Gauhati High Court
Page No.# 1/18 vs The State Of Assam And 5 Ors on 28 February, 2025
Page No.# 1/18
GAHC010199042024
2025:GAU-AS:2097-
DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/337/2024
SUMIT LAL DEY
S/O SRI SAMIRAN CHANDRA DEY VILL- HARITIKAR, P.O. RAJATILLA-
788805, DIST. CACHAR, ASSAM.
VERSUS
THE STATE OF ASSAM AND 5 ORS
REP. BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM HOME
DEPTT. DISPUR, GUWAHATI- 781006.
2:THE COMMISSIONER AND SECRETARY TO
THE GOVT OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI- 781006.
3:THE SECRETARY TO THE GOVT. OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI- 781006.
4:THE INSPECTOR GENERAL OF POLICE
SOUTHERN RANGE
P.O. SILCHAR-788001
DIST. CACHAR
ASSAM.
5:THE SUPERINTENDENT OF POLICE
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HAILAKANDI DISTRICT
P.O. HAILAKANDI- 7888151
DIST. HAILAKANDI
ASSAM.
6:THE OFFICER IN-CHARGE
PANCHGRAM P.S. P.O. PANCHGRAM- 788802
DIST. HAILAKANDI
ASSAM
Advocate for the Petitioner : MR B MALAKAR,
Advocate for the Respondent : GA, ASSAM,
BEFORE
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR
Date of Hearing : 28.02.2025
Date of Judgment : 28.02.2025
JUDGMENT & ORDER (Oral)
(N. Unni Krishnan Nair. J)
Heard Mr. B. Malakar, learned counsel for the appellant. Also heard Mr. D. K.
Sharma, learned Addl. Senior Government Advocate appearing for the respondents.
2. The present Intra Court appeal has been instituted, assailing a Judgment & Order
dated 20.08.2024, passed by the learned Single Judge in WP(C) No. 5416/2015,
dismissing the writ petition, thereby upholding the penalty so imposed upon the
petitioner by the disciplinary authority.
3. The facts requisite for adjudication of the issue arising in the present proceeding
is noticed as under: -
The appellant herein, who was posted at the relevant point of time at
Panchgram Police Station, had proceeded to his official quarter on a motorcycle,
bearing Registration No. AS-30-5938, allotted to the said Police Station for
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having his meal. The appellant had parked the said motorcycle behind his
quarter and after having his meal, when he came out of the quarter, he found
the departmental motorcycle to be missing. The appellant immediately informed
his superiors about the matter and a search was also made for recovery of the
missing departmental motorcycle; however, the said motorcycle not being
recovered, the appellant, on 03.01.2015, proceeded to lodge an FIR in the
matter with the Officer In-Charge, Panchgram Police Station. On receipt of the
said FIR, a case being Panchgram P.S. Case No. 02/2015, under Section 379 IPC
came to be registered and investigation was initiated in the matter for recovery
of the said departmental motorcycle.
Basing on the theft of the motorcycle, a departmental proceeding came to
be instituted against the appellant vide issuance of a show-cause notice dated
25.01.2015. In the said show-cause notice, the appellant was charged of having
committed gross negligence of duty and misconduct on account of his careless
handling of the departmental motorcycle. The appellant, on receipt of the show-
cause notice, submitted his written statement in pursuance thereto on
06.02.2015, denying any negligence on his part, leading to the theft of the
departmental motorcycle. The explanations as advanced by the appellant in his
written statement not having been found to be satisfactory, the disciplinary
authority had directed for holding of an enquiry in the matter and accordingly,
an enquiry officer was appointed.
The enquiry officer, on conclusion of the enquiry, submitted his report in
the matter holding the charge of negligence of duty levelled against the
appellant to be proved beyond reasonable doubt. The disciplinary authority of
the appellant, vide communication dated 06.05.2015, forwarded the enquiry
report to the appellant. The appellant thereafter submitted his representation
against the enquiry report on 15.05.2015 and therein, by dealing with the
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evidences coming on record in the enquiry had contended that the same did not
disclose any negligence and/or dereliction of duty by him in the matter and
accordingly, there was no justifiable ground for imposing upon him any penalty.
