Tripura High Court
Sri Narendra Debbarma vs The State Of Tripura on 8 January, 2018
Author: S. Talapatra
Bench: S. Talapatra
1
THE HIGH COURT OF TRIPURA
AGARTALA
WA 22 OF 2017
Sri Narendra Debbarma,
son of Khilingrai Debbarma,
resident of Village-Santi Colony, P.O. Gumati Project,
P.S. Jatanbari, District - South Tripura
....Appellant
- Vs -
1. The State of Tripura,
represented by the Secretary to the
Department of Forests, Government of Tripura, Agartala
2. The Chief Secretary,
Government of Tripura, Agartala
New Civil Secretariat Complex,
P.O. Kunjaban, P.S. East Agartala,
District - West Tripura
3. The Principal Chief Conservator of Forests,
(Disciplinary Authority),
Government of Tripura, Pandit Nehru Complex,
P.O. Kunjaban, P.S. West Agartala, District - West
Tripura
4. The Conservator of Forests,
Southern Circle, Udaipur,
P.O. & P.S. - R. K. Pur, South Tripura
5. The Divisional Forest Officer,
Gomati Forest Division, P.O. - Jatanbari,
P.S. Nutanbazar, District - South Tripura
6. Sri G. R. Paul,
Conservator of Forests (Inquiring Authority),
Southern Circle, Udaipur,
at present posted in the Office of the PCCF at
Gurkhabasti, Aranya Bhavan,
P.O. Kunjaban, P.S. West Agartala,
District - West Tripura
....Respondents
WA 22 OF 2017 Page 1 of 28 2 BEFORE HON'BLE THE CHIEF JUSTICE MR. T.VAIPHEI HON'BLE MR. JUSTICE S.TALAPATRA For the Appellant : Mr. A.K. Bhowmik, Sr. Advocate Mr. R. Dutta, Mr. S. Deb & Ms. A. Banik, Advocates.
For the respondents : Mr. S. Deb, Sr. Advocate.
Mr. S. Chakraborty, Addl. G.A.
Date of hearing : 29.11.2017
Date of delivery of : 08.01.2018
Judgment & Order
Whether fit for reporting : YES
JUDGMENT & ORDER
(S. Talapatra, J.)
By this intra-court appeal, the judgment and order dated 10.01.2017 delivered in WP(C) No.15 of 2011 by a learned Single Judge of this Court has been challenged.
2. The appellant [hereinafter referred to as the petitioner] retired from his service on superannuation on 31.08.2007 from the post of Forester. A post-retirement disciplinary proceeding was drawn against him by the Memorandum under No. F.19(686)-Vig/For-07/9551-54 dated 25.07.09 [Annexure 6 to the writ petition] under Rule 9 of the CCS(Pension) Rules as adopted by the Govt. of Tripura and having sanction of the Governor on the following articles of charge.
WA 22 OF 2017 Page 2 of 28 3 ―Article-I That the said Sri Narendra Debbarma, Forester (now Retd.) while functioning as Beat Officer, Dyke-IV under Tirthamukh Range under Gumti Forest Division, Jatanbari wilfully neglected his duty by not doing the Government works properly as assigned to him in accordance with the norms/orders of Forest Department and general financial rule thus, acted in manner most unbecoming of a Govt. Servant and to the severe detriment to Govt. interest by misappropriation and defalcation of govt. money to the tune of Rs.3,72,375/-.
Thus Sri Narendra Debbarma, Forester (now Retd) is charged for lack of integrity and serious misconduct.
Article-II That the said Sri Narendra Debbarma, Forester (now Retd.) while functioning as Beat Officer, Dyke-IV under Tirthamukh Range under Gumti Forest Division, Jatanbari, wilfully neglected his duties, and did not carry out plantation and forestry related works as entrusted to him as per specifications and norms. Sri Narendra Debbarma, Fr. (now Retd) acted in a manner most unbecoming of a Government servant and to the severe detriment to Government interest.
Thus Sri Narendra Debbarma, Forester (now Retd), is charged for lack of devotion to Govt. duties and for serious negligence.‖
3. The petitioner disputed the charge by filing the written statement of defence dated 27.09.2009 [Annexure 7 to the writ petition]. Even though by the memorandum dated 25.07.2009, the Principal Chief Conservator of Forests [in short, the PCCF] was asked to enquire but the PCCF caused the said enquiry into the said articles of charge through one Mr. G.R. Pal, IFS, Conservator of Forests, South Circle, Udaipur [ the Respondent No.4 and 6] vide the order No. F.19 (686)/Vig/For-2007/16821-27 dated 14.10.2009 [Annexure 8 WA 22 OF 2017 Page 3 of 28 4 to the writ petition]. The petitioner at one phase of enquiry expressed his no confidence on the said Enquiry Officer, but said no confidence was not acted upon and the inquiry proceeding was carried out as the petitioner had acquiesced to the later phase of the proceeding.
