HIGH COURT OF TRIPURA
AGARTALA
WA 117 OF 2023
Shri Balaram Das,
S/o Shri Laxman Chandra Das,
Resident of Tuichindrai, P.O. Hawaibari,
P.S. Teliamura, District-Khowai, Tripura,
Age-35, PIN-799205.
Appellant.
….
Vrs.
1. The State of Tripura,
Represented by the learned Government Advocate,
High Court of Tripura, Agartala.
2. The Secretary,
Home Department, Government of Tripura,
New Secretariat Complex, P.O. Kunjaban,
Agartala, District-West Tripura, PIN-799010.
3. The Director General of Police,
Police Headquarter, Fire Brigade Chowmohani,
P.O. Agartala, District-West Tripura,
PIN-799010.
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4. The Commandant, 12 BN. TSR (IR-VIII),
Chakmaghat, Teliamura, Khowai, Tripura,
PIN-700205.
5.Shri Shyamal Debbarma,
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Assistant Commandant, E.O. of DP No.05/19, 12 BN TSR (IR-VIII),
Chakmaghat, Teliamura, Khowai, Tripura, PIN-700205.
6. Shri Ajay Kumar Das, Dy. SP(Crime Branch),
A.D. Nagar, Agartala, West Tripura, PIN-799003.
...Respondents.
Present:
For the appellant : Mr. S.M. Chakraborty, Sr.Advocate.
Ms. A. Pal, Advocate.
For the respondents : Mr. D. Sarma, Addl. G.A.
Date of hearing and date : 27.03.2024
of delivery of judgment
and order
Whether fit for reporting : Yes
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THE CHIEF JUSTICE MR. APARESH KUMAR SINGH
HON’BLE
HON’BLE MR.JUSTICE ARINDAM LODH
JUDGMENT & ORDER (ORAL)
[ Aparesh Kumar Singh,CJ.]
The instant writ appeal is directed against the impugned
judgment and order dated 10.08.2023, passed by the learned Single Judge in
WP(C) No.1071 of 2022 whereby and whereunder the learned Single Judge
has dismissed the writ petition.
2. Facts of the case of the appellant (here-in-after referred to as the
petitioner), in a nutshell, are that the petitioner being a Nayeb Subedar
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(Compounder) was posted in 12 Battalion TSR (TR-VIII) and was attached
to medical platoon of the said Battalion. The petitioner alleged that the
respondent no.6 vide order dated 27.08.2019 asked him to report to the SDPO,
Jirania on 28.08.2019 for performing law and order duty at Radhapur Police
Station and on that very date i.e. on 28.08.2019 respondent no.6 again directed
the petitioner to accompany the party of law and order duty of the unit of the
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12 Battalion TSR along with first aid box and other available necessary
Emergency Medical Kits and medicine to attend emergency and casualty to
the unit personnel during the law and order duty. It is contended by the
petitioner that he tried to make understand respondent no.6 that he being the
Compounder attached to the medical platoon of the said Battalion, was not
concerned with the law and order duty. On this pretext, respondent no.6 got
enraged and rebuked him with filthy languages and asked him not to go for
duty and the petitioner eventually did not report to the said law and order duty.
It is the contention of the petitioner that he informed the matter to the
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respondent no.4, i.e. the Commandant of 12 BN. TSR (IR-VIII) but, the issue
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was not redressed rather, the respondent no.4 misbehaved with him.
Subsequently, being disheartened the petitioner left the Battalion Headquarter
on 31.08.2019 for his medical treatment after submitting departure report.
Thereafter, the respondent no.4, initiated a disciplinary proceeding against the
petitioner. The petitioner could not participate in the said disciplinary
proceeding due to his mental illness and ultimately, the said proceeding ended
ex parte against him proposing to impose the major punishment of removal
from service. The petitioner averred in the writ petition that he could not
appear in the hearing of provisional punishment order due to nationwide
Lock-down for Covid-19. Finally, the respondent no.4 passed the final
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punishment order dated 6 June, 2020 removing the petitioner from service.
The petitioner challenged the said punishment order before the appellate
authority but, the appellate authority rejected the appeal and upheld the final
punishment order passed by the respondent no.4.
Accordingly, the petitioner had approached this court challenging
the said punishment order by way of filing a writ petition, but, the learned
Single Judge of this Court vide its judgment and order dated 10.08.2023
dismissed the writ petition with the following observations:
“
Having considered the submission as made by the counsel
for the parties and also having gone through the record, this court is of
the view that the petitioner has not shown any ethics all throughout
towards his profession. Though he was initially appointed as Havildar
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(General Duty) in 2 Bn TSR and he was, in course of his service,
posted as Naib-Subedar (Pharmacist/Compounder) as he had training
and skills as well as basic knowledge regarding the same. It is expected
from any defence personnel that as and when required he shall be
available for performing his duties at any circumstances. It is also
evident that the petitioner did not respond to any of the notice sent to him
through various methods for appearing before the Inquiry Officer.
