Tripura High Court
Sri Soumitra Chakma vs The State Of Tripura on 20 July, 2017
Author: S. Talapatra
Bench: S. Talapatra
IN THE HIGH COURT OF TRIPURA
AGARTALA
W.P.(C) No.1198 of 2016
Sri Soumitra Chakma,
son of Sri Bijan Bihari Chakma of Abhoynagar,
P.O. Abhoynagar, P.S. New Capital Complex,
District - West Tripura
......... Petitioner
-Versus-
1. The State of Tripura,
represented by the Secretary to the General
Administration (P & T) Department,
Secretariat Complex, P.S. New Capital
Complex, P.O. Secretariat Complex, Agartala,
West Tripura, PIN- 799010
2. The Secretary,
to the General Administration (AR)
Department, Government of Tripura, Agartala
[Disciplinary Authority], Tripura, PIN-799006
3. The District Magistrate & Collector,
Dhalai District of Tripura, P.O. & P.S.
Ambassa, PIN-799289
4. The Secretary,
Fisheries, Government of Tripura, Agartala
[Inquiring Authority], PIN - 799006
5. The Tripura Public Service Commission
represented by its Secretary, Agartala, West
Tripura, PIN-799001
6. The Chief Secretary
to the Government of Tripura [Appellate
Authority], Civil Secretariat, Agartala, West
Tripura, PIN-799010
BEFORE
THE HON‟BLE MR. JUSTICE S. TALAPATRA
For the petitioner : Mr. A.K. Bhowmik, Sr. Advocate
Mr. M. Debbarma, Advocate
For the respondents No.1 to 4 & 6 :
[ Mr. T.D. Majumder, G.A. For the respondent No.5 : Mr. P. Dutta, Advocate Date of hearing : 01.06.2017 Date of delivery : 20.07.2017 of Judgment & Order Whether fit for reporting : Yes No √ [2] JUDGMENT & ORDER By means of this petition, the petitioner has challenged the order passed by the Disciplinary Authority under No.F.11(38)-GA(AR)/2011/412-14 dated 02.03.2016, Annexure- 8 to the writ petition, and the order of the appellate authority under No.F.11(38)-GA(AR)/2011/1352-54 dated 04.08.2016, Annexure-10 to the writ petition. Further, the petitioner has urged this court to direct the respondents restore his position ante from 02.08.2016 and to give him all the consequential benefits to which he was entitled to, had the orders dated 02.03.2016 and 04.08.2016 not been passed. [2] While the petitioner was working as the Block Development Officer [the BDO in short], it has been alleged that he had committed serious irregularities in purchasing of ginger seeds and rubber stamps etc. According to the respondents, those materials were purchased without observing the financial procedure and norms. Initially, he was asked to show cause by the memorandum dated 19.02.2011, Annexure-1 to the writ petition, why appropriate action shall not be taken against him. The allegations as made in the show cause memorandum dated 19.02.2011 can be summarised as under:
(i) The petitioner while working as the Programme Officer had issued supply orders for ginger seeds to M/S Roy Nursery, Govindapur, Kailashahar to the extent of 70.560 mt. for an amount of `19,75,680/-. Subsequently, those W.P.(C) No.1198 of 2016 Page 2 of 24 [3] seeds were received on 29.06.2009 by one Hitlar Dewan, GRS, Makarchara ADC village. For supplying of those materials two bills dated 29.06.2009 and 07.07.2009 for an amount of `19,75,680/- and `10,75,680/- respectively were raised. The petitioner, thereafter, passed the office order dated 01.07.2009 for making payment of `9.00 lacs and later on, he passed an another order for making payment of `10,75,680/-to the supplier, M/S. Roy Nursery, Kailashahar. By 2(two) different cheques, the said amount was paid to the supplier. The petitioner was alleged of violating the codal provisions of Delegation of Financial Power Rules Tripura [the DFPRT in short], 2007 in the process.
(ii) The petitioner issued supply order for purchasing of 50,000 rubber budded stamps by the letter dated 09.06.2009 and Sri Hitlar Dewan, GRS received the said rubber budded stamps on 30.06.2009. For that, the supplier, Roy Nursery, Kailashahar raised the bill amounting to `7,50,000/- on 12.06.2009. The petitioner had passed the bill without any checking and made the entry in the stock register and directed one Jhunnyh Chakma, Technical Assistant for payment of bill by the office order dated 17.06.2009.
