Sumit Kumar Saha vs Tripura Tribal Areas Autonomous And Ors.

[1] Heard Mr. K. N. Bhattacharjee, learned senior counsel assisted by Ms. S. Chakraborty, learned counsel appearing for the petitioner as well as Mr. B. C. Das, learned Advocate General appearing for the respondents No. 3 and 4 and Mr. T. D. Majumder, learned counsel appearing for the respondents No. 1 and 2.

[2] The petitioner, who was borrowed by the respondents No. 1 and 2 while he was serving as the Superintendent of Agriculture, has by means of this writ petition, challenged the Departmental Proceeding initiated by the memorandum under No. F.11 (29)/ADC/VGL/2012/28882 dated 11.07.2012 (Annexure-2 to the writ petition) fundamentally on the ground of competence of the person who has drawn up the said memorandum framing the articles of charge, the statement on articles of charge, the list of witnesses and the list of documents for purpose of reliance in the disciplinary proceeding as contemplated.

[3] Mr. Bhattacharjee, learned senior counsel appearing for the petitioner has submitted that the petitioner is a Group-A Gazatted Officer and his disciplinary authority is the Governor and by way of delegation, the Secretary to the Government of Tripura, Agriculture Department, the said authority is supposed to exercise power to institute departmental action, if it is so required.

[4] Mr. Bhattacharjee, learned senior counsel has submitted that the said memorandum dated 11.07.2012 has been purportedly drawn based on the notification under No. F.20 (42)-Agri/Dev/2005- 06/1171-1271 dated 14.11.2008 whereunder the following provisions are made in continuation of the earlier notification dated 06.12.2007 and in exercise the power conferred by the sub para (i) and (ii) of the paragraph-6 of the Sixth Schedule to the Constitution of India and other enabling provisions on that behalf and with the consent of Tripura Tribal Autonomous District Council the District Council in short. The said notification has been issued in the name of the Governor and it provides as under:

(i) to ensure to the District Council, the management and administrative control of 5(five) Agriculture Sub-Divisions (already transferred vide Notification of even number dated 6th December 2007) for Agriculture Department of Government of Tripura with their assets, land, structures and appurtenances situated within the local limits of the District Council on an "as is where is basis" and all works related to these institutions will henceforth be executed under the rules and regulations of Tripura Tribal Areas Autonomous District Council. The concerned Superintendents of Agriculture shall prepare a detailed list of the assets etc. under their jurisdiction and hand over the same to the Principal Officer (Agri), TTAADC under intimation to the Directorate of Agriculture.

(ii) to order that the services of all superintendents of Agriculture, Agriculture Officers/Agri Sector Officers, Agriculture Inspectors, Agri Assistants/VLWs and Ministerial/General Duty Staffs etc. of whatever designation posted to and working in these Agriculture Institutions as specified in Annexure-I shall, in public interest, be deemed to have been placed at the disposal of the District Council and shall be deemed to have been transferred on Deputation to the administrative control of the District Council until further orders and as per the terms and conditions as specified in Annexure-II.

(iii) to order that all ongoing works of the Department being implemented in the areas under District Council will be executed as per Rules & Regulations of District Council. The Department of Agriculture will continue to arrange supply of Agricultural inputs like seed, Fertilizer, P.P.C. etc. during the year 2008-2009 and until further arrangements are made by TTAADC."

[5] Mr. Bhattacharjee, learned senior counsel appearing for the petitioner has laid substantive reliance on the Clause-(ii) which makes reference to Annexure-2 to the said notification dated 14.11.2008. In Annexure-2 to the said notification dated 14.11.2008 under para-8 it has been provided as under:

"8. The appropriate authority under the District Council, which authority shall not be lower in rank then the appointing authority may, if necessary, initiate Departmental proceeding against him/her but the findings of such inquiry shall be forwarded to his/her appointing authority under the State Government and such authority shall after considering the finding and after making such further inquiry as it may consider necessary, shall dispose of such disciplinary proceeding in accordance with the rules and orders applicable to him/her under the State Government."

[6] Mr. Bhattacharjee, learned senior counsel appearing for the petitioner has not disputed the fact that the petitioner is subject to the provisions of the Central Civil Services (Classification Control and Appeals) Rules, 1965, CCS (CCA) Rules, in short and that particular rule is applicable for the disciplinary proceeding if any disciplinary action is taken against the petitioner. For challenging the initiation of the departmental proceeding, Mr. Bhattacharjee, learned senior counsel has raised two main objections viz (i) that for purpose of discipline and control, the secretary of a department cannot by way of any administrative order delegate power to any other authority to exercise the same power as the secretary of the department which he was bestowed upon by way of delegation and (ii) that Para-8 Clearly says that by the appropriate authority under the District Council "which authority shall not be lower in rank then the appointing authority".

