Jagabandhu Debnath vs The State of Tripura and Others

S. Talapatra, J.—1. The petitioner by means of this writ petition has challenged the enquiry report dated 19.09.2008 in DP No. 12/2008 (Annexure-P/9 to the writ petition) and the final order under No. 2379/10 dated 10.05.2010 (Annexure-P/13 to the writ petition), whereby the penalty of withholding of three increments with cumulative effect along with treating the period of suspension with effect from 04.08.2008 to 24.01.2009 as the period ''not spent on duty'', has been awarded and further the order bearing No. F.451-52 dated 17.03.2011, Annexure- P/15 to the writ petition, passed by the Deputy Inspector General of Police (Southern Range, Tripura), the appellate authority, by dismissing the appeal fled by the petitioner.

While the petitioner was working as the Assistant Sub-Inspector, ''ASI'' in short, it was proposed that an inquiry against him would be conducted under Rule 861 of the Police Regulation of Bengal, 1943 as adopted in Tripura on the following articles of charge:

"Charge No. I.

ASI Jagabandhu Debnath of West Tripura District is charged with gross misconduct when he was posted at BJN P.S. Since joining W/C 2087 (name withheld) of BJN P.S. was learning Serestha Work under the guidance of ASI Jagabandhu Debnath. On the plea of that the said ASI misbehaved with W/C 2087 (name withheld) with bad attitude. W/C 2087 (name withheld) was bound to copy some love letters under threat of ASI Jagabandhu Debnath and one day he caught hold the hands of W/C (name withheld) with bad intension, which is very much unbecoming of a police officer on the part of ASI Jagabandhu Debnath.

"Charge No. II.

ASI Jagabandhu Debnath of West Tripura District is charged with gross misconduct when he was working at BJN PS. He tried to change the mind of W/C 2087 (name withheld) showing her obscene picture such as picture of blue film cover etc. He tried to motivate her offering marriage proposal and sexual proposals which is most unbecoming for a police officer in a disciplined police force and it amounts to gross misconduct.

Charge No. III.

ASI Jagabandhu Debnath of West Tripura District is charged with gross misconduct in duty when he was posted at BJN PS. In several occasions he telephoned to the mobile of (name withheld) and talked her with abusing language and also threatened her with dire consequence. Even he talked to the members of her husbands'' family and passed bad remarks about the character of said W/C which is most unbecoming as a responsible police officer in a disciplined police force and it amounts to gross misconduct.

Charge No. IV.

ASI Jagabandhu Debnath of West Tripura District is charged with gross misconduct in duty when he was performing his duty at BJN PS. One day evening ASI Jagabandu Debnath followed W/C 2087 (name withheld) up to Budjungnagar Auto Stand and told her with dire attitude that if she would not agree with illegal proposal, then he would murder her after committing rape, just like the incident of Papia Debnath of Srinagar which is most unbecoming for a police officer on the part of ASI Jagabandhu Debnath and it amounts to gross misconduct."

In response to that charge, before submitting the written statement of defence the petitioner made series of representations on 22.09.2008, 11.10.2008, 06.11.2008, 06.02.2009 and 08.03.2009 seeking inspection of documents. Again on 24.04.2009 the petitioner fled another representation to the Superintendent of Police, West Tripura, the disciplinary authority, for allowing him to inspect the documents as mentioned in the said representation. For purpose of reference, the documents sought to be inspected by the petitioner are as under:

"1) Certified copies of entire case records of Bodhjungnagar P.S. Case No. 19/08 U/S 354/506/509 IPC.

2) Certified copy of Case diary and personal diary of I/O of the case of Bodhjungnagar P.S. Case No. 19/08 from 2-8-08 to till date.

3) Certified copies of personal diaries of I/O of Bodhjungnagar P.S. Case No. -19/08 from 2-8-08 to till date.

4) Certified copy of Bodhjungnagar P.S. G.D. entries from 01-05-2007 to 16-08-2008 (all the entries).

5) Certified copy of alleged love letters (as mentioned in the Article of Charges in C/W Dp. No-12/08)

6) Certified copy of enquiry report submitted by O/C East Agartala P.S. as mentioned in the Article of Charges in C/W Dp. No-12/08).

7) Certified copy of proforma(Entries) of P.R.B. under which Regulations/Section of P.R.B. is "Mentioned" that Mr. Such and such is charged for gross misconduct etc.

