Gauhati High Court
Page No.# 1/12 vs The Union Of India And 2 Ors on 10 February, 2025
Page No.# 1/12
GAHC010212892024
2025:GAU-AS:1443-
DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5415/2024
MASADDAR ALI LASKAR
S/O LATE BASIR UDDIN LASKAR, R/O VILL- GANIRGRAM PART II, P.O.-
GANIRGRAM, P.S.- KATHIGORAH, DIST- CACHAR, ASSAM, PIN-788025.
OFFICER SURVEYOR (DISMISSED), OFFICE OF THE GDC ASSAM AND
NAGALAND, GDC NIDHI BHAWAN, 2ND FLOOR, LALMATI, N.H. 37,
GUWAHATI-781029, KAMRUP (M), ASSAM
VERSUS
THE UNION OF INDIA AND 2 ORS
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA,
DEPARTMENT OF SCIENCE AND TECHNOLOGY, MINISTRY OF SCIENCE
AND TECHNOLOGY, NEW DELHI, PIN-110001
2:THE SURVEYOR GENERAL OF INDIA HATIBARKALA ESTATE
POST BOX NO. 37 DEHRADUN UTTARAKHAND PIN-248001
3:THE DIRECTOR ASSAM AND NAGALAND
GDC NIDHI BHAWAN 2ND FLOOR LALMATI N.H. 37
GUWAHATI-781029 KAMRUP (M) ASSAM
Advocate for the Petitioner : MR. M HASAN, MS B H SHIRIN,H. BHARALI,MS S Z
HAYAT,MR. M R SODIAL
Advocate for the Respondent : DY.S.G.I., MS. B SARMA(CGC)
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BEFORE
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR
Date of hearing : 10.02.2025
Date of Judgment & Order: 10.02.2025
JUDGMENT & ORDER (ORAL)
(N. Unni Krishnan Nair, J.)
Heard Ms. Sayeda Zafira Hayat, learned counsel, appearing on behalf
of the petitioner. Also heard Ms. B. Sarma, learned CGC, appearing on
behalf of all the respondents.
2. The present writ petition has been instituted by the petitioner, herein,
presenting a challenge to an order, dated 30.05.2024, passed by the
learned Central Administrative Tribunal(CAT), Guwahati Bench, in Original
Application No. 040/00142/2020.
3. The brief facts requisite for adjudication of the issue arising in the
present proceeding, is noticed as under:
The petitioner, herein, while working as an Office Surveyor, Assam
and Nagaland, GDC, Survey of India, Guwahati, was issued with a
memorandum of charge, dated 06.06.2017, framing 7(seven) articles of
charge against him. The articles of charge so framed against the petitioner,
being relevant, is extracted hereinbelow:
"Article I: That, said Shri M.A. Laskar, Officer Surveyor while functioning in Assam
and Nagaland GDC, Survey of India, Guwahati was arrested on 23.11.2016 by Dispur
Police Authorities in connection with a criminal case filed against him bearing No.
2863 dated 22.11.2016 u/s 420/488/475/406 of Indian Penal Code and released on
24.11.2016 (A/N) but Shri M.A Laskar, Officer Surveyor did not inform about his
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detention in police custody and about the criminal case filed against him to the
office. As such, the said Shri M.A. Laskar, Officer Surveyor has failed to adhere the
laid down mandatory provisions in this regard.
Article II: That, said Shri M.A. Laskar, Officer Surveyor while functioning in Assam
and Nagaland GDC, Survey of India, Guwahati has misused his official position as
Group 'B' Gazetted Officer and attested a fake letter regarding SO called candidates
name addressed to the Addl. Surveyor General, Surveyor General Office, Delhi bearing
No. C-71/RE/79/15 dated 10.07.2015 which is a serious misconduct on his part.
Article III. That, said Shri M.A. Laskar, Officer Surveyor while functioning in Assam
and Nagaland GDC, Survey of India, Guwahati created a fabricated note sheet bearing
No 17-RE-35(F) of Director, NEC Office, Shillong in his own handwriting with fake
signatures and names of the other board members regarding selection list of
candidates for the so called appointment on Group 'C' post in Sol. This is a serious
misconduct on his part, which raises fingers towards his doubtful integrity.
