[Cites 17, Cited by 0]
Gauhati High Court
WP(C)/6452/2022 on 19 December, 2025
Author: Soumitra Saikia
Bench: Soumitra Saikia
GAHC010200992022
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
PRINCIPAL SEAT
W.P(C) NO. 6452/2022
Sri Chiranjeeb Das,
Age 55 years, Son of Dr. Rajani Kanta
Das, Resident of Amarawati Path,
House No. 8-9, Opposite Dispur Sub-
Post Office, Guwahati-5
.....................Petitioner
Versus
1. The State of Assam
Represented by the Additional Chief
Secretary to the Government of Assam,
Excise Department, Dispur, Guwahati-6
2. Principal Secretary, Excise
Department, Government of Assam,
Dispur, Guwahati-6
3. The Commissioner & Secretary,
Excise Department, Government of
Assam, Dispur, Guwahati-6
4. The Commissioner of Excise,
Government of Assam, Housefed
Complex, Dispur- Beltola Road,
Guwahati-6
Page 1 of 49
5. The Secretary, Department of
Excise, Government of Assam, Dispur,
Guwahati-6
6. The Additional Secretary,
Department of Excise, Government of
Assam, Dispur, Guwahati-6
........Respondents
Sri Chiranjeeb Das,
Age 55 years, Son of Dr. Rajani Kanta
Das, Resident of Haflong, Near
Agriculture Office, (Sumo Stand),
District- Dima Hasao, PIN 788819
.....................Petitioner
Versus
1. The State of Assam
Represented by the Additional Chief
Secretary to the Government of Assam,
Excise Department, Dispur, Guwahati-6
2. Principal Secretary, Excise
Department, Government of Assam,
Dispur, Guwahati-6
3. The Commissioner & Secretary,
Excise Department, Government of
Assam, Dispur, Guwahati-6
4. The Commissioner of Excise,
Government of Assam, Housefed
Complex, Dispur- Beltola Road,
Guwahati-6
5. The Secretary, Department of
Excise, Government of Assam, Dispur,
Guwahati-6
6. The Additional Secretary,
Department of Excise, Government of
Assam, Dispur, Guwahati-6
........Respondents
-BEFORE-
HON'BLE MR. JUSTICE SOUMITRA SAIKIA
Advocate for the petitioner: Mr. H.K Das, Advocate
Advocate for the respondents: Mr. B Goswami, Addl. Advocate General, Assam
Dates of Hearing : 04.03.2025; 20.03.2025; 24.04.2025; 20.05.2025;
21.05.2025; 03.06.2025; 26.06.2025; 24.07.2025 &
14.08.2025; 26.11.2025 & 12.12.2025
Date on which Judgment was reserved : 12.12.2025
Date of Pronouncement of Judgment : 19.12.2025
Whether the pronouncement is of
the Operative Part of the Judgment : No
Whether the full Judgment has been
Pronounced : Yes
JUDGMENT AND ORDER (CAV)
The petitioner before this Court is employed as Superintendent of
Excise, Government of Assam. He was selected for appointment
pursuant to a selection process conducted by the Assam Public
Service Commission (hereinafter referred to as "APSC"). The
petitioner topped in the merit list and after completion of his training,
he joined in the year 1992. His first posting was in Barpeta as
Superintendent of Excise. Thereafter, he was transferred to various
places and he performed his duties to the best of his ability and
without any complaints from any quarters. Because of his dedication
to service, he had undertaken several research and studies into the
various negative influences which had played the society. He
submitted his report to the Government on the study in the research
made. During his tenure of service, he was transferred and posted in
various stations across the State. During his posting at Haflong, the
Petitioner filed several representations before the authorities seeking
his transfer to the district of Kamrup on account of his ailing parents
who required medical treatment. After almost a lapse of one year,
the Government of Assam, Excise department finally issued a
notification dated 21.05.2015 by which the Petitioner was transferred
and posted as Superintendent of Excise, Kamrup. The petitioner
assumed his charge on 25.05.2015. Because of conspiracies hatched
by one Shri Partha Pratim Phukan who was an applicant for a bar
licence before the department and because of the non fulfillment of
the Prescribed procedure, the application of the Shri Partha Pratim
Phukan stood rejected by the petitioner. The said application was
rejected as it was not accompanied by the application fee and the No
Objection Certificate from the Guwahati Municipal Corporation,
besides other documents as a result of which the said application
could not be processed. Subsequently, the applicant filed another
application before the authorities after obtaining the NOC from the
GMC Authorities. As per the procedure, the concerned Inspector of
Excise of the concerned zone was required to conduct an enquiry. On
the basis of the enquiry report submitted by the concerned Inspector
of Excise, the application of Sri Phukan stood rejected. Although the
said Sri Phukan repeatedly requested for review of the orders passed
for rejection of his application for license, the petitioner being a
Superintendent of Excise did not have the power to review and recall
the order of rejection as per the Rules. Since the application of the
said Sri Phukan for the license was not issued, the said Shri Phukan
continued to pursue the said progress and status of his application.
In this regard, the said Shri Phukan used to visit the House of the
petitioner without any invitation. In order to hatch a conspiracy
against the petitioner, on 27.09.2016, the said Sri Phukan
approached the petitioner in his residence without any invitation and
tried to thrust some currency notes to the petitioner and thereafter
instantly move away from his house. The Petitioner was shocked at
the behavior of said Sri Phukan and rushed after him calling his name
but immediately the officials of vigilance and anti corruption entered
the parental premises of the petitioner and arrested him on
27.09.2016.
2. It is the case projected on behalf of the petitioner that he
became a victim of a conspiracy hatched by the said Shri Partha
Pratim Phukan because the petitioner maintained high integrity and
discipline and dedication in rendering his official duties. Consequent
to his arrest on 27.09.2016, the petitioner was placed under
suspension with immediate effect pending drawl of disciplinary
proceedings against him. The petitioner thereafter approached the
Hon'ble Gauhati High Court seeking bail. By ordered dated
31.10.2016, the petitioner was released on bail. Thereafter, the Joint
Secretary to the Government of Assam, Excise Department issued a
Show cause notice dated 28.10.2016 under Rule 9 of the Assam
Services (Discipline and Appeal) Rules 1964 (hereinafter to as "the
Rule of 1964") as to why any of the penalties prescribed under Rule
7 of the said Rule should not be inflicted upon the petitioner.
3. After receipt of the show cause notice, the petitioner submitted
an application praying for the list of documents as well as the
witnesses on the basis of which the allegations levelled against the
petitioner in the memorandum of charge, will be sought to be
proved. However, no such list of the documents or witnesses were
furnished to the petitioner. Accordingly, the petitioner submitted his
reply on 01.02.2017 against the show cause notice categorically
denying the allegations levelled against him. The petitioner explained
in detailed as to how the application of the said Shri Partha Pratim
Phukan for obtaining license stood rejected and the influence sought
to be imposed by the said Shri Partha Pratim Phukan on the
petitioner after his application stood rejected. Although the petitioner
was entitled to subsistence allowance during the period of his
suspension, however, as no such subsistence allowance was paid,
the Petitioner represented before the authorities for release of the
said, which however, yielded no response. Subsequently on
31.07.2018, the Joint Secretary to the Government of Assam, Excise
Department furnished report of the enquiry officer dated 10.01.2018
to the petitioner. In the said enquiry report, the enquiry officer held
the charges to be proved.
4. It is submitted that there was no discussion with regard to the
evidence adduced before the Enquiry Officer vis-à-vis the charges
levelled against the petitioner and therefore the said enquiry report
could not have been sustained in the eye of law. Nevertheless, the
petitioner submitted a detailed reply reflecting these defects and
shortcomings in the enquiry report before the disciplinary authority.
