[Cites 10, Cited by 0]
Gauhati High Court
Page No.# 1/23 vs The State Of Assam And 3 Ors on 13 March, 2026
Author: Soumitra Saikia
Bench: Soumitra Saikia
Page No.# 1/23
2015:GAU-AS:15854
GAHC010030942013
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2421/2013
JYOTIRMOY CHOUDHARY
S/O LATE CHITTRANJAN CHOUDHURY, R/O 2ND LINK ROAD, BYE LANE
NO.11, HOUSE NO.22, SILCHAR, DIST- CACHAR, ASSAM
VERSUS
THE STATE OF ASSAM AND 3 ORS
REPRESENTED BY THE ITS COMMISSIONER, GOVT. OF ASSAM,
PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT, DISPUR, GHY-6
2:THE DIRECTOR
PANCHAYAT AND RURAL DEVELOPMENT
PANJABARI
JURIPAR
GHY-37
3:THE DY. COMMISSIONER
CACHAR
SILCHAR
ASSAM
4:THE JT. DIRECTOR
PANCHAYAT AND RURAL DEVELOPMENT
PANJABARI
JURIPAR
GHY-3
Advocate for the Petitioner : MR.N CHUTIA, MR. J H SAIKIA,MS.B GOGOI,MR.S M T
CHISTIE,MS.M BARMAN,MR.R P SARMAH,MR.M P SARMA,MR.S BORA,MR.G R DEV,MR.A
M BUZARBARUAH,MR.U K NAIR,MR.A CHETRY,MS M BORAH,MR M R ADHIKARI
Advocate for the Respondent : SC, PNRD, ,,,,,,,GA, ASSAM,,,
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-B E F O R E -
HON'BLE MR. JUSTICE SOUMITRA SAIKIA
Advocate for the petitioner : Mr. R.P. Sarmah,
Sr. Advocate
Advocate for the respondents : Mr. K. Konwar, Advocate
Addl. A.G. Assam
Date on which judgment is reserved : 16.12.2025
Date of pronouncement of judgment : 13.03.2026
Whether the pronouncement is of the
operative part of the judgment? : No
Whether the full judgment has been
pronounced? : Yes
Judgment and Order (CAV)
Heard Mr. R.P. Sarmah, learned Senior Counsel for the petitioner. Also
heard Mr. K. Konwar, learned Addl. Advocate General for the respondent P&RD.
2. The petitioner before this Court by way of the present proceedings prays
for setting aside the disciplinary proceedings, the order passed by the
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disciplinary authority dated 11.04.2013 and the consequential order of removal
from service dated 26.04.2013.
3. The essential facts in the present lis are that the petitioner, at the relevant
point in time was serving as an Extension Officer (Panchayat) as well as In-
charge Block Development Officer of Katigorah Development Block under the
Director of Panchayat and Rural Development, Panjabari, Guwahati. For alleged
misappropriation of Rs.10,41,190/- (Rupees Ten Lakh Forty One Thousand One
Hundred Ninety) in implementing a scheme under I.A.Y. for the period of 2006-
2007, the petitioner was placed under suspension pending drawal of
departmental proceedings by order dated 13.06.2008 bearing Memo No.
RDD/125/2007/72-A. By show cause notice No.PDDE(II)25/2008/11-13 dated
19.07.2008, the petitioner was served with a show cause notice under Rule 9 of
the Assam Services (Discipline & Appeal) Rules 1964 read with Article 311 of the
Constitution of India lavelling three charges against the petitioner. The show
cause notice served on the petitioner contained the statement of allegations
that as in his capacity as Block Development Officer in Silchar Development
Block, for the period 30.10.2006 to 04.04.2007, petitioner received a total
amount of Rs. 1,17,24,920/- (Rupees One Crore Seventeen Lakh Twenty Four
Thousand Nine Hundred Twenty) against construction of IAY Houses from the
Project Director, D.R.D.A. Cachar but he had shown a total expenditure of Rs.
