Gauhati High Court
Case No. : Wp(C)/3589/2016 vs The State Of Assam And 2 Ors on 21 February, 2023
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GAHC010018282016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3589/2016
AJIT DAS
S/O LT. HARESH BEHARI DAS R/O VIVEKANANDA PATH ODAL-BKRA, LL
GANESH P.O. ODAL BAKRA, P.S. DISPUR, GUWAHATI, DIST. KAMRUP
METRO, ASSAM.
VERSUS
THE STATE OF ASSAM and 2 ORS.
THROUGH THE COMMISSIONER-SECRETARY, FINANCE DEPARTMENT,
P.O. ODAL -BAKRA, P.S. DISPUR, GUWAHATI.
2:THE SECRETARY
FINANCE ESTABLISHMENT -B DEPARTMENT
GOVT. OF ASSAM
DISPUR
GUWAHATI-6.
3:THE STATE ENQUIRY OFFICER
ASSAM
ASSAM SECRETARIAT CIVIL DISPUR
GUWAHATI-6
Advocate for the Petitioner : MR.B CHAKRABORTY
Advocate for the Respondent :
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
Date : 21-02-2023
JUDGMENT & ORDER (ORAL)
Heard Mr. KN Choudhury, learned senior counsel for the petitioner and Mr.
B Gogoi, learned counsel for the respondents in the Finance Department of the
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Government of Assam.
2. The petitioner, who was serving as a Treasury Officer in the Ramkrishna
Nagar Sub Treasury was departmentally proceeded as per the show cause
notice dated 08.03.2000. Upon being dissatisfied with the reply given by the
petitioner to the show cause notice, an enquiry was initiated by appointing Sri
Benoy Kumar Bhattacharjee, Director of Accounts and Treasuries, Assam as an
enquiry officer as per the order dated 03.06.2000 under Rule 9(4) of the Assam
Services (Discipline and Appeal) Rules, 1964 (in short Rules of 1964) to enquire
against the charges against the petitioner.
3. The petitioner participated in the enquiry process, but it was not brought
to its logical end. In the meantime, by the notification impugned dated
17.05.2016, the Commissioner and Secretary to the Government of Assam in
the Finance Department had appointed the State Enquiry officer, Assam as the
enquiry officer to enquire into the charges against the petitioner in respect of
the same show cause notice dated 08.03.2000 by providing that the
appointment was again under Rule 9(4) of the Rules of 1964. Being aggrieved,
this writ petition is instituted.
4. There is an interim order restraining the respondents from proceeding with
the enquiry through the newly appointed enquiry officer being the State Enquiry
officer, Assam as per the notification dated 17.05.2016.
5. The question that has arisen before the Court is when an enquiry process
had been initiated and carried forward to a certain extent, whether a new
enquiry officer can be appointed to replace the earlier enquiry officer and if yes,
under what circumstance.
6. In this respect, reference is made to the pronouncement of the Hon'ble
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Supreme Court rendered in K.R Deb -vs- The Collector of Central Excise,
Shillong, reported in (1971) 2 SCC 102, wherein in paragraph 12 it has been
provided that if in a particular case, there has been no proper enquiry because
of some serious defect that may have crept into the enquiry or some important
witnesses were not available at the time of enquiry or were not examined for
some other reason, the disciplinary authority may ask the enquiry officer to
record further evidence, but there is no provision under the Rules in force in the
said proceeding for completely setting aside the previous enquiries on the
ground that the report of the enquiry officer or officers does not appeal to the
disciplinary authority.
7. In the instant case, although it is not a case where the report of the
enquiry officer is sought to be ignored by appointing another enquiry officer
because such report is not appealing to the disciplinary authority, but at the
same time, by replacing the earlier enquiry officer by another enquiry officer
without any reasonable cause and without circumscribing the role of the
subsequent enquiry officer, the implication thereof would also be that the part of
the proceeding conducted by the earlier enquiry officer would be obliterated and
there may be a de-novo enquiry. The circumstance under which a de-novo
enquiry can be ordered is circumscribed by law and it has not been pointed out
by the respondents in any manner that in the instant case such circumstances
were satisfied in order to appoint a new enquiry officer by ignoring the
proceeding that were already initiated by the earlier enquiry officer.
8. Accordingly, the notification dated 17.05.2016 appointing the State Enquiry
officer is set aside and the respondents may continue with the enquiry
proceeding as per the earlier appointed enquiry officer as per the order dated
03.06.2000. If because of passage of time, for any reason, the respondents are
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of the view that the said enquiry officer would be disabled to continue with the
enquiry, in such circumstance alone, a new enquiry officer may be appointed.
But the new enquiry officer shall continue from the stage where the enquiry
proceeding remained inconclusive as per the earlier enquiry officer.
9. We have also taken note that the petitioner in the meantime had been
promoted twice and the respondents had not resorted to the sealed cover
method even to deny the promotion to the petitioner.
10. Considering the matter in its entirety, the respondents are directed to
complete the proceeding against the petitioner within a period of four months
from the date of receipt of the certified copy of this order and in doing so, all
the required procedure under Rule 9 of the Rules of 1964 shall be followed.
11. Mr. B Gogoi, learned counsel for the respondents states that the enquiry
officer as well as the presenting officer had in the meantime been retired from
the service.
12. Under the law, the enquiry officer is appointed for the purpose of
conducting an enquiry and it may not be co-terminus with his regular service.
The respondents may act accordingly.
The writ petition is allowed to the extent as indicated above.
JUDGE
Comparing Assistant
