Nanda Lal Das And Anr. vs Tripura Khadi & Village Industries And Ors.

[1] These petitions arise in common background. They are heard together and would be disposed of by this common judgment. For convenience we may record facts from WP(C) No.441 of 2020.

[2] Petitioner at the relevant time was working as an Assistant Organizer (Khadi) in the Khadi & Village Industries Board (hereinafter to be referred to as the Khadi Board). A charge-sheet was issued to the petitioner on 25.02.2011 in which three charges were levelled which read as under :

"Article -1.

That Shri Ashis Kanti Saha, Assistant Organizer (Khadi) and Shri Nanda Lal Das, Jr. Supervisor while holding the charge of store of the Tripura Khadi & Village Industries Board(TKVIB) from time to time during the period from 14.02.94 to 06.11.99, received 301075 hanks of yarns valued at Rs.11,30,018.60 from the different centers of TKVIB through invoices. On receipt of 301075 hanks of yarns, they did not make entry of the yarns in the stoke register with an ulterior motive. They simply issued certificate on the reverse of the wages bill staring that the yarns were received in good condition. Non-giving entry of yarns in the relevant stock register(s) resulted in loss of Rs.11,30,018.60 of the Board; and for this, said Shri Ashis Kanti Saha and Shri Nanda Lal Das are jointly and severally responsible.

By showing the above activities Shri Ashis Kanti Saha and Shri Nanda Lal Das failed to maintain absolute integrity and devotion to their duties and what they did was unbecoming of the employees of the Board and thereby they violated the provision of Rule 3(I)(i)(ii)(iii) of the Tripura Civil Services (Conduct) Rules, 1988 as adopted by Tripura Khadi & Village Industries Board vide No.TKB/GEN/BM/1(1)/90-91/Part-I/4047-50 dated 13.01.2011.

Article II

That during afore-mentioned period while Shri Ashis Kanti Saha, Assistant Organizer (Khadi) and Shri Nanda Lal Das, Junior Supervisor, held the charge of yarn store of the Board, they issued Yarns to the different centers of the Board as well as individual Weavers through invoice; as well as the register(s) maintained for the individual weavers with an ulterior motive; and thereby the Board sustained loss of Rs.4,86,732.00. For non-giving entry in the relevant Stock registers, Shri Ashis Kanti Saha and Shri Nanda Lal Das are jointly and severally responsible.

By showing the above activities Shri Ashis Kanti Saha and Shri Nanda Lal Das failed to maintain absolute integrity and devetion to their duties and what they did was unbecoming of the employees of the Board and thereby they violated the provision of Rule 3(I)(i)(ii)(iii) of the Tripura Civil Services (Conduct) Rules, 1988 as adopted by Tripura Khadi & Village Industries Board vide No.TKB/GEN/BM/1(1)/90-91/Part-I/4047-50 dated 13.01.2011.

Article III

That during afore-mentioned period, while Shri Ashish Kanti Saha, Assistant Organizer (Khadi) and Shri nanda Lal Das, Junior supervisor held the Charge of the Yarn/cotton Store, they handled relevant register(s). After the closure of the first Stock Register of the year 1993-94 the second yarn Stock Register was opened; and while opening the second Stock Register the closing balance of the first stock register was not brought forward in the second Stock Register with an ulterior motive."

[3] The charge-sheet contained statement of imputation of misconduct in which in detail it was pointed out how the petitioner had deliberately caused substantial financial loss to the Khadi Board. A departmental inquiry was conducted. Upon completion of which the Inquiry Officer submitted his report on 31.03.2016 holding that the charges were proved. Copy of the Inquiry Officer's report was supplied to the petitioner on 12.04.2016. In response to which the petitioner wrote to the disciplinary authority on 19.04.2016 saying that he was ready to refund 50% of the amount and that he would not thereafter take shelter of law but he may be allowed to continue in the service and his family members may be saved from extreme financial hardship. In short no major penalty may be imposed. On 22.04.2016 the petitioner deposited the said promised sum of Rs.5,65,009/- comprising of 50% of the loss caused to the department. On 31.12.2016 the petitioner again wrote to the disciplinary authority and requested for leniency in punishment. He stated that he was the sole earning member of the family and if his service is discontinued his family would face extreme financial hardships. Considering such circumstances, the authority may impose any punishment other than extreme major penalty.

