Sri Sarada Nama Sudra vs The State Of Tripura
2022 Latest Caselaw 915 Tri

                       HIGH COURT OF TRIPURA
                             AGARTALA


                             WA 281 of 2021

      Sri Sarada Nama Sudra, Ex. SPO NO.272, son of late Narendra
      Namasudra, village- West Dalucherra, P.O. Jayantibazar, P.S.
      Salema, Dhalai Tripura, PIN- 799285,
                                                  -----Appellant(s)

                                 Versus

   1. The State of Tripura, represented by the Secretary of Home
      Affairs, New Capital Complex, Kunjaban, Agartala- 799006.
   2. Director General of Police, Tripura, Police Head Quarter,
      Akhaura Road, Agartala, PIN- 799001.
   3. The Superintendent of Police, Dhalai District, Jawaharnagar.
   4. District Magistrate & Collector, Dhalai District, Ambassa.
                                                      -----Respondent(s)

BEFORE HON'BLE THE CHIEF JUSTICE MR. INDRAJIT MAHANTY HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY

For the Appellant(s) : Mr. B.N. Majumder, Sr. Adv.

Mr. R. Saha, Adv.

Mr. D.J. Saha, Adv.

Mr. J. Chakraborty, Adv.

Mr. S. C. Sen, Adv.

Mr. B. Paul, Adv.

For the Respondent(s) : Mr. D. Sharma, Addl. G.A.

Date of hearing           : 18.12.2021
Date of delivery of       : 03.11.2022
Judgment & order
Whether fit for reporting :      Yes No
                                





                                        JUDGMENT&ORDER
                 [Per S.G.Chattopadhyay. J]

This writ appeal is directed against the order dated

26.08.2021 passed by the learned Single Judge in W.P.(C) 79 of 2021

whereby the learned Single Judge dismissed the writ petition of the

appellant who was dismissed from service due to his involvement in a

criminal case. The writ petition was filed under Article 226 of the

Constitution of India to issue a writ of mandamus directing the State-

respondents to reinstate the writ petitioner (appellant herein) in service in

view of his acquittal from the criminal case.

[2] The factual background of the case is as under:

Appellant, Sarada Nama Sudra of Salema of Dhalai district

was appointed as a Special Police Officer (SPO for short) in Khasiapunjee

TSR Camp under Salema Police Station by an order of the District

Magistrate and Collector of Dhalai district issued on 19.08.2002

[Annexure-1 to the writ petition]. It was stated in his said appointment

letter that he was appointed as an SPO along with others for a period of

3(three) months from the date of issuance of the letter for maintaining

peace and protecting the life and property of the inhabitants of the area of

his jurisdiction. Engagement of the appellant was extended from time to

WA 281 of 2021

time and he continued as an SPO in Tripura Police till he was discharged

and his name was struck off from the strength of SPO w.e.f 02.07.2014 in

view of his involvement and detention under arrest in Salema P.S. case

No.19 of 2014 registered under Sections 366A, 506 and 109 read with

Section 34 IPC [Annexure-2 to the writ petition]. The writ petitioner who

is the appellant herein stood the trial in the Court of the Additional

Sessions Judge at Kamalpur in Unakoti Judicial District (as it was then).

At the end of trial, the learned Additional Sessions Judge by an order

dated 03.03.2016 returned the finding of acquittal of the appellant and 3

other co-accused from the charges brought against them. Consequent to

his acquittal, the appellant submitted representation dated 23.7.2016 and

also on 15.12.2017 and thereafter on 21.9.2020 to the departmental

authority seeking reinstatement in service on the ground of his acquittal

from the criminal case. But, his representations yielded no result.

[3] The appellant then approached this Court seeking relief

under Article 226 of the Constitution by filing W.P.(C) No.79 of 2021.

The appellant, being the writ petitioner, sought for the following relieves

in his writ petition:

(i) To issue rule to the respondents to show cause as to why a writ of Certiorari or in the nature thereof shall not be issued quashing / cancelling/ the Order No. L/727-31/SP (DIB)/DLI/JWN/14, dated 15-07-2014 (ANNEXURE-2).

WA 281 of 2021

(ii) To issue rule to the respondents to show cause as to why a writ of Mandamus or in the nature thereof shall not be issued for mandating/directing the respondents to reinstate the petitioner in the post of Special Police Officer (SPO).

(iii) Issue Rule NISI.

                       (iv)    *************


                       (v)     Pass any other order/orders as this Hon'ble Court deems fit and
                               proper.