4. There is no dispute that the petitioner participated in the later phase of the inquiry and the Inquiry Officer submitted his written brief of defence under Rule 14(9) of CCS (CCA) Rules, 1965 in the said inquiry being Departmental Proceeding No. 01/INQ/For-09. In the written brief of defence submitted in the final phase of the inquiry, the petitioner has categorically stated that the Presenting Officer has failed to establish the charge by laying adequate evidence. In the said written brief of defence [Annexure-13 to the writ petition], the petitioner made the following submission:
(a) The Inquiry Officer did not allow production of relevant additional documents despite repeated insistence made by the petitioner. According to the petitioner in his prayer dated 23.11.2009 he prayed for production of additional documents.
Out of those documents, the documents at Sl. No.4 and 14 were very relevant for revealing the truth viz-a-viz the Articles of charge but one of those documents was withheld.
WA 22 OF 2017 Page 4 of 28 5
(b) Non-appreciation of the materials placed in the evidence has vitiated the proceeding. According to the petitioner, Exbt.D-6 would reveal the truth as the said documents show that the charge was drawn against the petitioner for defalcating a sum of Rs.1,86,750/- for Nooncherra Plantation works. The said Forest Ranger namely Falgun Kumar Hrankhal, according to the petitioner, had admitted that he was punished for the said charge. The said charge has been repeated against the petitioner. Thus, according to the petitioner, the charge memo dated 25.07.2009 is not sustainable.
(c) The Inquiry Officer was biased against the petitioner while carrying out the inquiry in terms of Rule 14 of the CCS (CCA) Rules, 1965. Even his prayer for cross examination of Sri Manoj Kumar Majumder, Sri Kumudendra Debbarma and Sri Sujit Chakma were not entertained by the Inquiry Officer even though their statement was recorded by the Inquiry Officer, on 05.04.2010 when the petitioner could not participate in the proceeding for his illness. As no opportunity was afforded to cross examine those witnesses, any reliance on their evidence would render the proceeding vitiated. WA 22 OF 2017 Page 5 of 28 6 He has also made some allegations in the said written brief of defence that Falgun Kumar Hrankhal, D.W.1 clearly admitted that the Inquiry Officer did not visit the field and the Inquiry Officer was under serious threat. In the said written brief of defence, the petitioner sought to illustrate that Exbt. D/1, D/11 and D/12 would show that the petitioner did not receive any order for first and second weeding works at Nooncherra Plantation. For the severe draught some seedlings were damaged. He had urged the District Forest Officer, Gomati to estimate the situation for taking required administrative action. It would be apparent from the records of evidence that no such visit was ever carried out. According to the petitioner Exbt. P/1 has indicated the reasons for seedlings getting severely damaged as the weeding was taken up after 5/6 months from planting and it was observed that there was lack of supervision. According to him, for fault of P.Ws.4 and 5, the petitioner has been entangled in the disciplinary proceeding. According to him, since the Inquiry Officer did not make any field visit and since the statements of P.Ws 1, 2 and 3 were recorded in WA 22 OF 2017 Page 6 of 28 7 his absence he was deprived of his safeguards. The petitioner has almost in the similar vein highlighted those infirmities in his own language. However, the Inquiry Officer returned his finding in the form a report on 30.04.2010 [Annexure 14 to the writ petition]. As is evident, the report is exhaustive and the evidence is sufficiently analysed. Finally, the Inquiry Officer has observed that the charges brought against the accused officer [the petitioner] have successfully been established and thus he is guilty of this misconduct as alleged in the memo of charge.
5. The petitioner has been supplied with the copy of the said inquiry report and he was asked to file a representation on the said report by the memorandum dated 06.05.2010 [Annexure 15 to the writ petition]. The petitioner having reiterated his pleas of the written brief of defence filed an elaborate representation on 14.05.2010 when he had objected to certain observation made by the Inquiry Officer, such as: "from foregoing paras it is clear that D.W.1 has taken the shelter of falsehood during his deposition in the court and hereby the defence may not get any advantage out of the statement of D.W.1". In the representation the petitioner had taken serious exception to the finding returned by the Inquiry WA 22 OF 2017 Page 7 of 28 8 Officer and he has stated that the findings are beyond the evidence and cannot be accepted by him. After the representation was received by the Disciplinary Authority, by the order dated 22.09.2010 [Annexure 17 to the writ petition] the provisional penalty of withholding of 5% of pension of the petitioner for a period of one year and for recovering the amount of Rs.3,72,375/-, as misappropriated, from the leave salary/DCRG of the petitioner was proposed. Further, it was proposed that the period of suspension w.e.f. 25.08.2007 to 30.08.2007 shall be treated as non-duty and the petitioner will not get pay and allowances except what he had drawn as the subsistence allowance. The petitioner was asked to file the representation, if any, within the stipulated time. In response to that order of provisional penalty, the petitioner filed again the representation on 03.10.2010 asserting that the proposed punishment is wholly unwarranted in the context of the case. Thereafter by the order dated 01.11.2010, the following punishment has been imposed on the petitioner:
(i) Withholding of 5% pension of the petitioner for a period of one year.
