Tripura High Court
Dr. Asit Chakraborty vs The State Of Tripura And Others on 31 January, 2022
Author: S. Talapatra
Bench: S. Talapatra
HIGH COURT OF TRIPURA
AGARTALA
WP(C)No.588 of 2021
Dr. Asit Chakraborty
..........Petitioner(s)
Versus
The State of Tripura and Others
..........Respondent(s)
For Petitioner(s) : Mr. T.D. Majumder, Sr. Adv.
Mr. Koushik Roy, Adv.
For Respondent(s) : Mr. K. De, Addl. G.A.
Mr. R. Datta, Adv.
HON'BLE MR. JUSTICE S. TALAPATRA
Order
31/01/2022
Heard Mr. T.D. Majumder, learned senior counsel assisted by Mr. Koushik Roy, learned counsel appearing for the petitioner as well as Mr. K. De, learned Addl. G.A. appearing for the respondents No.1 to 5 and Mr. R. Datta, learned counsel appearing for the respondent No.6.
2. The petitioner while serving as the Senior Scientist under Indian Council for Agricultural Research [ICAR for short] was brought on deputation to hold the post of Director, Animal Resource Development Department, Government of Tripura in exercise of power provided by Rule 5(1) of Tripura Veterinary Cadre Service Rules, 1989 read with the notification dated 20.10.2001 for a period of two years from the date of joining. By the notification dated 12.09.2017 [Annexure-12 to the writ petition] the petitioner was appointed and he had joined Page 2 of 7 the said post on 18.12.2017[forenoon] as would be evident from the order dated 05.01.2018 [Annexure-3 to the writ petition]. On 27.09.2018, the petitioner was showcause to explain why the disciplinary action shall not be taken against him for gross misconduct, by the memorandum dated 27.09.2018 [Annexure-4 to the writ petition]. The allegations, in nutshell are that the petitioner failed to submit an action taken report on the minutes of the review meeting of ARDD chaired by the Chief Minister, Tripura on 24.08.2018. According to the General Administration (Personnel & Training) Department that was a serious misconduct of insubordination and as such, the petitioner has been liable for disciplinary action under Tripura State Civil Services (Conduct) Rules, 1988 read with CCS (CCA) Rules, 1965. The petitioner filed his reply on 29.09.2018 [Annexure-5 to the writ petition] denying completely those allegations and stating that he had never failed to prepare the project report. On the contrary, he had taken due action on the basis of such report. The Secretary to the Department had approved the action taken by the petitioner.
3. Be that as it may, on 01.10.2018, the petitioner was placed under suspension invoking the provisions of Rule 10(1) of CCS (CCA) Rules, 1965 with immediate effect [see Annexure-6 to the writ petition]. It would be apparent that the petitioner was receiving veiled threats on his life which pursued the petitioner to file a complaint to the police station on 21.03.2018 [see Annexure-7 to the writ petition]. All on a sudden on 27.12.2018, the suspension order of the petitioner dated 01.10.2018 had been revoked by the notification dated 27.12.2018 [Annexure-9 to the writ petition] with immediate effect and the petitioner was repatriated to his parent organization, ICAR. Therefore, the petitioner was no Page 3 of 7 more the officer of the General Administration (Personnel & Training) Department with his repatriation w.e.f. 01.10.2018 the relation with the Government of Tripura was discontinued totally and the Government of Tripura did not have any control over the petitioner.
4. Be that as it may, on 22.02.2019, the petitioner was served the proposed articles of charges to be enquired into under Rule 14 of the CCS (CCA) Rules, 1965 by the memorandum dated 22.02.2019 [Annexure-10 to the writ petition]. As the petitioner has challenged the authority of the respondents, particularly the authority of the Secretary to the Government of Tripura, General Administration (Administrative Reforms) Department, it will be futile to reproduce the charges as brought against the petitioner.
5. The petitioner received the memorandum of charges dated 22.02.2019 as made available by the communication dated 09.04.2021 [Annexure- 11 to the writ petition]. The petitioner filed the written statement and stoutly contending that the said departmental proceeding is not sustainable in view of Rule 20 of CCS (CC & A) Rules, 1965 and as such, the said exercise shall be immediately recalled. But that was not done so. In his absentia, the proceeding was taken forward ex parte and finally, the enquiry report was filed holding the petitioner guilty of the charges, as it transpires from the memorandum dated 02.07.2021 [Annexure-16 to the writ petition]. By the said memorandum dated 02.07.2021 [Annexure-16 to the writ petition], the petitioner was asked to file his representation, if he so wished as per provisions of Rule 15(2) of CCS (CCA) Rules, 1965. The petitioner did not file any representation acceding to the said proceeding and he had approached this Court to quash the entire disciplinary Page 4 of 7 proceeding in view of Rule 20(1) of CCS (CCA) Rules, 1965. It has been contended that the Secretary to the General Administration (Administrative Reforms) Department does not have any authority to exercise any control over his service as previous to drawing up the charges the petitioner was repatriated. It has been thus contended that when the memorandum of charges was issued i.e. 02.07.2021, the petitioner had no relation with the said authority and as such, the drawing up of the disciplinary proceeding was beyond his jurisdiction.