1,07,13,344/- (Rupees One Crore Seven Lakh Thirteen Thousand Three Hundred
Forty Four). He was therefore, charged with attempt to misappropriate
Government money as the public fund was kept by him without dispersing it for
the purpose for which it was drawn from the account.
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4. In response to the show cause notice, the petitioner submitted his written
statements on 09.08.2008. The disciplinary authority thereafter, by order dated
25.08.2008 appointed the Enquiry Officer and a Presenting Officer in respect of
the departmental proceedings initiated against the petitioner.
5. During the pendency of the departmental proceedings, the petitioner was
reinstated in service and was transferred and posted in Katigorah Development
Block in the same capacity. It is submitted on behalf of the petitioner that the
petitioner earlier approached this Court by filing WP(C) No.3319 of 2011 praying
for quashing of the departmental proceedings initiated against him. By order
dated 28.01.2013, the writ petition came to be disposed of by Coordinate Bench
directing the respondent authority to conclude the departmental proceedings
drawn up against the petitioner pursuant to the show cause notice dated
19.07.2008 within a period of 2(two) months from the date of receipt of
certified copy of the said order. The respondents were directed to follow all
procedural safeguards before taking the final decision in the matter.
6. Pursuant to the order passed by the Coordinate Bench, the proceedings
were initiated and the Enquiry Officer concluded the inquiry proceedings and
submitted a report dated 23.03.2013.
7. The disciplinary authority by order dated 11.04.2013 accepted the findings
and came to the conclusion that this is a fit case where major penalty of not
less than removal from Government service will meet the ends of justice and by
the said order, the petitioner was removed from Government service under Rule
7(vi) of the Assam Services (Discipline & Appeal) Rules, 1964 with immediate
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effect and in exercise of power under Rule 7(iii) of the Rules of 1964, the
disciplinary authority ordered recovery of the half of the total of the
misappropriated amount i.e. Rs. 31,76,250/- (Rupees Thirty One Lakh Seventy
Six Thousand Two Hundred Fifty) from the petitioner. The other half was
directed to be recovered from Sri. Iqbal Hussain, Jr. Engineer against whom the
said proceedings were also initiated. The disciplinary proceedings accordingly
concluded and the matter was referred to the Government for recovery of the
misappropriated amount. Thereafter, by order dated 26.04.2013, the petitioner
was removed from service in pursuance to the order dated 11.04.2013 passed
by the disciplinary authority.
8. The learned counsel for the petitioner submits that the entire proceedings
leading to the removal from service of the petitioner was conducted by the
authorities without following the proper procedure prescribed as per Rules. It is
submitted that the enquiry report was never furnished to the petitioner and as a
consequence the petitioner suffered great prejudice and the impugned order of
removal was issued in complete violation of the procedure prescribed under the
Rules of 1964, which led to the prejudice suffered by the petitioner in view of
the of the fact that protection was granted under Article 311 of the Constitution
of India. It is further submitted that the petitioner submitted a representation
before the disciplinary authority requesting for appointment of a defence
assistant which was not responded to by the authority concerned. It is the
further submission by the learned counsel for the petitioner that in spite of the
request made, the copy of the inquiry report was never furnished and therefore,
the petitioner also could not avail of the forum for appeal as prescribed under
the Rules. Under such circumstances, the petitioner is before this Court. In
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support of his contentions the learned counsel for the petitioner has referred to
the following judgments:
a) Union Of India And Ors vs Mohd. Ramzan Khan reported in 1991 (1) SCC
588.
b) Minati Bora vs. Commissioner and Secretary, Education Department,
Dispur, Assam and Ors. reported in 2014 (5) GLT 370.
c) Jayanta Hasamsa vs. State of Assam & Ors. reported in 2015 (3) GLT
369.
d) Madhab Chandra Das vs. The State of Assam and Ors. reported in 1987 2
GLR 210.
e) Foyez Uddin Ahmed Laskar (MD.) vs. Gauhati High Court & Ors. reported
in 2017 (4) GLT 969.
f) Hiren Chandra Talukdar vs. State of Assam & Ors. reported in 2016 (3)
GLT 805.
g) Sukhen Konwar vs. Assam State Electricity Board & Ors. reported in 2018
(2) GLT 964.
h) Sashi Bhusan Barman vs. State of Assam & Ors. reported in 2021 (4) GLT
1015.
