WP(C)/1347/2016 of BHABATOSH CH. DEY Vs THE STATE OF TRIPURA and ORS on 21 December 2017

��������������������������������������������������������Sri Bhabatosh Chandra Dey, son of late Bhupesh Chandra Dey, Village & P.O. Chandipur, Kailashahar, Unakoti Tripura, Pin:799277 ………Petitioner - V E R S U S – 1. The State of Tripura, to be represented by the Principal Secretary, GA (AR) Department, Govt. of Tripura, New Secretariat Complex, P.O. Kunjaban, Agartala, West Tripura, Pin: 799006 2. Tripura Rehabilitation and Plantation Corporation Ltd., a Govt. of Tripura Undertaking, represented by its Managing Director, TRPC Ltd., Pandit Neheru Complex, Gurkhabasti, P.O. Kunjaban, Agartala, District: West Tripura, Pin: 799006 3. The Managing Director, Tripura Rehabilitation and Plantation Corporation Ltd., a Govt. of Tripura Undertaking, represented by its Managing Director, TRPC Ltd., Pandit Neheru Complex, Gurkhabasti, P.O. Kunjaban, Agartala, District: West Tripura, Pin: 799006 4. The Director, TRP & PTG Department, Govt. of Tripura, Pandit Neheru Complex, Gurkhabasti, P.O. Kunjaban, Agartala, District: West Tripura, Pin: 799006 5. The Principal Chief Conservator of Forest, Govt. of Tripura, Aryanya Bhavan, Pandit Neheru Complex, Gurkhabasti, P.O. Kunjaban, Agartala, District: West Tripura, Pin: 799006 6. The Employee Provident Fund Organization, to be represented by Asst. PF Commissioner,o/O the Employee Provident Fund Organization, Airport Road, near Bholagiri Ashram, Gorkhabasti, P.O. Kathal Bagan, Agartala, West Tripura, Pin: 799006 7. The Regional PF Commissioner, Sub-Regional Office, O/O the Employee Provident Fund Organization, Airport Road, near Bholagiri Ashram, Gorkhabasti, P.O. Kathal Bagan, Agartala, West Tripura, Pin: 799006 8. The Asst.PF Commissioner (Pension), O/O the Employee Provident Fund Organization, Airport Road, near Bholagiri Ashram, Gorkhabasti, P.O. Kathal Bagan, Agartala, West Tripura, Pin: 799006

RBEFORETHE HON>DLE MR. JUSTICE 8. TALAPATRA

For the petitioner: Mr. S. Bhattacharjee, Advocate|For the respondents No. 1,4-5 : Mr. G.S. Bhattacharjee, AdvocateFor the respondent No. 2-3 : Mr. P. hk. Pal, AdvocateFor the respondents No.6-8 : Mr. 8S. Debnath, AdvocateDate ofhearing & deliveryofjudgment and order: 91.19.2017)Whether fit for reporting |> NO

JudgmentandUrder (Ural)

Heard Mr. S. Bhattacharjee, learned counsel appearing for.the petitioner as well Mr. G. 8S. Bhattacharjee, learned counsel appearingfor the respondents No. 1, 4 and 5. Also heard Mr. P. Kh. Pal, learnedcounsel appearing tor the respondents No. 2 and 3 whereas Mr. S.Debnath, learned counsel appearing for the respondents No. 6, 7 and 8.

[2|The petitioner who was working as the Field Supervisor,under the [Tripura Rehabilitation Plantation Corporation Ltd., (TRPCLin short) and he has admittedly retired from the service onsuperannuation on attaining the age of 60 years on 30.04.2016. In this”regard, there 1s no dispute. [he grievance of the petitioner is that duringhis incumbency one disciplinary proceeding was drawn up by thememorandum dated 04.12.2010 (Annexure-P/4 to the writ petition) onthe following charges:

6ARTICLEi

That Shri Parendra Debbarma, TFS while functioning as Deputy Manager, TRPCL, North Zone, Kumarghat during|13.09.2006 to 27.07.2009 and Shri Bhabatosh Chandra Dey,|Field Supervisor, while functioning as Officer-in-Charge,|Purba Dalubari RPC during 26.11.2004 to 27.06.2009 were|prima facie jointly involved in irregular transfer and|misappropriation of funds from bank accounts of TRPCL, andthe said Shri Debbarma, TFS and the said Shri Dey, Field|

Supervisor are, therefore, jointly charged for misappropriationof Rs. 18,16,000/- (Rupees eighteen lakhs and_ sixteenthousand) of T'RPCL funds for their personal gain, tamperingot records with mala tide intention.

By their acts, the said Shri Debbarma and Shri Dey jointly|failed to maintain absolute integrity and devotion to duties|and acted in a manner unbecoming of a Government servant.|Thus, Shri Debbarma and Shri Dey voilated the provision ofRule 3(1) of the Tripura Civil Service (Conduct) Rules, 1988.

ARTICLEoi

That Shri Parendra Debbarma, TFS while functioning as Deputy Manager, TRPCL, North Zone, humarghat during|13.09.2006 to 27.07.2009 made part payment of Ks.|33,00,000/- (Rupees thirty three lakhs) contrary to specify|order of the competent authority for full disbursement of the|entire compensation of Ks. 51,16,314/- to four TRPCL|beneficlaries.

