1. Upon perusal of the materials on record and as agreed to by the learned counsel of both the parties and considering the matter in its entirety and
in the interest of justice, this writ petition is taken up for hearing, at the admission stage.
2. By this writ petition under article 226 of the Constitution of India, the petitioner has sought for, in the form of certiorari, an appropriate a order
to quash the departmental proceeding, initiated by the respondent No. 2, namely, the Principal Secretary to the Govt. of Tripura, General
Administration (AR) Department, Agartala, (Disciplinary Authority), vide Memorandum, dated 25.9.2006, Annexure5 to the writ petition and also
prayed for a further direction, in the nature of writ of mandamus, to the respondents, to forward the applications of the petitioner for the post of
Principal and Professor in the College of Agriculture, Tripura submitted on 22.3.2007 and not to obstruct the process of selection, if the petitioner
is called for such selection, on the plea of the aforesaid Departmental Proceeding.
3. Heard Mr. D.K. Biswas, learned counsel along with Mr. S. Lodh, learned counsel for the petitioner. Also heard Mr. T.D. Majumder, learned
Additional Govt. Advocate appearing for the State respondent Nos. 1 and 2 and Mr. P. Dutta, learned counsel for the respondent No. 3.
4. The case of the petitioner for decision in the instant writ petition is that while the petitioner was serving as a member of the Tripura Higher
Agricultural Service, GradeII and functioning as Sr. Horticulturist in the Directorate of Horticulture & Soil Conservation, Government of Tripura,
the authority lent him to the Tripura Horticulture Corporation Ltd. (''Corporation''), to act as managing director of the said Corporation on and
from 13.9.2002. As such, he served for one year two months in the said Corporation as managing director and thereafter, he was repatriated to
his parent department on 10.11.2003, namely, the Directorate of Horticulture & Soil Conservation. When he was acting as a Sr. Horticulturist in
his parent department after his repatriation,he was placed under suspension in contemplation of a departmental proceeding vide order, dated
12.5.2004, Annexure1 to the writ petition, which was revoked after two and half years vide order, dated 31.10.2006, Annexure2, to the writ
petition.
5. During the period of his suspension, the petitioner in respect to a notification, applied for the post of Professor in the National Council for
Educational Research and Training (NCERT), through proper channel, vide his prayer, dated 28.2.2005, but he was informed that the
Government has declined to forward his prayer, vide letter, dated 19.3.2005, Annexure3 to the writ petition.
6. Similarly again on 8.11.2006, the petitioner applied for the post of the Joint Director, I.C.A.R Research Complex at Meghalaya, but the same
was also not forwarded by the respondents on the ground that a disciplinary proceeding is pending against him.
7. In the meantime, on 25.09.2006, a Memorandum enclosed with Article of Charges has been issued, vide Annexure5 to the writ petitioner, by
the respondent No. 2, contemplating a departmental proceeding against the petitioner. By filing this writ petition, the petitioner has challenged the
propriety and authority of the respondent No. 2 to initiate the said departmental proceeding, against the petitioner. Relying on the Memorandum,
dated 17.8.2004, issued by the General Administration (AR) Department, it is contended by the petitioner that the departmental proceedings
against the officers for their misconduct during the period of deputation wouldbe initiated only on specific proposal from the borrowing authorities
in terms of the law already in force under rule 21 of the CCS (CCA) Rules, 1965, a copy of the said Memorandum dated 17.8.2004 is annexed
as Annexure7 to the writ petition. The petitioner also referred to a decision of this court rendered in WP(C) No. 455 of 2005 stating, inter alia,
that the petitioner in that case was also on deputation to Tripura Horticulture Corporation and was sought to be proceeded against similar offence
of negligence and the hon''ble court quashed the proceeding against the petitioner on the ground that the said proceeding was not initiated on the
basis of no specific complaint from the borrowing department. Therefore, it is submitted by the petitioner that in the case of the petitioner also,
there is no specific proposal from the borrowingAuthority/Corporation alleging misconduct committed by the petitioner and on that ground alone,
the proceeding initiated by the Memorandum, dated 25.9.2006, against the petitioner is improper and contrary to the Rules and the same should
be quashed, as neither the chairman nor the Corporation has ever made any proposal contending that a proceeding should be drawn against the
petitioner. Hence, without a proposal of a specific misconduct made by the borrowing Authority, the lending department has no authority to initiate
a departmental proceeding against the petitioner.