The petitioner are also filed representations before the authority for
reinstatement in his service as well as payment of the subsistence
allowance. Subsequently the Department reinstated the petitioner in
service as Superintendent of Exercise, Kamrup. Thereafter, the
petitioner was again transferred from Kamrup to be posted as
Superintendent of Excise, Hailakandi by order dated 04.01.2020. The
petitioner's parents being aged and ailing and whereunder regular
medical care and supervision is required, representations were filed
by the petitioner as well as by his parents for retaining him in
Kamrup as in the meantime, the COVID pandemic situation had
engulfed the entire world, including the country and therefore
regular movement for medical care and supervision of his ailing
parents from Hailakandi to Kamrup district was not possible.
However, the representations filed by the petitioner as well as his
father stood rejected by the authorities. Being aggrieved, the
petitioner approached this Court by filing W.P(C) No. 4459 of 2020
challenging the validity of the notification dated 04.01.2020 by which
the petitioner's posting in the district of Kamrup stood rejected.
5. During the course of the hearing, on the instructions furnished
by the Government counsel that there was one vacant post of
Superintendent of Excise available at Dima Hasao District, the
petitioner agreed to go and join in that place of posting and
accordingly, the writ petition stood disposed of by ordered
08.11.2021. Thereafter, by notification dated 01.12.2021, the
petitioner was transferred and posted as Superintendent of Excise at
Dima Hasao. The Petitioner submitted his joining report on
06.12.2021.
6. Being thus situated, the petitioner was surprised to be served
with a notification dated 08.09.2020 issued by the Secretary,
Government of Assam, Excise Department deciding to initiate de
novo enquiry of the show cause notice dated 28.10.2016 which is
almost after 4 years. The said decision was taken on the ground that
the earlier enquiry report was not acceptable, a fresh enquiry officer
was appointed to enquire afresh into the same set of charges framed
against the petitioner earlier. Accordingly, the enquiry officer and the
presenting officers were also appointed by the department. The
newly appointed enquiry officer issued a fresh show cause notice
dated 04.11.2020 containing the allegations which were already
issued in the show cause notice dated 28.10.2016.
7. It is the contention of the learned counsel for the petitioner
that the Assam (Discipline and Appeal) Rules, 1964 does not have
any provision for initiating a de novo enquiry on the basis of the
same set of allegations which were earlier issued to the delinquent
officer in the previous charge sheet. The petitioner was furnished
copies of the list of documents and accordingly, the petitioner
submitted his detailed reply denying the allegations levelled against
him. His prayer for appointment of a defence assistant was rejected
by the enquiry officer. In the list of witnesses only the name of the
investigating officer who was conducting the investigation into the
alleged trap case at the instance of the said Sri Partha Pratim Phukan
was the only witness. The petitioner participated in the enquiry and
thereafter the enquiry report was submitted on 23.06.2021. Being
thus situated, the petitioner approached this Court by filing W.P(C)
No. 5058/2022 putting to challenge the show cause notice dated
04.11.2020, the enquiry report dated 23.06.2021 and a further
direction to the respondents to exonerate the petitioner from all
allegations containing the show cause notice.
8. While this writ petition was pending, the respondent authorities
on the basis of the show cause notice submitted by order dated
20.08.2022, the Governor of Assam in exercise of powers under
Article 311 (2) of the Constitution of India read with Rule 10 (i) was
pleased to impose the penalty of dismissal from service which shall
ordinarily be disqualification from future employment on the
petitioner under Rule 7(vii) of the Assam (Discipline and Appeal)
Rules, 1964. The period of suspension of the petitioner with effect
from 29.09.2016 to 04.01.2020 was also treated to be absent from
duties. Thereafter, by order dated 01.09.2022, the petitioner was
released from service in view of the order of penalty dated
20.08.2022. Being aggrieved, another writ petition was filed being
W.P(C) No. 6452/2022 by the petitioner. Both these writ petitions
were directed to be listed together. Accordingly, these petitions were
listed for hearing and were heard and disposed of together.
9. The learned counsel for the petitioner submits that the
subsequent de novo enquiry sought to be initiated against the
petitioner is completely without jurisdiction as the Assam (Discipline
and Appeal) Rules, 1964 does not have any provision which permits
the authority for initiating a de novo enquiry. Therefore, the very
initiation of de novo proceedings is contrary to the Rules as well as
the judgments passed by this Court as well as the Apex Court. He
further submits that the show cause notice was issued by the enquiry
officer appointed to conduct the de novo enquiry. This, again, is
contrary to law under the Rules of 1964. The show cause notice is to
be issued by the disciplinary authority and not by the enquiry officer.
Therefore, the second show cause notice issued to the petitioner for
the de novo enquiry is completely contrary to the provisions of the
Rules and on that count also the de novo proceedings should be
interfered with and the punishment imposed should be set aside and
quashed.
10. The further contention of the learned counsel for the petitioner
is that the complainant on the basis of whose complaint the
petitioner was taken into custody on the conspiracy hatched by Sri
Partha Pratim Phukan and because of which the proceedings under
Rule 9 were initiated by the department, was never called for and
examined as a witness during the enquiry proceedings. It is the
contention of the learned counsel for the petitioner that the
complainant is a vital witness whose evidence is necessary to sustain
the very complaint against the petitioner. Therefore, in the absence
of any such evidence of the complainant, there was no merit in the
proceedings initiated and no materials can effectively be relied upon
by the enquiry officer to conclude that the charges levelled against
the writ petitioner stood proved.
11. The learned counsel for the petitioner further disputes the
allegation that the petitioner attempted to receive illegal gratification
in lieu of grant of IMFL licence from the applicant Shri Partha Pratim
Phukan. It is submitted that upon rejection of the application of Shri
Partha Pratim Phukan, the matter had already been communicated to
the next higher authorities and the writ petitioner did not have any
powers to review such orders passed. Therefore, the allegation that
the petitioner demanded illegal gratification is totally belied and false
and is just a conspiracy sought to be hatched against the petitioner
by the said Sri Partha Pratim Phukan.
12. The learned counsel for the petitioner further submits that if
illegal gratification to be proved, there must be evidence to suggest
that the petitioner had demanded such illegal gratification and had
accepted the same pursuant to such demand made. It is submitted
that suspicion or presumption cannot take place of actual evidence
which suggests that the petitioner had received illegally gratification
pursuant to such demands made. Referring to the Judgment of the.
Apex court rendered in Commissioner of Police Delhi and Ors. Vs. Jai
Bhagwan, reported in (2011) 6 SCC 376, it is submitted that unless
there is a demand and acceptance proved during the enquiry,
suspicion or presumption cannot take place or substitute such
concrete evidence to lead to a conclusion that there was any demand
for illegal gratification. The investigating officer who was examined
during the proceedings also deposed that there was no demand by
the writ petitioner for any illegal gratification. During the enquiry, the
enquiry officer relied upon the progress report of the investigation
carried out by the investigating officer in ACB case number 12/2016.
However, the same is not a part of the charge sheet and therefore
the same could not have been relied upon.
