regard, a co-ordinate Bench of this Court in another dated 13.08.2021 in WP(C) No.551 of 2021 extended the period of the DP till 30.09.2021. As such, this argument as advanced by Learned Senior Counsel for the petitioner also cannot be accepted.
Now, regarding imposition of punishment, I have also perused the order of the appellate authority (Annexure-24).
It appears that the appellate authority, at the time of imposition of punishment, after considering the entire materials, imposed minor punishment upon the petitioner as per Rule 11(iii)(a) and (iv) of the CCS(CC&A) Rules, 1965 with the following observation:
“NOW, THEREFORE, after careful consideration of all relevant aspects, due consideration of the Inquiry Officer‟s report and taking lenient and sympathetic view, the undersigned reduces the penalty of „Compulsory Retirement‟ by the Disciplinary Authority to reduction to one stage in the time scale of the pay of Rs.10,230-Rs.34,800/- with Grade Pay Rs.4,800/-, for a period of 3 (three) years from the date of this order. It is further clarified that no increments will be released during the aforesaid 3 (three) years i.e. during the penalty period upon the Accused Officer Shri Kishore Kumar Banik.”
It appears to this Court that the Learned appellate authority by the said order, after considering the inquiry report of the inquiring authority rightly imposed minor penalties upon the petitioner.
As such, I do not find any infirmity in the findings of the appellate authority and as a constitutional Court in exercise of jurisdiction under Article 226 of the Constitution of India, I do not find any scope to interfere with the evidence on record of the inquiry proceeding drawn up against the petitioner and the petitioner in this case failed to project any case in his favour for issuing rule and the same is liable to be dismissed.
The citation referred by Learned Addl. GA for the State-respondents appears to be relevant for decision of this writ petition.
Considering the materials on record, I find no merit in the writ petition filed by the petitioner. In the result, the present writ petition stands dismissed being devoid of merit. No order is passed as to costs.
With this observation, the present writ petition stands disposed of.
Pending application(s), if any, also stands disposed of.