[Cites 25, Cited by 0]

Gauhati High Court

Page No.# 1/39 vs The State Of Assam And 5 Ors on 18 February, 2026

Page No.# 1/39

GAHC010239902024

2026:GAU-AS:2463

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

Case No. : WP(C)/6026/2024

UKHUNDOI BRAHMA
S/O- SRI GOPINATH BRAHMA, VILL.- BHALUKMARI, P.O. DOTMA, P.S.
DOTMA, DIST. KOKRAJHAR, ASSAM, PIN- 783370.

VERSUS

THE STATE OF ASSAM AND 5 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM, DEPTT. OF HOME, DISPUR, GUWAHATI-6, ASSAM

2:THE DIRECTOR GENERAL OF POLICE
ULUBARI
GUWAHATI-7
PIN- 781007.

3:THE INSPECTOR GENERAL OF POLICE
KOKRAJHAR (BTR)
ASSAM
PIN- 783370.

4:THE ADDITIONAL DISTRICT GENERAL OF POLICE (T AND AP)
ASSAM
GUWAHATI
ULUBARI
PIN- 781007.

5:THE SUPERINTENDENT OF POLICE
KOKRAJHAR
ASSAM
PIN- 783370.

6:THE OFFICER IN CHARGE
KOKRAJHAR POLICE STATION
P.S. AND DIST. KOKRAJHAR
Page No.# 2/39

ASSAM
PIN- 783370

BEFORE
HON'BLE MR. JUSTICE RAJESH MAZUMDAR

Advocate for the petitioner(s): Mr A Roshid

Advocate for the respondent(s): Ms S Baruah, Jr. GA, Assam

Date on which judgment was reserved : 10.02.2026

Date of pronouncement of judgment : 18.02.2026

Whether the pronouncement is of the : NA
operative part of the judgment?
Whether the full judgment has been : Yes
pronounced?

JUDGMENT AND ORDER (ORAL)

Heard Mr. A Roshid, learned counsel appearing for the petitioner and also

heard Miss S Barua, learned Junior Government Advocate, who has also

produced the records of the disciplinary proceeding against the petitioner.

2. The story as unfolded in the pleading of the contesting parties is that

while working as an Unarmed Branch Constable (UBC) under the

Superintendent of Police, Kokrajhar, the petitioner and other personnel were Page No.# 3/39

detailed for duty to escort a few under trial prisoners to the Court of the learned

Judge, NIA Court, Guwahati. On the return journey, 2 (two) of the undertrial

prisoners managed to escape from the police van and in the attempt to stop

them, one of the UTPs sustained bullet injuries and later expired.

3. Regarding the aforesaid incident, Kokrajhar PS Case No. 403 of 2016,

under Sections 120(B)/128 of the IPC was registered. The petitioner was

arrested on the basis of the FIR on 14.07.2016 and he was released on bail on

20.08.2016

4. Upon trial, by the order dated 21.01.2023 passed in Sessions Case No.

(T) 2/02/2019, the petitioner along with other persons accused were acquitted

of the charges levelled and set at liberty.

5. In the meantime, the petitioner had been served with a show-cause

notice on 13.09.2016, issued by the Superintendent of Police, Kokrajhar, Assam,

requiring to show cause as to why penalties prescribed in the Rules described in

the show-cause itself should not be inflicted upon the petitioner on charges

based on the statement of allegations attached to the show cause notice. The

said notice had been described as the first show cause notice and is reproduced

hereinbelow for an ease of reference:

"OFFICE OF THE SUPERINTENDENT OF POLICE

Memo No. KJR/RO/DP/2016/15441 Dated. 13/09/2016.

Page No.# 4/39

To,

UBC/378 Ukhundoi Brahma of Kokrajhar D.E.F..

Sub:- 1st Show Cause Notice.

Ref: DP. No. 04/2016 of Kokrajhar D.E.F.

You are hereby required to Show-Cause under Sec. 65 of Assam Police Act, 2007 R/W Rule 66 of APM Part-III and Article-311 of the Constitution Of India and Rule 7 of Assam Services (Discipline and Appeal) Rules, 1964 as to why any of the penalties prescribed in the aforesaid rule should not be inflicted on you on the following charges based on the statement of allegation attached herewith.

While you were posted at Police Reserve, Kokrajhar, on 13-07-2016, you were deputed for escort duty under the command and control of ASI Dilip Basumatary to accompany with UBC/373 Sahajahan Ali and 01(one) section of 8th APBn personnel namely (1) Hav Naren Duwarah (2)CN/949 Mridul Kumar (3) CN/11 Nur Alim Ahmed and (4)CN/325 Sanjay Barman of Pln. No.21 camp Police Reserve, Kokrajhar under proper briefing for escort duty of 04(four) nos. UTPs namely (1) Sri Swmla Basumatary @ Sahaithab S/o-Rameswar Basumatary of Vill-14 No.Bishmuri PS & Dist-Kokrajhar (Assam) (2) Sri Rajib Basumatary @ Mirgang S/o-Jishang Basumatary of Vill-Thaisoguri Laimati Dist-Chirang (3) Sri Sanjay Narzary @ N.Saikhlur S/o-SriRoben Narzary of VII- No.2 Tukrajhar Dist-

Chirang and (4) Sri Lebao Basumatary @ Lebow @ Lubao S/o-Lt.Gojen Basumatary of Vill-Deoguri PS-Runikhata Dist-Chirang from Dist. Jail Kokrajhar to the Hon'ble Court of Spl. Judge NIA Assam, Guwahati for production vide Memo No.KDJ/2016/820 dtd.09-07-2016 of the Superintendent of District Jail, Kokrajhar. After completion of production procedure before the above mentioned Court all the 04(four) nos. UTPs were to be brought back to District Jail, Kokrajhar. On the way, the escort with UTPs left for Kokrajhar and they stopped at Rajapara for lunch and you on the order of ASI Dilip Basumatary free the UTPs of their hand cuffs and as requested by UTPs Sri Samla Basumatary and Rajib Basumatary you also provided them a pain relief spray. After lunch, the UTPs Sri Swmla Basumatary and Sri Rajib Basumatary were asked to sit on the back seat of the vehicle No. AS-16C- 4216 without hand cup. The other UTPs were asked to sit on the front seat of the vehicle with hand cuffs and you set out for Kokrajhar district Jail. When the vehicle reached Choibari Tea Estate, the UTPs who were without handcuff sprayed the pain relief spray on the eyes of the escort CN/11 Nur Alim Ahmed and CN/949 Mridul Kumar and the UTP Swmla Basumatary snatched away the INSAS Page No.# 5/39

Rifle of CN/11 Nur Alim Ahmed using force, bite etc. and jumped out over the window of the vehicle. Suddenly the driver stopped the vehicle and CN/949 Mridul Kumar rushed out of the vehicle. In the meantime UTP Swmla Basumatary started to fire on the police party with the Arms snatched from CN/949 Mridul Kumar and the police party having no alternative, opened retaliatory fire to control the situation. As a result UTP Sri Swmla Basumatary got injured and fell down. Then and there CN/11 Nur Alim Ahmed collected his INSAS Rifle from Swmla Basumatary and opened blank fire towards the jungle where other UTP Rajib Basumatary managed to have fled away from the P.O. Later on the injured UTP Swmla Basumatary expired and remaining 02 (two) nos. of UTPs Sri Sanjay Narzary and Sri Leha Basumatary were handed over at Dist. Jail. Kokrajhar. This amounts to serious lapse and willful negligence, dereliction of duty on your part. In this regard, a case has been registered vide Kokrajhar PS Case No. 403/2016 under Sections 120(8)/353/223/307/128/34 IPC. Accordingly, you were found involved in the above noted criminal case and arrested and forwarded to the judicial custody.

