Smt. Babita Bhattacharjee vs Tripura Khadi & Village ...
2021 Latest Caselaw 18 Tri

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                     HIGH COURT OF TRIPURA
                           AGARTALA
                         W.A. No.250/2020

1. Smt. Babita Bhattacharjee, W/O. Late Swapan Bhattacharjee,
2. Sri Samrat Bhattacharjee, S/O. Late Swapan Bhattacharjee,
Both are residents of Palace Compound, A.I.R. Lane, P.O.-Agartala,
District:- West Tripura, PIN-799001.
                                                  -----Appellant(s)
                                     Versus
1. Tripura Khadi & Village Industries Board, (To be represented by the
Chairman, Tripura Khadi & Village Industries Board), Colonel
Chowmuhani, P.O.-Agartala, West Tripura, PIN-799001.
2. The Executive Officer, Tripura Khadi & Village Industries Board,
Colonel Chowmuhani, P.O.-Agartala, West Tripura, PIN-799001.
3. The Commissioner cum Secretary, Deptt. of Industries and Commerce,
Govt. of Tripura, New Secretariat Building, P.O. Kunjaban, Agartala, West
Tripura, Pin-799006.
4. The Director, Deptt. of Industries and Commerce, Govt. of Tripura,
Gurkhabasti, P.O. Kunjaban, Agartala, West Tripura, Pin-799006.
                                                        -----Respondent(s)

Connected with WP(C) No.716/2019

1. Smt. Babita Bhattacharjee, W/O. Late Swapan Bhattacharjee,

2. Sri Samrat Bhattacharjee, S/O. Late Swapan Bhattacharjee, Both are residents of Palace Compound, A.I.R. Lane, P.O.-Agartala, District:- West Tripura, PIN-799001.

-----Petitioner(s) Versus

1. The State of Tripura, To be represented by the Commissioner cum Secretary, Deptt. of Industries and Commerce, Govt. of Tripura, New Secretariat Building, P.O. Kunjaban, Agartala, West Tripura, Pin-799006.

2. The Director, Deptt. of Industries and Commerce, Govt. of Tripura, Gurkhabasti, P.O. Kunjaban, Agartala, West Tripura, Pin-799006.

3. Tripura Khadi & Village Industries Board, (To be represented by the Chairman, Tripura Khadi & Village Industries Board), Colonel Chowmuhani, P.O.-Agartala, West Tripura, PIN-799001.

4. The Executive Officer, Tripura Khadi & Village Industries Board, Colonel Chowmuhani, P.O.-Agartala, West Tripura, PIN-799001.

-----Respondent(s)

For Appellant(s)/Petitioner(s) : Mr. P. Roy Barman, Advocate, Mr. Samarjit Bhattacharjee, Advocate, Mr. Kawsik Nath, Advocate.

For Respondent(s)                  : Mr. J. Choudhuri, Advocate,
                                     Mr. N. Majumder, Advocate.

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

       Date of hearing and judgment : 5th January, 2021.

       Whether fit for reporting         : NO.

                       JUDGMENT & ORDER (ORAL)

(Akil Kureshi, C.J.)

These proceedings are interconnected. They have been heard

together and would be disposed of by this common judgment. Appellants of

the writ appeal are widow and son respectively of deceased Swapan

Bhattacharjee who was an employee of the Tripura Khadi and Village

Industries Board (Khadi Board, for short). At the relevant time he was

discharging the duties of the Supervisor (Village Oil). On the ground of

alleged irregularities in maintaining stock while he was functioning as In-

charge, Central Store, Carpentry and Blacksmith Unit under the Board

during the period between 06.04.2009 to 14.07.2013 and on certain other

allegations of misconduct he was placed under suspension on 18.09.2014

pending initiation of departmental proceedings. He remained under

suspension till the order of suspension was revoked on 23.04.2016. In the

meantime, the employer issued a charge-sheet on 16.06.2015 in which three

distinct charges were levelled against him. First charge was regarding

leaving the duty without handing over charge. Second charge was of similar

nature of not handing over the charge and completing the paper work after

resuming duty. Under Charge Article-III which was more serious in nature it

was alleged that out of the purchase of Rs.45.99 lakhs (rounded off) of wood

and timber, stock worth Rs.19.48 lakhs (rounded off) was found deficit. This

was attributed to the misuse of official power by the employee.

2. The employee denied the charges. For years together no

substantial progress was made in the departmental proceedings. The

delinquent officer expired on 13.09.2018. The department was, therefore,

forced to close the inquiry proceedings.

3. While the departmental inquiry was thus instituted but without

making any worthwhile progress, the Khadi Board passed an order on

21.06.2016 ordering recovery of a sum of Rs.18,93,316/- from the pay and

allowances of the said employee on the ground that due to his conduct and

mismatch of the stock the Board had suffered loss to the said extent.