Article IV. That, said Shri M.A. Laskar, Officer Surveyor while functioning In Assam
and Nagaland GDC, Survey of India, Guwahati created a fabricated letter bearing
No.C1-302/4-E-2 dated 16.12.2015 regarding offer of appointment to the post of Group
'C' along with a fake selected list of candidates using office Letter Head and Logo of
Survey Of India with fake signatures of Director, NEC, Shillong in favour of Shri Md.
Ali Jahan Laskar, S/o Shri Eusuf All Laskar, Nogaon, Assam.
Article V. That, said Shri M.A. Laskar, Officer Surveyor while functioning in Assam
and Nagaland GDC, Survey of India, Guwahati created fabricated Govt. letter bearing
No. C-49/FE/E1/127/25/160 dated 19.08.2015 using officer Letter Head of Department
of Science & Technology, Ministry of Science & Technology, Delhi with fake signature
of Shri Ashutosh Sharma, Secretary, DST for SO called appointment of 25 Gp 'C' post
in Survey of India with forged Diary No 473 dated 20.08.2015.
Article VI. That, said Shri M.A. Laskar, Officer Surveyor while functioning in Assam
and Nagaland GDC, Survey of India has entered into a transaction with complainant
Shri Ali Jahan Laskar and taken Rs 5 Lakhs from him for securing alleged
appointment on the Group 'C' post in Survey Of India by misusing his official position.
Article VII. That, said Shri M.A. Laskar, Officer Surveyor while functioning in Assam
and Nagaland GDC, Survey of India has entered into a transaction of Rs 8 Lakhs with
one Shri Ali Jahan Laskar, he did not inform to the office about the said transaction.
Whereas, it is the duty of every Government servant to intimate his office while
executed such transaction either in his name or in favour of his family members but
he failed to do so.'
The petitioner, herein, submitted his written statement of defence,
denying the articles of charge so framed against him. The same being not
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found to be satisfactory; the disciplinary authority directed for holding of an
inquiry in the matter and an Inquiry Officer came to be appointed.
The petitioner participated in the said inquiry so held in the matter
and on conclusion of the inquiry, the Inquiry Officer submitted his Inquiry
Report, on 20.11.2018, and therein, held the charge No. I to be not
proved. However, the charge Nos. II, III, IV, V & VII, were held to be
proved and charge No. VI was held to be partially proved.
The Inquiry Report was forwarded to the petitioner vide
communication, dated 08.02.2019, along with a disagreement Note, so
recorded by the disciplinary authority with regard to the findings of the
Inquiry Officer pertaining to charge No. VI, which, basing on the reasons
assigned in the disagreement Note, was held to be proved.
The petitioner submitted a representation against the Inquiry Report
as well as the disagreement Note of the disciplinary authority, pertaining to
the charge No. VI. The disciplinary authority, thereafter, on consideration of
the materials coming on record including the Inquiry Report as well as the
representation as submitted by the petitioner in the matter; proceeded vide
order, dated 30.09.2019, to impose upon the petitioner, herein, the penalty
of dismissal from service.
The petitioner, thereafter, preferred an appeal in the matter. It is to be
noted that during the pendency of the appeal so preferred by the petitioner,
in the matter, on 09.11.2019; he had approached the learned Central
Administrative Tribunal (CAT), Guwahati Bench, by way of instituting an
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Original Application being Original Application No. 040/00016/2020. The
learned Central Administrative Tribunal(CAT), Guwahati Bench, vide order,
dated 17.01.2020, disposed of the said Original Application, requiring the
appellate authority to dispose of the appeal so preferred in the matter by
the petitioner, herein. Thereafter, the appellate authority, had passed the
order, dated 20.05.2020, rejecting the appeal so preferred by the petitioner
in the matter and affirming the penalty so imposed upon him by the
disciplinary authority.
Being aggrieved, the petitioner, had assailed the order of penalty as
imposed upon him along with the order of the appellate authority before
the learned Central Administrative Tribunal(CAT), Guwahati Bench, by way
of instituting an Original Application being Original Application No.