13. The learned counsel for the petitioner submits that there are
several Judgments by the Coordinate Bench of this High Court which
lays down the law that the Rules of 1964 does not empower the
authorities to proceed for a de novo enquiry and in the absence of
such specific provisions empowering the authorities to proceed for de
novo enquiry, the authorities could not have issued the impugned
notification for Conducting a de novo enquiry. The learned counsel
for the petitioner has referred to the following Judgments in this
regard:
1. Commissioner of Police, Delhi and Ors. Vs. Jai Bhagwan,
reported in (2011) 6 SCC 376;
2. Bidyut Buragohain Vs. State of Assam, reported in 2005 (3)
GLT 457;
3. Chand Mohammad Ali Vs. State of Assam & Ors., reported in
2016(4) GLT 277;
4. The General Manager Personnel Syndicate Bank & Ors Vs. BSN
Prasad [Civil Appeal No. 6327/2024];
5. Union of India and Ors. Vs. R.P. Singh, reported in (2014) 7
SCC 340;
6. Hardwari Lal Vs. State of U.P. and Ors, reported in (1999) 8
SCC 582;
7. Shobha Ram Raturi Vs. Haryana Vidyut Prasaran Nigam
Limited, reported in (2016) 16 SCC 663
14. The learned counsel for the petitioner further submits that the
punishment which was imposed is grossly inappropriate and very
severe for the findings which have been arrived at. The findings of
the enquiry report are very vague and the only findings arrived at are
that the petitioner is guilty of misconduct under the Assam Civil
Services Conduct Rules 1959. However, the enquiry report does not
specifically hold that the petitioner was guilty of demanding and
receiving illegal gratification. The learned counsel for the petitioner
therefore submits that the impugned order instituting the de novo
enquiry, the fresh show cause notice dated 04.11.2020 for the de
novo enquiry, the enquiry report dated 23.06.2021, the impugned
order imposing a penalty of dismissal from service which will be a
disqualification for future employment and his release order from the
post as Superintendent of Excise, Hailakandi, are all required to be
interfered with, set aside and quashed and the petitioner should be
suitably reinstated with full backwages and all service benefits that
he is entitled to.
15. The learned Addl. Advocate General appearing for the
respondents disputes the contentions raised by the petitioner. At the
first instance, he submits that the writ petition should be dismissed
on the ground of not availing alternative remedy as Rule 15 of the
Rules of 1964 which categorically provides for an appeal before a
higher authority and which appeal admittedly was not preferred by
the petitioner. He further submits that the scope of judicial review in
writ petitions in respective of orders passed by the disciplinary
authority on the basis of a duly conducted enquiry is extremely
limited. It is submitted that the earlier enquiry report itself reveals
that the petitioner was not given any documents or list of witnesses
nor were any witnesses examined and it is only on the basis of the
charge memo and the reply filed by the petitioner that the first
enquiry Officer concluded that the petitioner is guilty of the charges
levelled in the show Cause notice. Subsequently, the department
took a decision that the manner and the process in which the enquiry
was conducted is contrary to the Rules of 1964, as well as the
Manual of Departmental Enquiry and therefore a conscious decision
was taken to hold the de novo enquiry on the same charges. It is
submitted that proper enquiry officer and a Presenting Officer were
duly appointed and it is disputed by the learned Additional Advocate
General that there is no law specifically laid down by any Courts
which restricts the authorities from holding a de novo enquiry under
all circumstances. It is submitted that where deficiencies are noticed
in the enquiry procedure or in the manner in which the enquiries
conducted, the Department is within its right to proceed for a de
novo enquiry so that no prejudice is caused to the delinquent officer
and the case of the department is also correctly projected. The very
purpose of the Rules of 1964 in laying down the procedure of
conduct of enquiry is to allow the department to make necessary
enquiry into the allegations on the basis of the materials available
and also to afford adequate opportunity to the delinquent officer to
rebut the allegations levelled against him in the charge sheet.
Under such circumstances to submit on behalf of the petitioner
that the rules prohibit initiation of de novo enquiry cannot be
accepted. Referring to the judgments relied upon by the petitioner,
the learned Additional Advocate General for the state submits that
each case was rendered on the peculiar facts before the Court. The
conclusions and the ratio laid down in these judgments will have to
be understood on the facts and circumstances which were urged
before that Court.
16. Referring to the first enquiry report, the learned Addl.
Advocate General submits that even the first enquiry report
concluded that the charges levelled against the petitioner have been
proved. Under such circumstances, had the Department been
inimical to the writ petitioner, the disciplinary authority could have
proceeded to impose the penalty on the said enquiry report.
However, upon a careful perusal of the enquiry report, it was
revealed to the Department that the enquiry was conducted without
furnishing the list of documents and list of witnesses to the petitioner
and in the absence of any evidence adduced before the enquiry
officer. Consequently, notwithstanding the conclusions arrived at by
the first enquiry report which is against the petitioner, the
department proceeded to initiate the de novo proceedings as per the
procedure prescribed under the Rules of 1964 so that no prejudices
caused to the delinquent officer. In support of his contentions, the
learned counsel refers to the Judgment of Apex Court rendered in
Union of India Vs. K.D Pandey and Anr., reported in (2002) 10 SCC
471 submits that where the department seeks to correct procedure
which was incorrectly followed, such step can be taken by the
department. The terms of reference "de novo" does not necessarily
mean that the same was initiated because the conclusions of the first
enquiry report was not found palatable by the disciplinary authority,
as have been alleged by the writ petitioner. Under such
circumstances, there is no merit in the writ petitions and the writ
petitions should therefore be dismissed both on the ground of
alternative remedy as well as on merit itself.
17. The learned counsel for the respondents has also placed the
Court the records pertaining to the enquiry conducted to submit that
the procedure prescribed has been carefully followed and sufficient
opportunity has been granted to the petitioner and which the
petitioner has also availed of. Therefore, there is no infirmity in the
enquiry conducted and the conclusions arrived at by the enquiry
Officer as also the penalty order imposed by the disciplinary
authority.
In response to the contentions raised by the counsel for the
petitioner that the enquiry officer could not have issued the de novo
enquiry notice, the learned counsel for the respondent submits that
at the relevant point in time, the Enquiry officer who was appointed
by the department was also the disciplinary authority as she was
holding dual charges, including the charge of Secretary of the
Department of Excise, Government of Assam. The Rules of 1964
does not preclude the disciplinary authority from conducting the
enquiry itself. Under such circumstances, the learned counsel for the
respondents submits that the writ petitions being devoid of merit, the
same should be dismissed accordingly.
18. The learned counsel for the parties have been heard. Pleadings
available on record have been carefully perused. The relevant
records called for from the Department are also made available for
perusal of this Court.
19. The first argument made by the learned counsel for the
petition is that the de novo enquiry is not contemplated under the
Rules of 1964. Therefore, the very initiation of the de novo enquiry
by Notification dated 08.09.2020 is contrary to the provisions of
Rules of 1964 and therefore, the very proceeding itself is not
contemplated in law and was continued by the authorities with utter
disregard to the provisions of the Rules of 1964 as well as the judicial
pronouncements by this Court. The judgments referred to by the
learned counsel for the petitioner are required to be discussed in this
regard.
20. In K.R Deb Vs. The Collector of Central Excise, Shillong,
reported in (1971) 2 SCC 102, the issue before the Apex Court is that
the Collector of Central Excise, Shillong did not have the power to set
aside the earlier enquiries and proceed with a third enquiry as there
is no such provision contemplated under the Central Civil Services
(Classification Control) Appeal Rules, 1957. Upon examining the Rule
15 of the said Rules, the Apex Court held that in any particular case
if it is possible that there has been no proper enquiry because of
some serious defect having crept into the enquiry or some important
witnesses not being available at the time of the enquiry or not
examined for some other reason, Disciplinary authority may ask the
enquiry officer to record further evidence. But, there is no provision
in Rule 15 for completely setting aside the previous enquiries on the
ground that the report of the enquiring Officer or officers do not
appeal to the disciplinary authority. The disciplinary authority has
enough powers to reconsider the evidence itself and coming to its
conclusion under Rule 9. The Apex Court held on the facts of that
case that the Collector appeared to have been determined to get
some officer to report against the appellant and the said procedure
adopted was not only not warranted by the Rules but also amounted
to harassing the appellant.