                 [4]              The State-respondents filed counter affidavit on 22.6.2021

before the learned Single Judge. It was mainly averred in the said counter

affidavit of the Respondents that the writ petitioner (appellant herein) was

engaged on 'No work No pay' basis for a specified period of 03 months in

terms of Section 18 of Tripura Police Act, 2007 and his tenure was

extended from time to time by issuing written orders. Since the writ

petitioner (appellant herein) was involved in a criminal case of serious

nature and he was also arrested and detained in police custody, he was

dismissed from service on the ground of misconduct. State-respondents

annexed the order dated 04.10.2001 issued from the Office of the Director

General of Police, Tripura (Annexure R-1 to the counter affidavit) which

provides that in case of unsatisfactory service, indiscipline or any other

conduct unbecoming of an SPO, he may be discharged by D.M. on a

report by S.P. It was asserted by the respondents that for the given facts, WA 281 of 2021

the writ petitioner (appellant herein) was not entitled to reinstatement

since he was dismissed on genuine ground. According to the State-

respondents, the writ petition was devoid of merit.

[5] Counsel of the writ petitioner (appellant herein) argued

before the learned Single Judge that the termination order was completely

erroneous because the writ petitioner was given no opportunity of hearing

before he was terminated from his engagement. The other limb of

argument of the counsel of petitioner before the learned Single Judge was

that the respondents were under an obligation to reinstate the writ

petitioner in service immediately after announcement of the judgment

acquitting the writ petitioner of the charges brought against him.

[6] While opposing the contentions raised by the petitioner's

counsel, the State-counsel argued before the learned Single Judge that the

writ petition was barred by delay and laches because the petitioner

approached the Court by filing the writ petition in 2021 whereas his

termination dates back to 02.7.2014. The State-counsel, therefore, urged

the Court for dismissal of the writ petition.

[7] Having appreciated the facts and circumstances presented

before the Court and the submissions of learned counsel representing the

parties, the learned Single Judge viewed that writ petitioner (appellant

herein) was terminated from service w.e.f. 02.7.2014 by issuing an order

WA 281 of 2021

dated 15.7.2014 and therefore, the cause of action arose on 15.7.2014.

Since, it was not a case of continuing wrong, petitioner should have

approached the Court seeking judicial remedy within a reasonable period

of time, but he approached the Court after about 7 years i.e. in 2021. The

learned Single Judge, therefore, dismissed the writ petition by order dated

26.8.2021 observing as under:

".........However, I have noticed that the present writ petition filed by the petitioner in the year 2021 challenging his termination order which was issued on 15.07.2014. It is settled proposition of law that mere filing of repeated representations will not enlarge the period of limitation. The courts have consistently observed the delay and laches on the part of litigant will disentitle him to any relief. In this regard, the Supreme Court has settled the law with clarity and observed it with consistency. Normally, a belated service related claim will be rejected on the ground of delay and laches. One of the exceptions to the said rule is cases relating to a continuing wrong. The present one is not a case of continuing wrong. The cause of action arose on 15.07.2014 when the petitioner lost his job, his source of livelihood. The present case is a case of termination under an order issued long back on 15.07.2014 and he approached to the court in the year 2021 by filing writ petition challenging the said termination order. In my opinion, by elapse of time, the claim of the petitioner has become stale and doctrine of laches/limitation will be applied.

In the instant case, nothing prevented the petitioner to challenge the termination order within a reasonable period after his discharge from service under an order dated 15.07.2014. It has been noticed that even after his acquittal vide judgment and order passed on 03.03.2016, the petitioner did not think it necessary to approach this Court within a reasonable period. According to me, the present petition is hit by doctrine of delay and laches.

Having viewed thus, I do not find any merit in the writ petition and accordingly, the same stands dismissed.

However, there shall be no order of costs."

[8] The aggrieved writ petitioner has filed this appeal against the

order of the learned Single Judge mainly on the following grounds:

WA 281 of 2021

(i) The learned Single Judge did not appreciate the fact that the delay occurred because the appellant submitted several representations to the department till 2020 and he was waiting for the response from his department.

(ii) The learned Single Judge did not also appreciate the fact that the termination order was issued without providing reasonable opportunity of hearing to the petitioner.

(iii) The learned Single Judge did not also consider the fact that even though appellant was terminated w.e.f. 02.7.2014, he could not either approach his department or the Court for judicial remedy till 03.3.2016 because the order of his acquittal from the criminal case came to be announced only on 03.3.2016.