(ii) Recovery of the amount of Rs.3,72,375/- for making good of the loss caused to the Government, by defalcation by the petitioner, from his leave salary/DCRG.
(iii) The period of suspension from 25.08.2007 to 30.08.2007 shall be treated as non-duty and as consequence thereof the petitioner shall not get any pay and allowances for WA 22 OF 2017 Page 8 of 28 9 the said period except the subsistence allowance that was paid to him.
6. It is to be noted that the petitioner previously filed another writ petition in respect of the said disciplinary proceeding being WP(C) No.142/2009 challenging the order dated 07.07.2008 whereby the sanction for initiation of the departmental proceeding under Rule 9 of the CCS (Pension) Rules, 1972 and the letter dated 25.09.2008 issued by the respondent No.4 communicating the decision to issue the charge-sheet. The said writ petition was disposed of by the judgment and order dated 05.09.2009 with the solitary direction on the respondent to complete the disciplinary proceeding within a period of 4(four) months but there was no interference by this court. After the final order of penalty dated 01.11.2010 was passed, the petitioner had challenged the said order by filing the writ petition. By the impugned judgment dated 10.01.2017, the writ petition was dismissed on observing that the judicial power of review of an order of a disciplinary proceeding is very limited. Unless it is shown that the principles of natural justice has been violated, the High Court cannot extend its power of judicial review and turn its jurisdiction as that of the appellate court to make fresh scrutiny of the evidence. It has been further observed that the clause (iii) of Sub Rule (2)(b) of Rule 9 of the CCS(Pension) Rules cannot be read in segregation. Sub Rule (2)(b) should be WA 22 OF 2017 Page 9 of 28 10 read as a whole since the Governor had authorised the PCCF for enquiring into the charges as per the procedure as prescribed under Rules 14 and 15 of the CCS(CCA) Rules as indicated in the memorandum dated 25.07.2009 [Annexure 6 to the writ petition]. There is no infirmity having the inquiry carried out by another officer. It has been also observed as follows:-
"Rule 14(2) of CCS (CCA) Rules prescribes that disciplinary authority itself may enquire into the charges or he may appoint under the Rule to any other authority to enquire into the charges. Hence, the appointment of Mr. G.R. Pal, the Chief Conservator of Forests [Respondent No.6] by the order dated 14.10.2009 as the inquiring authority cannot be faulted with."
7. As regards the consideration of one letter dated 12.07.2007 by the Inquiry Officer, learned Single Judge has observed that not only the said letter dated 12.07.2007 but also the reply filed by the delinquent officer, the petitioner was considered on affording the opportunity to the delinquent officer for having his say. Having observed thus, the learned Single Judge has observed that since the writ petition was bereft of merit, it was liable to be dismissed and accordingly it was ordered. Now, the petitioner has challenged the said finding of the learned Single Judge.
WA 22 OF 2017 Page 10 of 28 11
8. Mr. A.K. Bhowmik, learned Sr. Counsel appearing for the petitioner has mainly focused on the aspect whether the PCCF had authority to delegate the power of inquiry to Mr. G.R.Pal and if such delegation is illegal, the inquiry proceeding is bound to be vitiated in law and thus the consequence would be exoneration of the petitioner from the charge.
Mr. Bhowmik, learned Sr. Counsel has submitted that the proceeding on the basis of the sanction as granted by the Governor under Rule 9 of the CCS (Pension) Rules stands on a different footing than that of an ordinary proceeding under Rule 14 and 15 of the CCS (CCA) Rules. In such a proceeding the Governor is the deemed disciplinary authority. The Respondent No.3 is the disciplinary authority under CCS (CCA) Rules if the disciplinary proceeding is carried out during incumbency of the Govt. employee, but not after his retirement when a disciplinary proceeding is carried out under Rule 9 of the CCS (Pension) Rules. Hence he cannot appoint inquiring authority. By appointing the Respondent No.6 as the inquiring authority he had acted without authority and hence the proceeding has vitiated. In the Memorandum of the writ appeal that ground alone has been resorted. Therefore, our consideration shall also be confined to that aspect of the matter.