The disciplinary authority of the appellant, thereafter, vide order dated
22.05.2015, on consideration of the materials coming on record and by agreeing
with the findings of the enquiry officer in the enquiry report, proceeded to hold
the charge leveled against the petitioner to be proved and imposed upon the
petitioner, the penalty of "withholding of annual increments for 03(three) years
with cumulative effect".
The appellant thereafter, submitted an appeal against the order of the
disciplinary authority dated 22.05.2015 before the appellate authority, vide his
appeal memo dated 08.06.2015. The appellate authority, on consideration of
the said appeal was pleased vide his order dated 07.07.2015 to reject the
appeal so preferred by the appellant.
Being aggrieved, the petitioner approached the writ Court by way of
instituting a writ petition being WP(C) No. 5416/2015.
The learned Single Judge, on consideration of the submissions so
advanced by the learned counsel for the appellant in the writ proceedings was
pleased vide Judgment and Order dated 20.08.2024, to dismiss the said writ
petition. The operative portion of the Judgment and Order dated 20.08.2024
being relevant is extracted herein below: -
"4. Shri Malakar, learned counsel for the petitioner has submitted
that there was no negligence at all and since his quarter was located
at a distance, he had used the departmental motorcycle. He has also
submitted that immediately on detecting the theft, he had lodged an
FIR on 03.01.2015. On the issue of the procedure adopted, it is
submitted that the show-cause notice dated 25.01.2015 cannot be
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construed to be initiation of a formal disciplinary proceeding as no
charge sheet was issued to him. He submits that unless a formal
charge sheet is issued, no action can be taken on the basis of a show
cause notice. He has also drawn the attention of this Court to the
averments made in the writ petition and the reply made by the
respondent no. 5 in the affidavit-in-opposition on the aforesaid issue.
5. The learned counsel has relied upon a judgment dated 28.04.2010
passed in WA No. 104 of 2010 (Shri Rallenthang Vankal Vs. The
Hindustan Paper Corporation Ltd. & Ors.). By referring to paragraph
7 of the said judgment, he has submitted that a definite charge sheet
is required to be submitted before proceeding with the disciplinary
action. The learned counsel has also submitted that the penalty
imposed is not prescribed either under the Assam Services (Discipline
and Appeal) Rules, 1964 (hereafter referred to as the Rules) or the
Police Manual. He, accordingly submits that the penalty has been
imposed without any jurisdiction and is liable to be interfered with.
He has also submitted that the penalty prescribed in the Rules also
includes the penalty of recovery to the extent of loss caused and
without availing the said option, the present penalty of withholding
of increments with cumulative effect has been imposed. The learned
counsel accordingly submits that the impugned action be interfered
with.
6. Per contra, Ms. Bhattacharjee, learned State Counsel has
submitted that the entire action has been taken by following the due
process of law. She submits that the petitioner has not expressed any
grievance with the procedure adopted in the inquiry and she adds
that the delinquent petitioner was given a fair and reasonable
opportunity to defend himself. As regards the submission that no
formal departmental proceeding was initiated, she contends that the
show cause notice dated 25.01.2015, in clear terms reflected that a
formal departmental proceeding was, indeed initiated. She has also
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submitted that the case law cited on behalf of the petitioner is based
on certain facts which are distinguishable from the facts of the
present case. On the aspect that the penalty imposed is not
prescribed by the Rules holding the field, the learned State Counsel
submits that there is a clear stipulation of the aforesaid penalty in
the Rules as well as in the Police Manual. The learned State Counsel
has also emphasized that the grievance of the petitioner was looked
into by the Appellate Authority and by a speaking order, the appeal
has been rejected on 07.07.2015. She submits that in a matter
concerning a disciplinary proceeding, the Court would only look into
the aspect as to whether the procedure was duly followed by giving a
fair chance and would not delve into the merits of the allegation.
7. The rival contentions have been considered and the materials
placed before this Court have been carefully examined.
