Shri Nakul Chandra Das vs The State Of Tripura
2022 Latest Caselaw 400 Tri

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                              HIGH COURT OF TRIPURA
                                    AGARTALA

                                  WA No. 87 of 2018
Shri Nakul Chandra Das,
Son of Sri Harendra Ch. Das, resident of village Bhati Abhoynagar, P.O. Agartala, PS
West Agartala, District West Tripura, Pin 799005
                                                                   ----- Appellant(s)
                                       Versus
1. The State of Tripura,
(Represented by the Chief Secretary), Government of Tripura, New Capital
Complex, P.O. Kunjaban, PS New Capital Complex, District West Tripura, Pin
799010.
2. The Deputy Inspector General of Police,
A.P.(Admn        &      Training),    Tripura,      Agartala,       Pin     799001.
3. The Commandant,
7th Battalion, TSR (IR-VI), Sangkumabari, Jampuijala, Sepahijala, Tripura.
4. The Director General of Police,
Government of Tripura, Agartala, Pin-799001.
                                                                 -----Respondent(s)

For Appellant(s) : Mr. Kohinoor N Bhattacharya, Advocate.

For Respondent(s)                      :        Mr. Mangal Debbarma, Addl. GA.
Date of Hearing                        :        23rd March, 2022.
Date of Pronouncement                  :        5th April, 2022.
Whether fit for reporting              :        YES

                                   B_E_F_O_R_E_
               HON‟BLE THE CHIEF JUSTICE MR. INDRAJIT MAHANTY
                   HON‟BLE MR. JUSTICE S.G. CHATTOPADHYAY

                                 JUDGMENT & ORDER

[Per S.G. Chattopadhyay], J

The writ appeal arises from the judgment and order dated

28.09.2018 passed by the learned Single Judge in WP(C) No.425 of 2014.

[2] Factual background of the case is as under:

Appellant who was a rifleman (G.D.) in the 7th Battalion of Tripura

State Rifles (TSR) remained absent in duty for 529 days from 04.02.2012 to

17.07.2013 without any intimation to his authority for which a disciplinary

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proceeding was drawn up against him in terms of Rule 14 of the CCS (CCA) Rules,

1965 read with Rule 40 of the TSR (Discipline, Control, Service Conditions etc.)

Rules, 1986 for imposition of major penalty. An inquiry officer was appointed to

hold enquiry into the articles of charges framed against the appellant and the

inquiry officer after holding inquiry in terms of the procedure prescribed under the

CCS (CCA) Rules, 1965 held the appellant guilty of the charges of misconduct

punishable under section 12 of the TSR Act, 1983 for unauthorizedly absenting from

duty for 529 days and defying the command of his superior officer.

[3] The disciplinary authority accepted the said inquiry report and

proposed major penalty of dismissal from service prescribed under section 12(1)(j)

of the TSR Act, 1983 and the provisional punishment order dated 21.08.2012

(Annexure 11 to the writ petition) was communicated to him inviting his

representation against the proposed penalty. Having considered the representation

(Annexure 12) submitted by the appellant, the disciplinary authority by order dated

05.08.2013 (Annexure 13 to the writ petition) imposed on the appellant minor

penalty of fine of an amount not exceeding his one month's pay and allowances

prescribed under section 12(1)(b) of the TSR Act, 1983 and ordered that period of

his absence from duty without leave w.e.f. 04.02.2012 to 17.07.2013 be treated as

'dies non'. By the same order, his joining report w.e.f. 18.07.2013 was accepted by

the disciplinary authority. Aggrieved appellant challenged the order before the

departmental appellate authority and the departmental appellate authority by order

dated 01.01.2014 (Annexure 15 to the writ petition) concurred with the findings of

the disciplinary authority and rejected the appeal. The appellant then filed the writ

petition challenging the penalty order dated 05.08.2013 and order dated

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01.01.2014 of the departmental appellate authority and sought for direction to the

State respondents to release his pay and allowances by setting aside those orders.