(iii) Thereafter, the petitioner has been alleged of issuing a supply order to Manorama Nursery, Bishalgarh for supplying 50000 rubber budded stamps and 1200 kg rubber poly bag by the letter dated 30.06.2009. Again said Hitlar W.P.(C) No.1198 of 2016 Page 3 of 24 [4] Dewan, GRS had received the same on 16.06.2009 and 30.06.2009. On completion of the supply, the supplier raised 2(two) bills on 16.06.2009 for `7,50,000/- and `1,74,000/- and the said bills were paid through Sri Jhunnyh Chakma, Technical Assistant in terms of the order dated 16.06.2009. The then BDO, Chawmunu made payment of `4,18,000/- by cheque dated 07.08.2009 against 50000 rubber budded stamps as well as 600 kg poly bag to the supplier by the order dated 07.08.2009 but that was done without any supply order and the bills were not certified. There is no record of receiving materials, raising of rubber nursery plan and no certificate from the implementing officer accepting the responsibilities. It has been reiterated that the work order of a sum of `19.33 lacs was issued without any technical approval and processed without any technically approved estimate. Such transaction is in violation of the procedures. The violation thus constitutes misconduct on the part of the Government servant.
The petitioner on the above allegation was asked to explain as to why the petitioner did not maintain the stock registers for materials received for distribution of the same to the beneficiaries, did not select the beneficiaries before distribution of the materials, did not issue supply order before procurement of materials, did not maintain the procedures as laid down in DFPRT, 2007 and was issued work order without W.P.(C) No.1198 of 2016 Page 4 of 24 [5] having technical estimate for which appropriate action should be initiated against him.
[3] The petitioner by filing the reply has admitted that provisions of DFPRT, 2007 could not be followed in toto because of urgent procurement need but the selective tender process was followed by procuring 3(three) tenders from various suppliers and the lowest bidder was given the supply order. He has asserted that Hitlar Dewar, GRS maintained the separate stock register for ginger in respect of Makarchara (Amtali). He has submitted that the entries made in the stock register and the lists of beneficiaries were prepared in advance. He has also appended with his reply the list of beneficiaries. He has also asserted in that reply that for the distribution, due process was followed. With the reply, the petitioner added the document relating to the transportation of ginger and rubber budded stamp to different distribution site but he has admitted that there was no technically approved estimate for that particular occasion but a standard estimate issued by the Joint Rubber Production Commissioner and the procurement was made on the basis of that. He has stated that whatever he has done is done with bonafide intention. He has claimed in the reply that all the procurement materials were distributed to the target groups (beneficiaries) in due time and in good condition. In the final paragraph of the said reply, the petitioner has made the following statement which reads as under: W.P.(C) No.1198 of 2016 Page 5 of 24 [6]
"That Sir, I agree that some technical irregularities were happened due to circumstantial compulsion as stated above and works were done in good faith with bonafide intention to promote development works of the State. I would, therefore, like to solicit to your judicious generosity to consider the matter with a reasonable outlook from the end of justice so that a loyal officer like me may not be frustrated and discouraged in performing public duties in remote places of the State where poor of the poorest tribal people dwells in future and as such, may I therefore, request you to exempt me from the allegations so raised against me in the aforesaid Show Cause Memo and oblige thereby."
Even after the said reply dated 05.03.2011, Annexure-2 to the writ petition, the memorandum under No.F.11(38)-GA(AR)/2011 dated 16.06.2012, Annexure-3 to the writ petition, was issued framing the following charges against the petitioner:
"STATEMENT OF ARTICLES OF CHARGE FRAMED AGAINST SHRI SOUMITRA CHAKMA, EX-BDO, CHAWMANU R.D. BLOCK, DHALAI DISTRICT Article-I That the said Shri Soumitra Chakma, while functioning as the Block Development Officer (BDO), Chawmanu R.D. Block initiated procurement of 70.560 MT of ginger rhizome from Roy Nursery, Gobindapur, Kailashahar and issued supply order vide No.1005- 10/F.5(49)/BDO/CMN/NREGP/2008-09 dated 09.06.2009 for supplying the ginger rhizome of 70.560 MT without approval/resolution of the BAC, Chawmanu R.D. Block. An amount of Rs.19,75,680/- is involved for procurement of 70.560 MT ginger rhizome for which approval of the Higher Purchase Committee is mandatory but Shri Chakma did not follow any codal formalities. Further, no implementing Officer has been engaged for implementing the project. Shri Hitlar Dewan, GRS has been asked to receive the ginger from the supplier and to distribute the ginger seed to the regrouped villagers at Kacharicherra and Khakchangkami without any list/names of beneficiaries whom the ginger is to be distributed.
The supplier, Shri Ajit Roy supplied the ginger seeds on 20.06.2009 and the same has been handed over to Shri Khaichansing Roaja of Kacharicherra and Shri Bharata Tripura of Khakchangkami on 06.07.2009 i.e. after 16 days of received of the seeds ultimately is resulting rotting of the ginger seeds. The list of beneficiaries which is submitted as enclosure with the reply of the show cause by Shri Soumitra Chakma, the then BDO, Chawmanu was neither found in the Block Officer nor in the VC Office. Both the signatories namely Shri Kalaichan Tripura, the then Vice Chairman of Rajdhar VC and Smt. Mangalati Reang, the then Chairperson of Purba Malidhar, VC who had W.P.(C) No.1198 of 2016 Page 6 of 24 [7] signed in the list of beneficiaries have given statement that they have neither submitted the list nor received and distributed the ginger seeds. The villagers whose names appeared in the list have given written statement that they have not received any ginger seeds from the Block.