8. The first contention raised on behalf of the petitioner is that the
issuance of the show cause notice dated 25.01.2015 would not
constitute initiation of a formal departmental proceeding. The
further submission is that unless a charge sheet is issued, such
initiation cannot be deemed. To examine the said submission, this
Court has carefully looked into the show cause notice dated
25.01.2015. The said notice, in clear terms has stated that the
delinquent was required to show cause under the provisions of the
Assam Police Act, Assam Police Manual and the Rules of 1964 as to
why penalties prescribed should not be inflicted on the charge
framed. Apart from there being a definite charge, the show cause
notice was also accompanied by a statement of allegation, list of
witnesses and list of documents. Rule 9 of the Rules of 1964 lays
down the procedure for imposing penalties. As per Rule 9(2), definite
charges are to be framed on the basis of the allegations on which the
inquiry is proposed to be held and such charges together with the
statement of allegations are to be communicated in writing to the
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delinquent. The show cause notice dated 25.01.2015 meets all the
requirement as per the aforesaid Rules. In any case, the use of the
nomenclature "show cause notice" instead of charge sheet will hardly
make any difference when the contents are adhering to the
requirement of the Rules.
9. Reliance of the petitioner upon the judgment in the case of Shri
Rallenthang Vankal (supra) is misplaced as the facts are wholly
different and it is not discernible as to whether in that case, the
show cause notice was in adherence to the requirement of the Rules
holding the field. It may be mentioned that the petitioner in that case
was an employee of the Hindustan Paper Corporation Ltd. which has
a separate set of Rules. The second leg of argument is that the
penalties prescribed in the Rules of 1964 and the Police Manual do
not contain the penalty imposed. However, a bare look into the Rules
as well as the Manual would show that "Withholding of Increments"
is specifically mentioned amongst the penalties. As regards the
contention that recourse to the penalty of recovery could have been
taken instead of withholding of increments with cumulative effect,
this Court is of the opinion that the aspect of imposition of penalty is
wholly within the domain and ambit of the disciplinary authority
and this Court plays a secondary role only to oversee as to whether
the proceeding was carried out by following the due process of law.
10. In a recent case of State of Rajasthan Vs. Bhupendra Singh,
reported in 2024 0 INSC 592, it has been reiterated that in a
disciplinary proceeding, a High Court in exercise of powers under
Article 226 of the Constitution of India should not go for
reassessment of the evidence and other matters which are within the
domain of the disciplinary authority. There being no challenge to the
validity of the proceedings of the inquiry and this Court being prima
facie satisfied that the petitioner was given a proper and reasonable
opportunity, this Court does not find any merits to interfere with the
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impugned action."
4. Assailing the Judgment and Order dated 20.08.2024, Mr. B. Malakar, learned
counsel for the appellant has reiterated the submissions so made by him before the
learned Single Judge in the proceedings of WP(C) No. 5416/2015. Mr. Malakar, learned
counsel as his 1st contention submitted that there was no charge-sheet issued to the
petitioner and accordingly, it cannot be construed that a departmental proceeding had
stood initiated in the matter against the appellant and accordingly, the imposition of
penalty upon the appellant, vide the order dated 22.05.2015 was clearly
impermissible. Mr. Malakar has thereafter, as his 2 nd contention, submitted that a
perusal of the allegation leveled against the appellant and the charge so framed
against him vide the show-cause notice dated 25.01.2015, would go to reveal that
what was so alleged against the petitioner was only a mere negligence on his part
leading to the theft of the departmental motorcycle. Mr. Malakar had submitted that
the allegations so leveled against the appellant does not reflect a commission by him
of a misconduct and that a mere negligence cannot be deemed to be a misconduct.
Mr. Malakar has further submitted that the departmental motorcycle was being utilized
by the appellant, for proceeding to his quarter to have his meals to save time, given
the nature of duties assigned to him by the Officer In-charge, Panchgram Police
Station.
5. Mr. Malakar, learned counsel for the petitioner, by referring to the materials
brought on record in the present proceeding has submitted that the motorcycle, in
question, was parked with due caution near the quarter of the appellant under lock
and key. Mr. Malakar has further submitted that the appellant was allotted a quarter
within the campus of the Hindustan Paper Coorporation and the said area was a
protected area. Mr. Malakar has submitted that it is the petitioner, who had lodged an
FIR in the matter and there is no criminal proceeding instituted against him in the
matter. Mr. Malakar by referring to the report of the enquiry officer has submitted that
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the enquiry officer in his findings has not returned any findings to the effect that the
appellant was involved in the theft of the departmental motorcycle and what was
concluded against the appellant was a mere negligence of duty on his part, leading to
the theft of the motorcycle in question. In the above premises, Mr. Malakar submits
that the commission of misconduct by the appellant, not being borne out from the
allegations leveled against him in the matter vide the show-cause notice dated
25.01.2025, the same was not sustainable and accordingly, the order of the
disciplinary authority dated 22.05.2015, imposing upon him a penalty along with the
order of the appellate authority, dated 07.07.2015 would call for an interference by
this Court.
