Sri Sanjit Debbarma vs The State Of Tripura
2023 Latest Caselaw 560 Tri

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                   HIGH COURT OF TRIPURA
                         AGARTALA

                         WP(C) No.632 of 2022
   Sri Sanjit Debbarma,
   S/O Late mansingh Debbarma
   of- Ujain Abhoynagar P.O.- Agartala,
   District- West Tripura
                                                          ....Petitioner(s)
                    Versus

   1. The State of Tripura
      represented by the Chief Secretary, Department of Home (Jail),
      Secretariat Building, New Capital Complex, P.O.- Kunjaban,
      Agartala, West Tripura.
   2. Chief Secretary,
      Home (Jail) Department, Government of Tripura, Secretariat
      Building, New Capital Complex, Agartala, West Tripura
   3. Secretary,
      Home(Jail) Department, Government of Tripura, Secretariat Building,
      New Capital Complex, Agartala, West Tripura.
      Government of Tripura, Agartala, West Tripura
   4. Commissioner of Departmental Enquiries,
      Government of Tripura, Gurkhabasti, Agartala, West Tripura.
   5. Inspector General of Prisons
      Government of Tripura, Prisons Directorate, Agartala, West Tripura,
      P.O.- Dhaleswar.
                                                       ....Respondent(s)

For the Petitioner(s) : Ms. R. Purkayastha, Advocate For the Respondent(s) : Mr. D. Bhattacharjee, G.A.

                                        Mr. S. Saha, Advocate
Date of hearing and
Delivery of Judgment & Order        :   01/08/2023
Whether fit for reporting           :   Yes



           HON'BLE MR. JUSTICE ARINDAM LODH
                        JUDGMENT & ORDER (ORAL)

Heard Ms. R. Purkayastha, learned counsel appearing for the

petitioner. Also heard Mr. D. Bhattacharya, learned G.A. assisted by Mr. S.

Saha, learned counsel appearing for the respondents.

2. By means of filing the instant writ petition, the petitioner has

challenged the imposition of penalty of withholding of 2(two) increments

without cumulative effect vide order dated 08.12.2021 (Annexture-L to the

writ petition), which was also upheld and affirmed by the appellate authority

under the order dated 12.05.2022 (Annexure-N to the writ petition).

2.1. During the course of proceeding before the inquiring authority, the

prosecution, i.e., the department concerned had produced one witness, namely

Bhaskar Ghosh, who deposed as PW-2. The inquiring authority had formulated

the following three points for decision:-

"(1) Whether the Accused Officer, Sri Sanjit Debbarma, Jailor, while posted at Kamalpur Sub-Jail had sent two convicted prisoners namely Nripendra Debnath and Sanjit Debnath, to a rice mill at Fuljari Bazar, in civil dresses, to carry 11 bags of his paddy crop for being milled into rice, without any escort or prior permission from appropriate authority thereby jeopardizing and causing breach of the security of the jail and giving opportunity to the said prisoners to flee away from the jail custody?

(2) Whether, the AO, Sri Sanjit Debbarma had violated the provisions of Rule 242 and 248 of the Bengal jail Code? (3) Whether, the AO, Sri Sanjit Debbarma, due to the above, has failed to maintain absolute integrity and devotion to Govt. duty and thereby violated the provisions of Rule 3(1) & Rule 3(2)(i) of the TCS (Conduct) Rules, 1988?"

2.2. Shortly stated, the petitioner while posted as Jailor at Kamalpur

Sub-Jail, was subjected to disciplinary proceeding on the following article of

charge:-

"STATEMENT OF ARTICLES OF CHARGE FRAMED AGAINST SHRI SANJIT DEBBARMA, JAILOR, SABROOM SUB-JAIL, SOUTH TRIPURA Article-I

That the said Shri Sanjit Debbarma, Jailor, Sabroom Sub-Jail while posted at Kamalpur Sub-Jail on 04th march, 2016, failed to maintain integrity to duty. He sent two convicted prisoners namely Sri Nipendra Debnath and Sri Sanjit Debnath in civil dresses in a rice mill at Fuljari Bazar located alongside the Kamalpur-Ambassa road at distance of about 800 meters from the Kamalpur Sub-Jail to Carry 11(eleven) bags of his paddy crop to the mill for being milled into rice without any escort or prior permission from appropriate authority. Thereby, Sri

Sanjit Debbarma, the then Jailor of Kamalpur Sub-Jail violated provision of Rules 242 and 248 of Bengal Jail Code, Vol-I, Part-1 and Rule 3(1) and 3(2)(i) of Tripura Civil Servies (Conduct) Rules, 1988."