9. Before we appreciate the submission of the learned counsel of the parties, let us gainfully reproduce the provision WA 22 OF 2017 Page 11 of 28 12 of Rule 9 of CCS (Pension) Rules as adopted in the State of Tripura.
"9. RIGHT OF GOVERNOR TO WITHHOLD OR WITHDRAW PENSION (1) The Governor reserves to himself the right of withholding or withdrawing a pension or part thereof, whether permanently or for a specified period, and of ordering recovery from a pension of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during period of his service, including service rendered upon re-
employment after retirement;
Provided that the Tripura Public Service Commission shall be consulted before any final orders are passed;
Provided further that where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced before the limit specified in sub- rule (5) of rule 49.
(2) (a) The departmental proceedings referred to in sub-rule (1), if instituted while the Government servant was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemed to be proceeding under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service;
Provided that where the departmental proceedings are instituted by an authority subordinate to the Governor, that authority shall submit a report recording its findings to the Governor.
(b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment,
(i) shall not be instituted save with the sanction of the Governor,
(ii) shall not be in respect of any event which took place more than four years before such institution, and
(iii) shall be conducted by such authority and in such place as the Governor may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service. WA 22 OF 2017 Page 12 of 28 13 (3) No judicial proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose, or in respect of an event which took place, more than four years before such institution.
(4) In the case of a Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension as provided in rule 65 or rule 74, as the case may be, shall be sanctioned.
(5) Where the Governor decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant.
(6) For the purpose of this rule,--
(a) departmental proceedings shall be deemed to be institution on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, an such date; and
(b) judicial proceedings shall be deemed to be instituted--
(i) in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made, and
(ii) in the case of civil proceedings, on the date the plaint is presented in the court.‖
10. It has been clearly provided in the said Rule as is apparent that the misconduct committed during incumbency of a retired employee can be enquired into with sanction from the Governor and the action can be taken for such misconduct after drawing the disciplinary proceeding within four years from the date of retirement. Rule 9(2)(b) (iii) has two parts. First part provides that the inquiry should be conducted by WA 22 OF 2017 Page 13 of 28 14 such authority and as such place as is directed by the Governor and the second part prescribes that the procedure of inquiry should be the procedure as prescribed in the CCS (CCA) Rules.
11. Mr. Bhowmik, learned Sr. Counsel has asserted that the disciplinary proceeding was not carried out to its logical end in terms of the said Rule. According to Mr. Bhowmik, learned Sr. Counsel, the Governor by the sanction order dated 07.07.2008 had only observed that the departmental proceeding shall be conducted in accordance with the procedure as laid down in Rule 14 and 15 of the CCS (CCA) Rules, 1965 by the Principal Chief Conservator of Forests, Tripura, Agartala and hence, none can but the Principal Chief Conservator of Forests can cause the inquiry. For purpose of reference, the order dated 07.07.2008 is extracted in full.
"Government of Tripura Forest Department No.F.19(686)/Vig/For-07/9,987-92 Dated,Agartala,the 7th July,2008 WHEREAS it appears from the records that Shri Narendra Deb Barma, Forester (now Retd) while functioning as Beat Officer, Dyke-IV under Gumti Forest Division, Jatanbari willfully neglected his duty by not carrying out the Government works in accordance with the norms/orders of Forest Department and General Financial Rules.
NOW, THEREFORE, in exercise of the powers conferred by Sub- clause(i) of clause (b) of Sub-rule (2) of Rule 9 of the CCS(Pension) Rules,1972, the Governor, hereby accords sanction for initiation of Departmental Proceedings against Shri Narendra Debbarma, Forester (now Retd).
The Governor is further pleased to order that the said departmental proceedings shall be conducted in accordance with the procedure as WA 22 OF 2017 Page 14 of 28 15 laid down in Rule 14 and 15 of the CCS(CC&A) Rules,1965 by the Principal Chief Conservator of Forests, Tripura, Agartala.
By order & in the name of the Governor Sd/-
Joint Secretary to the Government Tripura, Agartala."
12. Mr. Bhowmik, learned Sr. Counsel has further submitted that by the Memorandum dated 27.05.2009 it was further clarified that even the inquiry shall be conducted by the Principal Chief Conservator of Forests. Therefore, there is no ambiguity as such, as regards who would function as the Inquiring Authority. For reference, the entire text of the Memorandum dated 25.07.2005 [Annexure 6 to the writ petition] is extracted hereunder:
NO.F.19(686)/VIG/F0R-07/9551-54 GOVERNMENT OF TRIPURA FOREST DEPARTMENT Dated, Agartala the 25th July,2009 MEMORANDUM In pursuance of the sanction accorded by the Government under Rule 9 of the Central Civil Services (pension) Rules,1972 for instituting departmental proceedings against Shri Narendra Debbarma, Forester (now Retired) vide order NO.F.19(686)/Vig/For-07/9987-92 dated, 07.07.2008 of Joint Secretary, Forest Department , Govt. of Tripura, it is proposed to hold an inquiry against the said Shri Narendra Debbarma, Forester (now Retired) in accordance with the procedure laid down in rule 14 and 15 of the CCS(CC &A) Rules, 1965. The enquiry shall be conducted by the Principal Chief Conservator of Forests, Tripura, Agartala, Forest Deptt.,Govt. of Tripura, Agartala at Pandit Nehru Complex, Gurkhabasti, Agartala.
