Gauhati High Court
WP(C)/1210/2023 on 18 September, 2025
GAHC010038662023
2025:GAU-AS:12983
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
WP(C) NO.1210/2023
Sri. Debananda Borah,
Son of Late Kuladhar Borah,
Resident of Mudoijan, Bharaluagaon,
P.O.- Mudoijan, P.S.-Teok,
District- Jorhat,
Assam.
.......Petitioner
-Versus-
1. State of Assam, represented by the
Commissioner & Secretary, Home
Department, Government of Assam,
Dispur, Guwahati-6, Assam.
Page 1 of 16
2. The Director General of Police, MPC,
Assam, Ulubari, Guwahati-7.
3. The Deputy Inspector General of
Police, MPC, Ulubari, Guwahati-7,
Assam.
4. The Superintendent of Police,
Lakhimpur, North Lakhimpur,
Assam.
.......Respondents
-BEFORE-
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
For the Petitioner(s) : Mr. A Sahad, Mr. J B Saikia, Mr. M H Ali,
Advocates.
For the Respondent(s) : Ms. M Bhattacharjee, Senior
Government Advocate.
Date of Hearing : 18.09.2025.
Date of Judgment : 18.09.2025.
JUDGMENT & ORDER (ORAL)
Heard Mr. A Sahad, learned counsel for the petitioner. Also
heard Ms. M Bhattacharjee, learned Senior Government Advocate
for the State respondents.
2. By way of this instant writ petition under Article 226 of the
Constitution of India, the petitioner is assailing the impugned
order dated 28.11.2008 passed by the disciplinary authority,
whereby he was removed from service on the basis of the inquiry
report.
3. The brief facts of the case are that the petitioner was
charged on 15.05.2004 for allegedly taking bribe while he was
serving as a Stenographer/UDA in the Office of the
Superintendent of Police, Lakhimpur, North Lakhimpur from one
Dilip Gogoi by giving assurance of appointment to his son to the
post of AB Constable in the Assam Police Battalion and that he
had also similarly collected money from other individuals, assuring
them of giving government jobs in the police department. It is
further alleged that the petitioner has also collected various
construction materials by producing fake orders in the name of
the concerned S.P. for his personal use.
4. Pursuant to the show-cause notice issued and inquiry
conducted, upon the inquiry officer submitting the inquiry report,
the disciplinary authority, after issuance of the 2nd show-cause
notice, accepted the findings of the inquiry officer and by the
impugned order dated 28.11.2008 inflicted the punishment of
removal from service upon the petitioner with immediate effect.
5. Thereafter, an appeal was filed before the appellate
authority. However, the appellate authority by order dated
14.07.2012 rejected the appeal of the petitioner.
6. Situated thus, the present writ petition has been filed.
7. Mr. Sahad, learned counsel for the petitioner, submits that no
definite charge has been leveled against the petitioner, for which,
the inquiry stands vitiated.
8. He further submits that the allegations contained in the
memorandum of charges are essentially criminal in nature and
ought not to have been adjudicated in a departmental inquiry.
9. He further submits that under Sub-Rule 8 of Rule 9 of the
Assam Services (Discipline and Appeal) Rules, 1964, [hereinafter
referred to as the 1964 Rules], the inquiry officer shall set out the
findings on each charge and the reasons thereof.
10. He further submits that even assuming the inquiry findings,
the disciplinary authority failed to comply with Sub-Rule 9 of Rule
9 of the 1964 Rules, which mandates the authority to consider the
record of the inquiry and to record its findings on each charge. He
accordingly submits that the removal order merely reproduces the
inquiry report without any independent findings and is thus
vitiated.
11. He further submits that in the criminal case, which was
pending against the petitioner for the alleged offence of cheating
and fraud, the criminal Court acquitted him of the charges. He
accordingly submits that since the criminal Court has acquitted
the petitioner of the charges, which are similar to the charges in
the disciplinary proceedings, the impugned penalty warrants
interference from this Court.
12. In support of his submission, learned counsel for the
petitioner relied upon the following judgments -
(i). Debabrata Shee and Others -Vs- State of Assam
and others, reported in 2016 (5) GLT 230.
(ii) Ramashish Sarma (Constable No. 319) -Vs-
State of Jharkhand, reported in 2007 (50) AIC 847.
(iii) A.L. Kalra -Vs- Project & Equipment
Corporation of India Limited, reported in 1984 SCR
(3) 646.
(iv) Golok Chandra Bora -Vs- The Board of
Secondary Education, Assam and 3 Others, passed
in WP(C) No. 1379/2017.
