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IN THE HIGH COURT OF TRIPURA, AGARTALA
DEEPAK GUPTA & S. TALAPATRA, JJ.
Gautam Dey - Petitioner
Vs.
State of Tripura & Ors. - Respondents
W.P.(C) No.30 of 2014
Decided On : 07.09.2015
Disciplinary Proceedings - Police Constable - Regulation 861 of the Police Regulations of Bengal, 1943 - The court quashed the final order of dismissal and the appellate order due to the initiation of a fresh inquiry without cancelling the previous disciplinary proceedings or cancelling the memorandum of charges on the same or expanded set of charges. The court also held that the non-supply of the Enquiry Report in the D.P. No.04/2012 would vitiate the final order of dismissal as challenged in this writ petition.
Fact of the Case:
The petitioner, a Constable in the Armed Branch of Tripura Police, challenged the final order dismissing him from service due to unauthorized absence and misconduct charges. The petitioner contended that his absence was due to illness and that the penalty of dismissal was disproportionate.
Finding of the Court:
The court found that the initiation of a fresh inquiry without cancelling the previous disciplinary proceedings was unsustainable in law and set aside the subsequent memorandum and final order of dismissal. The court also held that the non-supply of the Enquiry Report would vitiate the final order of dismissal.
Issues: The issues included the validity of initiating a fresh inquiry without cancelling the previous disciplinary proceedings and the impact of non-supply of the Enquiry Report on the final order of dismissal.
Ratio Decidendi: The court held that no fresh inquiry can be permitted unless the former proceeding is dropped with adequate reason for cancellation or the original charge memo is cancelled with adequate reason for cancelling or for dropping the proceeding. The court also emphasized that the non-supply of the Enquiry Report would vitiate the final order of dismissal.
Final Decision: The court quashed the final order of dismissal and the appellate order, and directed the respondents to pass the final order as culmination of the provisional order dated 14.09.2011. The petitioner was deemed reinstated, but release of pay and allowance was subject to further proceedings. If no disciplinary proceeding was initiated within four months, the petitioner's pay and allowances would be paid in accordance with the law.
Talapatra J.
By this writ petition, the petitioner who was a Constable in the Armed Branch of Tripura Police, has challenged the final order under D.O. No.602/2012 dated 26.11.2012 (Annexure-H to the writ petition), whereby he has been dismissed from the service pursuant to the purported disciplinary proceeding and also the order of the appellate authority dated 12.12.2013, confirming the said final order dismissing the petitioner from the service.
2. The facts are mostly admitted. Two departmental proceedings were launched against the petitioner for unauthorised absence on diverse period of time. In the first departmental proceeding, being D.P. No.02/2011 by the memorandum dated 10.02.2011 (Annexure-A to the writ petition) the following charges were framed against the petitioner:
ARTICLE OF CHARGE NO-I
C/3355 Goutam Dey of Armed Branch, South Tripura District is charged with gross misconduct and negligence in duty in that while he was attached to Dhajanagar Police lines on 13.01.2011 A.N, he unauthorizedly left Dhajanagar Police lines without prior permission from the competent authority. There after on 15.01.2011 evening he even assaulted by fist and blows to one Sri Subhas Nath S/O Jadu Gopal Nath of Thakurpally, PS Sabroom, South Tripura District under influence of liquor near by the Sajghar of Sabroom Town.
Thus the act of C/3355 Goutam Dey of Armed Branch, South Tripura District which is unbecoming and amounts to gross misconduct and negligence of duty, on the part of a member of disciplined force.
ARTICLE OF CHARGE NO-II
C/3355 Goutam Dey of Armed Branch, South Tripura District is charged with gross misconduct and negligence in duty in that while he was attached Dhajanagar Police lines, HQs, he was absenting himself unauthorizedly w.e.f 13.01.2011 afternoon without prior permission or intimation from competent authority.
Thus the act of C/3355 Goutam Dey of Armed Branch, South Tripura District which is unbecoming and amounts to gross misconduct and negligence of duty, on the part of a member of disciplined force.
3. The petitioner filed his written statement of defence, providing the explanation for his absence. The petitioner asserted that since he fell suddenly ill, for attending the doctor, he left the Police lines and on the medical advice he was confined to rest. With the said statement dated 05.04.2011 (Annexure-B to the writ petition), the petitioner enclosed several medical certificates. The petitioner had finally contended that for his suffering from chronic hepatitis he could not attend the duty for the period from 13.01.2011 till the issuance of the memorandum dated 10.02.2011. The petitioner has however denied the allegation of assaulting one person, namely Subhas Nath. He submitted that on recovery from the illness he had resumed the duty on 01.03.2011 on furnishing the medical certificates.
4. It appears from the record that the petitioner was suspended w.e.f. 16.01.2011 by the D.O. No.106/2011 (Annexure-C to the writ petition) with the direction that his Head Quarters would be the same Police lines.
5. After the inquiry, the inquiring authority, namely Manchak Ipper, the Sub-Divisional Police Officer, Sabroom, South Tripura filed the Enquiry Report on 03.09.2011 under No.4357/SDPO/SBM/11 (Annexure-D to the writ petition) on returning the finding that from the proceeding records it has been proved that the petitioner had indulged in gross misconduct and negligence in duties and thus both the charges have been established. Thereafter, the disciplinary authority, the Superintendent of Police, South Tripura District passed the provisional order under D.O. No.2259/201 dated 14.09.2011, concurring with the finding returned by the Enquiry Officer and proposing withholding of three yearly increments with cumulative effect from the date of the final order as penalty for indulging in those misconducts. However, the petitioner was given an opportunity of making representation either in writing or by appearing
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