Gauhati High Court
Page No.# 1/18 vs The State Of Assam And Ors on 5 June, 2025
Page No.# 1/18
GAHC010122082012
2025:GAU-AS:7494
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4283/2012
ARUN KONWAR and ANR.
S/O SURENDRA KONWAR R/O BANGMURIA, KONWAR GAON P.S.
SIMALUGURI, SIBSAGAR
2: SRI ACHYUT HATIMURIA
S/O LT. SUKRAM HATIMURIA R/O BANGMURIA
KONWAR GAON
P.S. SIMALUGURI
SIBSAGAR
VERSUS
THE STATE OF ASSAM AND ORS
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
HOME DEPARTMENT.
2:DY. INSPECTOR GENERAL OF POLICE
CR DIPHU
KARBI ANGLONG PIN-
3:SUPERINTENDENT OF POLICE
GOLAGHAT
PIN-
4:SUPERINTENDENT OF POLICE
JORHAT
PIN-
5:COMMANDANT
1ST A.P. BN. LIGIRIPUKHURI
NAZIRA
Page No.# 2/18
SIBSAGAR
PIN-
6:SUPERINTENDENT OF POLICE
DIBRUGARH
PIN
Advocate for the Petitioner : MS.A MAHANTA, MR. R C BARPATRAGOHAIN,MR. R D
PHUKAN,MRS. S BORPATRA GOHAIN,MR. P P BARUAH,MR.U P CHALIHA,MR.D P
CHALIHA
Advocate for the Respondent : , ,GA, ASSAM
Linked Case : MC/81/2024
ARUN KONWAR and ANR.
S/O SURENDRA KONWAR R/O BANGMURIA
KONWAR GAON P.S. SIMALUGURI
SIBSAGAR
VERSUS
THE STATE OF ASSAM AND ORS
S/O SURENDRA KONWAR R/O BANGMURIA
KONWAR GAON P.S. SIMALUGURI
SIBSAGAR
------------
Advocate for : DR R C BORPATRA GOHAIN
Advocate for : GA
ASSAM appearing for THE STATE OF ASSAM AND ORS
Linked Case : I.A.(Civil)/3640/2024
ARUN KONWAR AND ANR
S/O SURENDRA KONWAR R/O BANGMURIA
KONWAR GAON P.S. SIMALUGURI
SIBSAGAR
Page No.# 3/18
2: SRI ACHYUT HATIMURIA
S/O LT. SUKRAM HATIMURIA R/O BANGMURIA
KONWAR GAON
P.S. SIMALUGURI
SIBSAGAR.
VERSUS
THE STATE OF ASSAM AND ORS
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
HOME DEPARTMENT.
2:DY. INSPECTOR GENERAL OF POLICE
CR DIPHU
KARBI ANGLONG PIN-782460
3:SUPERINTENDENT OF POLICE
GOLAGHAT
PIN-785621
4:SUPERINTENDENT OF POLICE
JORHAT
PIN-785001
5:COMMANDANT
1ST A.P. BN. LIGIRIPUKHURI
NAZIRA
SIBSAGAR
PIN- 785685
6:SUPERINTENDENT OF POLICE
DIBRUGARH
PIN-786001
------------
Advocate for : DR R C BORPATRA GOHAIN
Advocate for : GA
ASSAM appearing for THE STATE OF ASSAM AND ORS
BEFORE
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
Page No.# 4/18
JUDGMENT AND ORDER (ORAL)
Date of hearing : 05.06.2025.
Date of judgment : 05.06.2025.
Heard Mr. R.C. Barpatragohain, learned Senior Counsel assisted by Mr.
R.D. Phukan, learned counsel for the petitioners. Also heard Mr. T.C. Chutia,
learned Addl. Senior Government Advocate for the State respondents.
2. By way of this writ petition under Article 226 of the Constitution of India,
the petitioners is assailing the impugned Order of discharge from their service
and for reinstatement thereof.