You above acts tantamount to gross misconduct rendering you liable for punishment as per procedure of law.

You are therefore, charged with Gross Misconduct you should submit your written statement in defence within 10 (ten) days from the date of receipt of this communication provided you do not intend 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 same within 7 (seven) days from the date of receipt of this communication and submit your explanation thereafter within 10 (ten) days from the date of completion of the inspection.

Your written statement in defence stating whether you desire to be heard in person should be submit to the undersigned within the period specified above.

If the Disciplinary authority decides to appoint an enquiry Officer to inquire into the charge you will be allowed to present your case, if you so desire with the assistance of any others 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 charges before the enquiry authority is a legal practitioner of unless the Disciplinary Authority so permit. List of documents and witnesses proposed to be relied upon for proving these charges and the allegation are also enclosed.

List of Documents:-

1. Copy of Memo No.KDJ.2016/820 Dtd.09-07-2016 of the Supdt. of District Jail, Kokrajhar.

2. Copy of Command Certificate issuing from Police Reserve, Kokrajhar.

3. Copy of detailed report submitted by O.C. Kokrajhar PS in connection with Kokrajhar PS Case No.403/2016 under Section 120(B)/353/223/307/128/34 IPC.

4. Copy of suspension order vide Memo KJR/RO/2016/13411-18 Dtd.16-07-2016.

Page No.# 6/39

5. Copy of WT Msg. No. KJR PS/WT/2016/Vol-V/321-325 Dtd.14-07-2016 of O.C. Kokrajhar PS. List of Witnesses:-

1 Shri Rabin Choudhury, Inspr.O.C.Kokrajhar PS. 2 Shri Balen Adhikary, ABI Police Reserve, Kokrajhar.

3 Hav Naren Dawarah 4 CN/949 Mridul Kumar 5 CN/11 Nur Alim Ahmed 6 CN/325 Sanjay Barman All are of Pln. No.21,8th APBn.

Presenting Officer:-

7. Sri Satya Nath Kalita S.I of Police, Reserve Officer, Kokrajhar.

Superintendent of Police Kokrajhar STATEMENT OF ALLEGATION While UBC/378 Ukhudoy Brahma was posted at Police Reserve, Kokrajhar, on 13.07.2016, he was deputed for escort duty under the command and control of ASI Dilip Basumatary to accompany with UBC/373 Sahajahan Ali and section of 8th APBn personnel namely-(1) Hav Naren Duwarah (2)CN/949 Mridul Kumar (3) control of Ast Dilip Basumatary to accompany with UBC/373 Sahajahan Ali and 01(one) CN/11 Nur Alim Ahmed and [4]CN/325 Sanjay Barman of Pin. No.21 camp Police Reserve. Kokrajhar under proper briefing for escort duty of 04 (four) nos. UTPs namely (1) Sri Swmla Basumatary Sahaithab S/o-Rameswar Basumatary of Vill-14 No Bishmuri PS & Dist-Kokrajhar (Assam) (2) Sri Rajib Basumatary & Mirgang 5/o-jishang Basumatary of Vill-Thaisoguri Laimati Dist- Chirang (3) Sri Sanjay Narzary @ N.Saikhlur S/o-SriRoben Narzary of VII- No.2 Tukrajhar Dist- Chirang and (4) Sri Lebao Basumatary @ Lebow @ Lubao 5/0 Lt.Gojen Basumatary of Vill-Deoguri PS-Runikhata Dist-Chirang from Dist. Jail Kokrajhar to the Hon'ble Court of Spl. Judge NIA Assam, Guwahati for production vide Memo No.KDJ/2016/820 dtd.09-07-2016 of the Superintendent of District Jail, Kokrajhar. After completion of production procedure before the above mentioned Court all the 04 (four) nos. UTPs were to be brought back to District Jall, Kokrajhar. On the way, the escort with UTPS left for Kokrajhar and they stopped at Rajapara for lunch and he was free the UTPs off their handcuffs and as requested by UTPs Sri Samla Basumatary and Rajib Basumatary he also provided them a pain relief spray. After lunch, the UTPs Sri Swmla Basumatary and Sri Rajib Basumatary were asked to sit on the back seat of the vehicle No. AS-16C-4216 without hand cuff. The other UTPs were asked to sit on the front seat of the vehicle with hand cuffs and you set out for Kokrajhar district Jail. When the vehicle reached Choibari Tea Estate, the UTPs who were without handcuff sprayed the pain relief spray on the eyes of the escort CN/11 Nur Alim Ahmed and CN/949Mridul Kumar and the UTP Swmla Basumatary snatched away the INSAS Rifle of CN/11 Nur Alim Ahmed using force, bite etc. and jumped out over the window of the vehicle. Suddenly the driver stopped the vehicle and CN/949 Mridul Kumar rushed out of the vehicle. In the meantime UTP Swmla Basumatary started to Fre on the police party with the Arms snatched from CN/949 Mridul Kumar and the police arty having no alternative, opened retaliatory fire to control the situation. As a result UTP Swmla Basumatary got injured and fell down. Then and there CN/11 Nur Alim Ahmed Jected his INSAS Rifle from Swmla Basumatary and opened blank fire towards the jungle ere other UTP Rajib Basumatary managed to have fled away from the P.O. Later on the red UTP Swmla Basumatary expired and remaining 02(two) nos. UTPs Sri Sanjay ary and Sri Lebao Basumatary were handed over at Dist. Jail, Kokrajhar. This amounts to us lapse and willful negligence, dereliction of duty on your part. In this regard, a case been registered vide Kokrajhar PS Case No.403/2016 under Section / 353/223/307/128/34 IPC. Accordingly, you were found involved in the above noted al case and Page No.# 7/39

arrested and forwarded to the judicial custody.

His above act tantamount to willful negligence and dereliction of duty on his part.

Superintendent of Police Kokrajhar"

6. The petitioner submitted his reply to the show cause notice on

23.09.2016. Not being satisfied with the reply to the show-cause, the

Superintendent of Police appointed an Enquiry Officer by the order dated

10.01.2017. The statement of the witnesses were thereafter recorded by the

Enquiry Officer. The file noting in the records of the disciplinary proceedings, as

requisitioned by the learned counsel for the respondents for production before

this Court, reveal that the enquiry was completed on 08.01.2018. Having so

completed the enquiry, the Enquiry Officer submitted the Enquiry Report on

08.01.2018 itself. The petitioner was, thereafter, issued a "2 nd show cause

notice" by the Superintendent of Police, Kokrajhar, Assam, on 15.01.2018, the

contents of which are quoted below for an easy reference:

7. "During enquiry, it has been found that the charge leveled against you for your gross misconduct is proved beyond any reasonable doubt.

