Gauhati High Court
Bisweswar Debnath vs State Of Tripura And Ors. on 16 October, 2001
JUDGMENT B.B. Deb, J.
1. The petitioner sought for a writ of certiorari for quashing the impugned Memorandum bearing No. F. 2(30)-DF/85(PART) dated 8-9-1992, issued by the Director, Food and Civil Supplies, Government of Triprua dismissing the petitioner from service.
2. In short compass the petitioner's case could be summarised as below:
The petitioner entered in service as Tahasilder on 16.11.1965. Thereafter, he was appointed as Store Keeper under the Directorate of Food and Civil Supplies, Government of Tripura vide order dated 5.7.1971. Subsequently he was confirmed in the aforesaid post of Storekeeper on 2.3.1978. While the petitioner was serving being posted at Kanchanpur Government Food Godwon, he was kept under suspension by the Director, Food and Civil Supplies (respondent No. 3) vide order dated 28.9.1991 in contemplation of disciplinary proceeding. Thereafter, disciplinary proceeding was initiated against the petitioner by issuing a formal memorandum of charges bearing No. F.2(30)-DF/85(PART)/14523 dated 3.8.1991. The memorandum of charges ex facie is bad, lack of particulars though by the same the authority proposed to dismiss the petitioner from service. On receipt of the said memorandum of charges the petitioner made representation dated 14.8.1992 narrating the details and having claimed to be innocent, but without causing any enquiry whatsoever the petitioner was dismissed from service by the impugned order dated 8.9.1992. No enquiry was held, no evidence recorded, no opportunity was allowed to the petitioner to refute the charge but having resorted to the provision of Rule 19 of the CCS(CCA) Rules, 1965 (for short 'Rules 1965') the petitioner was dismissed from service.
3. A criminal case was filed by the Department against the petitioner bearing G.R. 213 of 1990 under Section 409 IPC, but while the said case was pending before the learned Chief Judicial Magistrate, North Tripura, Kailashahar, the aforesaid dismissal order was issued.
4. The State-respondents having filed counter affidavit contested the case vehemently. According to the counter affidavit, the petitioner was arrested in connection with Fatikroy P.S. Case No. 7(5)90 under Section 409/468/420 IPC for misappropriation of 8000 kgs of paddy in one phase and again 8000 kgs of paddy and 4000 kgs of rice in second phase and the petitioner was suspended and he was served with a short cause notice under Rule 19 of the Rules 1965 allowing him reasonable opportunity to put forward/defend his case and after consideration the authority having resorted to the related provision of the Rules 1965 dismissed the petitioner from service.
5. Dr. Bhattacharjee, learned counsel appearing for the petitioner submits that no reason whatsoever has been spelt out in the impugned dismissal order as to why the formal disciplinary enquiry was dispensed with. Learned counsel further submits that memorandum of charges does not contain the particulars of the statement of imputation made against the petitioner.
6. The memorandum of charges dated 3.2.1992 contains allegation to the effect that the petitioner while posted at Kumarghat Godown "made the Government suffer loss of Rs. 7,577'90" being the cost of excess delivery of 8000 kgs of paddy. It further alleges that "on another occasion, made the Government suffer loss of Rs. 14,294'40" through excess delivery of 8000 kgs of rice and this way the petitioner misappropriated the aforesaid amount and the authority having arrived at a provisional conclusion issued the Memo proposing dismissal in exercise of power under Rule 19 of the Rules 1965 read with Rule 11 of the aforesaid Rules. In compliance the petitioner furnished representation dated 14.8.1992 contending, inter alia, that while he was posted at Kumarghai Government Godown for the period 1973 to 1978, he delivered paddy and rice to all the ration shops regularly as per delivery order issued by the S.D.O. Food and he furnished the monthly statement of (he stock accordingly. During last 15 years he served in different Government Godowns as Store Keeper very sincerely and diligently. Since the petitioner having been transferred from Kumarghat had been serving at Kanchanpur, it was not possible for him to furnish the detail reply without consulting the documents of the relevant time and thus he prayed for revocation of the memorandum of charges. The operative portion of the impugned order is reproduced below:
"3. NOW THEREFORE, in exercise of powers conferred under Rule 19 of the CCS (CCA) Rules. 1965. the undersigned hereby dismisses the said Shri Debnath from Government service with immediale effect and this dismissal will ordinarily be a disqualification for future employment under the Government."