8) Certified copy of Bio-data, i.e. Date of birth(2) Date of appointment (3) Educational Qualifications etc. of the following Police personnel.

i) SI Sankar Lal Purakayastha, O/C of Bodhjungnagar P.S.

ii) SI Asesh Debbarma of Bodhjungnagar P.S.

iii) Women/C 2087 Rina Rudra Paul of Bodhjungnagar P.S.

iv) Women/C 2087 Sikha Debbarma of Bodhjungnagar P.S.

9) Certified copy of PHQ letter No. 452/F.35(L)/DGP/CON/95 dated, 02-02-1996.

10) Certified copy of PHQ letter No-6996/F.2(Mise)/DGP/CON/05 dated, 07-12-1995.

11) Certified copy of PHQ letter even No-issued in November 1979 vide file No T.09/Police/Radio/IGP/CON/79 addressed to the then Chief Minister Tripura Sri Chakraborty mentioning my name and signed by the then DIGP (HQr. & Range) Tripura, Agartala.

12) Certified copy of PHQ letter No. 2346-49/IGP/(5)/CON/80 dated, 10-5-1981. "

It is an admitted fact that the documents referred under Annexure-III to the Memorandum under No. 18767/DP/SP/RSV/WD/06 dated 09.09.2006 (Annexure-P/1 coolly to the writ petition) were supplied to the petitioners and the petitioners were allowed to inspect all the documents. But, the documents mentioned in the representation dated 24.04.2009 were not relied in the charge memo to support the article of charge framed against the petitioner. In the said representation dated 24.04.2009, the petitioner did not assign any reason for which he needed those documents, even he did not mention whether those documents are relevant. Even no statement as to the relevancy is available in the said representation. It is also an admitted fact that the Defence Assistant named by the petitioner was not allowed to be engaged. As a result, the petitioner fled another representation on 18.05.2009, Annexure-P/6 to the writ petition, for providing the petitioner a Defence Assistant and the certified copies of those documents for fling the written statement of defence.

On 30.11.2009, the petitioner alleged bias against the Enquiry Officer, Sri Hari Mohan Das, Deputy Superintendent of Police (Central). The petitioner had strongly advanced that the Enquiry Officer had the bias against the petitioner. In the said representation, he had further urged that the proceeding be closed in view of the judgment and order dated 29.10.2009, delivered in GR No. 626 of 2008 acquitting the petitioner from the criminal charge under sections 354/506/509 of the IPC. The petitioner has categorically stated that, the victim had stated in the criminal trial arising from Bodhjungnagar P.S. Case No. 19 of 2008 that her complaint was an outcome of misunderstanding. The said representation dated 30.11.2009, Annexure-P/7 to the writ petition, had also raised the issue of engagement of a defence counsel of the choice of the petitioner. Again on 15.12.2009, the petitioner made a prayer for allowing him to engage the proposed Defence Assistant. It appears from the record that the defence assistant as chosen by the petitioner was not allowed for the reason that those persons were all retired police officers and hence, they could not be permitted. The petitioner himself conducted his defence in the proceeding. He cross examined the witnesses, when he was asked to adduce the defence witnesses, he denied to adduce any defence witness, but submitted the statements of defence. It is not in dispute that the petitioner was supplied copies of the recorded statements and admitted documents. On culmination of the enquiry, by the finding dated 04.02.2010, part of Annexure-P/9 to the writ petition, it has been observed as under:

"Under the above evidences, I am in the opinion that delinquent ASI Jagabandhu Debnath is a senior ASI and having knowledge about the subsequent result of sexual harassment upon the women, but he did with W/C 2087 (name withheld). The then O/C BJN PS and 2nd officer cautioned him with a direction to leave such type of activities. But he did not leave his bad habits inspite of several warnings which is very much unbecoming for a member of disciplined Police force and amounts to gross misconduct.

I do opine that all the charges of the instant Proceeding are well proved against ASI Jagabandhu Debnath of West Tripura District now posted to Sonamura Police Court. "

But the petitioner did not receive the said findings dated 04.02.2010 of the Enquiry Officer before 05.04.2010, which was forwarded by the disciplinary authority by the letter dated 05.04.2010, Annexure-P/9 to the writ petition. The enquiry report was admittedly supplied on the petitioner''s requisition.

Before the petitioner did receive the enquiry report as stated, the disciplinary authority passed the provisional order in connection with D.P. NO. 12/08 dated 19.09.2008 under No. 6730/SP/RSV/WD/DP/2009 dated 09.03.2009, Annexure-P/10 to the writ petition, whereby it was proposed to withhold three annual increments with cumulative effect. Only thereafter, on 05.04.2010, the enquiry report was supplied to the petitioner. The enquiry report was admittedly supplied on the petitioner''s requisition.