Moreover, he did not turn up before the Disciplinary Authority within the
stipulated date and time as had been asked by them. The petitioner also
did not produce any medical report in support of his contention that he
was unwell for a prolonged period resulting which he could not appear
before the Disciplinary Authority. Subsequently, when the respondents
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issued a punishment order vide order dated 06.06.2020, the petitioner
seems to have woken up from slumber and preferred an appeal before the
Appellate Authority. It is also evident from the record that the petitioner
could not make out his case before the Appellate Authority as well.
Accordingly, this court is of the view that the petitioner has not
approached this court with clean hands and he has failed to make out his
case. Therefore, the instant petition stands dismissed affirming the
impugned order 06.06.2020 issued by the Commandant, 12th Battalion
TSR(IR-
VIII).”
3. Being aggrieved by the aforesaid judgment and order, the
appellant has filed the instant appeal.
4. In course of hearing, at the very outset, Mr. S.M.Chakraborty,
learned senior counsel appearing for the original petitioner has submitted that
the petitioner was not afforded reasonable opportunity to defend his case. That
apart, a preliminary enquiry conducted against him was also questionable as
the respondent no.5 against whom the petitioner made complaint was made
the enquiring authority. The petitioner despite submitting application for
illness, the enquiring authority did not adjourn the proceeding as per Rule
14(11) of CCS & CCA Rules and was also not sent before the Medical Board
to ascertain his illness and thus, by a disproportionate punishment he was
removed from service. Mr. Chakraborty, learned senior counsel contended that
the learned Single Judge has failed to appreciate that the penalty is
disproportionate. Therefore, he prays that the appeal may be allowed by
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setting aside the impugned order of punishment dated 6 June, 2020.
5. Mr. D. Sarma, learned Addl. G.A. appearing for the State-
respondents inter alia contended that the petitioner was served notices about
the fact of his provisional punishment order on several occasions, but the
petitioner did not submit any reply nor appeared in person before the
disciplinary authority within the stipulated period. It is contended by Mr.
Sarma, learned Addl. G.A. that such provisional punishment order was also
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published in several local newspapers for his appraisal, but there was no
response from his side. Therefore, Mr. Sarma, learned Addl. G.A. opposed the
submission of Mr. Chakraborty, learned senior counsel for the petitioner that
the petitioner was not afforded any opportunity to defend his case. Further, it
is reiterated by Mr. Sarma, learned Addl. G.A. that the petitioner was
appointed as Naib Subedar (Compounder) and he is duty bound to perform
any kinds of duty specified in Rule-4(1) and (2)(a) & (d) of the TSR
Recruitment Rules,1984 in which maintenance of law and order duty is also
included. According to him, learned Single Judge has rightly dismissed the
writ petition. He prays for upholding the same.
6. In course of hearing Mr. Chakraborty, learned senior counsel
appearing for the writ petitioner appellant has limited to his argument only on
–
the question of quantum of punishment imposed upon the petitioner-appellant.
7. We have considered the submission of the learned counsel for the
parties and gone through the relevant materials placed from record. The
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petitioner has been removed from service by impugned order dated 6 June,
2020 on the basis of a departmental proceeding initiated vide Memo of Charge
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dated 21 September, 2019 (Annexure-5 to the writ petition). The statement
of imputation of misconduct in support of the Articles of Charges framed
against the petitioner inter alia alleged under charge No.1 that the petitioner
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denied to attend duty on being asked vide order dated 28 August, 2019 and
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Command Certificate dated 29 August, 2019 along with First Aid Box and
all other available necessary Emergency Medical Kit and medicines, to attend
any Medical Emergency or Casualty to unit personnel during performance of
law and order duty. Such conduct of the petitioner/appellant amounted to
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gross disobedience and dereliction of duty punishable under Section 12(1) of
the TSR Act,1983.
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8. The second Article of Charges alleged that on 31 August, 2019
at about 1812 hours, the petitioner who held the post/rank of Naib Subedar
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12 Battalion TSR (IR-VIII) voluntarily left
(Compounder) in ‘Adm’ Coy,
Battalion TAC Headquarter, Chakmaghat submitting a departure information
without leave or any permission from the competent authority and thereby
absented from duty w.e.f.31.08.2019.
