Gauhati High Court
Moon Basumatary vs The State Of Assam And 4 Ors on 20 February, 2025
Page No.# 1/16
GAHC010033162023
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/903/2023
MOON BASUMATARY
S/O- MICHAEL BASUMATARY,
R/O- VILL.- JOYNAGAR, WARD NO. 4,
P.O.- GOSSAIGAON, DIST- KOKRAJHAR,
PIN- 783363, ASSAM.
VERSUS
THE STATE OF ASSAM AND 4 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM,
HOME (A ) DEPARTMENT,
DISPUR, GUWAHATI- 781006.
2:THE DIRECTOR GENERAL OF POLICE
ASSAM
ULUBARI
GUWAHATI- 781007.
3:THE DEPUTY INSPECTOR GENERAL OF POLICE (SR)
ASSAM
SILCHAR
PIN 788001.
4:THE SUPERINTENDENT OF POLICE
KARIMGANJ
ASSAM. PIN- 788710.
5:THE SUPERINTENDENT OF POLICE
NAGAON
ASSAM
PIN- 782001
Page No.# 2/16
Advocate for the Petitioner : MS D BORGOHAIN, MS. K BARUAH,MS. M SARMAH,MR. P
GOHAIN
Advocate for the Respondent : GA, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR
JUDGMENT & ORDER (Oral)
Date : 20.02.2025
Heard Ms. D. Buragohain, learned counsel for the petitioner. Also
heard Mr. T. C. Chutia, learned Addl. Senior Government Advocate
appearing for the respondents.
2. The petitioner, by way of instituting the present proceeding has
presented a challenge to an order dated 16.08.2022, issued by the
disciplinary authority of the petitioner, imposing upon the petitioner the
penalty of removal from service. The petitioner has also assailed the
enquiry report dated 06.11.2021, so submitted in the matter by the
enquiry officer as well as the order dated 11.01.2023, passed by the
appellate authority, upholding the penalty imposed upon the petitioner by
the disciplinary authority.
3. The petitioner, while working as a Sub-Inspector of Police (UB) (P)
under the control of the Superintendent of Police, Nagaon, was vide order
dated 09.11.2018, temporarily deputed to Majuli DEF. Accordingly, the
Superintendent of Police, Nagaon, vide order dated 15.09.2018, proceeded
to release the petitioner from Nagaon for joining at Majuli DEF. On
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31.12.2019, the petitioner herein, was involved in a shooting incident
which had caused grievous injury to one Joydev Nath, a colleague of the
petitioner. Basing on the said incident, an FIR came to be so lodged by
one Indeswari Pegu, Sub-Inspector of Police before the Officer In-charge
Jengraimukh Police Station, Majuli.
In the said FIR, it was alleged that the petitioner herein, after
breaking open the door of the Toilet (attached to the room) in the
Government quarter of Jengraimukh Police Station had taken out his
government allotted Pistol (9 mm browning pistol) from the top of the
drawer of the table, coked it, aimed and fired at Joydev Nath Sub-
Inspector of Police. On being shot, Joydev Nath had fallen down on the
floor of the room and he was bleeding profusely. Basing on the said
incident, the petitioner came to be placed under suspension by the
Superintendent of Police, Majuli, vide an order dated 01.01.2020.
