Tripura High Court
Dr. Mihir Kr. Das vs The Tripura State Pollution ... on 7 August, 2023
1
HIGH COURT OF TRIPURA
AGARTALA
WP(C) 959/2021
Dr. Mihir Kr. Das, Age-57 years
S/O- Lt. Sachindra Ch. Das,
R/O- Ramnagar Road No.8,
P.O- Ramnagar, Agartala,
District- West Tripura, Pin- 799002
.....Petitioner
-VERSUS-
1. The Tripura State Pollution Control Board, to be represented
by the Member Secretary, Tripura State Pollution Control Board, P.N.
Complex, Gorkhabasti, Agartala, West Tripura, PIN-799006
2. The Member Secretary, Tripura State Pollution Control Board,
P.N. Complex, Gorkhabasti, Agartala, West Tripura, PIN-799006
3. The Commissioner of Departmental Inquiries, Government of
Tripura, P.N. Complex, Gurkhabasti, Agartala, West Tripura, PIN-
799006
4. Sri Bishu Karmakar, Scientist 'B', Tripura State Pollution
Control Board, P.N Complex, Gurkhabasti, Agartala, West Tripura.
.....Respondents
For Petitioner(s) : Mr. K. Nath, Advocate
For Respondent(s) : Mr. Ratan Datta, Advocate
Date of hearing & delivery : 07.08.2023
of judgment & order
Whether fit for reporting : No
HON'BLE MR. JUSTICE ARINDAM LODH
JUDGMENT & ORDER (ORAL)
The main challenge in this writ petition is the competency of a
"full-time Member Secretary" to act as disciplinary authority under the Tripura
State Pollution Control Board. The said full-time Member Secretary issued the
impugned memorandum dated 20.03.2020 whereby and whereunder he
proposed to hold a disciplinary inquiry against the petitioner under Rule 14 of
the CCS (CC&A) Rules, 1965 (Annexure 6 to the writ petition).
2. I have heard Mr. K. Nath, learned counsel appearing for the
petitioner as well as Mr. Ratan Datta, learned standing counsel appearing for the
respondents-Tripura State Pollution Control Board.
3. Mr. Nath, learned counsel has submitted that the disciplinary
authority is a statutory authority as contemplated under Rule 12 of the CCS
(CC&A) Rules, 1965 (for short, "CCS Rules") and the exercise of such power
of disciplinary authority is a statutory power. It is the further contention of Mr.
Nath, learned counsel that the post of Member Secretary under the Tripura State
Pollution Control Board (for short, "TSPCB") is a statutory post and the power
to initiate a disciplinary proceeding is only vested with such Member Secretary
who is duly appointed through regular recruitment process and holds the post as
permanent Member of the Board. Drawing my attention to the notification dated
07.09.2019 (Annexure 8 to the writ petition), Mr. Nath, learned counsel has
contended that Dr. Bishu Karmakar holds the current charge of the duties of the
post of Member Secretary under the respondents no. 1, 2 and 3 i.e. TSPCB, till
regular appointment is made for the said post, and such Member Secretary
merely performing current duties cannot exercise statutory power as a full-
fledged Member Secretary to act as disciplinary authority under Rule 12 of the
CCS Rules. Mr. Nath, learned counsel has referred to certain Government of
India's decisions wherein it is stated that an officer appointed to perform current
duties of an appointment can exercise administrative or financial power vested
in the full-fledged incumbent to the said post, but, he cannot exercise the
statutory powers, whether those powers are derived direct from an Act of
Parliament or Rules.
4. On the other hand, Mr. Datta, learned counsel appearing for the
TSPCB has contended that the appointment of Dr. Bishu Karmakar to hold the
charge of Member Secretary under TSPCB cannot be compared with an officer
holding the current charge of the duties of a certain post. Showing the gazette
notification dated 19.09.2019 (Annexure CA-10 of Additional Counter
Affidavit), Mr. Datta, learned counsel has submitted that Dr. Karmakar is
holding the charge of Member Secretary on full-time basis being duly appointed
by the Government of Tripura, which is permissible under the Water
(Prevention and Control of Pollution) Act, 1974 (here-in-after referred to as
"Water Act of 1974"). Mr. Datta, learned counsel has urged to dismiss the writ
petition contending that the order to initiate disciplinary proceeding against the
petitioner under memorandum dated 20.03.2020 is consistent with the Water
Act, 1974.
5. At the time of hearing, Mr. R. Datta, learned counsel appearing for
the respondent-TSPCB has submitted that this petition is squarely covered by
the judgment of this Court dated 03.07.2023 passed in WP(C) 967/2021 titled as
Sri Mihir Kr. Das Vs. The Tripura State Pollution Control Board & Ors.