The petitioner fled an elaborate representation having received the enquiry report, on 11.04.2010 where he has laid that he was not allowed to inspect the documents as asked for. Even the objection raised by him on bias against the Enquiry Officer was not given due consideration and the petitioner has asserted that the findings are based on no evidence. The final order was passed on 10.05.2010 confirming the provisional order, imposing the penalty of withholding of three increments with cumulative effect and treating the period of suspension with effect from 04.08.2008 to 24.01.2009 as the period ''not spent on duty''.

Being aggrieved by the said final order dated 10.05.2010, the petitioner fled an appeal to the Deputy Inspector General of Police, Southern Range, the appellate authority under Regulation 882 of the Police Regulation of Bengal, reiterating the similar grounds of the representation fled in response to the provisional order as stated. In addition thereto, it has been asserted that the disciplinary authority has not applied his mind to the relevant materials, the enquiry report and the representation that was fled by the petitioner against the provisional order. The appellate authority by the order dated 17.03.2011, Annexure-P/15 to the writ petition, has observed that since the petitioner himself defended his case, he is not supposed to raise the issue of denying him the Defence Assistant. Moreover, it has been observed by the appellate authority as under:

"On this provisional order, the delinquent submitted a representation for reconsidering the Provisional Order, pleading himself as not guilty. He also prayed for personal hearing by the disciplinary authority. His representation was given due consideration. After that, the disciplinary authority, the SP(West) passed the Final Order on this DP vide D.O. No. 2379/10 dated 10th May, 2010 in which he confirmed his provisional order. The period of suspension from 04-08-2008 afternoon to 24-01-2009 afternoon was treated as not on duty."

Further holding that the charges brought against the delinquent-petitioner was very serious in nature and reveal serious moral turpitude and as such when there is no infirmity in the finding of the Enquiry Officer and in the final order of the disciplinary authority, the appellate authority has held that there was no ground to modify the order of the disciplinary authority. The disciplinary authority has rather taken a lenient view. Thus the appeal was dismissed.

Mr. J. Majumder, learned counsel appearing for the respondents has submitted that the materials listed in the Annexure-III were supplied to the petitioner, but the petitioner''s requisition for other materials outside the Annexure III was not supported by the statement of relevancy and as such no positive order was passed by the disciplinary authority. He has further submitted that all opportunities were provided to the petitioner. On 17.12.2009 the petitioner came up with an application to engage Md. Jallal Uddin, Inspector of Police and allow him to further cross-examine the witnesses by the Defence Assistant. When such application was made, the Enquiry Officer closed the evidence by then. The petitioner had carried out cross examination of the witnesses. The petitioner fled the defence statement. Mr. Majumder learned counsel has submitted that on 30.11.2009, the witnesses, namely Smt. Rina Rudra Paul, Sikha Debbarma and Smt. Fulkumari Debbarma were examined by the Enquiry Officer and the petitioner cross-examined those witnesses. Even that it was not within the knowledge of the Enquiry Officer that the petitioner fled the representation dated 30.11.2009 alleging bias against him. Thus, allegation of denying the petitioner opportunity of engaging the defence assistant, does not hold good. In para 12 of the counter affidavit, the respondent had asserted that:

"The petitioner compromised the case before the Learned Court which implies that the writ petitioner as accused in that case has privy in commission of the alleged offence. If the petitioner really thinks that, he has been implicated in the false case he should have contested the same.(sic)."

Mr. C.S. Sinha, learned counsel appearing for the petitioner has submitted that the petitioner has suffered serious prejudice for withholding the enquiry report before the provisional order of punishment was passed.

While responding to such submission of Mr. Sinha, learned counsel, Mr. J. Majumder, learned counsel appearing for the respondents has submitted that the enquiry report was not furnished to the petitioner before the provisional order was passed. However he did not fail to add that for such non-submission the petitioner did not suffer any prejudice as the petitioner fled the combined representation, both against the enquiry report and the provisional order made on 19.09.2008 before the final order dated 10.05.2010 was passed. From the order dated 17.03.2011, it would be apparent that the disciplinary authority had considered such representation at the time of passing the final order.

