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2001 DIGILAW 248 (GAU)

Gambhir Hira (Const. ABC/1289) v. State of Assam

2001-08-31

R.S.MONGIA, RANJAN GOGOI

body2001
R.S. MONGIA, CJ (ACTING) — This judgment and order of ours would dispose of in Writ Appeal No. 248, Writ Appeal No. 252, Writ Appeal No. 253 and Writ Appeal No. 254 of 2001, inasmuch as four writ petitions were disposed of by the learned Single Judge by a common judgment and order dated 20.5.2001. 2. For the view we have taken in the matter it is not necessary to state detailed facts. Suffice is to say that the appellant-Constables in Assam Police were discharged from service after a depart mental enquiry. There were almost identical charges against all the appellants in the cases and it is stated that even the enquiry reports are almost identical. After the enquiry an order of discharge was issued by the Superintendent of Police, Nagaon. The order of discharge, which was issued again one of the appellants, Gambhir Hira in Writ Appeal No. 248 of 2001 as follows :- “Office of the Superintendent of Police, Nagaon, Assam. Copy of D.O. No. 3441 Dtd 25.11.98. The following order passed on D/P No. 1 drawn up against ABC/68 Bongshidhar Handique of this DEE as follows : Perused the findings submitted by the E.O. in connection with the D/P No. 10/94 and found that the delinquents violated all training norms/ camp norms because of which they failed to retaliate and extremists could snatch away all their arms/ammunitions. At the time of attack, two constables ACB/898 Phukan Hira and AHC/1289 Gambhir Hira were way from their duty post at a nearby shop which clearly shows that they had scant regard for their duty and responsibility. Other two delinquents Const/ 1260 Mokbul Hussain and ABC/68 Bongshidhar Handique were also not alert on duty because of which they could not fire even one single round in retaliation. Their behaviour shows gross negligence/cowardice and dereliction of duty. Shameful fact is that even protcctee and his wife both civilians also advised them not to interact with outsiders and remain alert on their duty. It appears from the findings that the continuance of such irresponsible and coward personal in the police force will demoralise (he whole force and will set a bad precedence for those who default in future. In the present insurgency/law and order situation, where police personnel arc required to be extra-vigilant responsible, such type of act defeats the whole purpose. It appears from the findings that the continuance of such irresponsible and coward personal in the police force will demoralise (he whole force and will set a bad precedence for those who default in future. In the present insurgency/law and order situation, where police personnel arc required to be extra-vigilant responsible, such type of act defeats the whole purpose. Under the circumstances and keeping findings of the proceeding in mind, I am of the view that their continuance in office will be detrimental to the efficiency and discipline of the force. Hence ABC/68 Bongshidhar I Indiquc is discharged from service. D/P is disposed off. He is allowed to go in appeal against this order to the Higher Authority as per rule. Sd/- Illegible Supdt. of Police, Nagaon, Assam.” Similar order was passed against the other appellants. The aforesaid orders was made subject matter of challenge in writ petitions which were dismissed by the judgment of the learned Single Judge. One of the grounds on which the legality and validity of the discharge was challenged before the learned Single Judge was that the enquiry report had not been furnished to the appellants/petitioners before the impugned order of discharge was passed by the Disciplinary Authority. It is not disputed before us that before the impugned order of discharge was passed the enquiry report had not been furnished to the appellant/ writ petitioners. The learned Single Judge dealt with this point as follows: “No doubt furnishing of enquiry report is essential before imposing punishment, but al the same time the law is that the person must show how prejudice has been caused to him for non-furnishing the enquiry report. There is not even a whisper with regard to this in any of the writ applications.” Without the supply of the enquiry report the writ petitioners, now appellants, could not have shown as to what prejudice had been caused to them by the non supply of the enquiry report. If they were not aware of the contents of the enquiry report how could delinquent officers show as to what prejudice was caused because of the non-supply. Under similar circumstances the Apex Court had to deal with such a point in Managing Director, ECIL and others-Vs-B. Karunakar and others (1993) 4 SCC 727 . In para 31 of the reported judgment it was observed by the Apex Court as under :- “31. Under similar circumstances the Apex Court had to deal with such a point in Managing Director, ECIL and others-Vs-B. Karunakar and others (1993) 4 SCC 727 . In para 31 of the reported judgment it was observed by the Apex Court as under :- “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 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 breads 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 set aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/ management to proceed with the inquiry, by placing the employee under suspension and continuing the enquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the backwages 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. The question whether the employee would be entitled to the backwages 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 threat 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.” From the reading of the above paragraph from the Apex Court judgment it would be seen that observations were made by the Apex Court that the Court/Tribunal should get the copy of the enquiry report supplied to the petitioner/delinquent officer who may then show to the Court/ Tribunal as to what prejudice has been caused by the non-supply of the enquiry report. Simply on the non-supply of the report mechanically the order or punishment cannot be set aside. To see whether the prejudice has been caused or not, sine qua non is the supply of the enquiry report. 3. Keeping in view of the aforesaid observations of the Apex Court, this Court vide order dated 20.7.2001 had passed an order directing the respondents to supply a copy of the enquiry report to the appellants. Writ petitioners and appellants were given time to file an affidavit, after the receipt of the enquiry report to show as to what prejudice had been caused to them. This was done and the appellants have filed the affidavits showing as to what prejudice had been caused to them by non-supply of the enquiry report. 4. We have gone through the enquiry report as well as affidavits filed by the appellants. This was done and the appellants have filed the affidavits showing as to what prejudice had been caused to them by non-supply of the enquiry report. 4. We have gone through the enquiry report as well as affidavits filed by the appellants. We are of the view that prejudice was caused by the non-supply of the enquiry report as the points sought to be raised by the appellants in their affidavits that the findings of the Enquiry Officer are not well based require consideration at the hands of the Disciplinary Authority. For instance one of the grounds taken is that the documents which have been relied by the Enquiry Officer were not mentioned in the list of documents relied upon by the department in the enquiry and no such list was supplied to the delinquent officers. We are not going into the validity of such an objection but we are only of the view that such an objection needed consideration at the hands of the Disciplinary Authority. 5. Following the dicta of the Apex Court judgment in para quoted above we set aside the judgment of the learned Single Judge and also all the impugned orders of discharge dated 25.11.98, and allow these appeals as well as the writ petitions and give the same relief to the appellants as was given to the respondent in the aforesaid case of the Supreme Court i.e. we direct the reinstatement of the appellant with the liberty to the respondents authority to proceed with the enquiry, if it so chooses, by placing them under suspension, if required, from the stage of furnishing them with the report. In other words since the report has already been furnished to the appellants the respondents authorities may continue with the enquiry from that stage. They may ask the appellants to show cause as to why the findings of the enquiry report be not accepted and punishment imposed on that basis. If respondents decide to continue with the enquiry they will give reasonable time to the appellants to show cause. In such an eventuality the question whether the appellants would be entitled to the backwages and other benefits from the date of discharge to the date of reinstatement would be decided in accordance with law after the culmination of the proceeding and depending upon the final outcome. In such an eventuality the question whether the appellants would be entitled to the backwages and other benefits from the date of discharge to the date of reinstatement would be decided in accordance with law after the culmination of the proceeding and depending upon the final outcome. A copy of this order, attested by the Bench Assistant, be given to the learned counsel for the respondent for sending the same to the concerned authority.