2.3. On conclusion of recording of evidence, the inquiring authority

submitted his report dated 30.07.2019. While deciding the point no.1, the

inquiring authority in his findings stated that "however, the prosecution had

not exhibited any of these listed documents other than Sl. No.2, i.e. the

statement submitted by PW-2, as evidence, due to which the lack of both

documentary evidence and oral evidence through witness had failed to

establish the validity of the charge against the AO of sending the two convicted

prisoner on his personal work in plain/civil clothes outside the jail premises

without escort and prior permission of the authority. Hence, as the Presenting

Officer had failed to submit/produce neither documentary evidences nor oral

evidences in support of the charge of utilizing the services of the convicted

prisoners for personal works that too by jeopardizing the security of the prison

by the AO, Sri Sanjit Debbarma, as such the decision of Point No.1 is given in

the negative and goes in favour of the defence and against the prosecution."

2.4. While deciding point no.2, the inquiring authority found that the

charged officer was not aware of Rules 242 of the Bengal Jail Code (for short,

"BJC"). During his examination under Rule 14 (18) of CCS (CC&A) Rules,

1965, the Accused Officer (for short, "AO") specifically denied the allegations

brought against him and stated that he was not aware of such incident.

However, the inquiring authority found him guilty of misconduct for ignorance

of Rule 242 of the Bengal Jail Code (herein-after referred to as "Jail Code).

2.5. While deciding point no.3, the inquiring authority came to a

finding that the charged officer has failed to maintain absolute integrity and

devotion to government duty and thereby violated the provision of Rule 3(1)

and Rule 3(2)(i) of Tripura Civil Services (Conduct) Rules, 1988, since point

no.2 has been established against the charged officer that he was ignorant of

Rules 242 of Jail Code.

2.6. After receipt of the enquiry report, the disciplinary authority

communicated his finding to the petitioner vide memo dated 21.01.2020

(Annexure-D to the writ petition) wherein the disciplinary authority came to a

finding that he had disagreed with the findings of the inquiring authority that

the article of charge had partially been proved and held the charges been fully

proved. This correspondence dated 21.01.2020 issued by the Principal

Secretary, Home (Jail) Department, who is the disciplinary authority had been

challenged by the petitioner by way of filing of a writ petition which was

numbered as WP(C) No.742 of 2020 titled as Sri Sanjit Debbarma Vs. The

State of Tripura & Ors. While disposing of the said writ petition, a coordinate

Bench of this Court (Justice Akil Kureshi, the then C.J) vide order dated

08.01.2021 had disposed of the writ petition with the following observation

and directions:-

"This assertion of the disciplinary authority defies all logic. To begin with he had to record his tentative reasons of disagreeing with the findings of the inquiry officer and then gave a notice to the petitioner to respond to the same. He instead, after making above noted strange observations recorded that he has disagreed with the finding of the inquiry officer. His disagreement is thus final and not tentative. More importantly, it is based on no evidence. No disciplinary proceedings can proceed on assumption of examination of witnesses or of production of documents which are not produced; and of more efficient functioning of the inquiry officer to the satisfaction of the disciplinary authority.

The impugned communication dated 21.01.2020 is therefore set aside. Let the disciplinary authority take a final decision on the report of the inquiry officer as it stands. In the process, he shall take into account the contention of the petitioner that there was no evidence whatsoever which would even enable the inquiry officer to hold the charge partly proved. This exercise shall be completed within four months from today.

Petition disposed of accordingly."

