AI Structured Summary
Not yet generated for this judgment
Judgment
Heard Mr. Anupam Pal, learned counsel appearing for the petitioner as well as Mr. M. Debbarma, learned Addl. G.A., appearing for the State-respondents.
By means of filing the present writ petition, the petitioner has challenged the order of dismissal from service dated 16th July, 2014 passed by the disciplinary authority (Annexure-G to the writ petition).
The brief facts of the case are as under. A departmental proceeding was drawn against the petitioner vide office memorandum dated 20.12.2013 alleging gross misconduct. Article of charges were framed alleging that the petitioner while in service had wilfully absented himself from duty w.e.f. 19.07.2013 and voluntarily reported on 23.09.2013. Again, he had absented himself from duty unauthorisedly w.e.f. 22.10.2013 to till date.
A statement of imputation of misconduct or misbehaviour on which the articles of charges were framed together with a list of documents and a list of witness by whom the charge was proposed to be sustained were also forwarded to him along with the said memorandum dated 20.12.2013. In the memorandum, the petitioner was directed to submit his written representation within a period of 10 days in his defence and also to state whether he desires to be heard personally. But till the date of passing the final order, the petitioner did not submit any information or representation in his defence to the disciplinary authority. Hence, an enquiry was ordered and, accordingly, an Inquiry Officer was appointed. The petitioner was given reasonable opportunities to defend his case, but, he failed to avail such opportunities given to him. The enquiry was accordingly proceeded.
After completion of the enquiry, the Inquiry Officer submitted his report dated 15.04.2014(Annexure-E to the writ petition). The findings of the enquiry report is reproduced hereunder for convenience, in extenso:-
"To
The Commandant,
1st BN Tripura State Rifles, Veer Bandhu Gram, Goukulnagar, Bishalghar, Sepahijala Tripura.
Reference:- His kind endorsement No.F pers/TSR-1/SMJ/Estt/884/ dated 22/01/2014.
Subject:- Submission of an enquiry in connection with 1st BN TSR DP No.01/2014 dated 22/01/2014 against, No. 00060078 NK(GD) Sahajyamani jamatia of F-Coy 1st BN TSR.
Sir,
With reference to the cited above this is to inform you that, as per your kind endorsement No.F Pers/TSR-1/SMJ/Estt/884 dated 22/01/2014 in C/W DP No.1/2014 dated 22/01/2014. On receipt the original DP file containing pages SL No. 01(one) to 21(Twenty one) perused thoroughly of its relevant papers and revealed that the charged official NK- Shajyamani Jamatia was absenting unauthorisely (AWL) w.e.f. 22/10/2013 to till date of article charge framed. However copy of fact finding preliminary enquiry report is not found in the DP file and communication made with the authority about the preliminary enquiry report in such a situation the DP enquiry could not be conducted.
Mean while charged official delinquent NK (GD) Sahajyamani Jamatia returned back to BN HQ on 07/02/2014 and joined in Govt. duty after remaining 108 (one hundred eight) days AWL duly submitting joining report enclosing a medical fitness certificate which is received in the BN HQ and tagged in the DP file.
A R/G notice issued to delinquent Sahajyamani Jamatia through his F-Coy Commander requesting his to remain present at venue on fixed date for heard him. Accordingly he (delinquent) appeared before me and heard about the articles of charge and submitted a written statement apolizing his misconduct and prayed for mercy for this time.
Under the above circumstances I am of the opinion that the DP may be dropped and on being heard the NK (GD) Sahajyamani Jamatia (delinquent) about the article of charge of misconduct by AWL for a period of 108 (one hundred eight) days w.e.f. 22.10.2013 to 07.02.2014 is proved beyond doubt being the member of the rifles, as per material evidences of official document available in the DP file as well as his written statement of apology.
This is for favour of his kind perusal and doing the needful actions please.
Enclo:- The Original D.P. File Yours Sincerely
Sd/-
(Newlafru Mog Choudhury)
Assistant Commandant 1st BN Tripura State Rifles"
After receipt of the said enquiry report, the disciplinary authority passed its final order dated 16th July, 2014 dismissing the petitioner from service. The period of absence w.e.f. 19.07.2013 to 23.09.2013, and further w.e.f. 22.10.2013 to 06.02.2014 (AN) and w.e.f. 23.04.2014(AN) to till the date of the issuance of final punishment order was treated as "Dies-Non". Accordingly, the name of the petitioner was struck-off from the roll of the battalion.
Mr. Pal, learned counsel has drawn my attention to the report of the enquiry authority, wherein this Court finds that the Inquiry Authority had observed that the petitioner had appeared before him in course of proceeding. On the very first day, the petitioner by submitting a written statement had apologised for absenting himself from duty for the said periods as mentioned in the articles of charges. However, the petitioner had prayed for mercy. In that view of matter, the Inquiry Authority suggested to drop the proceeding against the petitioner. From the nature of the opinion as passed by Inquiry Authority, it is found that since the petitioner pleaded guilty, the Inquiry Authority had absolved the petitioner from the charges as framed against him.
On the basis of the said enquiry report, the disciplinary authority dismissed the petitioner from service and the period of absence as afore-stated were declared as "Dies-Non" since according to him Inquiry Authority held that the charges levelled against him is proved.
From a bare perusal of the report of the Inquiry officer as well as the order of punishment of dismissal from service, imposed by the disciplinary authority, in my opinion, appears to be disproportionate since, in the context of the case, it hits the conscience of this Court. The Inquiry Officer had observed that the petitioner had prayed for mercy. There are no other serious allegations against the petitioner. The petitioner appeared before the Inquiry Authority and participated in the proceeding and by a written statement he pleaded for mercy. As I already opined that the punishment of dismissal imposed upon the petitioner is disproportionate, I am inclined to modify/substitute the penalty imposed upon the petitioner.
Resultantly, the punishment imposed upon the petitioner dismissing him from service vide order dated 16th July, 2014 issued by the Commandant, 1st Bn. TSR is hereby set aside. The petitioner shall be reinstated in service within two months from the date the petitioner shall furnish a copy of this order to the respondent No.3, the Commandant, 1st Bn. TSR. But, the petitioner shall not be entitled to back wages. The penalty of "Dies-non" as awarded by the disciplinary authority vide order dated 16.07.2014 is maintained and affirmed. Further, I hold that punishment of stoppage/withholding of two increments with cumulative effect would be justified since he is a member of a disciplined force. Accordingly, it is ordered.
The instant writ petition stands allowed in the above terms and thus disposed of.