040/00142/2020. The learned Central Administrative Tribunal (CAT),
Guwahati Bench, upon considering the issue arising in the said proceeding
and upon hearing learned counsels appearing for the parties to the
proceeding; was pleased vide order, dated 30.05.2024, to dismiss the said
Original Application No. 040/00142/2020, so instituted by the petitioner,
herein.
4. Being aggrieved, the petitioner has approached this Court by way of
instituting the instituted the present proceeding.
5. The charges levelled against the petitioner, herein, vide the
memorandum of charge, dated 06.06.2017, relates to the misconduct
committed by him in instituting a fake process of recruitment and
thereafter, fabricating Note Sheets in his own handwriting pertaining to the
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Minutes of the Selection committee as well as preparing a select list of
selection of candidates pursuant to such fake recruitment process instituted
against Group C posts.
6. The allegations so levelled against the petitioner, herein, also pertains
to the creation of a fabricated appointment order along with a fake select
list of candidates with fake signatures of the appointing authority. It was
also alleged against the petitioner that he had entered into an agreement
with one Ali Jahan Laskar and had taken Rs. 5,00,000/-, from him for
securing the alleged appointment against a Group C post in Survey of
India. It was further alleged that the petitioner had entered into a
transaction of Rs. 8,00,000/- with said Laskar as refund of the amount so
taken by him and also for closure of a criminal case so instituted by said
Laskar against the petitioner, herein.
7. The Inquiry Officer, in the inquiry, had also examined said Ali Jahan
Laskar and the petitioner had also cross-examined him. Thereafter, basing
on the materials coming on record, the Inquiry Officer had held the charge
Nos. II, III, IV, & V to be proved while the charge No. VI was held to be
partially proved. The Inquiry Officer had held the charge No. I to be not
proved. However, the disciplinary authority while forwarding the Inquiry
Report to the petitioner, vide communication, dated 08.02.2019, had also
forwarded a disagreement Note pertaining to the findings of the Inquiry
Officer in connection with charge No. VI and basing on the reasons so
assigned in the disagreement Note; the charge No. VI was held to be
proved against the petitioner.
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8. It is seen that the petitioner has not raised any grievance with regard
to the manner in which the inquiry was so conducted by the disciplinary
authority against him. The petitioner has also not highlighted that he was,
in any manner, denied an opportunity to defend his case.
9. Ms. Hayat, learned counsel for the petitioner, has submitted that the
criminal proceeding so instituted against the petitioner, herein, having been
dropped, the Disciplinary Proceeding basing on the same set of allegations,
could not have been so continued against him and the same ought to have
been also closed. The learned counsel has further submitted that the
amount of Rs. 8,00,000/- as paid by the petitioner, was so paid by him
under threat of prosecution in the criminal case instituted against him.
10. We have heard the learned counsels appearing for the parties and
also perused the materials available on record.
11. Ms. Hayat, learned counsel, during her submissions, has neither,
highlighted any irregularity in the conduct of the inquiry, nor, highlighted
any inconsistency in the conclusions so drawn by the disciplinary authority
in the order, impugned in the present proceeding.
12. Accordingly, the conclusions so drawn by the Inquiry Officer in the
matter being so drawn basing on the materials coming on record in the
inquiry and the conclusions drawn by the disciplinary authority, in the
matter, also being supported by the materials coming on record in the
inquiry; this Court would not re-evaluate the same by assuming the role of
an appellate authority, more so, in the absence of any material brought on
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record by the petitioner to demonstrate that such conclusions drawn by the
Inquiry Officer and/or the disciplinary authority, were perverse.
13. The above conclusions having been so drawn; this Court would now
examine the contention of the learned counsel for the petitioner that he
having been acquitted from the criminal proceeding so instituted against
him and the criminal proceeding as well as the departmental proceeding so
instituted against him, being based on the same materials and the
witnesses also being common; the order of penalty of dismissal from
service so passed in the departmental proceeding, would require an
interference from this Court and the reliance placed by the petitioner in
support of his such conclusion on the decision of the Hon'ble Supreme
Court rendered in the case of G. M. Tank v. State of Gujarat & ors.,
reported in (2006) 4 SCC 446, is being examined.
