Page No.# 1/13 vs The State Of Assam And 3 Ors. (G)
2025 Latest Caselaw 7668 Gua

Gauhati High Court

Page No.# 1/13 vs The State Of Assam And 3 Ors. (G) on 26 September, 2025

                                                               Page No.# 1/13

GAHC010266832024




                                                          2025:GAU-AS:13473

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

                        Case No. : WP(C)/6791/2024

         OM PRAKASH AGARWALLA
         S/O- LATE CHANDMAL AGARWALLA,
         R/O- H.NO-12,
         MONALISA PATH, ZOO- NARENGI ROAD, P.S- GEETANAGAR, DIST-
         KAMRUP (M), ASSAM, PIN-781024



         VERSUS

         THE STATE OF ASSAM AND 3 ORS. (G)
         REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM,
         INDUSTRIES AND COMMERCE DEPARTMENT, ASSAM, GUWAHATI-781006

         2:ASSAM INDUSTRIAL DEVELOPMENT CORPORATION
          REPRESENTED BY ITS MANAGING DIRECTOR

         OFFICE ADDRESS- R.G BARUAH ROAD
         GUWAHATI
         ASSAM. POST OFFICE- ZOO ROAD PIN - 781024.

         3:THE MANAGING DIRECTOR
         ASSAM INDUSTRIAL DEVELOPMENT CORPORATION

         WITH ITS OFFICE AT R.G BARUAH ROAD
         GUWAHATI
         ASSAM. POST OFFICE- ZOO ROAD PIN - 781024.

         4:THE ENQUIRY OFFICER CUM DEPUTY GENERAL MANAGER (TECH.)
         ASSAM INDUSTRIAL DEVELOPMENT CORPORATION

         WITH ITS OFFICE AT R.G BARUAH ROAD
         GUWAHATI
         ASSAM. POST OFFICE- ZOO ROAD PIN - 781024
                                                                                  Page No.# 2/13



      Advocate for the petitioner:      Mr. K.N. Choudhury,
                                        Mr. A. Atreya



      Advocate for the respondents:     Mr. N. Das

Ms. A. Bhuyan Mr. J.K. Goswami

BEFORE

HON'BLE MRS. JUSTICE MARLI VANKUNG

Date of hearing: 26.08.2025.

      Date of judgment:          26.09.2025




                             JUDGEMENT AND ORDER (CAV)

Heard Mr. K.N. Choudhury, learned senior counsel for the petitioner assisted by Mr. A.

Atreya, learned counsel. Also heard Ms. A. Bhuyan, learned counsel for respondent Nos. 2, 3

& 4 appearing on behalf of her senior Mr. N. Das. The state is the proforma respondent No. 1.

and is represented by Mr. J.K. Goswami, learned Addl. Senior Government Advocate for

2. The instant writ petition is filed under Article 226 of the Constitution of India, for the

issuance of the appropriate writ or direction to the respondents, for setting aside the

impugned enquiry report dated 04.05.2024, issued by respondent No. 4 and the decision

dated 03.10.2024 taken in the 317 meeting of the Board of Directors of respondent No. 2 Page No.# 3/13

which is to impose penalty of dismissal upon the petitioner and for quashing and setting aside

the impugned office order dated 05.11.2024, imposing the penalty of dismissal issued by

respondent No. 3 against the petitioner.

3. The case of the petitioner is that the petitioner was serving as Financial Controller of

the Assam Industrial Development Cooperation Limited (AIDC), which is a class-I post under

the AIDC (Employees Service) Rules, 1992. Thereafter, there was an allegation which revolves

around a particular fixed deposit made by the AIDC at Canara Bank amounting to Rs.

15,00,00,000/- which was to mature on 17.06.2020, which was transferred to the Central

Bank of India for being kept as a fixed deposit, from where Rs. 14,97,91,144/- was credited

to the account of one Mr. Raj Mohammed. The respondent/Central Bank of India denied the

knowledge of the said fixed deposit and transfer which resulted in their lodging an FIR

registered as 298/2020 at the Bhangagarh PS registered under Sections

203/406/420/463/468 IPC against Mr. Raj Mohammad, Proprietor of M/s Rehana Enterprise

and other unknown persons, following which the petitioner was also arrested for his alleged

involvement in the transfer of the money to Central bank of India wherein, the petitioner was

later released on bail. A disciplinary proceeding was also initiated against the petitioner, which

resulted in the termination of the petitioner from his services vide order dated 23.03.2022.