6. Mr. T.D. Majumder, learned senior counsel appearing for the petitioner has drawn attention of this Court to the provisions of Rule 20(1) of CCS (CCA) Rules, 1965 which reads as under :
"20(1) Where the services of a Government servant are lent by one department to another department or to a State Government or an authority subordinate thereto or to a local or other authority (hereinafter in this rule referred as "the borrowing authority"), the borrowing authority shall have the powers of the Appointing Authority for the purpose of placing such Government servant under suspension and of the Disciplinary Authority for the purpose of conducting disciplinary proceeding against him :
Provided that the borrowing authority shall forthwith inform the authority which lent the services of the Government servant (hereinafter in this rule referred to as "the lending authority") of the circumstances leading to the order of suspension of such Government servant or the commencement of the disciplinary proceeding, as the case may be."
It is apparent on the face of the said rule that when the borrowing authority can control over the services of the lent employee. They can exercise the authority to initiate the departmental proceeding. The deputation continues. Even then, the consultation with the lending authority is essential. In this case, that provisions had not been recognized while issuing the said memorandum of charge.
7. To illustrate his contention, Mr. Majumder, learned senior counsel has relied on a decision of the apex Court in Shiv Parshad Pandey versus Page 5 of 7 C.B.I. through its Director, New Delhi reported in AIR 2003 SC 1974. In that case, one of the officers of Indian Police Service [IPS for short] was deputed to the Border Security Force (BSF). While he was serving in the BSF, one civilian made a complaint to the authorities alleging of misconduct viz. illegal gratification for showing official favour. The enquiry was ordered by the BSF authority on 27th of June, 1995. Before any further action could be taken on the recommendation of the short court of enquiry, the appellant was repatriated to his parent cadre of Madhya Pradesh police. The moot question that arose for decision before the apex Court was whether the Border Security Force authority could draw a disciplinary proceeding against that officer who was repatriated to the police service. It has been observed by the apex Court as under:
"What actually had happened was that on a complaint made by Assa Singh, a preliminary fact finding enquiry was initiated which body recommended further proceedings against the appellant, but the IG who received the report recommended the awarding of a minor punishment of severe reprimand. But the competent authority did not accept either of the recommendations but allowed the appellant to be repatriated to his parent department, consequently on the lapse of six months after his repatriation under Section 77(2) of the BSF Act, the BSF authorities ceased to have any disciplinary jurisdiction on the appellant since he ceased to be subject to the said Act. After that period, the appellant became subject to other laws of the land. Therefore, the Special Court, CBI had the jurisdiction to entertain a complaint against the appellant. The further argument of the appellant that because of Section 80 and 81 of the BSF Act it is only the Security Forces Court under the BSF Act that has the jurisdiction to try the appellant has also to be negatived. The next argument of the learned counsel for the appellant is that in fact the authorities under the BSF Act had already punished the appellant by recommending the recording of a severe displeasure of Director General, therefore, the CBI or for that matter the Special Court could not have entertained another complaint of Assa Singh on the same facts which would amount to a second trial. We have already noticed that the recommendation of IG for severe displeasure was never accepted by the competent authority, hence, there is no question of a second trial by the CBI Court. Herein, we may notice that Page 6 of 7 the competent authority has also not accepted the recommendation of the SCOI for further proceedings, hence, entire proceedings against the appellant before the competent authority stood abandoned without being taken to any logical conclusion."
[Emphasis added] It has been observed that the Special Court of CBI could not have taken the cognizance on a complaint of Assa Singh since at the relevant point of time, trial had been started by the BSF authorities. But for present purpose, the latter part of the observation as made in Shiv Parshad Pandey (supra) is not relevant.
8. Mr. Majumder, learned senior counsel has also pointed out that the respondents in their reply have stated that as per rule, the borrowing authority has full power for conducting a disciplinary proceeding against the petitioner and as such, the proceeding drawn up by the respondents is in tune with provisions of law. But the respondents have admitted in unequivocal terms that the petitioner was asked to join the parent organization before the memorandum of charge was drawn up.
9. Mr. K. De, learned Addl. G.A. appearing for the respondents has reverberated the same contention to oppose the prayer made in the writ petition. In the alternative, Mr. De, learned Addl. G.A. has submitted that the borrowing department shall be given authority to refer the charges of misconduct to the parent department for taking appropriate action as the regular disciplinary authority of the petitioner.
10. Mr. R. Datta, learned counsel who is appearing for the TPSC- respondents has submitted that he would support the submission of Mr. K. De, learned Addl. G.A. Page 7 of 7
11. Having appreciated the submissions made by the learned counsel for the parties, this Court finds that the pertinent question that wades through the controversy is that whether the Secretary to the General Administration Reforms Department had the authority to initiate a disciplinary authority after the petitioner was repatriated to his parent department or not. The answer must be in the negative in view of Rule 20(1) of CCS (CCA) Rules, 1965 and as such, the entire disciplinary proceeding initiated by the memorandum dated 22.07.2019 [Annexure-10 to the writ petition] and subsequent orders, notice, enquiry report arising therefrom all are quashed. The General Administration (Administrative Reforms) Department may send the allegation against the petitioner to the parent department at their discretion and for that, this court will not issue any direction.
12. Having observed thus, this writ petition stands allowed.
No order as to costs.
JUDGE Sabyasachi B