(iv) The learned Single Judge did not appreciate the fact that as a result of his termination, petitioner suffered from acute financial crisis along with his entire family for no fault of him.

[9] Heard Mr. B.N. Majumder, learned senior advocate appearing

along with Mr. R. Saha, Mr. J. Chakraborty, Mr. S.C. Sen, Mr. D.J. Saha and

Mr. B. Paul, learned advocates. Also heard Mr. D. Sharma, learned Addl.

Government Advocate representing the State-respondents.

[10] Mr. Nandi Majumder, learned senior counsel appearing for the

appellant contends that the termination order is completely erroneous because

the cardinal principle of natural justice was not followed in the case because the

appellant was given no opportunity of hearing before he was terminated. It is

also contended by Mr. Nandi Majumder, learned senior advocate that the

appellant rendered unblemished service for more than 10 years since his

appointment in 2002. The order of the learned Addl. Sessions Judge would

indicate that petitioner (appellant herein) had no involvement in the alleged

WA 281 of 2021

offence and therefore, he was acquitted from the case. Counsel contends that

after his acquittal, he submitted several representations to his department which

yielded no result at all. According to Mr. Nandi Majumder, learned senior

counsel, the State-respondents should have reinstated the petitioner soon after

he was acquitted from the criminal case because only on the ground of his

involvement in the criminal case, the termination order was issued. Counsel has

therefore urged the Court for setting aside the judgment of the learned Single

Judge.

[11] The State-counsel, on the other hand, had argued that the

appellant was appointed for a specified period. In the terms and conditions of

his appointment, it was stipulated that for any kind of misconduct, he would be

discharged from such engagement. The State-counsel had further argued that

the case was apparently barred by the law of delay and laches because after his

acquittal from the criminal case, petitioner came to Court after about 5 years

and learned Single Judge rightly discarded his claim on the ground of delay and

laches.

[12] We have examined the record and considered the submissions of

learned counsel representing the parties. Section 18 of The Tripura Police Act,

2007 provides that the State Government may, by a written order, appoint for a

period as specified in the appointment order a Special Police Officer to assist

the police service for any area if the police force ordinarily deployed in the area

is not sufficient to deal with a situation threatening peace and security. It would

WA 281 of 2021

be appropriate to reproduce Section 18 of Tripura Police Act, 2007, which

reads as under:

"18. Special Police Officers:

(1) When the police force ordinarily employed in any area is not sufficient to deal with a situation threatening peace and security the Superintendent of Police or any officer, specially empowered in this behalf by State Government, in charge of that area may, at any time by a written order issued under the hand and seal of such officer, appoint, for a period as specified in the appointment order, any able-bodied and willing person between the age of 18 and 40 years, whom he considers fit to be a Special Police Officer to assist the Police Service. (2) Every Special Officer so appointed shall-

(h) on appointment, undergo prescribed training and thereafter receive a certificate in a form approved by the State Government in this behalf; and

(i) shall have the same powers, privileges and protection and be liable to perform same duties and amenable to the same penalties and be sub-ordinates to the same authorities, as an ordinary police officer."

[13] In terms of the power derived from the Tripura Police Act, the

District Magistrate and Collector appointed the appellant as an SPO for a period

of 3(three) months w.e.f. 19.8.2002 by issuing a written order to that effect on

19.8.2002 which is Annexure-1 to the writ petition and extended the term of his

appointment from time to time.

[14] Subsequently, when the appellant was reported to have been

involved in a criminal case involving Sections 366A, 109, 506 and 34 IPC and

he was also arrested and detained in police custody, the Superintendent of

Police of the concerned district by a written order dated 15.7.2014 (Annexure-2

to the writ petition) discharged him from service and his name was struck off

from the strength of SPO w.e.f. 02.7.2014. The said termination order is

reproduced hereunder:

WA 281 of 2021

"Government of Tripura Office of the Superintendent of Police Dhalai District, Jawaharnagar

No. 4727-31/SP(DIB)/DLI/JWN/14 Dated 15/07/2014

ORDER

SPO No. 272 Sarada Namasudra of Panbua SPO Camp, Dhalai District is involved in c/w Salema PS case No.19/2014 dated 02-07-2014 u/s 366(A)/109/506/34 IPC as well as he was arrested and forwarded to the Ld court in c/w the case. Hence I, the under signed hereby discharge him w.e.f - 02-07-2014 FN and his name is struck off from the strength of SPO under Dhalai District.