By this act, the said Shri Debbarma failed to maintain|absolute integrity and devotion of the duties and acted In a|manner unbecoming of a Government servant. Thus, Shri}Debbarma violate the provision of Rule 3(1) of the Tripura|Civil Services (Conduct) Rules, 1988.

ARTICLELI]

That Shri Parendra Debbarma, TFS while functioning as Deputy Manager, TRPCL, North Zone, Kumarghat during|13.09.2006 to 27.07.2009 organized civil construction works|without approval and expenditure sanction from_ thecompetent authority, and the said Shri Debbarma, TF’ 1s,|therefore, charged for gross financial irregularities and|unauthorized expenditure thereby of Rs. 5,53,972/- (Rupees|five lakhs fifty three thousand nine hundred seventy two only),arbitrary action, gross financial irregularities.

By this act, the said Shri Debbarma failed to maintain|absolute integrity and devotion of the duties and acted in a}manner unbecoming of a Government servant. Thus, Shri}Debbarma violate the provision of Rule 3(1) of the Tripura|Civil Services (Conduct) Rules, 1988.

ARTICLEVi

That Shri Parendra Debbarma, TFS while functioning as Deputy Manager, TRPCL, North Zone, humarghat during|13.09.2006To|29°7.07.200organizedengagementotSupervisory Assistants on daily wages without approval and|expenditure sanction from the competent authority, and the|said Shri Debbarma, TFS is, therefore, charged for}unauthorized expenditure thereby of Rs. 1,78,528/- (Rupees|one lakh seventy eight thousand five hundred twenty eight|only), gross financial irregularities.

By this act, the said Shri Debbarma failed to maintain|absolute integrity and devotion of the duties and acted in a|

manner unbecoming of a Government servant. Thus, Shri}Debbarma violate the provision of Rule 3(1) of the Tripura|Civil Services (Conduct) Rules, 1988.”

[3|From reading of the said article of charges it appears thatonly the Article-I 1s relevant for the petitioner. The said memorandum|surprisingly has been issued by the Principal Secretary to the Govt. of‘Tripura, General Administration (AR) Department. he petitioner wasnot holding any civil post within the meaning of Article-311(2) of theConstitution of India as he was an employee of the Public Sector Unit:called ‘Tripura Rehabilitation and Plantation Corporation Ltd.

[ 4:True it 1s that the said Principal Secretary does not haveany control over the services of the petitioner. Against him thosecharges were brought, as contained in Article-I. When the authoritywho does not have any control whether as the appointing authority orby any other means over the services of any employee can draw suchdisciplinary proceeding? The answer must be in the negative.

Conclusion

[5|When this question was projected to Mr. G. 58.Bhattacharjee, learned counsel appearing for the respondents No. 1, 4and 5, he has fairly submitted that the said Principal Secretary does nothave any authority to draw the said disciplinary proceeding against thepetitioner. In view of this the disciplinary proceeding as drawn by thememorandum dated 04.12.2010 (Annexure-P/4 to the writ petition) sofar the petitioner 1s concerned, 1s absolutely without authority and illegaland it cannot stand the scrutiny of law. As such, this memorandum|stands quashed so tar the petitioner 1s concerned.

6|For pendency of the sald disciplinary proceeding, thecommunication dated 11.02.2016 (Annexure- P/8 to the writ petition)had been issued by withholding the pension of the petitioner after his"retirement. This 1s a consequential order based on an illegal proceedingdrawn by the said Principal Secretary and as such, the decision containedin the said communication dated 11.02.2016 (Annexure-P/8 to the writpetition) stands quashed.|

[7|Mr. S. Bhattacharjee, learned counsel appearing for thepetitioner has pointed out that earlier the Managing Director of TRPCLwas creating obstruction in en-cashing one National Saving Certificate(in short NSC) for Rs. 1,000/- which was purchased by the petitioner.But in Para-18 of the reply ted by the corporation-respondents, havedeclared that the petitioner will be at liberty to en-cash.

[8|Mr. 5S. Debnath, learned counsel appearing for therespondents No. 6, 7 and 8 has submitted that the pension of thepetitioner cannot be released unless the Form No. 10-D and Form -19 1s"properly torwarded to the EPF Commissioner. In their reply, therespondents No. 6, 7 and 8 has submitted that any amount of PFstanding at the credit of a member and any benetit provided under the)EPF scheme shall not be hable to attachment under any decree or byCourt's order under Section-10 of the EPF & MP Act, 1952. —

[9|The petitioner may be advised to submit the claim formthrough his ex-employer to obtain both the benefit under the Act. Since the disciplinary proceeding has been interfered with and quashed by this:Court, the respondents No. 2 and 3 are directed to send the Form No.10-D and Form - 19 under the EFP and MP Act, 1952 within a period ofone month from the day of receiving a copy of this order. On receipt ofsuch form the respondents No. 6, 7 and 8 shall release the financialbenefits including the pension to the petitioner as per entitlement within|3(three) months thereafter.

With these observations and directions, this writ petition:stands allowed to the extent as indicated above. [here shall be no order.as To costs.

JUDGE

AGhosh