Rajib Ray vs State Of Tripura And Ors

[1] Heard Mr. Samarjit Bhattacharjee, learned counsel appearing for the petitioner as well as Mr. A. Nandi, learned counsel appearing for the respondents.

[2] Mr. Nandi, learned counsel has made reference that he would make submission on the basis of the records as the respondents could not file any reply traversing the averments, made in the writ petition.

[3] By means of this writ petition, the petitioner who is a Superintendent of Taxes under the Finance Department, Government of Tripura has challenged the memorandum No.F.1- 7(8)/TAX/2004/15774 dated 04.12.2004 issued by the Commissioner and Secretary to the Government of Tripura, Finance Department (Taxes and Excise), Annexure-I to the writ petition and also the order No.F.IV-7(8)-Tax/04(Part)/1916-18 dated 25.02.2015 issued by the Secretary to the Government of Tripura, Finance Department (Taxes and Excise), Annexure-19 to the writ petition.

[4] Mr. Samarjit Bhattacharjee, learned counsel for the petitioner has submitted that due to inadvertence another order dated 03.07.2017 has been challenged, which has no relevance in the context of this case. As such, this court will not form any further observation on the said relief as prayed by the petitioner. Mr. Bhattacharjee, learned counsel has emphatically submitted that since 04.11.2004, a Departmental Proceeding has been pursued against the petitioner and for legal impact of such continuance the petitioner has been deprived from the further promotion from the post of Superintendent of Taxes. That apart, the petitioner suffers prejudices a galore.

[5] By the said memorandum dated 04.12.2004 the charge of misconduct or misbehavior has been brought against the petitioner for purpose of inquiry under Rule 14 of the Central Civil Services (Control, Classification and Appeal) Rules, 1965. For purpose of reference, the charge that has been brought by the said memorandum dated 04.12.2004 is extracted hereunder:

"Sri Rajib Roy, Superintendent of Taxes (now under suspension) was appointed as the Superintendent of Taxes to assist the Commissioner of Taxes with effect from 24.12.1999 vide Finance Dept. Notification No.F.IV- 2(3)-Tax/86(P.I) dated 23.12.96. While Shri Roy, functioning as such, issued an irregular Order bearing No.0297107/97/6897 dated 26.4.01 in connection with acceptance of fire damaged taxable consignments of about Rs.65.96 lacs of M/S. Onkar Carrying Corporation, Masjid Road, Agartala. Also while he was functioning as Supdt. Of Taxes at Udaipur Charge he issued a huge number of permits to the non-existent dealers namely M/S. Priya Varities and M/S Joykali Varities of Udaipur. Issuing of such order and permits by Shri Roy(U/S) are irregular without proper examination of the cases. By this act of his, Shri Roy (U/S) failed to comply with the provisions of the Tripura Sales Tax Act, 1976 and the corresponding rules and thus failed to maintain devotion to duty and did an act which is unbecoming of a Government employee and failed to exercise due diligence in the exercise of the powers conferred in him and violated Rule-3(i)(ii), 3(i)(iii) and 3(2)(ii) of the Tripura Civil Services (Conduct) Rules 1988."

It has been asserted in the writ petition that all such statements are thoroughly controverted by the petitioner by filing a written statement of defence. As a result, the disciplinary authority instituted an inquiry by appointing the inquiring authority. The inquiry has culminated in the findings dated 24.03.2008. The inquiry report has been furnished to the disciplinary authority. The said report (Annexure-IX to the writ petition) was considered by the disciplinary authority, as it appears from the order dated 05.10.2010 (Annexure-X to the writ petition). On the purported consideration, the following order has been passed by the disciplinary authority in the name of the Governor. The said order dated 05.10.2010 reads as follows :

"WHEREAS a re-inquiry under Rule 15(1) of the C.C.S (C.C.A) Rules, 1965 is to be held against Shri Rajib Ray, Superintendent of Taxes, Agartala in connection with case No.1/2005;

AND WHEREAS the undersigned considers that a Presenting Officer should be appointed to present on behalf of the undersigned the case in support of the articles of charge.

NOW THEREFORE, the undersigned in exercise of the powers conferred by sub-rule(5) (C) of Rule 14 of the said rules, hereby appoints Sri S. Bhattacharjee, Deputy Commissioner of Taxes, Government of Tripura as the Presenting Officer."

The petitioner has not placed in the writ petition, the order of re-enquiry. Even this court is not in a position to find out whether such order at all exists separately or it is merely a note in the file. However, the order of re-inquiry on appraisal of the report has been challenged in the writ petition along with the challenge to the memorandum of charge as issued by the memorandum dated 04.12.2004.

[6] Mr. Samarjit Bhattacharjee, learned counsel for the petitioner has submitted that the said order of re-inquiry has not been supplied to the petitioner and as such, the petitioner does not know under what reasons, the said order has been passed.

[7] Mr. A. Nandi, learned counsel for the respondent also did not place any record and as it is noted in the various orders passed in this writ petition that the respondents did not file their reply.

In this regard Mr. Bhattacharjee, learned counsel has relied on a decision of this court in Dhiman Singha Vs. State of Tripura and Ors. reported in (2015) 2 Tripura Law Reports 900 where it has been observed as under :

"7.Sub-rule (1) of the rule 15 envisages a situation where the disciplinary authority is itself not the inquiring authority. On going through the report of the Inquiry Officer, if the disciplinary authority finds that further inquiry proceedings should be held then it must record its reasons for coming to such a finding and thereafter it must remit the case to the inquiring authority for further inquiry and report the matter to the disciplinary authority. Therefore, what is contemplated under this sub-rule is a further inquiry which obviously means a continuation of the old inquiry but not a fresh or de novo inquiry. The language used is very specific that the disciplinary authority after recording its reasons in writing can remit the case to the Inquiry Officer. Remission of a case means that it must be sent back to the same authority to proceed further in accordance with law. Officers may change but the authority must remain the same. The words, „remit‟ and further inquiry‟ leave no manner of doubt that what is contemplated under rule 15(1) is the continuation of the old inquiry by the same authority which conducted the inquiry earlier."