This judgment came to be considered in many Judgments
rendered by Co-ordinate Benches of this Court.
21. In Bidyut Buragohain Vs. State of Assam, reported in 2005 (3)
GLT 487 relying on the judgment of the Apex Court, a Coordinate
Bench of this High Court held that there is no specific power vested
in the disciplinary authority by the Rules so as to enable the said
authority to hold a fresh/de novo enquiry in case of disciplinary
authority being in disagreement with the findings of the enquiry
officer. If a power is claimed by the disciplinary authority to disregard
the reports of enquiry officer earlier submitted and to conduct or
hold a fresh enquiry, it is natural that there should be some
indication of the availability or conferment of such power and the
Rules itself. It was held that the Rules are conspicuously silent on the
aforesaid question and as such no power has to be specifically or
impliedly conferred with.
22. In. Bhupati Ranjan Mudoi Vs State of Assam and Anr, reported
in 2012 (3) GLT 394, referring to the earlier decision of this Court in
Bidyut Buragohain (Supra), a similar view was arrived at by this
Court by allowing the writ petition and setting aside with the
Notification for initiating de novo enquiry.
23. Again in Moloy Bora Vs State of Assam, reported in 2015 (3)
GLR 152, the judgments passed by the Coordinate Bench was
carefully considered along with the judgments of the Apex Court
rendered in K.R Deb (Supra) as well as K.D Pandey (Supra).
Referring to the said proceedings on the facts of that case, this Court
concluded that de novo or fresh enquiry on the same set of charges
on the ground that the previous enquiry report is not acceptable to
the disciplinary authority, is not permissible and is therefore contrary
to law laid down by the Apex Court.
24. Another Coordinate Bench in Sonamani Sinha Vs. State of
Assam, reported in 2021 (2) GLT 620 also by referring to the
judgments discussed above and other Judgments rendered on this
aspect by the Apex Court held that there is no provision under Rule 9
of the Rules of 1964 which permits re-enquiry and/or fresh or de
novo enquiry on the facts and circumstances of that case.
25. A reference is also made to another judgment by Coordinate
bench rendered in Chand Mohammad Ali Vs. State of Assam & Ors,
reported in 2016 (4) GLT 277 wherein the various precedents have
been discussed wherein it was held that the provisions of Rule 9 of
the Rules of 1964 are mandatory in the nature and therefore the
same are required to be scrupulously followed.
26. In Bidyut Borgohain (Supra), the enquiry conducted against the
petitioner and the report thereof was disagreed with by the
disciplinary authority. Accordingly, a fresh enquiry into the charges
levelled was directed to be conducted.
27. Again in Bhupati Ranjan Mudoi (Supra), the Co-ordinate Bench
of this Court pursuant to the earlier enquiry conducted and the report
submitted, a second enquiry was instituted against the petitioner in
view of the purported inconsistency in the report submitted by the
earlier enquiry Officer upon conclusion of the enquiry.
28. In Sonamani Sinha(Supra), the Co-ordinate Bench of this Court
after the initiation of the disciplinary proceedings, the enquiry was
conducted and the Enquiry officer submitted its report with the
conclusion that the petitioner therein was not found responsible for
the charges levelled and these charges therefore hold little
substance. Upon submission of the said report, a fresh enquiry was
directed to be initiated against the writ petitioner therein.
29. In Moloy Bora (Supra), the Coordinate Bench found that on the
facts of the case, the enquiry conducted against the petitioner by the
enquiry officer culminated with the conclusion that the petitioner
therein may not be exposed to the punishment proposed as on the
facts of the case therein singling out the petitioner for punitive action
may not be found justified on the basis of the enquiry conducted.
Consequent thereto, the disciplinary authority took the view that the
basic charge against the petitioner alleged therein did not find place
in the enquiry report and therefore, a second or a de novo was
directed to be initiated.
30. In. K.R Deb (Supra) also the Apex Court found that there were
two enquiries earlier conducted against the appellant therein and the
Superintendent of Central Excise disagreed with the conclusions of
the earlier two enquiries and proceeded to initiate the third enquiry
and which subsequently came to be interfere with by the Court.
Therefore, an analysis of the judgments referred to would go
to show that ordinarily when an enquiry proceedings initiated as per
the procedure prescribed and the enquiry officer arrives at a
conclusion which is in favour of the delinquent officer, in the absence
of any such specific provisions under the Rule 9 of the Assam
(Discipline and Appeal) Rules, 1964, the disciplinary authority will not
have any power to initiate a fresh or a de novo enquiry on the
ground that the conclusions arrived at by the enquiry officer were
not found suitable or that the disciplinary authority could not agree
with the conclusions arrived at by the Enquiry Officer. However,
where there is some deficiency noticed which according to the
departmental or disciplinary authority may require correction.
31. However, in K.R Deb (Supra), the Apex court held that even
under Rule 15 of the CCS Discipline and Appeal Rules, it is possible
that there may be a particular case where no proper enquiry has
been conducted because of some serious defect which is crept into
the enquiry or some other important witnesses were not available at
the time of the enquiry or not examined for some other reason, the
disciplinary authority may require the enquiry officer to record further
evidence. However it was held that there is no provision in Rule 15
for completely setting aside the previous enquiries on the ground
that the report of the enquiring Officer or the officers does not
appeal to the disciplinary authority. It was held that the disciplinary
authority has enough powers to reconsider the evidence itself and to
come to its conclusion under Rule 9.
32. Similarly, in K.D Pandey (Supra), it was held by the Apex Court
that where it is noticed by the disciplinary authority that the enquiry
held earlier was bad or that the management or the establishment
did not have proper opportunity to lead evidence or the findings
were perverse, there would be no justification on the part of the
disciplinary authority to commence fresh enquiry on the same set of
charges.
33. Therefore, upon proper analysis of the judgments discussed
above, it is seen that in all the judgments on the facts of each and
every case, it is seen that the enquiry conducted earlier either
concluded in favour of the delinquent officer thereby the enquiry
officer concluding that the charges are not proved or that there was
no sufficient evidence to sustain the charges levelled against the
delinquent officer. In all these matters, the Disciplinary authority in
each of these cases disagreed with the conclusions arrived at by the
enquiry officer in favour of the delinquent officer. In other words, the
conclusions arrived at by the Enquiry Officer did not appeal to the
disciplinary authority and a consequence thereof de novo or fresh or
second enquiry was instituted and under such circumstances, the
Coordinate benches of this Court as well as the Apex court in K.R
Deb(Supra) as well as K.D Pandey (Supra) considered and concluded
that the second enquiry conducted was not permissible under the
Rules.
34. A Perusal of Rule 9 of the 1964 Rules and Rule 15 of the CCS
Rules are pari materia. Under such circumstances, it must be
concluded that where it is noticed by the disciplinary authority that
the enquiry conducted was contrary to the provisions of the Rules
mandated or certain serious lapses have crept into the enquiry
conducted then it cannot be said that the Rules of 1964 completely
bars or restrains the disciplinary authority from taking necessary
steps to ensure that the enquiry is conducted in terms of the
mandate of the Rules and no prejudice is caused to the delinquent
officer and/or to the interest of the Department. This aspect is
evident from a bare perusal of the judgments in K.D Pandey (Supra)
as well as K.R Deb(Supra). Subsequently, in Union of India and Ors.