3. The brief facts of the case is that while the petitioners were serving as
Constable in Police Department, a case 37/94 under the Terrorist & Disruptive
Activities (Prevention) Act, 1987 ( hereinafter referred to as TADA Act) was
registered as Simaluguri PS, wherein the petitioners alongwith others have been
named as accused. In view of the allegation in the criminal case to the effect
that the petitioners were having close contact with ULFA and they were
indulging in the activities of illegal outfit, the respondent No. 5 by his order
dated 01.04.1994 discharged the petitioner No. 2 from his service w.e.f.
31.03.1994. However, the respondent No. 3 initiated a departmental proceeding
under the Departmental Proceeding No. 3/94 vide Order dated 24.06.1994
against the petitioner No. 1 alleging that he was found involved in Simaluguri PS
Case No. 37/1994 under Section 3/4 of the TADA Act. Thereafter, upon
completion of the inquiry, the respondent No. 3 vide Order dated 27.10.2004
discharged the petitioner No. 1 from his service.
Page No.# 5/18
4. Thereafter, the petitioner No. 1 submitted an appeal before the respondent
No. 2. However, the same was rejected by Order dated 27.04.2006. In the
meantime, in the criminal case, the chargesheet was submitted against 6
accused persons including the petitioners and upon completion of the trial, the
Criminal Court by Judgment and Order dated 21.07.2012 acquitted all the
accused persons including the petitioners from the charges leveled against
them.
5. Being acquitted from the criminal case, the instant writ petition has been
filed for setting aside the impugned discharged order.
6. Mr. R.C. Barpatragohain, learned Senior Counsel submits that since the
petitioners have been honorably acquitted from the charges framed against
them in the criminal case, the departmental proceeding being based on the
same charges, the order of discharged is not justifiable. He further submits that
the charges in the criminal as well as departmental proceedings being identical,
the impugned order of discharge from service warrants interference from this
Court under Article 226 of the Constitution of India.
In support of the aforesaid submissions, he relies upon the following
decisions:-
1) G.M. Tank Vs. State of Gujarat & Others, reported in (2006) 5
SCC 446.
2) Ram Lal Vs. State of Rajasthan & Others, reported in (2024) 1
SCC 175.
Page No.# 6/18
3) Maharana Pratap Singh Vs. State of Bihar & Others, reported
in 2025 SCC Online SC 890.
4) Deputy Inspector General of Police & Another Vs. S.
Samuthiram, reported in (2013) 1 SCC 598.
5) Rajendra Yadav Vs. State of Madhya Pradesh & Others,
reported in (2013) 3 SCC 73.
7. He further submits that in respect of Sri Dipen Duarah, who was named
as accused No. 3 in the criminal case though was initially placed under
suspension, no departmental proceedings or any other disciplinary action was
initiated against him and the respondent No. 4 by Order dated 31.12.2008
revoked the order of suspension and reinstated the aforesaid person. He
accordingly submits that there being a discrimination in conducting
departmental proceedings inasmuch as a person with similar charges was
reinstated after trial, impugned order of discharge is bad in law.
8. In support of the aforesaid submission, he relies upon the decision of the
Apex Court in the case of Delhi Transport Corporation Vs. D.T.C. Mazdoor
Congress & Others reported in 1991 Supp (1) SCC 600. He further submits
that the petitioners are entitled to adequate compensation for their suffering
due to the arbitrary, unjust and unreasonable acts of the respondent authority
and to buttress the aforesaid submission, he relies upon the decision of the
Apex Court in the case of Maharana Pratap Singh Vs. State of Bihar &
Others reported in 2025 SCC Online SC 890.
9. Per contra, Mr. T.C. Chutia, learned Addl. Senior Government Advocate
Page No.# 7/18
submits that unless and until the accused is acquitted honorably and completely
of the charges, the power of the disciplinary authorities to continue the
departmental proceeding inquiry is not taken away nor its discretion in any way
is fettered.
In support of the aforesaid submission, he relies upon the following
decisions of the Apex Court:-
1) Corporation of the city of Nagpur Vs. Ramchandra, reported in
(1981) 2 SCC 714.
2) G.M. Tank Vs. State of Gujarat, reported in (2006) 5 SCC
446.