9. The respondents have disputed the contentions raised on behalf of the
petitioner. They have referred to the affidavit filed by the respondent No.4. It is
submitted that at the outset, an earlier proceedings, namely WP(C) No. 3319 of
2011 filed by the petitioner the said disciplinary proceedings was put to
challenge and it came to be disposed of by the order dated 28.01.2013.
However, the Co-ordinate bench by the said order while disposing of the writ
petition did not interfere with the said proceedings rather the writ petition came
to be disposed of directing the disciplinary authority to conclude the department
proceedings within a period of 2(two) months from the date of receipt of a
certified copy of this order. Therefore, the present challenge made to the
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disciplinary proceedings is barred by the doctrine of res judicata and therefore,
the prayer made for interfering with the disciplinary proceedings in the present
proceedings ought not to be granted and the writ petition should be dismissed.
10. The learned Addl. Advocate General further submitted that the
departmental proceedings were conducted as per the provisions of the Rules of
1964. All opportunities were granted to the petitioner. The petitioner
participated in the departmental proceedings and thereafter, the inquiry report
was submitted and conclusions of the Enquiry Officer were accepted by the
disciplinary authority and the impugned order dated 11.04.2013 of removal of
the petitioner was issued and thereby the departmental proceedings was closed.
In respect of the contentions raised by the petitioner that no inquiry report was
furnished, the learned counsel for the respondents submits that from the
records available it is seen that the inquiry report was supplied to the petitioner
pursuant to an RTI application filed by the petitioner. Therefore, no prejudice
was caused to the petitioner as sought to be projected. It is further submitted
that there is an alternative remedy available to the petitioner as per the Rules,
which had not been availed of and therefore, the writ petition should be
dismissed on that ground itself. Under such circumstances, this writ petition
ought not to be allowed and the same should be dismissed as the same is
without any merit.
11. The learned counsel for the parties have been heard and the pleadings
available on record have been carefully perused. The departmental records have
been called for and the same have also been perused by the Court.
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12. Upon careful perusal of the records, it is seen that the petitioner had
participated in the disciplinary proceedings and he was given due opportunity.
However, it appears that the inquiry report was not furnished to the petitioner
as is required under Rule 9A of the Rules of 1964. The disciplinary authority had
passed the impugned order imposing the punishment of removal from service of
the petitioner and consequently the writ petitioner was removed. The petitioner
thereafter, submitted an application under RTI for certain documents including
copy of the inquiry report. From the records it is seen that the application for
inquiry report was submitted on 04.06.2013 and the inquiry report was
furnished by the respondent authority on 29.07.2013.
13. This writ petition was filed on 03.05.2013. Although the inquiry report was
received by the petitioner through RTI on 29.07.2013, this fact has not been
brought on record subsequent to the filing of the writ petition. In fact, it is the
primary argument of the learned Senior Counsel for the petitioner that no
inquiry report was furnished to the writ petitioner and thereby, he is prejudiced.
14. Under such circumstances and upon perusal of the records, it is evident
that the inquiry report was applied for by the petitioner through RTI and was
accordingly supplied with it on 29.07.2013. While it is true that the inquiry
report ought to have been furnished to the petitioner under Rule 9A of the Rules
of 1964 the fact remains that mere non-supply of inquiry report in all cases
cannot be accepted to be a ground for interference, unless prejudice is shown
to have been suffered by the petitioner. In the facts of the present proceedings,
it is evident from the records that the inquiry report was supplied to the
petitioner subsequently on 29.07.2013 and no such averment is found upon
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scrutiny of the writ petition. No additional pleadings have been filed by the
petitioner to bring it on record that the enquiry report came to be supplied or
furnished to the petitioner pursuant to filing of the writ petition.
