Sri Swapan Das vs The State Of Tripura
2021 Latest Caselaw 782 Tri

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                       HIGH COURT OF TRIPURA
                             AGARTALA

                            WP(C) No.319/2021
Sri Swapan Das,
Son of Late Nripendra Chandra Das,
resident of village - Bridhanagar, near Sarada Biscuit Company,
PO - Ranirbazar, PS - Ranirbazar, District - West Tripura, Pin - 799035.
                                                      .............. Petitioner(s).

                                      Vs.

1.The State of Tripura, represented by the Commissioner & Secretary to the
  Department of Industries & Commerce, Government of Tripura, New
  Secretariat Complex, Gurkhabasti, Agartala, PO - Kunjaban, PS - New
  Capital Complex, Sub-division - Sadar, District - West Tripura.

2.The Director, Department of Industries & Commerce, Government of
  Tripura, Khejurbagan, New Capital Complex, Kunjaban, PS - New
  Capital Complex, Agartala, West Tripura, Pin - 799010.

3.The Principal, Industrial Training Institute, Government of Tripura,
  Khowai, Sonatala, District - Khowai Tripura.

4.The Commissioner of Departmental Inquiries(Inquiring Authority),
  Government of Tripura, Gurkhabasti, PN Complex, Kunjaban, Agartala,
  District - West Tripura, Pin - 799006.

5. Sri. Haripada Das, son of not known, Accountant, office of the Directorate
   of Industries and Commerce, Establishment Section, near Ginger Hotel,
   Khejur bagan, PO - Kunjaban, PS - NCC, Agartala, District - West
   Tripura, Pin - 799006.

6. Sri. Joy Chand Keot, son of not known, Accountant, office of the
   Industrial Training Institute, Kamalpur, District - Dhalai Tripura.

                                                     .............. Respondent(s).
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                              _B_E_ F_O_R_E_
      HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
         For Petitioner(s)              : Mr. P Roy Barman, Sr. Advocate,
                                          Mr. Koomar Chakraborty, Advocate.
         For Respondent(s)              : Mr. Debalaya Bhattacharya, G.A.,
                                          Mr. S Saha, Advocate.
         Date of hearing & judgment : 20th August, 2021.
         Whether fit for reporting      : No.

                        J U D G M E N T (O R A L)

Petitioner has challenged an order, dated 28th March 2016, passed

by the disciplinary authority imposing punishment of withholding two

increments of the petitioner without cumulative effect and a further order,

dated 22nd December 2020, passed by the appellate authority dismissing the

appeal of the petitioner against the order of the disciplinary authority.

[2] Brief facts are as under :

The petitioner is working as an Upper Division Clerk(UDC) under

Principal, Industrial Training Institute, Kailashahar. He had applied for

Leave Travel Concession (LTC) advance for himself and his family

members on 18th May 2010 in which one of the members of the family

mentioned by the petitioner was one Smt. Pranati Das shown to be his sister

and fully dependent on him. Before this request could be fully processed, the

petitioner wrote to the department, on 3rd September 2010, stating that his Page - 3 of 11

LTC advance is not yet sanctioned. However, on account of his current

family circumstances he was not in a position to avail the LTC. The request

for advance payment of LTC may, therefore, be cancelled.

[3] On 7th September 2010 i.e. a few days after the petitioner withdrew

his request for LTC advance, the department issued a memorandum to him

stating that upon further queries in relation to his LTC advance request the

petitioner had clarified that Pranati Das was not his sister but unmarried

sister-in-law who was fully dependent on him. It was, therefore, alleged that

prima facie the petitioner had furnished false information about his relation

with Pranati Das. He was given 7 days to explain his conduct. In response to

this memorandum, the petitioner replied on 20th September 2010 and pointed

out that he had already withdrawn his request for LTC advance, that Pranati

Das is an unmarried sister of his wife, that she is fully dependent on her

sister and the petitioner and is residing with them; having no other

independent source of income. He pointed out that he had no ill intention in

making the claim and the show cause notice may be dropped.

[4] Ignoring this explanation of the petitioner, the disciplinary authority

issued a charge sheet dated 18th January 2011 which contained only one

charge namely, that the petitioner had made a false declaration in his LTC

advance claim that Pranati Das was his sister and was fully dependent on Page - 4 of 11

him. According to this charge sheet, the petitioner had done this with the

intention of gaining illegal benefit from the Government.

