Page No.# 1/16 vs The State Of Assam And 4 Ors
2025 Latest Caselaw 1361 Gua

Gauhati High Court

Page No.# 1/16 vs The State Of Assam And 4 Ors on 22 July, 2025

                                                               Page No.# 1/16

GAHC010148542022




                                                          2025:GAU-AS:9341

                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                       Case No. : WP(C)/6098/2022

         EX CN (WO/WT) JWNGSAR BRAHMA
         (FORCE NO. 20186059),
         SON OF RUSHEL BRAHMA,
         RESIDENT OF VILL- LANDANG CHUBURI,
         P.O. AND P.S.- HARISINGA,
         DISTRICT- UDALGURI (BTAD), ASSAM,
         PIN- 784509.



         VERSUS

         THE STATE OF ASSAM AND 4 ORS.
         REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
         GOVERNMENT OF ASSAM, HOME DEPARTMENT (P), DISPUR, GUWAHATI-
         6.

         2:THE SPECIAL DIRECTOR GENERAL OF POLICE (COMMN)
          ULUBARI
          GUWAHATI
          KAMRUP(M)
         ASSAM
          PIN- 781007.

         3:THE DIRECTOR GENERAL OF POLICE (COMN)
          ULUBARI
          GUWAHATI
          KAMRUP(M)
         ASSAM
          PIN- 781007.

         4:THE ADDL. DIRECTOR GENERAL OF POLICE (COMMN)
          ULUBARI
          GUWAHATI
                                                                               Page No.# 2/16

             KAMRUP(M)
             ASSAM
             PIN- 781007.

            5:THE SUPERINTENDENT OF POLICE (COMMN)
             HEADQUARTER-II

            ULUBARI
            GUWAHATI
            KAMRUP(M)
            ASSAM
            PIN- 781007

Advocate for the Petitioner   : MR. S J SARMAH, MR. P BOIRAGI,MR. S BARUAH

Advocate for the Respondent : GA, ASSAM,

BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

JUDGMENT & ORDER (Oral) Date : 22.07.2025

Heard Mr. S. Baruah, learned counsel appearing on behalf of the petitioner. Also heard Mr. J. K. Goswami, learned Additional Senior Government Advocate, representing the State respondents.

2. The challenge in the present proceeding is to an order dated 03.04.2021, passed by the Superintendent of Police (Communication), H.Q.-II, Ulubari, Assam as Disciplinary Authority, imposing upon the petitioner, the penalty of removal from service in pursuance to a departmental proceeding held against him in the matter.

3. The facts in brief requisite for the purpose of adjudication of the issues arising in the present proceeding is noticed herein below: -

The petitioner was enlisted as a Constable of Police (Wireless Operator/Wireless Technician) on 12.01.2018, on probation in the establishment of the Assam Police Radio Organisation (APRO in short).

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The petitioner had remained absent from his duties w.e.f. 13.03.2019 and had rejoined his services on 01.04.2019. Again the petitioner remained absent from his duties on 08.04.2019 and had only resumed his duties on 24.05.2019. The petitioner, thereafter, remained absent from 09.07.2019 to 17.08.2019. The said period of absence of the petitioner amounting to 107 days, were regularized by the respondent authorities by grant of Leave without Pay. After such regularization of the period of absence, the petitioner again remained absent from his duties w.e.f. 10.09.2019. The petitioner being a member of the disciplined police force and having remained un-authorizedly absent, the disciplinary authority proceeded to institute a disciplinary proceeding against the petitioner by way of issuance of a show-cause notice dated 23.09.2019. In the said show- cause notice, it was alleged that the petitioner had remained absent from his duties w.e.f. 10.03.2019 till 01.04.2019 and thereafter, w.e.f. 08.04.2019 till 24.05.2019 had remained un-authorizedly absent w.e.f. 10.09.2019 till the date of issuance of the show-cause.

Accordingly, the petitioner was charged with gross negligence to duty and of unbecoming conduct.

