Smti. Sabita Debbarma vs The State Of Tripura
2021 Latest Caselaw 765 Tri

                                  Page 1 of 14




                        HIGH COURT OF TRIPURA
                              AGARTALA
                           WP(C) No.237/2021
Smti. Sabita Debbarma, D/o. Late Kalidas Debbarma, Krishnanagar,
Thakurpalli Road, P.S.-West Agartala, District-West Tripura.
                                                           ----Petitioner(s)
                                    Versus
1. The State of Tripura, To be represented by the Principal Secretary,
Department of Education(School), Govt. of Tripura, Agartala, New
Secretariat Building, Kunjaban, P.S. - New Capital Complex, Agartala, West
Tripura, PIN 799010.
2. The Secretary, Department of Education (School), Govt. of Tripura,
Agartala, New Secretariat Building, Kunjaban, P.S - New Capital Complex,
Agartala, West Tripura, PIN 799010.
3. The Director, Department of Education (School), (Siksha Bhavan), Govt.
of Tripura, Office Lane, Agartala, West Tripura, PIN 799001.
4. The Deputy Director, Department of Education (School), (Siksha
Bhavan), Govt. of Tripura, Office Lane, Agartala, West Tripura, PIN
799001.
5.The Commissioner, Department of Inquiries, Govt. of Tripura, PN
Complex, Gurkhabasti, Agartala, West Tripura.
                                                  -----Respondent(s)

For Petitioner(s) : Mr. P. Roy Barman, Sr. Advocate, Mr. Samarjit Bhattacharjee, Advocate.

For Respondent(s)                 : Mr. H. Sarkar, Advocate.

       HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI

      Date of hearing                   : 09th July, 2021.
      Date of judgment                  : 12th August, 2021.

      Whether fit for reporting         : Yes.





                         JUDGMENT & ORDER

Petitioner has challenged a memorandum dated 12.06.2020

issued by the Secretary, Government of Tripura by which a departmental

inquiry has been instituted against her. The charge leveled in the said

memorandum is that the petitioner while serving as Upper Division Clerk in

the Education department got the benefit of promotion to the post of Head

Clerk as a Scheduled Tribe candidate being a member of Laskar community

illegally by way of concealment of her actual caste status. It was alleged that

the caste certificate dated 29.03.1976 issued in her favour was subsequently

cancelled by the State Level Scrutiny Committee (SLSC, for short) by an

order dated 07.11.2005 on the ground that she belongs to Laskar

community.

2. Brief facts are as under:

The petitioner was appointed as a Lower Division Clerk in the

Education department, Government of Tripura on 06.11.1981. She was

promoted to the post of Upper Division Clerk by order dated 07.10.1987.

She was then promoted to the post of Head Clerk by order dated 20.01.1994.

In the year 2000 the department asked the petitioner to supply her caste

certificate for verification. On 17.12.2004 SLSC issued a show-cause notice

to the petitioner why her Scheduled Tribe certificate should not be cancelled

on the ground of suppression of facts. It was alleged that she belonged to

Laskar community and had obtained ST certificate by misrepresentation.

The petitioner refuted such allegations by filing a reply. The SLSC passed

order on 07.11.2005 cancelling the petitioner's ST certificate which the

petitioner challenged by filing WP(C) No.94 of 2006 before High Court of

Tripura. The learned Single Judge by common judgment dated 25.11.2013

disposed of the said petition along with bunch of similar petitions and set

aside the order of SLSC. The State of Tripura preferred appeals being W.A.

No.09 of 2014 and others. The Division Bench decided these appeals by a

common judgment dated 16.07.2015. The view of the learned Single Judge

that the order of SLSC was required to be set aside was confirmed.

However, with respect to the decision of learned Judge that the matter

should not be remanded to SLSC, the Division Bench differed.

Consequently, the appeals of the State were allowed partially and all

proceedings were remanded to SLSC for fresh disposal. The petitioners

would be allowed to cross-examine the witnesses examined by the Inquiry

Officer and they would also be allowed to examine their own witnesses.

3. SLSC thereupon passed fresh order in case of the petitioner on

31.05.2016 again cancelling the ST certificate of the petitioner. Petitioner

filed a fresh petition being WP(C) No.1070 of 2016 challenging the said

order of the SLSC and prayed for the stay of the implementation of the

order. The Single Judge dismissed the petition on 31.10.2017 along with

other similar petitions. Though many other petitioners filed writ appeals

against the said judgment of the Single Judge, the petitioner did not. The

judgment of the Single Judge thus achieved finality. In the meantime, the

petitioner retired on superannuation w.e.f. 30.09.2016.