14. The Hon'ble Supreme Court in the case of G. M. Tank (supra), in the
facts of the said case, had held that the departmental case and the criminal
case involved therein, were based on identical and similar set of facts and
the charges in the departmental case against the appellant and the charge
before the criminal court, were one and the same and the case being one
of no evidence and the witnesses being the same in both the proceedings
and the appellant involved therein, having been acquitted in the criminal
case; the Hon'ble Supreme Court had held that under such circumstances,
it would be unjust and unfair and rather oppressive to allow the findings
recorded in the departmental proceeding against the appellant, therein, to
stand.
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15. The Hon'ble Supreme Court while recording the said conclusion in the
case of G. M. Tank(supra), had also noted that the petitioner was
acquitted in the criminal proceeding after a regular trial and/or on hot
contest. The relevant conclusions of the Hon'ble Supreme Court in the
matter, as available in paragraph No. 31, is extracted hereinbelow:
"31. In our opinion, such facts and evidence in the departmental as well as
criminal proceedings were the same without there being any iota of
difference, the appellant should succeed. The distinction which is usually
proved between the departmental and criminal proceedings on the basis of the
approach and burden of proof would not be applicable in the instant case.
Though the finding recorded in the domestic enquiry was found to be valid by
the courts below, when there was an honourable acquittal of the employee
during the pendency of the proceedings challenging the dismissal, the same
requires to be taken note of and the decision in Paul Anthony case will apply.
We, therefore, hold that the appeal filed by the appellant deserves to be
allowed."
16. The decision of the Hon'ble Supreme Court in the case of G.M.
Tank(supra) was considered by the Hon'ble Supreme Court in one of its
recent decision in the case of Ram Lal v. State of Rajasthan & ors.,
reported in (2024) 1 SCC 175. The Hon'ble Supreme Court, in this
connection, had proceeded to draw the following conclusions:
"Effect of acquittal in the criminal proceeding - Question 2
25. With this above background, if we examine the criminal proceedings the
following factual position emerges. The very same witnesses, who were
examined in the departmental enquiry were examined in the criminal trial.
Jagdish Chandra, Bhawani Singh, Shravan Lal, Raj Singh and Karan Sharma
were examined as PW 2, PW 3, PW 6, PW 9 and PW 13 respectively at the
criminal trial. Apart fromthem, eight other witnesses were also exam ed. The
gravamen of the charge in the criminal case was that the appellant had
submitted an application for recruitment along with his marksheet and he, by
making alteration in his date of birth to reflect the same as 24-4-1972 in
place of 21-4-1974, and obtained recruitment to the post of Constable.
26. Though the trial court convicted the appellant under Section 420 IPC, the
appellate court recorded the following crucial findings while acquitting the
appellant:
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"...Mainly the present case was based on the documents so this
effect whether the date of birth of accused is 21-4-1972 or 21-4- 1974.
Ext. P-3 is original marksheet, in which, the date of birth of accused
has been shown as 21-4-1972 and same has also been proved by the
witnesses examined on behalf of the prosecution. Whatever the
documents have been produced before the court regarding the date of
birth of 21-4-1974 are either the letters of Principal or are duplicate TC
or marksheets. Neither the prosecution has produced any such original
documents in the subordinate court to this effect that when the
admission form of accused was filled, what date of birth was mentioned
by the accused in it, what was the date of birth in Roll Register of
School, what date of birth was mentioned by accused in the
examination form of Secondary, and nor after bringing the original
records from the witnesses concerned, same were got proved in the
evidence. In these circumstances, this fact becomes doubtful that date
of birth of the accused was 21-4-1974, and the accused is entitled to
receive its benefit. In the considered opinion of this Court, the conviction
made by the learned subordinate court merely on the basis of oral
evidence and letters or duplicate documents, is not just and proper. It is
justifiable to acquit the accused.
Resultantly, on the basis of aforesaid consideration, the present
appeal filed by the appellant-accused is liable to be allowed."
(emphasis supplied)
27. What is important to notice is that the Appellate Judge has clearly
recorded that in the document Ext. P-3 original marksheet of the 8th
standard, the date of birth was clearly shown as 21-4-1972 and the other
documents produced by the prosecution were either letters or a duplicate
marksheet. No doubt, the Appellate Judge says that it becomes doubtful
whether the date of birth was 21-4-1974 and that the accused was entitled to
receive its benefit. However, what we are supposed to see is the substance of
the judgment. A reading of the entire judgment clearly indicates that the
appellant was acquitted after full consideration of the prosecution evidence
and after noticing that the prosecution has miserably failed to prove the
charge (see S. Samuthiram).