The materials brought on record reveals that the petitioner had not submitted his written statement against the said show-cause notice. Accordingly, the disciplinary authority appointed an Enquiry Officer along with a Presenting Officer in the matter. The petitioner, not having participated in the enquiry, the Enquiry Officer proceeded to hold the enquiry ex-parte against the petitioner herein.

On conclusion of the enquiry, the Enquiry Officer submitted his report and therein, conclude that the charges leveled against the petitioner vide the show-cause notice dated 23.09.2019 was established. The enquiry report dated 14.02.2020 was forwarded to the petitioner by the disciplinary authority vide communication dated 05.06.2020, requiring him to submit a representation in the matter. In the said communication dated 05.06.2020, it was highlighted that the disciplinary authority had provisionally come to a conclusion that the petitioner would be liable to be imposed with the penalty of removal from service, which shall not be a disqualification for future employment. The petitioner, on receipt of the said enquiry report, submitted his representation against the same on Page No.# 4/16

17.06.2020 and therein, the petitioner has highlighted the irregularities committed by the Enquiry Officer in the enquiry as well as the manner in which the Enquiry Officer had drawn his conclusions.

On perusal of the enquiry report as well as the representation submitted by the petitioner, the disciplinary authority vide order dated 12.08.2020, proceeded to hold that the petitioner having not participated in the enquiry so held and noticing the irregularities contained therein, it was decided to continue with the enquiry by appointing a new enquiry officer. The enquiry officer was required to submit his findings before the disciplinary authority within 45 days. The petitioner was thereafter, issued with communications, requiring to rejoin his services. The enquiry officer, now appointed vide the order dated 12.08.2020, initiated the process of enquiry and on conclusion of the same, submitted his enquiry report on 24.02.2021.

It is to be noted that in the said enquiry conducted in pursuance of the order dated 12.08.2020, the petitioner had participated therein. The enquiry officer, in his said enquiry report concluded that the charges brought against the petitioner herein, were established. The disciplinary authority, thereafter, vide communication dated 03.03.2021 had proceeded to furnish a copy of the enquiry report to the petitioner and therein, had highlighted that he had provisionally come to a conclusion that the penalty of removal from service would be required to be imposed upon the petitioner.

The petitioner was although served with the enquiry report; he had not submitted any representation against the same. Thereafter, the disciplinary authority, on consideration of the enquiry report and by agreeing with the conclusions reached therein by the enquiry officer, proceeded vide order dated 03.04.2021 to impose the penalty of removal from service upon the petitioner herein. The petitioner, thereafter, preferred an appeal against the impugned order dated 03.04.2021, however, the Appellate Authority vide order dated 03.04.2021, proceeded to reject the appeal so preferred by the petitioner, thereby, upholding the order dated 03.04.2021.

Being aggrieved, the petitioner has instituted the present proceeding.

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4. Mr. S. Baruah, learned counsel for the petitioner, after reiterating the facts noticed herein above has submitted that the disciplinary authority could not have vide the order dated 12.08.2020, directed for holding a de novo enquiry in the matter by appointing a new enquiry officer. It is submitted by the learned counsel for the petitioner that such an order was so passed, only to cover up the illegalities existing in the initial enquiry held against the petitioner. It is submitted that the respondent authorities cannot be permitted to fill up the loopholes in the enquiry by directing for a de novo enquiry in the matter.

5. Mr. Baruah, learned counsel has further submitted that in the initial enquiry, leading to the submission of the enquiry report dated 14.02.2020, procedural irregularity had occasioned therein, inasmuch as, the enquiry officer in the enquiry had examined witnesses not named in the "List of Witnesses" annexed to the show-cause notice. However, he has submitted that the said enquiry report was accepted by the disciplinary authority and it had also come to a conclusion tentatively that the penalty of removal from service was called to be imposed upon the petitioner. It is submitted by the learned counsel for the petitioner, that the petitioner, on receipt of the enquiry report had submitted his representation against the same and therein, had highlighted the irregularities so occasioning in the conduct of the enquiry against him in the matter, in pursuance to the show-cause notice dated 23.09.2019. It is submitted by Mr. Baruah that the disciplinary authority, upon receipt of the said representation from the petitioner had ordered for a de novo enquiry against the petitioner, basing on the allegations as contained in the show-cause notice dated 23.09.2019. Mr. Barua, learned counsel submits that the said course of action adopted by the disciplinary authority would go to reveal that the de novo enquiry was so ordered only with a view to cover up the loopholes that have been pointed out in the matter by the petitioner, existing in the initial enquiry held against him in pursuance to the show-cause notice dated 23.09.2019.