6. Mr. D. K. Sharma, learned Addl. Senior Government Advocate appearing for the
respondents has submitted that the 1 st contention of the appellant that there was no
departmental proceeding instituted against him in the matter is clearly perverse,
inasmuch as, the issuance of the show-cause notice; under the provisions of Section
65 of the Assam Police Act, read with Rule 66 of the Assam Police Manual Part-III,
clearly indicates the institution of a departmental proceeding against the appellant in
the matter. Mr. Sharma has submitted that the learned Single Judge, on appreciation
of the said contention of the appellant had rightly rejected the same vide the
Judgment and Order dated 20.08.2024.
7. Mr. Sharma has further submitted that the appellant, being a responsible
member of a disciplined force, was called upon to discharge his duties in a more
responsible manner and the theft of the departmental motorcycle, being solely on
account of the callous attitude of the appellant in securing the same in a proper
manner before proceeding for his meals, the conduct of the appellant clearly amounts
to commission of a misconduct in the matter and accordingly, the institution of the
departmental proceeding against the appellant, would not be permissible to be
questioned.
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8. Mr. Sharma has submitted that in the enquiry so held, the appellant was given all
due opportunities for defending the charge leveled against him, however, it is seen
that the appellant had not cross-examined any of the departmental witnesses
deposing in the enquiry. Mr. Sharma submits that the enquiry officer, on consideration
of the materials coming on record and the same having demonstrated that the
appellant was guilty of the charge so framed against him, had proceeded to conclude
that the charge leveled against the appellant was proved by the materials coming on
record.
9. Accordingly, it is submitted by Mr. Sharma that the disciplinary authority, on
consideration of the enquiry report and the materials coming on record in the enquiry,
had committed no error in imposing the penalty of withholding of 03(three)
increments with cumulative effect upon the appellant, vide the order dated
22.05.2015. Mr. Sharma has submitted that the appellate authority vide the order
dated 07.07.2015, had also examined the aspect of the loss caused to the department
on account of the theft of the motorcycle and accordingly, he submits that the penalty
as imposed upon the appellant cannot be said to be disproportionate to the charge so
leveled against him vide the show-cause notice dated 25.01.2015.
10. In the above premises, it is submitted by Mr. Sharma that the Judgment and
Order dated 20.08.2024; passed by the learned Single Judge in WP(C) No. 5416/2015
would not mandate any interference.
11. We have heard the learned counsels appearing for the parties and also perused
the materials available on record.
12. The 1st contention of the learned counsel for the appellant is to the effect that
the penalty as imposed upon the appellant vide the order dated 22.05.2015, by the
disciplinary authority, would not be sustainable on account of the fact that there was
no departmental proceeding instituted against him in the matter. It is this contention
of the appellant that a departmental proceeding can be stated to have been instituted
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against a delinquent only upon issuance of a Charge-sheet in the matter. No Charge-
sheet having been issued to the appellant, the show-cause notice dated 25.01.2015
cannot be construed to have initiated a formal departmental proceeding against him in
the matter. Accordingly, it is the submission of the learned counsel for the appellant
that the order of penalty dated 22.05.2015 would mandate an interference by this
Court.
13. The learned Single Judge, in detail, had considered the said contention raised by
the appellant in the writ proceeding and had thereafter, concluded that in view of the
provisions of the Assam Police Act, Assam Police Manual as well as the provisions of
the Assam Services (Discipline and Appeal) Rules, 1964; the said contention of the
appellant would not be sustainable. In view of the provisions governing the initiation
of a departmental proceeding against a member of the Assam Police Force, the
learned Single Judge had concluded that the show-cause notice dated 25.01.2015,
had in fact instituted a departmental proceeding against the appellant in the matter.
