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GAHC010266992018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/8318/2018
MD. NUR @ NOOR ISLAM
EX- UBC/111, S/O- LT DULAL SEIKH, R/O- KURCHAKATI, P.O.
RANIGANJ,P.S. BILASIPARA, DIST- DHUBRI, ASSAM
VERSUS
THE STATE OF ASSAM AND 3 ORS.
REP. BY THE SECY. GOVT. OF ASSAM, DEPTT. OF HOME, DISPUR, GHY-6
2:THE DIRECTOR GENERAL OF POLICE
POLICE HEADQUARTER
ULUBARI
GHY-7
3:THE DY. INSPECTOR OF POLICE
WESTERN RANGE
BONGAIGAON
DIST- BONGAIGAON
PIN- 781
4:THE SUPERINTENDENT OF POLICE
GOALPARA
DIST- GOALPARA
PIN- 78
Advocate for the Petitioner : MR. P KATAKI
Advocate for the Respondent : GA, ASSAM
Page No.# 2/6 BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI JUDGMENT & ORDER Date : 05-01-2022 Heard Shri P Kataki, learned counsel for the petitioner. Also heard Shri Rahul Dhar, learned Addl. Senior Government Advocate, Assam representing all the respondents.
2. The instant writ petition has been filed challenging a disciplinary proceeding which have culminated in an order of penalty dated 31.10.2014 by which the petitioner, who was serving as Constable in the Traffic Branch of Goalpara Police Station, was removed from service.
3. It is the further case of the petitioner that the statutory appeal preferred by him was also dismissed vide an order dated 12.02.2015. The principal ground taken in the writ petition is non-furnishing of the copy of the Inquiry Report. The petitioner contends that though a second show cause notice dated 21.10.2014 was issued, the same did not contain the copy of the Inquiry Report for which the petitioner had suffered prejudice in making his response as well as defend himself.
4. Shri Kataki, learned counsel for the petitioner, in this connection, has drawn the attention of the communication dated 30.10.2014 submitted by the petitioner in response to the second show cause notice. The said communication dated 30.10.2014 would reveal that on the first available opportunity itself, the petitioner had pointed out to the disciplinary authority that copy of the Inquiry Report, though mentioned in the second show cause notice dated 21.10.2014, was not enclosed thereto and therefore, the petitioner was not able to submit any effective reply.
5. On the other hand, Shri Dhar, learned Addl. Senior Govt. Advocate submits that the records would reveal that the petitioner himself received the second show cause notice Page No.# 3/6 21.10.2014 by putting his signature on 25.10.2014 and the show cause notice itself had categorically stated regarding the enclosure being the copy of the findings of the Inquiry Officer.
6. Though the aforesaid question would be a disputed question of fact, the same would not detain this Court to adjudicate the present case which is altogether on a different ground.
7. A bare perusal of the second show cause notice dated 21.10.2014 would disclose that even before the second show cause notice was issued to the petitioner, the Disciplinary Authority had already come to a conclusion of accepting the findings of the Inquiry Officer. The show cause notice dated 21.10.2014 further discloses that opportunity was given as to why major penalty should not be imposed on him.
8. The requirement of furnishing a copy of the Inquiry Report to a delinquent has been held to be a mandatory requirement by the Hon'ble Supreme Court in a number of cases, including in the case of Union of India Vs. Mohd. Ramzan Khan, reported in (1991) 1 SCC 588. Subsequently, a Constitution Bench of the Hon'ble Supreme Court in the case of Manager Director, ECIL, Hyderabad & Ors. Vs. B. Karunakar & Ors. , reported in (1993) 4 SCC 727 while reiterating the requirement laid down in the case of Mohd. Ramzan Khan (supra) has held that the delinquent employee has a right to receive a copy of the Inquiry Officer's report before the Disciplinary Authority arrives at its conclusion with regard to the guilt or innocence of the employee with regard to the charges levelled against him. The said right has been held to be a part of the employee's right to defend himself against the charges levelled and a denial of the report of the Inquiry Officer before the Disciplinary Authority takes its decision on the charges, is denial of reasonable opportunity to the employee to prove his innocence. It has further been held that such denial would amount to violation of the principles of nature justice. For ready reference, paragraph 29 of the case of Manager Director, ECIL, Hyderabad (supra) is extracted hereinbelow:
Page No.# 4/6 "29. Hence it has to be held that when the Inquiry Officer is not the disciplinary authority, the delinquent employee has right to receive a copy of the inquiry Officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the Inquiry Officer's report before the disciplinary authority takes its decision on the charges is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice."
9. The underlying principle which has been laid down by the Hon'ble Supreme Court is to ensure that the delinquent is not deprived of a reasonable opportunity to defend his case before the Disciplinary Authority comes to an independent finding. The emphasis is on the stage when the Disciplinary Authority is yet to make up its mind on the charges against the petitioner. However, in the instant case, apart from the factual dispute, whether the Inquiry Report was furnished or not, it appears that the said question would not be required to be answered inasmuch, as the Disciplinary Authority in clear terms had come to a conclusion of accepting the findings of the Inquiry Officer's report. The consequence of such conclusion is that the second show cause notice dated 21.10.2014 becomes an empty formality and would amount to a sham opportunity only for the sake of it.
10. As regards the opportunity granted by the second show cause notice dated 21.10.2014, the same pertains only to why a major penalty should not be imposed upon the petitioner. In this connection, it would be prudent to refer to the Forty-second Amendment of the Constitution of India which came into effect from 03.01.1977 pertaining to Article 311 of the Constitution of India whereby, it has been laid down that it is not necessary to give any opportunity of making representation on the penalty proposed.
11. From the above, it becomes clear that on both counts, the second show cause notice is not sustainable, firstly, because of denial of a reasonable opportunity to defend his case by Page No.# 5/6 persuading the Disciplinary Authority to take a view against the findings of Inquiry Report which are adverse to the petitioner and secondly, there is no requirement to submit any response on the nature of the penalty.
12. The Hon'ble Supreme Court in a catena of decisions involving non-furnishing of Inquiry Report, including the above referred cases has held that instead of quashing the entire proceeding, a correct approach would be to remand the matter to the Disciplinary Authority to continue with the proceeding from the stage of issuing the second show cause notice in accordance with law.
13. By following the aforesaid principles and the law laid down, this Court is of the considered opinion that all actions taken subsequent to the second show cause notice dated 21.10.2014, including the order of penalty dated 31.10.2014 and the order of the Appellate Authority rejecting the appeal are liable to be set aside which is accordingly done. The petitioner is accordingly directed to be reinstated in service in the position from where he was removed. Further opportunity is granted to the authorities to start a de novo proceeding from the stage of furnishing of the second show cause notice which has to accompany the report of the Inquiry Officer and by following the principles laid down in above referred case laws.
14. Needless to say that since the earlier Disciplinary Authority, namely, the Superintendent of Police had already come to a finding of guilt, the proceedings, if decided to be continued de novo, the same would be done by another Officer of equivalent rank and in case a new incumbent has taken the place of Superintendent of Police, Goalpara then the incumbent may initiate the de novo proceeding from the stage as mentioned above.
15. This Court, however, makes it clear that no observations on the merits of the allegations have been made and it is up to the parties to establish / deny the charges if de novo enquiry from the stage of initiation of the second show cause notice is taken up.
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16. The writ petition is accordingly disposed of. No costs.
JUDGE Comparing Assistant