13. Per contra, Ms. M Bhattacharjee, learned Senior Government
Advocate submits that the acquittal of the petitioner by the
criminal Court does not automatically discharge him from the
disciplinary proceeding. She submits that there being evidence
before the inquiry officer establishing the charges leveled against
the petitioner, the inquiry report warrants no interference from
this Court. She accordingly submits that the misconduct directly
affects the integrity of service and was rightly inquired into
departmentally; the inquiry was fairly conducted; and the charges
having been proved, the penalty of removal is justified.
14. In support of her submissions, she relied upon the judgment
of the apex Court in the case of N.T.C. (WBAB &O) Ltd. & Anr.
-Vs- Anjan K. Saha, reported in 2004 Supreme (SC) 931.
15. I have heard the arguments advanced by the learned
counsels appearing for the contending parties and also perused
the materials available on record. I have also considered the case
laws cited at the bar.
16. Apt at this stage to refer to the first show-cause notice dated
15.05.2004, which read as under -
"ASSAM POLICE HEADQUARTERS
ULUBARI:: GUWAHATI
Memo No. Proo.Cell/XXVII/6/2004/10 Dated Guwahati 15th May
To,
Shri Debananda Borah,
Stenographer, UDA of Office Of the Supdt. Of Police,
Lakhimpur, North Lakhimpur.
Sub: 1st SHOW CAUSE NOTICE.
You are hereby required to show cause under Rule 7 of the
Assam Services (D&A) Rule 1964 read with Article 311 of the
constitution of India as to why any of the penalties prescribed in rule
7 of the aforesaid rules should not be Inflicted on you on the
following charges based on the statement of allegation attached
herewith.
That while you were serving as Stenographer, UDA of the S.P.
Office, Lakhimpur, North Lakhimpur :-
1. On 23-12-2003 at 2 P.M. compit Shri Dilip Gogo), S/o- Lt.
Bhulukan Gogol of Borbarl Dehingla Gaon, P.S. & Dist- North
Lakhimpur lodged an FIR at North Lakhimpur P.S. to the effect that
he appeared in the Interview for the post of A.B. Constable In Assam
Police In the year 2000. In this connection you (Debananda Borah)
took total Rs. 35,000.00 (Rupees thirty five thousand) only from the
complt. Dilip Gogol in two Installments (Rs.15,000/- on 07-04-2003
and Rs. 20,000/- on 04-07-2003) by giving his assurance of
appointment as A.B. Constable In Assam Police Battallon and by
this cheated him and mis-appropriated the cash money. In this
connection North Lakhimpur P.S. Case No. 981/2003 U/S 406/420
IPC had been registered you In the case and forwarded Into custody.
2. Again on 28-12-2003 at 3.25 P.M. compit. Shri Naba Kr.
Phukan/S/o- Shri Durgadhar Phukan of North lakhimpur Town,
ward No. 14 Bantow, P.S. & Dist. North Lakhimpur lodged an FIR at
Lakhimpur P.S. to the effect that you (Debandanda Borah) tock loan
of Rs. 3,37,000/- from him (Complt) with assurance to return the
money within 7 (seven) days time, but you could not retum within
the stipulated time, but you could not return within the stipulated
time and gave him a cheque of State Bank of India. But on quarry to
the S.B.I., North Lakhimpur, (Compit) found that there is no money at
S.B.I., North Lakhimpur In your name. Hence, you had cheated and
misappropriated the money of the complt. In this connection North
Lakhimpur P.S. Case No. 939/2003 U/s 406/420 IPC had been
registered and Investigated Into. In this case also after collecting
evidence against you, I/O of the case had arrested you and
forwarded into custody.
During Investigation of the above mentioned case the I/O also
found that you (Debananda Borah) had collected money from same
other Individuais assuring them to give Govt. Job in police
department. You also issued some fake work orders to the
contractors and asked them to supply materials ilke cement/Iron,
rod/C.I. sheets Electric ceiling fans and some other articles in the
name of the S.P. Lakhimpur, North Lakhimpur and procured the
same for your own personal use.
Further, you (Debananda Borah) forged the signature of
Suprit. of Police, Lakhimpur/Addl. S.P. (H.Q), North Lakhimpur/AIG,
(A), Assam, Guwahati and others and by using those signature of
the police officers you passed same orders to cheat individuals.
Thus your above acts have constituted grons original
misconduct and dereliction on of duty and rendered you unfit to be
retained in service and you are, therefore, charged accordingly.
