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2018 Supreme(Tri) 52
IN THE HIGH COURT OF TRIPURA, AGARTALA
S. TALAPATRA, J.
Sri Debashis Roy Choudhury, Son of late Hemendranath Roy Choudhury - Petitioner
Vs.
The State of Tripura, represented by the Principal Secretary to the Government of Tripura, Department of Cooperation & Ors. - Respondents
WP(C) No. 285 of 2011
Decided On : 20-02-2018
For the Petitioner:Mr. S. Deb, Sr. Advocate, Mr. S. Datta, Advocate.
For the Respondents:Mr. J. Majumder, Advocate.
The court held that the petitioner was not denied the safeguards of production of records or suffered any detriment for purported non-production, the respondent No. 3 was a certified auditor as required under Rule-71 of the Tripura Co-operative Societies Rules, 1976, and the provisions of Sub-rule (16)(18) of Rule-14 of the CCS (CC & A) Rules, 1965, were complied with.
Headnote:
The petitioner, an auditor in the Department of Co-operation, challenged the orders under No. F.PRS-523/Coop/82(ACF) dated 04.10.2010 and No. F.PRS-523/Coop/82 (ACF-2) dated 19.04.2011, passed by the disciplinary authority and the appellate authority, respectively. The petitioner was found guilty of misappropriation of a sum of Rs. 2,84,437/- during his tenure as the manager of Khowai PMCS Ltd. The petitioner contended that he was not supplied with the additional documents requisitioned by him, the respondent No. 3 was not a certified auditor as required under Rule-71 of the Tripura Co-operative Societies Rules, 1976, and the provisions of Sub-rule (16)(18) of Rule-14 of the CCS (CC & A) Rules, 1965, were not complied with. The respondents submitted that all the documents were produced, the respondent No. 3 was a certified auditor as per the notification issued by the Registrar of Co-operative Societies, and the safeguards were provided to the petitioner in the proceeding and in the post-proceeding phase.
Fact of the Case:
The petitioner, an auditor in the Department of Co-operation, was deputed to Khowai PMCS Ltd. as the manager in April 1996 and continued in that capacity till May 2000. During his tenure, he was charged with misappropriation of a sum of Rs. 2,84,437/-. An inquiry was conducted, and the petitioner was found guilty. The disciplinary authority imposed a penalty on the petitioner, which was later modified by the appellate authority. The petitioner challenged the orders of the disciplinary authority and the appellate authority by filing a writ petition.
Finding of the Court:
The court held that the petitioner was not denied the safeguards of production of records or suffered any detriment for purported non-production. The court also held that the respondent No. 3 was a certified auditor as per the notification issued by the Registrar of Co-operative Societies. The court further held that the provisions of Sub-rule (16)(18) of Rule-14 of the CCS (CC & A) Rules, 1965, were complied with. Therefore, the court dismissed the writ petition.
Issues: 1. Whether the petitioner was denied the safeguards of production of records or suffered any detriment for purported non-production? 2. Whether the respondent No. 3 was a certified auditor as required under Rule-71 of the Tripura Co-operative Societies Rules, 1976? 3. Whether the provisions of Sub-rule (16)(18) of Rule-14 of the CCS (CC & A) Rules, 1965, were complied with?
Ratio Decidendi: 1. The court held that the petitioner was not denied the safeguards of production of records or suffered any detriment for purported non-production because: - The petitioner was given ample opportunities to inspect and obtain copies of the documents. - The petitioner failed to show how he had suffered prejudice for non-production of the documents. 2. The court held that the respondent No. 3 was a certified auditor as required under Rule-71 of the Tripura Co-operative Societies Rules, 1976, because: - The respondent No. 3 was empanelled as a certified auditor by the Registrar of Co-operative Societies. - The petitioner did not challenge the competence of the respondent No. 3 in the disciplinary proceeding or in the appeal. 3. The court held that the provisions of Sub-rule (16)(18) of Rule-14 of the CCS (CC & A) Rules, 1965, were complied with because: - The petitioner was provided with a copy of the findings of the inquiry officer and was given an opportunity to submit a representation. - The disciplinary authority considered the petitioner's representation before passing the order.