8. I also agree with the findings of the Enquiry Officer and propose to inflict major punishment upon you.

9. You are, hereby, required to show cause, if any, against the action proposed to be taken against you.

Such representation, if any, should be made in writing and submitted to the undersigned within 7 (seven) days from the date of receipt of this communication."

Page No.# 8/39

10. The petitioner submitted his reply on 23rd day of January, 2018, to the

Superintendent of Police, Kokrajhar. By the order dated 03.02.2018, the

petitioner was inflicted the punishment of removal from service with immediate

effect, further directing that the suspension period w.e.f. 16.07.2016 to

15.12.2016 be treated as period spent on duty. The disciplinary proceeding was

accordingly disposed of.

11. The petitioner has, in the writ petition, prayed for quashing of the order

dated 03.02.2018 by which the petitioner was removed from his services and as

consequential relief, for restoration in service and payment of back wages.

12. This Court has heard the learned counsel for the contesting parties and

has also perused the records made available to the Court by the learned

Government Advocate, Assam.

13. What attracts the attention of this Court at the first instance is the

manner in which the first show cause notice was issued to the petitioner. The

contents of the first show cause notice has been reflected in the foregoing

paragraphs. The show cause notice dated 13.09.2016, while referring to the

different enactments, Rules and Article 311 of the Constitution of India, had

required the petitioner to show cause as to why any of the penalties prescribed

in the Rules (the Assam Services Discipline and Appeal) Rules, 1964) should not

be inflicted upon the petitioner on the charges levelled. At the first glance itself, Page No.# 9/39

the notice appears to be one, which has required the petitioner to show cause

as to why a penalty should not be imposed upon him, indicating that the

disciplinary authority had pre-conceived the notion about the guilt of the

petitioner and therefore, had required him to have his say on the penalty sought

to be inflicted upon him. This court is of the opinion that even at the stage of

the show cause notice, the Disciplinary authority had completely made up his

mind and reached definitive conclusions about the alleged guilt of the petitioner

herein. Consequently, the preconceived mind has rendered the subsequent

proceedings an empty ritual and an idle formality.

14. In Kumaon Mandal Vikas Nigam Limited versus Girija Shankar Pant and

others reported in (2001) 1 SCC 182, the Apex court was dealing with a show

cause notice issued to an employee. The court made the following observations

by referring to the language in the show cause notice:

"25. Upon consideration of the language in the show-cause notice-cum-charge-sheet, it has been very strongly contended that it is clear that the Officer concerned has a mindset even at the stage of framing of charges and we also do find some justification in such a submission since the chain is otherwise complete."

"35. The test, therefore, is as to whether a mere apprehension of bias or there being a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom -- in the event however the conclusion is otherwise inescapable that there is existing a real danger of bias, the administrative action cannot be sustained:"

Page No.# 10/39

15. In Oryx fisheries Private Limited versus Union of India and others

reported in (2010) 13 SCC 427, the Apex Court had held as follows;

31. It is of course true that the show cause notice cannot be read hyper-technically and it is well settled that it is to be read reasonably. But one thing is clear that while reading a show-cause notice the person who is subject to it must get an impression that he will get an effective opportunity to rebut the allegations contained in the show cause notice and prove his innocence. If on a reasonable reading of a show-cause notice a person of ordinary prudence gets the feeling that his reply to the show cause notice will be an empty ceremony and he will merely knock his head against the impenetrable wall of prejudged opinion, such a show cause notice does not commence a fair procedure especially when it is issued in a quasi- judicial proceeding under a statutory regulation which promises to give the person proceeded against a reasonable opportunity of defence.

32. Therefore, while issuing a show-cause notice, the authorities must take care to manifestly keep an open mind as they are to act fairly in adjudging the guilt or otherwise of the person proceeded against and specially when he has the power to take a punitive step against the person after giving him a show cause notice.

33. The principle that justice must not only be done but it must eminently appear to be done as well is equally applicable to quasi judicial proceeding if such a proceeding has to inspire confidence in the mind of those who are subject to it."

16. In Shri Hiramohan Doley Versus The State of Assam & others, reported

in 2017 (3) GLJ 714, where similar language was employed in the show cause

notice, this Court had held that such a language indeed reflects the pre-

conceived mind of a disciplinary authority. It was held as follows:

"12. In the above context, it would be pertinent to mention here-in that in the show cause Page No.# 11/39

notice dated 03-10-2012 the only thing that was mentioned was that the petitioner was willingly absent from duty from 29-08-2012 and therefore, he was asked to show cause as to why disciplinary action should not be taken against him as per Assam Municipal Act, 1956. The contents of the notice dated 03-10-2012 is quoted here-in-below for ready reference:-

"OFFICE OF THE PRESIDENT OF DHEMAJI TOWN COMMITTEE, DHEMAJI No.DTC/A-1/2012/528 Dated - 03.10.2012 To Sri Hiramohan Doley Electrician Dhemaji Town Committee. Sub - Seeking explanation for absent in duty. You are willingly absent to your duties from 29.08.2012. As per the decision of the executive committee meeting of Dhemaji Town Committee held on 29.09.2012 you are hereby asked to state satisfactory reason why disciplinary action will not be taken against you within three days from today i.e. 03.10.2012. Otherwise appropriate action will be taken as per the Assam Municipality Act, 1960.

Sd/- Illegible President

Dhemaji Town Committee Dhemaji"

13. From a plain reading of the notice dated 03-10-2012, it appears that even before hearing the version of the petitioner, the respondents were of the opinion that he had remained willingly absent from duty. It appears that the show cause notice was issued with a pre-determined mind set and the notice was a mere formality adopted by the respondents only to terminate the services of the petitioner."

17. In the present case in hand, the show cause notice requires the

petitioner to explain why any of the major penalties should not be imposed on

him, not requiring him to show cause as to why he should not be held guilty of Page No.# 12/39

the charges levelled. Further, apparently, the disciplinary authority was not only

convinced of the guilt of the petitioner, the nature of penalty, whether minor or

major, had also been determined. Therefore, in the circumstances of the present

case, this Court has no hesitation to hold that the 1 st show cause notice

deserves interference of the Court.

18. The second aspect of the matter which troubles this Court is the

absence of allegations of specific acts alleged to be committed by the petitioner

which could have been and/or have been construed to be acts of serious lapse

and willful negligence or dereliction of duty on his part. The only act which has

been attributed to the petitioner in the show cause notice as well as in the

statement of allegations attached thereto is that when the escort party with the

UTPs had left for Kokrajhar and stopped at Rajapara for lunch, the petitioner,

had, on the orders of the accompanying Assistant Sub-Inspector freed the UTPs

of their handcuff and provided them a pain relief spray. Pertinent to recall here

that the evidence led during the enquiry showed that the officer commanding

the escort party had directed the handcuffs to be removed and also allowed the

UTP to buy the pain relief spray and not the petitioner.