[4] Appellant pleaded before the learned Single Judge that when the

disciplinary proceedings were drawn up against him, he was posted as a Naik in 7 th

Battalion of TSR attached to the GBP outpost as a medical assistant. On

29.05.2002, while he was deployed in anti insurgency operation at Gandacherra in

Dhalai District, he received injury in both of his ears from extremists' attack for

which he was under continuous treatment in GBP hospital at Agartala. The

appellant claimed that he was not willfully absenting from duty. The Assistant

Commandant of his Battalion held an enquiry into his claim of extremists' attack

and injury at Gandacherra which revealed that due to exchange of fire and bomb

during an encounter with an extremist group at Gandacherra on 29.05.2002, he

suffered serious damage in both of his ears for which he was under treatment in

the GBP hospital at Agartala over a long period of time.

[5] Appellant pleaded that he also submitted application for commuted

leave for his absence in duty on medical ground which was not accepted by his

authority. According to the appellant, without affording any opportunity of personal

hearing, disciplinary authority imposed penalty on him which was erroneously

upheld by the departmental appellate authority. Therefore, the appellant sought for

a direction for setting aside the impugned order passed by the disciplinary authority

as well as the order passed by the departmental appellate authority and release his

pay and allowances for the period of his absence in duty.

[6] The State respondents in their counter affidavit contended that

penalty was imposed on the petitioner after conducting departmental proceedings

in accordance with the procedure laid down under the CCS (CCA) Rules and the

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TSR Act, 1983 and the TSR (Discipline, Control, Service Conditions etc.) Rules,

1986. According to the respondents, appellant was afforded opportunity of full

hearing and entire disciplinary proceeding was conducted following the principles of

natural justice. The respondents also pleaded in their counter affidavit that

considering his age, a very lenient view was taken by the disciplinary authority for

his long absence in duty for 529 days. Only one month's pay and allowances was

recovered from him by way of fine and the period for which he was unauthorizedly

absent from duty was treated 'dies non'. The respondents further pleaded in their

counter affidavit there was no merit in the writ petition and therefore same was

liable to be rejected.

[7] After hearing the counsel appearing for the parties, the learned

Single Judge was of the view that there was no error in the impugned order of

penalty because the disciplinary authority imposed the penalty on the petitioner

after conducting an enquiry in accordance with the procedure laid down under the

law and there was no proof of violation of any of the principles of natural justice by

the disciplinary authority in the disciplinary proceedings held against the appellant.

Learned Single Judge, therefore, declined to interfere with the orders passed by the

disciplinary authority as well as the departmental authority in appeal and

consequentially dismissed the petition. Relevant extract of the judgment of the

learned Single Judge is as under:

"12. Indisputedly, the petitioner was on unauthorized absence from 04.02.2012 to 17.07.2013 and reported to duty on 18.07.2013, leave applications which were submitted by the petitioner details of which has been referred to indicates his indiscilined behaviour but still the authority looking to the young age of the petitioner took a lenient view of the matter and considered appropriate that the period during which he remained on unauthorized absence be treated to be dies non which has been referred to under F.R.18 and regularize his long absence from duty. If the petitioner remained on unauthorized

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absence for such a long period and the authority on conclusion of enquiry has to regularize the period on absence w.e.f. 04.02.2012 to 17.07.2013 and treated it as a dies non for which no independent enquiry was required to be initiated and is indeed not a penalty prescribed under Rule 11 of Rules 1965.

13. As regards the apprehension of the petitioner that his past service from the date of joining till he later reported to duty on 18.07.2013 be obliterated for all practical purposes appears to be misconceived. In fact, in service jurisprudence, the terms, „dies non‟ refers to a day which cannot be treated as duty for any purpose while dies non does not constitutes break in service but the period treated as dies non does not qualify as service for pensionary benefits or increment or for any other purposes.

14. To further clarify in cases of abstain from work including on strike the leave sanctioning authority may order that the days on which work has not been performed be treated as dies non, i.e. the day which was treated as dies non will neither count as service nor be construed as break in service and the salary of the day is not paid to the employee on which he has abstain from work or has not transacted with the business of the day, in the circumstances the period treated as dies non means the absence of the day cannot be treated as duty for any purposes but at the same time will not construe as break in service. [15] In the instant case on treating the period from 04.12.2012 to 17.07.2013 as dies non means the period shall not be treated as on duty for any purposes and will not construe as break in service but the period of dies non does not qualify as service for pensionary benefits or increment, etc. which is always with the competence of the authority. More so, it is not the case of the petitioner that while taking a decision in regularizing the period of unauthorized absence in treating it to be as dies non a procedure prescribed has not been followed by the respondents as contemplated under the law.

