Nobin Kemprai vs The North Cachar Hills Autonomous ...
2025 Latest Caselaw 5436 Gua

Gauhati High Court

Nobin Kemprai vs The North Cachar Hills Autonomous ... on 17 June, 2025

Author: Soumitra Saikia

Bench: Soumitra Saikia

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GAHC010167792021




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

                         Case No. : WP(C)/5477/2021


         NOBIN KEMPRAI
         S/O LATE RAJKUMAR KEMPRAI
         R/O DIBARAI
         P.O.-HAFLONG
         DIST-DIMA HASAO
         ASSAM


          VERSUS

         THE NORTH CACHAR HILLS AUTONOMOUS COUNCIL AND 3 ORS
         HAFLONG
         REPRESENTED HEREIN BY ITS PRINCIPAL SECRETARY
         HAFLONG
         DIMA HASAO
         ASSAM

         2:THE PRINCIPAL SECRETARY (N)
          N.C. HILLS AUTONOMOUS COUNCIL
         HAFLONG
          DIST-DIMA HASAO
          PIN-788819

         3:THE CHIEF EXECUTIVE MEMBER (CEM)
         N.C. HILLS AUTONOMOUS COUNCIL
         HAFLONG
         DIST- DIMA HASAO
         PIN-788819

          4:THE DIVISIONAL FOREST OFFICER
          DIMA HASAO FOREST DIVISION (EAST)
         P.O.-HAFLONG
          DIST-DIMA HASAO
          PIN-788819
                                                                      Page No.# 2/11

           ------------
           Advocate for : MR S BORTHAKUR
           Advocate for : SC
           N C HILLS appearing for THE NORTH CACHAR HILLS AUTONOMOUS
           COUNCIL AND 3 ORS



                                  BEFORE
                   HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

                                     ORDER

17.06.2025

Heard Mr. S. Borthakur, learned counsel for the petitioner. Also heard Mr. R.M. Das, learned Standing Counsel for the NC Hills Autonomous Council.

2. This writ petition has been filed by the petitioner, who was serving as a Forester 1 under the NC Hills Autonomous Council.

3. That disciplinary proceedings were initiated against the petitioner and the petitioner was placed under suspension by order dated 10.07.2017. The proceedings continued before the Enquiry Officer. A preliminary enquiry was conducted, and certain explanations were sought from the petitioner.

4. As the authority was not satisfied with the explanations furnished, it initiated formal proceedings by order dated 08.10.2017. The Enquiry Officer was accordingly appointed. According to the petitioner, the enquiry proceedings continued; however, the culmination of the enquiry proceedings was never intimated to him. Being aggrieved, the petitioner approached this Court praying for appropriate relief.

5. WP(C)/7206/2019 was filed by the petitioner and this Court, vide order dated 04.11.2019, disposed of the writ petition with a direction that the petitioner file a necessary appeal before the Appellate Authority, as during the Page No.# 3/11

course of the hearing it was submitted by the learned Standing Counsel for the NC Hills Autonomous Council that the Appellate Authority is the Chief Executive Member of the NC Hills Autonomous Council.

6. Pursuant to the order passed by this Court, the writ petitioner filed his appeals before the Appellate Authority. It is the case of the petitioner, as projected before this Court, that pursuant to the culmination of the disciplinary enquiry proceedings, the enquiry report furnished by the Enquiry Officer was never served on them. Consequently, he was kept in the dark regarding the conclusions and findings arrived at by the Enquiry Officer.

7. In the appeals preferred before the Appellate Authority, one of the specific grounds taken by the petitioner was that a copy of the Enquiry Officer's report had not been furnished to them. The Appellate Authority, thereafter, upon consideration of the appeals, disposed of the same by an order dated 29.01.2021. The Appellate Authority came to the following conclusions:

1. The delinquent appellants led the Dhama programme on 10.07.2017 without taking the prior permission of the council and wrecking havoc and creating chaotic situation by taking the course of violence and destruction of public property leading to loss of public exchequer.

2. Physically stopping employees and public from entering the council premises, manhandling the employees and public and indulging in other illegal activities detrimental to functioning of the N.C Hills Autonomous Council thereby disrupting the normal functioning of the Council leading to huge loss of council revenue generation.

3. The Council employees' Union led by the appellants had taken forceful and unauthorized steps to close down the office chamber of the D.F.O, Dima Hasao Page No.# 4/11

Forest Division (W).

4. It has been further observed from the records that the disciplinary authority has conducted the proceedings as per the prescribed rules and procedure under the Assam Services (Discipline and Appeal) Rules, 1964.

8. Being aggrieved, the present writ petition has been filed on the ground that although the enquiry was conducted under the provisions of the Assam Services (Discipline and Appeal) Rules, 1964, the petitioner was imposed with the punishment of dismissal/termination from service, which constitutes a major penalty. However, the procedure prescribed under Rule 9 of the said Rules was not followed by the concerned authorities. The petitioner was not afforded the opportunity to examine or cross-examine the witnesses.