7. Mr. U.B. Saha, learned Senior Government Advocate appearing for the respondent State, submits that the provision of Rule 19 of the Rules 1965 authorises the disciplinary authority to impose any penalty permissible under the said Rules 1965 even without following the procedure prescribed for disciplinary inquiry.
8. On perusal, it appears that Rule 19 of the Rules 1965 authorises the disciplinary authority to impose any penalty on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, or where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules notwithstanding anything contained in Rule 14 to Rule 18 of the Rules 1965. The said provision of Rule 19 of the Rules 1965 has its source in the second proviso to Clause (2) of Article 311 of the Constitution of India, Clause (2) of Article 311 of the Constitution of India emphasises that no member of a civil service of the "Union or an all-India service or a civil service of a State holding a civil post shall be dismissed or removed or reduced in rank by the appointing authority except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Second proviso under Clause (2) of Article 311 of the Constitution of India provides that where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or where the authority empowered to dismiss or remove a person or to reduce him in rank, for some reasons, to be recorded by that authority in writing, that it is not reasonably practicable to hold an inquiry; or where the President or the Governor is satisfied that in the interest of the security of the State it is not expedient to hold an inquiry, then Clause (2) of Article 311 of the Constitution of India shall not be applicable to such cases.
9. Mr. Sana, learned Senior Government Advocate submits that the disciplinary authority having resorted to the provision of Rule 19(ii) of the Rules 1965, passed the impugned order and, as such, it suffers from no vires and, according to him, the petition being devoid of merit is liable to be dismissed. On the contrary, Dr. Bhattacharjee learned counsel for the petitioner submits that there is no reason recorded by the disciplinary authority in writing while passing the impugned order of dismissal as to why it was not reasonably practicable to hold an enquiry in the manner prescribed under the Rules 1965.
10. At this juncture, the learned Senior Government Advocate produced a file bearing No. F.2(30)-DF/85(Part) and has submitted that detail reasonings are available in the aforesaid file justifying the reason for dispensing with the formal disciplinary enquiry.
11. From the aforesaid Hie the following notings are available:
While the petitioner was posted at Kumarghat Govt. Godown, shortage of food grains (paddy and rice) happened on different dates between 9.5.1977 and 24.7.1977, as a result the Government sustained total financial loss of Rs. 14,294.40p."
12. It further appears that the authority himself without causing any enquiry whatsoever came to his own conclusion that "it is abundantly clear that Shri Debnath is having a criminal frame of mind and is unconcerned about consequences, as he had been very persistent in his successful attempts to manipulate Government records and to misappropriate Government property entrusted to him on repealed occasions. Shri Debnath was placed under suspension for his involvement in criminal nature of activities towards misappropriation of Government property vide order dated 21.8.1985".
13. The authority without allowing any sorts of reasonable opportunity to him came to its own conclusion without even having obtained the opinion of departmental audit or without having stock verification of Kumarghat, Government Godown. There is no reasoning recorded ; it all as to why the disciplinary enquiry was not reasonably practicable. The reasoning endorsed in the aforesaid file for dispensing with the departmental enquiry could be extracted asbelow:
"It is borne in mind that an enquiry against a Government servant is meant to find out the truth and therefore, when truth is already on the surface, well corroboratedly by documentary evidence on record, it is not found reasonable to Hold an enquiry."