Being aggrieved with the enquiry report dated 30.10.2021 as well as the termination order

dated 23.03.2022, the petitioner had filed a writ petition registered as WP(C) No. 5085/2022.

The said WP(C) No. 5085/2022 was disposed of by this court vide order dated 24.11.2023,

wherein both the enquiry report dated 30.10.2021 as well as the termination order dated

23.03.2022 is set aside and an enquiry was ordered to be proceeded with denovo.

Page No.# 4/13

4. Mr. K.N. Choudhury, learned senior counsel for the petitioner submitted that the instant

writ petition emanate from the order dated 24.11.2023 passed by this court in WP(C) No.

5085/2022, by which the previous departmental proceedings on the same set of facts against

the petitioner was set aside and denovo proceedings were directed.

5. The learned Sr. Counsel submitted that the respondents conducted the denovo

proceedings in a manner which is contrary to law and thereafter issued the impugned enquiry

report dated 04.05.2024 and the office order dated 05.11.2024, by which the penalty of

dismissal from service was imposed upon the petitioner. The learned counsel submitted that

as per

Rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, there is

no provision for completely setting aside previous enquiries in the event of some defect found

in the Enquiry report, the appropriate steps would be for the Enquiry Officer was to take

further evidence. The learned Sr. Counsel submitted that respondents had erred in conducting

the enquiry report afresh by appointing a different enquiry Officer and without conducting a

further enquiry as per law. He submitted that in the first round of litigation, the preliminary

enquiry report was made behind the back of the petitioner, without him being involved and

for which this court in its' order dated 24.11.2023, in WP( C) 5085, had directed for a denovo

enquiry, wherein, the correct procedure was to have further enquiry done by the enquiry

officer and without the respondents appointing a different enquiry Officer.

6. The learned senior counsel has relied on the judgments of the Apex Court in K.R. Dev

Vs. Collector of Central Excise, Shillong , reported in 1971 (2) SCC 102 (para 11 & 12),

wherein the Apex court held that "Rule 15, provides for one inquiry but if some serious defect Page No.# 5/13

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. "

7. The learned senior counsel also relied on the judgment of the Apex court in Union of

India Vs. K.D. Pandey, reported in (2002) 10 SCC 471 ( para 3, 4 & 5 ) wherein the

learned senior counsel emphasized on para 5 of the judgment which is reproduced herein:

"5. Learned counsel for the appellant contended that in this case the Board had

examined the material on record and come to the conclusion that four of the six charges

could be proved on the available material, which had not been properly examined in the

earlier inquiry. In fact from the order made by the Railway Board as well as from that part of

the file where the inquiry report made earlier is discussed, it is clear that specific findings

have been given in respect of each of the charges after discussing the matter and, if that is

so, we fail to understand as to how there could have been a remit to the inquiry authority for

further inquiry. Indeed this resulted in second inquiry and not in a further inquiry on the

same set of charges and the material on record. If this process is allowed the inquiries can go

on perpetually until the view of the inquiry authority is in accord with that of the disciplinary

authority and it would be abuse of the process of law. In that view of the matter we think

that the order made by the High Court affirming the order of the Tribunal is just and proper

and, therefore, we decline to interfere with the same. The appeal is dismissed accordingly."

8. The learned senior counsel also relied on the judgment of the Apex Court in Vijay Page No.# 6/13

Shankar Pandey Vs. Union of India & Anr. , reported in (2014) 10 SCC 589 wherein it

was held "that the normal rule is that there can be only one enquiry. And where there is a the

possibility of a further enquiry in certain circumstances enumerated therein. however if the

report submitted by the enquiring authority is not acceptable to the disciplinary authority, it is

not a ground for completely setting aside the enquiry report and ordering a second enquiry

under the scheme of Rule 8 of the Discipline Rules and Rule 15 of the Central Civil Services

(Classification, Control and Appeal) Rules, 1965

9. The learned senior counsel also cited the judgment of the this court in Moloy Bora

Vs. State of Assam & Ors., reported in (2015) 3 GLR 152 wherein it was held at para 16

to 18 as follows:-

"16. In Union of India v. K.D. Pandey, (2002) 10 SCC 471, the Apex Court drew a distinction between a second enquiry and a further enquiry on the same set of charges and materials on record. It was held that second enquiry was not permissible and if such a process is allowed, the enquiries can go on perpetually until the view of the enquiry authority is in accord with that of the disciplinary authority and it would be an abuse of the process of law.

