Bidhan Saikia vs The State Of Assam And 3 Ors
2021 Latest Caselaw 2016 Gua

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GAHC010017662021




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

                               Case No. : WP(C)/644/2021

            BIDHAN SAIKIA
            S/O LATE PANIRAM SAIKIA, R/O NAZIRAKHAT, SONAPUR, P.O. SONAPUR,
            P.S. SONAPUR, DIST. KAMRUP (M), ASSAM, PIN 782404
            PRESENTLY SENIOR INSPECTOR/AUDITOR, COOPERATIVE SOCIETIES,
            OFFICE OF THE ASSTT. REGISTRAR OF COOPERATIVE SOCIETIES, NORTH
            LAKHIMPUR, ASSAM.



            VERSUS

            THE STATE OF ASSAM AND 3 ORS
            REPRESENTED BY THE PRINCIPAL SECY. TO THE GOVT. OF ASSAM,
            COOPERATION DEPTT., DISPUR, GUWAHATI 6

            2:THE SECY. TO THE GOVT. OF ASSAM
             COOPERATION DEPTT.
             DISPUR
             GUWAHATI 6

            3:STATE ENQUIRY OFFICER

             ASSAM SECRETARIAT (CIVIL)
             DISPUR
             GUWAHATI 6

            4:THE REGISTRAR OF CO OPERATIVE SOCIETIES

             GOVT. OF ASSAM
             KHANAPARA
             GUWAHATI 2

Advocate for the Petitioner   : MR R CHAKRAVORTY
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Advocate for the Respondent : GA, ASSAM

BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA

For the petitioner : Mr. R. Chakravorty, Advocate For the respondents : Ms. M.D. Borah, Standing Counsel Date of hearing : 24.08.2021 Date of judgment : 01.09.2021

JUDGMENT AND ORDER

(CAV)

Heard Mr. R. Chakravorty, learned counsel for the petitioner and Ms. M.D. Borah, learned standing counsel for the Cooperation Department, appearing for all the respondents.

2. Claiming that the criminal prosecution as well as disciplinary proceeding are both simultaneously being proceeding against the petitioner, by filing this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for a direction upon the respondents not to proceed with the disciplinary enquiry that was initiated vide notification dated 18.07.2018 till the disposal of the trial of Spl. Case No. 6/2018 pending before the Court of Special Judge, Assam and for other reliefs. It may be mentioned that the learned counsel for the petitioner by referring to the charge-sheet furnished to the petitioner in connection with the disciplinary enquiry as well as the charge- sheet submitted in connection with the said Spl. Case No. 6/2018, has been able Page No.# 3/7

to prima facie demonstrate that there are similarity of charges in both the cases.

3. The fact that there is similarity of charges in both the cases, has not been specifically denied by the respondents in their affidavit-in-opposition filed by the respondent no. 2. However, the learned departmental counsel has submitted that the petitioner has been granted sufficient and reasonable opportunity to defend himself in the disciplinary proceeding. It has been submitted that the petitioner has caused wrongful loss to the Guwahati Wholesale Consumers Cooperative Society Limited, Paltan Bazar, Guwahati by misappropriating funds, which amounts to gross misconduct by the petitioner in discharge of his duties. It is submitted that as per the directions contained in OM No. ABP.43/2011/Pt/7 dated 22.02.2013, the Govt. of Assam has reiterated that the disciplinary authority should not delay the decision of the departmental proceeding on the plea that a criminal case is still pending against the delinquent official and it is further provided therein that wherever criminal case results in acquittal of the accused public servant on a later date, the disciplinary authority should review the earlier decision taken on departmental proceeding, if necessary. Accordingly, it is submitted that greater public interest, the respondents ought not to be restrained from proceeding with the disciplinary enquiry against the petitioner. In support of her submissions, the learned departmental counsel has cited the following cases, viz., (i) Depot Manager, A.P. State Road Transport Corporation Vs. Mohd. Yousuf Miya & Ors., (1997) 2 SCC 699; (ii) State of Rajasthan Vs. B.K. Meena & Ors., (1996) 6 SCC 417; (iii) Kusheshwar Dubey Vs. Bharat Coking Coal Ltd. & Ors., AIR 1988 SC 2118 .

4. It is seen that in the cases cited by the learned departmental Page No.# 4/7

counsel, no straight jacket formula has been paid down to the effect that during pendency of criminal trial, the disciplinary proceeding should not be stayed. However, they contain the word of caution that each case must be examined on merit and that stay orders should not be passed mechanically. One of the considerations is to examine as to whether the defence of the employee in the criminal case would be prejudiced.