On a consideration of the conclusions reached by the learned Single Judge with regard
to the 1st contention of the appellant that no departmental proceeding stood initiated
against him vide the issuance of the show-cause notice dated 25.01.2015, we are in
the agreement with the conclusions so drawn by the learned Single Judge and reject
the contention so raised by the appellant before us in the matter.
14. Having drawn the above conclusion with regard to the first contention raised by
the appellant in the matter, we would now proceed to consider the second contention
of the appellant that no misconduct being borne out of the allegation so leveled
against him vide the show-cause notice dated 25.01.2015, a departmental proceeding
was not mandated to be so instituted against him in the matter. The Hon'ble Supreme
Court in the case of Ravi Yashwant Bhoir Vs District Collector, Raigad & Ors.,
reported in (2012) 4 SCC 407, had considered the purport of the term "misconduct"
and had drawn the following conclusions: -
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"Misconduct
11. "Misconduct" has been defined in Black's Law Dictionary, 6 th Edn. as:
"A transgression of some established and definite rule of action, a
forbidden act, a dereliction of duty, unlawful behavior, wilful in
character, improper or wrong behavior, its synonyms are misdemeanor,
misdeed, misbehavior, delinquency, impropriety, mismanagement offence,
but not negligence or carelessness."
"Misconduct in office" has been defined as:
"Any unlawful behavior by a public officer in relation to the duties of his
office, wilful in character. Term embraces acts which the office-holder
had no right to perform, acts performed improperly, and failure to act in
the face of an affirmative duty to act."
12. P. Ramanatha Aiyar's Law Lexicon, Reprint Edn. 1987 at p. 821
defines "misconduct" thus:
"The term 'misconduct' implies a wrongful intention, and not a mere error
of judgment. Misconduct is not necessarily the same thing as conduct
involving moral turpitude. The word 'misconduct' is a relative term, and
has to be construed with reference to the subject-matter and the context
wherein the term occurs, having regard to the scope of the Act or statute
which is being construed. Misconduct literally means wrongconduct or
improper conduct. In usual parlance, misconduct means a transgression
of some established and definite rule of action, where no discretion is left,
except what necessity may demand and carelessness, negligence and
unskilfulness are transgressions of some established, but indefinite, rule
of action, where some discretion is necessarily left to the actor.
Misconduct is a violation of definite law; carelessness or abuse of
discretion under an indefinite law. Misconduct is a forbidden act;
carelessness, a forbidden quality of an act, and is necessarily indefinite.
Misconduct in office may be defined as unlawful behaviour or neglect by a
public officer, by which the rights of a party have been affected.
Thus it could be seen that the word 'misconduct' though not capable of
precise definition, on reflection receives its connotation. from the context,
the delinquency in its performance and its effect on the discipline and the
nature of the duty. It may involve moral turpitude, it must be improper or
wrong behaviour; unlawful behaviour, wilful in character; forbidden act,
a transgression of established and definite rule of action or code of
conduct but not mere error of judgment, carelessness or negligence in
performance of the duty; the act complained of bears forbidden quality or
character. Its ambit has to be construed with reference to the subject-
matter and the context wherein the term occurs, regard being had to the
scope of the statute and the public purpose it seeks to serve....
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(emphasis supplied)
13. Mere error of judgment resulting in doing of negligent act does not
amount to misconduct. However, in exceptional circumstances, not
working diligently may be a misconduct. An action which is detrimental
to the prestige of the institution may also amount to misconduct. Acting
beyond authority may be a misconduct. When the office-bearer is expected
to act with absolute integrity and honesty in handling the work, any
misappropriation, even temporary, of the funds, etc. constitutes a serious
misconduct, inviting severe punishment. (Vide Disciplinary Authority-cum-
Regl. Manager v. Nikunja Bihari Patnaik, Govt. of T.N. v. K.N.
Ramamurthy, Inspector Prem Chand v. Govt. of NCT of Delhi and SBI v.
S.N. Goyal.)"
15. A perusal of the said decision of the Hon'ble Supreme Court in the case of Ravi
Yashwant Bhoir (supra), would reveal that a mere error of judgment resulting in
doing of negligent act does not amount to misconduct. The expression "misconduct"
has to be understood as a transgression of some established and definite rule of
action, a forbidden act, unlawful behavior, wilful in character. The said decision would
also indicate that a mere negligence in performance of duty and/or a lapse in
performance of duty or error of Judgment in evaluating the developing situation may
be negligence in discharge of duty but, the same would not constitute a misconduct
unless, the consequences directly attributable to such negligence would be such that
the irreparable or resultant damage would be so heavy that the degree of culpability
would be very high.