[7] According to Mr. Bhattacharjee, learned senior counsel, the disciplinary proceeding as initiated by the memorandum dated 11.07.2012 by the Chief Executive Officer, TTAADC, Khumlwang cannot be declared equivalent to the Governor of the State and as such, the Chief Executive Officer, TTAADC had no competence to initiate such disciplinary proceeding against the petitioner by the memorandum dated 11.07.2012.

[8] In this regard, Mr. B. C. Das, learned A.G. has submitted that the notification dated 14.11.2008 be deemed to be the notification issued by the Governor of the State as it has been clearly reflected in the notification dated 14.11.2008, that the said arrangement has been introduced by the order of the Governor.

[9] As such, the District Council has been entrusted with the management and administrative control of 5 (five) Agriculture Sub- Divisions as transferred by the notification dated 06.12.2007. Thus, whatever, the control or authority, is required to be exercised by the Secretary of the Department can equally be exercised by the District Council through its Chief Executive Officer.

[10] However, when the question of equivalence of the post was seriously insisted by Mr. Bhattacharjee, learned senior counsel, learned Advocate General has referred to this Court to the Provisions of Rule 21(1) of the CCS (CCA) Rules 1965 which provides as under:

"(1) Where an order of suspension is made or a disciplinary proceeding is conducted against a Government servant whose services have been borrowed by one department from another department or from a State Government or an authority subordinate thereto or a local or other authority, the authority lending his service (hereinafter in this rule referred to as "the lending authority") shall forthwith be informed of the circumstances leading to the order of the suspension of the Government servant or of the commencement of the disciplinary proceeding, as the case may be."

[11] Further, the said rule provides that if, in the light of the findings from the disciplinary proceeding, conducted against the Government servant, the Disciplinary Authority is of the opinion that any of the penalties specified in Clauses (i) to (v) of Rule 11 should be imposed on him, it may, subject to the provisions of sub-rule (3) of Rule 15 except in regard to a Government servant serving in the Intelligence Bureau up to the rank of Assistant Central Intelligence Officer, after consultation with the lending authority, pass such order on the case, as it may deem necessary, subject to the following conditions:

"(i) provided that in the event of a difference of opinion between the borrowing authority and the lending authority, the services of the Government servant shall be replaced at the disposal of the lending authority.

(ii) if the Disciplinary Authority 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 replace the services of such Government servant at the disposal of the lending authority and transmit to it the proceedings of the inquiry for such action, as it may deem necessary."

[12] Even though the Court does not find any difficulty in accepting the authority that has been delegated to the District Council, but for the Clause-8 of Annexure -2 as referred in para-2 of the notification dated 14.11.2008, unassumingly, a question relating to equivalence of the post or hierarchal relation has emerged, which this Court is not competent to answer in absence of that statutory or bilateral arrangement and in view of the extent notification perhaps a clear answer is also not possible.

[13] Thus, the respondents No. 1 and 2 are directed to remit all the papers based on which the memorandum dated 11.07.2017, Annexure-2 to the writ petition, has been drawn up to the disciplinary authority of the petitioner and the disciplinary authority shall after due consideration, if finds that the similar memorandum is likely to be drawn up, he shall remain at liberty to issue such memorandum containing the articles of the charge, the statement on the articles of the charge, list of witnesses and the list of the documents for reliance in terms of the Rule- 14 of the CCS(CCA) Rules and further to appoint an inquiry authority if he is not in a position to inquire into the matter for purpose of taking the disciplinary proceeding to its logical end within a reasonable period.

[14] It requires no reference to hold that Provisions of CCS (CCA) Rules, 1965 shall be applicable, but it is made clear that issuance of the fresh memorandum continuing the articles of charges will not be treated as a denovo proceeding for any purpose. In the special circumstances, this direction has been given by this Court. It shall not create any precedent for the future cases. But in the meanwhile, the competent authorities both the District Council and the State Government may relook into the arrangement as regard the parting with the disciplinary authority for the borrowed officers who are working in the District Council. They may appropriately modify the said arrangement observing the due process.

[15] Having observed thus, the memorandum dated 11.07.2012 is scored out paving the way for compliance of the directions as made above as this will not cause any prejudice to the petitioner. However, the petitioner will not be permitted to raise any objection in the written statement or in the disciplinary proceeding regarding this aspect of the matter but he will be entitled to raise all his defences when such memorandum will be issued by the disciplinary authority on the basis of the papers as would be transmitted by the District Council.

With these observations and direction, this writ petition stands allowed to the extent as indicated above. There shall be no order as to costs. Copy of this order be furnished to the learned counsel appearing for the parties.