Vs. P Thayagarajan, reported in 1999 (1) SCC 733, the Apex Court
while considering the direction of the disciplinary authority to hold a
de novo enquiry explained and the ratio laid down by the Apex Court
in K.R Deb(Supra). The Apex Court held that where there has not
been proper enquiry or some serious defects have crept into the
enquiry or some important witnesses were not available at the time
of the enquiry or were not examined, the disciplinary authority may
ask the enquiry officer to record further evidence but that provision
would not enable the disciplinary authority to set aside the previous
enquiries on the ground that the report of the enquiry officer does
not appeal to the disciplinary authority. In the case before the Apex
Court, two witnesses whose evidence were considered to be
essential, their statements were recorded although the witnesses did
not appear before the enquiry officer. The disciplinary authority
therefore disagreed with the course of action adopted by the Enquiry
Officer and therefore directed a de novo enquiry against the
respondent. This issue was assailed before the Apex Court as the
delinquent officer held that the disciplinary authority did not have the
powers to order for de novo enquiry. The Apex Court upon
consideration of the earlier precedents laid down in K.R Deb(Supra)
concluded that where important evidence either to be relied on by
the department or delinquent official is shut out or where there is no
proper enquiry because of some defect having crept into the enquiry
or some important witnesses were not available, the disciplinary
authority under the powers conferred under the relevant Rules,
would be in a position to order for de novo enquiry in a case of the
present nature. The Apex Court disagreed with the reasoning
adopted by the Division Bench which order was under appeal. The
Apex Court held that the disciplinary authority will have to be
satisfied with the procedure adopted by the enquiry officer before
passing an order. It does not stand to logic that in a given case the
appellate authority could order a fresh enquiry and not the
disciplinary authority at whose instance the enquiry began and which
is not satisfied with the enquiry held for some vital defects in the
procedure adopted. Therefore, the order made by the High Court
was held to be not sustainable and the appeal was allowed.
35. Coming to the facts of this case, the first enquiry concluded
against the writ petitioner did not conclude in favour of the
petitioner. The enquiry officer rather concluded that the charges of
misconduct have been proved against the petitioner. However, the
first enquiry was conducted only on the basis of the charge memo
and the reply filed by the delinquent officer, namely, the writ
petitioner. The writ petitioner was not served with a list of
documents as well as with the list of witnesses. No witnesses were
examined and as a consequence thereof, the disciplinary authority
upon careful examination of the report of the enquiry officer held
that the enquiry was not conducted as per the procedure mandated
under the Rules of 1964. It is under such circumstances that the
Department initiated a de novo enquiry on the same set of charges
by appointing a fresh enquiry officer as well as presenting officer.
36. In terms of the provisions prescribed under Rule 9 of the 1964
Rules read with the Manual of Disciplinary Proceedings, the Rules
Mandated a very detailed procedure as to how departmental
proceeding is to be conducted. Since the enquiry initially initiated by
the department against the petitioner was undoubtedly in terms of
the Rules and the procedure prescribed under Rule 9 of the Rules of
1964, it is also evident from the facts urged and the pleadings
available before this Court that the conclusions arrived at by the
Enquiry officer in the first enquiry were not in favour of the
petitioner. Therefore, the contention of the writ petitioner that the de
novo or the second enquiry was instituted against the petitioner
because the conclusions of the first enquiry was not found paritable
appears to be contrary to the facts urged and pleaded before this
Court. As such, this Court is of the view that the ratio laid down by
the Apex court is that under all given circumstances, a second
enquiry or a de novo enquiry is not restricted or barred under the
Rules more particularly where the said Rules permit the appellate
authority to order for a fresh enquiry if found necessary.
37. The Rules of 1964 reveal that a detailed procedure is
prescribed under Rule 9 of the Rules of 1964 in the manner as to
how the disciplinary proceedings are to be conducted. The enquiry
which was ordered to be conducted proceeded with in a manner
contrary to procedure prescribed under the Rules and the enquiry
officer thereafter had concluded the enquiry proceedings, then such
defects can certainly be rectified by the Disciplinary authority by
ordering second or a de novo enquiry if the need so arises. It is only
in cases where the enquiry Officer returns a finding in favour of the
delinquent officer and where the proceedings were conducted as per
the procedure prescribed under the Rules that no de novo or fresh
enquiry is permissible. But where the conclusions arrived at by the
Enquiry Officer are found to be acceptable or palatable to the
disciplinary authority, then initiation of a second enquiry/ de novo
enquiry or a fresh enquiry is not contemplated under the Rules. This
is the view of the Apex Court in P Thayagarajan (Supra) and wherein
the ratio laid down by the Apex court in K.R Dev(Supra) have been
explained, the judgments of the Apex Court rendered in P
Thayagarajan (Supra) therefore will have the effect of a binding
precedent on this Court. The judgments rendered by the Coordinate
Benches of this Court will therefore have to be understood in terms
of the ratio laid down by the Apex Court in P Thayagarajan (Supra).
A reference in this case may also be made to the judgment of the
Apex court rendered in Nand Kishore Vs. State of Punjab, reported in
(1995) 6 SCC 614 that under Article 141, the law declared by it is of
a binding character and as commandful as the law made by a
legislative body or an authorised delegatee of such body. The apex
Court under Article 141 of the Constitution is not merely the
interpreter of the law as existing but much beyond that. The Court as
a wing of the State is by itself a source of law. The law is what the
Court says it is.
38. Under such circumstances and in view of the above discussion,
this Court will necessarily have to conclude that in the facts and
circumstances of this present proceedings, the Court does not find
any infirmity with the initiation of the subsequent enquiry
proceedings against the writ petitioner which is assailed in the
present proceedings. This Court holds that no interference is called
for in respect of the proceedings conducted by the Disciplinary
authority by the notification dated 08.09.2020.
39. Coming to the second contention of the petitioner that the
enquiry officer appointed pursuant to the de novo enquiry could not
have issued the show cause notice as the Rules of 1964 does not
contemplate issuance of show cause notice by the enquiry officer. To
appreciate these contentions, a reference to Rule 9 of Rule, 1964 is
necessary. Rule 9 of the said Rule of 1964 is extracted below:
"9. Procedure for imposing penalties-
(1) Without prejudice to the provisions of the Public Servant (Inquiry)
Act, 1850, no order imposing on a Government servant any of the
penalties specified in rule 7 shall be passed except after an inquiry,
held as far as may be in the manner hereinafter provided.
(2) The Disciplinary Authority shall frame definite charges on the basis
of the allegations on which the inquiry is proposed to be held. Such
charges, together with a statement of the allegation on which they
are based, shall be communicated in writing to the Government
servant, and he shall be required to submit, within such time as may
be specified by the Disciplinary Authority, written statement of his
defence and also to state whether E desires to be heard in pension.
(3) The Government servant shall, for the purpose of preparing Whis
defence, be permitted to inspect and take extracts from such official
records as he may specify, provided that such permission may be
refused if for reasons to be recorded in writing, in the opinion of the
Disciplinary Authority such records are not relevant for the purpose or
its against the public interest to allow him access thereto:
Provided that when a Government servant is permitted to inspect and
take extracts from official records due case shall be taken against
tempering removal or destruction of records.
(4) On received of the written statement of defence, or if no such
statement is received within the time specified the Disciplinary
Authority may itself inquire into such of the charge as are not
admitted or, if it considers it necessary so to do, appoint for the
purpose a Board of Inquiry or an Inquiring Officer.