15. There is also no averment in the pleadings as to why the statutory remedy
for filing an appeal under Rule 15 of the Rules of 1964 was not resorted to by
the petitioner. The limitation for filing an appeal is in respect of appeals filed
under part V of the Rules is to be filed within a period of 3 months from the
date on which the appellant (delinquent officer, delinquent employee) receives a
copy of the order appealed against. The appellate authority may also entertain
any appeal after the expiry of the said period, if it is satisfied that the appellant
has sufficient cause for not submitting the appeal in time.
16. In view of such clear provisions prescribed under the Rules of 1964, it was
available to the delinquent employee to prefer an appeal before the appellant
authority which is prescribed under Rule 15 of the Rules of 1964. It was equally
incumbent on the delinquent employee to explain before this Court in its present
proceedings as to why the appeal could not be filed or was not preferred and/or
as to why the statutory forum for appeal would not be an efficacious remedy.
No such averments are found in the writ petition nor have any submissions been
advanced on behalf of the writ petitioner. In view of the clear provision under
Rule 15 of the Rules of 1964, it appears to the Court that the writ petitioner
could have preferred an appeal under Rule 15 within a period of 3 months from
the date of receipt of a copy of the order passed by the disciplinary authority. In
the opinion of the Court, non-furnishing of the enquiry report and the time
taken to procure the copy of the inquiry report by way of a RTI application
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appears to this Court a plausible ground for condoning the period of limitation
by any applicable authority.
17. The further contentions that are urged on behalf of the writ petitioner are
that there is no material before the Enquiry Officer to arrive at a conclusion
holding the charges to be true and consequently the departmental authority
also could not have accepted the findings of the Enquiry Officer thereby, holding
the charges against the writ petitioner to be true. Presently the contention on
behalf of the writ petitioner is that because of non supply of the inquiry report
before imposition of penalty he suffered prejudice. Also non supply of the
inquiry report is contrary to Mohd. Ramzan Khan (supra) and therefore, the
order passed by the Disciplinary Authority should be set aside.
18. It is the contention made in the writ petition that the petitioner was not
served with a formal charge sheet nor was furnished with list of witnesses as
well as documents to be used as evidence against him. However, from the
written statements furnished, the copy of which is enclosed to the writ petition,
no such objections are found to be raised. It is also seen from the records that
the petitioner had earlier challenged the departmental proceedings by filing
WP(C) No.3319 of 2011 which came to be disposed of by order dated
28.01.2013.
19. From the recital of the order, it is seen that there were no specific pleas
found, that the petitioner was not served with a formal charge sheet and/or any
documents and the list of witnesses. In the present proceedings, the writ
petition does not contain any statement indicating whether the same grounds or
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arguments were previously raised before the Court during the earlier round of
litigation. Be that as it may, by the order dated 28.01.2013 the writ petition was
disposed of with a direction to the respondent No. 2 therein to conclude the
departmental proceedings drawn against the petitioner within a period of two
months and the respondent No. 2 was directed to follow all procedural
safeguards before taking a decision in the matter.
20. From the departmental records produced before the Court, it is also not
clear whether a formal charge sheet, along with the list of documents and
witnesses, was ever furnished to the petitioner. There is no communication or
representation is seen in the records regarding the suspect. Be that as it may, in
terms of the earlier directions, the proceedings stood concluded by issuance of
the order passed by the disciplinary authority, which is impugned in the present
proceeding. From the pleadings available in the present proceedings, it is seen
that pursuant to the directions issued by the Court in order dated 28.01.2013
passed in WP(C) No.3319 of 2011, the petitioner upon communicating the order,
was served with a notice to appear before the Enquiry Officer in connection with
the departmental proceedings and in pursuant to such notice being issued,
petitioner appeared before the Enquiry Officer on 15.03.2013. However, there is
no averment made in the present proceedings that upon appearing before the
Enquiry Officer any prayers were made or any objections were raised before the
Enquiry Officer that the formal copy of the charge sheet had not been served on
the petitioner along with a list of witnesses or documents.