[8] Mr. Bhattacharjee, learned counsel for the petitioner has also referred to para-12 of the said report where it is observed that there is no rule which permits the disciplinary authority to start a fresh inquiry. In case, the disciplinary authority was of the view that the statements of some material witnesses had not been recorded or that some material evidence had not been taken into consideration, then the disciplinary authority should have recorded those reasons and then could have remitted the matter to the Inquiring Officer to carry out the further enquiry in terms of Rule 15(1). This has not been done. What has been done is engaging the inquiry officer to start a de novo inquiry, which is, in the context, not permissible under the law. The procedure as followed is totally illegal and therefore this court has no option but to set aside the entire inquiry proceeding and to quash the order dismissing the petitioner from service.

[9] Mr. Bhattacharjee, learned counsel for the petitioner has further submitted that since 04.12.2004, the disciplinary proceeding is pending, which is highly detrimental and it itself stands against the principles of natural justice. In this regard, Mr. Bhattacharjee, learned counsel has relied on a decision of the apex court in Prem Nath Bali Versus Registrar, High Court of Delhi and Another reported in (2015) 16 Supreme Court Cases 415, where the apex court has observed as follows:

"25. We are constrained to observe as to why the departmental proceeding, which involved only one charge and that too uncomplicated, have taken more than 9 years to conclude the departmental enquiry. No justification was forthcoming from the respondents‟ side to explain the undue delay in completion of the departmental enquiry except to throw blame on the appellant‟s conduct which we feel, was not fully justified.

Time and again, this Court has emphasized that it is the duty of the employer to ensure that the departmental enquiry initiated against the delinquent employee is concluded within the shortest possible time by taking priority measures. In cases where the delinquent is placed under suspension during the pendency of such inquiry then it becomes all the more imperative for the employer to ensure that the inquiry is concluded in the shortest possible time to avoid any inconvenience, loss and prejudice to the rights of the delinquent employee.

As a matter of experience, we often notice that after completion of the inquiry, the issue involved therein does not come to an end because if the findings of the inquiry proceedings have gone against the delinquent employee, he invariably pursues the issue in court to ventilate his grievance, which again consumes time for its final conclusion.

Keeping these factors in mind, we are of the considered opinion that every employer (whether State or private) must make sincere endeavour to conclude the departmental enquiry proceedings once initiated against the delinquent employee within a reasonable time by giving priority to such proceedings and as far as possible it should be concluded within the time-frame then efforts should be made to conclude within the reasonably extended period depending upon the cause and the nature of inquiry but not more than a year."

According to Mr. Bhattacharjee, learned counsel for the petitioner, since the inquiry was continuing for about 14 (fourteen) years, this court should quash the memorandum of charge to ameliorate the harassment and prejudice of the petitioner.

[10] Mr. A. Nandi, learned counsel appearing for the respondent has fairly submitted that direction of the re-enquiry is grossly wrong for absence of reasons in the relevant order. But that will not absolve the petitioner from the charge and this court may not interfere with the memorandum of charge dated 04.12.2004, Annexure-I to the writ petition. Mr. Nandi, learned counsel has fairly submitted that from the stage of the findings of inquiry, the matter may proceed to its logical end.

[11] Having regard to these aspects of the matter and persuaded by the submissions made by Mr. Bhattacharjee, learned counsel appearing for the petitioner, this court is of the view that the order directing re-inquiry in terms of the memorandum dated 04.12.2004 is grossly illegal, without authority and unsustainable in view of Section 15(1) of the CCS(CCA) Rules, 1965. Hence, the re- inquiry and the records reflecting direction for re-inquiry stand quashed. However, the disciplinary authority shall consider the records of inquiry as submitted on 24.03.2008. This court refrains elaborate from discussion on the findings of the inquiry. The petitioner will be at liberty to file an elaborate representation taking all the objections.

[12] The disciplinary authority shall issue a fresh memorandum providing the opportunity to the petitioner to file the representation against the findings of the inquiry authority. Even, if the petitioner had filed any representation against the findings of the inquiry authority, the said opportunity shall be afforded to the petitioner. The petitioner may repeat the contents of the representation dated 31.07.2009, Annexure-11 to the writ petition or in its wisdom even file a fresh representation incorporating the grounds whatsoever, he would like to project.

Having considered the representation and the findings of the inquiry authority, the disciplinary authority shall take the final decision in accordance with Rule 15 of the CCS(CCA) Rules, 1965. However, it is made clear that such final decision shall be taken within a period of 2 (two) months from the day when a copy of this order will be made available to the disciplinary authority without fail. For that reason, all steps be taken in such a manner so that the final decision can be taken within the stipulated time. It is further made clear that no extension of time will be granted. It is needless to say that if the petitioner is aggrieved by any finding or order as may be passed by the disciplinary authority, he will be at liberty institute the appropriate all action available to him at law. Even, the petitioner is permitted to approach this court, if the circumstances so persuades him.

[13] In terms of the above, the writ petition stands allowed to the extent as indicated above.

There shall be no order as to costs.

A copy of this order be furnished to the learned counsels for the parties as early as possible.