5)The Disciplinary Authority may nominate any person to present the
case in support of the charges before the authority inquiring into the
charges (hereinafter referred to as the inquiring authority). The
Government servant may present his case with the assistance of any
other Government servant approved by the Disciplinary Authority, but
may not engage a legal practitioner for the purpose unless the person
nominated by the Disciplinary Authority as aforesaid is a legal
practitioner or unless the Disciplinary Authority, having regard to the
circumstances of the case so permits.
(6) The Enquiring Authority shall, in the course of the enquiry
consider such documentary evidence and take such oral evidence as
may be relevant or material in regard to the charges. The
Government servant shall be entitled to cross-examine witnesses
examined in support of the charges and to give evidence in person
and to adduce documentary and oral evidence in his defence. The
person presenting the case in support of the charges shall be entitled
to cross-examine the Government servant and the witnesses
examined in his defence. If the Inquiring Authority declines to
examine any witness or to admit any document in evidence on the
ground that his evidence or such document is not relevant or
material, it shall record its reasons in writing.
(7) At the conclusion of the inquiry, the inquiring Authority shall
prepare a report of the enquiry, recording its findings on each of the
charges together with reasons therefor."
40. Since the Rules have already been extracted hereinabove, a
careful perusal of the Rules show that enquiry can be conducted by
an enquiring officer appointed by the disciplinary authority or by the
disciplinary authority itself. Where disciplinary authority is the enquiry
officer then show cause notice can be issued by the said disciplinary
authority who is also the enquiry officer. It is submitted before the
Court on behalf of the respondents and which is on the basis of
pleadings available before this Court that the enquiry officer
appointed by a notification at the relevant point in time, was also the
disciplinary authority as the officer was holding charge of the post of
Secretary, Department of Excise, Government of Assam. It is the
submission of the respondent counsel that since the enquiry officer is
also the disciplinary authority by virtue of holding the post as an In-
charge Secretary, Department of Excise, it must be held that there is
no infirmity in the second show cause notice when issued by the
disciplinary authority/the enquiry officer as the same is also
permissible under Rule 9 of the Assam Discipline and Appeal Rules,
1964 read with Rule 9A. The contention of the writ petitioner that
the impugned show cause notice calls for interference as the same is
issued by the enquiry officer therefore must fail.
41 In response to the contention of the petitioner that the enquiry
the de novo enquiry conducted did not examine the complainant on
whose basis the complaint was lodged before the Vigilance
Department and on the basis of which a criminal case was registered
against the petitioner and the petitioner was also taken into custody
and the said vigilance case was numbered as ACB Case No.12/2016.
42. Considering the submissions of the learned counsel for the
petitioner, it must be held that the proceedings initiated under Rule 9
was conducted or initiated as the petitioner was taken into custody
and therefore placed under suspension under Rule 6(1). Under Rule
6(2), a person who is taken into custody for more than 48 hours is
deemed to be suspended with effect from the date of being taken
into custody and will continue to be under suspension until such
further orders. Rule 6(1) of the said Rules contemplates
departmental proceedings. Consequently, the arrest of the petitioner
and his consequent suspension required the department to initiate a
departmental proceedings under Rule 9. Although the writ petitioner
was subsequently bailed out but the proceedings in the ACB Case
No. 12/2016 had remained pending and it is not placed before the
Court about the status of the vigilance case. Since the Rules mandate
an officer to be placed under suspension consequent upon his
detention in custody for more than 48 hours, the reason for his
arrest or detention and the consequences thereof if any are required
to be necessarily determined by the procedure prescribed under the
Rules of 1964. The procedure prescribed, as discussed above, is
detailed under Rule 9 of the Rules of 1964.
Under such circumstances, during the suspension of the
petitioner, the show cause notice was submitted or served on the
writ petitioner on the charges mentioned therein. The first show
cause notice dated 28.10.2016 issued on the petitioner was on the
following charges:
"CONFIDENTIAL
GOVERNMENT OF ASSAM
EXCISE DEPARTMENT
NO. EX.152/2016/5 Dated Dispur, the 28th October, 2016
To :Shri Chiranjeeb Das,
Superintendent of Excise (under suspension)
Kamrup
Sub : SHOW CAUSE NOTICE
You are hereby directed to show cause under Rule 9 of the Assam Service
(Discipline & Appeal) Rules, 1964 read with Article 311 of the Constitution of India, why
any of the penalties prescribed under Rule 7 of the aforesaid Rules should not be
inflicted on you in the following charges based on the statement of allegation attached
herewith.
Charge No. 1: That while you were holding the post of Superintendent of Excise
Kamrup you were arrested at your Office on 27.09.2016 from your residence at
Guwahati while accepting illegal gratification of Rs. 1,50,000/- from one complainant
Shri Parta Pratim Phukan of Guwahati as reported by the Superintendent of Police,
Vigilance & Anti Corruption, Assam vide W.T Message No DGVA/RI/2016/2935, dtd.
28/09/2016.
Such conduct on your part as a responsible Government Servant is unbecoming
of an officer of your status.
You should submit your written Statement in defence within 10 (ten) days from
the date of receipt of this communication provided you do not intend to inspect the
documents which have relevance to the issues under inquiry. In case you intend to
examine the documents, you may do so in the chamber of undersigned during office
hours, within 7(seven) days from the date of receipt of this communication and submit
your explanation/replies thereafter within 10(ten) days from the date of completion of
the inspection.
Your written statement stating clearly whether you desire to be heard in person
should be submitted to the undersigned within the period specified above.
By order and in the name of Govt of Assam.
Sd/-
Joint Secretary to the Assam
Excise Department
STATEMENT OF ALLEGATION
That while you were serving as Superintendent of Excise, Kamrup there has
been gross violation of Service conduct and Rules.
1. While you were holding the post of Superintendent of Excise Kamrup you were
arrested at your office on 27.09.2016 from your residence at Guwahati while accepting
illegal gratification of Rs. 1,50,000/- from one complainant Sri Partha Pratim Phukan of
Guwahati as reported by the Superintendent of Police, Vigilance & Anti-Corruption,
Assam vide W.T Message No. DGVA/RI/2016, dtd. 28/09/2016."
43. Subsequently, the second show cause issued or served on the
writ petitioner pursuant to the de novo enquiry was on the following
charges:
"REMINDER I
GOVERNMENT OF ASSAM
EXCISE DEPARTMENT
NO.EX.152/2016/pt/1, Dtd. Dispur, the 04th Nov, 2020
To:Shri Chiranjeeb Das,
Superintendent of Excise,
R/O-House No.8-9, Amarabati Path,
Christianbasti, Guwahati-05.
Ref : This deptt's letter NO.EX. 152/2016/122,Dtd. Dispur, the 8th October, 2020
Sub : SHOW CAUSE NOTICE.
You are hereby directed to show cause under Rule 9 of the Assam Service
(Discipline & Appeal) Rules, 1964 read with Article 311 of the Constitution of India, why
any of the penalties prescribed under Rule 7 of the aforesaid Rules should not be
inflicted on you in the following charges based on the statement of allegation attached
herewith.
That while you were holding the post of Superintendent of Excise, Kamrup you
were arrested on 27/09/2016 from your residence at Guwahati while accepting illegal
gratification of Rs.1,50,000/- from one complainant Sri Partha Pratim Phukan of
Guwahati as reported by the Superintendent of Police, Vigilance & Anti- Corruption,
Assam vide W.T. Message No.DGVA/RI/2016/2935, dtd. 28/09/2016.
You are therefore charged with dereliction, in sincerity and gross violation of
the Government procedures which is unbecoming of a Govt. servant of your status
under the provisions of sub Rule 1 of Rule 3 of the Assam Civil Service (Conduct) Rules,
1965.
