WRIT PETITION 421/2012 on 29 May 2002

Conclusion

The instant writ petition is filed by the petitioner, a member of the Tripura State Rifles for quashing the order of punishment dated 21.08.2012(Anenxure-10 to the writ petition). Heard Mr. KN Bhattacharjee, learned senior counsel assisted by Mr. S Acharjee, learned counsel for thepetitioner as well as Mr. S Chakraborty, learned Addl. GA for the State respondents. As agreed to by the learned counsel for the parties, theinstant writ petition is taken up for final disposal at the order stage. Brief facts needed to be discussed are as follows:- That the petitioner hasbeen serving in the Tripura State Rifles (for short, “TSR”) since 1997 and is now holding the rank of Nayek in the 7th Bn of TSR. While thepetitioner was performing his duties on 29th May, 2002 he was attacked by the extremists at Gandacherra under Manu PS and both his earshave been badly damaged. Since then he has been undergoing continuous treatment for various complication out of the said injury andconsidering this the authority posted him at GB Post at Medical Assistant in the year 2010. On 23rd February, 2012 the respondent No. 3,issued a memorandum proposing to hold inquiry against the petitioner on the following charges:- “Article-I That the said No. 97040859NK(M/A) Nakul Chandra Das of ‘Adm’ Copy, 7th Bn TSR (IR-VI) while deployed at GB Post, 7th Bn TSR (IR-VI) was commanded on 04-02-2012 at2030 hrs by the In-Charge, GB post to report to Bn HQr, Jampuijala, but did not carry out the lawful order and thereby committed a grossmisconduct under section 12(1) of TSR Act, 1983. Article-II That the said No. 97040859NK (M/A) Nakul Chandra Das of ‘Adm’ Copy, 7th BnTSR (IR-VI) while deployed at GB Post, 7th Bn TSR (IR-VI) remained absent from duty un-authorisedly wef 04-02-2012 at 2030 hrs till the dateof issue of this memorandum of charge and thereby committed an gross misconduct under section 12(1) of TSR Act, 1983.” The petitioner filedwritten statement of defence on 29.02.2012 (Anenxure-7 to the writ petition). The inquiring officer who considered his written statementsubmitted his report on 11.03.2012 and held that the charges were not proved. But a second inquiry was held which the petitioner could notparticipate with his defence assistant because of his illness and undergoing medical treatment but without considering this aspect, the secondInquiring Officer submitted his report on 23rd July, 2012 (Anenxure-9 to the writ petition) holding that the charges were proved. Upon receiptof the inquiry report, the respondent No. 3 passed the provisional punishment order dated 21.08.2012 wherein the disciplinary authority,Commandant 7th Bn TSR stated, inter alia, that “I concur with the findings of the Enquiry Officer. The Charged official did not carry out thelawful order of the In-Charge, GB Post, 7th Bn TSR on 04-02-2012 at 2030 hrs to report to Bn HQr Jampuijala and remained absent from dutyunauthorisedly wef 04-02-2012 at 2030 hrs to till the date of issue of this provisional punishment order unauthorisedly is against discipline ofthe Rifles. He is not a fit person to be retained in service. Accordingly, the undersigned has decided to impose the major penalty of ‘dismissal’from service under section 12(1)(j) of TSR Act, 1983 upon No. 97040859 NK(M/A) Nakul Chandra Das of ‘Adm” Coy, 7th Bn TSR (IR-VI) andasked the petitioner to submit representation on the above proposed penalty. As according to the petitioner, the impugned order dated21.08.2012 is not a provisional punishment order but a final one, the petitioner has filed the instant writ petition with the prayer as statedsupra. The State respondents by way of filing their counter affidavit denied the contention of the petitioner that the impugned order dated21.08.2012 is not a provisional punishment order rather a final dismissal order. It is also contended in the counter affidavit that in a matter ofdisciplinary proceeding the Court normally should not interfere with the order of punishment unless the punishment is dis-proportionate andshocking one

. 97040859 NK(M/A) Nakul Chandra Das of ‘Adm” Coy, 7th Bn TSR (IR-VI) andasked the petitioner to submit representation on the above proposed penalty. As according to the petitioner, the impugned order dated21.08.2012 is not a provisional punishment order but a final one, the petitioner has filed the instant writ petition with the prayer as statedsupra. The State respondents by way of filing their counter affidavit denied the contention of the petitioner that the impugned order dated21.08.2012 is not a provisional punishment order rather a final dismissal order. It is also contended in the counter affidavit that in a matter ofdisciplinary proceeding the Court normally should not interfere with the order of punishment unless the punishment is dis-proportionate andshocking one. In the instant case, the petitioner even before completion of the disciplinary proceeding approached this Court. Thus on thatcount alone the writ petition is not maintainable. It is also stated that the petitioner has applied for sanction of 30 days commuted leave w.e.f.01.02.2012 which was not considered by the competent leave sanctioning authority. It is also stated in the counter affidavit that the petitionerwas directed to report for duty at Bn HQr, Jampuijala on 04.02.2012 at 2030 hrs but the petitioner did not report for duty and remained absentwithout any intimation to the competent authority. Mr. Bhattacharjee, learned senior counsel while urging for the relief sought for wouldcontend that the provisional punishment order is actually the final punishment order, thus question of filing any representation in view of thealleged provisional punishment order would in no way help the petitioner as normally when an authority takes a decision they do not retractfrom the said decision even if a representation is submitted by the delinquent employee. In support of his aforesaid contention he has placedreliance on a decision of the Apex Court in HL Trehan Vs. Union of India and Ors., AIR 1989 SC 568, wherein the Apex Court noted that “theview that has been taken by this Court in the above observation is that once a decision has been taken, there a tendency to uphold it and arepresentation may not yield any fruitful purpose. Thus, even if any hearing was given to the employees of CORIL after the issuance of theimpugned circular, that would not be any compliance with the rules of natural justice or avoid the mischief of arbitrariness as contemplated byArticle 14 of the Constitution”. He further submits that in the departmental inquiry the petitioner was not provided any defence assistancethough he is entitled to such assistance in accordance with law. Thus, the entire departmental proceeding is vitiated due to non-compliance ofprinciples of natural justice. Per contra, Mr. Chakraborty while supporting the impugned order of provisional punishment would contend thatunless a decision has been taken regarding the nature of punishment, the disciplinary authority cannot ask the delinquent officer to giverepresentation against such proposed punishment. In the instant case, very rightly the authority concerned has taken the decision forimposing the penalty of dismissal from service and provided an opportunity to the petitioner for making representation on the said proposedpenalty. He further submits that it would be improper to come to conclusion that once the disciplinary authority takes a decision for awardingpunishment to be imposed, it would not change its mind upon perusal of representation, if any filed. He also submits that the decision reliedupon by the learned counsel for the petitioner in HL Trehan (supra) would in no way help the petitioner as the fact of that case is totallydifferent than the case in hand. In that case, under Section 3 of the Act, the shares in the capital of the CORIL stood transferred to and vestedin the Central Government on the appointed day being December 30, 1976