6. Mr. Baruah, learned counsel for the petitioner has further submitted that under the provisions of the Assam Services (Discipline & Appeal) Rules, 1964 (in short, Act of 1964), there exists no provision for a de novo enquiry by discarding the report of the enquiry Page No.# 6/16

officer already submitted. It is submitted that the enquiry envisaged is to be so carried out in terms of the provisions of Rule 9 of the said Act of 1964; and there cannot be more than one disciplinary enquiry in a matter.

7. The learned counsel for the petitioner, in support of his submission has relied upon the decisions of the Hon'ble Supreme Court in the case of K. R. Deb Vs The Collector of Central Excise, Shillong, reported in AIR 1971 SC 1447. The learned counsel has also relied upon the decision of this Court in the case of Bidyut Buragohain Vs State of Assam, reported in 2005 (3) GLT 457 and in the case of Moloy Bora Vs State of Assam and Ors., reported in 2015 (3) GLR 152.

8. In the above premises, the learned counsel for the petitioner has submitted that his Court would be pleased to set aside the impugned order dated 03.04.2021, passed by the disciplinary authority and further direct the respondent authorities to reinstate the petitioner in his service.

9. Per contra, Mr. J. K. Goswami, learned Addl. Senior Government Advocate, at the outset, has submitted that the de novo enquiry was mandated in the matter on account of the fact that serious irregularities had crept into the enquiry held against the petitioner at the first instance, in pursuance to the show-cause notice dated 23.09.2019. It is submitted by Mr. Goswami that the petitioner had also not participated in the first enquiry held against him and also has reiterated the fact that the enquiry officer had examined witnesses, who were not the listed witnesses in the show-cause notice dated 23.09.2019.

10. Mr. Goswami, learned Addl. Senior Government Advocate, has further submitted that in the de novo enquiry so held, the petitioner had participated therein and was given an opportunity to cross-examine the departmental witnesses, which he refused to do so. Further, the petitioner in spite of being afforded with an opportunity had not submitted any defence witnesses in favour of his case. Mr. Goswami, by referring to the enquiry report submitted by the enquiry officer pursuant to the de novo enquiry i.e. the enquiry report dated 24.02.2021 has submitted that, it was categorically recorded therein that the Page No.# 7/16

statements of the departmental witnesses were recorded in presence of the petitioner herein and he had not cross-examined the departmental witnesses and further, it was also recorded therein that the petitioner was asked to produce defense, if any, however, even after lapse of reasonable period of time, the petitioner had not submitted his defense in writing or, in person. The said findings recorded by the enquiry officer has not been disputed by the petitioner in the writ petition and accordingly, it is submitted that the conclusions drawn by the enquiry officer in the de novo enquiry, would not mandate interference from this Court, more particularly, in the circumstances under which the said de novo enquiry was required to be so conducted.

11. Mr. Goswami, learned counsel has also submitted that there was another departmental proceeding instituted against the petitioner for his unauthorized absence w.e.f. 09.03.2022, on account of being placed under detention in connection with Udalguri P. S. Case No. 56/2020, under Section 379/411/34 IPC. It is submitted that the period of

unauthorized absence as contained in the 2 nd departmental proceeding instituted against the petitioner, has got no connection with the period of unauthorized absence alleged against the petitioner in the show-cause notice dated 23.09.2019. It is submitted that the

2nd departmental proceeding instituted against the petitioner was so instituted vide issuance of a show-cause notice dated 18.04.2020; and on conclusion of departmental proceeding, the disciplinary authority vide order dated 19.10.2020, had imposed upon the petitioner, a penalty of withholding of 2(two) increments with cumulative effect. It is submitted by Mr. Goswami, that the petitioner being a member of a disciplined police force, by having remained unauthorizedly absent, he had rendered himself to be unfit to be retained in the police force.

