Tripura High Court
Sri Narayan Debbarma vs The State Of Tripura on 25 October, 2017
Author: S.Talapatra
Bench: S.Talapatra
1
THE HIGH COURT OF TRIPURA
AGARTALA
WP(C) 180 OF 2014 [
Sri Narayan Debbarma,
son of late Manindra Chandra Debbarma,
TCS (Grade I), Ex-Sub-Divisional Magistrate,
Kanchanpur now Joint Secretary to the Government of
Tripura in the Department of GA (SA) Department,
Government of Tripura, Civil Secretariat, Agartala,
P.O. Kunjaban, P.S. Kunjaban, Gorkhabasti, Agartala,
Pin-799006, West Tripura having his residence at
Pragati Road, Krishna Nagar, Agartala,
P.O. Agartala, P.S. West Agartala, Tripura, Pin-799001
....Petitioner
- Vs -
1. The State of Tripura
(represented by the Chief Secretary to the Government of
Tripura, Agartala, Government of Tripura having his office at
Civil Secretariat, Agartala, P.O. Kunjaban, P.S. Kunjaban,
Gorkhabasti, Agartala, West Tripura
2. The Chief Secretary to the Government of Tripura,
having his office at Civil Secretariat, P.O. Kunjaban,
P.S. Kunjaban, Gorkhabasti,
Agartala, West Tripura, Pin-799006
3. The Secretary to the Government of Tripura
in the Department of General Administration(AR)
Department,
Government of Tripura having his office at Civil Secretariat,
Agartala, P.O. Kunjaban, P.S. Kunjaban, Gorkhabasti,
Agartala, West Tripura, Pin-799006
... Respondents
BEFORE THE HON'BLE MR. JUSTICE S.TALAPATRA For the petitioner : Mr. S. Deb, Sr. Advocate.
Mr. S. Datta, Advocate.
For the respondents : Mr. J. Majumder, Advocate.
Date of hearing and delivery of Judgment & Order. : 25.10.2017 WP(C) 180 OF 2014 Page 1 of 11 2 Whether fit for reporting : No JUDGMENT & ORDER(ORAL)
Heard Mr. S. Deb, learned Sr. counsel assisted by Mr. S. Dutta, learned counsel, for the petitioner as well as Mr. J. Majumder, learned counsel appearing for the respondents.
2. The petitioner who has reportedly retired as the Civil Service Officer has challenged the Memorandum No. F.11(7)- GA(AR)/2010/442-446 dated 09.03.2011 issued by the Principal Secretary to the Govt. of Tripura, General Administration (Administrative Reforms) Department, the respondent No.3,the Disciplinary Authority [Annexure-P/1 to the writ petition], the order No.F.11(7)-GA(AR)/2010/1018-1019 dated 29.07.2013 passed by the Disciplinary Authority [Annexure P/12 to the writ petition] and the order No.F.11(7)-GA(AR)/2010/367-368 dated 13.03.2014 passed by the Chief Secretary, who acted as the Appellate Authority, the respondent No.2 [Annexure-P/15 to the writ petition].
3. By means of the Memorandum dated 09.03.2011, the petitioner was imputed with the following articles of charge:
Article-I That the said (1) Sri Narayan Debbarma, TCS while functioning as SDM, Kanchanpur and (2) Smti. Lalnunnemi Darlong, TCS Gr-II, DC while functioning as Branch Officer, Reang Relief Camp, Kanchanpur did not discharge their duties properly as a result of which irregularities cropped up relating to procurement of chappals for Reang Relief Camp, Kanchanpur. Due to their negligence in Govt. duty the supplier raised false bill against supply of substandard brand of chappals for an amount of Rs.17,43,214/- against the supply order placed to the Managing director, Krishak mangal LAMPS, Kanchanpur.WP(C) 180 OF 2014 Page 2 of 11 3
Article-II That the said (1) Sri Narayan Debbarma, TCS while functioning as SDM, Kanchanpur and (2) Smti. Lalnunnemi Darlong, TCS Gr-II, DC while functioning as Branch Officer, Reang Relief Camp, Kanchanpur did not verify the stock of chappals which were supplied, though the matter was brought to their notice by Sri Smritimay Nath, Block-in- Charge of Reang Relief Camp, stating that the said chappal are not up to the standard of Khadims as per supply order.