Hence, the ginger rhizome supplied to the beneficiaries as claimed by, Shri Chakma is fabricated. Thus, Shri Saumitra Chakma, the then BDO, Chawmanu deliberately violated the inventory norm with malafide intention and with a criminal nexus with Roy Nursery, Sri Ajit Roy and Monorama Nursery, Sri Nirmal Das, misappropriated Rs.19,75,680/- of the Government fund.
The above act of Shri Soumitra Chakma, Ex-BDO, Chawmanu is misconduct and unbecoming of a government servant and violated the Rule-3 of TCS(Conduct) Rules, 1988.
Article-II That the said Shri Soumitra Chakma, while functioning as the Block Development Officer (BDO), Chawmanu R.D. Block has issued supply order vide No.943-47/F.5(49)/BDO/CMN/NRGEP/2008-09 dated 06.06.2009 for 1200 kgs Rubber poly bag and 50,000 Nos. Rubber budded stump, vide No.1011- 16/F.6(49)/BDO/CMN/NREGP/2009/1041-44 for 600 Kgs Rubber poly bags and 50,000 Nos. Rubber Budded Stumps. The total amount involved is Rs.53,10,680/- only and no tender or quotation were floated against the above supply orders. Neither any approval taken from any LPC/HPC/DPC before issue of the supply orders.
The payment for the Rubber budded stump has been issued on 16.06.2009, whereas, supply order for the same has been issued on 30.06.2009, i.e. payment has been made before the supply order was issued. Out of 1,50,000 Rubber Budded stumps, only 11,000 of the stumps were supplied causing a loss of Rs.19,15,000/- of public fund. Payment for rubber budded stumps has been made through Sri Jhunnyh Chakma, T/A by bearer cheque, and not by A/C payee cheques which is not as per rules.
Shri Soumitra Chakma wilfully breached the power of administrative approval in respect of plan and non plan scheme which is delegated to the BDO under Rule-11(2)(iv) of DFPRT, 2007 with an intention to misappropriate government fund.
Thus, the act of Shri Chakma is unbecoming of a government servant and violation of Rule-3 of TCS (Conduct) Rules, 1988."
[4] By filing the written statement dated 16.07.2012, Annexure-4 to the writ petition, the petitioner disputed all the charges by stating that the allegations as levelled against him are absolutely 'fabricated and concocted' and with ulterior W.P.(C) No.1198 of 2016 Page 7 of 24 [8] motive to malign him. Thereafter, the inquiry was carried out and the petitioner did not admit the charges. The inquiring authority recorded the evidence as adduced by the disciplinary authority as well as by the delinquent officer. On evaluation of the evidence, the inquiring authority submitted the inquiry report dated 15.11.2014, Annexure-5 to the writ petition, returning the finding that the charge under Article-I is on misconceived allegation whereas the charge under Article-II has been held to be not conclusively proved. But the said report was not accepted by the disciplinary authority and it differed with the finding of the inquiring authority on the charges. By the memorandum under No.F.11(38)-GA(AR)/2011/7-8 dated 01.01.2015, Annexure-6 to the writ petition, the disciplinary authority has observed as under:
"WHEREAS, the Inquiring Authority has held Shri Soumitra Chakma, TCS, GR-II, Ex-BDO, Chawmanu Block, A.O. not guilty to the charges, but the Disciplinary Authority disagrees with the finding of the Inquiring Authority, to the charge as per provision of Sub-rule (2) of Rule-15 of the CCS (CC&A) Rules, 1965 on the following grounds:
(i) That the Inquiring Authority has mentioned that part of the charge, Article-II relating to the approval of LPC/HPC/DPC is not true as in this case the powers are with SAB. It is to be noted that mention of LPC/HPC/DPC in Article of charge was only indicative of the fact that proper approval was not taken at appropriate level/authority. In this case, for such a large amount of supply (in monetary terms) the approval of SAB was required. Hence, the AO has violated the procedure required for effecting such procurement.
(ii) The argument given by Inquiring Authority for not agreeing with breach of DFPRT (Article-II) is not enough to absolve AO of his misconduct. It is clear that AO did not get the approval of the competent authority before effecting supply order for such a large quantum which is beyond the powers delegated to him. DFPRT is fundamental to all financial procedures & MGNREGA guidelines cannot be taken a defence for ignoring the mandatory financial requirement. MGNERGA W.P.(C) No.1198 of 2016 Page 8 of 24 [9] guidelines are meant for implementing the scheme. It does not lay down the delegation of financial powers which anyway have to be read from extant provision of DFPRT."