6. I have gone through the aforesaid judgment passed by me in
WP(C) 967/2021 (supra). The relevant portion of the judgment is reproduced
here-in-below for convenience:-
"5. At the time of hearing, Mr. R. Datta, learned counsel
appearing for the respondent-TSPCB has submitted that this petition is
squarely covered by the judgment of this Court dated 29.09.2022
passed in WP(C) 869/2022 titled as Sri Subrata Majumder Vs. The
Tripura State Pollution Control Board & Ors.
6. I have gone through the aforesaid judgment passed by me in
WP(C) 869/2022 (Supra). The relevant portion of the judgment is
reproduced here-in-below for convenience:-
5. I have pondered over the erudite submissions
canvassed by learned counsel appearing for the parties and
considered the legal positions.
6. "Disciplinary Authority" is defined under Rule 2(g) of
CCS Rules which means the authority competent under the
CCS Rules to impose on a Government servant any of the
penalties specified in Rule 11of CCS Rules. Rule 12 of CCS
Rules prescribes the powers and functions of the disciplinary
authorities, which reads as under:
"12. DISCIPLINARY AUTHORITIES:
(1) The President may impose any of the penalties specified
in Rule 11 on any Government servant.
(2) Without prejudice to the provisions of sub-rule (1), but
subject to the provisions of sub-rule (4), any of the penalties
specified in Rule 11 may be imposed on -
(a) a member of a Central Civil Service other than the
General Central Service, by the appointing authority or the
authority specified in the schedule in this behalf or by any
other authority empowered in this behalf by a general or
special order of the President;
(b) a person appointed to a Central Civil Post included in the
General Central Service, by the authority specified in this
behalf by a general or special order of the President or,
where no such order has been made, by the appointing
authority or the authority specified in the Schedule in this
behalf.
(3) *** *** ***
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(4)) *** *** ***
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EXPLANATION 1) *** *** ***
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EXPLANATION 2) *** *** ***
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7. On plain reading, it appears that Rule 12(2)(b) of the
CCS Rules is relevant to the issue in controversy. Rule
12(2)(b) clearly lays down that a person can be appointed to a
civil post by the authority under special order of the President
or, where any such order has been made by the appointing
authority.
8. To clarify the meaning attached to the expression
"disciplinary authority", the Government of India issued
certain orders. One of such orders relates to the officers
performing current duties of a post. It says that an officer
appointed to perform the current duties of an appointment can
exercise administrative or financial power vested in the full-
fledged incumbent of the post, but he cannot exercise statutory
powers, whether those powers are derived direct from an Act
of Parliament [G.I., M.H.A., O.M. No. F. 7/14/16-Ests. (A),
dated 24th January, 1963].
Another order speaks that where appointment to hold
the current duties of a post involves the exercise of statutory
or such other powers conferred on the holders of the post, the
appointment should also be notified in the gazette. [G.I., M.F.
O.M. No. F. 12(2)-E, II.(A) 60, dated 15th October, 1960].
9. From the above orders, it becomes clear that an officer
appointed to perform the current duties of a post cannot be
treated as full-fledged incumbent of the post and he cannot
exercise statutory powers. However, statutory or such other
powers can be conferred on the holders of the post if such
appointment of the officers is notified in the gazette. To sum
up, an officer merely looking after the current duties of a
higher officer is not competent to exercise the power of
disciplinary authority or the appellate authority of the latter,
unless and until the appointment of such officer is made by
appointing authority being duly notified in the official gazette.
10. At this juncture, I have taken note of the scheme of the
Water Act of 1974, which is a central act. It becomes apparent
that in pursuance of clause 1 of Article 22 of the Constitution
of India, resolutions had been passed by all the houses of the
legislature of the States of Assam, Bihar, Gujarat, Haryana,
Himachal Pradesh, Jammu & Kashmir, Karnataka, Kerala,
Madhya Pradesh, Rajasthan, Tripura and West Bengal to the
effect that the matters relating to prevention and control of
water pollution and the maintaining or restoring of
wholesomeness of water should be regulated in those States
by the Law of Parliament.
11. Sub-section (2) of Section 1 of the Water Act of 1974
envisages that it was applied in the first instance to the State
of Tripura including other States, as aforesaid. Sub-section
(3) of Section 1 of the Water Act of 1974 provides that it came
into force at once to the aforesaid States. Section 4(2)(f) of the
Water Act of 1974 is required to be noticed in the context of
the case. It provides that:
"4. Constitution of State Boards.-- (1) The State
Government shall, with effect from such date, as it may, by
notification in the Official Gazette, appoint, constitute a
[State Pollution Control Board], under such name as may be
specified in the notification, to exercise the powers
conferred on and perform the functions assigned to that
Board under this Act.
