Mainul Haque vs State Of Tripura

Heard Mr. A.K. Pal, learned counsel appearing for the petitioner. Also heard Mr. P. Maishan, learned counsel appearing for the respondents.

By way of filing the present writ petition, the petitioner has prayed for the following reliefs:

"Under the circumstances, it is humbly prayed that Your Lordship would be graciously be pleased to;

(i) Admits the Writ petition;

(ii) Issue notice upon the respondents;

(iii) Call for the records;

AND

(iv) After hearing of the parties be pleased to set aside or cancell or quash the order dated 28.6.2014(Annexure-F to the writ petition) passed by the Commandant, 13th Bn, T.S.R. and affirmed by the Appellate Authority on 19.8.2014 and would be further pleased to reinstate the petitioner in his service and to pass any other order/orders as Your Lordship deems fit and proper.

And for this act of kindness Your petitioner as on duty bound, shall ever pray."

The facts, in short are that in course of service as Driver-Rifleman at 4th Bn. TSR, the petitioner had applied for casual leave w.e.f. 27.04.2013 to 01.05.2013 (including inter-fixing holiday on 28.04.2013 and suffixing holiday on 01.05.2013). The petitioner had fallen into illness and further his mother, namely Smt. Dilora Begam also had fallen into illness. Due to such illness, the petitioner could not resume his duty on the date as per his application.

It is the case of the petitioner that he was treated by the Government hospital of Tripura State as well as outside the State. Further, his mother had expired on 05.06.2014. The medical illness and death certificate are annexed with the writ petition.

The petitioner had applied for extension of the period of his leave and there was leave due also. But, a disciplinary proceeding was initiated against the delinquent-petitioner for not resuming his duty in time as per his application and for over-staying of his leave period.

By way of filing counter affidavit, the respondents have stated that the petitioner applied for 3(three) day's casual leave with effect from 26.04.2013 to 01.05.2013 and thereafter the respondents sanctioned the said leave of the petitioner. The petitioner had availed the said period of casual leave, but, after expiry of the said leave period, the petitioner did not join his duty and overstayed unauthorizedly w.e.f. 02.05.2013(F.N.).

It is further stated that the petitioner did never inform the authority about his illness/treatment nor about his mother's illness/death during the period of his overstaying leave or in the course of departmental enquiry. Later on, the petitioner had applied for granting three months earned leave in cancellation of three days casual leave for completion of Hajj in Saudi Arabia i.e. Macca & Madina vide his application dated 15.09.2013 which was received by the office of the Commandant, 13 Bn. Commandant, TSR(IR-IX) on 20.09.2013.

Finally, the respondents had issued a Memorandum dated 08.10.2013(Annexure-2 to the counter affidavit) wherein the disciplinary authority had proposed to hold an inquiry against the petitioner under Rule 14 of the CCS(CC&A) Rules, 1965 read with Rule 40 of the Tripura State Rifles(Discipline, Control, Service conditions, etc.) Rules, 1986 framing articles of charges. The Officer-In-Charge of Kailashahar Police Station was requested to serve a copy of the said Memorandum to the petitioner. Departmental proceeding vide D.P. No.27/2013 was initiated against the petitioner and reasonable time and opportunity was afforded to the petitioner to defend himself.

It is stated in the counter affidavit that in response to the Departmental Proceeding, the petitioner had submitted letter dated 21.12.2013 to the Commandant with a prayer to supply of 6(six) number of documents relating to the Departmental Proceeding. The petitioner had sought further time to submit reply to the memorandum dated 08.10.2013. In course of hearing, Mr. Maishan, learned counsel appearing for the respondents submitted that the petitioner was served with several notices at his house address with a direction to participate in the inquiry.