3) Ajit Kumar Nag Vs. G.M. Indian Oil Corporation, reported in
(2005) 7 SCC 764.
10. I have given my prudent consideration to the arguments advanced by
the learned Senior Counsel appearing for the petitioners as well as the learned
Addl. Senior Government Advocate for the State and have perused the materials
available on record. I have also duly considered the case laws cited at the bar.
11. It appears that the writ petitioners have been discharged from their
services while they were serving as Constable in the Police Department on the
basis of the allegation that they were having close contact with ULFA and were
indulging in the activities of illegal outfit.
12. It further appears that upon the petitioners being acquitted and
exonerated from the aforesaid charges by the criminal Court, the instant writ
Page No.# 8/18
petition has been filed seeking setting aside of the impugned discharge order.
The short question that arises for determination in this writ petition is whether
the exoneration/acquittal of the petitioners in the criminal case would render the
impugned discharge orders issued to the petitioners unjustified.
13. Apt at the outset to refer to the First Show Cause Notice issued to the
petitioner No. 1 by Notice dated 24.06.1994, which reads as hereunder:-
"FIRST SHOW CAUSE NOTICE.
To,
UBC 49 Arun Konwar (U/Suspension)
Golaghat :D.E.F.
You are hereby required to show cause U/S 7 of the Police Act(Act Vof 1861)
read with rule 66 of A.P.M. Pt. III and Article 311 of the Constitution of India as to why
any of the penslting prescribed in the aforesaid rules should not be inflicted on you on
the following charged based on the statement of allegation attached herewith.
That while you were serving as U.B. Constable in Golaghat D.E.F you were
found involved in Simaluguri P.S. Case No. 37/94 U/S 3/4 T.A.D(P) Act. You made a
confessional statement before the S.P. Sibsagar for having close contact with the ULFA
activists as an active member of Bengmuria Unit of ULFA, Accordingly you were
arrested and forwarded in to Judicial custody.
Being on active member of the ULFA, you managed your appointment in the
Police deptt, with a view to bring disgrace to the Police deptt. as well as espionage for
the ULFA.
Thus, by acting in a manner as stated above, you have exposed yourself to the
charges of Criminal misconduct.
You are, therefore, charged with criminal misconduct.
You should submit your written statement in defence within 10 (ten) days on
receipt of this communication provided you do not intend to inspect the documents
which have relevance with the issue. In case you do not intend to inspect those
Page No.# 9/18
documents you should write to the under signed for the same within 7(seven) days on
receipt of this communication and submit your explanation there after within 10 (ten)
days from the date of completion of inspection.
Your written statement in defence stating whether you desire to be heard in
person and whether you intend to adduce any defence witness you should submit to
the undersigned within the period specified above.
Illegible
Superintendent of Police,
Golaghat."
14. Reading of the aforesaid show cause notice, it is clear that the petitioner
No. 1 is charged with the allegation that he is an active member of the ULFA
and he managed his appointment in the Police Department with a view to bring
disgrace to the Police Department as well as espionage for the ULFA.
15. It appears that thereafter, departmental proceeding was initiated against
the petitioner No.1 wherein in the inquiry, the Inquiry Officer examined 3
prosecution witnesses being i) S.I. Puspa Bora of Simaluguri Police Station, ii)
Jyoti Prasad Phukan, informant and iii) S.I. Nundalal Hazarika of Simaluguri
Police Station.
16. It appears that on the basis of the confessional statement made by the
petitioner No. 1 before the Superintendent of Police, Sibsagar respondent No. 4
held the petitioner No. 1 guilty of the aforesaid charge.
17. It appears that thereafter a Second Show Cause Notice was issued to
the petitioner No.1 by Notice dated 15.06.2004, whereby the petitioner No. 1
was informed that the Inquiry Officer appointed to enquire into the charges
leveled against him by departmental proceedings No. 3/94 of Golaghat had
Page No.# 10/18
submitted his findings upon completion of his inquiry and that upon going
through the findings of the Inquiry Officer, the departmental authority agrees
with the aforesaid findings of the Inquiry Officer and has provisionally come to
the conclusion that the petitioner No. 1 should be dismissed from his service
immediately.
