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2005 DIGILAW 578 (GAU)

Bidyut Buragohain v. State of Assam

2005-08-09

RANJAN GOGOI

body2005
JUDGMENT Ranjan Gogoi, J. 1. The writ petitioner Shri Bidhyut Buragonhain is a member of the Assam Police Service and is presently holding the rank of Additional Superintendent of Police, A show cause notice dated 8.10.2001 was issued against the writ petitioner under the provisions of Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964, hereinafter referred to as the Rules, read with Article 311 of the Constitution of India levelling the following two charges: 1. That while you were posted as Additional Superintendent of, Police (s), Lakhimpur on 5.7.2001, the Army apprehended one Shri Gojen Bhuyan @ Joon Kalita an ULFA Militant alongwith arms and ammunitions from the barrack attached to your official residence as you had given him shelter without informing your superior officers. Reportedly, the said Gojen Bhuyan had been staying with you for the last 7 (seven) months during your present tenure at North Lakhimpur and previous tenure of Nalbari. You had failed to produce the militant either before your superior officer in time or to any other authority for appropriate action. Your above act amounts to harbouring of criminal and is also detrimental to the security of the State. You are therefore, charged with gross misconduct and negligence of duty. 2. That while Shri Gojen Bhuyan (ULFA militant) was staying in the premises of your Government quarter at North Lakhimpur, he (ULFA) attempted to extort money from some businessmen of North Lakhimpur, threatening them by using your telephone but you did not take any action against the militant and thereby you had completely failed to keep any check or watch on the activities of the ULFA militant being an important security officer in the District of Lakhimpur. You are therefore, charged with gross misconduct and negligence of duty. 2. By a subsequent show cause notice dated 23.4.2002. some further, charges were levelled against the writ petitioner in respect of the incident/incidents as mentioned in the earlier show cause notice dated 8.10.2001. The petitioner submitted his reply to the charges levelled and thereafter a regular departmental proceeding was initiated against the writ petitioner wherein he participated. At the conclusion of the departmental proceeding, the enquiry officer submitted his report dated 29.1.2003. The petitioner submitted his reply to the charges levelled and thereafter a regular departmental proceeding was initiated against the writ petitioner wherein he participated. At the conclusion of the departmental proceeding, the enquiry officer submitted his report dated 29.1.2003. On receipt of the said report of the enquiry officer, the disciplinary authority, by order dated 19.4.2003 indicated its disagreement with the report of the enquiry officer and communicated to the petitioner the decision to hold a fresh enquiry into the charge levelled. Thereafter, by order dated 24.4.2003, one Shri.Dilip Bora, IPS, Inspector General of Police (TAP) was appointed as the enquiry officer and it is at that stage that the instant writ application has been filed calling into question the order dated 19.4.2003 whereby it was proposed to have a de novo enquiry. It is, therefore, the validity of the aforesaid order that has to be decided by the Court in the present proceeding. 3. Shri K.K. Mahanta, learned Senior Counsel appearing for the petitioner has submitted that Rule 9 of the Rules lias laid down an elaborate procedure for imposition of penalty. Drawing the specific attention of the Court to the provisions contained in the aforesaid Rule 9 of the Rules. Shri Mahanta has submitted that after the enquiry report is received by the disciplinary authority, the provisions of the aforesaid Rule cast upon the said authority a duty to consider the records of the enquiry and thereafter record its findings on each charge. No power has been conferred nor any provision has been made so as to enable the disciplinary authority to hold a fresh or de novo enquiry by discarding the report of the enquiry officer already submitted. Reliance on a judgment of the Apex Court in the case of K.R. Deb v. Collector, Central Excise, Shillong learned Counsel has submitted that the Apex Court in an identical situation, while interpreting the pari materia provisions of the CCS. (Classification, Control and Appeal) Rules, 1957, had laid down that the disciplinary authority will not have the power to order for a fresh/de novo enquiry and discard the report of the enquiry officer submitted earlier. Placing a Division Bench judgment of this Court in the case of Bandhana Godia v. Assam Board of Revenue and Ors. (Classification, Control and Appeal) Rules, 1957, had laid down that the disciplinary authority will not have the power to order for a fresh/de novo enquiry and discard the report of the enquiry officer submitted earlier. Placing a Division Bench judgment of this Court in the case of Bandhana Godia v. Assam Board of Revenue and Ors. learned Counsel for the petitioner has submitted that the provisions contained in Rule 9 of the Rules have been held by this Court to be mandatory provisions requiring strict compliance and adherence. It is further argued that in the present case, the report of enquiry has not been made available to the petitioner, but from the fact that the disciplinary authority has indicated its disagreement and proposed to hold a fresh enquiry, if can be inferred that the report of enquiry is in favour of the writ petitioner. Though not provided or empowered by the Rules, the disciplinary authority has discarded the said report and has proceeded to hold a fresh enquiry, which is not authorized under the provisions of the law. Learned Counsel has, therefore, submitted that the course of action proposed not being authorized by law, the impugned order dated 19.4.2003 should be interfered by this Court. 