12. With regard to decisions relied upon by the learned counsel for the petitioner; Mr. Goswami has submitted that the same is clearly distinguishable in view of the facts emanating in the present proceeding and accordingly, the same would not have any application to the case of the petitioner herein. Accordingly, he submits that the present petition would be called upon to be dismissed by this Court.

Page No.# 8/16

13. I have heard the learned counsels appearing for the parties and also perused the materials brought on record.

14. Given the fact that the petitioner had remained unauthorizedly absent, a departmental proceeding came to be instituted against the petitioner with the issuance of a show-cause notice dated 23.09.2019. The allegations leveled against the petitioner in the said show-cause notice dated 23.09.2019, 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 and Rule 7 of Assam Services (Discipline & Appeal) Rules 1964, as to why any of the penalties prescribed in the aforesaid rule should not be inflicted on you on the following charges based on the statement of allegation attached herewith.

That, while you were posted at Darrang Zone, during your probation period, you developed a habit of remaining frequent absence from your duty unaurthorisedly. You remained absent from your duty w.e.f. 10-03-2019 without any intimation and reported your joining on 01-04-2019 without stating any reason of your absence...

Again, you were absent from your duty unauthorisedly w.e.f. 08-04-2019. You were directed to report your joining immediately for duty at your place of posting by issuing notice vide Memo No. RR/61 (C)/2019/59 dated 18-04-2019. But, you have reported your joining only on 24-05-2019, violating this office order contained in the notice dated 18-04-19. You once again remained unathorisedly absent from your duties w.e.f. 10-09-2019 till date exhibiting gross insubordination and violation to the office order, though, you were warned not to repeat such practice in future vide this office D.O No. 892 dated 06-07-2019. Your above acts tantamount to gross negligence to duty and unbecoming conduct, rendering you liable for punishment as per procedure of law.

You are, therefore, charged with gross negligence to duty and unbecoming conduct."

15. A perusal of the said allegations would go to reveal that the petitioner had remained unauthorizedly absent w.e.f. 10.03.2019, although, in between, he had also resumed his service and thereafter, again remained absent without any authority. It is further alleged in the said show-cause notice that w.e.f. 10.09.2019, the petitioner had Page No.# 9/16

remained unauthorizedly absent till the date of issuance of the show-cause notice dated 23.09.2019. The said show-cause notice also had stipulated that the allegations leveled against the petitioner would be established by way of adducing evidence of 4(four) departmental witnesses, whose names were reflected in the "List of Witnesses", annexed to the show-cause notice. The petitioner, although, had served the said show-cause notice, he had not submitted his written statement against the same. Accordingly, the disciplinary authority proceeded to direct for holding of a departmental enquiry in the matter and accordingly, Shri N. K. Medhi, Deputy Superintendent of Police (Communication) H.Q., came to be appointed as the enquiry officer. The enquiry officer, thereafter, initiated the enquiry.

16. It is to be noted that the petitioner had not participated in the said enquiry process. From the materials brought on record, it is not discernible as to whether the enquiry officer had issued notices to the petitioner for participating in the said enquiry, inasmuch as, there is no disclosure of any such steps being taken by the enquiry officer in the matter. However, the enquiry officer in his enquiry report had recorded a finding to the effect that the petitioner was informed to submit his defense, if any, in written or in-person within 7 days vide a communication dated 29.01.2020, however, the petitioner had not respondent to the same and accordingly, the enquiry was proceeded ex-parte against the petitioner.