Before this court appreciates the rival contentions as raised, it is to be noted that the petitioner did not file any written statement of defence despite series of accommodation. For that reason, after a prolonged delay, the Enquiry Officer started the proceeding. It has not been denied by the petitioner that charge sheet was fled by the police on completion of investigation, against him for committing an offence of out-raging modesty of one women constable (the name withheld) and on her complaint a police case was registered in the Bodhjung Nagar Police Station on 08.02.2008. The disciplinary authority, the Superintendent of Police West Tripura, Agartala has categorically recorded in the final order as under:

"Accordingly, copy of findings of E/O was duly served on 6-04-10 through CT Inspr. SNM upon ASI Jagabandhu Debnath vide this office No. 9374/SP/RSV/WD/DP/10, dated 5-04-10 with a direction to submit representation or appear in personal hearing within 7(seven) days. On 11-04-10 ASI Jagabandhu Debnath has submitted a representation which was received by this office on 20-04-10 which is available in the file.

I have gone through the representation of the charged officer. However, I find no merit in the points raised by the charged officer since the findings of the E/O are based on statements of witnesses including that of the lady constable and documents. On perusal of the findings, it is evident that the E/O provided ample opportunities to the charged officer to defend his case. Harassment of Women at work place is a serious offence and cannot be overlooked especially in a disciplined force like police."

Therefore, it can safely be said that the said representation was duly considered by the disciplinary authority before passing the final order. But, it cannot be denied that the procedure as laid down under Regulation 861 of the Police Regulations Bengal, 1943 was not observed. The note below the regulation 861(e) provides as under:

"In case in which the enquiring officer does not pass the final order and recommends an order to the authority empowered to pass an order, the person charged shall be furnished with a copy of enquiring offer''s finding and/or the recommendations of the forwarding authority, so that he may at the personal hearing be in a position to object to or refute anything therein stated which, in his opinion, is incorrect."

Only thereafter a provisional conclusion in regard to the penalty be proposed in respect of the delinquent officer.

But, in this case, the provisional order of penalty was passed before the petitioner could make his representation against the findings of the Enquiry Officer, as the copy of the enquiry report was supplied to the petitioner much after the provisional order of penalty was issued. However, the enquiry report was supplied to the petitioner before the final order was passed and the petitioner without raising any objection has represented against the finding of the Enquiry Officer. From the final order it surfaces that the disciplinary authority had considered the representation and afforded the petitioner''s personnel hearing in terms of Regulation 861(f) of Police Regulations Bengal, 1943. Whether that irregularity has vitiated the final order or not, for that matter, unless it is demonstrated that the petitioner was deprived absolutely from making the representation, mere irregularity would not vitiate that part of the proceeding. Some irregularities are not fatal and those can be cured since the petitioner without raising any objection has fled the representation, both against the finding of the Enquiry Officer and against the provisional order of penalty.

This court is of the considered opinion that the petitioner did not suffer any prejudice. Further, the petitioner failed to explain the relevancy of the requisitioned documents as asked for and as such the rejection of the petitioner''s prayer cannot be held as denial of access to the relevant documents as admittedly those documents were not relied by the disciplinary authority. The petitioner even did not adduce any evidence. As such, that plea is unsustainable. It appears that the petitioner himself carried out the defence during the enquiry proceeding and he had asked for engagement of an in-service Police Officer only after the evidence was closed. It has been clearly stated that the retired Police Officer cannot be engaged as the Defence Assistant. That apart, the petitioner had run a risk by not fling the written statement of defence. The Enquiry Officer could have recorded a finding against him straightway in view of the regulation 861(c) of Police Regulations of Bengal, 1943, which provides as under:

"The person charged shall be required to put in within a reasonable time a written statement of his defence and to state whether he desires to be heard in person. If he states that he does not desire to put in a written statement or to be heard in person, this fact shall be recorded in the proceedings. Where the person charged from whom a written statement is so required fails to present the same within the time fixed by the enquiring officer, the enquiring officer may record a finding against him or make such orders in relation to the proceedings as he thinks ft."

This court is satisfied that the Enquiry Officer has provided all reasonable opportunities to the petitioner.

The scope and ambit of judicial review in respect of the concurrent finding is highly narrow. Only in the cases of denial of reasonable opportunity of defence and findings based on no evidence, the court can interfere, otherwise not. In the considered opinion of this court, this is not such a case where the court should interfere the findings of the disciplinary authority, as affirmed by the appellate authority. However, in view of the decision of this court in W.P.(C) No. 495 of 2012 (Swapan Debbarma v. State of Tripura & Ors.) delivered on 26.02.2016, the penalty as awarded is modified as under:

"Three annual increments of the petitioner shall be withheld but without cumulative effect and the period of suspension shall be treated as ''not spent on duty''."

This modification has been done as no special reasons has been set out towards that end. But the order to treat the period of suspension as the period ''not spent on duty'' is not interfered with.

Subject to the modification as above, the writ petition stands dismissed. There shall be no order as to costs.