Swapan Kumar Bhattacharyya vs State of Tripura and Others

Deepak Gupta, C.J.

By means of this petition, the petitioner has challenged the order dated 28th January, 2015 whereby the Inquiry Officer has rejected the prayer of the petitioner claiming that the sanction issued by the Governor and the memorandum of charge-sheet are not in accordance with the form. In this behalf it would be pertinent to mention that the petitioner is a retired judicial officer. After his retirement a complaint was received against him and on preliminary inquiry it was found that in the order sheet he had stated that he had pronounced certain judgments though actually those had not been pronounced. Similarly, there were other charges that he had not put proper certificates against the statements of the witnesses nor signed the same.

It is not necessary to repeat the gravamen of all the charges but suffice to say that it was alleged that when the petitioner was working as Chief Judicial Magistrate, South Tripura there were anomalies in the manner of pronouncing judgments and recording of statement of the witnesses. Since the petitioner had retired from service sanction of His Excellency the Governor was sought by the Registrar, Vigilance of the Gauhati High Court as that time the State of Tripura was under the jurisdiction of the Gauhati High Court. The memorandum of sanction issued on behalf of the Governor reads as follows:

"No. F.2(26)-Law/Estt.2/2009 Dated, Agartala, 21st August, 2010.

MEMORANDUM

Subject:-- Grant of sanction to initiate disciplinary proceeding under the relevant Pension Rules.

Ref.:-- Gauhati High Court Letter No. HC.XV.35/2009/272/Vig. Dated 4th August, 2010.

H.E., the Governor, Tripura is pleased to accord sanction as per Rule 9 of the Central Civil Services (Pension) Rules, 1972, to initiate disciplinary proceeding, by the Hon''ble High Court, against Shri Swapan Kumar Bhattacharchyee, Retired Additional District and Sessions Judge, Fast Track Court, Khowai, West Tripura (a Grade -I Officer of Tripura Judicial Service), as per rules, as the Hon''ble High Court may deem fit and proper.

By order of the Governor, (S.C. Das) L.R and Secretary (Law), Government of Tripura."

Thereafter, memorandum was issued to the petitioner on 4th June, 2011. The petitioner was aware of the memorandum. He, thereafter, filed a writ petition before this Court being WP(C) 240 of 2013 in which he prayed that events which had occurred more than 4 years before his retirement should not be taken into consideration. He had also asked for quashing the disciplinary proceedings on various grounds. At the time of hearing of the said petition, the petitioner had not pressed the relief No. 2, claimed by him and had confined his prayer to matters which had taken place within 4 years of the initiation of the inquiry proceedings. We had accepted the plea of the petitioner and disposed of the writ petition (WP(C)240 of 2013) with the following directions:

"(1) That the petitioner shall again file a petition before the Inquiry Officer giving the details of those allegations of misconduct which are more than four years old.

(2) If the Inquiry Officer is satisfied that the allegation of misconduct relate to an event which took place more than four years prior to the institution of the inquiry he shall not conduct any inquiry into the matter and pass suitable order(s) saying that such inquiry is barred by limitation.

(3) The Inquiry Officer shall while taking a decision as to whether the inquiry is within the period of limitation prescribed under Section 9(b)(ii) be totally uninfluenced by the previous directions issued by the High Court on the administrative side and shall decide the same strictly in accordance with law as has been stated by us hereinabove.

The petitioner is directed to appear before the Inquiry Officer on 29th January, 2014."

Now the petitioner has challenged both the sanction order as well as the memorandum.

As far as the memorandum is concerned, this was in possession of the petitioner even at the time when the earlier writ petition was filed. He had chosen not to challenge the same. He had in the earlier writ petition restricted his relief only to the question that those incidents which were beyond limitation should not be the subject matter of the inquiry. Therefore, he cannot be permitted to challenge the memorandum at this stage.

As far as challenge to the sanction is concerned, we find no merit in the same. The plea raised before the Inquiry Officer was that the Registrar, Vigilance had no authority to issue the sanction. The sanction has not been issued by the Registrar, Vigilance but is signed by the Secretary, Law to the Government of Tripura on behalf of the Governor. The sanction is issued in the name of the Governor and it is well-established law that the Governor is not supposed to sign each and every order and the order(s) must be expressed in his name and can be signed under the ''rules of business'' by the officers authorized to do so. Before the Inquiry Officer it had been clearly submitted that sanction accorded by the Governor was conveyed by the Secretary, Law. The rules of business permit the orders of His Excellency the Governor to be conveyed through appropriate authorities of the State Government and this does not make the sanction order illegal by any means.

The next contention of the petitioner is that the sanction is against the Additional District and Sessions Judge, Fast Track Court, Khowai whereas the disciplinary proceedings relate to the period when the petitioner was working as Chief Judicial Magistrate, South Tripura. The inquiry proceedings are directed not against an office but an officer. The sanction has been granted after the retirement of the petitioner and he had retired from the post of Additional District and Sessions Judge and, therefore, the sanction had to be issued against the post which he was last holding. The memorandum of charges, however, specifically relates to the period when he was holding the post of Chief Judicial Magistrate, South Tripura, Udaipur and in the memorandum we find that this is clearly reflected. There is nothing wrong in the sanction order and we find no illegality in the same.

We are constrained to observe that though the petitioner had earlier filed WP(C) 240 of 2013 in this Court, he while filing the present writ petition has made no reference to the earlier petition. The petitioner is a retired judicial officer and when any person approaches the Court he must do so with clean hands. He must disclose to the Court whether he had filed a petition earlier or not. The petitioner now states that the earlier petition has no relevance because the sanction order was supplied to him only in the month of June, 2014. Even if we accept that statement to be correct, the memorandum had been received by him in the year 2011. He could have in this petition mentioned that earlier he had filed a writ petition and he could have stated why he could not take the grounds which are raised in this petition in the earlier petition. However, he could not conceal this extremely relevant fact from this Court. This is not at all acceptable of any litigant least of all a retired judicial officer.

In the earlier writ petition we had allowed some of the prayers made by the petitioner and we had thereafter directed the Inquiry Officer to conduct the proceedings only in regard to those allegations against the petitioner which had taken place less than 4 years prior to the initiation of the inquiry. The petitioner is still free to argue this matter before the Inquiry Officer but as far as the prayer that the sanction is improper is concerned, the same is without any merit and is rejected. A copy of this judgment shall be sent to the Inquiry Officer who is now directed to complete the inquiry proceedings at the earliest and in any event not later than 30th April, 2015.