2. The substance of the imputations of misconduct or misbehaviour in respect of which the inquiry is proposed to be held is set out in the enclosed statement of articles of charge (Annexure-1). A statement of the imputations of misconduct or misbehaviours in support of each article of charge in enclosed (Annexure-II). A list of documents by which, and a list of witnesses by whom, the article of charge are proposed to be sustained are also enclosed (Annexure-III & IV).
WA 22 OF 2017 Page 15 of 28 16
3. Shri Narendra Debbarma, Forester (now Retired) is directed to submit within 10(ten) days of the receipt of this Memorandum a written statement of his defence and also to state whether he desires to be heard in person.
4. He is informed that an inquiry will be held only in respect of those articles of charges as are not admitted. He should, therefore, specifically admit or deny each article of charge.
5. Shri Narendra Debbarma, Forester (now Retired) is further informed that if he does not submit his written statement of defence on or before the date specified in para 3 above, or does not appear in person before the Inquiring Authority or otherwise fails or refuses to comply with the provisions of Rules 14 and 15 of the CCS(CC &A) Rules, 1965 or the orders/directions issued in pursuance of the said rules the Inquiring Authority may hold the inquiry against him ex-parte.
6. The receipt of this memorandum may be acknowledged.
By order and in the name of Governor Joint Secretary to the Government of Tripura."
13. Mr. Bhowmik, learned Sr. Counsel has emphatically submitted that the entire inquiry has been carried out by a person who did not have any authority. His appointment was grossly unauthorized. Neither under the Rule nor by the authorization made by the Governor under Rule 9 of the CCS (Pension) Rules, 1972 as adopted by the Govt. of Tripura, the Principal Chief Conservator of Forests in a post- retirement disciplinary proceeding can function as the disciplinary authority or carry out the proceeding in terms of Rules 14 and 15 of CCS (CCA) Rules, 1965.
14. Mr. Bhowmik, learned Sr. Counsel has placed his reliance in Narinder Mohan Arya V. United India Insurance WA 22 OF 2017 Page 16 of 28 17 Co. Ltd. & Ors. reported in (2006) 4 SCC 713 where the Apex Court had occasion to observe as under :
"27.We may notice that this Court in Ramendra Kishore Biswas V. State of Tripura & Ors. [1999 (1) SCC 472] was clearly of the opinion that a civil suit challenging the legality of a disciplinary proceeding and consequent order of punishment is maintainable. Even this Court in its order dated 29.7.1994 said so. It is interesting to note that in the celebrated judgment of this Court in State of U.P. v. Mohammad Nooh [AIR 1958 SC 86] this Court opined:
"On the authorities referred to above it appears to us that there may conceivably be cases and the instant case is in point-where the error, irregularity or illegality touching jurisdiction or procedure committed by an inferior court or tribunal of first instance is so patent & loudly obtrusive that it leaves on its decision an indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision. If an inferior court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court's sense of fair play the superior Court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the court of tribunal of first instance, even if an appeal to another inferior court or tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what ex facie was a nullity for reasons aforementioned. This would be so also the more if the tribunals holding the original trial and the tribunals hearing the appeal or revision were merely departmental tribunals composed of persons belonging to the departmental hierarchy without adequate legal training and background and whose glaring lapses occasionally come to our notice."
(Emphasis supplied)
15. Mr. Bhowmik, learned Sr. Counsel has relied on Narinder Mohan Arya (supra) to contend that when the inquiry proceeding is itself illegal, the consequence that would ensue is exoneration of the petitioner from the charge. He has also placed reliance on Union of India & Ors. V. Naman WA 22 OF 2017 Page 17 of 28 18 Singh Shekhawat reported in (2008) 4 SCC 1 where the Apex Court having referred Ajit Kumar Nag V. Indian Oil Corporation Ltd: (2005) 7 SCC 764 has enumerated as under:
"32. We may notice that in Ajit Kumar Nag (supra) the order of dismissal was found to have been legally proved despite the fact that the delinquent was acquitted by the court of law. If the inquiry officer is biased, no action could have been be taken on the basis thereof. It renders the proceeding a nullity. Such an inherent defect in the disciplinary proceeding cannot be cured by an order of the appellate authority as the materials which were not brought on record could not be taken into consideration by it."