16. I find no reason to interfere in the disciplinary proceedings initiated against the petitioner under Rules 1965.Consequently, the writ petition is devoid of merit and accordingly dismissed."

[8] Mr. Kohinoor N Bhattacharya, counsel appearing for the appellant

has contended that in order to regularize the period of his absence from duty

appellant filed several leave applications along with medical certificate of his illness

but the disciplinary authority did not sanction any kind of leave to him and

ultimately the disciplinary proceedings were drawn up against him. Counsel of the

appellant further contended that the department was aware about the encounter

with the extremists at Gandacherra on 29.05.2002 in which the appellant received

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injury in both of his ears and the fact that appellant was undergoing prolonged

medical treatment was also known to his department. To facilitate his treatment in

GBP hospital at Agartala, the appellant was posted as a medical assistant in the TSR

unit deployed in GBP hospital. Counsel contended that department should have

considered the grounds which were pleaded by the appellant in his defence and

exonerated him from the charges. Counsel contends that learned Single Judge did

not consider the fact that the period of his absence from 04.02.2012 to 17.07.2013

having been treated as 'dies non' would cause serious prejudice to him inasmuch as

his increment and pensionary benefits will be affected thereby. Counsel submitted

that his absence from duty was totally unintentional and he was not in a position to

discharge his duties with such serious difficulties in both of his ears. Counsel,

therefore, urged the court to consider the case of the appellant sympathetically for

granting relief to him by allowing this appeal.

[9] Mr. M. Debbarma, learned State counsel on the other hand argued

that no evidence could be produced by the appellant in support of his claim that he

received injury in both of his ears in an extremist attack which necessitated his

treatment in GBP hospital for 529 days. Mr. Debbarma, learned State counsel

contended that even if the story of the encounter with the extremists in

Gandacherra on 29.05.2002 is true, there is no evidence that appellant received

injuries in his ears from the said incident. Moreover, the argument of the counsel of

the appellant that the appellant was posted in GBP unit of TSR to facilitate his

treatment was not true because it was the routine transfer and the said posting was

not given to the appellant against any representation submitted by him. Counsel

contended that appellant being a member of a disciplined force should not have

stayed away from duty for such long period of time without prior sanction of leave.

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Counsel contended that the department has already shown leniency to the

appellant by penalizing him only with a fine of an amount not exceeding one

month's pay and allowances and treating his absence from duty as 'dies non'

without break in service. Counsel contended that further leniency would create an

instance for the other members of the force. Counsel, therefore, urged for

dismissing the appeal.

[10] Considered the submissions made by the counsel of the parties.

Perused the record. We had also called for the service records of the appellant to

apprise ourselves about the record of his performance prior to the disciplinary

proceedings and thereafter.

[11] The record would reveal that in the disciplinary proceedings, the

following two charges of misconduct were framed against him:

1. While deployed at GB post in the 7th Battalion, TSR (IR-VI),

appellant was commanded on 04.02.2012 at 2030 hours by the camp in charge of

GB post to report to the Battalion headquarters at Jampuijala. But, the appellant did

not carry out the order and he denied to move to the Battalion headquarters and

thereby committed gross misconduct.

2. While posted at GB post in 7th Battalion, TSR (IR-VI) he remained

absent from duty unauthorizedly from 04.02.2012 onwards and thereby committed

gross misconduct.

[12] As stated, an enquiry was held into the said charges by duly

appointing an inquiry officer. The proceedings were conducted following the

procedure laid down under Rule 14 of the CCS (CCA) Rules read with Rule 40 of the

TSR (Discipline, Control, Service Conditions etc.) Rules, 1986 for imposition of

major penalty. Full opportunity of hearing was provided to the appellant. The

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inquiry officer submitted his inquiry report (Annexure 10 to the writ petition) dated