By the above acts, (1) Shri Narayan Debbarma, the then SDM, Kanchanpur & (2) Smti. Lalnunnemi Darlong, TCS Gr-II, the then Dy. Collector, SDM's Office, Kanchanpur has proved their negligence in Govt. duty, lack of devotion to duty, lack of integrity and violated the relevant provisions of TCS (Conduct) Rules, 1988 which warrants disciplinary action.
4. The petitioner by filing written statement of defence denied the charges stating that those are without any foundation and in bad faith. By the written statement of defence dated 24.07.2011 [Annexure-P/3 to the writ petition] he has further submitted that the action is highly discriminatory inasmuch as despite those charges, the petitioner was promoted to the next grade. That shows that there was no substance in the imputation. On the face of such denial, inquiry was directed by the Disciplinary Authority and on purported completion of inquiry, the Inquiring Authority, Sri Santanu Das, Secretary to the Government of Tripura, furnished his report in connection with the said inquiry proceeding being Case No. 2(6)-SS/IA/2011 by his forwarding letter dated 06.02.2013 to the Disciplinary Authority. By the said report, the Inquiring Authority has returned the finding that the petitioner could not establish that there was any mechanism in place through which the chappals supplied by the Krishan Mangal Lamps could be checked. According to the report, the chappals WP(C) 180 OF 2014 Page 3 of 11 4 were received without proper checking and thereafter supplied to the refugees. The inquiry officer has further observed that the Presenting Officer has succeeded in proving the charge of negligence in the Govt. duty against the petitioner who was at the relevant point of time holding the charge of Sub Divisional Magistrate, Kanchanpur, North Tripura. Therefore, the petitioner was found by the report to be guilty of the charges no. I and II as reproduced.
5. Based on the said report, the petitioner was given opportunity for filing a representation and the petitioner had submitted an elaborate representation stating that the inquiry report has failed to understand the burden of proof in respect of proving the allegations. It had been further asserted by the said representation that Sri D.K.Chakma, P.W.1 is merely a hearsay witness. Moreover, the preliminary inquiry report of Mr. D. Sircar, which has been marked as Exbt. P/1 and other documents have been accepted in the evidence without giving any opportunity to cross examine the authors of those documents. Thus, denial of the natural justice and violation of Rule 14(4) of the CCS(CCA) Rules has been succinctly pleaded. Notwithstanding such pleas raised by the petitioner, the Disciplinary Authority passed the final order dated 29.07.2013 [Annexure-P/12 to the writ petition] by imposing penalty of withholding three increments without cumulative effect.
6. Being aggrieved by the said final order dated 29.07.2013, [Annexure-P/12 to the writ petition] the petitioner preferred an appeal on 12.09.2013 under Rule 23(ii) of the WP(C) 180 OF 2014 Page 4 of 11 5 CCS(CCA) Rules,1965 reiterating grounds as raised in the representation and further stating that the final order dated 29.07.2013 is uncalled for inasmuch as there is no foundation of evidence and he was entitled to exoneration from the charges. However, by the order dated 13.03.2014 [Annexure-P/15 to the writ petition] the appellate authority dismissed the appeal on affirmance of the final order dated 29.07.2013.