8. In response to the Memorandum, dated 25.9.2006 (supra), the petitioner sought for some information/documents to be supplied him under the
Right to Information Act, so that he can give proper answer to the said Memorandum, dated 29.5.2006, within the stipulated period of ten days
from the date of receipt of the said memorandum. The documents for which he asked for are as follows :
(i) Copies of the Notice and Orders in the related file which may justify the delay of two and a half years in preparing the charge for the
Departmental Proceeding.
(ii) Copy of the complaint, if any by the THCL to the Government suggesting proceeding against the petitioner for misconduct contained in the
Charge Sheet.
(iii) Copies of the Enquiry Report and notice since 16.12.2003 when the 3 member committee headed by Shri M.C. Dutta submitted its report
explaining the reasons for damage of patato seeds.
9. The SPIO/Under Secretary to the GA (AR/Vig.) Department, by his forwarding letter, dated 17.4.2007, (Annexure6(I) to the writ petition),
furnished the information relating to item No. 2 only contained in 3 sheets, which are enclosed as Annexure 6(ii), 6(iii) and 6(iv) to the writ petition,
on which the petitioner contends that the aforementioned documents supplied to the petitioner do not contain any specific proposal for proceeding
against the petitioner. So, it will be illegal on the part of the respondent to initiate the instant disciplinary proceeding against the petitioner, therefore,
the same is liable to be set aside and/or quashed.
10. The further case of the petitioner is that though he once again applied for the post of Principal and Professor in the College of Agriculture,
Tripura, he has apprehension that the respondents may not forward his applications for the aforesaid posts to the concerned authority on the plea
of the disciplinary proceeding being pending against him. Therefore, a direction to the respondents is called for to forward his applications, dated
22.3.2007 and also not to obstruct his process of selection, if he is called for such selection.
11. In response to the contention of the petitioner made in his petition, the respondent No. 3, Tripura Horticulture Corporation Ltd., (THCL) has
filed its affidavit in opposition stating, inter alia, that the writ petitioner was appointed on 13.9.2002 as Managing Director of THCL and on
10.11.2003 he was duly repatriated to the parent department. The Teliamura Cold Store at Gamaibari is at the disposal of Tripura Horticulture
Corporation Ltd., Agartala and in the year 2003, the entire stock of potato seeds kept in the cold store have been damaged. In this respect, the
then Managing Director, THCL duly wrote a letter, dated 2.12.2003, to the Principal Secretary to the Government of Tripura, Department of
Agriculture, Agartala that an enquiry might be conducted to the fact that the entire stock of potato seeds had been damaged at Teliamura Cold
Store. In a special meeting of Board of Director of THCL held on 21.10.2003, a committee consisted of four officials/members has been formed
and the committee was asked to submit its report by 28.10.2003. The said committee submitted its report on 28.10.2003, but a special meeting of
the THCL held on 3.11.2003 did not consider the said report and further directed the committee to submit additional information within fifteen
days before the Board. In the meantime, the writ petitioner, who was the Managing Director, THCL and the Chairman of Teliamura Cold Storage
Enquiry Committee, was repatriated to his parent Department on 10.11.2003 as per decision of the Government. Consequently, no further report
as desired by the Board was possible to submit again.