Although a departmental proceeding was instituted against the
petitioner by the Superintendent of Police, Majuli, vide issuance of show-
cause notice dated 04.02.2020 and the petitioner had submitted his reply,
however, on the petitioner being repatriated to the Nagaon DEF, the
Superintendent of Police, Nagaon, vide show-cause notice dated
26.05.2020; initiated a departmental proceeding against the petitioner. In
the said show-cause notice, also, it was alleged that the petitioner while
posted at Jengraimukh Police Station, Majuli, had on 31.12.2019 at around
9.40 PM, in pursuance to a verbal argument that had taken place between
him and his colleague Joydev Nath of the same Police Station inside their
government quarter, the petitioner after taking out his government allotted
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9 mm browning pistol from the drawer, fired at Joydev Nath from a very
close range, resulting in the victim falling on the ground bleeding
profusely. The victim was held to have suffered grievous bullet injury and
was immediately shifted to the hospital. The petitioner was further
charged that he being a member of a disciplined force, had attempted to
kill one of his fellow officers with a government allotted pistol and the
above act of the petitioner was held to be tantamounting to a criminal
misconduct. The petitioner had submitted his written statement of defense
in the matter and the same not being found to be satisfactory, an enquiry
was directed into the matter by the disciplinary authority. The petitioner
was thereafter, vide order dated 11.07.2023, reinstated in his service,
pending conclusion of the departmental proceeding so instituted against
him.
On conclusion of the enquiry, the enquiry officer submitted his report
in the matter and the same was forwarded to the petitioner by the
disciplinary authority vide a communication dated 06.11.2011. The
petitioner was thereafter, transferred to Karimganj DEF and accordingly,
the Superintendent of Police, Karimganj, who now assumed the role of
disciplinary authority of the petitioner, again forwarded the enquiry report
to the petitioner, vide a communication dated 10.06.2022. The petitioner,
thereafter, submitted a representation dated 07.07.2022, praying before
his disciplinary authority to keep the disciplinary proceeding in abeyance
pending conclusion of the criminal trial in the criminal proceeding so
instituted against him. Thereafter, the disciplinary authority, on
consideration of the materials coming on record; as well as the
representations submitted by the petitioner herein, proceeded vide order
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dated 16.08.2022 to impose upon the petitioner, the penalty of removal
from service. The petitioner being aggrieved by the imposition of the said
penalty, preferred an appeal vide his appeal memo dated 22.08.2022
before the Deputy Inspector General of Police (SR), Assam, Silchar.
During the pendency of the appeals the learned Sessions Judge,
Majuli, on conclusion of the trial in the criminal proceeding so instituted
against him, proceeded vide Judgment dated 09.12.2022, to acquit the
petitioner from the charges so levelled against him in the criminal case by
holding that the prosecution had failed to bring home, the alleged offence
beyond all reasonable doubt against the petitioner. In pursuance to the
passing of the Judgment by the learned Trial Court, the petitioner has
instituted the present proceeding, praying for the reliefs as noticed herein
above.
4. Ms. D. Buragohain, learned counsel for the petitioner has submitted
that the allegations forming the basis of the memorandum of charge dated
26.05.2020 and the allegations so levelled against the petitioner in the
criminal proceeding were one and the same. Ms. Buragohain has further
submitted that the materials considered in the departmental proceeding as
well as the witnesses deposing therein, were also the materials considered
and witnesses examined in the criminal proceeding. Ms. Buragohain has
submitted that in a criminal case, the Trial Court, having found that the
prosecution had failed to bring home the alleged offence beyond
reasonable doubt against the petitioner and he, on the said basis, having
been acquitted from the criminal case, the contrary conclusions arrived at
by the disciplinary authority to impose upon him the penalty of removal
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from service, basing on the same materials, would call for an interference
by this Court.
5. Ms. Buragohain, learned counsel for the petitioner has further
submitted that in the enquiry held against the petitioner, it was not
established that he had voluntarily caused grievous injury to his colleague
Joydev Nath. Ms. Buragohain, by taking this Court through the statements
of the witnesses deposing in the enquiry has submitted that there are
apparent contradictions in the depositions of the witnesses and the same
would go to reveal that a doubt exist as to whether the petitioner had
actually shot Joydev Nath on the night of 31.12.2019 in their government
quarter. Ms. Buragohain, accordingly, submits that the decision of the
learned Trial Court in the criminal proceeding would have a bearing in the
conclusions arrived at against the petitioner in the departmental
proceeding. Accordingly, in view of the findings so recorded in favour of
the appellant in the criminal case so instituted against him, the charge
therein not being proved, the penalty so imposed upon the petitioner
would call for an interference by this Court.