18. The aforesaid Second Show Cause Notice dated 15.06.2004 is
reproduced hereunder for ready reference:-
"2nd Show Cause Notice
To,
UBC/49 Arun Konwar,
(under suspension)
Golaghat Police Reserve.
SUB :: 2ND SHOW CAUSE NOTICE.
REF :: DEPTL. PROCEEDING NO. 3/94.
You are hereby informed that the Enquiry Officer appointed to enquire in to the
charges levelled against you vide departmental proceeding no. 3/94 of Golaghat DEF
has already submitted his findings on completion of his enquiries. A copy of the
findings submitted by enquiry officer is enclosed herewith for your information.
On going through the findings and on perusal of the records and having regard
to the evidences and circumstances appearing in this dept. proceeding, I agree with
the findings of the enquiry officer and hold that the charges levelled against you have
been proved beyond all reasonable doubt. I, therefore, have provisionally come to the
conclusion that you should be dismissed from your service immediately.
You are, therefore, required to show cause if any against the action proposed to
be taken against you. Any representation may make in that connection will be duly
Page No.# 11/18
considered. Such representation if any should be made in writing and submitted so as
to reach the undersigned within 10(ten) days from the date of receipt of this
communication. Else, this departmental proceeding will be disposed of 'Ex-parte'.
Illegible
Superintendent of Police,
Golaghat"
19. Reading of the aforesaid Second Show Cause Notice, it is clear that the
departmental authorities before issuing the Second Show Cause Notice to the
petitioners has already decided that the petitioner is guilty of the charges
leveled against him and that the petitioner No. 1 should be dismissed from his
service.
20. It further appears that thereafter the departmental authorities by Order
dated 27.04.2006 removed the petitioner No. 1 from service with immediate
effect (w.e.f. 25.10.2004 vide D.O No.3944 dated 25.10.2004).
21. It further appears that ultimately the Criminal Court after completion of
the trial acquitted the petitioner Nos. 1 and 2 from the said charges based on
which they were found guilty in the departmental inquiry.
22. A perusal of the impugned Judgment and Order dated 21.07.2012 of the
Criminal Court indicates that on the basis of an FIR alleging interalia that the
informant had received a secret information that some ULFA extremists have
been taking shelter at Safrai Barpathergaon and upon conducting a search, in
the aforesaid location, some ULFA related documents were recovered from the
possession of one Kamal Hussain alongwith Babul Konwar, Golap Ali@Pankaj
Page No.# 12/18
Gogoi, who were taking shelter at the location and upon being interrogated, it
was learnt that the aforesaid accused persons were involved in some Anti Social
activities and were members of Ban ULFA organization. Accordingly, a case was
registered and after completion of investigation, chargesheet was submitted
against the aforesaid persons as well as against the petitioner Nos. 1 and 2.
23. It appears that the two witnesses, whose statements were recorded in
the departmental proceeding came to a conclusion of establishing guilt against
the petitioner No. 1, were also examined as prosecution witnesses before the
Criminal Court.
24. Apt to refer to the relevant paragraphs of the learned Criminal Court
Judgment and Order which reads as hereunder:-
"37. What reveals from the evidence of Sri Krishna Kanta Sarma (PW-3) is that he
recorded the confessional statement of the accused Maheswar Gogoi, Achyut
Hatimuriah, Ghana Duarah and Babul Konwar but the said confessional statement
were not corroborated by the evidence of other witnesses on record. The alleged
confessional statement of the accused Maheswar Gogoi, Achyut Hatimuriah, Ghana
Duarah and Babul Konwar were not corroborated by any other material. In the case of
Arup Bhuyan VS State of Assam reported in 2011 (3) GLT (SC) 1 Hon'ble Supreme
Court observed that confession is a very weak type of evidence particularly when
alleged to have been made to the police, and it is not safe to convict on its basis
unless there is corroborative materials. In the present case as I have found that there
is no corroborative material to support the confessional statement of the accused
persons recorded by the then Supdt. of Police, Sibsagr.
