Sri Nayan Das vs The State Of Tripura
2021 Latest Caselaw 175 Tri

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                     HIGH COURT OF TRIPURA
                           AGARTALA

                           WP(C) No.1368/2019
Sri Nayan Das, Son of Late Sukhen Ch Das, Resident of Bhati Abhoynagar,
Agartala, PS- West Agartala, Distric -West Tripura.
                                                        ----Petitioner(s)
                                      Versus
1.The State of Tripura,(To be represented by the Commissioner of Food,
Civil Supplies & Consumer Affairs), having his office at Civil Secretariat
Complex, P.O.- Kunjaban, Agartala, West Tripura, PIN 799006.

2. The Director, Food, Civil Supplies & Consumer Affairs, Government of
Tripura, Pandit Nehru Complex, Khadi-O-Bhokta Bhawan, Agartala, West
Tripura, PIN 799006.

3. The Sub-Divisional Magistrate, Food, Civil Supplies & Consumer
Affairs, Government of Tripura, Kailashahar, District- Unakoti Tripura.
                                                         -----Respondent(s)

For Petitioner(s) : Ms. A. Debbarma, Advocate.

For Respondent(s) : Mr. Debalay Bhattacharjee, G.A.

HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI

Date of hearing and judgment : 12th February, 2021.

      Whether fit for reporting         : NO.



                    JUDGMENT & ORDER (ORAL)

Petitioner has challenged an order dated 25.09.2017 passed by

the disciplinary authority imposing punishment of recovery of a sum of

Rs.3,85,494/- in installments and withholding of one increment without

future effect which order was upheld by the appellate authority by order

dated 04.01.2018.

2. Briefly stated, the facts are as under:

At the relevant time the petitioner was working as a Food

Inspector and was posted as a Godown In-charge of Rajnagar Government

Godown under Belonia Sub-Division. During the period of 15.12.2004 to

21.09.2007 as part of his duties he was entrusted the task of maintaining the

stock of the rice and to make proper entries concerning the books of

accounts. On the ground that he had not maintained the books and other

records properly as required under rules and through such activities he had

misappropriated 40578.35 kgs. of rice valuing at Rs.3,85,494/-, a charge-

sheet dated 26.02.2009 was issued to him. During the course of inquiry the

petitioner filed an application dated 31.07.2009 before the inquiry officer

and requested that the following documents be supplied to him to enable

him to defend the charges:

"List of documents:

1. Copy of Govt. Instruction or guide line regarding procedure for maintenance of Bin Card Register and Bin Card.

2. All the stock Book of Rajnagar Food Godown for the period from 15.12.04 to 21.9.07.

3. Delivery order against which the items of commodities delivered from the Godown during the period from 15.12.04 to 21.9.07.

4. Weightment Tally Book of Rajnagar Govt. Food Godown during the period of Inspection/Physical verification.

5. Inspection Report/Physical verification Report of Rajnagar Food Godown for the period from 15.12.04 to 20.1.06 by Shri Ashim Saha, Deputy Collector, Belonia.

6. Inspector/physical verification Report of Rajnagar Food Godown with copy of SAVs for the period from 21.01.06 to 24.8.07 by Shri U.R. Debbarma, Deputy Collector & Magistrate, Belonia.

7. Charge list of Rajnagar Govt. Food Godown regarding handing over & taking over of charge between A.O. Shri Nayan Das, A.O. & Shri Rajat Acharjee, Store Keeper.

Kindly pass an order so that A.O. may inspect the documents & obtain copies of the same for his defence. Availability:

Sl.-1, 5 & 6 are at Directorate of Food, Civil Supplies & Consumer Affairs, Agartala.

Sl. 2 & 4 at Rajnagar Food Godown, Sl. 3 & 7 at office of the Deputy Collector & Magistrate, Rajnagar Revenue Circle (Food Section), Belonia."

3. While the inquiry officer did not supply these documents, the

petitioner moved WP(C) No.143 of 2013 which was disposed of by an order

dated 06.06.2013 with following directions:

"Considering the entire facts and circumstances, the instant writ petition is disposed of with a direction to the respondent no.2 for completing the disciplinary proceeding being case no.153/Inq/Food/09 within a period of six months after providing the certified copies of the additional documents, as sought for by the petitioner."

4. According to the petitioner despite these directions the

department had not supplied all the documents he had requested for. He,

therefore, wrote to the inquiry officer on 28.07.2017 and stated as under:

"Most respectfully and humbly, I beg to state that the additional documents which were supplied to me against item No.2, 3 and 4 by the Presenting Officer and received by me without scrutiny and verification due to dearth of time during hearing of the case on 21.07.2017 and subsequently on scrutiny it is found that the following documents are not related to my incumbency period at Rajnagar Govt. Food Godown from 15.12.2004 to 21.9.2007:-

1. Stock Book - 11(eleven) Nos. Dispatch Taly Book 8(eight) Nos. And Delivery Book 10(ten) bundle are not related me. These documents are Related to my successor Shri Rajat Acherjee, Jr. Store Keeper, Raj Nagar Govt. Food Godown.