12. The respondent Nos. 1 and 2 have jointly filed their counter affidavit. It is the case of the respondents that the Managing Director of Tripura
Horticulture Corporation Ltd., who is the Borrowing Authority, made a complaint to the Principal Secretary, GA(AR), Department regarding
damage of 425 M.T. potato seeds in Teliamura Cold Store and requested to make an enquiry thereupon and on the basis of the enquiry report, it
appeared that the writ petitioner, who was the Managing Director of THCL, did not perform his supervision works on Teliamura cold storage with
devotion and sincerity, for which 425 MT potato seeds of cultivators was damaged. Thereafter, the Disciplinary Authority issued suspension order
as well as charge sheet to the petitioner and the delay in issuance of charge sheet was made in observing the official formalities. So, the allegation
that without specific proposal of a misconduct made by the borrowing Authority, the lending department shall have no authority to initiate a
departmental proceeding against the Government servant is not tenable and the charge sheet against the writ petitioner was issued properly as per
Rule. As regards the information sought for by the petitioner, it is stated by the respondents that the G.A. (P&T) Department supplied the
documents mentioned in Item No. (ii) of the application of the petitioner and the others were not supplied to the petitioner as it was considered that
disclosure of such information is barred by section 8(1)(h) of the Right to Information Act, 2005. Relating to the application of the petitioner for the
post of Principal and Professor in Tripura Agriculture College, it is submitted by the respondents that the apprehension of the petitioner is not
tenable as the competent authority will consider the aspects of the interview strictly as per Rules.
13. Mr. D.K. Biswas, learned counsel for the petitioner submits that the respondent No. 2, the Principal Secretary to the Government of Tripura,
vide Memorandum, dated 25.9.2006, (Annexure5), proposed to hold an enquiry against the petitioner for alleged misconduct while he was on
deputation in the Tripura Horticulture Corporation Ltd. (THCL) as Managing Director of the said Corporation which is without jurisdiction and
violative of Memorandum, dated 17.8.2004, (Annexure7), issued by the Joint Secretary to the Government of Tripura. In the said Memorandum,
it was specifically mentioned that the initiation of a disciplinary proceeding against the Govt. officials, who were/are on deputation to some other
Department/PSU/Corporation/Organization, etc., is governed by rules 20 and 21 of the CCS (CCA) Rules, 1965, as adopted in the State of
Tripura and the powers of the Appointing Authority and the Disciplinary Authority of those officials for their acts of misconduct committed during
the period of deputation are vested in the borrowing authority. He further submits that the lending Authority has no power to initiate any disciplinary
proceeding against the petitioner for his alleged misconduct during the period of deputation without any specific complaint by the borrowing
Authority, i.e., Tripura Horticultural Corporation Ltd., which is absent in the instant case, for which itself, the impugned Memorandum, dated
25.9.2006, (Annexure5), by which the departmental proceeding is initiated against the petitioner, is called for interference and liable to be set
aside. On similar ground, this court set aside the disciplinary proceeding initiated by the lending department against the petitioner in that case in
W.P.(C) 455 of 2005, who was also on deputation in the same Corporation, i.e., THCL.
14. Per contra, Mr. T. D. Majumder, learned Additional Government Advocate, appearing for the respondent Nos. 1 and 2, submits that there is
no quarrel with the submissions of the learned counsel for the petitioner and that for initiating a disciplinary proceeding against the officials who
were/are on deputation to some other Department/PSU/Organization/Corporation, etc., the disciplinary action has to be taken only by following
the rules 20 and 21 of the CCS(CCA) Rules, 1965 as decided by the Government vide Memorandum, dated 17.8.2004, Annexure7 to the writ
petition. He further submits that in the instant case, the respondents followed the requirements of the aforesaid Rules. Not only the borrowing
Authority i.e. the Corporation, wherein the petitioner was on deputation, made complaint against the petitioner and asked to initiate a disciplinary
proceeding against him, but they also requested to start an enquiry to take action against petitioner. Hence, the Disciplinary Proceeding in question
is only on the basis of the request of the borrowing Department, i.e., the respondent No. 3/Corporation, vide Annexure 6(111) and 6(IV) to the
writ petition. Therefore, action of the respondents cannot be called in question on the ground of jurisdiction. Therefore, the Departmental
Proceeding as initiated against the petitioner, vide Annexure5, is valid as the same was issued after following provisions of the rules 20 and 21 of
the CCS (CCA) Rules read with Memorandum, dated 17.8.2004, (Annexure7 to the writ petition).