You should submit your written Statement in defence within 10 (ten) days from
the date of receipt of this communication provided you do not intend to inspect the
documents which have relevance to the issues under inquiry. In case you intend to
examine the documents, you may do so in the chamber of undersigned during office
hours, within 7(seven) days from the date of receipt of this communication and submit
your explanation/ replies thereafter within 10(ten) days from the date of completion of
the inspection.
Your written statement stating clearly whether you desire to be heard in person
should be submitted to the undersigned within the period specified above.
By order and in the name of
the Governor of Assam.
Addl. Secretary to the Govt. of Assam
Excise Department.
STATE OF ALLEGATION
That while you were serving as Superintendent of Excise, Kamrup there has
been gross violation of Service conduct and Rules.
1. While you were holding the post of Superintendent of Excise, Kamrup you were
arrested at your office on 27/09/2016 from your residence at Guwahati while accepting
illegal gratification of Rs. 1,50,000/- from one complainant Sri Partha Pratim Phukan of
Guwahati as reported by the Superintendent of Police, Vigilance & Anti- Corruption,
Assam vide W.T. Message No. DGVA/RI/2016/2935, dtd. 28/09/2016.
Charge
You are charged with dereliction, insincerity and gross violation of Govt.
procedures which is unbecoming of a Govt. Servant of your status as per the provisions
of sub rule 1 of Rule 3 of the Assam Civil Service (Conduct) Rules, 1965.
List of Documents:
1. W.T. Message No.DGVA/RI/2016/2935, dtd. 28/09/2016.
2. C.E. Assam's letter No.I-44/1992-93/188, dtd.29th Sep, 2016.
3. SP Vigilance & Anti-Corruption, Assam's letter No.DGVA/RI/2017/3309,dtd.
04/09/2017.
List of Witnesses:
Commissioner of Excise, Assam.
Superintendent of Police, Vigilance & Anti-Corruption, Assam.
Sri Lakhi Narayan Boruah, Inspector of Police, Vigilance & Anti-Corruption Assam cum,
Investigating Officer of P.S. Case No.12/2016."
44. Therefore it is seen that essentially the charges levelled against
the petitioner are of misconduct under the provisions of the Assam
Civil Service Conduct Rules, 1959 (hereinafter referred to as the Rule
of 1959). A perusal of the enquiry report reveals that points for
determination were namely, demand of bribe and acceptance of
illegal gratification of Rs. 1,50,000/-. The enquiry report refers to the
evidence of the investigating officer in the Vigilance case No.
12/2016. As per the evidence recorded, it is seen that a trap was laid
on 27/9/2016 to nab the delinquent officer. The complainant Shri
Partha Pratim Phukan had given Rs.1,50,000/- to be to be used in
the trap as bribe money. Phenolphthalein powder was brushed on
the currencies of the denomination of ₹1000. The trap comprised of
11 people including the complainant and independent witnesses. At
around 7:45 p.m, the team reached the house of the delinquent
officer. The complainant went inside the House of the delinquent
officer and handed over the amount of Rs.1,50,000/- which currency
notes were brushed with phenolphthalein powder. When the trap
team went inside the house of the delinquent officer, he was found
holding the currencies in his hand. The Investigating Officer in the
vigilance and anti corruption case however, in his cross examination
deposed that that there is no evidence that the accused demanded
Rs.5.00 Lac and other than the complainant no one else saw the
handing over or taking over of the money. The enquiry report had
recorded a finding that the petitioner had accepted some Currency
notes which were powdered with Phenolphthalein powder.
45. From the records placed before the Court, it is however seen
that the enquiry proceedings were conducted by examination of the
I.O and the statements made before the I.O were also taken into
consideration by the enquiry officer. The allegation of misconduct
against the writ petitioner is purportedly based on a complaint by
one Shri Partha Pratim Phukan before the competent investigating
authorities that the petitioner had demanded illegal gratification and on
his demand and upon informing the investigating authorities, a trap
was laid and the complainant had as per plan proceeded to the
residence of the petitioner by taking currency notes laced with
phenolphthalein powder and handed over the same to the writ
petitioner. Thereupon the officers of the investigating authority who
had laid the trap caught the petitioner and the effect of the
phenolphthalein powders smeared in the currency notes left on his
hands revealed that he had accepted the illegal gratification as alleged.
However, scanning the departmental proceeding records, it is seen
that the complainant was never examined. There is no reason or
material which is discernible from the departmental records as to why
the enquiry officer did not examine the complainant. The examination
of the complainant in matters of these nature are necessary to
ascertain the truth of the allegations made against the delinquent
officer. Therefore, in the absence of the examination of the
complainant by the enquiry officer, enquiry proceeded only on the
statements recorded of the I.O and other statements which were
available with the investigating authority during the investigation of the
criminal proceedings. Whether the statement of the delinquent officer
in his written statement that the complainant had thrust some notes in
his hands forcibly, would be sufficient to sustain an allegation of the
demand and receipt of illegal gratification is a matter of fact which
required detailed evaluation of facts by the enquiry officer. In this
context, it would be apposite to refer to certain Judgments of the Apex
Court rendered in Commissioner of Police, Delhi and Others Vs. Jai
Bhagwan, reported in (2011) 6 SCC 376. The Apex Court was
examining the correctness of the departmental proceedings initiated
where on the facts of that case, an amount of Rs.100/- was returned
by the delinquent officer to the complainant and it was taken to be an
instance of demand and receipt of illegal gratification. The Apex Court
in the said judgment held that while there is some evidence that
certain amount was returned by the respondent (namely the
delinquent officer) to the complainant, but there is no direct or reliable
evidence produced by the appellants in the departmental proceedings
which could clearly prove and establish that that the delinquent officer
demanded and received an illegal gratification of the said
denomination. It was held by the Apex court that the proof of taking
such illegal gratification has been drawn from the evidence of
returning Rs.100/- to the complainant by way of a link-Up. The Apex
Court held that in the absence of such a definite proof supporting the
case of the appellants, it was difficult to draw a finding of taking illegal
gratification by the respondent from the complainant and therefore the
Apex Court upheld the conclusion of the High Court that it was a case
of no evidence. The relevant paragraphs of the said Judgment are
extracted below:
"15. In the present case, although there is some evidence that an
amount of Rs. 100 was returned by the respondent to the complainant
but there is no such direct and reliable evidence produced by the
appellants in the departmental proceedings which could clearly prove
and establish that the respondent demanded and received an illegal
gratification of the said denomination. It seems that the proof of taking
such illegal gratification has been drawn from the evidence of returning
of Rs. 100 to the complainant by way of a link-up.
16. It also seems quite impracticable to presume that in the presence
of so many passengers, the respondent could have extorted money.
The allegation of receiving Rs. 100 as illegal gratification is framed on
suspicions and possibilities while trying to link it up with the instance of
returning back of Rs. 100 by the respondent to the complainant. There
are many other shortcomings in the entire investigation and the
enquiry like the statement of Mrs Ranjana Kapoor was not recorded by
the Inspector and the Inspector also did not take down in writing and
also attest the complaint made by her. The statement of S.P. Narang
was also not recorded by the Inspector nor did the Inspector seize Rs.
100 note nor noted down its number. Mr Narang was also not
examined during the course of departmental proceedings. Non-
examination of the complainant and P.S. Narang during the
departmental proceeding has denied the respondent of his right of
cross-examination and thus caused violation of Rule 16(iii) of the Delhi
Police (F&A) Rules, 1980.
