WP(C)/2778/2021
2025 Latest Caselaw 4224 Gua

Gauhati High Court

WP(C)/2778/2021 on 19 March, 2025

Author: Soumitra Saikia

Bench: Soumitra Saikia

 GAHC010073362021




           THE GAUHATI HIGH COURT AT GUWAHATI
            (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
                             PRINCIPAL SEAT AT GUWAHATI

                                  WP(C) No.2778/2021


           Mukta Lal Nath,
               Son of Late Harendra Chandra Nath,
               R/o-Village Narsingpur,
               P.O.- Narsingpur,
               District- Cachar, Assam,
               Pin-788115.
                                                                         ...... Petitioner

                  -Versus-


      1) The State of Assam, represented by the Commissioner & Secretary,
         Government of Assam, Home, Dispur, Guwahati-781006.
      2) The Additional Director General of Police, Assam, H.Q. Ulubari,
         Guwahati-781007.
      3) The Inspector General of Police (Communication) Assam, H.Q.
         Ulubari, Guwahati-781007.
      4) The Superintendent of Police (Communication), Assam, Guwahati-
         781007.

                                                                     ...... Respondents

BEFORE HON'BLE MR. JUSTICE SOUMITRA SAIKIA

For the Petitioner: Mr. P. Kataki, Advocate

For the Respondents: Ms U. Sarma, GA, Assam

Date : 19.03.2025

Judgment and Order

Heard Mr. P. Kataki, learned counsel for the petitioner. Also heard Ms. U. Sarma, learned Government Advocate, Assam appears for the respondents.

2. The petitioner has been serving in the Assam Police Radio Organization (APRO) as a Constable (Operator) since 18.03.1987, following his selection through the recruitment process conducted by the organization. While posted at Silchar, a complaint was lodged against the petitioner regarding a loan he had taken from an individual. As a result, an enquiry was conducted by the Additional Superintendent of Police (Communication) in Silchar. The enquiry report was submitted on 09.04.2009, and based on this report, departmental proceedings were initiated against the petitioner vide D.O. No. 502 dated 30.06.2009. According to the charges outlined in the show cause notice, it was alleged that while the petitioner was serving at the Silchar Zone, he had collected a total of Rs. 32,20,520/- (Rupees Thirty Two Lakhs Twenty Thousand Five Hundred Twenty) from 23 (Twenty Three) different police personnel. However, he had failed to return Rs. 23,57,660/- (Rupees Twenty Three Lakhs Fifty Seven Thousand Six Hundred Sixty).

3. Pursuant to the show cause notice issued, the petitioner submitted his reply and participated in the enquiry. The enquiry report was submitted on 19.11.2010, wherein the enquiry officer

concluded that the petitioner was not liable for any of the charges against him. However, the disciplinary authority later issued another notice dated 23.07.2012, informing the petitioner that the disciplinary authority had agreed with the findings of the departmental proceedings and had decided to impose a penalty. The penalty sought to be imposed was "withholding of increments for 2 (two) years with cumulative effect." In response to this notice, the petitioner submitted his reply. Finally, by order dated 19.09.2012, the disciplinary authority imposed the punishment of withholding the petitioner's increments for 2 (two) years with cumulative effect.

4. It is submitted that the petitioner was implicated in an FIR lodged against him, alleging his involvement in monetary transactions with certain individuals from Barak Valley during his posting in Silchar. The FIR led to the registration of CID Police Station Case No. 253 of 2015 under Sections 406/409/420 of the Indian Penal Code (IPC). After conducting the investigation, the Investigating Authority submitted Final Report No. 34 on 14.11.2017, which was accepted by the learned Chief Judicial Magistrate (CJM), Kamrup (M), Guwahati, on 29.01.2018. Following the filing of the final report, the petitioner submitted a representation to Respondent No. 2, requesting his promotion and restoration of his seniority. In response, the petitioner was promoted to the post of Assistant Sub-Inspector with retrospective effect from 01.06.2009 and his seniority was restored above that of his immediate junior. Subsequently, the petitioner filed another representation dated 09.12.2020 before Respondent No. 2, seeking

the revocation of the penalty imposed on him, specifically the stoppage of increments with cumulative effect for two years, as per the order dated 19.09.2012. The petitioner highlighted that the enquiry officer had concluded that he was not liable for the charges against him and therefore, the penalty imposed should be revoked.

5. Pursuant to this representation, the respondents through communication dated 30.01.2021, declined to entertain the petitioner's request. They reasoned that the filing of the final report, its acceptance by the learned Chief Judicial Magistrate (CJM), Kamrup (M), and the subsequent departmental order restoring the petitioner's seniority, were neither relevant nor tenable in relation to the conclusions of the departmental enquiry. Furthermore, it was stated that since no appeal against the order of punishment had been filed, as per the procedure of law, the authority was not inclined to interfere with the findings or the punishment awarded.