[5] Thus, the petitioner was given opportunity to file his representation within a period of 15 days from the date of receipt of the said memorandum dated 30.12.2014 for further action. The said memorandum dated 30.12.2014 was appreciated by the petitioner and he had filed his representation on 20.02.2015 categorically contending that the charge as was brought against him in the departmental proceeding is quite different from the allegations as brought by the memorandum dated 01.01.2015 having reference to the provisions of the DFPRT, 2007. He has also asserted that the fund of MGNREGA is allocated by the Government of India and does not come under the expenditure in connection with the plan and non-plan scheme as reflected in the said DFPRT, 2007. He has further asserted that the DFPRT, 2007 is applicable when the expenditure is carried out from the State fund not from the fund as extended by the Central Government. He has also reiterated that Rule 5(2) of the DFPRT, 2007 clearly lays down the area where the provisions of the said rules shall apply and MGNREGA is not included there. The said rule does not apply to non-plan centrally sponsored scheme, central plan, NLCPR and NEC scheme as reflected therein. For purpose of reference, Rule 5(2) of the DFPRT, 2007 is reproduced hereunder: W.P.(C) No.1198 of 2016 Page 9 of 24 [10]
"5......
(2) It shall be the responsibility of Departments and Controlling Officers to ensure the budgetary provision for different schemes separately under State plan, non-plan Centrally Sponsored Schemes, Central Plan, Non-lapsable Central Pool of Resources and North Eastern Council Schemes are not exceeded in any circumstances except in cases where additional fund released from the F.D. subject to adjustment in the R.E. stage."
[6] The disciplinary authority did not subscribe the stand taken by the petitioner. On the contrary, after conforming to the provisions of sub Rule 2 of Rule 15 of CCS(CC & A) Rules, 1965 the minor penalty of withholding 2(two) increments with cumulative effect was imposed on the petitioner by the order dated 02.03.2016, Annexure-8 to the writ petition.
Being dissatisfied therefor, the petitioner preferred an appeal to the appellate authority raising the similar grounds as resorted in his representation where the petitioner had candidly unfolded as under:
"Under Para 2.4(ii)(f) of the operational guidelines envisages that the State Council shall delegate financial and administrative powers to the District Programme Coordinator, i.e. the District Magistrate and Collector, as it is deemed necessary for effective implementation of the scheme.
9. The Government of Tripura in Rural Development Department, in consistent with the provision laid down under Para 2.4(ii)(f) of the MGNREGA Guidelines, has however, issued a memo vide No.F.1(9)-RD/85/5309-37 dated 6th November, 2007. Para-3 of the memo which is relevant to implementation of the MGNREGA Scheme is reproduced:
„In exercise of the power conferred by DFPRT, 2007, Rule 11(2), the District Programme Coordinator (D.M. & Collector), Tripura are now authorized to accord administrative and financial sanction up to the extent of Rs.30 lakhs (thirty lakhs) for all projects under National Rural Employment Guarantee Act (NREGA) and Sampoorna Gramin Rojgar Yojana (SGRY). An administrative Approval and Expenditure sanction shall be obtained from R.D. Department for expenditure more than Rs.30 lakhs (thirty lakhs) in advance rather than post facto. Further the list W.P.(C) No.1198 of 2016 Page 10 of 24 [11] of such projects running in the fields shall be forwarded to Rural Development Department once each in the months (April & October). This limit shall be inclusive of all the components of a particular project.‟ "
[7] Having incorporated the further grounds of challenge vis-a-vis the factual aspects of the matter that the transaction were made despite insignificant deviation and that those were successfully distributed to target group. The said appeal was dismissed by the appellate authority, in terms of the delegation, by the order dated 04.08.2016, Annexure-10 to the writ petition. While dismissing the appeal, the following observation has been made by the authority:
"WHEREAS it was proved that Shri Chakma placed supply orders for procurement of 70.560 MT ginger rhizome and 1.25 lakh rubber budded stamps costing Rs.19,75,680/- and Rs.20.93 lakhs respectively which was beyond the financial powers delegated to him and he did not obtain the required Administrative and Financial approval from the competent authority for the said procurement and thus he was held guilty of violating the Financial Rules/Regulations of the State Government."
[8] From conjoint reading, it would be apparent that the disciplinary authority or the appellate authority did not resurrect the charge under Article-I and they insisted on non-observance of the provisions of DFPRT, 2007 as the petitioner did not take any approval from the superior authority before he made the payment in terms of supply.
[9] Mr. A.K. Bhowmik, learned senior counsel assisted being assisted by Mr. Mangal Debbarma, learned counsel appearing for the petitioner has repeatedly shown that there was no definite charge for violating the provisions of DFPRT, 2007. W.P.(C) No.1198 of 2016 Page 11 of 24 [12] Mr. Bhowmik, learned senior counsel has highlighted the relevant part of the Article-II to nourish his submission. That part reads as under:
„Sri Soumitra Chakma wilfully breached the power of administrative approval in respect of plan and non- plan Scheme which is delegated to the BDO under Rule 11(2) (iv) of the DFPRT, 2007 with an intention to misappropriate the government fund‟.