23.07.2012 holding that the appellant was found guilty of both the charges. On the

basis of the said inquiry report, the disciplinary authority issued provisional

punishment order dated 21.08.2012 (Annexure 11 to the writ petition) proposing

major penalty of dismissal and the appellant was asked to submit his representation

within 15 days from the date of receiving the provisional penalty order. In his

representation (Annexure 12 to the writ petition), the appellant had taken same

defence and stated that in the encounter with extremists at Gandacherra on

29.05.2002 he received injury in his ear which caused severe damage in both of his

ears. He also stated in his representation that he had applied for commuted leave

on medical ground w.e.f. 01.02.2012 because he was indisposed to perform his

duty due to his health condition. But without considering his application for

commuted leave, the disciplinary authority by a Memorandum dated 23.02.2012

proposed to hold departmental proceedings against him on the said charges of

misconduct.

[13] The appellant further asserted that he was rendering service with

diligence since his induction in the cadre in the year 1997 and there was no blot in

his past service. In view of his representation, the disciplinary authority by order

dated 05.08.2013 (Annexure 13 to the writ petition) imposed minor penalty of fine

of an amount not exceeding his one month's pay and allowances and the period of

his absence from 04.02.2012 to 17.07.2013 was treated as 'dies non'.

[14] The appellant preferred appeal against the order of penalty to the

departmental appellate authority and as stated, the departmental appellate

authority by order dated 01.01.2014 (Annexure 15 to the writ petition) held that

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findings of the disciplinary authority called for no interference. His appeal was thus

rejected by the departmental appellate authority.

[15] The learned Single Judge declined to interfere with the findings of

the disciplinary authority as well as with the findings of the departmental appellate

authority mainly on the ground that there was no procedural irregularity in the

disciplinary proceedings and the disciplinary authority in the given facts and

circumstances of the case was competent to impose the penalty.

[16] The service record of the appellant demonstrates that he joined in

the 4th Battalion of TSR as a Rifleman in temporary capacity w.e.f. 15.09.1997 and

later he joined the 7th Battalion. On completion of 5 years of satisfactory service, he

was confirmed in the service on 17.10.2003. His pay was also revised from time to

time without any kind of interruption. He was also promoted to the post of Naik by

an order dated 01.07.2010. The appellant for his remarkable contribution to the

service was awarded Police (Antrik Suraksha Seva) Padak by the Ministry of Home

Affairs, Government of India which was communicated to him by the police

headquarters by their letter dated 18.09.2018. Even after the disciplinary

proceedings and imposition of penalty he did not show any lack of devotion to

service. This Court has not come across any adverse entry against the appellant in

his service record. Rather, he was given cash award on different occasions in

recognition of his gallantry.

[17] Having searched the record, we have noticed the inquiry report

dated 11.03.2012 of Shishir Kumar Das, Assistant Commandant, 7 th Battalion, TSR

(IR-VI) which has revealed that pursuant to a written request of the Commandant

of his Battalion he had undertaken an enquiry and ascertained that the appellant

along with his troops were attacked by extremists on 29.05.2002 at Gandacherra

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under Manu Police Station where exchange of fire took place during the encounter.

The appellant suffered from leakage of eardrums during the incident in both of his

ears which resulted in regular watery discharge from his ears. It was also stated in

the inquiry report of said Shishir Kumar Das that the appellant was undergoing

treatment under Dr. Bhupendra Debbarma, Assistant Professor of

otorhinolaryngology in AGMC and GBP hospital at Agartala who advised the

appellant rest and avoidance of exposure to cold. He was also advised to undergo

surgical intervention for cure of his ailment. Therefore, there is no lie in the

statement of the appellant that he had been suffering from serious ailment in his

ear which resulted from the encounter with extremists at Gandacherra on

29.05.2002.

[18] The department was not unaware of the health conditions of the

appellant. It is not disputed that before the disciplinary proceeding was drawn up

against the appellant, he submitted an application for commuted leave for 30 days

w.e.f. 01.02.2012 on medical ground along with an illness certificate issued by Dr.

J.B. Darlong. But, his application was not responded to by the department. The

disciplinary authority by Memorandum dated 23.02.2012 had drawn up disciplinary

proceedings against him on two charges, one of which, as noted above, was

defiance of the order of the Commandant to report in the Battalion headquarters at

Jampuijala and the other charge was his unauthorized absence from duty w.e.f.

04.02.2012.