6. The learned counsel for the petitioner has strenuously argued before this Court that the imposition of the penalty is contrary to the provisions of the Assam Discipline and Appeal Rules, 1964. He submits that while the enquiry officer in his report concluded that the petitioner is not liable for the charges brought against him, there was ordinarily no occasion for the disciplinary authority to impose any punishment. Referring to Rule 9(A) of the said Rules, he contends that if the disciplinary authority disagrees with the findings of the enquiry officer, it must serve the petitioner with a brief statement of reasons for the disagreement along with

a copy of any advice if provided. The learned counsel further submits that in the present case, following the enquiry and the enquiry officer's finding that the petitioner is not liable for the charges the disciplinary authority by communication dated 23.07.2012, issued a second show-cause notice, asking the petitioner to show cause against the disciplinary authority's conclusion that the departmental proceedings were to be disposed of by imposing the punishment of " withholding increments for 2 (two) years with cumulative effect." It is submitted that despite the petitioner submitting a reply to the second show-cause notice, the same was rejected by the order dated 19.09.2012 issued by the disciplinary authority.

7. The learned counsel, therefore, submits that the second show-cause notice was issued in contravention of the provisions of Rule 9(A) of the Assam Discipline and Appeal Rules, 1964. As such, the notice is not in accordance with the law and should be set aside and quashed. The counsel further argues that no reasons were provided as to why the disciplinary authority disagreed with the findings of the enquiry report. Given this, the punishment imposed on the petitioner could not have been validly imposed and therefore, it must be set aside and quashed. Additionally, it is submitted that, on the same grounds, the order passed by the disciplinary authority on 30.01.2021, in response to the petitioner's application dated 09.12.2020 seeking the setting aside of the penalty that the stoppage of increments for two years with cumulative effect, should also be interfered with and set aside.

8. The respondents have filed their counter-affidavit, contesting the writ petition. The respondent authorities contend that during the course of the enquiry, several allegations of monetary transactions between the petitioner and other individuals were made, and such activities by the petitioner are inconsistent with the conduct expected of a member of the disciplined force. It is further contended that the conclusions of the enquiry officer should not be read in isolation. The enquiry report must be considered in its entirety and therefore, it cannot be said that the enquiry officer absolved the petitioner of the charges. In light of this, the disciplinary authority accepted the findings of the enquiry report and issued an order imposing the punishment. The respondent authorities argue that the order is in accordance with the provisions of the applicable rules, and thus, there is no infirmity in the decision. Consequently, they submit that the writ petition lacks merit and should be dismissed.

9. The petitioner has filed a rejoinder affidavit rebutting the contentions made in the counter-affidavit and submits that the impugned order dated 19.09.2012 was passed in contravention of the provisions of the applicable rules. The petitioner argues that the order is prima facie invalid and without jurisdiction and as such it has prejudicially affected his service.

10. The learned counsel for the respondents submits that the writ petition should be dismissed on the grounds of delay and laches, as the enquiry report was submitted on 19.11.2010, and the impugned order, which the petitioner is aggrieved by, was passed in 2012. Therefore, delay and laches are valid grounds for

refusal to entertain the writ petition, and the writ court should exercise its discretion accordingly. The respondents rely on the Judgments of the Apex Court rendered in Sharif Masih Vs. Punjab and Haryana High Court reported in 2007 15 SCC 753 and City & Industrial Development Corporation Vs. Dosu Aardeshir Bhiwandiwala & Ors. reported in 2009 1 SCC 168 in support of their contentions.

11. The learned counsel for the petitioner has referred to, and relied upon a Judgment of the Apex Court rendered in State of Uttar Pradesh and Others Vs. Rajmati Singh reported in 2022 SCC Online SC 1785.

12. The learned counsel for the parties have been heard and the pleadings on record have been carefully perused. The relevant provisions of the Assam Discipline and Appeal Rules, 1964 has also been carefully perused. The grievance of the petitioner is that the findings of the enquiry officer absolve the petitioner. A perusal of the enquiry report reveals that the enquiry officer concluded that the petitioner is not liable for the charges leveled against him.

13. In view of the above, there was no occasion for the disciplinary authority to disregard the findings of the enquiry officer. However, a careful perusal of the second show-cause notice reveals that although the disciplinary authority accepted the enquiry report, the departmental proceedings against the petitioner were concluded by imposing the punishment of " withholding increments for two years with cumulative effect."

