CHELFRU MOG Vs. STATE OF TRIPURA

JUDGEMENT

(1.) The legitimacy of the order of removal from service of the petitioner has been assailed in the petition. The petitioner is a scheduled tribe and at the relevant time, he was working in the State Police Service wherein he was appointed as a constable under the Tripura Armed Police 1 st Battalion. While he was so serving in the department, a disciplinary proceeding was initiated against the petitioner for alleged second marriage with one Smt Hrinchai Mog during the life time of his first wife Smt Mosaja Mog. Articles of charges were served upon the petitioner. The Inquiring Officer on completion of inquiry submitted the report. The Disciplinary Authority by an order dated 6.7.90 passed a provisional order removing the petitioner from service. The said order was finally confirmed by an order dated 12.8.90. He preferred an appeal which was rejected.

(2.) Mr C.S. Sinha, learned counsel for the petitioner has submitted that the petitioner was denied the natural justice by denying him the opportunity to defend his case effectively and properly. Mr Sinha submitted that under the disciplinary rules, a delinquent officer is entitled to know the charge, take assistance of a defence assistant and contest the case on merit. In the instant case, he being a lowly placed employee and because of his lack of education he was not in a position to contest the case properly and effectively with the aid of defence assistant. He also submitted that though law provides for taking such assistance, in view of his want of awareness of the nuances of the technicalities of a departmental proceeding, he could not fully and effectively conduct his defence. Mr Sinha submitted that it was incumbent upon the authority to make him aware of his right to enable him to take defence assistance to safeguard his interest and to cross-examine the witnesses. Mr Sinha further submitted that the Inquiring Officer submitted two reports, one was preliminary and the other one was final, but none of these reports was furnished to the petitioner. He submitted that in absence of such report, the petitioner could not effectively deal with the matter and submit an effective representation. Lastly, Mr Sinha submitted that the petitioner was found guilty by the authority for violation of Rule 21 of the Tripura Civil Services (Conduct) Rules, 1988 (for short, 'the Rules')- Mr Sinha submitted that the said Rule 21 only imposes a restriction regarding marriage which is not absolute. The said Rule also contemplates of lifting of the restrictions in a given situation grounded on the personal law applicable to such government employees and other parties to the marriage. Mr U.B. Saha, learned Government Advocate, on the other hand, submitted that though there were some lapses here and there in adherence of procedure, nonetheless justice was done to the petitioner and the petitioner's case was justly and fairly considered by the authority. Mr Saha submitted that in fact there is no dispute as to the contracting of the second marriage by the petitioner. The petitioner as well as the witnesses accepted the position that the second marriage was contracted. Mr Saha submitted that apparently since no permission was granted to the petitioner no illegality was committed by the respondent authority in removing him from service.

(3.) Before adjudicating the matter as to the merits of the case some of the salient facts admitted by the parties are that the petitioner married Smt Mosaja Mog of village Hichhachhara under Belonia Sub Division and after his marriage he started living with the family of his bride as per the custom followed by the Mog community. It was further stated that the petitioner came back to his own house and lived there with his parent along with his second wife and children. The petitioner joined in the Police force in the year 1981. According to the petitioner and his parents, on the advice of the local people, he married again when his first wife deserted him in the year 1983. In the year 1984, the first wife lodged a complaint to the respondent No. 3 wherein she narrated about her sufferings due to the petitioner's second marriage. The authority initiated proceeding's as mentioned above. An inquiry was conducted by the Inquiring Officer. I have also gone through the records of the case in which it appears that the Inquiring Officer recorded the statement on his own. No presenting officer was present. The Inquiring Officer also recorded the statement of witnesses. But there was no cross-examination from the delinquent officer. The Inquiring Officer accordingly recorded below the statement of the witnesses. "Cross- examination -Nil". The materials on record do not show that the Inquiring Officer ever at any stage informed the delinquent the right of cross examination of witnesses by the delinquent and any rate the affect of not cross-examining the witnesses. The procedure adopted by the Inquiring officer in recording the statement of witnesses does not fulfil the requirement under the law. The fact remains that none of those witnesses were cross-examined. No endeavour of whatsoever manner was initiated by the Disciplinary Authority to make the delinquent aware of those aspects. It is needless to say that in a domestic inquiry which a delinquent officer is entitled to :is to get a proper opportunity to know the charges and to contest the case. CCS CCA Rules which are applicable in this case also expressly indicate the procedure of conducting an inquiry. Sub Rule 8 of Rule 14 of the said Rules provides a Government servant the opportunity of assistance from any other Government servant to present the case on his behalf but cannot engage the: legal practitioner. The aforesaid provision confers the right to a delinquent to obtain the assistance of a Government officer to enable him to defend his case meaningfully. The duty as well as the responsibility of affording opportunity to the Government servant rested an the respondents. "A reasonable opportunity of being heard" as envisaged in Article 3:11(2) means a genuine and effective opportunity and not mere pretence. The opportunity to be provided is to be tailored to the situation, keeping in mind the status as well as educational and social background of the employees. In such situation, an added responsibility is cast upon the concerned authority to make the delinquent aware of his right to take assistance of the Government officer for defending his case as the affect and consequence of refusal to cross-examine: the witnesses. The testimonials of the witnesses do not express anything as to the restrictions of second marriage of the Government employee concerned. In fact, the disciplinary authority did not genuinely address to that aspect of the matter. The appellate authority only stated that since the customary laws of the community to which the petitioner belongs to were not codified by the State Government, and therefore it refused to accept the plea of permissibility of second marriage in such society, The Disciplinary Authority relied upon the report of the Inquiring Officer, but the said report was never furnished to the petitioner for which he got no opportunity to take the assistance of other government servant Jo defend his case. He was also deprived of the opportunity to cross-examine the witnesses. In the circumstances it can be safely held that the petitioner was denied with the opportunity to defend his case effectively and properly and on that ground alone, the petitioner's order of removal from the service cannot be sustained and accordingly set aside and the respondents are ordered to re-instate the petitioner in service.