According to Mr. Bhowmik, learned senior counsel, the substantive charge is of misappropriation of the government fund by breaching the power of administrative approval under Rule 11(2)(iv) of the DFPRT, 2007. Mr. Bhowmik, learned senior counsel has contended that though Rule 11(2) of DFPRT, 2007 deals with administrative approval and sanction of expenditure in connection with plan and non-plan scheme but it does not speak of the fund relating to MGNREGA fund. Rule 11(2)(v) of DFPRT, 2007 provides arrangement of the financial powers in respect of plan and non-plan expenditure. But the petitioner has acted as the Programme Officer under MGNREGA and as such, these provisions will have no relevance in the present controversy. Moreover, from a reading of the orders of the disciplinary authority and the appellate authority it will transpire very clearly that no charge of misappropriation has been finally insisted for obvious reason that such charge was not established. Thus, what they have insisted on is of volition of the DFPRT as the petitioner did not take any approval from the designated authority under DFPRT. Mr. Bhowmik, learned senior counsel has submitted that the language couched to frame this W.P.(C) No.1198 of 2016 Page 12 of 24 [13] charge has made it unclear and ambiguous. An ordinary person would understand that the charge is for misappropriation of fund and to achieve that ulterior motive, the provisions of DFPRT, 2007 was not observed. Mr. Bhowmik, learned senior counsel has further submitted that it would be apparent from the order of the disciplinary authority dated 04.08.2016 that the disciplinary proceeding was drawn up against the petitioner only 'for violation of the financial rules.' Mr. Bhowmik, learned senior counsel has thus submitted that contrary to what has been stated in the reply filed by the respondents, it would be apparent particularly from the passages as undernoted that in terms of the provision of Rule 32 of the CCS (CC & A) Rules, 1965 the concurrence from the Tripura Public Service Commission [the TPSC in short] was taken but such concurrence was not communicated with the order of the penalty dated 04.08.2016 or prior to that. The respondents have failed to produce any record. Thus, there was a serious breach of natural justice. The petitioner consolidated right to have an opportunity to lay his say on the observation of the TPSC. The passages as referred above read as under:
"That with reference to the statements made in paragraph 17,18,19,20 and 21 of the affidavit-in- opposition filed by the respondents No.1,2,3 and 6 I say that copy of the order of concurrence of the Tripura Public Service commission, in short TPSC, was not communicated to the petitioner before imposition of the penalty by the Disciplinary Authority as per provision of Rule 32 of CCS (CCA) Rules, 1965. The claim of the respondents No.1,2,3 and 6 in their affidavit-in-opposition that the copy of order of concurrence of the TPSC was communicated to the petitioner at the time of issue of penalty is absolutely wrong and in violation of provision of Rule 32 of CCS (CCA) Rules, 1965."W.P.(C) No.1198 of 2016 Page 13 of 24 [14]
[10] The apex court in Union of India and another vs. T.V. Patel, reported in (2007) 4 SCC 785 had occasion to observe as to how the said Rule 32 of the CCS (CC & A) Rules would be exercised:
"Rule 32 of the Rules deals with the supply of a copy of Commission's advice. Rules as read as it is mandatory in character. Rule contemplates that whenever a Commission is consulted, as provided under the Rules, a copy of the advice of the Commission and where such advice has not been accepted, also a brief statement of the reasons for such non-acceptance shall be furnished to the Government servant along with a copy of the order passed in the case, by the authority making the order. Reading of the Rule would show that it contemplates two situations; if a copy of advice is tendered by the Commission, the same shall be furnished to the government servant along with a copy of the order passed in the case by the authority making the order. The second situation is that if a copy of the advice tendered by the Commission has not been accepted, a copy of which along with a brief statement of the reasons for such non-acceptance shall also be furnished to the government servant along with a copy of the order passed in the case, by the authority making the order. In our view, the language employed in Rule 32, namely „along with a copy of the order passed in the case, by the authority making the order‟ would mean the final order passed by the authority imposing penalty on the delinquent government servant."