17. Similar view has been taken by the Apex Court in a recent decision reported in Vijay Shankar Pandey v. Union of India and Anr., (2014) 10 SCC 589. It has been held that non- acceptability of the enquiry report submitted by the Inquiry Officer cannot be a ground for rejecting the enquiry report and ordering second enquiry.

18. In Bidyut Buragohain v. State of Assam, 2005 (3) GLT 457, this court was examining the provisions of rule 9 of the Assam Services (Discipline & Appeal) Rules, 1964, more particularly rule 9(9) thereof. It has been held that there is no specific power under Rule 9 empowering the disciplinary authority to hold a fresh/de novo enquiry in case the disciplinary authority is in disagreement with the finding of the Inquiry Officer. The Rules are conspicuously silent in this regard and no such power has been specifically or impliedly conferred. Comparing the provisions of rule 15(9) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 and rule 9(9) of the Assam Services (Discipline & Appeal) Rules, 1964, it was held that the two provisions are in pari materia. While a further enquiry may be permissible by directing the Inquiry Officer to examine further witnesses, a fresh enquiry into the same set of allegations by discarding the earlier enquiry report is not contemplated. No specific power to hold a second enquiry into the same set of allegations, which were earlier enquired into have been vested with the disciplinary authority under rule 9 of the Assam Services (Discipline & Appeal) Rules, 1964. Further, provisions of rule 9 of the Assam Services Page No.# 7/13

(Discipline & Appeal) Rules, 1964 have been held to be mandatory provisions."

The learned senior counsel thus submitted that from the decisions cited above it is clear that the respondents had erred in conducting a fresh enquiry against the petitioner on the same set of articles of charges, whereas the correct procedure as per law was to conduct a further inquiry.

10. Per Contra, Ms. A. Bhuyan, learned counsel for respondent Nos. 2, 3 & 4 submitted

that if the writ petitioner was aggrieved by the findings of the enquiry officer dated

04.05.2024 and the order dated 05.11.2024, imposing the penalty of dismissal, there was an

alternative remedy available to the petitioner by way of an appeal against the impugned

orders under the Assam Industrial development Corporation Employees Conduct, Discipline

and Appeal Rules,1985, which was not done so.

11. The learned counsel further submitted that there is no explanation of the term 'denovo'

in the Assam Industrial development Corporation Employees Conduct, Discipline and Appeal

Rules, 1985 or in the Assam Services (Discipline & Appeals) Rules, 1964 nor in the Central

Civil Services (Classification, Control and Appeal) Rules, 1957, therefore, it cannot be simply

construed that further evidence is to be taken in the instant case. The learned counsel

submitted that the applicability of the Central Civil Services (Classification, Control and

Appeal) Rules, 1957 was also questionable in the instant case.

12. The learned counsel further submitted that the respondents have rightly appointed a

different Enquiry Officer, Shri Sazzd Alam, ACS, Joint Secretary to the Government of Assam,

Industries, Commerce and P.E Department, who proceeded with a fresh enquiry for which, no

prejudice was caused to the petitioner. She further submitted that there is no objection raised

concerning the appointment of a new enquiry officer during the subsequent enquiry

proceedings which was conducted denovo in terms of the direction of this court in WP(C)

5085, dated 24.11.2023.

Page No.# 8/13

The learned counsel also submitted that on a perusal of the rules, there is no bar for

the appointment of a new Enquiry Officer and thus after following all the procedures

prescribe in the Assam Industrial development Corporation Employees Conduct, Discipline

and Appeal Rules,1985 and the Assam Services (Discipline & Appeals) Rules, 1964 the fresh

enquiry report dated 04.05.2024 was prepared by Shri Sazzd Alam, ACS, Joint Secretary to

the Government of Assam, Industries, Commerce and P.E Department - cum- Inquiry Officer.