Final Decision: The court dismissed the writ petition.
The petitioner, who is an auditor in the Department of Co-operation, has, by means of this writ petition, challenged the order under No. F.PRS-523/Coop/82(ACF) dated 04.10.2010 (Annexure P/9 to the writ petition) and the order under No. F.PRS-523/Coop/82 (ACF-2) dated 19.04.2011 (Annexure-P/10 to the writ petition). The petitioner has further urged for prohibiting the respondents from giving any effect to these orders dated 04.10.2010 and 19.04.2011 and also for directing the respondents to treat the petitioner in the service by removing all effects of the order dated 04.10.2010 and further for releasing the financial and service benefits without any forfeiture of pay and allowances. In addition thereto, the petitioner has urged to give the benefit of the pay revision forthwith.
2. On culmination of the departmental proceeding, as lunched under Rule-14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 [CCS (CC & A) Rules, 1965 in short] by the memorandum under No. F.PRS-523/Coop/82 (CF) dated 29.08.2003 (Annexure-P/2 to the writ petition) and after receipt of the report, it appeared to the Registrar of Co-operative Societies, the respondent No. 2 herein, that the petitioner had misappropriated a huge amount of fund in his capacity as the manager of Khowai Primary Marketing Cooperative Society Ltd. According to the inquiry report, as submitted by the Inquiry Officer namely, Sri M.K. Sengupta, Law Officer-cum-Draftsman, the charges as brought against the petitioner, were found proved.
3. The petitioner was held to be guilty of the misappropriation by the said report dated 29.07.2009. It has been observed in the said order dated 04.10.2010 as under:
“On careful and meticulous examination, the undersigned being the Disciplinary Authority is satisfied and thus accepts the findings of the Inquiring Officer and the charges framed against the A.O. are also of a very serious in nature and as such deserves to be punished and as such canceling the earlier order No. F.PRS.523/Coop/82 (CF) dated 22.04.2009 a fresh order is issued as under:
(a) Under Rule-11(iii) of CCS (CC&A) Rules, 1965 the liable amount of Rs. 2,84,437/- (Rupees two lakhs eightyfour thousand four hundred thirtyseven only) fixed as per Audited accounts and reports of Khowai PMCS Ltd. for the year 1996-97 to 2001-2 is to be recovered along with the interest at the rate of Rs. 5% from the year of defalcation from the salary of Sri Debashis Roy Choudhury, Auditor (Coop), Ex-Manager of Khowai PMCS Ltd. by instalments not exceeding 1/3rd of the salary of Sri Roy Choudhury.
(b) It is also ordered that Sri Debashis Roy Choudhury will not get promotion till the recovery of the liable amount.
(c) Further, the pay of Sri Debashish Roy Choudhury is to be fixed reducing 1(one) increment of his time scale of pay.
(d) He will not get any financial benefit for the suspension period.”
4. It is to be mentioned that a fresh order was passed in terms of the order of the appellate authority dated 22.09.2010. The petitioner preferred an appeal to the Principal Secretary to the Govt. of Tripura, Department of Co-operation against the said order dated 04.10.2010 (Annexure-P/9 to the writ petition). The appellate authority by an elaborate order dated 14.09.2011 (Annexure-P/10 to the writ petition) has disposed the said appeal with certain modification in the order of the Disciplinary Authority dated 04.10.2010. The appellate authority has modified the punishment by way of substitution, the following penalty was imposed on the petitioner which reads as under:
“(a) The financial liability of Sri Roy Choudhury to the Khowai PMCS Ltd. amounting to Rs. 2,84,437/- (Rupees two lakhs eighty-four thousand four hundred thirty-seven only) deducted through the Audit Report for the years from 1996-97 to 2001-2 and relevant documents & records is to be recovered wit