7. Mr. Deb, learned Sr. counsel appearing for the petitioner has at the threshold submitted broadly that there is no evidence at all against the petitioner and thereafter he has referred that in the Memorandum dated 09.03.2011 only one witness namely Mr. D.K. Chakma, SDM, Kanchanpur was cited as the witness under Annexure-IV. Even though under Annexure-III the inquiry reports of the Principal Secretary, Revenue Department, Govt. of Tripura under No.F.2(5)-/PS/REV/2009/27 dated 02-03-
2009 along with its enclosures, the inquiry report of Sri D.K.Chakma, SDM, Kanchanpur vide
No.F.3(44)/SDM/KCP/CON/09/1001 dated 05-11-2009, the supply order issued by the SDM, Kanchanpur under No.F.2782- 87/F.6(3)/SDM/KCP/RR/2007 dated 06-05-2008 to the Managing Director, Krishak Mangal LAMPS, Kanchanpur, the show-cause memorandum in respect of Sri Smritimay Nath under No.F.12(43)/DP/DNE/09/12,085-87 dated 01-12-2009 issued by the DM & Collector, North Tripura and the reply of show-cause submitted by Sri Smritimay Nath, Block-in-charge were relied but except Mr. D.K. Chakma, SDM, Kanchanpur none was cited as the witness and nor even called in the Inquiry proceeding. Despite that WP(C) 180 OF 2014 Page 5 of 11 6 those reports are marked as the admitted documents in complete and gross disregard to the Rule 14(ii) of the CCS(CCA) Rules, 1965.
Mr. Deb, learned Sr. counsel has further submitted that from the deposition of Mr. D.K.Chakma, P.W.1 it would be apparent that he has not invested a single word against the petitioner by involving him with the alleged dereliction or negligence in the duty. Therefore, this final order is absolutely based on no evidence and it is liable to be set aside and quashed.
8. On the other side, Mr. J. Majumder, learned counsel submitted that the petitioner did not raise any objection while admitting the preliminary inquiry report of the Principal Secretary, Revenue Department which is based on the report of one Mr. Amiya Bhusan Das, Audit Officer. However, the report of Mr. Das has not been relied on in the list of documents at Annexure III to the said memorandum dated 09.03.2011. Mr. Majumder has further submitted that when there was supply of misbranded articles [chappals] and there was no inquiry and supervision by the authorities. The dereliction of the duty is manifest on the face of the records.
9. While appreciating the submissions advanced by the learned counsel for the parties, this court has scrutinized the above mentioned documents/records produced with the writ petition as well as the reply filed by the respondents.
10. In Para 21 of the reply filed by the respondents it has been stated that all procedural requirement has been made and WP(C) 180 OF 2014 Page 6 of 11 7 the inquiry report of Mr. D. Sircar, Principal Secretary, Revenue Department was admitted into evidence without any objection from the side of the petitioner. But in this regard, Mr. Deb, learned Sr. counsel has submitted that the documents were never formally admitted but on the basis of the representation made by the Presenting Officer those documents were admitted by the Inquiring Authority. Therefore, there was no occasion to raise any objection in respect of admission of those documents but in the representation filed on receipt of the inquiry report, the petitioner has categorically asserted that he had no occasion to raise any objection in respect of admission of that report.
11. To prove the charges, the Presenting Officer had only examined Sri D.K.Chakma (P.W.1). The said witness has stated in the inquiry proceeding that he took charge as the SDM, Kanchanpur in February, 2009 and received a letter from the Additional District Magistrate in October, 2009 informing him about an inquiry report in connection with irregularities of procurement of Hawai chappals for the Reang migrants camp. He was asked to take follow up action in this regard. He has further stated that before his taking over the charge of SDM, Sri Debasis Sircar, Principal Secretary inquired into the irregularities in procuring Hawai chappals for the migrant camp. A copy of that report was also enclosed with the said letter of the Additional District Magistrate. Thereafter, he had appreciated the report and communicated the factual position to the D.M. It is to be noted here that what he had communicated, he has not disclosed in the inquiry proceeding. But he has categorically stated as follows: WP(C) 180 OF 2014 Page 7 of 11 8
"...The Hawai chappals were received by Sri K.M. Reang, Tribal Welfare Extension Officer. Subsequently, he was asked to record the chappals in the record register as per delivery challan signed by Sri K.M.Reang, TW Extension Officer. Before entering the stock in Stock Register he physically enquired the stock and found that the chappals were with Khadim sticker pasted but not engraved on the body. Having seen it and before taking any action he consulted with the branch officer Smti L. Darlong who said him that the matter will be discussed later. Thereafter, after one week, one Sri Dhabla Mohan Tripura, Treasury accountant asked him to record the supply in the stock register as the concerned bill will have to be passed on the same day urgently. He could not defend himself from the pressure of Sri Tripura, Accountant as he is a low graded temporary employee and compelled to make the entry in the stock register..."