15. Mr. P. Dutta, learned counsel for the respondent3/Corporation, in addition to adoption of submissions of Mr. Majumder, learned Additional
Govt. Advocate for the State respondents 1 and 2, submits that it would be evident from Annexure6(IV), the letter, dated 16.4.2004, which was
written by the managing director to the Chief Secretary, Government of Tripura, that the Corporation asked the State Government to take action
against the petitioner and made an enquiry against him.
16. On scrutiny of the submissions of the learned counsel for the parties as well as controversy involved in the matter, the simple question arises for
decision by this court is whether the lending department has the power to initiate a disciplinary proceeding against an employee while he was on
deputation either to any other department or any Organisation/Corporation/Autonomous Body, etc. and whether the Government has the power to
violate its own circular wherein it is stated that to initiate a disciplinary proceeding against an official while he was on deputation, provisions of rules
20 and 21 of the CCS(CCA) Rules shall be complied with and disciplinary proceeding has to be initiated after following the requirement of the
said Rules,
17. This court has given an anxious thought to the submissions of the learned counsel for the parties and the averments made in the writ petition as
well as in the affidavit in opposition filed by the parties and the decision of this court in W.P.(C) 455 of 2005.
18. For proper decision of the question arises in this petition, it would be proper to reproduce the provisions of rules 20 and 21 of the CCS(CCA)
Rules and also Memorandum, dated 17.8.2004. Annexure7 to the writ petition.
20. Provisions regarding officers lent to State Governments, etc. (1) Where the services of a Government servant are lent by one department to
another department or to a State Government or an authority subordinate thereto or to a local or other authority (''the borrowing authority''), the
borrowing authority shall have the powers of the appointing authority for the purpose of placing such Government servant under suspension and of
the Disciplinary Authority for the purpose of conducting a disciplinary proceeding against him:
Provided that the borrowing authority shall forthwith inform the authority which lent, the services of the Government servant (''the lending
authority*) of the circumstances leading to the order of suspension of such Government servant or the commencement of the disciplinary
proceeding, as the case may be.
In the light of the findings in the disciplinary proceeding conducted against the Government servant
(i) if the borrowing authority is of the opinion that any of the penalties specified in clauses (i) to (iv) of rule 11 should be imposed on the
Government servant, it may, after consultation with the lending authority, make such orders on the case as it deems necessary :
Provided that in the event of a difference of opinion between the borrowing authority and the lending authority, the services of the Government
servant shall be replaced at the disposal of the lending authority;
(ii) If the borrowing authority is of the opinion that any of the penalties specified in clauses (v) to (ix) of rule 11 should be imposed on the
Government servant, it shall replace his services at the disposal of the lending authority and transmit to it the proceedings of the inquiry and
thereupon the lending authority may, if it is the disciplinary authority, pass such orders thereon as it may deem necessary, or, if it is not the
disciplinary authority, submit the case to the disciplinary authority which shall pass orders on the case as it may deem necessary.
Provided that before passing any such order the disciplinary authority shall comply with the provisions of subrules (3) and (4) of rule 15.
21. Provisions regarding officers borrowed from State Governments, etc.
(1) Where an order of suspension is made or a disciplinary proceeding is conducted against a Government servant whose services have been
borrowed by one department from another department or from a State Government or an authority subordinate thereto or a local or other
authority, the authority lending his services (hereinafter in this rule referred to as ''the lending authority) shall forthwith be informed of the
circumstances leading to the order of the suspension of the Government servant or of the commencement of the disciplinary proceeding, as the
case may be.
(2) In the light of the findings in the disciplinary proceeding conducted against the Government servant if the disciplinary authoiity is of the opinion
that any of the penalties specified in clause (i) to (iv) of rule 11 should be imposed on him, it may subject to the provisions of subrule
(3) of rule 15 and except in regard to a Government servant serving in the Intelligence Bureau up to the rank of Assistant Central Intelligence
Officer, after consultation with the lending authority, pass such orders on the case as it may deem necessary
(i) provided that in the event of a difference of opinion between the borrowing authority and the lending authority the services of the Government
servant shall be replaced at the disposal of the lending authority;
(ii) if the disciplinary authority is of the opinion that any of the penalties specific in clauses (v) to (ix) of rule 11 should be imposed on the
Government servant, it shall replace the services of, such Government servant at the disposal of the lending authority and transmit to it the
proceedings of the inquiry for such action as it may deem necessary.