21. It is also seen from the averments made in the writ petition that at a time
when the disciplinary authority had passed the impugned order of removal on
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the basis of the inquiry report the petitioner was on casual leave since
26.04.2013. The impugned order was passed on 11.04.2013. According to the
petitioner, he came to be aware by a news items published in a local daily
namely "Samayik Prasanga" that the petitioner is removed from service.
22. According to the petitioner, both the impugned orders dated 11.04.2013
and the consequential order of removal from service dated 26.04.2013 were not
served on the petitioner.
23. While it is correct that in terms of the Rules of 1964 and the judgment of
Mohd. Ramjan Khan (supra) and subsequent judgments thereafter, it was
incumbent on the respondent authority to ensure service of copy of the inquiry
report on the writ petitioner. The respondents have not been able to justify as to
why the inquiry report was not furnished to the petitioner prior to the imposition
of the punishment by the disciplinary authority. Even after the disciplinary
authority issued the impugned order, the same was not accompanied by the
inquiry report. This act of non-furnishing of the inquiry report by the
departmental officers is in conflict with the rules.
24. It is also necessary to examine the aspect that in every case of non-supply
of inquiry report, a Court is not required to interfere with the order of
punishment without examining the prejudice that has been caused to the
delinquent employee. In this context, a reference has to be made to the
judgment of the Apex Court in Managing Director, ECIL, Hyderabad and Ors. vs.
B. Karunakar and Ors. reported in (1993) 4 SCC 727. In this matter, the Apex
Court having examined the earlier judgments rendered in Mohd. Ramzan Khan
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(supra) held that the Court or the Tribunal should not interfere with the order of
punishment where it comes to a conclusion that non-supply of the report would
have made no difference to the ultimate findings and punishments given. The
Court or the Tribunal should not mechanically set aside the order of punishment
on the ground that the report was not furnished to the delinquent officer. It is
only if the Court or the Tribunal finds that furnishing of the report would have
made a difference to the result in the case that it should set aside the order of
punishment and direct reinstatement of the employee with liberty to the
authority to proceed with the enquiry and the enquiry should continue from the
stage of furnishing him with the report. The relevant paragraph is extracted
below:
"31. Hence, in all cases where the enquiry officer's report is not furnished to the delinquent
employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy
of the report to be furnished to the aggrieved employee if he has not already secured it
before coming to the Court/Tribunal and give the employee an opportunity to show how his
or her case was prejudiced because of the non-supply of the report. If after hearing the
parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would
have made no difference to the ultimate findings and the punishment given, the
Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal
should not mechanically set aside the order of punishment on the ground that the report
was not furnished as is regrettably being done at present. The courts should avoid
resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind
to the question and give their reasons for setting aside or not setting aside the order of
punishment, (and not any internal appellate or revisional authority), there would be
neither a breach of the principles of natural justice nor a denial of the reasonable
opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would
have made a difference to the result in the case that it should set aside the order of
punishment. Where after following the above procedure, the Court/Tribunal sets aside the
order of punishment, the proper relief that should be granted is to direct reinstatement of
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the employee with liberty to the authority/management to proceed with the inquiry, by
placing the employee under suspension and continuing the inquiry from the stage of
furnishing him with the report. The question whether the employee would be entitled to the
back-wages and other benefits from the date of his dismissal to the date of his
reinstatement if ultimately ordered, should invariably be left to be decided by the authority
concerned according to law, after the culmination of the proceedings and depending on the
final outcome. If the employee succeeds in the fresh inquiry and is directed to be
reinstated, the authority should be at liberty to decide according to law how it will treat the
period from the date of dismissal till the reinstatement and to what benefits, if any and the
extent of the benefits, he will be entitled. The reinstatement made as a result of the setting
aside of the inquiry for failure to furnish the report, should be treated as a reinstatement
for the purpose of holding the fresh inquiry from the stage of furnishing the report and no
more, where such fresh inquiry is held. That will also be the correct position in law."
