Sri Bikash Bhowmik vs The State Of Tripura
2021 Latest Caselaw 195 Tri

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               HIGH COURT OF TRIPURA
                     AGARTALA

                     WP(C) No.802/2020
Sri Bikash Bhowmik,
S/o Sri Binoy Krishna Bhowmik,
resident of opposite road of Ramthakur Ashram,
Banamalipur, Agartala, P.O. Agartala,
P.S. - East Agartala, District - West Tripura.
                                             ............... Petitioner(s).
                                Vs.
1. The State of Tripura,
   to be represented by the Secretary,
   Rural Development Department, Government of Tripura,
   New Secretariat Building, New Capital Complex, Agartala,
   West Tripura, Pin - 799 010.
2. The District Magistrate and Collector, (Disciplinary Authority),
   West Tripura District, O/o the DM & Collector, Agartala, West
   Tripura, P.O - Agartala, Pin - 799 001.

3. The Director, Rural Development Department, Government of
   Tripura, Agartala, West Tripura.
                                            ............... Respondent(s).

              _B_E_ F_O_R_E_
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
For Petitioner(s)           :   Mr. P Roy Barman, Sr. Advocate,
                                Mr. Kawsik Nath, Advocate.
For Respondent(s)           :    Mr. P K Dhar, Sr. Govt. Advocate,
                                 Mr. A De, Addl. Govt. Advocate.
Date of hearing & Judgment : 18th February, 2021.
Whether fit for reporting       : No.
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                        J U D G M E N T (O R A L)

Petitioner has challenged a departmental inquiry instituted

against him as also an order placing him under suspension pending such

departmental inquiry.

[2] Brief facts are as under :

At the relevant time, petitioner was Junior Engineer in the

Government of Tripura. A complaint was made against him holding assets

disproportionate to his known source of income before the Lokayukta,

Tripura, who upon completion of the investigation submitted his report

dated 24th January, 2013 in which he had concluded that the petitioner had

received salary of Rs.22,13,279/- for the period between 1998 to March,

2012 as against which he had created assets worth Rs.74,26,472/- which

was referable to the same period of 1998 to March, 2012. After accounting

for reasonable living expenses, the Lokayukta was of the opinion that the

petitioner held assets disproportionate to his known source of income. He

recommended initiation of departmental proceedings as well as criminal

case against the petitioner and to place him under suspension. The

petitioner was first placed under suspension in contemplation of

departmental inquiry. On 25th March, 2015 the disciplinary authority Page - 3 of 9

issued a departmental charge sheet to the petitioner which contained two

charges. Charge Article I was that as held by the Lokayukta in his report,

the petitioner had amassed wealth far in excess of his known source of

income. Charge Article II was that by such actions the petitioner had

committed offences punishable under Prevention of Corruption Act, 1988.

On 13th May 2015, the disciplinary authority appointed Inquiry Officer.

[3] The petitioner had filed WP(C) 47/2013 challenging the report of

the Lokayukta on various grounds. This petition was disposed of by the

Division Bench by a judgment dated 28th July, 2015 relevant portions of

which read as under :

" * * *

12. While taking this view we are also not oblivious to the fact that the Lokayukta only makes recommendations to the State Govt. It is for the State Govt. to accept or reject the said recommendations. If the criminal proceedings or departmental proceedings as recommended by the Ld. Lokayukta are not time barred, we fail to understand how the State of Tripura can be restrained from taking any action against the petitioner even if it be on the report of the Ld. Lokayukta. Once material has come to the notice of the State Govt., which is the employer, which prima facie indicates that the petitioner has indulged in some corrupt practices then the State Govt. is duty bound to take action.

13. We, therefore, find no merit in the petition which is accordingly rejected. The stay order is vacated. We make it clear that we have not expressed any opinion on the merits of the case and we have Page - 4 of 9

gone only by the recommendations of the Ld. Lokayukta which are recommendations of facts and which we cannot set aside in writ petition.

14. We may also make it clear that in any departmental proceedings or criminal proceedings, which may be launched against the petitioner, he shall have the right to defend the same on all grounds and it will be for the department/the prosecution to prove the case in accordance with law and the report of the Lokayukta cannot be treated as evidence in that matter."

[4] In this petition, the petitioner has challenged the departmental

inquiry and his continued suspension. Appearing for the petitioner, learned

senior counsel Mr. P Roy Barman submitted that the sole basis for

initiation of the departmental inquiry against the petitioner is the report of

the Lokayukta. This Court in the judgment dated 28 th July, 2015 had

clearly held that in any departmental proceedings or prosecution the report

of the Lokayukta would not be treated as evidence. Minus his report the

department has no other material to substantiate the charges. The

departmental inquiry may, therefore, be quashed. He further submitted that

after appointment of an Inquiry Officer on 13th May 2015, till date no

progress has been in the departmental inquiry. The departmental inquiry is

unduly delayed for no fault on part of the petitioner. On the ground of

gross delay in completion of the departmental inquiry also the same may

be quashed.