(2) A State Board shall consist of the following members,
namely:--
(a) xxxxx
(b) xxxxx
(c) xxxxx
(d) xxxxx
(e) xxxxx
[(f) a full-time member-secretary, possessing qualifications,
knowledge and experience of scientific, engineering or
management aspects of pollution control, to be appointed
by the State Government.]"
12. It is noticed that clause (f) of sub-section (2) of Section
4 was not enacted in the original Water Act of 1974. Clause
(f) was inserted by the Amendment Act 53 of 1988 in the
original enacted Act of 1974 and it came into force in the
State of Tripura w.e.f. 29.08.1988.
13. Now, if both CCS Rules and Water Act of 1974 are
conjointly read, it is crystallized that the law as
conceptualized for the posts of "Current duties and full-time
Member Secretary" is quite distinct and created on different
connotations. The two posts should not be mistaken as
equivalent. While Rule 12 of CCS Rules speaks of officers
merely performing current duties of a post, the concept of the
post of full-time Member Secretary embodied in Section
4(2)(f) of the Water Act of 1974 is to give the said post a
statutory flavour. A full-time Member Secretary is a statutory
post incorporated in the Act of 1974 by Act 53 of 1988
especially for the States of Tripura, Himachal Pradesh and
Union Territories to fulfill certain objects the respective
governments wanted to achieve.
14. That apart, it is apparent that under Section 4(2)(f) of
the Act of 1974, the State Government is statutorily
empowered to appoint a full-time Member Secretary having
qualification, knowledge and experience of scientific,
engineering or management aspects of pollution control. In
other words, the State Government is the appointing authority
of a full-time member secretary of Tripura State Pollution
Control Board.
15. Now what is culled out that a full-time Member
Secretary being appointed by the State Government can
exercise all statutory powers which includes the power of
disciplinary authority as contemplated under Rule 12(2)(b) of
CCS Rules apart from the powers conferred upon him, and
perform the functions assigned to him in the interest of the
State Pollution Control Board.
16. Coming to the context of the present case, the
Government of Tripura constituted State Pollution Control
Board under the nomenclature Tripura State Pollution
Control Board (for short, „TSPCB‟) at the behest of the
Department of Science, Technology and Environment in terms
of Section 4(1) of the Water Act of 1974. To run and govern
the TSPCB, the State Government has appointed Dr. Bishu
Karmakar as a full-time Member Secretary of the Board. It is
not disputed that Dr. Bishu Karmakar possesses all necessary
qualifications, knowledge and experience in the field of
pollution control. It is admitted that Member Secretary is the
disciplinary authority of TSPCB and can exercise the powers
of disciplinary authority as embodied in Rule 12(2)(b) of CCS
Rules.
17. In the case on hand, the State Government being the
appointing authority issued necessary order appointing Dr.
Bishu Karmakar as full-time Member Secretary by way
notification published in the official gazette. The notification
for appointment of Dr. Karmakar may be reproduced here-in-
below, for convenience, in extenso:-
TRIPURA GAZETTEE
Published by Authority
EXTRAORDINARY ISSUE
Agartala, Thursday, September 19, 2019 A.D. Bhadra 28, 1941 S.E.
PART-1- Orders and Notifications by the Government of Tripura
The High Court, Government Treasury etc.
GOVERNMENT OF TRIPURA
DEPARTMENT OF SCIENCE TECHNOLOGY & ENVIRONMENT
No. F.11(68)/DSTE/CC/Pt-I/5597-606 Dated, Agartala the 7th September, 2019
In exercise of the powers conferred by clause (f) of sub-
section (2) of section (4) of the Water (Prevention and
control of pollution)Act of 1974 (Act 6 of 1974) and in the
interest of public service, the Governor, Tripura is pleased to
order that Shri Bishu Karmakar, scientist-B, Tripura State
Pollution Control Board shall hold the charge of Member
Secretary in the Tripura State Pollution Control Board
(TSPCB) on full time basis with immediate effect and until
further orders. Any other work assigned to him in the Board
shall be re-assigned to other officer9s) in the TSPCB, Ex-post
facto approval is also accorded to assignment of the charge
of Member Secretary, TSPCB to Shri Bishu Karmakar,
Scientist-B in addition to his assigned duties w.e.f.
13.08.2019.