[5] The petitioner resisted the departmental proceedings. An inquiry

was conducted. Inquiry officer submitted his report dated 22 nd March 2014

in which he recorded the petitioner‟s explanation that it was due to oversight

and typographical error that he had shown Pranati Das as his sister instead of

sister-in-law. He had deposed that Smt. Pranati Das was dependent on him

and stayed with his family. He had also tendered apology for his

unintentional error. He had also pointed out that he had never availed the

LTC for his sister-in-law or for himself and thus, there was no loss caused to

the Government. He also pointed out that as per Rule 2C(III) of Central

Civil Services (Conduct) Rules, 1964 (hereinafter to be referred to as "the

Rules") even a sister-in-law is included within the definition of family and,

therefore, the petitioner was entitled to make LTC claim for unmarried fully

dependent sister-in-law. The inquiry officer after recording these averments

and submissions of the petitioner, in the report stated as under :

"................ Apart from this, the AO has contended in his brief of argument quoting the provision of rule 2(C)(III) of Central Civil Services (Conduct) Rules, 1964 in Para - 4 of the argument that "any other person related whether by blood or marriage to the Government servant or to the Government servants‟ wife or husband and wholly dependent on the Government servant" stated Page - 5 of 11

that the alleged person namely Smti. Pranati Das be construed as one of the family member and hence, there is no inhibition to show her as the family member. His fault is only recording the type of relation against her name as sister instead of sister-in-law which he has explained that was due to oversight and typical mistake.

The AO is therefore, liable for such false information."

(emphasis supplied)

[6] The inquiry officer has not evaluated the petitioner‟s grounds to

resist the charge. He did not reject the petitioner‟s defence that the petitioner

had made an honest error since, even as a sister-in-law he was entitled to

make a claim of LTC for her as per the Rules. Inquiry officer merely without

any discussion came to the conclusion that the only „fault‟ of the petitioner

was recording the incorrect relation with his sister-in-law. Going by this

finding in any case the inquiry officer cannot be said to have held that the

charge against the petitioner was proved. We may recall, the charge was that

the petitioner had made a false claim of LTC advance to gain illegal benefit

from the government. Element of mens-rea was thus part of the charge. The

inquiry officer nowhere held that the false declaration was made by the

petitioner deliberately and for illegal minatory gain.

[7] The petitioner was supplied the copy of the inquiry officer‟s report

to which he made a detailed representation dated 13 th March 2015. In his Page - 6 of 11

representation, the petitioner reiterated his averments, denied that he had

supplied false information, relied on Rule 2 (C) of CCS Conduct Rules to

contend that even a sister-in-law is covered within the definition of the term

„member of the family‟. He, therefore, had no mala fide intention in making

an incorrect declaration but it was a mere oversight.

[8] The disciplinary authority passed impugned order, on 28th March

2016 and without citing any reasons imposed the punishment of withholding

of two increments without cumulative effect. In this order, he did not adhere

to any of the petitioner‟s defences. He merely concluded that the

representation of the petitioner was not found satisfactory.

[9] The petitioner filed appeal against the order of the disciplinary

authority. This appeal was dismissed by an order, dated 22nd December

2020, once again without reasons. Interestingly, the punishment was

imposed by the Director of Industries and Commerce and the petitioner‟s

appeal against the order of penalty was also decided by the Director of

Industries and Commerce. Thus, an officer of the same level imposed the

punishment and also dismissed the appeal of the petitioner against the order

of penalty, clearly breaching the rules of hierarchy. The petitioner has

thereupon filed this petition challenging the punishment.

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[10] I have heard learned counsel for the parties for final disposal. The

penalty order cannot survive the legal test for several reasons. Firstly, from

the beginning the petitioner had set up case of a bona fide error and no

financial loss to the Government. His case was simple namely, that the claim

for LTC advance was withdrawn even before it was fully processed.

Secondly, it was a mere oversight to refer to Pranati Das as his sister instead

of sister-in-law. Thirdly, Rule 2(C) III of CCS Conduct Rules provides that

even a member of the family related to the Government servant through

marriage would be included in the term „member of the family‟. The

petitioner had pointed out to the Government as well as to the inquiry officer

during the course of the inquiry that Pranati Das was unmarried, had no

independent source of income and resided with the petitioner and his wife.