25. This judgment of the Apex Court has subsequently been followed in
several judgments. One such judgment is Union Bank of India v. Vishwa Mohan,
reported in (1998) 4 SCC 310. In this matter the Apex Court interfered with the
order passed by the High Court whereby the order issued by the disciplinary
authority was interfered with and set aside on the ground that the delinquent
employee was prejudiced by non supply of the inquiry report. In the facts of
that case, although the inquiry report was not initially furnished to the
delinquent employee, however, on a representation filed by the employee, the
same was furnished. The Apex Court therefore, concluded that the delinquent
employee did have an opportunity to assail the findings of the enquiry authority
in the statutory appeal as well as in the writ petition and therefore, referring to
the judgment of the Apex Court in Managing Director, ECIL, Hyderabad (supra)
the Apex Court disagreed with the findings arrived at by the High Court. The
Apex Court held that since the delinquent employee was in possession of the
inquiry report or findings when he filed the statutory appeal or the writ petition
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in the High Court, the High Court was required to apply its judicial mind to all
the circumstances and then form an opinion whether non-furnishing of the
report would have made any difference to the result of the case and thereafter,
pass an appropriate order. The Apex Court therefore, concluded that the High
Court had failed to apply its judicial mind to the facts and circumstances of the
case and erroneously concluded that non-supply of the inquiry report had
caused prejudice to the petitioner. The judgment of the High Court was
therefore set aside.
26. Coming to the facts of the present case, from the records it is seen that
on an application filed by the petitioner under RTI the petitioner was furnished
with the inquiry report. While it is correct that the department ought to have
furnished an inquiry report earlier and well prior to issuance of the impugned
order, but upon a copy of the inquiry report being made available to the
petitioner by the department, no steps were taken by the petitioner to either to
file a statutory appeal as prescribed under Rule 15 of the Rules of 1964. It is
equally surprising to note that no averment made by way of additional pleadings
have been brought to state that the inquiry report had been supplied by the
department. There is not a whisper in the present writ petition. It was open to
the petitioner to assign the inquiry report including the findings arrived at by the
Enquiry Officer in the present proceedings. However, no such steps were taken
to incorporate these statement of averments before the Court by supporting
documents, etc. There is simply no explanation why no such steps were taken.
27. As discussed above, the pecuniary arguments before this Court was
that prejudice was caused by non-supply of the inquiry report and therefore, it
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calls for interference. However, in view of the law laid down by the Apex Court
in Managing Director, ECIL, Hyderabad (supra) and the subsequent judgment
referred to in Vishwa Mohan (supra), it is clear that this Court will have to arrive
at a conclusion that prejudice was caused by non-supply of the inquiry report.
For reasons best known to the petitioner, it appears that the petitioner has
deliberately suppressed the material facts that he was in possession of the
inquiry report during the present proceedings which were filed before this Court
as far back as 2013. It is also necessary to note that in the earlier proceedings,
although a challenge was made to the entire departmental proceedings, the
same came to be disposed of by order dated 28.01.2013 passed in WP(C)
No.3319/2011 directing the respondents to conclude the enquiry within two
months. Therefore, it has to be accepted that the challenge made by the
petitioner to the departmental proceedings earlier were not accepted by the
Court. That order had attained finality as no appeal or review has been filed by
the petitioner. That being the position it was incumbent on the petitioner to
explain before the Court how he can pursue the same challenge when it was
earlier not considered by the Court. The petitioner was in possession of the
inquiry report since 29.07.2013 and chose not to disclose this fact before this
Court all along when the writ petition was filed in the year 2013 and thereby
projecting that he suffered prejudice for non-supply of the inquiry report.
Therefore, no purpose will be served to interfere with the impugned order and
remand the same to the department to initiate the disciplinary proceeding from
the stage of furnishing the inquiry report which the petitioner has in his
possessions since July, 2013.