38. After going through the evidence of Sri Sidhiram Rajkonwar (PW-7) I have found
that Sri Nitul Rajkonwar took shelter in his house amongst 3/4 persons on the ground
that on that particular night there was raining and on humanitarian ground PW-7
allowed them including Nitul Rajkonwar (the accused) to stay for the night. But he
categorically stated that he knew the accused Nitul Rajkonwar as he is from his same
village and his neighbour. But said Sidhiram Rajkonwar no where deposed that the
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said accused Nitul Rajkonwar did some antisocial activities in the name of ULFA
organization.
39. So far the approval of the concerned Supdt. of police is concerned it was
elaborately decided in the case of Rangku Dutta @ Ranjan Kumar Dutta Vs State of
Assam reported in 2011 (3) GLT (SC) 12 that as per Section 20-A (1) -
(i) Notwithstanding anything contained in the Code no information about
commission of offence under this act shall be recorded by the police without
prior approval of the district Superintendent of Police.
(ii) No court shall take cognizance of any offence under this act without
sanction or the case may be, commissioner of police.
40. It is obvious that Section 20-A (1) is a mandatory requirement of law. First, it is
starts with an overriding clause and, thereafter, to emphasis is mandatory nature, uses
expression "NO" for the very clauses. Whenever the intent of the statute is mandatory,
it is clothed with negative. On the basis of the said principle no information about the
commission of an offence under the said act can be recorded by the police without the
prior approval of the District Superintendent of Police. Therefore, the requirement of
prior approval must be satisfied at the time of recording the information. If a
subsequent investigation is carried on without a proper recording of the information by
the DSP in terms of Section 20-A(1), that does not cure the inherent defect of
recording the information without the prior approval of the District Superintendent of
Police.
41. So it is clear that requirement of approval must be made at the initial stage of
recording the information. If there is absence of approval at the stage of recording the
information, the same cannot be cured by subsequent carrying on of the investigation
by the DSP.
42. I have gone through the citations referred above and found that the facts and
circumstances mentioned in that case is also similar and identical in the instant case,
so far the approval, from the Sudpt. of police before launching of prosecution is
concerned.
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43. Apart from the absence of the approval and non corroboration of the confessional
statement of the accused with other witnesses, I have found that the prosecution
miserably failed to prove its case through the evidence of the witnesses on record.
44. The prosecution evidence, thus, does not reach its requisite standard of prove
beyond all reasonable doubt which is insisted in a criminal trial and I suffered no
hesitation in concluding that the prosecution case is wholly baseless and false.
45. 1, therefore, hold that the prosecution has completely failed to substantiate and
prove its case against the present accused persons beyond all reasonable doubt and
the accused persons are found not guilty of the charges leveled against them and I
accordingly acquit the accused persons from the charges leveled against them under
benefit of doubt and set them liberty forthwith."
25. Reading of the aforesaid Judgment and Order of the learned Criminal
Court, it is clear that the confessional statements based on which the Inquiry
Officer has held the petitioner No. 1 guilty in the inquiry was found to be not
proved and established in the criminal case.
26. It further appears that in the criminal case, the prosecution has failed to
establish that the petitioner No. 1 is an active member of the ULFA
Organisation. It further appears that the Criminal Court after perusing the
evidences was of a clear opinion that the prosecution has miserably failed to
prove its case through the evidence of the witnesses on record and accordingly,
acquitted the accused persons including the petitioners.
27. There can be no doubt that the two proceedings i.e. criminal and
departmental proceeding are entirely two different proceedings and operate in
different fields and have different objectives. However, in the event, the
allegation/charges are identical in the criminal as well as departmental
Page No.# 15/18
proceedings and the witnesses are also that of same when in such cases, the
accused is acquitted honorably and completely exonerated of the charges,
continuation of the departmental inquiry on the very same charges and or the
order of discharge thereof is not justifiable. However, mere acquittal in criminal
case shall not preclude the departmental authorities from taking an action if it is
otherwise permissible or shall not automatically render the order of discharge
unjustifiable.
28. In other words, the allegation, list of witnesses and the manner in which
the acquittal has been reached and or granted is to be seen.