28. Expressions like "benefit of doubt" and "honourably acquitted", used in
judgments are not to be understood as magic incantations. A court of law will
not be carried away by the mere use of such terminology. In the present case,
the Appellate Judge has recorded that Ext. P-3, the original marksheet carries
the date of birth as 21-4-1972 and the same has also been proved by the
witnesses examined on behalf of the prosecution. The conclusion that the
acquittal in the criminal proceeding was after full consideration of the
prosecution evidence and that the prosecution miserably failed to prove the
charge can only be arrived at after a reading of the judgment in its entirety.
The Court in judicial review is obliged to examine the substance of the
judgment and not go by the form of expression used.
29. We are satisfied that the findings of the Appellate Judge in the criminal
case clearly indicate that the charge against the appellant was not just, "not
proved" in fact the charge even stood "disproved" by the very prosecution
evidence. As held by this Court, a fact is said to be "disproved" when, after
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considering the matters before it, the court either believes that it does not
exist or considers its non-existence so probable that a prudent man ought,
under the circumstances of the particular case, to act upon the supposition
that it does not exist. A fact is said to be "not proved" when it is neither
"proved" nor "disproved" (see Vijayee Singh v. State of U.P.).
30. We are additionally satisfied that in the teeth of the finding of the
Appellate Judge, the disciplinary proceedings and the orders passed thereon
cannot be allowed to stand. The charges were not just similar but identical
and the evidence, witnesses and circumstances were all the same. This is a
case where in exercise of our discretion, we quash the orders of the
disciplinary authority and the appellate authority as allowing them to stand
will be unjust, unfair and oppressive. This case is very similar to the situation
that arose in G.M. Tanks."
17. Applying the decision rendered by the Hon'ble Supreme Court in the
case of G. M. Tank(supra) and Ram Lal(supra) to the facts of the present
case, it is seen that on account of an agreement being entered in between
the petitioner, herein, and said Laskar, the police had not further
investigated the matter and returned the case in a Final Report holding the
allegations so levelled against the petitioner, to be on a mistake of fact.
Accordingly, it cannot be held that the acquittal of the petitioner, herein,
from the criminal case, was after the matter was contested in the manner
required by the prosecution.
18. Consequently, the acquittal of the petitioner in the criminal proceeding,
in our considered view, would have no bearing on the findings recorded by
the Inquiry Officer in his Inquiry Report as well as by the disciplinary
authority in the Disciplinary Proceeding so instituted against him. The
contentions of the learned counsel for the petitioner requiring interference
by us with the penalty imposed upon the petitioner basing on his acquittal
in the criminal proceeding, cannot be acceded to.
19. At this stage, it is also to be noted that the contention of the learned
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counsel for the petitioner that the petitioner had returned an amount of Rs.
8,00,000/- to said Ali Jahan Laskar, under threat, is not established from
the materials available on record.
20. The learned Central Administrative Tribunal(CAT), Guwahati Bench,
upon a due consideration of the materials brought on record before it in the
proceedings of Original Application No. 040/00142/2020, had vide order,
dated 30.05.2024, proceeded to dismiss the Original Application by
concluding that the penalty of dismissal from service as imposed upon the
petitioner, herein, is proportionate to the charges proved against the
petitioner, herein, in the Disciplinary Proceedings.
21. Given the charges levelled against the petitioner and proved in the
inquiry; we are also not persuaded to hold that the penalty as imposed
upon the petitioner, herein, is disproportionate to the charges so proved.
22. In view of the above conclusions, we are not persuaded to take a
contrary view than that was taken by the learned Central Administrative
Tribunal(CAT), Guwahati Bench, vide order, dated 30.05.2024, in Original
Application No. 040/00142/ 2020, and accordingly, we are of the
considered view that the order, dated 30.05.2024, would not call for an
interference and accordingly, the present writ petition is held to be bereft of
any merit and consequently, it is hereby dismissed. However, there shall be
no order as to costs.
JUDGE CHIEF JUSTICE
Comparing Assistant