She was thus fully dependent on the petitioner. These grounds were not

rejected by the inquiry officer. He in fact came to the conclusion that the

petitioner‟s only fault was to give the false declaration of his relation with

Pranati Das. The inquiry officer did not elaborate whether his false

declaration was based on a bona fide error or was premised on malicious

intention to gain an illegal benefit. In this context, the petitioner‟s assertion

that Pranati Das his sister-in-law would also be covered under the definition

of member of family would become relevant. Whether the petitioner‟s

interpretation to the rule is correct or not is not important. If the petitioner Page - 8 of 11

had bona fide belief that the rule encompasses a sister-in-law within the term

„member of the family‟, his explanation that to refer to her as his sister was a

mere oversight or a typographical error immediately becomes acceptable.

The inquiry officer in fact found that the only „fault‟ of the petitioner was

with respect to the nature of relation. Very clearly the inquiry officer did not

hold that the petitioner had made such false declaration with mala fide

intention.

[11] If the disciplinary authority accepted the findings of the inquiry

officer as they were, there was thereafter no further basis for imposing any

punishment. On the other hand, if the disciplinary authority did not agree

with the findings of the inquiry officer, he had to issue a notice of

disagreement recording his tentative reasons and serve it to the petitioner

calling for his representation. This much is sufficiently well-settled through

the judgments of Supreme Court. Reference in this respect can be made to

the decisions in case of Punjab National Bank and Ors. Vs. Sh. Kunj

Bihari Mishra reported in (1998) 7 SCC 84 and in case of Zunjarrao

Bhikaji Nagarkar Vs. U.O.I and Ors. reported in (1999) 7 SCC 409.

[12] In fact the disciplinary authority even in the final order of

punishment did not record his disagreement with any of the findings of

inquiry officer, with or without notice to the petitioner. He merely proceeded Page - 9 of 11

to award punishment which he thought was commensurate with the proved

charge.

[13] The appellate authority committed a cardinal error of dismissing the

appeal when Mr. V G Jenner, as a Director of Industries and Commerce, he

was not competent to decide the appeal. The punishment was imposed by the

Director. Appeal was filed by the petitioner before the Secretary i.e. to the

Government and such appeal ought to have been decided by the Secretary.

An officer is not competent to decide an appeal against an order passed by

another officer of the same rank. This is the most basic principle of

administrative law. Even the disciplinary appeal rules do not empower the

Director to entertain appeal against an order of penalty passed by another

Director.

[14] Quite apart from these serious technical errors committed by the

disciplinary authority and appellate authority, even on merits, I find that the

petitioner was handed down punishment when it was not justified. Mere

wrong mention of the relation in the LTC advance form without any

intention to gain illegal benefit would not amount to misconduct. On the face

of it the penalty may appear to be a minor penalty, in reality it would result

into great loss and prejudice to the petitioner. This is so because as was

recorded in order dated 7th January 2020, passed by this Court in WP(C) Page - 10 of 11

No.879/2019, the petitioner‟s promotion was withheld on account of

ongoing departmental inquiry and thereafter imposition of punishment. This

apparently minor punishment would thus result into depriving promotion to

the petitioner for a long period of time. This period got enlarged on account

of extremely slow reactions by the administration in the course of the

departmental inquiry and pendency of appeal. We may recall, after the

petitioner gave his explanation, on 7th September 2010, the departmental

charge sheet was issued to him only on 18th January 2011. The inquiry

officer completed the inquiry after nearly three years. I fail to understand

why such a simple inquiry took three years to complete. The inquiry officer

submitted his report on 22nd March 2014. A copy of the inquiry officer‟s

report was supplied to the petitioner nearly a year later on 16th February

2015. The petitioner filed his reply on 13 th March 2015. The disciplinary

authority took one more year to take his final decision on 28th March 2016.

The petitioner filed appeal against the order of penalty shortly thereafter.

This appeal was decided more than four years later by an order dated 22nd

December 2020, that too by an incompetent authority. The entire chain of

events shows a rather lax attitude on part of the administration in dealing

with the case which has caused great loss and prejudice to the petitioner. On

all these grounds, therefore, impugned order of punishment dated 28th March

2016 is set aside with all consequential effect. This would include Page - 11 of 11

restoration of the petitioner‟s increments from due dates and also opening

the sealed cover if the department has followed sealed cover procedure for

promotion and acting on the recommendations of the DPC and if no such

sealed cover procedure is followed, by drawing a review DPC for

consideration for promotion which was denied to the petitioner on account

of pendency of the departmental proceedings when his juniors were

promoted on 4th October 2012. If the petitioner is found fit for promotion, he

shall be granted promotion with retrospective effect from the date his junior

was promoted. This exercise shall be completed within a period of 4(four)

months from today.

The petition is allowed and disposed of accordingly. Pending

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

(AKIL KURESHI, CJ )

Sukehendu