Tripura High Court
Sri Parendra Debbarma vs The State Of Tripura on 8 October, 2021
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HIGH COURT OF TRIPURA
A_G_A_R_T_A_L_A
WP(C) No. 202 of 2020
1. Sri Parendra Debbarma, S/O late Gouranga Debbarma, resident
of Village- Durganagar, P.O. & P.S. Khowai, District-Khowai,
Tripura.
.....Petitioner
-V E R S U S-
1. The State of Tripura, represented by the Principal Secretary to
the Government of Tripura, General Administration (A&R),
Civil Secretariat, New Capital Complex, P.O. & P.S. New
Capital Complex, Agartala, District-West Tripura, 799006.
2. The Principal Secretary to the Government of Tripura, General
Administration (A&R), Civil Secretariat, New Capital
Complex, P.O. & P.S. New Capital Complex, Agartala,
District-West Tripura, 799006 (Disciplinary Authority).
3. Tripura Rehabilitation Plantation Corporation Limited (A
Government of Tripura Undertaking) represented by its
Managing Director, Palace Compound North, Agartala, West
Tripura Pin-799001.
4. The Managing Director, Tripura Rehabilitation Plantation
Corporation Limited (A Government of Tripura Undertaking)
Palace Compound North, Agartala, West Tripura Pin-799001.
5. Deputy Manager, Tripura Rehabilitation Plantation Corporation
Limited (A Government of Tripura Undertaking) North, Zone,
P.O. & P.S. Kumarghat, District- Unakoti Tripura.
6. G.S. Raju, Chief Executive Officer & Project Director, Tripura
Forest Environmental Improvement & Poverty Allevation
Project & Additional Chief Conservator of Forest, Inquiry
Authority, Gurkhabasti, P.S. New Capital Complex, Dsitrict-
West Tripura.
..... Respondents.
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B_E_F_O_R_E
HON'BLE MR. JUSTICE ARINDAM LODH
For Petitioner(s) : Mr. Raju Datta, Advocate.
For Respondent(s) : Mr. M. Debbarma, Addl. G.A.
Mr. D. Sarkar, Advocate.
Date of hearing : 07.05.2021
Date of delivery of
judgment and order : 08.10.2021
Whether fit for reporting : NO
JUDGMENT & ORDER
Heard Mr. Raju Datta, learned counsel appearing for the
petitioner. Also heard Mr. M. Debbarma, learned Addl. G.A. appearing
for the respondents-State and Mr. D. Sarkar, learned counsel appearing
for the respondents No. 3, 4, 5 and 6.
[2] By means of filing this writ petition, the petitioner has
challenged the impugned order of penalty dated 10.01.2020, issued by
the Disciplinary Authority, whereby and whereunder, the promotion of
the petitioner was withheld for a period of three years and further
directed for recovery of Rs.9,08,067/- [Rupees Nine Lakhs Eight
Thousand Sixty Seven] i.e. 50% of the unadjusted amount of
Rs.18,16,134/- [Rupees Eighteen Lakhs Sixteen Thousand One Hundred
Thirty Four only].
[3] Relevant facts, in short, are that the petitioner was initially
appointed as Forest Ranger under the Forest Department, Government of
Tripura, in the year 1982 and on 16.06.2004 he was promoted as Sub-
divisional Forest Officer, TFS, Gr.-II, under the Government of Tripura.
From 13.09.2006 to 27.07.2009, the petitioner was deputed as a Deputy
Manager of Tripura Rehabilitation and Plantation Corporation Ltd.,
[TRPC, for short], a Government of Tripura undertaking, represented by
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the respondents No.3, 4 and 5 herein. During his service on deputation
under TRPC, one departmental proceeding was initiated against the
petitioner alleging, inter alia, that he misappropriated a sum of
Rs.18,16,134/- [Rupees eighteen lakhs sixteen thousand one hundred
thirty four only]. Inquiry was conducted and ultimately, the disciplinary
authority i.e. the Principal Secretary, Government of Tripura, General
Administration (A & R) Department, imposed punishment as stated
hereinabove.
[4] It is stated that the inquiry officer conducted a joint inquiry
in respect of two persons i.e. the petitioner who was an employee of the
Government of Tripura and another person, namely, Sri Bhabatosh Ch.
Dey, Field Officer, who was an employee of the corporation namely,
TRPC. In the said inquiry, common articles of charges were framed
against the petitioner as well as Sri Bhabatosh Ch. Dey. On the basis of
the said inquiry report and statements of witnesses, the disciplinary
authority imposed punishment to the petitioner as well as Sri Bhabatosh
Ch. Dey.
[5] Being aggrieved, the petitioner has filed the present writ
petition challenging the inquiry report and the impugned order of
punishment dated 10.01.2020 passed by the respondent No.2, on the
ground that the respondent No.2 has no locus to act as a disciplinary
authority of the petitioner.