19. Coming back to the issue, it is apparent from the notice itself that the

petitioner had removed the handcuffs on the orders of a superior accompanying

officer and not on his own volition. The act attributed to the petitioner, when he Page No.# 13/39

obeyed the command of a superior officer, in the opinion of the Court, cannot

form a charge by itself against the petitioner and no specific act has been

attributed to the petitioner which can be construed as a misconduct.

20. In Surath Chandra Chakravarty Versus The State of W.B.,

reported in (1970) 3 SCC 548, the requirement of a specific charge in a show

cause notice has been elaborately dealt with. To quote,

"In this connection reference may be made to Fundamental R. 55 which provides, inter alia, that without prejudice to the provisions of the Public Servants Enquiry Act 1850 no order of dismissal, removal or reduction shall be passed on a member of service unless he is informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action have to be reduced to the form of a definite charge or charges which have to be communicated to the person charged together with a statement of the allegations on which each charge is based and any other circumstance which it is proposed to be taken into consideration in passing orders has also to be stated. This Rule embodies a principle which is one of the basic contents of a reasonable or adequate opportunity for defending oneself. If a person is not told clearly and definitely what the allegations are on which the charges preferred against him are founded he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him."

21. In Khandan Kumar Das vs. State of Assam and others, reported in (2016) 1 GLR 459, this court had also held as follows:

"16. A delinquent employee is required to know what is the charge framed against him. The charge therefore will have to be specific, clear and unambiguous. If the disciplinary authority Page No.# 14/39

decides to hold disciplinary proceeding against a delinquent employee, the first and foremost requirement would be to frame definite charges against him capable of being understood and replied by the delinquent employee. Reply submitted by the delinquent to the charge framed would have to be considered by the disciplinary authority. If the reply is found to be satisfactory the matter can be dropped at that stage itself. If it is found to be not satisfactory the disciplinary authority either by himself or through another authority is required to conduct an enquiry to enquire into charges framed against the delinquent since the penalty is removal from service, a major penalty, wherein due and adequate opportunity is required to be given to the delinquent employee to defend himself, including by adducing of evidence.

17. Enquiry report has to be prepared based on the enquiry proceedings and specific findings are required to be recorded as regards the charges framed. Copy of the enquiry report is required to be given to the delinquent employee prior to the decision of the disciplinary authority either to accept the enquiry report or not to accept the report i.e., before deciding on the guilt or otherwise of the delinquent employee. If the delinquent employee submits his representation on the enquiry report, the same is required to be considered by the disciplinary authority together with the record of enquiry and thereafter to take a decision either to hold the delinquent employee guilty or not guilty. If the report is thereafter accepted i.e. if the delinquent employee is held guilty, commensurate penalty may be imposed on him by the disciplinary authority."

22. In the considered opinion of this Court, the impugned show cause notice suffers an illegality on this count also.

23. The proceedings before the enquiry officer are next taken up for consideration. A perusal of the statements recorded do not reveal any recording that the witnesses were allowed to be cross-examined by the petitioner herein. There is no recording to the effect that the petitioner was allowed to take a defence assistant during the enquiry proceedings. The law on the requirement of informing the delinquent regarding his right of appointing a defence assistant has been laid down by this Court in Chand Mohammad Ali Versus State of Page No.# 15/39

Assam, reported in 2016 (4) GLT 277. The relevant portion is quoted hereinbelow:

"26. Before analysing the order of penalty, it would be apposite to first refer to the show-cause notice. As discussed above, the show-cause notice was issued on 20.11.2012 under Rule 9 of the 1964 Rules. It is the pleaded case of the petitioner which has not been specifically denied by the respondents, no list of documents and no list of witnesses were furnished to the petitioner along with the show-cause notice. In the show-cause notice, it was also not mentioned that the petitioner had a right to be represented by a Government servant in the departmental proceeding.

27. Rule 9 lays down the procedure for imposing penalty. As per the second part of Sub-Rule (2) of Rule 9, it is provided that at the time of delivering the charges, the disciplinary authority shall invariably furnish to the Government servant a list of documents and a list of witnesses by which each Article of Charge is proposed to be sustained. As per Sub- Rule (5), disciplinary authority may nominate any person to present the case in support of the charges before the enquiring authority. The Government servant may present his case with the assistance of any other Government servant approved by the disciplinary authority but may not engage a legal practitioner for the purpose unless the person nominated by the disciplinary authority as the Presenting Officer is a legal practitioner or if the disciplinary authority so permits. The fact that the charged Government servant has the liberty to avail the assistance of any other Government servant to present his case should be brought to the notice of the charged Government servant by the disciplinary authority while issuing show-cause notice and as per Sub-Rule (2), such show-cause notice should invariably be accompanied by a list of documents and a list of witnesses. Neither any list of documents nor any list of witnesses were furnished to the petitioner in the present case.

Page No.# 16/39

Petitioner was also not informed of his right to be defended by any other Government servant. There is thus violation of Rules 9(2) and (5) of the 1964 Rules."

24. The next aspect of the proceedings which require a reference is the manner in which documents have been accepted on record during the enquiry. Enquiry Officer has stated in his report that he had examined certain documents, however, the proceedings available in the records placed before this Court do not indicate the manner in which such documents had been exhibited during the enquiry proceedings. In fact, none of the witnesses have identified and/or exhibited any of the documents stated to be taken into consideration by the Enquiry Officer. It is also noted that the Enquiry Officer had looked into copies of the documents and not the original or exhibited documents.

25. The requirement of exhibiting documents during the enquiry proceedings has been recently held to be mandatory by the Apex Court in State Of Uttar Pradesh Versus Ram Prakash Singh Civil Appeal No. 14724/2024, disposed of on April 23, 2025, reported as 2025 INSC 555, the relevant paragraphs of which are quoted hereinbelow:

"10. We are at loss to comprehend as to how, after the first round of litigation before the Tribunal leading to quashing of the order of dismissal dated 27th July, 2010, the same mistake could be repeated by the Enquiry officer by not calling for witnesses to record their oral statements as well as to prove the documents generated in course of the preliminary enquiry. The procedure followed is plainly indefensible and, therefore, we hold that the respondent has been punished by the disciplinary authority without due process being followed in taking disciplinary action against him.

11. Useful reference can be made to certain decisions of this Court to show the infirmity in the process of decision making which led to the order of punishment being passed against the respondent.

Page No.# 17/39

12. M/s. Bareilly Electricity Supply Company Limited v. The Workmen and Others ((1971) 2 SCC 617) is a decision arising from an award under the Industrial Disputes Act, 1947. Law has been laid down therein as follows:

"9. ... Innumerable statements, letters, balance-sheet, profit and loss account and other documents called for or otherwise were filed on behalf of the appellants. It cannot be denied that the mere filing of any of the aforementioned documents does not amount to proof of them and unless these are either admitted by the respondents or proved they do not become evidence in the case.