6. Ms. Buragohain, learned counsel for the petitioner, in support of her
submissions has placed reliance on the decision of the Hon'ble Supreme
Court in the case of Ramlal Vs State of Rajasthan & Ors., reported in
(2024) 1 SCC 175. Ms. Buragohain has submitted that in the case of
Ramlal (supra), the Hon'ble Supreme Court, on appreciating the fact that
he was acquitted from the criminal charge so levelled against him in the
criminal proceeding, had proceeded to interfere with the penalty as
imposed upon him in the disciplinary proceeding so instituted against him.
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7. Per contra, Mr. T. C. Chutia, learned Addl. Senior Government
Advocate appearing for the respondents, has submitted that although the
departmental proceeding and the criminal case instituted against the
appellant are based on identical and similar set of facts and the charge in
the departmental proceeding against the appellant and the charge before
the criminal Court were one and the same, the standard of proof required
in a criminal proceeding being different from the standard of proof
required in the departmental enquiry, the same charge and evidence may
lead to different results in two proceeding that is, finding of guilt in a
departmental proceeding and acquittal by giving the benefit of doubt in a
criminal proceeding. He has further submitted that in a departmental
proceeding, the charge is to be established by way of preponderance of
probabilities while in a criminal case, the same charge is required to be so
established beyond reasonable doubt.
8. Mr. Chutia, learned Addl. Senior Government Advocate, by referring to
the deposition of the victim Joydev Nath has submitted that in the enquiry,
he had deposed of the firing incident that had occasioned on 31.12.2019
and had in the categorical terms, stated that the petitioner had fired upon
him. It is submitted by Mr. Chutia that the said deposition of Joydev Das
was not disputed by the petitioner during his cross-examination. Mr. Chutia
has further submitted that the deposition of the other witnesses in the
departmental proceeding also established the fact that the petitioner had
shot said Joydev Nath on the night of 31.12.2019. Mr. Chutia has further
submitted that the departmental proceeding having been concluded
against the petitioner and a penalty of removal from service imposed upon
him, basing on the materials coming on record in the enquiry, the
Page No.# 8/16
subsequent acquittal of the petitioner in the criminal case, in the facts and
circumstances of the matter, would not call for an interference with the
penalty so imposed upon the petitioner in the departmental proceeding.
9. I have heard the learned counsels appearing for the parties and also
perused the materials available on record.
10. As noticed herein above, the petitioner, basing on an incident
occasioning on the night of 31.12.2019, was issued with a show-cause
notice by the Superintendent of Police, Nagaon, on 26.05.2020. The
allegation and charge so levelled against the petitioner in the said show-
cause notice being relevant is extracted herein below:-
"You are hereby required to show cause under section 65 of Assam
Police Act, 2007 read with Rule-66 of Assam Police Manual part-III
and Article-311 of the Constitution of India as to why any of the
penalties prescribed therein should not be inflicted on you on the
following charges based on the statement of allegation attached
with this notice.
While you were posted at Jengraimukh Police Station in Majuli
district on 31.12.2019 at about 9.40 P.M (at night) verbal
argument took place between you and fellow S.I(P) Joydev Nath of
the same P.S. inside the govt. quarter. All of a sudden you took out
the allotted 9 mm Browning Pistol from a drawer and fired at
S.I(P) Joydev Nath from a very close range. As a result, the S.I fell
down on the floor bleeding profusely. He sustained grievous bullet
injury and was immediately shifted to hospital for medical
treatment.
You were arrested and forwarded to judicial custody by
Jengraimukh, Police.
Being a member of a disciplined force, you have attempted to kill
one fellow S.L. with allotted govt. arms. Your above acts
tantamounts to criminal misconduct. Hence, you are charged with
criminal misconduct."