5. In order to determine as to whether the defence of the petitioner in the criminal case would be prejudiced, the Court has carefully perused the charge-sheet submitted in the criminal case. It is seen that vide Memo No. COOP.117/2018/26 dated 18.07.2018, show-cause notice was submitted to the petitioner under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 read with Article 311 of the Constitution of India. The list of documents appended thereto are as follows, viz., (1) Memo No. SVC/P.S/RSI/Case No. 1/2016/2017/2173 dated 20.09.2017; and (2) C.M's. SVC P.S. Case No. 1/2016 u/s 120B/409/420 IPC r/w Sec.13(c)(d)/12(2) of P.C. Act. 1988. The list of witnesses appended to the show-cause notice are (i) District Deputy Registrar of Cooperative Societies, Kamrup; and (2) Executive Officer of Guwahati Wholesale Consumer Society Limited, Paltan Bazar. As no names were indicated, the Court by order dated 16.08.2021, had directed the respondents to specifically instruct their learned standing counsel as to which of the witnesses whose names appear as witnesses in page 37-38 of writ petition (i.e. the charge-sheet submitted in the criminal case) are the persons sought to be examined as witnesses in the disciplinary enquiry, whose designation only appears in the list of witness in page 55 of the writ petition (i.e. list of witnesses accompanying the show-cause notice in disciplinary proceeding). By a written Page No.# 5/7

instruction vide letter under Memo No. COOP 117/2018/219 dated 24 th August, 2021 (retained on record), the Deputy Secretary to the Govt. of Assam, Cooperation Department had informed the learned standing counsel for the respondents as follows:-

"Madam,

In reference to the subject and letter no. cited above, I am directed to state that the list of witnesses appeared in the show cause i.e. Shri Moinul Hoque Choudhury, the then DRCS, Kamrup (page 55 of the writ petition) and Shri Bidhan Saikia, the then Executive Officer of Guwahati Wholesale Consumer Society Ltd., Paltan Bazar are not included in the list of witnesses of the charge sheet of the criminal case (page 37 and 38 of the writ petition).

Yours faithfully,

sd/- (illegible) 24/8

Deputy Secretary to the Govt. of Assam

Cooperation Department."

6. Thus, it appears that in their collective wisdom, the respondent authorities have named Bidhan Saikia, the then Executive Officer of Guwahati Wholesale Consumer Society Limited, Paltan Bazar as witness no.2 in the disciplinary proceeding. The said witness, namely, Bidhan Saikia, is none other than the petitioner, against whom the disciplinary proceeding has been initiated. Therefore, there is absolutely no doubt that if the respondents propose to examine the petitioner as a witness against himself in the disciplinary proceeding, the petitioner would definitely suffer irreparable prejudice in criminal trial, where he is facing trial as an accused. Moreover, in the event the petitioner is allowed to be examined as a witness against himself in the Page No.# 6/7

disciplinary enquiry against him, before the examination of prosecution witnesses are concluded in the trial of the criminal case against the petitioner, the constitutional protection available to the petitioner as embodied in Article 20(3) of the Constitution of India would be irreparably lost to his utter prejudice. The provisions of 20(3) of the Constitution of India provides that " No person accused of any offence shall be compelled to be a witness against himself."

7. Therefore, none of the three cases cited by the learned departmental counsel is found to help the respondents in any manner whatsoever. Accordingly, having seen that the Deputy Secretary to the Govt. of Assam, Cooperation Department, vide letter under Memo No. COOP

117/2018/219 dated 24th August, 2021, had informed the learned standing counsel for the respondents that the petitioner, namely, Bidhan Saikia, is being proposed to be examined as department witness no.2, the Court is inclined to opine that in this case, the petitioner would definitely suffer irreparable prejudice if evidence is allowed to be taken in the disciplinary proceeding before examination of prosecution witnesses is conclude in Spl. Case No. 1/2016, pending before the Court of Special Judge, Assam. Thus, this writ petition deserves to be allowed and accordingly, the respondents are restrained from proceeding with the disciplinary enquiry initiated vide notification dated 18.07.2018 till the examination of prosecution witness is concluded in Spl. Case No. 6/2018 pending before the Court of Special Judge, Assam.

8. The writ petition stands allowed to the extent as indicated Page No.# 7/7

above. There shall be no order as to cost.

9. Before parting with the records, this case reminds of the famous sher (poem) by a renowned Shayar (poet) namely, Riyasat Hussain Rizwi, who wrote shayari (poem) in the pseudonym of Shauq Bahraichi, who had stated as follows:-

"barbad gulistan karne ko bas ek hi ullu kafi hai,

har shakh pe ullu baithe hain, anzam e gulistan kya hoga".

A rough translation of the said poem in English would be -

"an owl is enough to destroy a garden, what will be the fate of the garden if there are owl in every branch".

10. The recitation of the above shayari (poem) is neither intended to be construed as a comment of the Court on any particular individual, nor is it intended to hurt any particular individual.

JUDGE

Comparing Assistant