33. In Ajit Kumar Nag (supra) it was held:
We are aware of the normal rule that a person must have a fair trial and a fair appeal and he cannot be asked to be satisfied with an unfair trial and a fair appeal. We are also conscious of the general principle that pre-decisional hearing is better and should always be preferred to post- decisional hearing. We are further aware that it has been stated that apart from Laws of Men, Laws of God also observe the rule of audi alteram partem. It has been stated that the first hearing in human history was given in the Garden of Eden. God did not pass sentence upon Adam and Eve before giving an opportunity to show cause as to why they had eaten forbidden fruit. [See R.v. University of Cambridge, (1723) 1 Str 557]. But we are also aware that principles of natural justice are not rigid or immutable and hence they cannot be imprisoned in a straight-jacket. They must yield to and change with exigencies of situations. They must be confined within their limits and cannot be allowed to run wild. It has been stated; "To do a great right after all, it is permissible sometimes to do a little wrong".
[Emphasis added]
16. In Hasham Abbas Sayyad V. Usman Abbas Sayyad & Ors. reported in (2007) 2 SCC 355, as relied by Mr. WA 22 OF 2017 Page 18 of 28 19 Bhowmik, learned Sr. Counsel for the petitioner, the Apex Court has exposited the law as under:
"22. The core question is as to whether an order passed by a person lacking inherent jurisdiction would be a nullity. It will be so. The principles of estoppel, waiver and acquiescence or even res judicata which are procedural in nature would have no application in a case where an order has been passed by the tribunal/court which has no authority in that behalf. Any order passed by a court without jurisdiction would be coram non judice being a nullity, the same ordinarily should not be given effect to. [See Chief Justice of Andhra Pradesh and Another v. L.V.A. Dikshitulu and Others - AIR 1979 SC 193 & MD Army Welfare Housing Organisation v. Sumangal Services (P) Ltd. (2004) 9 SCC 619].
23. This aspect of the matter has recently been considered by this Court in Harshad Chiman Lal Modi v. DLF Universal Ltd. and Another [(2005) 7 SCC 791], in the following terms "30.We are unable to uphold the contention. The jurisdiction of a court may be classified into several categories. The important categories are (i) Territorial or local jurisdiction; (ii) Pecuniary jurisdiction; and (iii) Jurisdiction over the subject matter. So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is nullity."
[See also Zila Sahakari Kendrya Bank Maryadit v. Shahjadi Begum & Ors. 2006 11 SCC 692 and Shahbad Co-op. Sugar Mills Ltd. v. Special Secretary to Govt. of Haryana & Ors. 2006 12 SCC 404 para 29]
24.We may, however, hasten to add that a distinction must be made between a decree passed by a court which has no territorial or pecuniary jurisdiction in the light of Section 21 of the Code of Civil Procedure; and a decree passed by a court having no jurisdiction in regard to the subject matter of the suit. Whereas in the former case, the appellate court WA 22 OF 2017 Page 19 of 28 20 may not interfere with the decree unless prejudice is shown, ordinarily the second category of the cases would be interfered with."
[Emphasis added]
17. In Hasham Abbas Sayad (supra), the Apex Court has approvingly reproduced the principle as laid down in Harshad chimanlal Modi V. DLF Universal Ltd. In Harshad Chimanlal (supra), the Apex Court has negotiated the circumstances to lay down the principle when the jurisdiction of the court can be compromised. It has been observed that jurisdiction of the court may be classified into several categories viz. territorial or local jurisdiction or pecuniary jurisdiction and jurisdiction over the subject matter. So far the territorial and the pecuniary jurisdiction are concerned objection to such jurisdiction has to be taken at the earliest. In any case, before settlement of issues if the objection is not taken at the earliest, it cannot be allowed to be taken at the subsequent stage. Jurisdiction as to the subject matter, however, is totally distinct and stands on a different footing by reason of any limitation imposed by statute if it cannot take up the cause, in that event the order or judgment of the court becomes a nullity.
18. Mr. Bhowmik, learned Sr. Counsel has separately referred Ajit Kumar Nag (supra) but the relevant paragraph has already been extracted while referring to Naman Singh Sekhawat (supra).
WA 22 OF 2017 Page 20 of 28 21
19. Mr. S. Deb, learned Sr. Counsel appearing for the respondents has submitted that the authority given by the Governor cannot be misconstructed. If the sanction order dated 07.07.2008, as extracted in the judgment, and the order dated 25.07.2009 are read together there shall be no ambiguity.
In the order dated 07.07.2008 it has been provided as under:-
"The Governor is further pleased to order that the said departmental proceeding shall be conducted in accordance with the procedure as laid down in Rule 14 and 15 of the CCS (CCA) Rules, 1965 by the Principal Chief Conservator of Forest, Tripura, Agartala."