*** 14. ... But the application of principle of natural justice does not imply that what is not evidence can be acted upon. On the other hand what it means is that no materials can be relied upon to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross examination by the party against whom they are sought to be used. When a document is produced in a Court or a Tribunal the questions that naturally arise is, is it a genuine document, what are its contents and are the statements contained therein true. When the appellant produced the balance-sheet and profit and loss account of the company, it does not by its mere production amount to a proof of it or of the truth of the entries therein. If these entries are challenged the appellant must prove each of such entries by producing the books and speaking from the entries made therein. If a letter or other document is produced to establish some fact which is relevant to the enquiry the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. ... "

(emphasis ours)

13. In Roop Singh Negi v. Punjab National Bank and Others, ((2009) 2 SCC 570 17) it was held that an officer conducting an enquiry has a duty to arrive at findings in respect of the charges upon taking into consideration the materials brought on record by the parties. It has also been held therein that any evidence collected during investigation by an investigating officer against the accused by itself could not be treated to be evidence in the Page No.# 18/39

disciplinary proceedings.

14. What follows from a conjoint reading of the above two decisions is and what applies here is that, 'materials brought on record by the parties' (to which consideration in the enquiry ought to be confined) mean only such materials can be considered which are brought on record in a manner known to law. Such materials can then be considered legal evidence, which can be acted upon. Though the Indian Evidence Act, 1872 is not strictly applicable to departmental enquiries, which are not judicial proceedings, nevertheless, the principles flowing therefrom can be applied in specific cases. Evidence tendered by witnesses must be recorded in the presence of the delinquent employee, he should be given opportunity to cross examine the witnesses and no document should be relied on by the prosecution without giving copy thereof to the delinquent - all these basic principles of fair play have their root in such Act. In such light, the documents referred to in the list of documents forming part of the annexures to the chargesheet, on which the department seeks to rely in the enquiry, cannot be treated as legal evidence worthy of forming the basis for a finding of guilt if the contents of such documents are not spoken to by persons competent to speak about them. A document does not prove itself. In the enquiry, therefore, the contents of the relied-on documents have to be proved by examining a witness having knowledge of the contents of such document and who can depose as regards its authenticity. In the present case, no such exercise was undertaken by producing any witness.

15. We may further refer to the decision of this Court in State of Uttar Pradesh and Others v. Saroj Kumar Sinha ((2010) 2 SCC 772 18) where disciplinary proceedings were drawn up against the respondent, Saroj Kumar Sinha, under the 1999 Rules itself with which we are concerned. Paragraphs 26 to 30 and 33 of the said decision being relevant are quoted below:

"26. The first inquiry report is vitiated also on the ground that the inquiry officers failed to fix any date for the appearance of the respondent to answer the charges. Rule 7(x) clearly provides as under: '7. (x) Where the charged government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding in spite of the service of the notice on him or having knowledge of the date, the inquiry officer shall proceed with the inquiry ex parte. In such a case the inquiry officer shall record the statement of witnesses Page No.# 19/39

mentioned in the charge-sheet in absence of the charged government servant.'

27. A bare perusal of the aforesaid sub-rule shows that when the respondent had failed to submit the explanation to the charge-sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the government servant despite notice of the date fixed failed to appear that the inquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet. Since the government servant is absent, he would clearly lose the benefit of cross-examination of the witnesses. But nonetheless in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge.

28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department / disciplinary authority / Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.

29. Apart from the above, by virtue of Article 311(2) of the Constitution of India the departmental enquiry had to be conducted in accordance with the rules of natural justice. It is a basic requirement of the rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceedings which may culminate in punishment being imposed on the employee.

30. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot Page No.# 20/39

be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.

*** 33. As noticed earlier in the present case not only the respondent has been denied access to documents sought to be relied upon against him, but he has been condemned unheard as the inquiry officer failed to fix any date for conduct of the enquiry. In other words, not a single witness has been examined in support of the charges levelled against the respondent. The High Court, therefore, has rightly observed that the entire proceedings are vitiated having been conducted in complete violation of the principles of natural justice and total disregard of fair play. The respondent never had any opportunity at any stage of the proceedings to offer an explanation against the allegations made in the charge-sheet." (emphasis ours)

16. It appears that the appellant is yet to take lessons despite the admonition in Saroj Kumar Sinha (supra). The same kind of omissions and commissions that led to setting aside of the order of punishment imposed being upheld by this Court were repeated in the present case."

26. The facts in the present case as recorded above, amply exhibit that the

enquiry officer did not follow the due procedure known in law when he took on

record copies of documents when neither the copies nor the originals were ever

proved. This shortcoming in the procedure adopted by the enquiry officer and

for which the enquiry report deserved to be shunned at the hands of the

disciplinary authority, faults the enquiry proceedings as a whole and this Court Page No.# 21/39

has no option but to hold the enquiry proceedings to be fallacious.

27. The records of the proceedings produced before this Court reveal

another aspect of the matter, which requires a passing reference. The records

do not reveal the role, if any, played by the presenting officer. The role of a

presenting officer in a enquiry proceeding has been dealt with by the Apex

Court in Union of India & Ors. Versus Ram Lakhan Sharma, reported in

(2018) 7 SCC 670, wherein it has been held as follows:

" 28. xxxx

As far as position in law is concerned, it is common ground that if the Inquiring Authority plays the role of a Prosecutor and cross-examines defence witnesses or puts leading questions to the prosecution witnesses clearly exposing a biased state of mind, the inquiry would be opposed to principles of natural justice. But the question for consideration in this case is : Whether the Inquiry Officer did so ? It is also settled law that an Inquiring Authority is entitled to put questions to the witnesses for clarification wherever it becomes necessary and so long the delinquent employee is permitted to cross-examine the witnesses after the Inquiring Authority questions the witnesses, the inquiry proceedings cannot be impeached as unfair."

35. Thus, the question as to whether Inquiry Officer who is supposed to act independently in an inquiry has acted as prosecutor or not is a question of fact which has to be decided on the facts and proceedings of particular case. In the present case we have noticed that the High Court had summoned the entire inquiry proceedings and after perusing the proceedings the High Court came to the conclusion that Inquiry Officer himself led the examination in chief of the prosecution witness by putting questions. The High Court further held that the Inquiry Officer acted himself as prosecutor and Judge in the said disciplinary enquiry. The above conclusion of the High Court has already been noticed from paragraphs 9 and 10 of the judgment of the High court giving rise to Civil Appeal No.2608 of 2012."

Page No.# 22/39

28. In the present case, the enquiry officer took on record documents which

were neither stated to have been produced by the presenting officer nor

exhibited by any of the witnesses. There are no records to show as who let in

the evidence for the disciplinary authority. This Court therefore deems it safe, in

the absence of any records to the contrary, to hold that the enquiry officer had

to don the garb of the presenting officer and thus, the enquiry was vitiated on

this count also.