16. Having noted the purport of the term "misconduct", we would now proceed to
consider the allegation leveled against the appellant in the show-cause notice dated
25.01.2015.The allegations so leveled, being relevant is extracted herein below: -
"As per the information report submitted by O/C Panchgram P.S. on
02.01.2015 and enquiry report submitted by Shri Faiz Ahmed
Barbhuiya, APS, Dy.S.P. (Proby) Hailakandi on 22.01.2015, while you
were posted at Panchgram P.S. you went to your HPC quarter with
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departmental motor cycle vide Registration No. AS.30/5938 (which was
allotted to Panchgram P.S.) after completion of 2nd shift sentry duty at
4 p.m for taking meal and kept the motor cycle near your HPC's quarter
at Panchgram. At about 7.45 P.M. you came out from your quarter and
found that the departmental motor cycle was not available where you
had kept. You had used the departmental motor cycle for your personal
affairs and your such negligent conduct and careless handling of the
motor cycle led to the theft of the same from your custody.
You are therefore charged with gross negligence of duty and
misconduct on account of your careless handling of the departmental
motor cycle."
17. A perusal of the said allegation would go to reveal that it was alleged against
the appellant that he had used the departmental motorcycle for personal affairs and
his negligent conduct and careless handling of the motorcycle, led to its theft while
being under his custody. Accordingly, the appellant was charged with gross negligence
of duty and misconduct on account of his careless handling of the departmental
motorcycle. The allegations so leveled against the appellant does not indicate that he
has been held to be involved in the theft of the departmental motorcycle. What is
alleged against the appellant is his negligent conduct and careless handling of the
motorcycle while the same was under his custody, which resulted in its theft. The
appellant, in his written statement had categorically denied the allegations leveled
against him and had stated that in view of the duties assigned to him by the Officer
In-charge, Panchgram Police Station, where he was so posted at the relevant point of
time, to save time, he sometimes used to proceed to his quarter situated within the
Hindustan Paper Coorporation Complex on the departmental motorcycle, when the
same is not used by any other police personnel. It was further projected that the
quarter of the appellant being so allotted within the Hindustan Paper Coorporation
Complex, the same was situated within a protected and restricted area.
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18. A perusal of the enquiry report submitted by the enquiry officer would go to
reveal that the enquiry officer after recording the depositions of the departmental
witnesses as well as the deposition of the appellant herein, had drawn the following
conclusions: -
"After careful examination of the prosecution witness and other
records, I find that the theft of departmental motor cycle could be
averted if it was handled by the delinquent constable with proper care.
He could easily kept the motor cycle inside the compound of his
quarter. So, the negligence of duty by the delinquent UBC/334 Sumitlal
Dey is found proved beyond reasonable doubt".
19. The conclusions drawn by the enquiry officer as extracted herein above, is not
supported by any findings recorded by the enquiry officer in his enquiry report. A
perusal of the said conclusions, drawn against the appellant would go to reveal that
the enquiry officer had only observed that the theft of the departmental motorcycle
could have been averted, if it was handled by the appellant with proper care. It was
further observed that the appellant could have easily kept the motorcycle inside the
compound of his quarter. Basing on the said observations, it was concluded that the
negligence of duty by the appellant was found proved beyond reasonable doubt.
20. It is to be noted that what was found proved against the appellant was only a
negligence of duty and not commission of misconduct by him in the matter. The
manner in which the said conclusion was drawn by the enquiry officer in his enquiry
report, does not inspire confidence. Further, the said conclusion also does not reflect
commission of misconduct by the appellant herein. The disciplinary authority, without
appreciating the contention raised by the appellant in his representation dated
15.05.2015, so preferred against the enquiry report, proceeded vide the order dated
22.05.2015, to impose upon the appellant the penalty of "withholding of annual
increments for 3(three) years with cumulative effect".The disciplinary authority,
without an application of mind had only proceeded to concurr with the conclusions
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reached by the enquiry officer in his enquiry report. As noticed herein above, the
enquiry officer had not concluded that the negligence on the part of the appellant, in
view of the materials coming on record also tantamounted to commission of a
misconduct by him in the matter. Accordingly, in our considered view, the disciplinary
authority before imposing upon the appellant a penalty in the matter was required to
apply his mind to the materials coming on record.