In the memo dated 25.07.2009 the Governor has further observed as follows:-
"In pursuance of the sanction accorded by the Government under rule 9 of the Tripura Civil Services (Pension) Rules, 1972 for instituting departmental proceedings against Sri Narendra Debbarma, Forester, now retired vide Order No. F.19(686)/vig)/For-07/9987-92 dated 07.07.2008 of Joint Secretary, Forest Department, Govt. of Tripura it is proposed to hold an inquiry against the said Narendra Debbarma, Forester, now retired in accordance with the procedure laid down under Rule 14 and 15 of the CCS (CCA) Rules, 1965. The inquiry shall be conducted by Principal Chief Conservator of Forest, Tripura, Agartala, Forest Department, Govt. of Tripura at Pandit Nehru Complex, Gorkha Basti, Agartala".
20. Mr. Deb, learned Sr. Counsel has submitted that the basic direction is to hold the inquiry in accordance with the procedure laid down in Rule 14 and 15 of the CCS (CCA) Rules, 1965. If Rule 14(2) is read, then the disciplinary WA 22 OF 2017 Page 21 of 28 22 authority can appoint any competent person to hold the inquiry on his behalf and for that purpose, the procedure has been laid down exhaustively under Rule 14 and 15 of the CCS(CCA) Rules, 1965.
21. According to Mr. Deb, learned Sr. Counsel appearing for the respondents a pedantic approach may not be given particularly in the context that nor in the entire inquiry proceeding neither in the representation filed posterior to the inquiry report, the petitioner has raised his objection in the matter of jurisdictional deficiency and now the petitioner cannot be allowed to raise such objection in the writ proceeding.
22. Mr. Deb, learned Sr. Counsel has relied on a decision of the Apex Court in Ramendra Kumar Biswas Vr. State of Tripura & Ors. reported in (1999) 1 SCC 472 where the Apex Court had occasion to observe as under:-
"......Indeed it is appropriate to relegate a person to exhaust departmental remedies when he approaches the court without exhausting the departmental remedies under the service rules but to hold that the Civil court has no jurisdiction while hearing a second appeal after the matter has been litigated in the Civil courts for more than 5 years was to say the list not proper."
23. Mr. Deb, learned Sr. Counsel has relied on Para 26 of Narinder Mohan Arya (supra) for making reference to the principles as laid by the Apex Court in the said report. In a WA 22 OF 2017 Page 22 of 28 23 suit filed by a delinquent employee in the Civil court or even in the writ court, in the event, the findings returned in the departmental proceeding are questioned before it, it should keep in mind the following aspects: (1) the enquiry officer is not permitted to collect any material from outside sources during the conduct of the enquiry. [See State of Assam & Anr. V. Mahendra Kumar Das & Ors.[ (1970) 1 SCC 709 : AIR 1970 SC 1255] (2) In a domestic enquiry, fairness in the procedure is an inalienable part of the principles of natural justice [See Khem Chand V. Union of India & Ors., AIR 1958 SC 300 and State of Uttar Pradesh v. Om Prakash Gupta, (1969) 3 SCC 775]. (3) Exercise of discretionary power involves two elements, viz. (i) objective and (ii) subjective and existence of the exercise of an objective element is condition-precedent for exercise of the subjective element [See K.L. Tripathi V. State of Bank of India & Ors. [ (1984) 1 SCC 43 : AIR 1984 SC 273]. (4) It is not possible to lay down any rigid rules for observing the principles of natural justice. It depends on the facts and circumstances of each case but the concept of fair play in action is the basis. [See Sawai Singh V. State of Rajasthan : AIR 1986 SC 995] (5) The enquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject matter of the charges is wholly illegal [See Director (Inspection & quality Control) Export Inspection Council of India Vs. Kalyan Kumar Mitra : 1987 (2) Cal LJ 344]. (6) Suspicion or presumption cannot take the WA 22 OF 2017 Page 23 of 28 24 place of proof even in a domestic enquiry. The writ court is entitled to interfere with the findings of the fact of any tribunal or authority in certain circumstances. [See Central Bank of India Ltd. V. Prakash Chand Jain : AIR 1969 SC 983, Kuldeep Singh v. Commissioner of Police and Others, (1999) 2 SCC 10].
24. From the submission made by the learned counsel for the parties the following question appears paramount:
Whether, if it is held that the Principal Chief Conservator of Forest had no authority to delegate the power of inquiry to one of his subordinate officer, would it vitiate the entire proceeding in the context when the petitioner before approaching the writ court did not raise any jurisdictional objection?