9. Furthermore, the mandatory requirement under Rule 9-A of the 1964 Rules, which provides that a copy of the enquiry report must be furnished to the delinquent employee, was violated, as no copy of the enquiry report was served upon the petitioner. Even in the counter affidavit filed by the respondents, there is no indication that the enquiry report was furnished to the petitioner, thereby reinforcing the procedural lapses committed by the authorities.

10. The learned counsel for the petitioner submits that the enquiry proceedings conducted against the writ petitioner was in complete violation of the provisions of the Assam Services (Discipline and Appeal) Rules, 1964.

Accordingly, it is submitted that the said proceedings deserve to be interfered with, set aside, and quashed, and that the petitioner be reinstated in service to his original post with all consequential benefits.

11. Mr. R.M. Das, learned Standing Counsel for the NC Hills Autonomous Council, on the other hand, disputes the contentions of the learned counsel for Page No.# 5/11

the petitioner. He submits that the procedure prescribed under the Assam Services (Discipline and Appeal) Rules, 1964 was duly followed and that a copy of the enquiry report was served on each of the petitioner through the Peon Book. Therefore, the contention of the writ petitioner that the enquiry report was not furnished is incorrect. He further submits that the enquiry proceedings were conducted strictly in accordance with the provisions of the said Rules. Sufficient opportunity was granted to the petitioner to present his case, and thereafter, the Enquiry Officer concluded the enquiry and submitted his report. Based on the findings in the report and the materials available on record, the disciplinary authority passed the order dated 19.12.2018 terminating the services of the writ petitioner.

12. Additionally, in compliance with the directions of this Court passed in WP(C) No. WP(C)/7120/2019 and others dated 03.10.2019 the writ petitioner preferred appeals before the Appellate Authority. Upon due consideration of the entire matter, the Appellate Authority upheld the order passed by the disciplinary authority. As such, there was no procedural irregularity either in the conduct of the enquiry or in the orders passed by the disciplinary authority and upheld by the Appellate Authority. Therefore, the present writ petition is devoid of merit and is liable to be dismissed.

13. The learned counsel for the parties have been heard.

14. The dispute in the present case revolves around the issue of whether the enquiry report was duly furnished to the petitioner. Pursuant to this Court's direction, the respondents were directed to produce the relevant records. Though the records were produced belatedly before the Court, they have been duly examined and perused. The pleadings available on record have also been carefully considered.

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15. From the records, it is seen that the enquiry report dated 12.10.2018 is indeed available. However, the report bears the signature of the Enquiry Officer only on the last page; the other pages remain unsigned. Furthermore, the note sheet available in the departmental file contains no indication or reference to any decision taken by the concerned authority to furnish a copy of the enquiry report to the petitioner through the Peon Book, as claimed by the learned counsel for the respondents.

16. While the affidavit filed before this Court includes a photocopy of an extract from the Peon Book, which purportedly shows that a copy of the enquiry report and certain documents were furnished on 12.10.2018, the extract does not bear the signature of the petitioner as acknowledgment of receipt. The Peon Book reflects that Communication No. NCHAC/GAD/Esstt/(D&A)/93/2017-18 was shown to be served through the Peon Book, but there is no corresponding reference number on the enquiry report itself to establish a clear link between the two. Although the date of communication in the Peon Book is shown as 12.10.2018 and the enquiry report placed on record also bears the date 12.10.2018 but there is no reference number on the Enquiry Report. The reference number mentioned in the Peon Book does not correspond with any identifiable or verifiable communication in the departmental records placed before the Court.

17. Coming to the question of whether the provisions of the Assam Services (Discipline and Appeal) Rules, 1964 were duly followed by the Department, it is noted that the appellate authority, in its impugned order--specifically at Serial No. 4 of the conclusion--has categorically held that the proceedings were conducted in accordance with the prescribed rules and procedures under the Assam Services (Discipline and Appeal) Rules, 1964.

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18. If that is the case, then reference to Rule 9-A of the said Rules becomes relevant and necessary:

"9A. Communication of orders- Orders made by the Disciplinary Authority shall be communicated to the Government servant who shall also be supplied with a copy of the report of the inquiry, if any, held by the Disciplinary Authority and a copy its findings on each charge, or where the Disciplinary Authority is not the Inquiring Authority, a copy of the report of the Inquiring Authority and a statement of the findings of the Disciplinary Authority together with brief reasons for its disagreements, if any, with the findings of the Inquiring Authority (unless they have already been supplied to him) and also a copy of the advice, if any, given by the Commission, and where the Disciplinary Authority has not accepted the advice of the Commission, a brief statement of the reasons for such non-acceptance".

19. Perusal of Rule 9-A of the Assam Services (Discipline and Appeal) Rules, 1964 clearly reveals that a copy of the enquiry report must be furnished to the delinquent officer. This provision was incorporated into the Rules pursuant to the judgment of the Hon'ble Supreme Court in Managing Director, ECIL, Hyderabad & Others vs. B. Karunakar & Others, reported in (1993) 4 SCC 727, as well as in subsequent judgments.