21. The appeal as preferred by the appellant in the matter on 08.06.2015, was
considered by the appellate authority and the same was disposed of vide an order
dated 07.07.2015. A perusal of the said order of the appellate authority would go to
show that the appellate authority had concluded that the charge of negligence of duty
which constitutes the misconduct has been proved in the course of the enquiry. The
said conclusion of the appellate authority is clearly perverse, inasmuch as, there is no
such conclusion and/or finding recorded by the enquiry officer in the enquiry report.
The further conclusion of the appellate authority that the appellant was not only guilty
of his negligent act but, was his such negligent act had caused financial loss to the
department in terms of loss of the motorcycle and accordingly, the punishment so
imposed upon the appellant was held to be not disproportionate to the misconduct
committed by the appellant. The said conclusion drawn by the appellate authority is
not supported by the materials coming on record in the enquiry as well as in the order
of the enquiry officer. The enquiry report reveals that there were no materials brought
on record with regard to the consequential loss occasioning on account of the theft of
motorcycle in the department. In view of the fact that the conclusion drawn by the
appellate authority in its order dated 07.07.2015, are clearly perverse to the materials
brought on record in the enquiry, the said order of the appellate authority would
warrant an interference.
22. Having drawn the above conclusions, we are of the considered view that given
the allegation leveled against the appellant in the show-cause notice dated
25.01.2015, no misconduct is borne out of the same against the appellant.
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Accordingly, on account of mere negligence being alleged against the appellant for the
theft of the departmental motorcycle in question, the said show-cause notice,
instituting a departmental proceeding against the appellant was not mandated,
inasmuch as, no misconduct is borne out in the matter against the appellant. It is also
to be noted that the contentions of the appellant that the motorcycle was kept
secured and that his quarter was within the premises of the Hindustan Paper
Corporation, which was in a restricted and protected area was not considered by the
Enquiry Officer while drawing his conclusions in the matter.
23. In view of the above conclusions reached by us, the findings of the learned
Single Judge with regard to the first contention of the appellant that no departmental
proceeding stood initiated against him with the issuance of the show-cause notice
dated 25.01.2015, and in absence of a Charge-sheet being issued, no departmental
proceeding could have been held to have been instituted against the appellant, are
upheld and reject the contention so raised by the appellant. We also having concluded
that no misconduct is borne out against the appellant from the allegation leveled upon
him in the matter, vide the show-cause notice dated 25.01.2015, and also the
conclusions drawn with regard to the enquiry report submitted by the enquiry officer
in the matter, we are of the considered view that the order dated 22.05.2015, issued
by the disciplinary authority, imposing upon the appellant the penalty of "withholding
of annual increments for 3(three) years with cumulative effect" would mandate an
interference and accordingly, the same is set aside along with the order dated
07.07.2015, passed by the appellate authority.
24. The order of the disciplinary authority dated 22.05.2015, imposing upon the
appellant the penalty of withholding of annual increments of 3(three) years with
cumulative effect having been interfered with, following the decision of the Hon'ble
Supreme Court in the case of Dharampal Arora Vs Punjab State Electricity
Board & Anr., reported in 2006 13 SCC 593, wherein it was held that once the final
order goes, all the orders from the date of Charge-sheet up to the date of passing of
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the final order become a nullity and redundant, the show-cause notice dated
21.05.2015 and the enquiry report submitted by the enquiry officer in the matter,
would also set aside.
25. In view of the above conclusions reached by us and the interference made with
the order dated 22.05.2015, the respondent authorities are now directed to
reauthorize to the appellant, the increments so withheld in terms of the penalty
imposed upon him, the respondent authorities shall, on reauthorization of the
increments so withheld, shall refix the pay of the petitioner by reckoning the
increments so withheld and thereafter, release to the petitioner the arrears of pay so
working out within a period of 3(three) months from the date of receipt of a certified
copy of this order.
26. With the above observations and directions, the present writ appeal stands
disposed of.
JUDGE CHIEF JUSTICE
Comparing Assistant