29. In view of the findings and observations arrived at, this Court would

have no imminent requirement to carry out an analysis of the process adopted

by the disciplinary authority on receipt of the enquiry report. However, since the

entire proceedings has been placed before this Court and the Court notices

several other aspects which may require to be addressed, it is deemed prudent

to discuss the stages after the enquiry officer had submitted the enquiry report

to the disciplinary authority. Reference is drawn from the observations of the

Apex Court as held in Saroj Kumar Sinha (supra) to the following effects:

"30. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal Page No.# 23/39

from service."

30. Having received a copy of the enquiry report, the Superintendent of

Police Kokrajhar, had issued the 2 nd show cause notice on the petitioner as

mentioned hereinbefore.

31. In the opinion of this Court, the act of the disciplinary authority in

declaring that the charge levelled against the petitioner for his gross misconduct

have been proved beyond reasonable doubt and further in declaring that he

agreed with the findings of the EO and proposed to inflict a major punishment

upon the petitioner, even when the petitioner was being supplied a copy of the

Enquiry Report, amply displays that the disciplinary authority had made up its

mind on the guilt of the petitioner even before the petitioner could have the

opportunity to raise a grievance against the proceedings of the enquiry or

against the findings of the Enquiry Officer.

29. This Court in Babulal Das vs. State of Assam & Ors. reported in 2004

(2) GLT 259, it has been held that:

"13. This leads us to the last issue, viz., whether the Disciplinary Authority acted with a pre- determined mind and denied the opportunity to the petitioner to have his say in respect of the enquiry report so as to persuade the Disciplinary Authority to take a different view from the one taken by the Inquiry Officer resulting in miscarriage of justice. On perusal of the letter dated 3.3.98 by which the enquiry report was forwarded to the petitioner with the proposal of imposing the penalty of removal after agreeing with the findings of the Inquiry Officer there is no iota of doubt that the Disciplinary Authority first made up his mind upon Page No.# 24/39

agreement with the findings of the Inquiry Officer to impose the penalty of removal from service and then asked the petitioner to furnish his reply to the action proposed and not to submit any representation against the enquiry report. Thus it is a case of empty formality inasmuch as the Disciplinary Authority even before furnishing the copy of the enquiry report asking the petitioner to submit his reply and then upon consideration of the enquiry report and the representation to arrive at a finding relating to the penalty, came to the provisional finding in agreement with the findings recorded by the Inquiry Office to remove the petitioner from service and the petitioner was asked to submit his reply not against the enquiry report but against the penalty proposed against him. Thus the Disciplinary Authority acted with a pre-determined mind towards imposition of the penalty of removal against the petitioner even before he could make his representation persuading the Disciplinary Authority not to accept the findings recorded by the Inquiry Officer. There is a purpose behind affording the opportunity of making a representation against the enquiry report and cannot be in empty formality, but in the instant case the Disciplinary Authority first decided, may be provisionally, to impose the penalty of removal on the petitioner upon an agreement with the findings of the Inquiry Officer and then asked the petitioner to submit his reply against the action proposed and not against the inquiry report. Thus the link between the final decision and the representation against the enquiry report is missing in the instant case."

31. In Babul Hussain vs. The State of Assam & Ors., reported in 2024

(1) GLT 51, this Court has held as under:-

"24. With regard to the second show cause notice dated 24.04.2012 by which the disciplinary authority had asked for the views of the petitioner on the Enquiry Report, it appears that the said authority had stated that the findings of the Enquiry Officer were already concurred with. The aforesaid action on the part of the Disciplinary Authority is not in consonance with the requirement of affording a reasonable opportunity to a delinquent to safeguard himself as such opportunity is required to be given at all stages of a Disciplinary Proceeding.

26. In the case of Babulal(supra), this Court has already laid down that if the Disciplinary Authority, before taking the views of the delinquent on the Enquiry Report concurs with such findings, it is apparent that he has acted with a predetermined mind which is not in Page No.# 25/39

consonance with the requirement in law."

32. This has been followed in Machum Ahmed Laskar versus State of

Assam, WP(C)/9445/2019, (Date of decision:30.07.2024), this Court

had held as follows:

"14. This Court on the second ground of challenge has noticed that while the enquiry report was forwarded vide the second show cause notice dated 06.05.2014, the disciplinary authority had reached a conclusion that he agrees with the findings of the Enquiry Officer and held the charges to be proved. The response was sought for only on the proposed penalty which was contemplated as removal from service.

15. The requirement of seeking a response on the proposed penalty is not a mandatory requirement after the 42nd amendment of the Constitution of India. However, such requirement is mandatory so far as the aspect of seeking the response of a delinquent on the findings by an Enquiry Officer before the disciplinary authority takes a call on such findings. It is incumbent upon the disciplinary authority that before he comes to a finding, he is required to take into consideration the response, if any, by the delinquent on the findings which are against the delinquent in the enquiry.

16. The safeguards given to a Government Servant facing a Disciplinary Proceeding is given under Article 311 of the Constitution of India. The prime objective of the said Article is to provide adequate and reasonable safeguard to a delinquent facing an enquiry. It may be

mentioned that prior to the 42 nd amendment of the Constitution of India, there was a requirement to notify the delinquent on the proposed penalty, which however has been done away with. However, what is required is that in the enquiry, all reasonable safeguards are to be afforded to the delinquent officer and on completion of the same, a copy of the said Enquiry Report is required to be forwarded to the delinquent by the Disciplinary Authority before concurring with the findings so that the delinquent is given an opportunity to persuade the disciplinary authority to take a view in favour of the delinquent based on the materials on record and not to concur with the findings of guilt arrived at by the Enquiry Officer. The Page No.# 26/39

requirement to give an opportunity to cross examine the witnesses produced by the management and to adduce evidence as defence and also to have the assistance of a defence representative are some of the mandatory inbuilt mechanism to ensure that the process is done fairly and transparently.

17. The Hon'ble Supreme Court in the case of Ramzan Khan (supra) had laid down that furnishing of the Enquiry Report is mandatory so as to give the delinquent an opportunity to persuade the disciplinary authority not to accept the said report. In the subsequent case of Managing Director, ECIL Ltd. (supra) it has been clarified that the decision of Ramzan Khan (supra) would be prospective in nature. In subsequent cases, it has also been clarified that depending on the particular facts and circumstances, the delinquent would also have to plead suffering of prejudice due to non-supply of the Enquiry Report

18. With regard to the second show cause notice dated 06.05.2014 by which the disciplinary authority had asked for the views of the petitioner on the Enquiry Report, it appears that the said authority had stated that the findings of the Enquiry Officer were already concurred with.

The aforesaid action on the part of the Disciplinary Authority is not in consonance with the requirement of affording a reasonable opportunity to a delinquent to safeguard himself as such opportunity is required to be given at all stages of a Disciplinary Proceeding.

33. Thus, in view of the settled position of law, the 2 nd show cause notice

issued to the petitioner did not suffice the requirements of an impartial and

effective opportunity of placing his defence against the Enquiry Report.

34. The learned Government Advocate, Assam has drawn our attention to

the reply to the 2nd show cause notice filed by the petitioner. In the said

petition, it is a submission of the learned Government Advocate, that the

petitioner did not raise the grounds of not being allowed the opportunity of a Page No.# 27/39

cross-examination, or that he had been put to a disadvantage during the

enquiry proceedings.