2.7. Thereafter, the disciplinary authority, i.e., the Principal Secretary

Home (Jail) Department vide communication dated 06.03.2021 requested the

petitioner to submit representation in the manner as under:-

"Government of Tripura Home (Jail) Department

No.F.X-501/IGP/2017/323 Dated, the 06th march, 2021

To Sri Sanjit Debbarma, Jailor, Kailashahar District Jail, Unakoti Tripura.

Subject:- Sending of copy of the findings in connection with Case No.169/InQ/CDI/JAIL/18.

Sir, A charge Memorandum was drawn up against you vide No.F.X- 501/IGP/2016/950-51 dated 09/02/2017. Inquiring Authority was appointed to inquire into the charges.

The Inquiring Authority submitted a report which is enclosed. The inquiring Authority held the charges as "partly proved".

The Discplinary Authority had disagreed with the findings of the Inquiring Authority and held the charges as fully proved vide communication dated 21st January, 2020.

However, in connection with Case No.W.P(C) No.742 of 2020 order dated 08.01.2021 the Hon'ble High Court of Tripura had issued order that communication dated 21st January 2020 shall be deemed to have been set aside and also directed the Disciplinary authority to take final decision on the report of the Inquiring Officer as it stands.

In view of the above, you are requested to submit your views, if any, on the findings of the Inquiring Authority, within 15 days from receipt of this letter as per Rule 15(2) of CCS (CCA) Rules, 1965.

Yours Faithfully, Enclo:As stated.

Sd/- illegible (BARUN KUMAR SAHU, IAS) Disciplinary authority Principal Secretary Home (Jail) Department"

In response to the said communication dated 06.03.2021, the

petitioner had submitted representation.

2.8. In the above background facts, I have heard Ms. R. Purkayastha,

learned counsel for the petitioner and Mr. D. Bhattacharya, learned G.A.

assisted by Mr. S. Saha, learned counsel appearing for the respondents.

2.9. Ms. Purkayastha, learned counsel for the petitioner has submitted

that after consideration of the representation, the disciplinary authority imposed

punishment upon the petitioner by order dated 14.06.2021. Though, in the said

punishment order it was stated that the disciplinary authority had taken the

concurrence of Tripura Public Service Commission (for short, "TPSC"), but no

materials related to the advice of TPSC, which forced the petitioner to file

another writ petition which was numbered as WP(C) No.457 of 2021 titled as

Sri Sanjit Debbarma Vs. The State of Tripura & Ors. A coordinate Bench of

this Court disposed of the writ petition vide order dated 10.09.2021 in the

following manner as under:-

"Petitioner has challenged an order dated 14.06.2021 by which the Principal Secretary as a disciplinary authority has imposed a punishment of withholding of two increments for two years without cumulative effect. While issuing notice in the petition, it was highlighted that the main ground of challenge of the petitioner was that the disciplinary authority had sought and relied upon the advice of the TPSC which was in any case a statutory requirement, before passing the impugned order without providing a copy of the advice of the TPSC and permitting the petitioner to make a representation with respect to the same.

In this respect, in the affidavit-in-reply filed by the respondents it is stated that:

"Thirdly, it is mentioned here that due to oversight copy of the concurrence of the TPSC was not provided to the petitioner."

Only on this ground of non-supply of copy of the advice of the TPSC to the delinquent and giving opportunity of making representation with respect to the contents thereof before taking into consideration for coming to the final conclusion, the impugned order must go. Learned counsel for the petitioner correctly points out that the law on the topic is sufficient to hear through the decisions of Supreme Court in case of Union of India and others vrs. S.K. Kapoor reported in (2011) 4 SCC 589 and Union of India and others vrs. R.P. Singh reported in (2014) 7 SCC 340.

Impugned order is set aside. The respondents shall provide a copy of the advice of the TPSC to the petitioner, enable the petitioner to make a representation with respect to the same and thereafter may pass fresh order in accordance with law. Entire exercise may be completed within four months from today. Since the impugned order is set aside only on this ground, I have not examined any of the other grounds of the petitioner. If the disciplinary authority passes a fresh order which is

adverse to the petitioner, it would be open for the petitioner to challenge the same on all grounds available in law.

Petition disposed of accordingly."