4. It is in this background that the department has issued the

impugned charge-sheet. The sole ground on which this charge-sheet is

challenged is that the allegations relate to an incident which took place 4

years prior to the date of institution of the departmental proceedings and,

therefore, in terms of Rule 9 of CCS (Pension) Rules as adopted by the State

of Tripura the disciplinary authority does not have jurisdiction to initiate the

departmental proceedings.

5. Learned senior counsel Mr. P. Roy Barman for the petitioner

referred to Rule 9(2) of CCS (Pension) Rules and contended that no inquiry

against the retired employee would be instituted in respect of any event

which took place more than 4 years before such institution. He submitted

that the allegations contained in the charge-sheet referred to the petitioner's

promotions which took place many years back. It also refers to the order of

cancellation of the caste certificate by the SLSC on 07.11.2005. Thus all

events which the department wishes to rely upon in the charge-sheet had

taken place several decades before issuance of the charge-sheet and,

therefore, the institution of the inquiry is bad in law.

6. In support of his contentions, counsel relied on following

decisions:

(i) In case of State of U.P. and another vrs. Shri Krishna

Pandey, reported in (1996) 9 SCC 395 in which after referring to Regulation

351-A of Civil Services Regulations which contained provisions pari

materia to Rule 9 of CCS (Pension) Rules, the Supreme Court held that the

departmental inquiry for embezzlement which was initiated more than 4

years after the delinquent was allowed to retire on superannuation was

incompetent.

(ii) In case of Brajendra Singh Yambem vrs. Union of India

& another reported in (2016) 9 SCC 20 in which the provisions to Rule 9(2)

came up for consideration. Finding that the inquiry against the retired

employee was instituted in relation to event which took place more than 4

years before the institution, the proceedings were quashed.

(iii) The decision in case of Baljit Singh Handa vrs. Punjab

& Sind Bank reported in 2021 SCC OnLine Del 653 was cited in the

context of the interpretation of the term "any event" used in sub-clause (ii)

of clause (b) of sub-rule (2) of Rule 9 of CCS (Pension) Rules. The Court

referred to number of decisions of the High Courts and Supreme Court and

quashed the proceedings observing that any procedure like issuance of

show-cause notice to the petitioners seeking the reply and to follow the

procedures to declare the accounts NPA will not extend the limitation.

7. On the other hand, learned Government counsel Mr. H. Sarkar

opposed the petition contending that the question of validity of the caste

certificate of the petitioner was finalized only in the year 2017 when the

High Court dismissed the petition against the decision of SLSC to cancel the

same. All throughout, the petitioner was resorting to one remedy after

another resisting the cancellation of caste certificate. Only after the caste

certificate was cancelled by the SLSC and the challenge of the petitioner

against such cancellation was turned down by the High Court the

Government could have instituted the departmental proceedings. The period

of 4 years must, therefore, be reckoned from such date.

8. Relevant portion of the Rule 9 of CCS (Pension) Rules reads

as under:

"9. Right of President to withhold or withdraw pension

(1) The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity 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 the period of service, including service rendered upon re-employment after retirement :

Provided that the Union 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 pensions shall not be reduced below the amount of Rupees Three thousand five hundred per mensem.

(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 proceedings 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 President, that authority shall submit a report recording its findings to the President.

(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 President,

(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 President 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."

9. As per this Rule thus the Government has power to withhold

pension or gratuity or both if in any departmental or judicial proceedings the

pensioner is found to be guilty of grave misconduct or negligence during the

period of service. Clause (a) of sub-rule (2) provides that the departmental

proceedings if instituted while the Government servant was in service shall

after the retirement be deemed to be proceedings under the said rule and

shall be continued and concluded by the authority in the same manner as if

the Government servant had continued in service. Clause (b) of sub-rule (2)

which is of importance for us provides that the departmental proceedings if

not instituted while the Government servant was in service, (i) shall not be

instituted save with the sanction of the President, (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 as may be directed.

10. This rule has to be appreciated and interpreted in facts of the

case which are, that the petitioner claimed to belong to ST (Tripuri Laskar)

category. Upon scrutiny, SLSC found that such claim was incorrect and,

therefore, passed an order on 07.11.2005 cancelling the certificate. Petitioner

challenged this order in WP(C) No.94 of 2006. Pending such petition the

Court had granted stay against implementation of the cancellation order of

SLSC. This petition was disposed of by the Single Judge on 25.11.2013. The

order of SLSC was set aside. The appeal filed by the State Government was

allowed by the Division Bench partially by a judgment dated 16.07.2015.

Cancellation of the order of SLSC was upheld but the proceedings were

remanded for fresh disposal. SLSC passed fresh order on 31.05.2016 once

again cancelling the certificate of the petitioner which the petitioner

challenged by filing a fresh petition being WP(C) No.1070 of 2016 which

was dismissed on 31.10.2017.