17. On conclusion of the enquiry after examination of the departmental witnesses, the enquiry officer submitted his enquiry report on 14.02.2020 and therein, held that the petitioner is a habitual absentee during his probation period and in spite of being issued with repeated notices, he had not joined his duties. Basing on the said evidences, the charges leveled against the petitioner was established. It is relevant to note that from amongst the 4(four) listed departmental witnesses in the show-cause notice dated 23.09.2019, only 2(two) witnesses were so examined i.e. Shri Bhaba Kr Borah, R.I. APRO HQ and Rakesh Majumdar, Inspector (T) Darrang. The enquiry officer had examined further 2(two) other witnesses, who were not the listed witnesses and there is no indication in the enquiry report as to why the witnesses not listed in the show-cause Page No.# 10/16

notice dated 23.09.2019 was required to be so examined. The enquiry report dated 14.02.2020 was forwarded by the disciplinary authority to the petitioner vide communication dated 05.06.2020. In the said communication dated 05.06.2020, the disciplinary authority had disclosed that he had provisionally come to a conclusion that the penalty of removal from service is required to be so imposed upon the petitioner, however, the petitioner was required to show-cause, if any, against the proposed action and submit a representation in the matter. The petitioner, accordingly, on 17.06.2020, submitted his representation against the enquiry report and highlighted that out of the 4 listed departmental witnesses, only Shri Bhaba Kr Borah, R.I. APRO HQ and Rakesh Majumdar, Inspector (T) Darrang were examined.

18. The learned counsel for the petitioner, during the hearing of the present proceeding has further stated that the enquiry officer had examined two other persons as witnesses, although, they were not named in the list of witnesses annexed to the show-cause notice dated 23.09.2019 and further, that there was no disclosure in the enquiry report as to why the said 2 witnesses not listed in the list of witnesses, annexed to the show-cause notice dated 23.09.2019, were required to be so examined. Basing on the representation as submitted by the petitioner against the enquiry report dated 14.02.2020, the disciplinary authority, on perusal of the enquiry report, arrived at a decision for re-examining the matter by appointing a new enquiry officer. Accordingly, Shri S. Deka, Addl. Superintendent of Police (Communication), HQ, Assam was appointed as the new Enquiry Officer and Rajiv Lochan Medhi, Inspector (T), APRO, HQ, was appointed as the Presenting Officer. Thereafter, the enquiry officer, proceeded to conduct an enquiry into the allegations leveled against the petitioner in the show-cause notice dated 23.09.2019. The petitioner participated in the said enquiry proceeding without any objection being raised in the matter by him. On conclusion of the enquiry, the enquiry officer submitted his enquiry report in the matter on 24.02.2021.

19. On a perusal of the enquiry report dated 24.02.2021, it is seen that the departmental witnesses examined in the enquiry, were the witnesses included in the list Page No.# 11/16

of witnesses annexed with the show-cause notice dated 23.09.2019. The enquiry report further goes to reveal that the petitioner although granted an opportunity had refused to cross-examine the departmental witnesses. It is also recorded in the enquiry report that the petitioner, in spite of being granted opportunity to place his defense in the matter had not responded to such communication. Accordingly, the enquiry officer, basing on the materials coming on record in the enquiry, recorded the following findings: -

"That, while CN (WO/WT) 20186059 Jwngsar Brahma was posted at Darrang Zone, during his probation period, he developed a habit of remaining frequent absence from his duty unauthorisedly.

He remained absent from his duty w.e.f. 10-03-2019 without any intimation and reported his joining on 01-04-2019 without stating any reason of his absence.

Again, he was absent from his duty unauthorisedly w.e.f. 08-04-2019. He was directed to report his joining immediately for duty at his place of posting by issuing notice vide Memo No. RR/61(C)/2019/59 dated 18-04-2019. But, he has reported his joining only on 24-05-2019, violating office order contained in the notice dated 18-04-2019.

He once again remained unauthorisedly absent from his duties w.e.f. 10-09-2019 till date exhibiting gross insubordination and violation to the office order, though he was warned not to repeat such practice in future vide office D. O. No. 892 dated 06-07-2019."