[4] On 03.01.2017 the disciplinary authority imposed the punishment of withholding of the increment for a period of three years without cumulative effect. The petitioner thereafter approached the High Court directly but was relegated to appeal remedy. He filed the appeal which was dismissed upon which this petition is filed in which the petitioner has made two fold prayers. His first prayer is for refund of the said sum of Rs.5,65,009/- and his second prayer is to set aside the order of the disciplinary authority.

[5] In WP(C) No.440/2020 facts are similar except that the petitioner therein was holding the post of Junior Supervisor. The rest of the facts are similar.

[6] In such background, learned counsel for the petitioners submitted that they were made to deposit a sum of Rs.5,65,009/- each under duress and pressure. Such amount must be refunded to the petitioners. On the question of punishment imposed by the disciplinary authority counsel submitted that the Executive Officer of the Khadi Board was not authorized to impose any punishment since when the order was passed there was no validly constituted Board in existence. For this purpose, he relied on a decision of Single Judge of this Court in case of one of the petitioners Shri Ashis Kanti Saha who had filed WP(C) No.650/2017 to challenge his suspension order passed by the Executive Officer. This petition was allowed by a judgment dated 04.12.2017 holding that after the tenure of the previously constituted Khadi Board had expired there was no extension and in any case the extension as per the statute could be only for a period of 7 months. Such period had also expired. In absence of validly constituted Board the Executive Officer had no authority to place an officer under suspension.

[7] On the other hand, learned counsel Shri K.K. Pal for the Khadi Board opposed the petitions contending that the petitioners had volunteered to deposit the 50% of the loss caused to the Khadi Board on account of the misconduct. They had represented that upon such deposit they may be spared the extreme penalty of dismissal, removal or reduction in rank. They cannot be allowed to resile from such position now.

[8] As noted, the petitioners seek two prayers. One is for refund of Rs.5,65,009/- deposited by them and second is to set aside the penalty orders. The record would suggest that the petitioners were facing extremely serious charges of financial irregularities. The Inquiry Officer held all the three charges were proved. The disciplinary authority allowed the petitioners to make representation. Their only representation was that they are prepared to deposit 50% of the loss caused but they will be spared the extreme penalty. They may not be removed from service since their families depend on their salaries. First such representation was made in April, 2016. This followed by actual deposit of money by them on or around 27.04.2016. Second representation was made on 31.12.2016. The order of punishment followed in close proximity on 31.01.2017. The punishment imposed was withholding of increments for three years without cumulative effect. The punishment is thus mild compared to the nature of charges levelled against the petitioner and which the disciplinary authority held were proved.

[9] Very clearly the Executive Officer had borne in mind the petitioners' representations and their voluntary deposit of Rs.5,65,009/- while imposing the punishment. Perhaps much harsher punishment was justified looking to the charges levelled against the petitioners. It is thus clear that the said authority accepted the petitioners' representation that a milder punishment may be imposed sparing extreme major penalty which will ruin their families. The petitioners now cannot turn around and claim refund of amount which they had deposited after making representation as noted above and thereafter reiterated in the later representation. Their theory that they were forced to deposit this amount is simply not believable and therefore discarded. Coming to the question of punishment imposed learned counsel for the petitioners is correct in pointing out that under similar circumstances Single Judge of this Court had held that in absence of validly constituted board the Executive Officer could not have placed the delinquent under suspension. For the same reason he could also not have imposed a punishment. I may have some doubt about the decision of the Single Judge nevertheless not enough to make a reference to the Division Bench. It is an admitted position that on the date of passing of the punishment order i.e. 03.01.2017 fresh board was not constituted which was later on constituted on 23.06.2017. The order passed by the Executive Officer on 03.01.2017 was thus without jurisdiction and must be reversed. The matter however cannot rest here. The disciplinary authority must be allowed to pass appropriate order on the report of the Inquiry Officer and after taking into consideration the representation made by the petitioner on 19.04.2016. For such purpose, both the punishment orders are reversed. The proceedings to be placed back before the disciplinary authority again who shall pass a fresh order in accordance with law. It is clarified that the petitioners shall not have a fresh opportunity to make any further representation since they had already made their representations at the relevant time and further that the entire range of punishments prescribed under the Service Rules would be open for the disciplinary authority to choose appropriate punishment in the present cases. I am informed that in the meantime petitioner Ashis Kanti Saha has retired. However, since this will be nothing but the continuation of the departmental inquiry already instituted while he was in service, the same shall continue post his retirement also.

[10] In the result, petitions are disposed of. Pending application(s), if any, also stands disposed of.