17. In the absence of such a definite/clear proof supporting the case of
the appellants it is difficult to draw a finding of taking illegal
gratification by the respondent from the complainant. Therefore, as
rightly held by the High Court the present case is a case of no
evidence.
18. Therefore, in view of the facts and circumstances of the present
case at hand we have no hesitation to hold that the view taken by the
High Court does not suffer from any infirmity and that the present is a
case of no evidence and that there is a violation of Rule 16(iii) of the
Delhi Police (F&A) Rules, 1980. Albeit there could be a needle of
suspicion pointed towards the respondent. However, suspicion cannot
take the place of proof and, therefore, we find no merit in this appeal
which is hereby dismissed."
46. Again in Hardwari Lal Vs. State of U.P and others, reported in
(1999) 8 SCC 582, the Apex Court was examining the correctness of
the judgment of the High Court which had rejected the petition filed by
the appellant before the apex Court that principles of natural justice
was not adhered to during the enquiry proceedings as the complainant
was not examined. The Apex Court held that while appreciating the
evidence on record, the impact of the testimony of the complainant
cannot be visualized. Therefore, the Apex Court held that it was a case
of no proper enquiry by the authorities and the impugned order of
dismissal was interfered with and set aside. The relevant paragraphs of
the said Judgment are extracted below:
"3. Before us the sole ground urged is as to the non-observance of
the principles of natural justice in not examining the complainant, Shri
Virender Singh, and the witness, Jagdish Ram. The Tribunal as well as
the High Court have brushed aside the grievance made by the
appellant that the non-examination of those two persons has
prejudiced his case. Examination of these two witnesses would have
revealed as to whether the complaint made by Virender Singh was
correct or not and to establish that he was the best person to speak
to its veracity. So also, Jagdish Ram, who had accompanied the
appellant to the hospital for medical examination, would have been an
important witness to prove the state or the condition of the appellant.
We do not think the Tribunal and the High Court were justified in
thinking that non-examination of these two persons could not be
material. In these circumstances, we are of the view that the High
Court and the Tribunal erred in not attaching importance to this
contention of the appellant.
4. However, Shri Goel, the learned Additional Advocate General, State
of Uttar Pradesh has submitted that there was other material which
was sufficient to come to the conclusion one way or the other and he
has taken us through the same. But while appreciating the evidence
on record the impact of the testimony of the complainant cannot be
visualised. Similarly, the evidence of Jagdish Ram would also bear
upon the state of inebriation, if any, of the appellant.
5. In the circumstances, we are satisfied that there was no proper
enquiry held by the authorities and on this short ground we quash the
order of dismissal passed against the appellant by setting aside the
order made by the High Court affirming the order of the Tribunal and
direct that the appellant be reinstated in service. Considering the fact
of a long lapse of time before the date of dismissal and reinstatement,
and no blame can be put only on the door of the respondents, we
think it appropriate to award 50 per cent of the back wages being
payable to the appellant. We thus allow the appeal filed by the
appellant. However, there shall be no order as to costs."
47. The Judgment in Hardwari Lal (Supra) was subsequently
referred to again in President, Nagar Panchayat Umari Vs. Shyam
Charan Chaturvedi and others, reported in (2023) 18 SCC 311. The
Apex court held that departmental proceedings against a delinquent is
a serious matter as it has its repercussions which can be far reaching.
It was held that it is a trite law that departmental proceedings are
Quasi judicial proceedings. The enquiry officer functions in a quasi
judicial capacity. He has a neutral role to perform and cannot act in a
representative management. Major punishments awarded visits the
employee with serious civil consequences and therefore, such
departmental proceedings ought to be in conformity with the principles
of natural justice. Even if an employee prefers not to participate in an
enquiry, the department has to establish the charges against the
employee by adding oral as well as documentary evidence. In case
where the charges warrant major punishment then oral evidence by
producing the witnesses is necessary. The question of any cross
examination by the delinquent arises subsequent to the charges
having been prima facie established in accordance with law. If the
charges are not established in accordance with law, there is nothing
for the delinquent to deny.
48. Coming to the facts of the present case although in his reply the
petitioner stated that some currency notes were thrust into his hands
by the complainant, that by itself cannot satisfy the allegation made
against the petitioner when the charge against the petitioner is for
acceptance of illegal gratification of Rs. 1,50,000/- from the
complainant- Shri Partha Pratim Phukan. From the law enunciated by
the Apex Court as discussed above, it is seen that there has to be
independent finding by the enquiry officer to sustain the charges
against the petitioner that there was demand and acceptance of illegal
gratification. The vague response from the petitioner cannot be
concluded to be an acceptance or a confession that he had received
illegal gratification. Considering the grave charges leveled against the
petitioner and if proved, the major penalty contemplated to be
imposed against the petitioner, it was incumbent on the enquiry officer
to lay proper evidence both oral and documentary evidence, to sustain
the allegations made against the petitioner.
49. As discussed above, there is no explanation in the records as
perused by the Court as to why the complainant was not examined
during the enquiry proceedings. The question of cross-examination by
the delinquent will only come when the departmental authorities are
able to establish a prima facie case to sustain the allegations made
against the petitioner.
50. From careful examination of the records as well as the pleadings
available before the Court, it is seen that the principles of natural
justice were not adhered to by the departmental authorities. It has to
be therefore held that the charges levelled against the petitioner could
not be prima facie established leading to the consequential conclusion
of misconduct and inviting imposition of major penalty of dismissal or
termination from service.
51. This Court accordingly has to hold that the enquiry proceedings
conducted by the respondent authorities were contrary not only to the
Rules but to the basic principles of natural justice. The conclusions
arrived at were based only by the note prepared by the investigating
officer in respect of the criminal cases pending against the petitioner.
No attempt has been made during the enquiry proceedings to
independently arrive at a conclusion that the allegations made against
the petitioner are duly supported by adequate and proper evidence.
Although ordinarily a Writ Court is required to examine only the
correctness of the procedure adopted by the departmental authorities
and not to test the conclusions arrived at as if it is an exercising an
appellate jurisdiction, but in the facts of the present case, in the
absence of the complainant being examined on whose allegations the
criminal case has been instituted and the departmental proceedings
have been initiated in respect of the allegations of misconduct by the
delinquent officer in demanding and receiving illegal gratification from
the complainant, there are no foundational facts established during the
enquiry proceedings to arrive at the conclusion that the delinquent
officer is guilty of misconduct and/or that the allegations of misconduct
made against the delinquent officer can be sustained. Therefore, this
Court unequivocally comes to a conclusion that the enquiry
proceedings conducted against the petitioner are contrary to the Rules
of natural justice and as also the procedure prescribed under the
Assam Services (Discipline and Appeal) Rules, 1964. Accordingly the
enquiry proceedings, the consequential orders passed by the
departmental authorities dismissing the petitioner from service as also
the orders passed by the appellate authority are all set aside and
quashed. The petitioner will be reinstated in service forthwith but
without any back-wages. The period between the date the petitioner
was dismissed from service and the date he is reinstated in service will
be counted as a period spent on duty but without back wages. This
period, however, shall also be counted towards his pensionary
benefits. Since the impugned order of dismissal along with the enquiry
proceedings as well as the appellate orders are all interfered with, the
arguments made by the counsel for the petitioner in respect of
quantum of punishment is not required to be answered at this stage.
52. The writ petition is therefore allowed. Interim orders if any
stands vacated. No order as to cost.
53. Departmental records called for are therefore returned and
handed over back to the learned Addl. Advocate General Mr. B
Goswami, appearing for the respondent through the Court Master.
JUDGE
Comparing Assistant