14. The grievance of the petitioner is that any disagreement by the disciplinary authority should have been communicated to the petitioner in strict accordance with Rule 9(A) of the Assam Discipline and Appeal Rules, 1964, by enclosing a copy of the disagreement note. However, no such disagreement note was enclosed.

15. During the hearing, the relevant records were called for, which were available with the Government Counsel. It was brought to light that the copy of the enquiry report dated 19.10.2009, available in the records, differs from the copy of the enquiry report enclosed with the writ petition (Annexure-II) in terms of the penalty-related observations made by the enquiry officer. The conclusion of the enquiry officer, as seen from page 24 of the writ petition, states that the petitioner is not liable for the charges brought against him. However, the learned Government Counsel pointed out that in the enquiry report available in the department's records, the word "Not" is struck off. The learned Government Counsel therefore submits that in light of this deletion, it must be inferred that the enquiry officer concluded that the petitioner is liable for the charges brought against him. In this context, the second show-cause notice dated 23.07.2012 was issued, notifying the petitioner of the disciplinary authority's intention to impose the proposed punishment. After the petitioner showed cause, the disciplinary authority proceeded to impose the penalty by rejecting the replies furnished by the petitioner. If the enquiry report available in the department's records, as produced before the Court is accepted as the correct copy, the logical consequence

would be that the disciplinary authority accepted the enquiry officer's findings with no disagreement. Therefore, in that case no reasons for disagreement as contemplated under Rule 9(A), would have been required. However, the departmental counsel is unable to confirm whether the copy of the enquiry report served on the writ petitioner is the same as the one available in the department's records or if it is the one earlier furnished to the writ petitioner.

16. In light of the above, it is clear that after the enquiry was concluded, the correct copy of the enquiry report was never furnished to the writ petitioner. The enquiry report furnished to the petitioner, and the copy enclosed with the writ petition, as noted from the submissions made by the Government Counsel, does not reflect that the word "Not" has been struck out or deleted. A plain reading of the enquiry report reveals that the presence of the word "Not" entirely alters the conclusions reached by the enquiry officer. The copy of the enquiry report enclosed with the writ petition clearly shows that the enquiry officer concluded that the petitioner is not liable for the charges alleged. However, if the enquiry report available in the department's records, now produced before the Court, is read without the word "Not," it would appear that the enquiry officer has concluded that the petitioner is guilty of all the charges. The affidavit filed before this Court does not shed light on this matter. Rather, the stand reflected in the affidavit attempts to interpret the situation by asserting that the word "Not" has been struck out in the enquiry report. The learned Government Advocate has fairly submitted that no copy carrying a contrary conclusion is available in the records. Furthermore, the learned Government

Advocate has also fairly stated that there are no records in the department to indicate whether the copy of the enquiry report, with the word "Not" struck out, which is available in the department's records, was the same one that was served on the writ petitioner.

17. In the absence of such materials, this Court must conclude that the enquiry report was not duly served on the writ petitioner. The copy of the enquiry report served on the writ petitioner indicates that the enquiry officer concluded that the petitioner is not guilty of the charges alleged. Consequently, upon the petitioner being served with the second show-cause notice, the question arose as to whether the disciplinary authority could disagree with the findings of the enquiry officer and if so, whether the disagreement note should be served on the writ petitioner. At this stage, these aspects need not be delved into further, as the learned Government Advocate has fairly submitted that the enquiry report available in the records, with the word "Not" struck out, was likely not the copy served on the writ petitioner. If that is the case, it must be concluded that, in accordance with the provisions of Rule 9(A) of the Assam Discipline and Appeal Rules, 1964 and the relevant Judgments of the Apex Court, the petitioner was not served with the correct copy of the enquiry report. Consequently, the petitioner was deprived of the opportunities prescribed by law to ventilate his grievances.

18. In light of the above, the respondents are directed to serve a fresh copy of the enquiry report, as found in the records of the department, on the writ petitioner. Once the copy is served, the

writ petitioner will be provided with proper opportunities to represent before the concerned authorities and file a statutory appeal, if so advised. The proceedings will, therefore, continue from the stage of service of the enquiry report on the writ petitioner. After the enquiry report is served on the petitioner as directed, if the petitioner files the statutory appeal, the appellate authority may decide the matter on its merit. In the event that the appellate authority disagrees with the disciplinary authority, the order of punishment can be revoked and all consequential benefits may be granted to the petitioner.

19. Under such circumstances, the writ petition stands disposed of. The Respondent No. 2 will ensure the proper service of a copy of the enquiry report to the writ petitioner, who will then be afforded the opportunity to file the necessary statutory appeal, if so advised.

20. In view of the above discussion, the judgments referred to by the learned counsel on the question of delay are not required to be discussed. Accordingly, the writ petition stands disposed of in terms of the above.

JUDGE

Indrajit