9. For the aforesaid two misconducts he was proceeded against and
punished in an ex parte enquiry as he failed to appear despite service of
notices before the Enquiring Officer. As it appears from the records pointed
out by learned senior counsel for the petitioner that there are no cases of
proven misconduct against him for such disobedience of the orders of the
superior. As per second Article of Charges, the period of absence was from
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31 August, 2019 i.e. two days after the issuance of the Order and Command
Certificate to attend with Medical Emergency or Casualty and the charge-
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sheet was issued on 21 September, 2019 i.e. within 21 days thereafter. The
petitioner has been working on the post of Naib Subedar (Compounder) as per
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the offer of appointment dated 9 November, 2011 (Annexure-1 to the writ
petition) till he was removed from service.
10. Therefore, the punishment appears to be harsh considering the
period of absence of 21 days and since there are no instances of previous such
misconduct of willful disobedience and dereliction of duty against the
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petitioner. There are no Articles of Charges showing previous misconduct of
similar nature.
11. Therefore, it appears that the punishment is disproportionate even
as per the established misconduct. Reference is made to the ratio of the
decision in Ranjit Thakur Vrs. Union of India & Ors., reported in (1987) 4
SCC 611 and Union of India & Anr. Vrs. R.K. Sharma, reported in 2022
SCC OnLine SC 2010.
11.1 The Supreme Court in Ranjit Thakur (supra) at Paras 25 and 26
of the judgment dealt with the issue of disproportionate punishment which
reads as follows:
25. Judicial review generally speaking, is not directed
“
against a decision, -making
but is directed against the “decision
process”. The question of the choice and quantum of punishment is
within the jurisdiction and discretion of the court-martial. But the
sentence has to suit the offence and the offender. It should not be
vindictive or unduly harsh. It should not be so disproportionate to
the offence as to shock the conscience and amount in itself to
conclusive evidence of bias. The doctrine of proportionality, as
part of the concept of judicial review, would ensure that even on an
aspect which is, otherwise, within the exclusive province of the
court-martial, if the decision of the court even as to sentence is an
outrageous defiance of logic, then the sentence would not be
immune from correction. Irrationality and perversity are
recognized grounds of judicial review. In Council of Civil Service
Unions v. Minister for the Civil Service [(1984) 3 All ER 935,950]
Lord Diplock said:
Judicial review has I think developed to a stage
today when, without reiterating any analysis of the steps by
which the development has come about, one can conveniently
classify under three heads the grounds on which
administrative action is subject to control by judicial review.
The first ground I would call „illegality‟, the second
„irrationality‟ and the third „procedural impropriety‟. That is
not to say that further development on a case by case basis
may not in course of time add further grounds. I have in mind
particularly the possible adoption in the future of the
is recognized in the
principle of „proportionality‟ which
administrative law of several of our fellow members of the
European Economic Community;…
26. In Bhagat Ram v. State of Himachal Pradesh,
AIR 1983 SC 454:(1983) 2 SCC 442: 1983 SCC (L&S) 342,
this Court held : [SCC p.453, SCC (L&S) p.
353, para 15]”
It is equally true that the penalty imposed
must be commensurate with the gravity of the misconduct,
and that any penalty disproportionate to the gravity of the
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misconduct would be violative of Article 14 of the
constitution.”
11.2 In R.K. Sharma (supra), the Supreme Court took up the issue for
consideration whether the punishment of dismissal from service on account of
absence from duty for the period mentioned in the Articles of charges was
proportionate, reasonable and in conformity with Articles 14 and 16 of the
Constitution of India and thereby at Para 11 of the judgment held that
–
“11. As regards to the period for which the
respondent was absent from duty, we are satisfied that the
punishment of dismissal from service is too harsh,
disproportionate and not commensurate with the nature of
the charge proved against the respondent. We are, therefore,
of the view that the ends of justice would have been
adequately met by imposing some lesser but major penalty
upon the respondent.”
12. Keeping in mind the principles laid down in the above decisions,
we are of the opinion that the punishment of removal from service for
absenting only for 21 days is disproportionate and not commensurate with the
gravity of the misconduct as reflected in the Articles of Charges framed
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against the petitioner. Accordingly, the impugned order dated 6 June, 2020,
issued by the respondent no.4, the disciplinary authority, as upheld by the
appellate authority vide order dated 15.07.2022 is quashed.
13. The matter is remitted to the disciplinary authority to reconsider
the quantum of punishment imposed upon the petitioner in terms of Section 12
(1) (i) of the Tripura State Rifles Act,1983.
Let such decision be taken within a period of 8 (eight) weeks
from the date of receipt of the copy of this order.
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14. However, it is made clear that the petitioner will not be entitled to
any back wages for the period he was out of service.
The instant writ appeal accordingly stands disposed of.
Pending application, if any, shall also stand disposed.
(ARINDAM LODH), J (APARESH KUMAR SINGH),CJ
SAIKAT KAR Digitally signed by SAIKAT KAR
Date: 2024.04.05 14:15:34 +05'30'
sanjay