Nipu Kalita vs The State Of Assam And 4 Ors
2021 Latest Caselaw 3397 Gua

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GAHC010206272021




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                           Case No. : WP(C)/6591/2021

         NIPU KALITA
         SON OF LT. JOGEN KALITA
         R/O BANFUL NAGAR,
         SIVA SHAKTI ENCLAVE
         P.S. HATIGAON
         DIST KAMRUP, ASSAM



         VERSUS

         THE STATE OF ASSAM AND 4 ORS.
         TO BE REP. BY THE PRINCIPAL SECRETARY TO THE HOME AND
         POLITICAL DEPARTMENT, GOVT. OF ASSAM, DISPUR, GUWAHATI-6,
         ASSAM

         2:THE SECRETARY TO THE GOVT. OF ASSAM

          HOME (A) DEPARTMENT
          DISPUR
          GUWAHATI-6
          ASSAM

         3:THE SECRETARY TO THE HOME AND POLITICAL DEPARTMENT

          GOVT. OF ASSAM
          DISPUR
          GUWAHATI-6
          ASSAM

         4:THE DIRECTOR GENERAL OF POLICE

          GOVT. OF ASSAM
          ULUBARI
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             GUWAHATI-7
             ASSAM

            5:DEPUTY COMMISSIONER OF POLICE (ADMN).
             GUWAHAT

Advocate for the Petitioner   : MS. M MEDHI

Advocate for the Respondent : GA, ASSAM




                                  BEFORE
                HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                          ORDER

Date : 10-12-2021

Heard Mr. I. Rafique, learned counsel for the petitioner who submits that the second show cause notice dated 18.11.2021 issued by the Disciplinary Authority, i.e. Deputy Commissioner of Police (Admn.), Guwahati should be set aside, inasmuch as, the Disciplinary Authority had already made up his mind to the effect that the petitioner was guilty in the departmental proceeding and that he should be imposed with a penalty.

2. The petitioner's counsel submits that the petitioner is a Sub-Inspector (UB) Assam and on the allegation of having tortured a lady, a Departmental Proceeding No.13/2017 was initiated against the petitioner. After the Enquiry Officer had submitted his Enquiry Report to the Disciplinary Authority, the Disciplinary Authority issued a second show cause notice to the petitioner, asking the petitioner to submit his representation against the same. However, the second show cause notice dated 18.11.2021 also stated that the petitioner was liable for punishment.

3. The petitioner' counsel submits that the second show cause notice was an empty formality, as the decision to punish the petitioner had already been decided by the Disciplinary Authority. He accordingly submits that the second show cause notice should be set aside and in support of his submission that the Page No.# 3/5

said second show cause notice was an empty formality, he has relied upon the judgments of this Court in Nipu Kalita -vs- State of Assam & Ors. reported in 2020 (5) GLT 322 and Babulal Das -vs- State of Assam & Ors. reported in 2004 (2) GLT 259.

4. Mr. R. Dhar, learned counsel for the respondents submits that the second show cause notice has only reflected the findings of the Enquiry Officer, which is to the effect that the charge of mis-conduct and dereliction of duty have been proved. Accordingly, a consequential effect of the same would require imposition of penalty and the same does not show that the disciplinary authority had already made up his mind with regard to the guilt of the petitioner or that a penalty was going to be imposed on the petitioner.

5. I have heard the learned counsels for the parties.

6. The contents of the impugned second show cause notice dated 18.11.2021 issued by the Disciplinary Authority is reproduced below:-

"You are hereby informed that the enquiry into the charges framed against you in connection with the Departmental Proceeding No.13/2017 has been completed. A copy of the findings is enclosed herewith. On perusal of the findings, it is noticed that the charges of misconduct and dereliction of lawful duties are proved. Hence, you are liable for punishment. You are given 7 (seven) days time for submission of representation if any, against the above referred findings on receipt of this communication. In case of non receipt of any representation from you within the stipulated time the proceeding is liable to dispose presuming that you have got nothing to represent."

7. A perusal of the above shows that though the Disciplinary Authority has reflected the findings of the Enquiry Officer in the Enquiry Report, which is to the effect that the charges of mis-conduct and dereliction of lawful duties have Page No.# 4/5

been proved, the use of the word "hence, you are liable for punishment" could be implied to mean that the Disciplinary Authority had already made up his mind to impose a penalty/punishment upon the petitioner. As such, the issuance of the second show cause notice, wherein the petitioner has been asked to submit his representation against the same could amount to an empty formality.

8. In the case of Nipu Kalita (supra) the second show cause notice states as follows:-

"You are hereby informed that the enquiry into the charges framed against you in connection with Departmental Proceeding No.01/2019 has been completed. A copy of the findings submitted by Shri Nabaneet Mahanta, APS, the then Addl. Deputy Commissioner of Police, East is enclosed herewith. On perusal of the findings it is noticed that the charges of gross misconduct and dereliction of duty against you are proved.

In this regard, you are asked to submit as to why a major penalty be not imposed upon you.

Your are given 15 (fifteen) days time to make a representation, if any, against the above referred findings and submit the same before the final order is passed by the Disciplinary Authority."

9. This Court in the above case of Nipu Kalita (Supra) has held that the second show cause notice was an empty formality, as it appeared that the Disciplinary Authority had accepted the Enquiry Report and had asked the delinquent officer to make his submission on the proposed penalty.

10. In the case of Babulal Das (supra), the Disciplinary Authority had forwarded the Enquiry Report with the proposed penalty of removal to the petitioner. It was in that context that the Court had held that the Disciplinary Authority had made up his mind to impose penalty and as such, the second show cause notice was an empty formality.

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11. In the present case, there is no proposed penalty made by the Disciplinary Authority. However, the Disciplinary Authority has stated that the petitioner "is liable for punishment". There can be two interpretations of the above, as the Disciplinary Authority may or may not have decided as to whether the petitioner was liable for punishment.

12. In view of the above reasons and to do away with any ambiguity, the Disciplinary Authority has to be careful with the use of words, as there can be no pre-determination of an issue pertaining to an Enquiry Report, prior to giving an opportunity to the delinquent officer to submit a representation against the Enquiry Report to the Disciplinary Authority.

13. In view of the reasons stated, this Court is of the view that the word "hence, you are liable for punishment" is not sustainable. The second show cause notice dated 18.11.2021 is hereby set aside. However, the Disciplinary Authority is given liberty to issue a fresh second show cause notice in respect of the departmental proceeding No.13/2017 to the petitioner.

14. Writ petition is accordingly disposed of.

JUDGE

Comparing Assistant