You should submit your written statement in defence within
10 (ten) days from the date of receipt of this communication provided
you do not intent to Inspect the documents which have relevance
with the Issue under enquiry. In case you Intend to inspect those
documents you should write to the undersigned for the within
7(seven) days from the date of receipt of this communication and
submit your explanantion thereafter within 10 (ten) days from the
date of completion of Inspection.
Your written statement stating whether you desire to heard in
person should be submitted to the undersigned within the period
specified above.
If the disciplinary authority decided to appoint an enquiry
officer to enquire Into the charges, you will be allowed to present
your case, If you so desire with the assistance of my Govt. servant
approved by the disciplinary authority, but will not be allowed to
engage a legal practitioner for the purpose unless the person
nominated by the disciplinary authority to present the case In
support of the charge before the enquiry authority is a legal
practitioner or unless the disciplinary authority so permits.
Sd/- Illegible
(Signature of Disciplinary Authority)
Deputy Inspector General of Police, (MPC)
Assam:: Guwahati."
17. From the reading the aforesaid show-cause notice, it appears
that the allegation against the petitioner is twofold, (i) the
petitioner accepted money from Dilip Gogoi on the pretext of
securing his son's appointment in the police department and (ii)
he fabricated and used fake orders in the name of the department
to procure construction materials for his own use.
18. It appears that a memorandum of charge was issued along
with the statement of allegations and an inquiry was conducted in
accordance with law. It further appears that the inquiry officer,
upon considering and analyzing the evidence of the witnesses,
including the complainant, Dilip Gogoi (PW-6) and one contractor,
Sri. Naba Kumar Phukan (PW-7) and the delinquent/petitioner,
held the charges proved.
19. The contention of the petitioner that the charges are
essentially criminal in nature and the criminal Court has already
acquitted him of the aforesaid charges, the law is well settled that
criminal prosecution and disciplinary proceedings operate in
distinct fields and the employer is entitled to hold the
departmental inquiries into misconduct affecting service discipline
[Refer State of Rajasthan -Vs- K. Meena and Others,
reported in (1996) 6 SCC 417)]. That apart, the allegations are
serious in nature affecting the integrity of service and therefore,
the same cannot be ignored by the respondent. Thus, the
contention of the writ petitioner that the charges could not be
the subject of departmental inquiry is untenable.
20. This takes me to the issue as to whether there has been any
violation of Sub-Rule 8 and 9 of Rule 9 of the said 1964 Rules
vitiating the inquiry proceeding. Apt at this juncture, to refer to
the said Rules. Let me first refer to Sub-Rule 8 of Rule 9 of the
said 1964 Rules. Sub-Rule 8 of Rule 9 of the said 1964 Rules,
reads as under -
"9(8) The record of the inquiry, shall include -
(i) the charges framed against the Government servant
and the statement of allegations furnished to him under
sub-rule (2);
(ii) his written statement of defence, if any;
(iii) the oral evidence taken in the course of the enquiry;
(iv) the documentary evidence considered in the course of
the inquiry;
(v) the orders, if any, made by the Disciplinary Authority
and the Inquiring Authority in regard to the inquiry; and
(vi) a report setting out the findings on each charge and
the reasons therefor."
21. Reading the aforesaid rule, it is apparent that the record of
inquiry must include, inter-alia, the charges framed against the
delinquent and findings on each charge and the reasons thereof.
22. The relevant portion of the inquiry report reads as under -
"After discussion of the statement of all the PWS and as
well as the statements of delinquent and after going through
the relevant documents it came to light that the delinquent Sri
Debananda Borah (Stenographer of S.P. Office, North
Lakhimpur) had issued some work order/ supply orders to
some persons by taking illegal advantage of his official
capacity as Stenographer of S.P., North Lakhimpur without
the knowledge of S.P., North Lakhimpur and Addl. S.P., North
Lakhimpur. Moreover the delinquent took some personnel
loans from some of the PW's giving assurance to re-pay the
amounts within the stipulated time. But he did not re-pay the
same amounts except he re-paid rupees, 3000/- to Dilip
Gogoi and thereby he cheated them. Without prejudice to the
cases registered against him at Lakhimpur P.S. Case No.
981/03 u/s 406/420 IPC and Case No.. 989/03 u/s
406/420 IPC.