20. Basing on the said findings, the enquiry officer held the charges leveled against the petitioner vide the show-cause notice dated 23.09.2019 to have been established. On submission of the enquiry report, the disciplinary authority had forwarded the same to the petitioner herein vide communication dated 03.03.2021 and therein, had also indicated that he had provisionally come to a conclusion that in view of the findings of the enquiry officer, the penalty of removal from service is to be imposed upon the petitioner.

21. It is seen that the petitioner, in spite of being in receipt of the said enquiry report had not submitted any representation against the same. Accordingly, the disciplinary authority vide order dated 03.04.2021, after examining the findings of the enquiry officer, Page No.# 12/16

on agreeing with the same, proceeded to impose upon the petitioner the penalty of removal from service.

22. The learned counsel for the petitioner, in the present proceeding, has submitted that the disciplinary authority could not have proceeded to order for a de novo enquiry in the matter and the same being so done to cover up the illegalities occasioning in the first enquiry held against the petitioner, the subsequent enquiry held against the petitioner being non est in the eye of the law, no penalty basing on the same, could have been imposed upon the petitioner herein.

23. It is a settled position of law that provisions of Rule 9 of the said Act of 1964, only mandates a single enquiry into the allegations leveled against a delinquent. The Hon'ble Supreme Court in the case of K. R. Deb(supra), in this connection, had recorded the following conclusions: -

"11. A number of points have been raised before us but we need only mention one point, viz, that the collector had no authority to appoint Shri K. P. Patnaik to inquire into the charge after the Inquiry Officers had reported in his favour. It was urged before us that such an inquiry is not contemplated by the Central Civil Services (Classification, Control and Appeal) Rules, 1957. (It was contended that Rule 15 of the Classification and Control Rules did not contemplate successive inquries, and at any rate, even if it contemplated successive inquiries there was no provision for setting aside earlier inquiries without giving any reason whatsoever. It was further contended that the order dated Feb 13, 1962 was mala fide.

12. Rule 15 (1) of the Classification and Control and Appeal Rules reads as follows:

"(1) Without prejudice to the provision of the Public Servants (Inquiry) Act, 1950, no order imposing on à Government servant any of the penalties specified in Clauses (iv) to (vii) of Rule 13 shall be pissed'except after an inquiry, held as far as may be, in the manner hereinafter provided."

Clause (2) of Rule 15 provides for framing of charges and communication in writing to the Government servant of these charges with the statement of allegations on Page No.# 13/16

which they are based, and it also provides for a written statement of defence. Under Clause (3) the Government servant is entitled to inspect and take extracts from such official records as he may specify, subject to certain exceptions. Under Clause (4) on receipt of the written statement of defence the Disciplinary sciplinary Authority may itself enquire into such of the charges as are not admitted, or if it considers it necessary so to do, appoint a Board of Inquiry or an Inquiring Officer for the purpose. Clause (7) provides that at the conclusion of the inquiry, the Inquiring Authority shall prepare a report of the inquiry; recording its findings on each of the charges together with reasons therefor. If in the opinion of such authority the proceedings of the inquiry establish charges different from those originally framed it may record findings on such charges provided that findings on such charges shall not be recorded unless the Government servant has admitted the facts constituting them or has had an opportunity of defending himself against them. Under Clause (9) "the Disciplinary Authority shall, if it is not the Inquiring Authority, consider the record of the inquiry and record its findings on each charge." Clause (10) provides for issue of show-cause notice.

13. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry became some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under rule

9."

24. A perusal of the conclusions drawn by the Hon'ble Supreme Court in the case of K. R. Deb (supra) would go to show that in the enquiry report submitted after the first enquiry held against the appellant therein, the enquiry officer had returned a finding of 'not guilty' against the said appellant. It is under that circumstance, that the Hon'ble Supreme Court has held that the provisions of the CCS CCA, Rules 1957, did not contemplate successive enquiries and if it contemplates successive enquiries, there was Page No.# 14/16

no provision for setting aside the earlier enquiries without giving any reason whatsoever.

