Tripura High Court
The State Of Tripura & Another vs Sri Haripada Saha on 20 May, 2024
Page 1 of 3
HIGH COURT OF TRIPURA
AGARTALA
WA No.67 of 2023
The State of Tripura & another
.........Appellant(s);
Versus
Sri Haripada Saha
.........Respondent(s).
For Appellant(s) : Mr. M. Debbarma, Addl. G.A.
For Respondent(s) : Mr. C.S. Sinha, Advocate.
HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH
HON'BLE MR. JUSTICE S.D. PURKAYASTHA
Order
20/05/2024
Heard Mr. M. Debbarma, learned Additional Government
Advocate for the appellants-State and Mr. C.S. Sinha, learned counsel for the
writ petitioner/respondent herein.
2. The writ petitioner was discharged from service upon his
conviction in a criminal proceeding under Section 354 of the IPC and Section 8
of the POCSO Act by the Court of Special Judge (POCSO), West Tripura,
Agartala in Special (POCSO) 32 of 2017 vide judgment dated 12.04.2019.
While in custody, he was discharged from service. He preferred the writ
petition after being released seeking quashing of the order of discharge. The
learned Writ Court vide impugned order dated 02.05.2023 has set aside the
impugned order of discharge while granting liberty to the respondents to take
steps in accordance with law as expeditiously as possible holding as under:
"Heard both sides and perused the evidence on record. The impugned
order dated 24.09.2021 is violative of the principle of natural justice and also
contrary to the proviso of Rule 19 of CCS(CCA) Rule, 1965 wherein it is
mandated that notice needs to be given by the respondents before imposing a
penalty for conviction against the petitioner. Since the respondents has passed the
impugned order which is under challenge without issuing any notice, the same is
held as violative of the principle of natural justice. Accordingly, the same is set
aside and liberty is given to the respondents to take steps in accordance with law
as expeditiously as possible.
With the above observation and direction, this present writ petition
stands disposed of. Stay if any stands vacated and pending application(s), if any
also stands closed."
3. Mr. M. Debbarma, learned Additional Government Advocate for
the appellants-State, submits that during the proceedings, petitioner was in
custody. Therefore, the order of discharge was passed in his absence. He further
submits that conviction for such a serious offence entails dismissal from
service. However, he does not dispute that petitioner did not get an opportunity
to represent as he was in custody. He also submits that in case this Court is
inclined to uphold the impugned order, it may also be indicated that during the
period till a fresh decision is taken, the order of the learned Writ Court setting
aside the impugned order of discharge may not entail automatic reinstatement.
4. Mr. C.S. Sinha, learned counsel for the writ petitioner/respondent
herein, submits that the impugned order of discharge was passed without any
opportunity of hearing or notice to the petitioner since he was suffering
conviction. However, if a fresh proceeding is conducted in terms of the relevant
CCS (CCA) Rules, 1965, he would be able to defend himself. He however
submits that if the order of discharge is set aside, logically petitioner should be
reinstated in service pending outcome of the departmental inquiry.
5. We have heard learned counsel for the parties and gone through
the relevant materials placed from record and also perused the impugned order.
As the canvas of facts referred to above reveal that the order of
discharge was passed during the period when the petitioner was in custody, as
such the requirement of following principles of natural justice and the
procedure under CCS (CCA) Rules, 1965 apparently were not met. Petitioner
could not have defended himself as he was in custody during that period. Law
does not compel anyone to do an impossible act. (Lex non cogit ad
impossibilia) (see paragraph No. 6 of Raj Kumar Dey and Others versus
Tarapada Dey and Others reported in (1987) 4 SCC 398).
6. However, we are of the considered view that following the ratio
laid down by the Apex Court in the case of State of Uttar Pradesh and Others
versus Rajit Singh reported in (2022) 15 SCC 254 at paragraph No. 12, the
setting aside of the order of discharge could not lead to automatic
reinstatement. But the appellant-employer shall ensure that proceeding for
taking a fresh decision in the matter is undertaken within a reasonable time
preferably 12(twelve) weeks from the date of receipt of copy of this order.
7. With the aforesaid modification in the impugned order, the instant
appeal is disposed of. Pending application(s), if any, shall also stand disposed
of.
(S.D. PURKAYASTHA), J (APARESH KUMAR SINGH), CJ
MUNNA SAHA MUNNA SAHA
Date: 2024.05.24 17:18:51
+05'30'
Pijush/