Annexure7
GOVERNMENT OF TRIPURA
CENTRAL ADMINISTRATION (AR) DEPARTMENT
No. F. 11 (20)GA(AR)/2004 Dated, Agartala, the 17thAugust, 2004.
MEMORANDUM
It has been observed that some Departments have been requesting the GA(AR) Department to initiate disciplinary proceedings against those
officials who were/are on deputation to some other Department/PSU/Corporation/Organization, etc. Disciplinary action against such officials is
government by rules 20 and 21 of the CCS(CCA) Rules, 1965 and the powers of Appointment Authority and the Disciplinary Authority of those
officials for their acts of misconduct committed during the period of their deputation are vested in the Borrowing Authority. It will be illegal on the
part of the lending Authority to initiate disciplinary proceeding against such officials unless there is any such specific proposal for the borrowing
Authority
2. All Departments/Head of Departments are, therefore, requested to follow the provisions of rules 20 and 21 of the CCS(CC&A) Rules,
1965when initiating proposal for taking disciplinary action/taking disciplinary action against the officials for their misconduct committed during the
period of their deputation to other Departments/PSUs/Corporations/Organisations.
Sd/16.8.2004
(L. H. darlong)
Joint Secretary to the Government of Tripura
19. On perusal of the aforesaid provisions of the Rules and the Memorandum, dated 17.8.2004, (Annexure7), it appears that the Disciplinary
Authority in respect of the acts of the misconduct committed by an employee while he was on deputation are vested on the borrowing
Authority/Department and not with the Lending Authority/Department, unless the Borrowing Department after repatriation of the said official,
specifically made a complaint against him to the Lending Department for initiating disciplinary proceeding for his alleged misconduct during the
period of deputation, as all the powers of Appointing Authority remain with the Borrowing Authority regarding those employees for the said
period. It also appears from the Annexure7 to the writ petition that the provisions of rules 20 and 21 of the CCS(CCA) Rules shall govern the
initiation of disciplinary proceeding against the officials, who were/are on deputation to some other Department/PSU/Corporation/Organisation,
etc., for their misconduct during the period of deputation.
20. Now it is necessary for scrutiny whether the borrowing Department/Organisation, i.e., the respondent3/Corporation made any complaint
specifically against the petitioner to the Lending Department, i.e., the respondent Nos. 1 and 2 for taking any action or enquiry by way of initiating
a disciplinary proceeding, as contended by the learned Addl. Govt. Advocate for the State respondents. It appears from the letter, dated
16.4.2004, [Annexure 6(IV)] and letter, dated 2.12.2003, [Annexure 6(111)], that request was made by the Managing Director of the
Corporation to ""take action on the issue"" and ""make an enquiry on the issue"" and the issue involved in those letters are damage of stock of potato
seeds kept in the cold storage, namely, Teliamura Cold Store at Gamaibari, not against the petitioner or for his misconduct. For better
appreciation, both the aforesaid letters are quoted hereunder :
Annexure6(III)
Tripura Horticulture Corporation Limited (A Government of Tripura Undertaking) Registered Office : Palace Compound(West) Agartala :
Tripura
No. F.2(17)/THCL/8889/3114 Dated, Agartala, the 2nd
December, 2003.
To
The Principal Secretary to the
Government of Tripura,
Department of Agriculture
Agartala
Attention : Joint Secretary (Agriculture)
Sir,
Teliamura Cold Store at Gamaibari is at the disposal of the Tripura Horticulture Corporation Ltd. Agartala. In the recent past the entire stock of
potato seeds kept in the cold store has been damaged.
It is requested to kindly make an enquiry on the issue.
In this connection, it may be mentioned here that we have distributed 425 M.T. Potato seeds and 24.390 Kg. True Potato Seeds (TPS) to the
affected cultivators as per decision of the Government.