25. The Hon'ble Supreme Court further held that in a case, it may be possible that there has not been proper enquiry because some serious defect has crept into the enquiry or, some important witnesses were not available at the time of enquiry or, were not examined for some other reasons, the disciplinary authority may ask the enquiry officer to record evidence. However, the provisions holding the field in the said case, did not contemplate setting aside previous enquiries on the ground that the report of the enquiry officer or the officers did not appeal to the disciplinary authority.

26. Applying the decisions of K. R. Deb (supra) to the facts of the present case, it is seen that the initial enquiry held against the petitioner in pursuance to the show-cause dated 23.09.2019; which had culminated in the submission of the enquiry dated 14.02.2020, was so conducted in clear violation of the procedure mandated for such conduct of enquiry. The enquiry officer had examined witnesses, whose names were not included in the list of witnesses annexed to the show-cause notice dated 23.09.2019. Further, the enquiry officer had not set out reasons in his enquiry report, as to the necessity for requiring witnesses not listed in the list of witnesses, annexed to the show- cause notice dated 23.09.2019 to depose in the enquiry. Further, it is seen that the petitioner had also not participated in the said enquiry proceedings. The enquiry report being furnished to the petitioner, he had submitted a representation thereon and had highlighted the illegalities committed in the matter. The disciplinary authority, on examining the enquiry report having found the same to have been so conducted, not in accordance with the procedure mandated in this connection, proceeded to discard the same and appointed a new enquiry officer to conduct the enquiry in the matter. What is to be noted is that the petitioner had participated in the de novo enquiry so held without raising any objection.

27. As noticed herein above, the second enquiry proceeded with the examination of the departmental witnesses, who were named with the list of witnesses annexed with the show-cause notice dated 23.09.2019. Further, it is seen that the petitioner was afforded Page No.# 15/16

reasonable opportunity to cross-examine the departmental witnesses, as well as to submit his defense in the matter, he had not availed.

28. In view of the said facts emanating in the matter, this Court is of the considered view that the decision of the Hon'ble Supreme Court in the case of K. R. Deb (supra) would have got no application to the facts emanating in the said proceeding and the same is distinguishable basing on the facts emanating in the present writ petition.

29. It is to be noted that in the first enquiry report submitted on 14.02.2020, the petitioner was not held to be not guilty of the charges leveled against him in the show- cause notice dated 23.09.2019. The other two decisions relied upon by the petitioner, passed by this Court in the case of Bidyut Buragohain (supra) and Moloy Bora (supra), has been perused by this Court and on perusal, it is seen that the said cases also would not advance the case of the petitioner herein and would be clearly distinguishable, basing on the facts emanating in the present proceedings. In both the said cases, the initial enquiry report was discarded, as the same was not found to be satisfactory to the disciplinary authority, inasmuch as, the enquiry reports had exonerated the petitioners therein from the charges so leveled against them. However, in the present case, it is seen that in the first enquiry report, the petitioner herein was held to be guilty of the charges leveled against him.

30. It is to be noted that the allegations leveled against the petitioner is of unauthorized absence. The petitioner is the member of a disciplined police force and the allegations leveled against the petitioner and that too during his probation period, having been established, would not mandate the retention of the petitioner in his service. Accordingly, this Court is of the considered view that the penalty of removal from service as imposed upon the petitioner, cannot also be said to be disproportionate to the allegations leveled against the petitioner in the matter.

31. In view of the above discussions, this Court is of the considered view that the

petitioner, having participated in the 2nd enquiry without any objection and admittedly,

the 1st enquiry, leading to the submission of the enquiry report dated 14.02.2020, being Page No.# 16/16

not sustainable on account of the illegalities creeping therein and discussed herein above, the penalty so imposed upon the petitioner by the disciplinary authority vide the impugned order dated 03.04.2021, basing on the enquiry report dated 24.02.2021 would not mandate interference from this Court. Accordingly, the present writ petition is held to be devoid of any merit and consequently, the same stands dismissed.

JUDGE

Comparing Assistant