[11] Mr. T.D. Majumder, learned G.A. appearing for the respondents No.1,2,3,4 & 6 has stated that the contention of Mr. Bhowmik, learned senior counsel cannot be accepted at all inasmuch as it would be apparent from the memorandum of appeal filed by the petitioner that the petitioner himself has admitted that by one memorandum under No.F.1(9)- RD/85/5309-37 dated 06.11.2007 a new system was introduced where the District Programme Coordinator [the DM & Collector] can accord an administrative financial sanction for an amount of `30.00 lacs for all projects under National Rural Employment Guarantee [the NREGA in short] Act and Sampoorna Gramin W.P.(C) No.1198 of 2016 Page 14 of 24 [15] Rojgar Yojana [the SGRY in short]. Thus, there was a breach of that memorandum. Mr. Majumder, learned G.A. has produced a copy of that memorandum before this court as part of the record and the said memorandum is extracted hereunder as a whole:
"GOVERNMENT OF TRIPURA RURAL DEVELOPMENT DEPARTMENT No. F.1(9)-RD/85/ 5309-37 Dated, Agartala, the 6th November, 2007 MEMORANDUM Subject: - Delegation of financial powers to District Programme Coordinator for execution of NREGA works.
The Delegation of Financial Power rules, Tripura, 2007, Rule 11(2) states that powers for administrative approval and expenditure sanction in respect of both approved Plan and Non-Plan schemes shall be follows:-
Authority to whom Extent of Powers
delegated (in lakhs)
Plan Non-
Plan
Administrative Department Full Full
Heads of Department other 4.00 1.00
than D.M. & Collectors
D.M. & Collectors 10.00 2.00
Block Development Officers 2.50 0.75
Other Head of Offices 1.00 0.50
2. Under the NREGA scheme launched in the year, 2005 currently underway in Dhalai District West Tripura District and South Tripura District and SGRY scheme in all Districts, many big projects involving an expenditure of several lakhs are taken up. In order to avoid un-necessary delays in implementation of these projects, the powers of administrative and financial sanction of the Administrative Department may be delegated to the Heads of Department (District Administration) i.e. District Magistrate & Collector.
3. In exercise of the powers conferred by DFPRT, 2007, Rule 11(2), the District Programme Coordinator (D.M & Collectors), Tripura are now authorised to accord administrative and financial sanction up to the extent of Rs 30 lakhs (thirty lakhs) for all projects under National Rural Employment Guarantee Act (NREGA) and Sampoorna Gramin Rojgar Yojna (SGRY). An administrative approval and Expenditure sanction shall be obtained from R.D. Department for expenditure of more than Rs. 30 lakhs (thirty lakhs) in advance rather post facto. Further the list of such projects running in the fields shall be forwarded to Rural Development Department once each in two months (April & October). This limit shall be inclusive of all the components of a particular project.W.P.(C) No.1198 of 2016 Page 15 of 24 [16]
This is issued as per approval of the R.D. Department vide U.O. No.10630/Com(RD)/07 dated 03-11-07.
Sd/-
Illegible (B. Pandey) Joint Secretary to the Government of Tripura"
[12] Mr. Majumder, learned counsel has further contended that the said memorandum was binding on the petitioner as he was acting as the Programme Officer. The supply orders under reference were all issued after 06.11.2007, when the said memorandum was issued by the Rural Development Department. Thus, he has placed adequate emphasis on violation of the financial rules which are manifest from the said memorandum.
[13] Having appreciated the records as well as the averments made in the writ petition, the reply and the rejoinder, the following pertinent question surfaced in this controversy viz:
Whether by non supplying of the concurrence note of the TPSC, the respondents No.1,2,3,4 & 6 have violated the principles of natural justice inasmuch as the petitioner did not get any opportunity to represent on the concurrence note of the TPSC?
[14] In this regard, this court is of the view that the scope and ambit of Section 33 of the CCS (CC & A) Rules, 1965 has fallen to various interpretations. In T.V. Patel (supra) the apex court has observed that when the advice of the Public Service Commission is acted upon, the copy of such advisory shall be tendered to the government servant. In T.V. Patel (supra), having noted the language employed in Rule 32, namely 'along with a copy of the order passed in the case, by W.P.(C) No.1198 of 2016 Page 16 of 24 [17] the authority making the order' it has been held that, that would mean the final order passed by the authority imposing penalty on the delinquent government servant. But in State of U.P. vs. Manbodhan Lal Srivastava, reported in AIR 1957 SC 912, the apex court has held that such provisions do not confer any rights on the public servant in the absence of consultation or any irregularity in consultation process or for not furnishing a copy of the advice tendered by the UPSC or to get the cause of action challenging the action in a court of law inasmuch as the provision of Article 320(3)(c) of the Constitution of India are not mandatory in nature. In Union of India and others vs. S.K. Kapoor, reported in (2011) 4 SCC 589 the apex court had accepted the ratio laid down in the case of T.V. Patel (supra) in so far as the interpretation of Article 320(3) (c) is concerned and, in that context, it has been observed that the provisions contained in the said Article 320(3) (c) of the Constitution are mandatory. While distinguishing certain aspects, the apex court had observed as under:
"7. We are of the opinion that although Article 320(3)(c) is not mandatory, if the authorities do consult the Union Public Service Commission and rely on the report of the commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Thus, in our view, the aforesaid decision in T.V. Patel's case is clearly distinguishable."
