For vs For
2021 Latest Caselaw 143 Tri

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                       HIGH COURT OF TRIPURA
                             AGARTALA
                             W.A. No.110/2019

For Appellant(s)                : Mr. S. Kar Bhowmik, Advocate.
For Respondent(s)               : Mr. Bidyut Majumder, Asstt. S.G.

HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY

Order 09/02/2021 (Akil Kureshi, C.J.)

The appellant is the original petitioner. He has challenged the

judgment of the learned Single Judge dated 21.12.2018 passed in WP(C)

No.847 of 2018. In the petition the petitioner had challenged a charge-sheet

dated 31.12.2017 issued by the department to him for alleged misconduct

and a revision order passed during the Court Martial. This petition was

dismissed by the learned Single Judge. In the writ appeal, the Division

Bench had previously passed an order on 07.08.2019. Writ Appeal was

admitted. Limited interim relief was granted providing that the Court Martial

proceedings may go on but no final decision thereon shall be taken without

the leave of the Court.

Subsequently, the petitioner approached the Court pointing out

that the department has activated the Court Martial proceedings after a long

gap and asked the petitioner to appear before the Court Martial on

20.08.2020. It was pointed out that the petitioner at that time was posted at

Aizawl. The Court Martial proceedings have been conducted at Tripura. The

coronavirus was in spate. The petitioner himself was a Medical Officer. Any

movement would require a period of quarantine. Under such circumstances,

this Court on 18.08.2020 had passed following order:

"Counsel submitted that presently the petitioner has been moved from his posting at Aizawl to Tripura to face the said Court Martial proceedings. However, he is under quarantine as per the State Government Circular in view of corona virus spread. He is also not able to engage a defence counsel since the Court Martial proceedings would take place in the BSF camp from where large number of corona positive cases have been detected. Effectively thus, the appellant is unable to defend himself in the said proceedings. In light of these developments, counsel requested for either the final hearing of the appeal or limited further protection against ongoing Court Martial proceedings.

Learned CGC, Mr. Bidyut Majumder, appearing for BSF opposed any further stay of the Court Martial proceedings beyond what has already been granted by this Court under the above noted order dated 07.08.2019. He was, however, not ready with the final hearing of the appeal stating that he needs further instructions and time to get ready.

Ordinarily, the order dated 07.08.2019 which was passed after by parte hearing and which also grants limited protection to the appellant, would not require any further enlargement. However, after the said order was passed, the

situation has materially changed. The spread of coronavirus has undoubtedly, made the participation of the petitioner through his defence counsel more difficult if not impossible. Presently across the country, courts are functioning at reduced capacity. Physical hearings are avoided to the possible extent.

The allegations, which the petitioner is facing relate to the years 2016 and 2017. The writ petition was dismissed by the learned Single Judge on 21.12.2018. Division Bench passed order on 07.08.2019 under which the department was given liberty to proceed with the Court Martial, only restriction was not to pass final order without the leave of the Court. Since December, 2018, thus, there was no impediment in the department conducting the Court Martial. It was only under the latest communications dated 13th of August, 2020 that such proceedings have been activated.

Under the circumstances, pending further consideration, it is provided that if the petitioner prays for adjournment of the Court Martial proceedings, the same shall be granted at least for a period of four weeks. It would be open for the petitioner either to return to his present place of posting, of course, after following National and the State guidelines for corona virus or to proceed on leave, which may be granted as due to him if he applies.

List the matter on 15.09.2020.

In the meantime, counsel for the petitioner shall place on record the latest communication and other documents, which may have bearing on the present proceedings with a copy to the other side."

Since then this petition has been posted for hearing from time

to time and the interim protection granted in the said order has been

continued. The department has been urging us to vacate the interim order.

The petitioner has been urging us to hear the appeal finally. For want of time

we are unable to grant final hearing to the appellant-petitioner. However, the

request of the department for vacating the interim protection granted under

order dated 18.08.2020 is perfectly valid and justified. As noted, previously

while admitting the appeal the Court had granted limited protection to the

petitioner so that the Court Martial proceedings would continue but final

order would not be passed without the leave of the Court. There was no

reason for reviewing the said order on merits. However, when the petitioner

had pointed out substantial change in circumstances on account of

coronavirus, we had prevented the department from conducting the Court

Martial also. Now that the coronavirus situation has substantially improved,

such protection need not be continued. The request of the counsel for the

appellant to stay the Court Martial proceedings till the disposal of the appeal

would amount to reviewing or recalling the previous order of the Division

Bench. Such request is, therefore, refused.

List the matter for final hearing on 16.03.2021.

Interim relief granted under order dated 18.08.2020 is vacated.

However, the previous interim order dated 07.08.2019 would continue.

   (S.G. CHATTOPADHYAY), J                     (AKIL KURESHI), CJ




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