. He further submits that it would be improper to come to conclusion that once the disciplinary authority takes a decision for awardingpunishment to be imposed, it would not change its mind upon perusal of representation, if any filed. He also submits that the decision reliedupon by the learned counsel for the petitioner in HL Trehan (supra) would in no way help the petitioner as the fact of that case is totallydifferent than the case in hand. In that case, under Section 3 of the Act, the shares in the capital of the CORIL stood transferred to and vestedin the Central Government on the appointed day being December 30, 1976. Under Section 5, the right, title and interest of Caltex (India) Ltd.in relation to its Undertakings in India stood transferred to and vested in the Central Government on the appointed day. Section 9 of the Actprovides that the Central Government may by a notification direct that the right, title and interest and the liabilities of Caltex (India) Ltd. inrelation to any of the its Undertakings in India shall, instead of continuing to vest in the Central Government, vest in the Government Companyeither on the date of the notification or on such earlier or later date not being a date earlier than the appointed day, as may be specified in thenotification, and considering the aforesaid fact the Apex Court said that once a decision is taken then there is a tendency to uphold it, and thatcase is not a case relating to disciplinary proceeding. Thus, that decision has no direct bearing with the instant case. He further submits thatthe petitioner was allowed to join in his duties after granting his prayer for commuted leave and in support of his aforesaid contention heplaced reliance on a letter dated 10th September, 2012 issued to the present petitioner by the Adjutant to the Commandant but the petitionerdid not join to his duties. He finally contended that from the aforesaid letter dated 10th September, 2012 it can be easily held that theimpugned order dated 21.08.2012 is a provisional order and not a final order. Having heard the learned counsel for the parties andconsidering the relevant pleadings as available, this Court is of the considered opinion that the petitioner misunderstood the impugned orderdated 21.08.2012 (Annexure-7 to the writ petition) wherein after taking the decision for imposing penalty of dismissal, the petitioner wasasked to submit his representation on the proposed penalty. Unless a decision has been taken regarding the nature of penalty to be imposedhow the authority would ask the delinquent employee to make a representation on the said proposed penalty. Thus, it cannot be said that theprovisional punishment order is virtually a final order of punishment. If a writ petition is filed for quashing the provisional order of punishmentbefore passing the final order by the disciplinary authority then the statutory provisions of preferring appeal in the statute would befrustrated. It is also the admitted position that if a final order is passed by the disciplinary authority the said order is appealable and if thedelinquent officer is aggrieved by that order, he can easily approach the said appellate authority. In the instant case, the petitioner beforepassing of the final order by the disciplinary authority approached this court even when he was asked to join in his duty on the basis of hisapplication. When a person is asked to join in his duty, it cannot be said that final decision for dismissal has been taken by the authority. In theinstant case the disciplinary authority has yet not taken any final decision regarding the punishment for the misconduct committed by thepetitioner. This Court hopes and trusts that if the petitioner submits a representation in terms of the order dated 21.08.2012, the disciplinaryauthority will consider the same on its merit and pass order in accordance with law after providing the petitioner all opportunity he is entitledto. As the impugned order is an order of provisional punishment, it is not necessary to interfere with the said order

. When a person is asked to join in his duty, it cannot be said that final decision for dismissal has been taken by the authority. In theinstant case the disciplinary authority has yet not taken any final decision regarding the punishment for the misconduct committed by thepetitioner. This Court hopes and trusts that if the petitioner submits a representation in terms of the order dated 21.08.2012, the disciplinaryauthority will consider the same on its merit and pass order in accordance with law after providing the petitioner all opportunity he is entitledto. As the impugned order is an order of provisional punishment, it is not necessary to interfere with the said order. In view of the above, thepetitioner is directed to immediately report to the Adjutant for the Commandant, in terms of the order dated 10th September, 2012 andthereafter at his Bn HQr and the respondents are also directed to accept the petitioner’s joining as well as representation, if any filed, and takedecision on his representation after providing him a personal hearing. In view of the above, the instant writ petition is disposed of.