[6] Mr. Datta, learned counsel appearing for the petitioner has
tried to persuade this Court by submitting that the departmental
proceeding was not maintainable as the inquiry and the departmental
proceeding was conducted jointly against two persons i.e. the petitioner
and one Sri Bhabatosh Ch. Dey, who were the employees of different
organizations. As per Sub-rule-1 of Rule-18 of CCS (CCA) Rules, 1965,
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joint departmental proceeding and inquiry is permissible only in a case
where two or more Government servants are involved. But, in the present
case, one employee was from the corporation and the other was an
employee of the Government of Tripura and as such, in the instant case,
joint departmental proceeding and inquiry thereof, is not maintainable.
According to Mr. Datta, learned counsel the entire proceeding was
vitiated, as a common proceeding was conducted against both the
petitioner and Sri Bhabatosh Ch. Dey, whose appointing and disciplinary
authorities are different.
[7] Opposing the submissions of the learned counsel appearing
for the petitioner, Mr. Sarkar, learned counsel appearing for the
respondents No. 3, 4, 5 and 6 has submitted that the disciplinary
proceeding was initiated against the petitioner following the relevant
provisions of the CCS (CCA) Rules, 1965. The petitioner being an
employee of the Government of Tripura his disciplinary authority was the
Principal Secretary, Government of Tripura. Besides, Mr. Sarkar, learned
counsel for the respondents contended that the petitioner in connivance
with another person, namely Sri Bhabatosh Ch. Dey, had defalcated the
public money, which was sanctioned for providing beneficial services to
the persons brought under the scheme.
[8] In reply, Mr. Datta, learned counsel appearing for the
petitioner has submitted that a bare perusal of the evidence would reveal
that the inquiry was proceeded in violation of the principles of natural
justice and none of the charges had been proved. Moreover, according to
Mr. Datta, learned counsel for the petitioner, the prosecution had failed to
adduce any evidence to substantiate the charges. According to Mr. Datta,
learned counsel for the petitioner all the beneficiaries had received the
money, they are entitled under the scheme.
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[9] In view of the aforesaid submissions, question firstly arises
whether a common proceeding could be drawn up against the petitioner,
who was admittedly an employee of the Government of Tripura and Sri
Bhabatosh Ch. Dey, who admittedly was an employee under the TRPCL.
[10] Before I advert to the merits of the case, I have taken note of
Rule-18 of CCS (CCA) Rules, 1965. For the purpose of reference, Sub-
rule-1 of Rule-18 of CCS (CCA) Rules, 1965 may be extracted
hereunder:
"Sub-rule-I. Where two or more Government servants are concerned in
any case, the President or any other authority competent to impose the
penalty of dismissal from service on all such Government servants may
make an order directing that disciplinary action against all of them may
be taken in a common proceeding."
[11] A bare perusal of the aforesaid provision clearly reveals that
common proceeding is permissible only in a case where two or more
government servants are involved and liable to be punished by a single
competent authority. Again, Rule-21 of the CCS (CCA) Rules, 1965, is
relevant to deal with the issue in question raised by the learned counsel
appearing for the petitioner. Rule-21 of the CCS (CCA) Rules, 1965
reads as under:
"Rule-21. Provisions regarding officers borrowed from State
Government, etc.,
(i) Where an order of suspension is made or a disciplinary proceeding
is conducted against a Government servant whose services have been
borrowed by one department from another department or from a State
Government or an authority subordinate thereto or a local or other
authority, the authority lending his services (hereinafter in this rule
referred to as "the landing authority") shall forthwith be informed of
the circumstances leading to the order of the suspension of the
Government servant or of the commencement of the disciplinary
proceeding, as the case may be.
(2) In the light of the findings in the disciplinary proceeding
conducted against the Government servant, if the Disciplinary Authority
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is of the opinion that any of the penalties specified in clauses (1) to (iv)
of Rule-11 should be imposed on him, it may, subject to the provisions
of sub-rule (3) of the Rule-15 and except in regard to a Government
servant serving in the Intelligence Bureau up to the rank of Assistant
Central Intelligence Officer, after consultation with the lending
authority, pass such orders on the case, as it may deem necessary--
(i) Provided that in the event of a difference of opinion between the
borrowing authority and the lending authority, the services of the
Government servant shall be replaced at the disposal of the lending
authority.
(ii) If the Disciplinary Authority is of the opinion that any of the
penalties specified in Clauses (v) to (ix) of Rule-11 should be imposed
on the Government servant, it shall replace the services of such
Government servant at the disposal of the lending authority and
transmit to it the proceedings of the inquiry for such action, as it may
deem necessary."
[12] Now, it will be useful to reproduce the order dated
04.12.2010, drawing up common disciplinary proceedings against the
petitioner as well as Sri Bhabatosh Ch. Dey.
No. F.11(28)-GA(AR)/09/2139-2142
GOVERNMENT OF TRIPURA
GENERAL ADMINISTRATION (AR) DEPARTMENT
Dated, Agartala the 4the December, 2010.
ORDER
WHEREAS the Government servants specified in the margin are jointly
concerned in a disciplinary case.