35. This Court has gone through the reply to the second show cause notice.

In the reply to the second show cause notice which was filed on 23 rd day of

January, 2018, the petitioner has referred to the examination-in-chief of the

PWs, where he has tried to bring in contradictions in the examination-in-chief

itself. Thus, it is apparent from the record that there was no cross-examination

of the witnesses. It is settled law that when a Court exercising writ jurisdiction

finds procedural lapses in an enquiry proceeding and that it is displayed that the

said procedural lapses had, in fact, put the delinquent person in a

disadvantageous position, it would be not in the interest of justice to turn a

blind eye to the same. This Court is conscious that it is not sitting as a Court of

appeal, but it would only evaluate the procedure adopted in a disciplinary

proceeding to come to a conclusion as to whether the right of a charged officer

or the principles of natural justice to afford an adequate opportunity of hearing

to the charge officer had been violated.

36. In the present case, the delinquent government servant was not

supplied the copy of the enquiry report before the disciplinary authority had

agreed with the findings of the enquiry. Though the enquiry report was Page No.# 28/39

supplied with the 2nd show cause, the question which arises is whether such a

supply would suffice the requirements of natural justice and administrative

fairplay? The answer has to be firmly in the negative. Once the government

servant looses the opportunity of appropriate defense, he needs neither to plead

nor to prove prejudice. In the words of the Apex Court in Saroj Kumar Singh

(supra),

"38. Thus, the right to receive the enquiry report as a fundamental safeguard in disciplinary

proceedings, where such report holds the charges against the delinquent employee to be

established, was firmly entrenched by the Constitution Bench in the jurisprudence relating to

proceedings initiated for disciplinary action for misconduct. This valuable right applies

uniformly, regardless of who the employer is (Government, public or private) and regardless

of what the rules governing the service ordain. Even if the rules are silent or do not require

furnishing of the enquiry report, the same has to be furnished. Additionally, the report must

be furnished to the employee even without a request, as it forms an integral part of 38

ensuring a fair and reasonable opportunity to defend against the charges. By not furnishing

the report, an employer cannot scuttle the rights of the delinquent employee.

Xxxx

47. These are vital considerations which, in our considered opinion, need to engage the mind

of every court while deciding to apply the test of 'prejudice'. In a battle between the mighty

lion and the weak lamb when the former is in an overpowering position, should the courts

lean in its favour and put the weak to the sword for not having demonstrated 'prejudice'

when a brazen violation of the law declared by the Constitution Bench is brought to its Page No.# 29/39

notice? Why should the mighty not be made answerable as to why the report of enquiry has

not been furnished and to bear whatever consequences that are bound to follow its failure,

omission or neglect in this behalf? In a society governed by the rule of law and when the

preambular promise is to secure equality and justice for all, the weak lamb is certainly

entitled in law to demand that the ratio decidendi of B. Karunakar (supra) be followed to the

'T'. We regret, reliance placed in some of the decisions primarily on certain English decisions

on whether 'opportunity would have served any purpose', may not be appropriate for

acceptance in our service jurisprudence. 48. Looked at from a different angle, it is unheard of

and simply unacceptable to us that employers could brazenly disregard the law 44 declared

by the Constitution Bench and/or act in derogation of statutory rules, yet, argue that no

prejudice was caused to the dismissed employee by reason of not giving him access to the

enquiry report. If the answer to question (v) given in B. Karunakar (supra) is to be regarded

as the final word, we are left to wonder whether it would have at all been necessary for the

Constitution Bench to elaborately discuss the law on the subject, stress on the importance

and need for the enquiry report to be furnished to the delinquent employee and to introduce

a new regime with prospective effect. If the test of 'prejudice' were to be given primordial

importance, the Constitution Bench could have, on the contrary, simply observed that post

20th November, 1990 [the date on which Mohd. Ramzan Khan (supra) was decided], if in

case report of enquiry in a particular case were not furnished to the delinquent employee and

upon the matter reaching the tribunal/court for adjudication at a subsequent stage, the

employer is under no obligation to explain why the report has not been furnished and its

action of taking disciplinary action has to be judged and could be interdicted only in the event

the employee, on the touchstone of 'prejudice', were to succeed in proving that he had been Page No.# 30/39

denied reasonable opportunity to defend. The Constitution Bench's careful consideration of

question (i), viz. the need to furnish the enquiry report to a delinquent employee before

disciplinary action is taken being an integral part of natural justice, the answer 45 46 thereto

would be rendered redundant if such an approach by the employers is permitted. Allowing

employers to circumvent the law declared by the Constitution Bench and dilution of such

declared law regarding the necessity, nay imperative, to furnish the enquiry report by

interpretative exercises subsequently undertaken by Benches of lesser strength without

bearing in mind other Constitution Bench decisions (we propose to refer to them briefly,

immediately after this discussion) on the effect of breach of natural justice principles and the

consequences that could visit an employee whose service is terminated if the report were not

furnished in the first place is an unfortunate development which undermines the rule of law.

Xxxx

51. Thus said, what is the way for reconciling the law laid down in the 43 (1980) 4 SCC 379

47 precedents discussed so far? Attempting to clear the confusion arising out of different

understandings of the ratio decidendi of the decision in B. Karunakar (supra), we proceed to

focus on the proper course for the tribunal/court to adopt when the issue reaches it for

adjudication. In our opinion, whenever a challenge is mounted to an order of punishment on,

inter alia, the ground that the report of enquiry has not been furnished, the tribunal/court

should require the employer (Government, public or private) to justify non furnishing of such

report. This is a course, which again experience has shown, is seldom followed. If no valid

explanation is proffered and the tribunal/court suspects unfair motives (report has not been

furnished as part of a strategic ploy or to advance an unholy cause or prompted by

extraneous reasons) or carelessness, without much ado and without insisting for 'prejudice' Page No.# 31/39

to be demonstrated, the order of punishment should be set aside and the proceedings

directed to resume from the stage of offering opportunity to the delinquent employee to

respond to the enquiry report. Irrespective of 'prejudice' being demonstrated, no employer or

for that matter anyone should be permitted to steal a march and gain any benefit by violating

the law. In case the tribunal/court is satisfied that real effort was made by the employer but

such effort remained abortive because the report could not be furnished to the employee for

reason(s) beyond its control, or some other justification is placed on record, which is

acceptable to the tribunal/court, the test of 48 'prejudice' is open to be applied but only after

ensuring service of a copy of the enquiry report on the employee. In a case where the

employee either expressly or by his conduct appears to have waived the requirement of

having access to the report, it would be open to the tribunal/court to deal with the situation

as per its discretion. However, the simplicitor application of the 'prejudice' test absent a query

to the employer, as indicated above, in our opinion, would be in the teeth of the law laid

down in B. Karunakar (supra)."