29. In the present case, it is clear that the charges are identical and the
witnesses examined in criminal as well as departmental proceedings is the
same. Apropos that from the record of the disciplinary proceedings which is
placed before this Court by the learned counsel appearing for the respondents,
it appears that in the confessional statement based on which the Inquiry Officer
has held the petitioner No. 1 guilty of the charges leveled against him, the
petitioner while putting his signature therein categorically stated that the
confessional statement as recorded therein is not his version. Hence, the order
of the disciplinary proceeding on the face of the record appears to be wholly
perverse.
30. It further appears that in the Criminal Court as well, the prosecution had
miserably failed to establish and prove the confessional statement alleged to
have been made by the petitioner No. 1.
31. It is further apparent that the witnesses examined in the departmental
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proceedings is also examined by the Criminal Court and upon analyzing the
evidences, the Criminal Court has completely exonerated the petitioners from
the charges, which is identical as that of the departmental proceedings.
32. Apt to refer to the decision of the Apex Court in the case of Maharana
Pratap Singh (Supra), wherein the Apex Court has held as under:-
"25. The issues for determination that emerge for decision are:
(i) Whether due process was followed in dismissing the appellant from
service and whether his dismissal from service is justified, on facts and in the
circumstances, that have unfolded before us?
(ii) Whether, in light of the facts, evidence, witnesses, and circumstances of
the case, the charges in the criminal proceedings are substantially identical to
those in the departmental proceedings, such that an acquittal in the
criminal case would render the findings in the disciplinary proceedings
vulnerable?
(iii) Whether the impugned judgment, which allowed the appeal of the
respondents and dismissed the writ petition of the appellant, deserves to be
upheld?
(iv) Whether the appellant is entitled to any relief, should the aforesaid
questions be answered in his favour?
26. At the outset, it is pertinent to note that considering the nature of arguments
advanced which required ascertaining facts by looking into the records of inquiry,
which are not on record, we had required the respondent-State of Bihar vide order
dated 17th December, 2024 to submit scanned copy of the complete departmental file
by 10th January, 2025.
27. Under Section 114(g) of the Indian Evidence Act, 1872, if a party fails to produce
evidence that is within its control, it is presumed that the withheld evidence would be
unfavourable to it. Though reference to any authority is not required, we may
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profitably refer to the decision in State (Inspector of Police) v. Surya Sankaram Karri in
this behalf."
33. Pertinent that in respect of the petitioner No. 2, there was no
departmental inquiry initiated and he was discharged from his service merely on
the allegation that he is an active member of ULFA organization which on the
basis of the allegation made in the criminal case. Such discharge of the
petitioner No. 2 without holding disciplinary proceeding is bad in law.
34. Thus, the petitioners having fully exonerated from the charges based on
which they have been discharged from their services, the impugned discharge
orders are not justifiable. That apart, it appears that the departmental
authorities before issuing the Second Show Cause Notice alongwith the copy of
the inquiry report of the petitioner No. 1 to show cause as why the inquiry
report should not be accepted has already agreed with the findings of the
Inquiry Officer and have also decided to remove the petitioners from the
service. Issuance of opportunity/Second Show Cause notice is not an empty
formality. In fact, it is an opportunity given to the delinquent to explain as to
why the inquiry report should not be accepted which is submitted against him
therefore, while giving him the opportunity, if the departmental authorities have
already agreed with the finding of the Inquiry Officer and had also decided the
penalty, the same would render the Second Show Cause Notice obsolete and a
useless formality which would be against the principle of natural justice.
35. Having noted that in the present case, the departmental authorities has
already agreed with the finding of the Inquiry Officer and the proposed
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punishment, the impugned discharged order on that count also is bad in law.
36. In any view of the matter, the impugned discharge orders cannot stand
in the eye of law. Accordingly, the impugned order of discharge of the
petitioners from their services being Orders dated 27.10.2004 and 01.04.1994
respectively are set aside and quashed.
37. Resultantly, the respondents are directed to reinstate the petitioners in
service with all service benefits.
38. Accordingly, the writ petition stands allowed.
Disposed of.
JUDGE
Comparing Assistant