28. While it is a trite law that the presence of alternative remedy and/or
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statutory remedy would not be a complete bar for exercising powers under writ
jurisdiction. However, it is also incumbent on a writ Court to exercise its
jurisdiction sparingly in matters where there is an alternative and efficacious
remedy, more particularly a statutory remedy and when there are no
explanations forthcoming from the petitioner as to why such statutory remedy
would not be an efficacious remedy. The appellate authority prescribed under
the Rules is empowered to examine the matter in detail and decide whether the
inquiry was conducted fairly and as per the rules and also whether the
acceptance of the findings in the inquiry report was proper by the disciplinary
authority leading to the issuance of the impugned order of removal.
29. Ordinarily, after the matter is admitted for hearing, normally a litigant is
not relegated to a departmental authority to pursue the alternative remedy.
However, in the facts of the present case and upon proper examination of the
records, it is seen that the petitioner was in possession of the inquiry report,
which albeit was supplied to him upon a request made by the petitioner through
a RTI. But the petitioner chose not to disclose the same before this Court for
reasons best known to the petitioner.
30. The conduct of the petitioner in this proceeding is also required to be
taken note of. All along, the sheet anchor of the arguments of the petitioner is
the non-supply of the inquiry report and the prejudice it has caused to the
petitioner. However, the records made available before the Court by the
department reveals otherwise. Under such circumstances, where the petitioner
appears to have been deliberately avoided taking recourse to the statutory
remedy and without any explanation as to why the remedy provided under the
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Rules was not availed of and coupled with the fact that the petitioner has
suppressed the fact that he had received the inquiry report as far back as
29.07.2013 as is evident from the records, this Court is of the view that a Writ
Court ought not to allow the writ petition, where a litigant does not come with
clean hands and suppresses material facts before the Court. Such litigant cannot
be considered to be entitled to the privilege of availing orders of the Court
under the writ jurisdiction. One who seeks equity must come to the Court with
clean hands. Where there is a deliberate suppression of fact that the petitioner
had been supplied with a copy of the inquiry report pursuant to an application
made under RTI Act and that to during the pendency of the present
proceedings, it is clear that the petitioner deliberately attempted to suppress
this material fact. It was open to the petitioner to bring it on record by filing
additional pleadings that it was in receipt of the inquiry report. Under such
circumstances the writ Court would be disinclined to grant any relief to the
petitioner for having taken recourse of suppressing of material fact. There are
numerous judgments of the Apex Court as also from this Court that no relief
ought to be granted to such a litigant who deliberately and willfully suppresses
the material facts and does not come with clean hands before the Court.
31. In Raj Kumar Soni v. State of U.P., reported in (2007) 10 SCC 635, it was
held by the Apex court that it is a fundamental principle of law that a person
invoking the extraordinary jurisdiction of the High Court under Article 226 must
come with clean hands and make full and complete disclosure of facts to the
Court. The parties are not entitled to choose their facts to put forward before
the Court. The foundational facts are required to be pleaded enabling the Court
to scrutinize the nature and the content of the right alleged to have been
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violated by the authority. The relevant paragraphs are expected below:
"11. The High Court, after an elaborate consideration of the matter, in clear and
categorical terms, found that the Sub-Divisional Officer had no jurisdiction vested in him
to grant/allot the government land and the power vests only with the District Collector. The
appellants did not plead and establish to the satisfaction of the Court that the Sub-
Divisional Officer is conferred with the jurisdiction to allot/grant the government land on
the strength of applications by the interested parties. It is a fundamental principle of law
that a person invoking the extraordinary jurisdiction of the High Court under Article 226 of
the Constitution of India must come with clean hands and must make a full and complete
disclosure of facts to the Court. Parties are not entitled to choose their own facts to put
forward before the Court. The foundational facts are required to be pleaded enabling the
Court to scrutinise the nature and content of the right alleged to have been violated by the
authority."
32. Although Rule 15 does not elaborate on the procedure to be followed,
the manual of departmental proceedings, which are appended to the Rules of
1964 provides clear instructions as to how the appeals are to be considered.
Under Rule 23.2 in respect of an appeal against an order imposing any of the
penalties specified under Rule 7 (Rules of 1964) the steps required to be carried
out by the appellate authority are clearly indicated. The same are extracted
below.
"Rule 23(1) ...................................................