25. This court does not have any hesitation to observe that while issuing the memorandum dated 25.07.2009 [Annexure 6 to the writ petition] the direction that was made was that the inquiry shall be conducted by the Principal Chief Conservator of Forests, Tripura, Agartala, Forest Department, Govt. of Tripura at Pandit Nehru Complex, Gorkha Basti, Agartala. It does limit the power of the disciplinary authority as ordinarily provided under Rule 14(2) of the CCS (CCA) Rules, 1965. The disciplinary authority cannot exercise the powers as provided under Rule 14(2) of the CCS (CCA) Rules when the disciplinary proceeding emanates from Rule 9 of the CCS (Pension) Rules, 1972 as adopted in the State of Tripura. WA 22 OF 2017 Page 24 of 28 25 There the Governor acts as the disciplinary authority and there cannot be any doubt in this regard. By the memorandum dated 25.07.2009 read with the sanction order dated 07.07.2008, the Governor had definitely directed to carry out the departmental proceeding in terms of Rules 14 and 15 of the CCS (CCA) Rules, 1965 by the Principal Chief Conservator of Forest, Tripura, Agartala. It is an omnibus delegation of power as the disciplinary authority. But when by the memorandum dated 25.07.2009 it was observed that the inquiry shall be conducted by the Principal Chief Conservator of Forest apparently these two orders are incongruous so far the delegation is concerned. The phrase used in the sanction order dated 07.07.2008 are for delegation of the omnibus power enjoyed by the disciplinary authority, akin to the powers as provided under Rule 14(2) of the CCS (CCA) Rules, but the word „inquiry‟ appearing in the memorandum dated 25.07.2009 has created confusion or ambiguities.
26. Mr. Deb, learned Sr. Counsel would have been substantially correct if the word „inquiry‟ was appearing in the memorandum dated 25.07.2009. But if the said memorandum is read in terms of the Rule 9, sub Rule 2(b)(iii) the mandate of the said memorandum cannot be relegated by tools of interpretation. Hence, it would have been the safe course for the Principal Chief Conservator of Forests to inquire into the charges by himself, but he had delegated that power to Mr. G. WA 22 OF 2017 Page 25 of 28 26 R. Pal, IFS, Conservator of Forest, Southern Circle, Udaipur by the order dated 14.10.2009. Now the petitioner is harping on the said order, since the inquiry was conducted by the said officer. The nature of delegation is no doubt very important to confer jurisdiction as the jurisdiction is the construct of law. Someone cannot invent jurisdiction in himself. As such, there is some substance in the submission of Mr. Bhowmik, learned Sr. Counsel. But this court is of the view that that was a bonafide act by the Principal Chief Conservator of Forests. The petitioner even did not raise jurisdictional objection throughout the proceeding and there had been no objection even from the Governor in respect of the said delegation in the post-retirement proceeding. It is permissible something to allow little wrong, if there exist no element of prejudice.
27. On delegated hearing, Prof. HWR Wade in his celebrated treaty, Administrative Law, has observed as under:
―There is no breach of natural justice if the deciding authorities appoints a committee to investigate and report, then discloses the report to the person affected and gives him a fair hearing before itself. There is here no delegation of any of the authority's powers or duties‖ [Administrative Law, HWR Wade, Sixth Edition, Oxford University Press/ELBS page 553] WA 22 OF 2017 Page 26 of 28 27
28. Since the petitioner did not object the delegation of authority for inquiry to Mr. G.R. Pal, though the petitioner has raised certain other objection about his conduct in the inquiry on the vice of bias, this court is of the view that in a domestic inquiry the court can extend its jurisdiction for purpose of interference only when there is a gross violation of natural justice and the petitioner has suffered prejudice for other procedural impropriety. In the case if no evidence, the high court may interfere with the final order passed by the disciplinary authority. However, the petitioner in this appeal did not raise any objection in respect of denial of natural justice to him in defending his case. Even that was not argued before the learned Single Judge as we can gather from the submission. Though consideration of one letter dated 12.07.2007 was raised but it has been shown that proper opportunity was given to the petitioner and even the petitioner filed the reply to that letter which was also considered by the Inquiry Officer or authority.
29. This is not a case that the procedure has run wild but this is a case where we do locate a little wrong inasmuch as the final adjudication was not made by the Inquiring Authority but it was made by the Disciplinary Authority and hence, there was no fundamental lack of jurisdiction but there is irregularity as noticed but that irregularity cannot take out the basis of the outcome in the inquiry. Even though we have WA 22 OF 2017 Page 27 of 28 28 not fully agreed with the findings as returned by the learned Single Judge but since we do not think that the petitioner has made out a case for interference in the final order of penalty, this appeal is bound to fail. Accordingly, it is dismissed.
There shall be no order as to cost.
JUDGE CHIEF JUSTICE
sanjay
WA 22 OF 2017
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