Therefore, the charge of gross misconduct, as well as the
dereliction of duty brought against Sri. Debananda Borah,
Stenographer, is well established beyond all reasonable
doubts. "
23. In the present case, it is apparent that definite charges were
framed and made over to the petitioner along with statement of
allegations and due opportunity to file written statement of
defense was given to the petitioner. It is further apparent that the
inquiry report indicates consideration of evidence by the inquiry
officer. Reading the findings of the inquiry report, it appears that
the inquiry officer, after discussing the statement of all the
witnesses, including the PW-6 and PW-7 as well as the statement
of the delinquent/petitioner, came to the finding that he had
issued some work orders/supply orders to some persons by taking
illegal advantage of his official capacity as Stenographer, without
the knowledge of the then SP, Lakhimpur and that he had taken
loans from some of the witnesses, giving assurance to pay the
amounts within the stipulated time and that he had also collected
various construction materials by producing fake orders for his
personal use. Thus it is evident that the inquiry officer has
recorded the findings on each of the charge together with reasons
thereof. Hence, sub-rule 8 of rule 9 of said 1964 Rules, stands
complied. Resultantly, I am of the considered opinion that the
inquiry held by the inquiry officer is fair, transparent and valid.
24. However, the challenge based on Sub-Rule 9 of Rule 9 of
said 1964 Rules has substance.
25. Sub-Rule 9 of Rule 9 of the said 1964 Rules read as under -
"9(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."
26. Reading the aforesaid Rule, it appears that Sub-Rule 9 of
Rule 9 of the said 1964 Rules obligates the disciplinary authority
upon receipt of the inquiry report to consider the records of the
inquiry and thereafter, record its own findings on each charge.
Such an exercise is not a mere formality, it is a statutory
safeguard to ensure that the ultimate decision is not mechanical
but a reasoned one, reflecting due application of mind.
27. Apt to refer to the 2ND show-cause notice, which read as
under -
"ASSAM POLICE HEADQUARERS::::ULUBARI:::GUWAHATI
Memo No. Proo Cel1/XXVII/6/2004/Pt/108 Dated Ghty.,the
23rd Oct./2008.
To,
Shri Debananda Borah,
Stenographer, Office of the Supdt. of Police, Lakhimpur,
North Lakhimpur, Assam.
Subject :- 2ND SHOW CAUSE NOTICE.
Rof :- Departmental Proceeding initiated against you vide this
Office Memo No. Proo.Cell/XXVII/6/2004/10, dtd.
15.05.2004.
You are hereby inform that the Enquiry Officer"
appointed to enquire into the charges framed against you has
submitted his findings. A copy of the enquiry report is
enclosed herewith.
On careful consideration of the enquiry report and on
perusal of the records and due application of mind and having
regard to the evidence and circumstances of the case, I, as the
Disciplinary Authority, agree with the findings of the enquiry
officer and hold that the charges framed against you has been
proved beyond reasonable doubt.
I have, therefore, provisionally come to the conclusion
that you should be penalised with the punishment of
Dismissal from Service.
You are, hereby required to Show Cause, if any, against
the proposed penalty. Any representation which you make in
that connection will be duly considered before final order is
passed. Such representation, if any, should be made in
writing and submitted to reach the undersigned not later than
10(ten) days from the date of receipt of this communication.
You may also intimate if you wish to be heard in
person.
Deputy Inspector General of Police (MPC)
Assam :::::: Guwahati"
28. Apt also to refer to the order of the disciplinary authority,
which read as under -
" "ASSAM POLICE HEADQUARTERS
ULUBARI *******GUWAHATI
Dated Ghy, the 28th November, 2008
Perused the findings submitted by the Enquiry Officer
Shri Aftab Laskar, APS, Asstt Commandant, 13th A P.BN,
Lilabari in connection with the Departmental Proceeding
drawn up against Stenographer Debananda Borah of the
Office of the Supdt Of Police, Lakhimpur, North Lakhimpur I
have also gone through the entire records containing in the
departmental proceeding file. The Enquiry Officer could
prove the charges levelled against the delinquent beyond
reasonable doubt. during the course of enquiry I hold that
the charges are proved and agree with the findings of the
Enquiry Officer.
The opportunity was given to the delinquent during
the course of enquiry to present his case and defend
himself Copy of the Enquiry Report was also made
available to Shri Debananda Borah.
2nd Show Cause Notice was also issued to the
delinquent and he submitted the reply of the same which
was found to be unsatisfactory.
I, therefore, upon being satisfied with the merit of the
case decide to award the punishment of removal from
service to Shri. Debananda Borah, Stenographer of the
office of the Supdt of Police, Lakhimpur, North Lakhimpur
with immediate effect.
Shri Debananda Borah will not be entitled to any
arrear pay and allowances other than what he has already
drawn for the period of suspension w.e.f. 05/03/ to
09/10/2007
The Departmental Proceeding drawn up against shri.