However, since the petitioner did not participate in the proceeding, the enquiry was proceeded ex parte. Mr. Maishan, learned counsel further submitted that after completion of enquiry, the Inquiry Officer submitted his findings on 31.03.2014 stating that the article of charges framed against the petitioner has been well-established and found to be proved. Next, learned counsel for the respondents submitted that the petitioner was given an opportunity by way of issuing of Provisional Punishment Order vide order dated 09.04.2014 through a special messenger, namely, P.K. Darlong which was received by the father of the petitioner on 13.04.2014 wherein the petitioner was directed to submit representation within 15(fifteen) days against the said provisional order of punishment.

Against the said provisional order of punishment, the petitioner had submitted written representation dated 05.05.2014 which was received by the office of the respondents on 14.05.2014. On receipt of the said representation dated 05.05.2014, the disciplinary authority has duly considered all aspects of the matter and regretted the said representation due to un-justifying and baseless claim. Later on, a notice vide No.11560 dated 31.05.2014 was published in local dailies(Daily Desher Katha and Syandan Patrika) on 03.06.2014 though the Director, ICA, Tripura. In the said notice, the petitioner was given last chance/opportunity to make communication within fifteen days from the date of publication of notice in the said newspaper, but the petitioner did not at all respond to the said notice. Ultimately, the disciplinary authority held that despite adequate opportunities given to the petitioner by sending several notices at his home address or through concerned police station and also through publishing notice in the newspaper to join his duty or to make communication with the office, neither he made any correspondence in response to those notices nor he joined his duty till the issuance of final order of punishment. Thereafter, after careful examination of the case and considering all the facts, the disciplinary authority in exercise of power conferred upon him under Section 12(1) of the TSR Act, 1983 had imposed the punishment of "REMOVAL FROM SERVICE". However, it was stipulated in the said order that such removal from service would not be a disqualification for future employment under the Government under Section 12(1)(i) of the TSR Act, 1983. Accordingly, the name of the petitioner was struck off from the strength of 13th Bn. TSR(IR-IX) w.e.f. 28.06.2014(F.N.)

Against the order of "REMOBAL FROM SERVICE" dated 28.06.2014, the petitioner preferred an appeal before the appellate authority. The appellate authority also has applied his mind and agreed with the finding of the inquiring authority as well as the disciplinary authority and accordingly the appeal preferred by the appellant-petitioner herein was rejected and the decision of the disciplinary authority was upheld and affirmed.

Having heard the rival submissions of the learned counsels of the parties to the lis, I have perused the documents annexed with both the writ petition and the counter affidavit. It is true that the petitioner did not join his duty after the expiry of his leave period. There is no such document filed by the petitioner along with the writ petition wherefrom it would be revealed that he had submitted any medical certificate in support of his illness along with his application praying for extension of leave period. There is also no document wherefrom it would reveal that his mother was ill. Only some medical certificates are annexed to the writ petition, but, there is no evidence that those certificates were communicated to the respondents.

Further, it is apparent from the records that despite receipt of the notices, the petitioner did not at all think it necessary to join his duty. In my opinion, the petitioner has totally forgotten that he was a member of a disciplined force, responsible to look after the law and order affairs of the State. He had absented from duty on the pre-text that he and his mother were suffering from illness. After the death of his mother, he had to go with his father at Macca ignoring the discipline of the force.

Having regard to the submissions of the learned counsels appearing for the respective parties and after due consideration of the materials on record, I find no procedural error committed by the respondents in the initiation of the departmental inquiry against the petitioner. The petitioner was given enough opportunity to participate in the proceeding and to raise his defence. However, he on his own will and volition had abstained from participating the proceeding. This Court has given due consideration to the conduct of the petitioner throughout the proceeding and his commitment to serve the State, being a member of a disciplined force, according to me, the petitioner deserves to be punished for his dereliction of duty as held by the Disciplinary Authority as well as the Appellate Authority. I do not find any ground to interfere with the finding and decisions of the Disciplinary Authority, having the petitioner being afforded with all the opportunities to defend his case according to Rules.

For the reasons stated above, the writ petition deserves no merit, and accordingly, the same is dismissed. However, there shall be no order as to costs.