2. The Delivery Orders for APL, ANP, BPL, AAY. Sugar for September, 2007 and APL and SALT for, August, 2007 were only supplied/The rest documents (DO) of my incumbency period were not supplied.

3. Out of 45 tally Books only 23 Dispatch tally Books were supplied.

This is submitted for your kind information."

5. Without any further response to the said letter the inquiry was

completed. Inquiry Officer submitted his report dated 30.08.2017 in which

he held that the charge was partially proved. In this report the inquiry officer

did not specifically refer to the documents supplied to the petitioner, not

dealt with the petitioner's letter dated 28.07.2017 in which he had pointed

out that all documents were not supplied nor held that some of the

documents were not relevant to his case. Petitioner made a detailed

representation on the report of the inquiry officer in which once again he

took up the question of non-supply of the documents which hampered his

defence as under:

"(xiii) That Sir, in the name of my additional documents namely 11 Nos. of Despatch tally books, 8 Nos. of Delivery Book, 10 bundles of other papers were given to me which are not related to my incumbency period at Rajnagar Govt. Food Godown instead of the same document of my period. Out of 45 tally books only 23 dispatch tally books were supplied as additional documents. As a result those incomplete documents could not be utilized and exhibited for my defence during hearing of the case. The Photocopies of other additional documents were given to me by copying one side page. The reverse pages were not copies and supplied to me as

additional documents. As a result those documents have not served any purpose of my defence."

6. The disciplinary authority considered the report of the inquiry

officer and the representation of the petitioner and passed the impugned

order on 25.09.2017 holding that though the charge was serious, he was

inclined to take a lenient view and thereupon ordered recovery of the value

of the missing stock from the petitioner and further provided that his one

increment would be withheld without future effect. Petitioner preferred

appeal against the said order which was dismissed by the appellate authority

on 04.01.2018.

7. Learned counsel Ms. A. Debbarma for the petitioner has ably

argued the case and raised several contentions, however, I will focus only on

one of them for the reasons that would be clear hereafter. She pointed out

that the petitioner had been demanding certain documents which would

enable him to defend the charges. The disciplinary authority did not supply

these documents even after the High Court passed the order for supplying

the same. This has caused grave injustice to the petitioner and the entire

inquiry is vitiated on account of non-fulfilling the requirements of principles

of natural justice.

8. On the other hand, learned Government Advocate Mr. Debalay

Bhattacharjee opposed the petition. He submitted that necessary documents

were supplied to the petitioner after following the service rules and

principles of natural justice. No interference need, therefore, be made.

9. As noted, the petitioner has been demanding certain documents

from the department which according to the petitioner were vital for his

defence. When the petitioner's application for supplying the documents was

not granted by the inquiry officer, he moved the High Court upon which the

High Court directed the inquiry officer to provide those documents. It

appears that the inquiry officer did provide some of the documents,

however, the petitioner in his letter dated 28.07.2017 pointed out that so

many of these documents were not relevant to his period, some of the

documents were incomplete and lastly many documents which he had asked

for were not supplied at all. To this letter of the petitioner, the department

has not responded at any stage. The inquiry officer in his report has merely

stated in general terms that the documents have been supplied to the

petitioner without specific reference to which documents were supplied,

which according to the petitioner were not supplied with a special focus on

the petitioner's letter dated 28.07.2017. While making his representation to

the report of the inquiry officer, the petitioner once again highlighted this

aspect. The disciplinary authority has not even taken cognizance of this

grievance of the petitioner nor has the appellate authority dealt with this

aspect.

10. Inescapable conclusion, therefore, would be that the entire

inquiry was vitiated on the ground of lack of proper opportunity being given

to the delinquent to defend himself. Perusal of the report of the inquiry

officer would show that entire issue was factual namely whether the

petitioner was responsible for not maintaining proper stock register and on

account of which large quantity of rice went missing and detection of which

became difficult. When, therefore, the petitioner asked for certain documents

to prove his innocence, the department had to respond to the same. In an

ordinary case, the response of the department could as well have been that

these documents are not relevant. However, in the present case, the High

Court has already examined the validity of the petitioner's request for

supplying these documents and thereafter directed the department to provide

the same. The ground of the documents being not relevant for the

petitioner's defence, therefore, is not available to the department.

11. Under the circumstances, impugned orders dated 25.09.2017 of

the disciplinary authority and dated 04.01.2018 of the appellate authority are

set aside. The disciplinary authority shall ensure that all documents as

requested by the petitioner and directed by the Court be supplied to him after

which the inquiry shall be completed within six months from today after

taking into account material already on record and which may be brought on

record hereafter. Till the inquiry is completed, it will not be necessary for

the department to refund the amount if it is already recovered from the

petitioner but the same would be subject to outcome of the inquiry.

However, there shall be no further recovery from the petitioner till the

inquiry is completed.

12. Petition disposed of accordingly.

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

(AKIL KURESHI), CJ

Pulak