2.10. In compliance of the order dated 10.09.2021, the petitioner was

supplied with the copy of the advice of TPSC against which the petitioner also

submitted representation on 02.11.2021(Annexure-K to the writ petition).

Thereafter, the impugned order of punishment dated 08.12.2021 had been

passed imposing the above penalty upon the petitioner. The petitioner preferred

an appeal before the appellate authority, but, it was dismissed upholding the

impugned order of penalty imposed by the disciplinary authority.

3. Ms. Purkayastha, learned counsel for the petitioner has strenuously

argued that, in the instant case, punishment has been imposed based on no

evidence. Learned counsel for the petitioner has drawn my attention to the

article of charge as well as the evidence let in by the department concerned, i.e.,

PW-2, Bhaskar Ghosh. For convenience, the evidence of Bhaskar Ghosh may

be reproduced here-in-below, in extenso:-

"English Rendering of Statement of Bhaskar Ghosh Statement I, Sri Bhaskar Ghosh, aged about 32 years, S/O Sri Bimal Ghosh, presently posted at Kamalpur Subjail as warder, am voluntarily deposing my statement today on 5th day of March, 2015 A.D. in the evening at 4.15 p.m. in presence of the following witnesses before the Kamalpur Sub-Divisional Magistrate.

Yesterday 4th March 2016 A.D. at 6.50 a.m. in the morning, I and my colleague warder Sri Shibuprasad Chakraborty jointly had taken over the charge of work schedule of 9 prisoners from the concerned jamadar Sri Samiran Bhowmik. Out of these 9 prisoners, I had taken the charge of 4 prisoner under my personal supervision and the responsibility of rest 5 prisoners was taken by Sri Shibuprasad Chakraborty. Sri Nripendra Debnath and Sri Sanjib Debnath were amongst the five prisoners whose liability was lying with Sri Shibuprasad Chakraborty. Since, I was feeling unwell, so I handed over the charge of 5 prisoners under my personal supervision, to warder Sri Swapan Debbarma, deployed at jail Gate at 10.30 min. Then I returned

to the barrack. I had informed about my illness to the Jailor and the jamadar Sri Braja Kumar Debbarma.

Witnesses Illegible Bhaskar Ghosh Ilegible Jail Warder 05/03/2016 Recorded by me and read over to the deponent Sd/- 06/03/2016 SDM Kamalpur."

4. On going through the evidence of PW-2, I find that PW-2 nowhere

had stated that he had seen the two prisoners, namely Nripendra Debnath and

Sanjib Debnath to go outside the jail premises. The documents produced by the

presenting officer only proved that the concerned duty officer i.e. Samiran

Bhowmik due to his illness handed over the charge of 4(four) prisoners, who

were under his control, to one Shiburprasad Chakraborty, another Jail Warder

of the same jail.

5. In this situation, the inquiring authority held that the article of

charge in respect of the allegation that the Jailor had committed misconduct

since he allowed two prisoners to go outside the jail premises to carry 11 bags

of paddy crop to the mill for being milled into rice without any escort or prior

permission from appropriate authority.

6. As I said earlier, the inquiring authority had formulated 3(three)

points to determine the extent of misconduct allegedly committed by the

petitioner which have been quoted in the preceding paragraphs of the judgment.

7. Learned counsel for the petitioner has submitted that since the 1st

point has been decided in favour of the petitioner, then the two other charges

being interlinked or correlated to the first point, automatically, the remaining

two points would be of no consequence. Learned counsel has reiterated that it is

a case based on no evidence and as such, the said order of penalty is liable to be

quashed.

8. On the other hand, Mr. Bhattacharya, learned G.A. has strongly

opposed the contention advanced by the learned counsel for the petitioner.

Learned G.A. has tried to persuade this court that it is settled proposition of law

that every charge has to be proved independently and there is no straight

formula that if one charge is not proved, the charged officer cannot be held to

be guilty on the basis of other established charges.