NOW, THEREFORE in exercise of the powers conferred in Sub-Rules
(1) and (2) of Rule-18 of Central Civil Services (CC&A) Rules, 1965, the
undersigned hereby directs:
(1) Shri Parendra Debbarma,TFS Gr. II, Ex. (1) That the disciplinary action against the
Dy. Manager, TRPC Ltd., North Zone, said two Government servants shall be taken
Kumarghat now posted in the O/o the PCCF, in a common proceeding.
Tripura, Agartala
(2) Shri Bhabatosh Ch. Dey, Field (2) That the undersigned shall function as
Supervisor, Ex-Officer In-charge Purba Disciplinary Authority for the purpose of the
Dalubari Rubber Plantation Centre of TRPC Common Proceeding and shall be competent
Ltd. to impose any of the penalties mentioned
under Rule-11 of the CCS.
(3) That the procedure prescribed in Rule-14
and 15 shall be followed in the said
proceeding.
G.K. Rao.
(Principal Secretary to the Government of Tripura
Disciplinary Authority.)
To,
1. Shri Parendra Debbarma, TFS Gr. II, Ex. Dy. Manager, TRPC Ltd.,
North Zone, Kumarghat now posted in the O/o the PCCF Tripura,
Agartala.
2. Shri Bhabatosh Ch. Dey, Field Supervisor, Ex-Officer In-charge,
Purba Dalubari Rubber Plantation Centre of TRPC Ltd.
[13] A bare perusal of the order dated 04.12.2010 clearly reveals
that the Principal Secretary to the Government of Tripura had ordered to
initiate a common disciplinary proceeding against both the petitioner and
Sri Bhabatosh Ch. Dey himself, he being the disciplinary authority.
Admittedly, the petitioner and Sri Bhabatosh Ch. Dey belong to different
organizations i.e. the former belongs to Government of Tripura and the
later belongs to the TRPCL. The petitioner was an officer under the
Government of Tripura serving as Sub-Divisional Forest Officer,
Department of Forests, Government of Tripura and he was borrowed by
the TRPCL. The petitioner, therefore, was discharging his duties on
deputation under the TRPCL.
[14] As I said earlier, In view of the order of drawing up of
common proceeding, an inquiry officer was appointed and after
completion of inquiry, the inquiry officer submitted his report.
Thereafter, the disciplinary authority i.e. the Principal Secretary,
Government of Tripura, imposed punishment upon the petitioner and Sri
Bhabatosh Ch. Dey as stated hereinabove. However, there cannot be any
dispute that the petitioner was under disciplinary control of the State
Government, whereas, Sri Bhabatosh Ch. Dey, who was under the
disciplinary control of the TRPCL.
[15] In view of sub-rule-1 of Rule-18, a joint inquiry is
permissible only when the employees belong to the same
organization/department. More so, in view of Rule-21 of the CCS (CCA)
Rules, as reproduced hereinabove, the TRPCL was the "lending
authority" which had borrowed the services of the petitioner, who was
serving under the State Government.
[16] In WP(C) No. 267 of 2003, titled as Sri Chandan
Majumder vs. The TRTC & 3 Others, similar question arose and while
dealing with the matter, the learned Single Judge of this Court at para-10
had held that:
"10. Apart Rule-21 of the CCS (CCA) Rules, 1965, there is no provision
in the CCS (CCA) Rules, 1965 to deal with a common proceeding
against a borrowed employee and an employee of the authority or
undertaking which borrowed the said employee. Rule-18 of the CCS
(CC&A) Rules, 1965, therefore, has no application for drawing up a
common proceeding against the petitioner and the said Dilip Kumar
Chowdhury. As such, drawing up of the common proceeding was
without the authority since the initiation*****."
[17] In the case in hand, the Principal Secretary, Government of
Tripura had drawn a common proceeding against his own employee, i.e.
the petitioner who was borrowed by TRPCL and the employee of the
TRPCL which, according to this Court, in view of the aforesaid
principles drawn by the learned Single Judge of this Court in WP(C) No.
267 of 2003, was without any authority of law since its initiation.
[18] I have no reason to disagree with the above principle
delineated by a coordinate Bench of this Court, and further to hold that
the common proceeding as initiated by the Principal Secretary to the
Government of Tripura was inconsistent to the provisions as
contemplated under Rule-21 of the CCS (CCA) Rules, 1965.
[19] Having held so, the joint inquiry against the petitioner as
well as Sri Bhabatosh Ch. Dey, is un-authoritative and illegal vitiating
the entire proceedings. Accordingly, the proceeding and the penalty
imposed upon the petitioner are liable to be set aside and accordingly, the
impugned order of punishment dated 10.01.2020 shall stand set aside.
However, it is made clear that the competent authority of the State
Government may initiate proceeding against the petitioner in accordance
with law. Since I have already set aside the proceeding and the
punishment thereof, on the sole issue of the competency of the
disciplinary authority in initiating the joint proceeding against the
petitioner alongwith another person, I do not feel it necessary to enter
into the merits of other issues as raised in the present writ petition.
[20] With the aforesaid observations and directions, the instant
writ petition stands allowed and disposed. Pending application(s), if any,
also stands disposed.
JUDGE
A.Ghosh