This is in reference to the DGP TPA Office Order communicated vide NO- 27002-09/F.SC (104-e)/PHQ/SPO/08, Dated 10-07-2009 contained in SL No.13.

Sd/-

(Manchak Ipper IPS) Superintendent of Police Dhalai District, Jawharnagar"

[15] The trial of the criminal case was held in the Court of the Addl.

Sessions Judge at Kamalpur and by an order dated 03.3.2016, the learned trial

court found the appellant not guilty and acquitted him of the criminal charges.

The order of the learned Addl. Sessions Judge reads as under:

                                     "3.3.16                  PRESENT: MR. PAUL
                                               Ld. Addl. PP is present.

Accused persons namely Sarada Namasudra, Sri Tapan Namasudra, Sri Sricharan Namasudra and Chandan Namasudra are present on bail. They are examined U/s 313 Cr.P.C. They declined to adduce any defence witness.

Heard Ld. Addl. P.P. as well as Ld. defence counsel. Ld. Addl. P.P. very fairly submits that in this case there is no incriminating materials against the accused persons.

I have perused the evidence on record.

The prosecution case is that, on 25.6.2014 at about 8 p.m. at West Dalucherra under Salama PS all the accused persons namely Sarada Namasudra, Tapan Namasudra and Chandan Namasudra have abetted another accused Raju Namasudra, who committed abduction of a minor girl namely Kumari ********* (name withheld).

WA 281 of 2021

The prosecution examined 12 witnesses none of which are the victim as well as the informant of this case. PW 1 to 7 and 12 deposed that they knew all the accused namely, Raju Namasudra, Chandan Namasudra, Tapan Namasudra, Sricharan Namasudra and Sarada Namasudra. They also know the victim ******* and her mother ******. They do not know anything about the affair of Raju and Sumitra. PW 8 to 10 deposed that they do not know anything about the this case. PW 11 is a seizure witness and only identified his signature (Exbt.1). The victim and the informant have left the address mentioned in CS and despite best efforts could not be traced. The main accused Raju Das is a juvenile and was tried in the JJB. The accused here are his relatives and not directly involved.

From the evidence adduced by prosecution witnesses I do not find any incriminating materials against the accused persons.

As, there is no iota of evidence against the accused persons, I propose to proceed U/S 232 Cr.P.C and record an order of acquittal of accused, Sarada Namasudra, Sri Tapan Namasudra, Sri Sricharan Namasudra and Chandan Namasudra from the charges U/s 366/34 of IPC. They are already on bail and are, therefore, set at liberty.

Their surety shall, however, be discharged after expiry of the appeal period...."

[16] After his acquittal from the criminal case, the appellant

approached the department by filing repeated representations for his

reinstatement which was not considered by the department. Subsequently,

the appellant approached this Court seeking relief under Article 226 of the

Constitution which was rejected by the learned Single Judge.

[17] From Annexure-R/1 to the writ petition which has been

annexed by the respondents to their counter reply, it is clear that an SPO

can be recruited to assist the police force initially for a period of 4(four)

months and he may be re-appointed if the situation so demands.

[18] The said order dated 04.10.2001 (Annexure R/1) also

provides that an SPO may be discharged on the ground of any misconduct

WA 281 of 2021

which is unbecoming of an SPO. In this case, the petitioner (appellant

herein) being a Special Police Officer was charged with the procuration of

a minor girl along with his associates. During investigation, he was

arrested and detained by police and on the report of such serious

misconduct for which he was discharged from service. The learned Addl.

Sessions Judge in the order of acquittal has clearly indicated that the

evidence of neither the victim nor the informant was recorded during trial.

Evidence of 12 other witnesses was recorded and on the basis of their

evidence the learned Addl. Sessions Judge acquitted the appellant.

Apparently, it was a contractual appointment for a specified period and

under the terms and conditions of his appointment appellant was liable to

be dismissed from service on the charge of any misconduct. Undoubtedly,

the charge brought against the appellant was serious in nature and quite

unbecoming of a Police Officer. Moreover, learned Single Judge rightly

held that the appellant sought for judicial remedy at a lapse of about 5

years and considering such inordinate delay and laches on the part of the

appellant and all other facts and circumstances of the case, learned Single

Judge dismissed his claim for reinstatement in service.

[19] We find no infirmity in the judgment of the learned Single

Judge. Resultantly, the appeal stands dismissed.

In terms of the above, the case is disposed of.

WA 281 of 2021

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

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

Sabyasachi G.

WA 281 of 2021