12. P.W.1, Sri D.K.Chakma introduced the "inquiry report"
of the Principal Secretary, Revenue Department as Exbt.P(1). The said Inquiry report was dealing with the Reang migrants. The action taken report, Exbt.P(2) and the reply to the Memorandum No.F.112(43)/DP/DWE/09 by Sri Smritimoy Nath, Store Incharge as Exbt P(3)" were also introduced by him, though had no knowledge of their framing.
13. In the cross examination, he has disclosed in the inquiry proceeding that in the bill so submitted, the name of the brand was not mentioned though those were mentioned in the supply order. Store keeper one Smritimoy Nath has also disclosed to P.W.1 that he entered the materials in the stock register but did not mention the brand. The said Store Keeper has stated that he WP(C) 180 OF 2014 Page 8 of 11 9 and one Sri Karnamani Reang, Dealing Assistant of Relief Section were asked to clarify on this issue and the Dealing Assistant replied that there were sticker 'Khadim' pasted in each pair of chappal and he had received those after proper verification. He has categorically stated in the cross examination as under:
"Nobody has reported me about irregularities of supply separately other than the report that I have received.
During the visit of Principal Secretary, Revenue I was not in the post and as such this is beyond my knowledge. However, the report told that he visited the Naising Para camp only.
Yes, there is an incident of fire accident at Naising Para camp on 17/02/09 and the Principal Secretary (Revenue) visited the Naising Para camp thereafter on 21/02/09.
Altogether 29,546 pairs of hawai chappals were supplied to the camp inmates and out of that as a token 5 to 6 pair of hawai chappals were physically inspected at the time of inspection.
In my report I mentioned that further enquiry may be conducted on this particular issue. But subsequent field inquiry was not conducted."
14. After reading the testimony of Sri D.K.Chakma, P.W.1 this Court does not find any indication to any kind of misconduct of the petitioner. Moreover, he has categorically stated that the documents which he had exhibited, he does not have any knowledge how those were prepared. But in the inquiry report the Inquiring Authority has strangely observed that the petitioner did not take any action to monitor or verify the stock of hawai chappals before receiving the stock from the suppliers and making payment for such supply and for such dereliction, the suppliers could supply WP(C) 180 OF 2014 Page 9 of 11 10 the substandard chappals and get the bills passed from the treasury. This view is entirely contrary to the evidence.
15. Further, the Inquiring Authority has observed that at the time of admitting the inquiry report, the delinquent officer did not ask for presence of Mr. D. Sircar, the Principal Secretary (Revenue) and Sri Smritimoy Nath the Store Keeper as the defence witnesses (D.Ws). This observation emanates for misconstruction of law. It is the burden of the Presenting Officer as engaged by the Disciplinary Authority to call the appropriate person to prove the relevant document in the proceeding so that the delinquent officer gets an opportunity to cross examine him about the content and about the process of making the report. But in this case the burden was shifted to the petitioner. Hence, there cannot be any amount of hesitation to hold that the finding of guilt as returned by the Inquiring Authority is not based on tenable evidence at all. This inference is unfounded and is the end product of highly irregular admission of certain documents and hence, the final order passed on affirming the said inquiry report is vitiated and it cannot be saved and accordingly, the same is quashed and set aside.
16. Consequently, the order passed by the Appellate Authority stands quashed.
The respondents are directed to refund the deducted increments in terms of the order dated 29.07.2013 [Annexure-P/12 to the writ petition] within a period of 3(three) months from today. WP(C) 180 OF 2014 Page 10 of 11 11
If for the final order dated 29.07.2013 the petitioner had not been considered for promotion to the higher grade, the respondent shall form a review DPC and reconsider the matter within a period of 6(six) month from the day when the petitioner shall submit a copy of this judgment.
The writ petition accordingly stands allowed. There shall be no costs.
JUDGE WP(C) 180 OF 2014 Page 11 of 11