According to learned G.A., the disciplinary authority has the right

to impose penalty if he is convinced that other charges have been proved. To

substantiate his submissions, learned G.A. has placed reliance upon the case of

Deputy General Manager (Appellate Authority) & Ors. Vs. Ajai Kumar

Srivastava, reported in (2021) 2 SCC 612 [SCC, p-626, 627; para 22, 23, 24,

25, 26, 27 and 28]. Learned G.A. has tried to persuade this Court that when

there is evidence, then the exercise of power of judicial review of this Court is

very limited under Article 226 of Constitution of India. I have noticed that in

Ajai Kumar Srivastava (supra) the Hon'ble Supreme Court in para 39 has

clearly held thus:-

"39. The constitution Bench has clearly laid down that even after the charges which have been proved, justify imposition of penalty, the court may not exercise its power of judicial review."

What the Hon'ble Supreme Court wanted to settle is that amongst

many charges, if one of the charges is proved and justify imposition of penalty,

in that case the Court may not exercise his power of judicial review on the

pretext that other charges have not been proved.

9. I have given my thoughtful consideration to the submissions

advanced by learned counsel appearing for the parties.

10. The point to be determined in the present case whether the

punishment imposed upon the petitioner is based on no evidence. There is no

quarrel in the proposition of law that the court can exercise its extraordinary

power of judicial review under Article 226 of Constitution of India if it finds

that punishment upon a delinquent/charged officer is based on the basis of no

evidence, which has also been held by the Hon'ble Supreme Court in the case

of Ajai Kumar Srivastava (supra).

11. On bare perusal of the evidence let in by Bhaskar Ghosh (PW-2),

it is crystallized that PW-2 has not stated anything that the Jailor, i.e. the

petitioner herein, has allowed the prisoners to go outside the jail premises to

bring some articles as charged. It is the inquiry officer himself who came to a

finding that the presenting officer or the department concerned had failed to

establish the fact that the two prisoners went outside the jail premises on

04.03.2016.

12. According to me, the disciplinary authority could not assign any

reason while rejecting the finding of the inquiry authority. There is absolutely

no evidence which prompted the disciplinary authority to come to a finding that

the petitioner, being Jailor had allowed the two prisoners to go outside the jail

to bring some articles. The Warder, Shiburprasad Chakraborty under whose

custody the prisoners were on 04.03.2016, was not examined by the

prosecution. Even the prisoners were not produced before the enquiry officer to

justify the charge levelled against the petitioner. It is the allegation in the

charge that they were sent to bring paddy from market, but no such witness had

been produced by the prosecution to justify the allegation that they went to the

market to bring paddy. If that be so, the mill owner or the mill person could

easily be produced by the prosecution to establish the charge.

13. Considering the aforesaid circumstances, in my opinion, the entire

allegation levelled against the petitioner is found to be baseless and the

respondents have miserably failed to establish the article of charge framed

against the petitioner. The findings of the inquiry officer, in my opinion, seem

to be correct that the department concerned had failed to establish the article of

charge framed against the petitioner.

14. The next two points as formulated by the inquiry officer as to

whether the AO had violated the provisions of Rule 242 and 243 of the BJC

and whether the charged officer, i.e. the petitioner has failed to maintain

absolute integrity and devotion to Government duty, in my opinion, these two

points are interlinked and co-related to point no.1. Once it is established that the

prosecution has failed to establish the article of charge that the petitioner had

sent two prisoners outside the jail premises to pound paddy in a mill, then,

automatically there would be no violation of the provisions of Rules 242 and

248 of the BJC. Rules 242 and 248 of the Bengal Jail Code may be re-produced

here-in-below:-

"242. The Jailer shall be the chief executive officer of the jail and shall control the whole subordinate jail establishment under the orders of the Superintendent and shall assist the Superintendent on all occasions, and see that his instructions are carried into effect. He shall be responsible for the strict carrying out of all the rules in this Code relating to the management of the jail and prisoners. He should therefore make himself thoroughly acquainted with the rules and with the circulars issued by the Inspector-General.

248. His chief duties are to secure the safe custody of prisoners, to enforce discipline among prisoners and his subordinates, to ensure that prisoners sentenced to rigorous imprisonment do the work assigned to them, and to maintain a high standard of health among them so far as this can be secured by strict compliance with the rules and orders made with this object. The sedulous attention to all matters which can improve the health of the prisoners will be considered one of the highest qualifications for the post of Jailer. He shall visit every part of the jail daily, including cells and hospital, and see every prisoner at least once in every 24 hours."