4. The arguments advanced by Shri K.K. Mahanta, learned Senior Counsel for the petitioner have been sought to be controverted by Shri R.K. Bora, learned Government Advocate, Assam appearing on behalf of the official respondents. Shri Bora has submitted that there being a disagreement of the disciplinary authority with the findings of the enquiry officer, it is open in law for the disciplinary authority not to accept the report of the enquiry officer and, instead proceed to hold a fresh enquiry in respect of the charges levelled. The aforesaid course of action, having been accepted by the disciplinary authority as evident from the impugned order dated 19.4.2003, learned Government Advocate has submitted that no infirmity is discernible in the said order warranting interference by this Court in exercise of its power under Article 226 of the Constitution of India. 5. The rival submissions advanced on behalf of the respective parties have been duly considered. The provisions of Rule 9, particularly 9(9) of the Rules have already been noted. 5. The rival submissions advanced on behalf of the respective parties have been duly considered. The provisions of Rule 9, particularly 9(9) of the Rules have already been noted. It has also been noted that there is no specific power vested in the disciplinary authority by the provisions of the Rules so as to enable the said authority to hold a fresh/de novo enquiry in case the disciplinary authority is in disagreement with the findings of the enquiry officer. If a power is claimed by the disciplinary authority to discard the report of enquiry officer earlier submitted and to hold a fresh enquiry, it is natural that there should be some indication of the availability/conferment of such a power in the Rules itself. The Rules are conspicuously silent on the aforesaid question and no such power has been specifically or impliedly conferred. In K.R. Deb (supra), the charges levelled against the delinquent officer were enquired into by a duly appointed enquiry officer, who returned a verdict of "not guilty". The disciplinary authority remitted the matter for examination of further witnesses by the enquiry officer. Once again the enquiry officer submitted a report favourable to the delinquent. The process was repeated for the second time and this time also the report of enquiry was in favour of the delinquent. It is at this stage that the disciplinary authority passed an order superseding the report of the enquiry officer and appointed a fresh enquiry officer to hold a de novo proceeding. In these facts, the question that was raised before the Apex Court is whether haying regard to the provisions of Rule 15(9) of the CCS. (Classification, Control and Appeal) Rules, 1957 such a power could be understood to be available to the disciplinary authority. Rule 15(9) and Rule 9(9) of the Assam Services (Discipline and Appeal) Rules, 1964, if must be noticed are peri meteria. The Apex Court answered the above question by taking the view that while it may be open for the disciplinary authority to require the enquiry officer to examine further witnesses and do such other incidental acts in an already concluded proceeding, having regard to the language of Rule 15(9) of the C.C.S. (Classification, Control and Appeal) Rules. 1957 a fresh enquiry into the same set of allegations by discarding the earlier enquiry report is not contemplated. 1957 a fresh enquiry into the same set of allegations by discarding the earlier enquiry report is not contemplated. The question raised in the present writ petition having regard to the identity of the language of Rule 15(9) of the C.C.S. (Classification, Control and Appeal) Rules, 1957 and Rule 9(9) of the Assam Services (Discipline and Appeal) Rules, 1964, therefore, stand squarely answered by the decision of the Apex Court in the case of K.R. Deb (supra). No. specific power to hold a second enquiry into the same set of allegations which were earlier enquired into, having been vested in the disciplinary authority and the provisions of Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 having been held to be mandatory in the case of Bandhana Goala (supra), the conclusion that has to inevitably follow is that the Office Order dated 19.4.2003 proposing to hold a fresh enquiry against the petitioner is wholly without jurisdiction and/or authority of law and, therefore, this Court has no hesitation in interfering with the said order. Consequently, this writ petition is allowed and the order dated 19.4.2003 shall stand interfered with. Petition allowed.