The learned counsel thus submitted that the respondents had acted in compliance with the

order of this court dated 24.11.2023 in WP (C) 5085/2022, by having a fresh enquiry, wherein

the charges against the petitioner was found to be proved and therefore, rightly dismissed

from his service.

13. The learned counsel for the respondent also submitted that the judgments cited by the

counsels for the petitioner are not applicable in the instant case since the facts and

circumstances are different.

14. I have considered the submissions made by the learned counsels for both the parties

and have perused the documents on record.

This court finds that the instant writ petition emanate from the order dated 24.11.2023

passed by this court in WP(C) No. 5085/2022, by which the previous departmental

proceedings on the same set of facts against the petitioner was set aside and denovo

proceedings were directed.

15. The main point for consideration in the instant writ petition is whether the

respondents, in view of the order of this court in WP(C) No. 5085/2022 dated 24.11.2023,

had erred in holding a fresh enquiry, by appointing a new enquiry officer in the disciplinary Page No.# 9/13

proceedings against the petitioner thereafter, instead of holding further enquiry considering

the provisions of rule 15 of the Central Civil Services (Classification, Control and Appeal)

Rules, 1957 vis a vis the Assam Services (Discipline & Appeal) Rules, 1964.

16. This court finds it appropriate to reproduce the relevant portion of the judgment in

WP( C) 5085/2022, wherein it was directed for the respondent authorities to have a denovo

proceeding. The operative paragraphs are reproduced herein under:

"........It is clear from the perusal of the enquiry report that the Enquiry Officer had

relied upon the preliminary enquiry report during the departmental enquiry conducted by the

Department. It is clear from the preliminary inquiry report that no opportunity was granted to

the petitioner at the time of conducting the preliminary enquiry and these facts are not

disputed by the respondents. 15] Subsequently, by memorandum dated 19.05.2021 a show

cause was issued with charges to which the petitioner had replied on 25.06.2021. Being not

satisfied with the reply, the departmental proceedings were initiated. Once the formal

disciplinary proceedings were initiated, the preliminary conducted earlier by the Department

completely lose its significance and value. The evidence recorded in preliminary enquiry

cannot be used in regular enquiry as the delinquent employee was not associated with it and

no opportunity to cross examine the witnesses were given to the delinquent employee. So

any reliance on this evidence would be violative of the principles of natural justice. Natural

Justice is an inbuilt and inseparable ingredient of fairness and reasonableness. Strict

adherence to the principle is required whenever civil consequences follow as a result of the

order passed. Natural justice is a universal justice. In certain factual circumstances, even

non-observance of rule will itself result in prejudice. In the facts of this case, from a bare Page No.# 10/13

perusal of the enquiry report, it is seen that references are made to the preliminary inquiry

report conducted earlier. As such, it is evident that during the course of the disciplinary

proceedings the Enquiry Officer relied upon the materials and/or the findings in the

preliminary enquiry. There is no dispute that this preliminary enquiry was conducted behind

the back of the petitioner and no opportunity was granted to the petitioner to examine any

witnesses whose statements were recorded during the preliminary enquiry or test the

veracity of any documents relied upon. As such, in view of the principle of law laid down in

Nirmala J. Jhala (supra) this Court has no option but to hold that the enquiry officer relied

upon the preliminary enquiry report during the disciplinary proceedings conducted against

the petitioner which is evident from the enquiry report itself. Under such circumstances, such

enquiry conducted has to be held to be in violation of the principles of natural justice and is

therefore hit by Article 14 of the Constitution of India. Therefore, there was no occasion for

the Enquiry Officer to refer to and/or rely upon the preliminary enquiry report against the

petitioner. The findings arrived at during the preliminary enquiry cannot be used against the

petitioner in the formal disciplinary proceedings, inasmuch as, no opportunity of participation

and hearing was offered to the petitioner during the course of preliminary enquiry.