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[5] With respect to the petitioner's continued suspension, counsel

submitted that such suspension acts to the great deterrence and prejudice to

a Government servant. When it is continued indefinitely, it also causes

serious financial and mental detriment. He relied on the decision of

Supreme Court in case of O P Gupta Vs. Union of India reported in

(1987) 4 SCC 328 in which following observations were made :

"15. We have set out the facts in sufficient detail to show that there is no presumption that the Government always acts in a manner which is just and fair. There was no occasion whatever to protract the departmental inquiry for a period of 20 years and keeping the appellant under suspension for a period of nearly 11 years unless it was actuated with the mala fide intention of subjecting him to harassment. The charge framed against the appellant was serious enough to merit his dismissal from service. Apparently, the departmental authorities were not in a position to substantiate the charge. But that was no reason for keeping the departmental proceedings alive for a period of 20 years and not to have revoked the order of suspension for over 11 years. An order of suspension of a government servant does not put an end to his service under the Government. He continues to be a member of the service in spite of the order of suspension. The real effect of the order of suspension as explained by this Court in Khem Chand v. Union of India, [1958] SCR 1080 is that he continues to be a member of the government service but is not permitted to work and further during the period of suspension he is paid only some allowance-generally called subsistence allowance-which is normally less than the salary instead of the pay and allowances he would have been entitled to if he had not been suspended. There is no doubt that an order of suspension, Page - 6 of 9

unless the departmental inquiry is concluded within a reasonable time, affects a government servant injuriously. The very expression 'subsistence allowance' has an undeniable penal significance. The dictionary meaning of the word 'Subsist' as given in Shorter Oxford English Dictionary, Vol. II at p. 2171 is "to remain alive as on food; to continue to exist". "Subsistence" means-means of supporting life, especially a minimum livelihood. Although suspension is not one of the punishments specified in Rule 11 of the Rules, an order of suspension is not to be lightly passed against the government servant. In the case of Board of Trustees of the Port of Bombay v. Dilip Kumar Raghavendranath Nadkarni & Ors., (1983) 1 SCR 828 the Court held that the expression 'life' does not merely connote animal existence or a continued drudgery through life. The expression 'life' has a much wider meaning. Suspension in a case like the present where there was no question of inflicting any departmental punishment prima facie tantamounts to imposition of penalty which is manifestly repugnant to the principles of natural justice and fair play in action. The conditions of service are within the executive power of the State or its legislative power under the proviso to Article 309 of the Constitution, but even so such rules have to be reasonable and fair and not grossly unjust. It is a clear principle of natural justice that the delinquent officer when placed under suspension is entitled to represent that the departmental proceedings should be concluded with reasonable diligence and within a reasonable period of time. If such a principle were not to be recognised, it would imply that the executive is being vested with a totally arbitrary and unfettered power of placing its officers under disability and distress for an indefinite duration."

[6] On the other hand, learned Senior Government Advocate Mr. P K

Dhar appearing for the Government opposed the petition contending that Page - 7 of 9

there are valid grounds to proceed against the petitioner in departmental

inquiry. A criminal case was also lodged against him. The charges against

the petitioner are extremely serious. The competent authority has reviewed

the suspension of the petitioner from time to time, however, found that in

view of gravity of the charges and pending departmental inquiry in

criminal case, the same cannot be revoked.

[7] Having thus heard learned counsel for the parties, I see no reason

to quash the departmental inquiry. Firstly, this Court in the petitioner's

challenge to the report of the Lokayukta, had made certain significant

observations. It was observed that it is up to the Government to accept or

to reject the recommendations of the Lokayukta. If the departmental

inquiry or the criminal proceedings are not time barred, the State

Government cannot be restrained from taking any action against the

petitioner even if it is on the report of the Lokayukta. Once the material has

come to the notice of the Government prima facie indicating that the

petitioner has indulged in some corrupt practice, the Government is duty

bound to act on the same. It was, therefore, held that there was no merit in

the petition, however, in any departmental or criminal proceeding which

may be initiated against the petitioner he would have a full right to defend

himself. While saying so, it was also observed that the report of the Page - 8 of 9

Lokayukta cannot be treated as evidence in such matter. This observation

or sentence in isolation would not be sufficient to quash the very

departmental inquiry and the charge sheet issued against the petitioner. I

have perused the charge sheet which primarily relies on the report of

Lokayukta, nevertheless cites several witnesses to be examined by the

department. It is not possible to foresee what evidence the department

bring on record during such inquiry.

[8] Delay caused in completing the departmental inquiry of course is

substantial, nevertheless would not justify terminating the inquiry

particularly looking to the serious charges that the petitioner is facing and

the prima facie material which the Court noticed in the previous round of

litigation. However, that does not mean that the department can

indefinitely delay the conclusion of the departmental proceedings and in

respect of which I propose to give certain directions.

[9] Coming to the continued suspension, firstly, the charges are

extremely serious. Secondly, the petitioner is also facing a criminal case

for offences punishable under Prevention of Corruption Act and thirdly,

the competent authority has been reviewing the suspension order from time

to time. It would not be proper for the Court to substitute the wisdom of

the competent authority and declare that continued suspension of the Page - 9 of 9

petitioner is not warranted. Lastly, since I propose to give directions for

completion of the departmental inquiry within a time frame, the question

of continued suspension of the petitioner on account of pendency of

departmental inquiry will not survive.

[10] In view of the above observations, it is directed that the

respondents shall complete the departmental inquiry in question latest by

30th June, 2021.

Petition is disposed of accordingly. Pending application(s), if

any, also stands disposed of.

( AKIL KURESHI ), CJ

Sukhendu