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11. A perusal of the show-cause notice dated 26.05.2022, would go to
reveal therein, that there was a verbal argument that had taken place
between the petitioner and his colleague Joydev Nath inside the
government quarter. During the said verbal argument, the petitioner had
taken out his government allotted pistol from a drawer and had fired upon
said Joydev Nath from a very close range, resulting in the victim sustaining
grievous bullet injuries. Basing on the said allegation, the petitioner was
charged of having attempted to kill his colleague with government allotted
arms, which act was stated to tantamount to a criminal misconduct.
12. In the enquiry, along with the other departmental witnesses, the victim
Joydev Nath had also deposed. Said Joydev Nath, in his deposition, had
categorically stated that he did not know what had happened to the
petitioner and that the petitioner had drawn his service pistol from the top
drawer of the table in the room and fired upon him. It was further stated
on account of the injury sustained he had fallen unconscious. The shot was
stated to have been taken upon him by the petitioner from a distance of
approximately 3-4 feet. Although the petitioner had cross examined said
Joydev Nath however, the deposition of Joydev Nath was not demolished in
any manner. The only question put by the petitioner during cross
examination of Joydev Nath was as to whether the petitioner, Joydev Nath
and one Utpal Das were under influence of alcohol. The victim Joydev Nath
had replied in negative to the said question posed to him by the petitioner.
The said statement made by the victim, in the enquiry, reveals that the
action on the part of the petitioner in firing from his government allotted
pistol was not an accidental one.
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13. The enquiry officer, on noticing the statement of the victim Joydev
Nath as well as the deposition of the other witnesses, who were present in
the proximity of the place of occurrence, proceeded to conclude in his
enquiry report that the charge leveled against the petitioner was proved.
The enquiry report thereafter was furnished to the petitioner and he
submitted a representation against it. The disciplinary authority proceeded
thereafter, vide order dated 16.08.2022, on considering the materials
coming on record in the enquiry and agreeing with the findings of the
enquiry officer, to impose upon the petitioner, the penalty of removal from
service. The petitioner thereafter, had submitted an appeal in the matter
vide his appeal memo dated 22.08.2022 and therein, had taken a plea to
the effect that there was no intention on his part to attack Joydev Nath and
the firing was an accidental one. The appeal as preferred by the petitioner
was subsequently rejected by the appellate authority vide the order dated
11.01.2023.
14. During the pendency of the said departmental appeal preferred by
the petitioner, the learned Trial Court, on conclusion of the trial, proceeded
vide Judgment dated 09.12.2022 to acquit the petitioner from the charge
so framed against him in the criminal case. The learned Trial Court, for the
purpose of acquitting the petitioner from the charge so framed against him
in the criminal case, interalia, had drawn the following conclusions: -
"More Importantly, the victim himself departed from the facts and
did not state or could state emphatically that it was voluntary
and Intentional rather he pleaded that he wants to give him mercy
being friend. Having considered the entire fact and circumstances,
I find that there is a shadow of doubt on its veracity primarily on
the intention of accused. Whether it was accidental or intentional,
the prosecution has failed to make it clear, and therefore, the
accused is entitled to the benefit of doubt in the case in hand.
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19. In culmination after careful perusal of evidence on record and
appreciation thereof, this court arrived at the conclusion that the
prosecution has failed to bring home the alleged offence beyond
all reasonable doubt against the accused A-1. Therefore, this court
holds the accused Sri Moon Basumatary (A-1) Is not guilty of the
offence under sections-326/307 of Indian Penal Code, 1860 and
section-3 of PDPP Act, 1984 and he is acquitted and set at liberty
forthwith. The seized pistol shall be returned to the Govt. and
other seized materials shall be destroyed in due course of time. "
15. On perusal of the said Judgment dated 09.12.2022, it is seen that the
victim Joydev Nath had deposed in the Trial as PW-4. The victim had
deposed that the petitioner had shot him on his head from a distance of 3
feet after drawing his pistol from the drawer. However, it was further
deposed that the petitioner was in a drunken condition and the victim
wanted to give him mercy. The said statement of the victim found favour
with the trial Judge and as noticed herein above, in the Judgment and
Order dated 09.12.2022, the Trial Judge had concluded that the victim
himself had departed from the facts and did not state empathetically that
the firing was a voluntary and intentional act rather, he pleaded, he wanted
to give mercy to the petitioner herein, being his friend. However, in the
departmental proceeding so instituted against the petitioner, the victim
Joydev Nath was empathetic in saying that he was, without any
provocation, shot by the petitioner, resulting in he falling down unconscious.