15. At the cost of repetition, I reiterate, since there is no proof that the

petitioner being the jailor at that relevant point of time allowed the two

prisoners to go outside the jail premises, there is no question of violation of the

provisions as laid down in Rules 242 and 248 of BJC. I have noticed that the

inquiry officer has given a finding in his report that at the time of examination

of the AO, he stated that he was not aware of Rules 242 and 248 of the Jail

Code, which led the inquiry officer to come to come to a finding that the

accused officer had committed misconduct due to mere ignorance of the above

rules. In my opinion, ignorance of any rule or law will not constitute

misconduct if it does not lead to commit any illegalities in the performance of

one's duties. Since I have come to a finding that ignorance of law does not

amount to misconduct, then it can easily be said that point no.3 as formulated

by the inquiry officer is not established.

16. Next, on perusal of the impugned order of punishment dated

08.12.2021, I find that there is no discussion on the satisfaction of the

disciplinary authority to come to a conclusion that the accused officer i.e., the

petitioner herein had committed misconduct. Here, the disciplinary authority

has not assigned any reason to substantiate the misconduct allegedly committed

by the petitioner. Furthermore, the learned G.A could not substantiate that the

letter dated 21.10.2021 issued by the disciplinary authority addressed to the

petitioner is a note of disagreement. In my opinion, letter dated 21.10.2021

reproduced here-in-above is simply a letter asking the petitioner to submit his

representation. There is nothing to satisfy this court that it is a note of

disagreement.

17. I have taken into consideration the ratio of the decision rendered

by the Hon'ble Supreme Court in Ajai Kumar Srivastava (supra). It is a case

where article of charge framed against the delinquent officer for

misappropriation of fund. Altogether 7(seven) charges were framed and the

Hon'ble Supreme Court came to a finding that there are materials to justify the

imposition of penalty upon the delinquent officer. It is no longer res integra

that to establish a charge in a departmental proceeding, strict rule of evidence is

not required and it can be decided on the evidence of preponderance of

probability, but, to apply the doctrine of preponderance of probability, some

reliable evidence must be on record which may convince the court to justify the

imposition of penalty upon the delinquent officer.

18. In Ajai Kumar Srivastava (supra) a three Judge Bench of the

Hon'ble Supreme Court has categorically held that in case of disagreement,

duty castes upon the disciplinary authority to record the reasons for

disagreement and after affording an opportunity of hearing to the delinquent,

may record his own findings if the evidence available on record is found to be

sufficient for such exercise or else remit the case to the inquiry officer for

further inquiry. It is further held that strict rules of evidence are not applicable

to departmental proceedings. However, the only requirement of law is that the

allegation against the delinquent must be established by such evidence acting

upon which a reasonable person acting reasonably and with objectivity may

arrive at a finding upholding the gravity of charge against the delinquent. The

Hon'ble Supreme court has further held that mere conjecture and surmise

cannot sustain finding of guilt even in the case of departmental proceeding. As

I said and discussed earlier, the present case is a case where penalty has been

imposed upon conjectures and surmises. Added to it, the disciplinary authority

has failed to record his own reasons of disagreement with the findings of the

inquiry officer while deciding the point no.1 in respect of the charge that the

petitioner had allowed the two prisoners to go outside the jail premises to carry

paddy crop to the mill for being milled into rice and virtually, there is no "note

of disagreement".

18. In this situation, according to me, the court must exercise its power

of judicial review under Article 226 of Constitution of India.

In view of the above and for the reasons discussed aforesaid, in my

opinion, the findings of the disciplinary authority is wholly perverse.

In the light of above conspectus, the impugned orders of penalty

passed by the disciplinary authority as well as the appellate authority need to be

interfered with and, are, accordingly interfered. The orders of penalty are

accordingly set aside and quashed.

19. With the above observations, the writ petition stands allowed and

thus disposed of.

JUDGE

SAIKAT Digitally signed by SAIKAT KAR

KAR Date: 2023.08.08 16:27:39 +05'30'

Rohit