11. Before focusing on interpretation of Rule 9(2) of CCS

(Pension) Rules in background of such facts one more relevant fact need to

be noted. As is well known, in case of Kumari Madhuri Patil and another

vrs. Addl. Commissioner, Tribal Development and others reported in

(1994) 6 SCC 241 the Supreme Court in view of large number of allegations

of false caste certificates and its serious implications on admissions in

educational institutions and appointments on Government posts in reserved

categories, gave series of directions by virtue of which whenever the

question of correctness of such caste certificate arises, the same would be

decided by a specially constituted committee called SLSC. The decision of

such committee would be open to challenge only in a writ petition before the

High Court.

12. In State of Tripura the dispute of the tribal status of Tripuri

(Laskar) community went on for a long time. After the High Court decided

all the issues, the aggrieved parties approached the Supreme Court. The

Supreme Court by a judgment in case of Srish Kumar Choudhury vrs. State

of Tripura and others reported in AIR 1990 SC 991 held that the Laskar

community was not entitled to be treated as Scheduled Tribes. However, a

limited respite was given in favour of those who had already got the benefit

of reservation till 31.03.1990. Clearly thereafter any claim of a member

belonging to Laskar community to the ST status was untenable.

13. The petitioner secured promotion as a Head Clerk as a reserved

category candidate after the cutoff date of 31.03.1990 provided by the

Supreme Court in case of Srish Kumar Choudhury (supra). However, at the

relevant time when the petitioner claimed and was granted promotion as an

ST candidate, her caste certificate was not yet cancelled. The question of

correctness of the caste certificate had to be decided by SLSC. As is well

known often times such procedure is time consuming since old records,

documents would have to be admitted and appreciated and witnesses to be

examined by both sides and cross-examined. In the present case, once the

SLSC cancelled the caste certificate, the High Court found a legal lacuna in

the procedure adopted and the Division Bench remanded the proceedings to

the SLSC for fresh consideration. The fresh order was passed by the SLSC

only on 31.05.2016. All throughout when the petitioner had challenged the

original order of SLSC either there was a stay from the Single Judge or the

judgment of the learned Single Judge quashing the order of the SLSC

prevailed. In neither case the department could have instituted any action

against the petitioner for illegally claiming promotion in the reserved

category. Even the fresh order that the SLSC passed on 31.05.2016 the

petitioner challenged in the High Court. Such writ petition was dismissed on

31.10.2017. It is only thereafter that the department could have instituted

any legal proceedings against the petitioner. Since there was no stay in the

petition filed by the petitioner challenging the order of SLSC dated

31.05.2016, at best the petitioner can argue that after such date nothing

prevented the department from issuing a charge-sheet. The charge-sheet in

question is admittedly issued within four years from such date.

14. Sub-rule (2) of Rule 9 of CCS (Pension) Rules must receive

purposive interpretation in context of such facts. In particular, the words

"any event" used in Rule 9(2)(b)(ii) must receive interpretation which will

subserve the legislative intent. In plain terms, the legislative intent of

framing Rule 9 is to preserve the authority to the Government to withhold

pension or gratuity of a retired Government servant if it is found that during

his service he was guilty of grave misconduct or negligence. While reserving

such rights, the legislation was also conscious of the misuse of such powers

and injustice that may be caused to the retired employees if appropriate

conditions for exercise of such powers are not imposed. In clause (b) of sub-

rule (2), therefore, it has been provided that the departmental proceedings

against a retired employee shall not be instituted without the sanction of the

President (or the Governor, as the case may be) and shall not be in respect of

any event which took place more than 4 years before such institution. This

latter condition of providing a limitation for institution of the proceedings

would clearly be with the purpose of not racking up age old issues and

allegations against a retired employee of the Government. However, this

condition does not require the Government, nor would the Court interpret a

statute as to requiring an authority to perform an impossible task. If the

interpretation advanced by the counsel for the petitioner is accepted and the

term "any event" is seen as the event which is the foundation of the

allegation contained in the charge-sheet, it would bring about a situation as

in the present case where despite allegedly committing serious misconduct

the petitioner can never be made departmentally answerable. As noted, the

petitioner secured promotion as a Head Clerk as a reserved category

candidate. Her caste certificate was finally cancelled on 31.05.2016 and the

challenge by the petitioner against this order was rejected by the High Court

on 31.10.2017. The term "event" used in the said rule, therefore, must have

relation to the cancellation of the caste certificate of the petitioner by the

SLSC and which achieved finality by virtue of the judgment of the High

Court dated 31.10.2017 which the petitioner did not challenge any further.

The institution of the proceedings, thus viewed, was not beyond the period

of four years prescribed in the rules.

15. In the result, petition is dismissed.

Pending application(s), if any, also stands disposed of.

(AKIL KURESHI), CJ

Pulak