Yours faithfully,
SdA
Managing Director
Annexure6(IV)
Tripura Horticulture Corporation Ltd. (AGovt. of Tripura Undertaking) Registered Office PALACE COMPOUND (WEST), AGARTALA
TRIPURA
* * *
CONFIDENTIAL
To
The Chief Secretary
Government of Tripura
Agartala
Sub : Enquiry on Teliamura Cold Storage and action thereof.
Ref: Letter No. F.2(17)/THCL/8889/3114 Dated, 2nd December, 2003 addressed to Principal Secretary to the Deptt. of Agriculture.
Sir,
As per request of THCL Government has made an enquiry on the issue of Teliamura Cold Storage. We think in the meantime, enquiry has been
completed, based on enquiry Government may take action on the issues.
Yours faithfully,
Sd/16.4.2004
Managing Director
21. It also appears from Annexure6(II), note of the Joint Secretary, Agriculture, that the Corporation has made a formal request to make an
enquiry into the damage of potato seeds at the Teliamura Cold Storage, not against the alleged misconduct of the petitioner. In the said note, it is
also stated, inter alia, ""earlier in our original file lying with the GA(AR) Department, we proposed to put two of THCUs Executives under
suspension followed by initiation of disciplinary proceedings. The present letter from the THCL might make the process easier"". According to this
court, the aforesaid note of the Joint Secretary, Agriculture, shows that before the said request was made by the Managing Director, vide letter,
dated 2.12.2003, Annexure6(III), there was no letter from the Corporation requesting the Lending Authority for going into any enquiry into the
damage of the potato seeds, far to the misconduct of the petitioner.
22. This court is of the considered view that there was no complaint/request by the respondent No. 3/the borrowing Authority/Corporation to the
Lending Authority, i.e., the respondent Nos. 1 and 2 for initiating any departmental proceeding against the petitioner while he was on deputation in
the Corporation for his alleged misconduct as stated in the charge sheet (Memorandum, dated 25.9.2006, Annexure5, to the writ petition) and
action of the respondent No. 2 is, thus, contrary to the prescription of his own Department, i.e., the General Administration (AR) Department,
(Memorandum at Annexure7). An authority, Who issued any order or direction to follow certain procedure to other Departments, is under
obligation to follow the same. Unless the issuing authority follows its own order, how can it be expected that other authorities will follow the same.
23. In the instant case, it is an admitted position that the Borrowing Authority/Corporation did never make any complaint against the petitioner.
Though Mr. Majumder, the learned Additional Govt. Advocate for the State respondent Nos. 1 and 2 as well as Mr. Dutta, learned counsel for
the respondent No. 3 urges before this court, that the Borrowing Authority/Corporation made specific request to the lending department, i.e., the
respondent Nos. 1 and 2 for initiating a departmental proceeding against the petitioner for his alleged misconduct during the period of deputation in
the said Corporation, but they failed to produce any document in support of their contentions. Hence, action of the respondent No. 1 as well as
Memorandum, dated 25.8.2006, (Annexure5), issued by the Principal Secretary to the Govt. of Tripura, (the Disciplinary Authority) is wholly
without jurisdiction and when an action is without jurisdiction, the same can be treated unfair and if the action is unfair, then the same is
unreasonable .and an unreasonable order is always arbitrary, thereby the same is violative of article 14 of the Constitution of India and required to
be interfered with by the court of law. Consequently, the Annexure5 to the writ petition is hereby set aside and quashed.
24. As this court has set aside the Disciplinary Proceeding in question, there is no hurdle for the respondents/authorities for forwarding the
applications of the petitioner to the concerned authority to whom he applied for the post of Principal/Professor. The respondent Nos. 1 and 2 are,
therefore, directed to forward the application of the petitioner, dated 22.3.2007, to the concerned authority immediately and also not to create
obstruction in the process, if the petitioner is called for selection and selected by the concerned authority on the ground of Disciplinary Proceeding
for alleged misconduct while he was on deputation as the same has already been set aside.
25. In the result, the writ petition is allowed with no order as to cost.