Debananda Borah vide this Hqrs. Memo No.
Proc.Cell/XXVII/6/2004/10 dtd 15.05 2004 is disposed off
accordingly"
29. Reading the aforesaid, it appears that the disciplinary
authority has not recorded any reasons against the charges and
has merely agreed with the findings of the inquiry officer. It is
thus clear that the disciplinary authority has not applied its mind
to the evidence, or that it has recorded independent findings on
each charge. This omission constitutes non-compliance of Sub-
Rule 9 of Rule 9 of the said 1964 Rules, rendering the order of
removal unsustainable in law.
30. Reference in this regard is made to the decision of the Co-
ordinate Bench of this Court in the case of Debabrata Shee and
Others -Vs- State of Assam and others, reported in 2016 (5)
GLT 230, wherein this Court has held that any violation of Rule 9
of the said 1964 Rules will vitiate the inquiry. Relevant paragraphs
of the said judgment read as under -
""7. A perusal of Rule 9 makes it clear that no
penalties specified in Rule 7 of the Rules of 1964 are
to be passed except in consonance with an inquiry
held in the manner prescribed therein, Definite
charges are to be framed which is to be made over to
the delinquent along with statement of allegations
and affording opportunity to file written statement of
defence) What is of utmost importance is that at the
time of delivering the charges, the Government
servant facing an inquiry must invariably be
furnished with the list of documents and witnesses
by which each article of charges is proposed to be
sustained. Additional safeguards is also provided to
the Government servant, in that, for the purpose of his
defence, he must be permitted to inspect and take
extracts from such official records unless, the
Disciplinary Authority is of the opinion that the same
are not relevant for the purpose or it is against public
interest to allow such access to the Government
servant. The Inquiry envisages consideration of
documentary evidence after taking oral evidence by
the Inquiring Authority as may be relevant or material
in respect of the charges. (Opportunity to cross-
examine witnesses examined in support of the
charges as well as to give evidence in person and to
adduce documentary and oral evidence in his defence
are the built-in procedural safeguards envisaged
under Rule 9 of the Rules of 1964. Exception made is
that if the Inquiring Authority declines to examine any
witnesses or to admit any document in evidence on
ground that such evidence or document is not relevant
or material, reasons in writing will have to be
recorded. An Inquiry stands concluded by preparation
of an Enquiry Report, recording the findings on each
of the charges together with reasons therefor. Rule 9
further contemplates that the record of Inquiry,
amongst others, is to include the oral evidence taken
and documentary evidence considered in the course
of the Inquiry. Obligation is also cast upon the
Disciplinary Authority, if it is not the Inquiring
Authority, to consider the record of the Inquiry and to
record its findings on each charge.
8. The scope and ambit of Rule 9 of the Rules of 1964
was considered by a three Judge Bench of this Court
in the case of TS. Srivastava Vs. State of Assam &
Ors., reported in AIR 1972 Gauhati/2 and in no
uncertain words it has been held that the procedure
laid down under Rule 9 15 mandatory procedure and
any violation of the rule will vitiate the Inquiry. It was
also held that the Rules have been made in order to
ensure security of the service and, as such, cannot be
Allowed to be by-passed or observed in a casual or
mechanical way. To take a leaf out of the judgment.
"These are not merely ceremonial adornment in
print but are meant to be properly and
positively observed"
It is also too well settled in law that if an Inquiry is to
be conducted against any person, the same has to be
done by giving strict adherence to the statutory
provisions and the principles of natural justice.
Support can also be had from the case in Nazir
Ahmad Vs. King Emperor reported in AIR 1936 Privy
Council 253 (2) which lays down the law that where a
power is given to do a certain thing in a certain way,
the thing must be done in that way or not at all other
methods of performances being necessarily
forbidden."
31. In view of the foregoing, though this Court does not find
any merit to the challenge of the inquiry, however, the order of
the disciplinary authority dated 28.11.2008 inflicting the
punishment of removal from service of the petitioner is found to
be erroneous. Once the foundational order is vitiated for violation
of the statutory Rules, the appellate order also cannot stand.
32. Accordingly, the impugned order of removal from service
dated 28.11.2008 (Annexure-8 to this petition) and the order of
the appellate authority dated 14.07.2012 (Annexure-12 to this
petition) are set aside and quashed.
33. However, it shall be open to the disciplinary authority to
proceed afresh from the stage of the report of the inquiry officer
and to pass appropriate orders in accordance with law after due
consideration of the records and recording of findings on each
charge.
34. With the above observations, this writ petition stands
disposed of.
JUDGE
Comparing Assistant