Admittedly before passing this order, no show-cause notice or any other

opportunity of hearing was granted to the employee. After service of the

order dated 21.06.2016 said Shri Swapan Bhattacharjee made a detailed

representation to the Board on 02.07.2016 in which he raised several

contentions. He contended that no hearing was granted to him before passing

the recovery order. He pointed out that recovery would amount to

imposition of punishment which could not have been done without holding

inquiry. He also contended that the departmental proceedings in which

causing loss deliberately was the charge, has not yet been concluded. He,

therefore, requested that the said order be withdrawn. Since Khadi Board did

not respond to this representation, he filed WP(C) No.765 of 2016

challenging the recovery order dated 21.06.2016.

4. During pendency of this petition Swapan Bhattacharjee expired.

His legal heirs i.e. his widow and son were brought on record. The learned

Single Judge disposed of the writ petition by the impugned judgment dated

16.10.2020 in which it was held that the order of recovery is passed without

any opportunity of hearing being granted. However, the learned Judge

allowed the Khadi Board to make a fresh decision after following the

procedure of issuing notice to the legal heirs of the deceased and after

considering their submissions, if any. This judgment the appellants have

challenged in this appeal.

5. WP(C) No.716 of 2019 is also filed by the legal heirs of the

deceased Swapan Bhattacharjee. They have prayed for a direction for

payment of gratuity with interest and for releasing the unpaid pay and

allowances of the deceased employee.

6. We have heard learned counsel for the parties for final disposal

of these proceedings. The issues involved rest on peculiar facts of the case.

As noted, for alleged irregularities committed by Swapan Bhattacharjee for

the period between 2009-2013 the first action initiated by the Board was to

place him under suspension on 18.09.2014 pending initiation of a

departmental inquiry. Nearly nine months later charge-sheet came to be

issued on 16.06.2015. Till the employee died on 13.09.2018 no worthwhile

progress was made in this departmental proceeding. Thus there was

inordinate and unexplained slowness on part of the management in first

initiating the departmental proceeding and thereafter pursuing the same.

7. These factors must be viewed in context of the parallel events

where the Khadi Board tried to recover the alleged loss of Rs.18,93,316/-

from the employee which according to the Khadi Board occurred due to his

misdeeds. Firstly when a departmental inquiry where the deliberate action of

the employee leading to disappearance of stock of goods was the

foundational charge, a question would be, can recovery be made for such

alleged loss before the inquiry is completed. This is not to suggest that in

every case of loss to the employer which is also a subject matter of

proceedings for punishment, order for recovery must be preceded by the

punishment order in departmental proceedings. In a given case, both may

stand independently and even if the penalty proceedings fail the recovery

could continue. It is not necessary to go into further details of these issues

since in the present case the department passed the order of recovery without

a semblance of opportunity being given to the employee. Recovery of a sum

of Rs.18,93,316/- would result into serious adverse civil consequences

against an employee. No such order could have been passed without proper

opportunity of hearing being given to the concerned employee. Learned

Single Judge, therefore, was perfectly justified in setting aside the said order.

The only question is would it be possible for the Khadi Board now to issue

such a notice and decide the issue afresh. Ordinarily that would be the

correct course. However, as recorded at the outset facts of the present case

are peculiar. Firstly, the Board passed an order of recovery of Rs.18,93,316/-

without any notice whatsoever. Secondly, the order of recovery as well as

the departmental proceedings were grossly belated. Thirdly, unfortunately

the employee died on 13.09.2018. Under these circumstances, it would be

highly unfair and inequitable to call upon the heirs of the deceased employee

to answer to the charges of irregularities in maintaining stock by the

employee for the period between 2009-2013. Nearly seven years after the

alleged incident not the employee himself but his family members would be

called upon to explain why he did not maintain proper stock. Obviously the

heirs of the deceased would have no personal information about his official

dealings and discharge of his duties. The allegations against the employee

are not borne out from the record which can be dispelled by production of

appropriate records. The allegations have element of factual aspects.

Whatever may be the documents, they would be in possession of the

employer and not the employee and at any rate not in the possession of the

legal heirs of the employee. At this distant point of time to call upon the

widow and son of the employee to clear the air about some missing stock

which was purchased close to 10 years back and failure to do which would

be visited with the pain of short payment of Rs. 18,93,316/- from the post

death benefits of the deceased employee, would be wholly inappropriate and

impermissible.

8. In the result, the judgment of the learned Single Judge to the

extent it permits the Khadi Board to restart the recovery proceedings is set

aside. The rest of the judgment remains as it is. The impugned recovery

order dated 21.06.2016 is terminated without further opportunity.

Consequently, the petitioners would be entitled to receive the remaining

amount of post death benefits and unpaid salary and allowances, if any.

Gratuity shall be paid with interest @ 7.5% per annum after a period of three

months from the date of the death of the employee. Pay and allowances

which have remained unpaid if released within a period of three months

from today, there shall be no interest payable thereon. For any period

thereafter there shall be interest liability @ 7.5% per annum from such date

till actual payment.

9. Writ appeal and petition disposed of accordingly.

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

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

Pulak