[15] In S.N. Narula vs. Union of India and others, reported in (2011) 4 SCC 591, it has been held by the apex court as under:
W.P.(C) No.1198 of 2016 Page 17 of 24 [18]
"9. It may be noted that the decision in S.N. Narula's case (supra) was prior to the decision in T.V. Patel's case(supra). It is well settled that if a subsequent co- ordinate bench of equal strength wants to take a different view, it can only refer the matter to a larger bench, otherwise the prior decision of a co-ordinate bench is binding on the subsequent bench of equal strength. Since, the decision in S.N. Narula's case (supra) was not noticed in T.V. Patel's case (supra), the latter decision is a judgment per incuriam. The decision in S.N. Narula's case (supra) was binding on the subsequent bench of equal strength and hence, it could not take a contrary view, as is settled by a Page 11 11 series of judgments of this Court."
[16] In S.K. Kapoor (supra), the interpretation of T.V. Patel (supra) was questioned and declared per incuriam. In Union of India and others vs. R.P. Singh [the judgment dated 22.05.2014 delivered in Civil Appeal No.6717 of 2008], the apex court in uncertain terms has held as under:
"19. Thus perceived, it can be stated with certitude that S.N. Narula (supra) was a binding precedent and when the subsequent decision in T.V. Patel (supra) is rendered in ignorance or forgetfulness of the binding authority, the concept of per incurium comes into play."
Further the apex court had proceeded to give their own reasons to express their respectful concurrence with S.K. Kapoor (supra) by observing that:
"23. At this juncture, we would like to give our reasons for our respectful concurrence with S.K. Kapoor (supra). There is no cavil over the proposition that the language engrafted in Article 320(3)(c) does not make the said Article mandatory. As we find, in the T.V. Patel's case, the Court has based its finding on the language employed in Rule 32 of the Rules. It is not in dispute that the said Rule from the very inception is a part of the 1965 Rules. With the efflux of time, there has been a change of perception as regards the applicability of the principles of natural justice. An Inquiry Report in a disciplinary proceeding is required to be furnished to the delinquent employee so that he can make an adequate representation explaining his own stand/stance. That is what precisely has been laid down in the B.Karnukara's case. We may reproduce the relevant passage with profit: -
„Hence it has to be held that when the enquiry officer is not the disciplinary authority, the W.P.(C) No.1198 of 2016 Page 18 of 24 [19] delinquent employee has a right to receive a copy of the enquiry officer‟s report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee‟s right to defend himself against the charges levelled against him. A denial of the enquiry officer‟s report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.‟
24. We will be failing in our duty if we do not refer to another passage which deals with the effect of nonsupply of the enquiry report on the punishment. It reads as follows:
„[v] The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an „unnatural expansion of natural justice‟ which in itself is antithetical to justice.‟
25. After so stating, the larger Bench proceeded to state that the court/tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished. The courts/tribunals would apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment. It is only if the court/tribunal finds that the furnishing of report could have made a difference to the result in the case then it should set aside the order of punishment.
Where after following the said procedure the court/tribunal sets aside the order of punishment, the proper relief that should be granted to direct reinstatement of the employee with liberty to the W.P.(C) No.1198 of 2016 Page 19 of 24 [20] authority/ management to proceed with the enquiry, by Page 17 17 placing the employee under suspension and continuing the enquiry from that stage of furnishing with the report. The question whether the employee would be entitled to the back wages and other benefits from the date of dismissal to the date of reinstatement, if ultimately ordered, should invariably left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome." [17] Thus, it has been clearly held that the advice from the UPSC, needless to say, when utilized as a material against the delinquent officer, it should be supplied in advance. As it seems to us, Rule 32 provides for supply of copy of advice to the government servant to comply the requirement of the natural justice. The said requirement is in prevalence before the decision of the Constitution Bench. After the said decision, in our considered opinion, the authority should have clarified the Rule by way of elaboration incorporating the development in the service jurisprudence. The apex court has noted such development in the office memorandum dated 06.01.2014 as issued by the Government of India, Ministry of Personnel, PG & Pensions, Department of Personnel & Training, whereby it has been clearly provided that the delinquent officer be afforded with opportunity to advance his reasons for disagreement with the advice of the UPSC. The following is the substantive part of the said memorandum dated 06.01.2014:
"(iii)The Charged Officer shall be required to submit, if he so desires, his written representation or submission to the Disciplinary Authority within fifteen days, irrespective of whether the Inquiry report/advice of UPSC is in his favour or not.
(iv) The Disciplinary Authority shall consider the representation of the Charged Officer and take further action as prescribed in sub-rules 2(A) to (4) of Rule 15 of CCS (CCA) Rules, 1965."W.P.(C) No.1198 of 2016 Page 20 of 24 [21]
Subsequently, by the memorandum dated 05.03.2014, the Government of India has clearly directed to supply the copy of the advice of the UPSC to the charged officer.