Accordingly, the evidence considered in the enquiry as well as the evidence
before the learned Trial Court of the victim cannot be said to be the same.
The victim, for reasons unknown, had detracted from his earlier stand in
the matter. However, it is to be noted that in his deposition, during the trial
in the criminal proceeding instituted against the petitioner, the petitioner
had emphatically stated that he was shot by the petitioner.
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16. The position with regard to the evidences coming on record in the
criminal as well as the departmental proceeding having been noticed herein
above, this Court would now consider the contention raised by the learned
counsel for the petitioner that in view of the acquittal of the petitioner in
the criminal case so instituted against him, the order passed by the
disciplinary authority dated 16.08.2022, imposing upon the petitioner the
penalty of removal from service would call for an interference.
17. It is well settled that the Courts while considering the challenge to a
penalty imposed in pursuance to a departmental proceeding will not act as
an appellate Court and reassess the evidence led in the domestic enquiry,
nor interfere on the ground that another view is possible on the material
on record. It is further held that if the enquiry has been fairly and properly
held and the findings were based on the evidences, the question of
adequacy of the evidence or the reliable nature of the evidence will not be
grounds for interfering with the findings in departmental enquiries. It is
also a settled position of law that Courts will not interfere with findings of
fact recorded in departmental enquiries, except where such findings are
based on no evidence or where they are clearly perverse.The test to find
out perversity is to see whether a tribunal acting reasonably could have
arrived at such conclusion or finding, on the material on record.
18. In the case of State Bank of Bikaner & Jaipur Vs Nemi Chand
Nalwaya, reported in (2011) 4 SCC 584, the Hon'ble Supreme Court had
held that the fact of a criminal Court subsequently acquitting a delinquent
by giving him the benefit of doubt, would not in any way render a
completed disciplinary proceeding, invalid, nor effect the validity of the
Page No.# 13/16
finding of guilt or consequential punishment. The conclusions drawn by the
Hon'ble Supreme Court in this connection, being relevant is extracted herein
below: -
"10. The fact that the criminal court subsequently acquitted
the respondent by giving him the benefit of doubt, will not in any
way render a completed disciplinary proceeding invalid nor affect
the validity of the finding of guilt or consequential punishment.
The standard of proof required in criminal proceedings being
different from the standard of proof required in departmental
enquiries, the same charges and evidence may lead to different
results in the two proceedings, that is, finding of guilt in
departmental proceedings and an acquittal by giving benefit of
doubt in the criminal proceedings. This is more so when the
departmental proceedings are more proximate to the incident, in
point of time, when compared to the criminal proceedings. The
findings by the criminal court will have no effect on previously
concluded domestic enquiry. An employee who allows the findings
in the enquiry and the punishment by the disciplinary authority to
attain finality by non-challenge, cannot after several years,
challenge the decision on the ground that subsequently, the
criminal court has acquitted him."
19. Applying the said decision of the Hon'ble Supreme Court to the facts of
the present case, it is seen that on account of the projection made by the
victim during his deposition in the Trial of the criminal case instituted
against the petitioner that he wanted to give mercy to the petitioner herein,
although he had stated about the firing incident, the learned Trial Court
proceeded to hold that the charge brought against the petitioner was not
proved beyond reasonable doubt, however, in the departmental proceeding,
the victim had in categorical terms stated that he was shot by the petitioner
using his government allotted pistol. The said evidence of the victim coming
on record in the departmental enquiry and the findings so recorded by the
enquiry officer and accepted by the disciplinary authority, would not call for
an interference on account of the subsequent acquittal of the petitioner in
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the criminal case for the reasons noted herein above. Further, given the
standard of proof required in a criminal proceeding as well as in a
departmental proceeding, the findings recorded by the enquiry officer as
well as the disciplinary authority being supported by the materials coming
on record in the enquiry, this Court is of the considered view that the same
cannot be said to be perverse.