14. I failed to understand, had there been documentary evidence available against the petitioner what stood in the way to conduct an enquiry for bringing the evidence on record? From the noting available in the aforequoted file, it appears that the authority was satisfied on subjective consideration to arrive at the purported decision that the disciplinary inquiry was not reasonably practicable. From the noting it appears that the authority arrived at a decision that the materials available proved the guilt of the petitioner and as such, enquiry was not reasonably practicable.
15. From the noting available in the aforesaid file it appears that the authority decided to dispense with the enquiry not on the ground of reasonable impracticability but on the ground that since available documents revealed the guilt of the petitioner no enquiry was necessary.
16. The Hon'ble Apex Court examined the aforesaid second proviso to Article 311(2) of the Constitution of India. The Hon'ble Apex Court in the case of Union oflndia and Anr v. Tulsiram Patel and others reported in AIR 1985 SC 1416 among others held that the second proviso to Article 311(2) of the Constitution of India, constitutionally valid but decision taken by the authority having exercised the aforesaid power is subject to judicial review. From paragraph 130 of the aforecited decision of the Constitutional Bench, it reveals that the authority is to be satisfied with sufficient reason that the formal enquiry is not "reasonably practicable". To illustrate the grounds for reasonable impracticability the Hon'ble Apex Court cited few contingencies. These are as follows:
"It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry, but some instances by way of illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the Government servant, particularly through or together with his associates, so terrorises, threatens or intimidate witnesses who are going to give ' evidence against him with fear of reprisal as to prevent them from doing so or where the Government servant by himself or together with or through others threatens, intimidates and terrorises the officer who is the disciplinary authority or members of his family so that he is afraid to hold the Inquiry or direct it to be held. It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned Government servant is or is not a party to bringing about such an atmosphere. In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that Clause (3) of Article 311 makes the decision of the disciplinary authority on this question final. A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry of because the department's case against the Government servant is weak and must fail. The finality given to the decision of the disciplinary authority by Article 311(3) is not binding upon the court so far as its power of judicial review is concerned and in such a case the court will strike down the order dispensing with the inquiry as also the order imposing penalty."
17. From the aforequoted decision of the Hon'ble Supreme Court. I am of the considered opinion that reasoning to be recorded by the disciplinary authority I o dispense with the formal inquiry must not be fanciful but to be backed by reasons. In the present case nowhere authority spelt out any reason whatsoever justifying the dispensation with the inquiry. Rather it appears that the disciplinary authority arrived at a decision that since the matter remains proved by record itself no inquiry was reasonably practicable. The implication 'reasonable impracticability" cannot be equated with "reasonably not necessary". The disciplinary authority held that no enquiry was necessary as materials available proved the guilt and. as such, it is not a case to dispense with the inquiry having resorted the second proviso of Article 311(2) of the Constitution of India.
18. Under the aforesaid discussion, it appears that the respondent No. 3, the appointing authority having misconstrued the provision of Clause (ii) of Rule 19 of the Rules 1965, issued the impugned order of dismissal having dispensed with the disciplinary inquiry, and. as such in my considered opinion, the impugned order has been issued contrary to the in-built implication of Rule 19(ii) of the Rules 1965 and thus in the present case the provision of Sub-clause (b) under second proviso to Clause (2) of Article 311 of the Constitution of India has been misplaced due to arbitrary decision of the authority concerned in dispensing with the disciplinary inquiry.
19. In that view of the matter, the petition succeeds. The impugned order of dismissal of the petitioner from service bearing No. F. 2(30)-DF/85(PART) dated 8.9.1992 is hereby quashed. The petitioner, Shri Bisheswar Debnath is reinstated in service. The petitioner will get the continuation of service with usual increment benefit. So far the back wages is concerned, the authority is to cause a summary inquiry to ascertain whether the petitioner, during the intervening period, has/had engaged himself in any gainful business, profession or trade and to decide accordingly and that should be done within a period of two months.