16] Under such circumstances, this Court is of the considered view that the reliance

placed by the Enquiry Officer upon the preliminary enquiry report conducted earlier by the

Department is completely contrary to the law postulated by the Apex Court and therefore, it

cannot be accepted to be a correct procedure. This Court upon giving its anxious

consideration to the issues involved as well as having regard to the law laid down by the

Apex Court is of the considered view that the enquiry report dated 30.10.2021 submitted by

the Enquiry Officer pursuant to the disciplinary proceedings/enquiry initiated against the Page No.# 11/13

petitioner by the Department is required to be interfered with and set aside. The matter is

accordingly remanded back to the Department to proceed with a de novo enquiry against the

petitioner. The Department will not rely upon the preliminary enquiry report dated 07.11.2020

earlier conducted by the department. The petitioner will be treated to be under suspension

and will be granted subsistence allowances as per provision of law. After completion of the de

novo enquiry, the disciplinary authority will thereafter arrive at its conclusion on the basis of

the enquiry report as may be submitted and thereafter consequential orders would be passed

by the Department as per provision of law."

17. From the reading of the above paragraphs, this court finds that the facts and

circumstances of the instant case is different from the cases relied upon by the learned

counsel for the petitioner, wherein in K.R. Dev Vs. Collector of Central Excise( supra)

and Vijay Shankar Pandey Vs. Union of India & Anr (supra), the cases deal with

situations where the Disciplinary Authority directed for fresh inquiry proceedings on being

dissatisfied with the findings of the inquiry officer. The Apex court in such cases had observed

that a second enquiry was not permissible while referring to Rule 15 of the Central Civil

Services (Classification, Control and Appeal) Rules, 1965. The decision in K.R. Deb (supra)

has clarified that a disciplinary authority cannot abuse its power by ordering repeated

inquiries until it gets a desired result, which reinforces the principle that disciplinary action

must be based on a fair and lawful procedure and not on the personal satisfaction of the

authority.

18. This court thus finds that the instant case is not in relation to the provisions of Rule 15

of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 which refers to a Page No.# 12/13

situation where 'the disciplinary authority, if it is not itself the inquiring authority may, for

reasons to be recorded by it in writing, remit the case to the inquiring authority for further

inquiry and report and the inquiring authority shall thereupon proceed to hold the further

inquiry according to the provisions of Rule 14.'

19. This court also finds that the decision and findings of this court in Moloy Bora Vs.

State of Assam & Ors (supra) is also not applicable in the instant case wherein in the cited

case it was held that 'no specific power to hold a second enquiry into the same set of

allegations, which were earlier enquired into have been vested with the disciplinary authority

under rule 9 of the Assam Services (Discipline & Appeal) Rules, 1964. Further, provisions of

rule 9 of the Assam Services (Discipline & Appeal) Rules, 1964 have been held to be

mandatory provisions." However, the facts of this cited case relate to a situation where the

enquiry report of the Inquiry officer had exonerated the petitioner, which was not accepted by

the Disciplinary Authority and as such a new Inquiry authority was appointed by the

respondent authorities wherein the charges against the petitioner was held to be proved.

20. The instant case is different from the above cited case and relates to a situation

wherein this court in WP(C) No. 5085/2022, found that there was procedural lapse in the

preliminary inquiry, which was held without the knowledge of the petitioner, which amounted

to a violation of the basic principles of natural justice and wherein the enquiry report dated

30.10.2021, submitted by the Enquiry Officer pursuant to the disciplinary proceedings/enquiry

initiated against the petitioner had also relied upon the findings of the preliminary enquiry, for

which it was held that the enquiry report dated 30.10.2021, is required to be interfered with

and accordingly set aside. The matter was thus remanded back to the Department to proceed

with a denovo enquiry against the petitioner.

Page No.# 13/13

21. This court finds that a denovo enquiry in a disciplinary proceeding would mean a

completely new investigation, conducted to ensure fairness and justice where procedural

errors was found in the previous enquiry to meet the ends of justice. It is also noted that the

enquiry officer in the first round of enquiry had found that the charges issued against the

petition was proved. Thus, this court finds that no prejudice was caused to the petitioner in

the event of a denovo enquiry by appointing a different inquiry officer to ensure a fair and

equitable proceeding.

22. In view of the finding and reasons discussed above, this court is of the considered

view that there are no grounds to interfere with the enquiry report dated 04.05.2024, and the

decision dated 03.10.2024 taken in the 317 meeting of the Board of Directors of respondent

No. 2 to impose penalty of dismissal upon the petitioner and also the office order dated

05.11.2024, imposing the penalty of dismissal from his service issued against the petitioner.

21. Accordingly WP (C) No.6791 of 2024 stands dismissed and disposed of.

JUDGE

Comparing Assistant