20. It is to be noted that a departmental proceeding is different from a
criminal proceeding inasmuch as the fundamental difference between the
two is that whereas in a departmental proceeding a delinquent employee
can be held guilty on the basis of "preponderance of probabilities, in a
criminal court the prosecution has to prove its case "beyond reasonable
doubt". It was further observed that the Hon'ble Supreme Court had
consistently held that merely because a person has been acquitted in a
criminal trial, he cannot be ipso facto reinstated in service.
21. In the case of Karnataka Power Transmission Corporation
Limited Vs C. Nagraju & Anr., reported in 2019 (10) SCC 367, the
Hon'ble Supreme Court in relation to the issue arising in the present
proceeding had drawn the following conclusions: -
"13. Having considered the submissions made on behalf of
the Appellant and the Respondent No. 1, we are of the view that
interference with the order of dismissal by the High Court was
unwarranted. It is settled law that the acquittal by a Criminal
Court does not preclude a Departmental Inquiry against the
delinquent officer. The Disciplinary Authority is not bound by the
judgment of the Criminal Court if the evidence that is produced in
the Departmental Inquiry is different from that produced during
the criminal trial. The object of a Departmental inquiry is to find
out whether the delinquent is guilty of misconduct under the
conduct rules for the purpose of determining whether he should be
continued in service. The standard of proof in a Departmental
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Inquiry is not strictly based on the rules of evidence. The order of
dismissal which is based the evidence before the inquiry Officer in
the disciplinary proceedings, which is different from the evidence
available to the Criminal Court, is justified and needed no
interference by the High Court."
22. Having drawn the above conclusions, this Court would now consider
the decision of the Hon'ble Supreme Court in the case of Ramlal (supra)
relied upon by the learned counsel for the petitioner.
23. On a perusal of the decision of the Hon'ble Supreme Court in the case
of Ramlal (supra), the Hon'ble Supreme Court, basing on the materials
coming on record in the criminal proceeding had held that the charge
leveled against the appellant therein, was not just 'not proved' in fact the
charge even stood 'disproved' by the prosecution evidence. Basing on the
said conclusion, the Hon'ble Supreme Court, in view of the acquittal of the
appellant therein, in the criminal proceeding, proceeded to interfere with
the order passed against the said appellant in the departmental proceeding.
24. In the case on hand, the evidences of the witnesses, more particularly,
the evidence of the victim in the departmental proceeding and in the
criminal proceeding instituted against the petitioner, being admittedly in
variance, which variance is only in effect and not in fact, the findings
recorded by the enquiry officer and the penalty imposed thereon, upon the
petitioner by the disciplinary authority, in the considered view of this Court,
would not call for an interference on the ground of the subsequent acquittal
of the petitioner in the criminal case so instituted against him. Accordingly,
this Court is of the considered view that the decision of the Hon'ble
Supreme Court in the case of Ramlal (supra) would not advance the case
of the petitioner herein.
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25. For the above discussion, this Court is of the considered view that the
enquiry report so submitted by the enquiry officer, in pursuance to the
show-cause notice dated 26.05.2020, issued to the petitioner, the order
dated 16.08.2022, issued by the disciplinary authority, imposing upon the
petitioner the penalty of removal from service as well as the order dated
11.01.2023, issued by the appellate authority, upholding the penalty
imposed upon the petitioner by the disciplinary authority, would not call
for any interference.
26. In view of the above discussions, the Court is of the considered view
that the writ petition is devoid of any merit and accordingly, the same
stands dismissed. However, there would be no order as to costs.
JUDGE
Comparing Assistant