37. In such view of the matter, this Court is not convinced that the petitioner

had an adequate opportunity to represent against the enquiry report which had

found the guilt of the petitioner to be proved and which already stood accepted

by the disciplinary authority even before the petitioner could represent against

the same. In the usual course, the matter was required to be remanded to the

disciplinary authority to supply a copy of the enquiry report to the delinquent

employee, albeit with a unbiased mind. But in the present case, this Court has

already held that neither the chargesheet nor the enquiry proceedings can stand Page No.# 32/39

the scrutiny of law. Therefore, there can be no question of remanding the

matter back for a fresh decision on the enquiry report.

38. This Court now turns its attention to the order dated 03.02.2018, by

which the petitioner had been removed from service. When the chargesheet and

the enquiry proceedings failed the test of law and reasonableness, the order

which unceremoniously terminated the services of the petitioner has to

necessarily give way and be set aside and quashed. Additionally, this Court

notices that the disciplinary authority has come to a specific finding that the

petitioner had provided the undertrial prisoners with a pain relief spray. This

Court has gone through the evidence led by the witnesses. None of the

witnesses have made a statement that the petitioner had provided the pain

removal spray to the undertrial prisoners. In fact, as per the records with

Enquiry Report, it was the Assistant Sub-Inspector of Police, who had allowed

the undertrial prisoners to buy the pain relief spray, which observation is based

on the statement of PW-9.

39. This Court is not appreciating the evidence led but the aforesaid

observation has been taken into account since it supports the finding of this

Court that the disciplinary authority had pre-supposed the guilt of the petitioner,

which was also reflected in the communication dated 15.01.2018, when the

copy of the Enquiry Report was served on the petitioner.

Page No.# 33/39

40. In State Bank of Bikaner & Jaipur v. Nemi Chand Nalwaya

reported in (2011) 4 SCC 584, the Apex Court held that the courts will not

interfere with findings of fact recorded in departmental enquiries, except where

such findings are based on no evidence or where they are clearly perverse. The

test to find out perversity is to see whether a tribunal acting reasonably could

have arrived at such conclusion or finding, on the material on record. The courts

will however interfere with the findings in disciplinary matters, if principles of

natural justice or statutory regulations have been violated or if the order is

found to be arbitrary, capricious, mala fide or based on extraneous

considerations.

41. In High Court of Bombay vs. Shashikant S Patil reported in (2000)

1 SCC 416, the Apex Court held that interference with the decision of

departmental authorities can be permitted, while exercising jurisdiction under

Article 226 of the Constitution if such authority had held proceedings in violation

of the principles of natural justice or in violation of statutory regulations

prescribing the mode of such inquiry or if the decision of the authority is vitiated

by considerations extraneous to the evidence and merits of the case, or if the

conclusion made by the authority, on the very face of it, is wholly arbitrary or

capricious that no reasonable person could have arrived at such a conclusion, or

grounds very similar to the above. It reiterated the settled legal position that in Page No.# 34/39

the event there is some legal evidence on which the findings can be based, then

adequacy or even reliability of that evidence is not a matter for canvassing

before the High Court in a writ petition filed under Article 226 of the

Constitution. In the present case, this Court has noticed that there is no

evidence that the petitioner had allowed the undertrial prisoners access to the

pain relief spray, rather, there were specific statements that the officer

commanding the escort party had allowed the undertrial prisoners to buy the

pain relief spray.

42. Having given due consideration to the records available before this Court

and the submissions of the learned counsel for the contesting parties, for the

reasons given hereinbefore, this Court is of the opinion that

(i) the 1st show cause notice dated 13.09.2016 suffers, since it did not level any

specific charge on the petitioner and no specific act exhibiting negligence has

been imputed on the petitioner;

(ii) the enquiry proceedings also suffer in the absence of the opportunity of

being assisted by a defence assistant, the absence of the opportunity of cross-

examination, the absence of any original document relied upon in the enquiry,

not to speak of any being exhibited;

(iii) the second show cause notice dated 15.1.2018 suffers since it proclaimed Page No.# 35/39

the acceptance of the findings in the enquiry report, even without affording

adequate opportunity to the petitioner to rebut the findings of the report; and

(iv) the impugned order of removal from service dated 3.2.2018 cannot be

sustained in law since the proceedings leading up to such order have been

found to be unsustainable, as recorded hereinbefore, and also since the said

order exhibits a pre-conceived mind regarding the guilt of the petitioner.

Accordingly, each of the above, deserves the interference of this Court and are

accordingly, interfered with and set at naught.

43. This Court has also been apprised that the criminal proceedings against

the petitioner based on the same set of facts had culminated in the acquittal of

the petitioner. Such being the position, although under other circumstances, this

Court could have remanded the matter back to the disciplinary authority to take

a decision regarding the requirement of a de novo enquiry after setting aside

the order dated 03.02.2018 terminating the services of the petitioner, in the

peculiar facts and circumstances, such recourse would lead to prolongation of

the predicament of the petitioner. Therefore, the respondents are directed to

reinstate the petitioner forthwith on his reporting before the Superintendent of

Police, Kokrajhar, Assam, which the petitioner shall be required to do within a

period of 30 days from the date of pronouncement of this order.

Page No.# 36/39

44. In his representation filed before the disciplinary authority on

08.10.2024, the petitioner has submitted that he and his family have suffered

penury due to the removal from service and that he has been living in miserable

conditions, unable to bear the huge expenditure of his family and the cost of

education of his children. He had requested for a reinstatement of service along

with continuity and release of salary for the gap period. He has brought to the

notice of the respondents that the Sessions Court had granted him an acquittal

on charges levelled on similar sets of facts.

45. In the affidavit-in-opposition filed by the disciplinary authority, it has

referred to the letter dated 11.11.2024, informing the petitioner that he may

approach the appellate authority. The disciplinary authority did not deem it fit to

forward the application of the petitioner to the appellate authority for

appropriate action.

46. The law, regarding the manner in which the period of absence from

service as also the manner in which the back-wages and salary of the

delinquent person upon being reinstated, is found in the case of

Deepali Gundu Surwase Versus Kranti Junior Adhyapak Mahavidyalaya

(D.Ed.) and others reported in 2013 10 SCC 324. The relevant paragraphs are

quoted hereinbelow.

"33. The propositions which can be culled out from the aforementioned judgments are:

Page No.# 37/39

i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.

ii) The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.

iii) Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.

iv) The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages.

However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.

v) The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully Page No.# 38/39

justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.

vi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra).

vii) The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman.

47. The respondents in their affidavit have not refuted the claim of the Page No.# 39/39

petitioner on any of the grounds enunciated in the judgement. In view of the

above, it is further directed that, upon reinstatement of his service, the

petitioner shall file an affidavit regarding his employment or otherwise in the

interregnum and unless the respondents find that the petitioner was gainfully

engaged during the period, the petitioner shall be entitled to the arrears of

salary which could have accrued to him, but for the illegal termination, however,

without entitlement to the allowances which are connected to actual discharge

of duty. The period of absence from the date of termination till the date of

reinstatement shall, in any case, be taken up as continued service for all

purposes including seniority and pension etc.

48. Records submitted by Ms S Baruah, learned Junior Government