By order of the Governor
Sd/-
(Shailendra Singh)
Special Secretary to the
Government of Tripura"
18. The tenure of appointment of Dr. Bishu Karmakar has
been further extended vide notification dated 6/05/2021 which
is also notified in the official gazette of the Government of
Tripura. The notification dated 6/05/2021 is reproduced here-
in-below:
TRIPURA GAZETTE
Published by Authority
EXTRAORDINARY ISSUE
Agartala, Thursday, June 30, 2022 A.D. Asadha 9, 1944 S.E.
PART-1- Orders and Notifications by the Government of Tripura
The High Court, Government Treasury etc.
GOVERNMENT OF TRIPURA
DEPARTMENT OF SCIENCE TECHNOLOGY & ENVIRONMENT
BIGYAN, PRAJUKTI O PARIVESH BHAWAN
GORKHABASTI: P.N. COMPLEX
AGARTALA:TRIPURA
No. F.8(1)/DSTE/ENV/Pt-IX/3106-166 Dated, 06/05/2021
NOTIFICATION
In partial modification of the Notification No.
F.11(68)/DSTE/CC/Pt-1/5597-606 dated 07.09.2019 issued
by the Department of Science, Technology & Environment,
Government of Tripura, Shri Bishu Karmakar, Scientist-B,
Tripura State Pollution Control Board (TSPCB) holding the
Charge of the Member Secretary, TSPCB on full time basis
will continue to hold the Charge of the Member Secretary,
TSPCB on full time basis till completion of the recruitment
process of the eligible candidates to this post of Member
Secretary as per the "Tripura State Pollution Control Board
[Prevention & Control of water Pollution (Amendment)]
Rules, 2021.
This is issued with the approval of Hon'ble Council of
Ministers, Govt. of Tripura vide Memorandum No. F.1(1)-
GA(CAB)/2021-C dated 23.04.2021.
Sd/-
(Saradindu Choudhury)
Secretary
Govt of Tripura"
19. The above notifications crystallize that the appointment
of Dr. Bishu Karmakar has been made in exercise of the
powers conferred under clause(f) Sub-section 2 of Section 4 of
the Water Act of 1974 by the order of the Governor.
That the Member Secretary of TSPCB can exercise all
statutory powers and perform all statutory duties as
disciplinary authority in the interest of TSPCB as
contemplated under Rule 12(2)(b) of the CCS Rules has not
been disputed by learned counsel appearing for the petitioner.
To re-iterate, it is the only grievance of the petitioner that Dr.
Bishu Karmakar not being appointed through regular
recruitment process and merely holding the post temporarily
acted as disciplinary authority, which is not permissible under
Rule 12 of CCS Rules, since, according to learned counsel for
the petitioner, this power is exclusively vested with a
permanent i.e. regularly appointed Member Secretary.
20. I am constrained to say that Mr. Nath, learned counsel
fails to visualize the distinctive features as regards the
appointment of the officers performing current duties of the
higher post and the full-time Member Secretary under TSPCB
and misconstrued both Rule 12(2)(b) of the CCS Rules and
Section 4(2)(f) of the Water Act of 1974.
21. I have already stated and analyzed the law that the post
of full-time Member Secretary under TSPCB is a post
recognized under the statute (Water Act of 1974). The
incumbent Officer of the said post being duly appointed under
Section 4(2)(f) of the Water Act of 1974 as enumerated here-
in-above can exercise all statutory powers derived direct from
the Act of Parliament or rules made under various Articles of
the Constitution in addition to the performance of normal day
to day administrative or financial function. Needless to say
that CCS Rules, 1965 is framed in exercise of the powers
conferred by proviso to Article 309 and clause (5) of Article
148 of the Constitution of India.
22. As a sequel, I do not find any infirmity or legal
impediment in the order passed under impugned
memorandum dated 20/03/2020 by Dr. Bishu Karmakar, the
full-time Member Secretary of TSPCB to hold inquiry under
Rule 14 of CCS (CC&A) Rules, 1965 against the petitioner
herein.
23. Accordingly, the instant writ petition stands dismissed
being devoid of merit. However, there shall be no order as to
costs.."
Since the factual aspects of the present writ petition is similar and
identical to the subject-matter of the case of Sri Mihir Kr. Das (supra), this writ
petition is also, therefore, dismissed in the same terms. Further, the issue is
settled by now in the case of Sri Subrata Majumder Vs. The Tripura State
Pollution Control Board & Ors. [WP(C) 869/2022] decided on 29.09.2022.
Pending application(s), if any, also stands dismissed.
JUDGE
SANJAY Digitally signed by
SANJAY GHOSH
GHOSH Date: 2023.08.09 17:57:08
+05'30'
Snigdha