(2) In the case of an appeal against an order imposing any of the penalties specified in Rule
7, the appellate authority shall consider -
a) Whether the procedure prescribed in these rules has been complied with an, if
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not whether such non-compliance has resulted in violation of any provisions of the
Constitution or in failure of justice;
b) Whether the findings are justified; and
c) Whether the penalty imposed is excessive, adequate or inadequate; and, after
consultation with the Commission, if such consultation is necessary in the case,
pass orders -
i. setting aside, reducing, confirming or enhancing the penalty; or
ii. remitting the case to the authority which imposed the penalty or
to any other authority with such direction as it may deem fit in the
circumstances of the case;
Provided that -
i. the appellate authority shall not impose any enhanced penalty
which neither such authority nor the authority which made the order
appealed against is competent in the case to impose;
ii. if the enhanced penalty which the appellate authority proposes to
imposes, is one of the penalties specified in clauses (iv) to (vii) of Rule 7 and
an inquiry under Rule 9 has not already been held in the case, the appellate
authority shall, subject to the provisions of Rule 10, itself hold such enquiry
or direct that such enquiry be held in accordance with the provisions of Rule
9 and thereafter, on consideration of the proceedings of such enquiry make
such orders as it may deem fit;
iii. if the enhanced penalty which the appellate authority proposes to
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impose be one of the penalties specified in clauses (iv) to (vii) of Rule 7 and
an enquiry under Rule 9 has already been held in the case, the appellate
authority shall make such orders as it may deem fit;
iv. no order imposing an enhanced penalty shall be made in any other
case unless the appellant has been given a reasonable opportunity as far as
may be in accordance with the provisions of Rule 9, of making a
representation against such enhanced penalty.
33. In view of such elaborate instructions having been prescribed for the
appellate authority, this Court is of the considered view that ends of justice will
be met, if the petitioner is permitted to file an appeal before the appellate
authority prescribed under Rule 15. Considering the facts urged before the
Court in respect of the charges and the allegations made against the petitioner
are disputed by the petitioner and such contentions of the petitioner are also
denied by the respondent authorities. The Court therefore, directs that the
petitioner will approach the appellate authority prescribed for filing necessary
appeals under Rule 15 of the Rules of 1964.
34. However, considering the fact that the petitioner suffered dismissal
from service and the disciplinary authority by the impugned dated 11.04.2013
imposed the severest penalty on the writ petitioner, the Court considers it
appropriate to relegate the writ petitioner to file an appeal before the appellate
authority as prescribed under Rule 15 of the Rules of 1964. The appellate
authority will consider the aspect of limitation liberally inasmuch as an appeal
could not have been filed before the appellate authority without supply of the
inquiry report.
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35. The appellate authority will consider the fact that by the time the
petitioner applied for and was supplied with the inquiry report the present writ
petition had already been filed before this Court on 03.05.2013. Therefore, the
period spent before this Court in the present proceedings will not be considered
by the appellate authority while considering the period of limitation, if and when
the appeal is filed. It is also necessary to mention here that the appellate
authority will have all the powers of the disciplinary authority to pass all
adequate orders in respect of the proceedings initiated as also the orders
passed by the disciplinary authority, if it finds any infraction with the Rules and
the procedures prescribed. In view of the above discussions the judgments
referred to by the writ petitioner are therefore, required to be discussed at this
stage.
36. The writ petition accordingly, stands disposed of in terms of the above.
The petitioner may prefer an appeal before the appellate authority as prescribed
under Rule 15 within a period of 30 days from the date of receipt of the certified
copy of this order.
37. If such an appeal is preferred within the period prescribed, the appellate
authority will examine the matter by calling all relevant records and thereafter,
pass appropriate orders.
38. While hearing the appeal, the appellate authority will grant all
opportunities to the petitioner and pass appropriate orders by examining the
necessary report.
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39. The Departmental records are returned back to the Government Counsel
through the Court Master.
40. Interlocutory application, if any is also disposed of. Interim order(s), if
any stands merged.
JUDGE
Comparing Assistant