The substantive part of the said memorandum dated 05.03.2014 is reproduced hereunder:
"The undersigned is directed to refer to this Department's O.M. of even number dated 06.01.2014 and to say that it has been decided, in partial modification of the above O.M. that a copy of the inquiry report may be given to the Government servant as provided in Rule 15(2) of Central Secretariat Services (Classification, Control and Appeal) Rules, 1965. The inquiry report together with the representation, if any, of the Government servant may be forwarded to the Commission for advice. On receipt of the Commission's advice, a copy of the advice may be provided to the Government servant who may be allowed to submit his representation, if any, on the Commission's advice within fifteen days. The Disciplinary Authority will consider the inquiry report, advice of the Commission and the representation(s) of the Government servant before arriving at a final decision."
[18] Having noticed those O.Ms, the apex court in R.P. Singh (supra) has held that both the office memoranda are not only contingent with S.K. Kapoor (supra) but also in accordance with the principle of natural justice which has espoused in M.D., ECIL vs. B. Karunakar‟s, reported in (1993) 4 SCC 727. Thus, the non-supply of the advice of the TPSC to the petitioner before the final order imposing penalty was passed was a gross violation of the natural justice. This court has reiterated this principle earlier also.
The second limb of contention as projected by the petitioner is that whether there is a definite charge for violation of the provision of DFPRT, 2007. The charge is indubitably W.P.(C) No.1198 of 2016 Page 21 of 24 [22] structured substantively for misappropriation of the government fund by tweaking the DFPRT, 2007. This court is constrained to observe that from the memorandum dated 06.11.2007 it is apparent that in exercise of the power conferred by DFPRT, 2007 particularly by Rule 11(2) of the said rules, the said memorandum dated 06.11.2007 was issued. It is the universal principle if violation of certain rules or a financial process is alleged, the disciplinary authority must state that charge unambiguously having referred to the provisions of the direction or the rules precisely in the charge, but in this case there is no reference to the memorandum dated 06.11.2007. Even though the said memorandum has been issued in exercise of the power conferred by Rule 11(2) of the DFPRT, 2007 but in Rule 11(2) no power has been provided to issue such memorandum dated 06.11.2007. Rule 11(2) is the provision for prescribing the authorities and the extent of powers under plan and non-plan expenditure. As such, the memorandum dated 06.11.2007 though it has been styled as if it has been issued under the provision of DFPRT, 2007 but in essence this is an independent memorandum covering the subject of the administrative and financial sanction to the extent of `30.00 lacs in respect of the NREGA and SGRY schemes. Beyond `30.00 lacs, the authority shall be the Rural Development Department. No amendment has been carried out to the DFPRT,2007 and as such, its status is of an independent memorandum dated 06.11.2007, even though the petitioner has expressed his knowledge in the memorandum W.P.(C) No.1198 of 2016 Page 22 of 24 [23] of appeal but such statement cannot be used against him. No doubt, the petitioner was under obligation to observe the process of the memorandum dated 06.11.2007. But here is the issue whether the charge was brought in this respect against the petitioner or not. For violation of the direction as contained in the memorandum dated 06.11.2007 as produced by Mr. Majumder, learned G.A. appearing for the respondents No.1,2,3,4 & 6 as part of record, this court is constrained to observe that no such charge has been brought against the petitioner. Moreover, the charge as brought is substantively for misappropriation of the government fund and for that purpose, the petitioner had violated the DFPRT, 2007. But the DFPRT, 2007 does not prescribe for administration and financial sanction in respect of the NREGA and SGRY scheme. The charge against the petitioner was not for violation of the said memorandum dated 06.11.2007 and in absence of similar direction in the DFPRT, 2007, the order dated 02.03.2016, Annexure-8 to the writ petition and the appellate order dated 04.08.2016, Annexure-10 to the writ petition, cannot be sustained in law and hence, those are interfered with and set aside. Hence, as consequence thereof, the petitioner is entitled to all the benefits he has lost for imposing punishment by the order dated 02.03.2016 which was affirmed by the order dated 04.08.2016. The respondents are directed to release the increments as was withheld by the order dated 02.03.2016, Annexure-8 to the writ petition and affirmed by the order dated 04.08.2016, Annexure- W.P.(C) No.1198 of 2016 Page 23 of 24 [24] 10 to the writ petition within 6(six) weeks from the date of receipt of this copy of the judgment and order. The respondents are further directed to take all necessary steps to completely erase any effect of those orders dated 02.03.2016 and 04.08.2016 forthwith. If any note regarding the penalty has been recorded in the service book of the petitioner, such note shall be expunged within 6(six) weeks as prescribed by this order.
In the result, this writ petition stands allowed to the extent as indicated above.
There shall be no order as to costs.
JUDGE Sujay W.P.(C) No.1198 of 2016 Page 24 of 24