Tutan Debbarma vs State Of Tripura And Ors

[1] Heard learned counsel for the parties for final disposal of the petition.

[2] Petitioner has challenged a portion of an order dated 1st September, 2016 passed by the revisional authority under which while setting aside the order of punishment of dismissal from service, the revisional authority ordered to treat the period of absence of the petitioner as „Dies Non‟.

[3] Brief facts are as under :

The petitioner was appointed as Enrolled Follower(Cook) under the Tripura State Rifles in the year 2002 on fixed salary. He was brought in the regular pay scale in the year 2007. In the year 2009, an FIR was lodged before the East Agartala Police Station alleging that the petitioner had committed theft. A charge sheet for commission of offences punishable under Sections 379 and 411 of Indian Penal Code was filed against the petitioner before the Criminal Court. By the trial Court he was convicted for the said offences and sentenced to undergo rigorous imprisonment of 6(six) months. Against the said judgment the petitioner preferred appeal before the Sessions Court.

[4] Parallelly, the department had issued a charge sheet levelling two charges. Charge Article I was that he had unauthorizedly absented himself for 104 days between 22nd September, 2007 to 3rd January, 2008. Charge Article II was that he was involved in a criminal case of theft for which he was committed a judicial custody for 37 days which is prejudicial to the good order and discipline of the service. On 9th June, 2009 the disciplinary authority passed an order of punishment imposing a penalty of dismissal from service on the petitioner w.e.f 9th June, 2009 for the period of absence without leave. It was provided that the same shall be treated as Dies Non.

[5] Against the said order of departmental penalty the petitioner had filed appeal before the appellate authority which was dismissed on 29th August, 2009.

[6] On the other hand, the Sessions Court had dismissed the appeal[Criminal Appeal No.15(1)/2012] of the petitioner against which he had preferred criminal revision petition [Crl. Revn. Pet. No.16/2013] before the High Court which was allowed by a judgment dated 30th March, 2016. After the judgment of the High Court acquitting the petitioner, he preferred a revision petition before the revisional authority on which the said impugned order came to be passed. The revisional authority, taking into account the acquittal of the petitioner by the High Court, set aside the order of dismissal. For the unauthorized absence a penalty of fine of one month‟s pay and allowances was imposed. However, while directing reinstatement of the petitioner the revisional authority added the condition that the period from dismissal from service to reinstatement shall be treated as „Dies Non‟. It is this condition which the petitioner has challenged in this petition.

[7] Having heard learned counsel for the parties, it emerges that the revisional authority taking into consideration acquittal of the petitioner by the High Court decided to set aside the order of dismissal which was passed by the disciplinary authority since it was based on the same alleged incident of theft. Relevant portion of the revisional order reads as under:

" * * *

NOW, THEREFORE, the undersigned has perused the relevant documents in connection with the departmental inquiry conducted on the articles of charge framed and also perused all the documentation regarding examination of witnesses, documents served to the charged official and the punishment awarded by the Disciplinary authority Comdt. TSR 6th Bn. The undersigned has also perused the order passed by the Appellate Authority vide DIGP, AP(Ops) videNo.F.140/DAP/OPS/08/2329-32 dated,29/08/2009 wherein the punishment was upheld and the appeal petition disposed of. And whereas the undersigned has also found that the charged official was convicted by the trial court on 12/12/2011 under Section 379 and 411 IPC and was sentenced to suffer six months rigorous imprisonment for each of the offences with direction that the sentences shall run accordingly. Thereafter, the charged official approached the High Court of Tripura against the judgment passed by the Trial Court. In this connection, the High Court of Tripura passed judgment vide order dated, 30/03/2016 acquitting the charged official from the charges of stealing motorbike. Whereas it has been observed that the Article of charge - II was framed against the charged official on the basis of his arrest in connection with East Agartala P.S. Case No.161/07 under Section 379 IPC and whereas the charged official has been found acquitted from the charge in connection with East Agartala P.S. Case under reference above and whereas it has been further observed that the Article of charge - I wherein the charged official has been found unauthorisedly absent for 104 days has been proved. However, considering the above charge, the punishment of "Dismissal from service" appears to be too harsh and disproportionate to the misconduct.

AND, THERFORE, the undersigned being the Revisioning Authority after taking into consideration all the relevant documents of the departmental inquiry and the Appellate Authority order passed on 29/08/2009 and the High Court order submitted by the charged official is inclined to set aside the punishment order passed by the Disciplinary Authority issued vide Comdt. TSR 6th Bn. Office No.TSR-6/DP-01/2008/Estt./09/5892-5918 dated, 09/06/2009 and order "Fine of one month's pay and allowances" as minor punishment as per TSR Act, 1983 which shall be adequate and commensurate to the gravity of the charge for remaining absent for 104 days unauthorizedly. The period from his "Dismissal from service" to his re-instatement in service shall be treated as "Dies-Non". Ex-Enrolled Follower(Cook) Tutan Debbarma of TSR 6th Bn. is also hereby directed to report to the Comdt. TSR 6th Bn. immediately to join in service on re-instatement.

The Revision Petition dated 27/06/2016 is disposed of."

[8] Thus clearly, the revisional authority retained the punishment against the petitioner only with respect to the 1st charge of unauthorized absence for a period of 104 days for which in his opinion minor punishment of fine of one month‟s pay and allowances was sufficient. He, accordingly, set aside the order of dismissal. Having done do, it was not open for him to treat the entire period of absence from the date of dismissal till reinstatement as „Dies Non‟.

[9] The order would result into wiping out the entire intervening period from the service of the petitioner and which would have serious repercussions in his pay, allowances and post retrial benefits. It was perhaps open for the revisional authority and with which counsel for the petitioner also showed agreement to disentitle the petitioner from drawing any pay and allowances for the period of absence but not by bringing about discontinuity in service. If the revisional authority was convinced that on account of the petitioner‟s acquittal by the High Court the order of dismissal which was based on the same incident must be set aside, the same should be with proper consequential effect.

[10] In the result, in partial modification of the impugned order dated 31st August, 2016 the directions for treating the period from the date of dismissal till reinstatement as „Dies Non‟ is set aside. The petitioner would be entitled to all consequential benefits of the dismissal order being set aside including seniority and increments on notional basis for the said intervening period, however, without any monetary benefit for such period. In other words, the reinstatement of the petitioner in service would be with all consequential benefits except wages for the intervening period.

Petition is disposed of accordingly.

Pending application(s), if any, also stands disposed of.