[19] Apparently, the appellant was suffering from serious ailment in

both of his ears as a result of leakage in eardrums which was caused to him during

the discharge of his official duties in an encounter with an extremist group at

Gandacherra on 29.05.2002. The information that he attended GBP hospital on

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01.02.2012 and doctor advised him rest for 30 days is also placed on record. On

08.02.2012, the appellant submitted his leave application to his department along

with the medical certificate of illness seeking commuted leave for 30 days on

medical ground. He also applied to the Commandant of his Battalion seeking

exemption from reporting at Jampuijala for duty (Annexure 6). Even thereafter, he

kept informing his department about the progress of his illness with leave prayer

from time to time. His prayers were neither granted nor rejected.

[20] In his written statement of defence against the proposed

disciplinary proceedings, he explained all these circumstances. But, the disciplinary

authority did not consider his representation and continued with the disciplinary

proceedings against him. After enquiry, penalty of dismissal was proposed. Against

such proposal, the appellant submitted a detailed representation. Considering the

representation, the disciplinary authority imposed on him the penalty as above.

[21] Having perused the entire record of the case, we are of the view

that the disciplinary authority should have disposed of the leave application of the

appellant before drawing up a departmental proceedings against him particularly

when he applied for leave on medical ground and an enquiry conducted by his

department itself revealed that he had been suffering from serious ailment in both

of his ears causing regular watery discharge. Moreover, it is no case of the

disciplinary authority that he had no leave in his credit. Apart from it, the

punishment order dated 05.08.2013 would indicate that one of the charges for

which he was punished was his unauthorized absence from his duty w.e.f.

04.02.2012 to 17.07.2013 (529 days). No such charge was actually framed against

him. The article of charge II which was communicated to him along with the

Memorandum dated 23.02.2012 contained as under:

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"ARTICLE-II

That the said No.97040859 NK (M/A) Nakul Chandra Das of „Adm‟ Coy, 7th Bn TSR (IR-VI) while deployed at GB post, 7th Ban TSR (IR-VI) remained absent from duty un-authorizedly wef 04- 02-2012 at 2030 hrs till the day of issue of this memorandum of charge and thereby committed a gross misconduct under section 12(1) of TSR Act, 1983."

[22] As a result, appellant was prejudiced because he was punished for

529 days' absence in duty without framing a specific charge and without affording

him opportunity to explain absence for those 529 days. Moreover, article of charge

I would reveal that on 04.02.2012, the appellant was on duty at GB post when he

was commanded to report for duty in the Battalion headquarters at Jampuijala.

Even, in his written statement of defence (Annexure 9), the appellant asserted that

he was on duty on 04.02.2012 upto 8pm. So, the charge that he absented from

duty w.e.f. 04.02.2012 appears to be doubtful. It is no case of the disciplinary

authority that appellant stayed away from work without any kind of intimation to

his department. From the records which have been placed before this Court, it is

very much clear that the appellant submitted intimation about his illness to the

department at regular intervals and he also applied for leave. When he was

seriously ill, his wife also informed the department about the health condition of her

husband and prayed to the department for release of his pay and allowances.

[23] We cannot but agree that 529 days' absence from duty is a serious

lapse on the part of any member of a disciplined force which calls for appropriate

penal action under the Act and Rules.

[24] But, in the instant case, in view of the entire service record of the

appellant and the peculiar facts and circumstances explained hereinabove, we are

of the view that the penalty imposed on the appellant, if allowed to sustain, will

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cause gross miscarriage of justice. Therefore, Memorandum dated 05.08.2013

(Annexure 13) whereby the penalty was imposed on the appellant is quashed and

consequently the judgment of the learned Single Judge upholding such penalty is

set aside.

[25] The appellant shall be entitled to pay and allowances for the period

of his absence in duty which can be regularized by admissible leave in his credit

including commuted leave and for rest of the period of his absence which cannot be

regularized by leave, he will not be entitled to any pay and allowances.

[26] In terms of the above, the writ appeal stands allowed and disposed

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

[27] The service book of the appellant shall be returned forthwith to

respondent No.3 through the office of the Government Advocate.

    (S.G. CHATTOPADHYAY), J                      (INDRAJIT MAHANTY), CJ




Rudradeep




WA No.87 of 2018