20. In the said judgment, the Apex Court laid down the settled principle of law that a delinquent officer is entitled to be supplied with a copy of the enquiry report. This entitlement is fundamental to ensure that the delinquent officer is made aware of the findings of the Enquiry Officer vis-à-vis the charges framed against him. Such disclosure enables the delinquent officer to effectively respond, including by taking necessary steps such as filing a representation, appeal, or initiating other appropriate remedies.

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21. In the facts of the case although the petitioner preferred an appeal, the same was stated to have been filed without perusal of the enquiry reports, from the appeal memo which is enclosed to the writ petitioner as Annexure-F (page 29 of the writ petition) in the appeal memo, it is seen that there is a specific ground taken by the petitioner inter-alia that no copy of enquiry report was furnished to the petitioner. This ground prima-facie does not appear to have been addressed by the appellate authority in its order dated 29.01.2021. Needless to say that in view of the law laid down by the Apex Court in Managing Director, Ecil, Hyderabad & Others Vs. B. Karunakar & Others reported

in 1993 4 SCC 727 as well as the specific provisions of Rules 9-A of the Assam Discipline and Appeal Rule, 1964 it is mandatory for the respondents department to supply copy of the enquiry report to all the delinquent officers. This aspect of the matter ought to have been addressed by the appellate authority which in the opinion of the Court was not considered as is evident from a bare perusal of the order dated 29.01.2021. If the copy of the enquiry report was not supplied or furnished to the delinquent officer, and if prejudice thereby is found to have been caused to such delinquent officer; in terms of the Judgment rendered by the Apex Court in Managing Director, Ecil, Hyderabad & Others Vs. B. Karunakar & Others reported in 1993 4 SCC 727, the enquiry proceedings are to be interfered with and remitted to the department to commence it from the stage after furnishing the enquiry report. In view of such law laid down by the Apex Court which is binding on all the authorities of the State, it was incumbent on the departmental authorities to ensure supply of an enquiry report. Since this question has been specifically raised in the appeal, it was also incumbent of the appellate authority to arrive at the specific finding as to whether the enquiry report was supplied to the writ petitioner or not. If the Page No.# 9/11

enquiry report was found to have not been supplied to the delinquent officer, then in terms of the law laid down by the Managing Director, Ecil, Hyderabad &

Others Vs. B. Karunakar & Others reported in 1993 4 SCC 727, the directions should have been issued by the appellate authority to the respondent authority to ensure supply copy of the Enquiry report to the delinquent officer by interfering with the orders passed and further directing the proceedings to commence from that stage again. However, such findings have been returned by the appellate authority. The question whether the petitioner was supplied with the enquiry report therefore remained unanswered by the Appellate Authority.

22. Since the records placed before this Court do not prima facie reveal that the enquiry report was furnished to the writ petitioner and in the absence of any specific office note reflecting the steps taken by the respondent authority, as well as the alteration of the original records pertaining to the Peon Book, it is not possible for this Court to ascertain whether service of the enquiry report was duly effected on the delinquent officers through the Peon Book.

23. The extract of the Peon Book, which has been enclosed as Annexure-2 to the additional affidavit filed by the respondents, is a photocopy, and in the absence of the original, it is not possible to ascertain its authenticity or conclusively determine the manner of service. Moreover, in the remarks column of the Peon Book, besides the absence of the signature of the recipient, namely the delinquent officers, there is an endorsement by hand stating "sent by post."

24. Thus, it remains unclear whether the enquiry reports, which are stated to have been supplied to the delinquent officers, were actually served through the Peon Book or sent by post. If the reports were sent by post instead of being Page No.# 10/11

served through the Peon Book, or in addition to service by the Peon Book, the particulars of the postal receipts are also not available on record.

25. Under such circumstances, this Court is of the view that the ends of justice will be met by interfering with the impugned order of the Appellate Authority dated 29.01.2021 and remanding the matter back to the Appellate Authority for fresh consideration. The Appellate Authority shall decide the issue in light of the provisions of Rule 9-A of the Assam Services (Discipline and Appeal) Rules, 1964, as well as the law laid down by the Hon'ble Apex Court in Managing Director, ECIL, Hyderabad & Others vs. B. Karunakar & Others , reported in (1993) 4 SCC 727.

26. The Appellate Authority is directed to pass a reasoned and speaking order specifically addressing whether the petitioner was duly served with the enquiry report upon a detailed examinations of the records of the Department. This direction is imperative in view of the fact that the writ petitioner has taken a specific plea in his appeal memo that the enquiry report was not supplied to them--a plea which, from a perusal of the order dated 29.01.2021, appears to have not been considered or answered by the Appellate Authority.

27. In terms of the above, the writ petition is allowed. The impugned order dated 29.01.2021 passed by the Appellate Authority is hereby set aside, and the matter is remanded back to the Appellate Authority for fresh consideration.

28. The Appellate Authority shall decide the matter afresh within a period of 30 (thirty) days from the date of receipt of a certified copy of this order and shall pass appropriate orders. While deciding the matter, the Appellate Authority shall also consider the aspect of proportionality of the punishment imposed on the writ petitioner.

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29. Writ petitions accordingly disposed of in terms of the above.

30. The records placed before the Court are hereby returned back.

JUDGE

Comparing Assistant