Research › Search › Judgment

Gauhati High Court · body

2006 DIGILAW 954 (GAU)

Ramizuddin Ahmed v. State of Assam

2006-10-31

AMITAVA ROY, MAIBAM B.K.SINGH

body2006
JUDGMENT Amitava Roy, J. 1. The judgment and order dated 26.6.2002 passed in W.P. (C) No. 1511 of 1999 dismissing the challenge made by the Appellant/writ Petitioner to the order of his dismissal from service following a disciplinary proceeding has been assailed in this writ appeal. 2. We have heard Mr. A.S. Choudhury learned senior counsel assisted by Mr. I. Hussain, learned Counsel for the Appellant and Mr. P.K. Musahary, learned senior Government Advocate, Assam for the Respondents. 3. Shortly put, the facts essential for disposal of the appeal are that the Appellant, who at the relevant time was serving as Lains Naik in the Assam Police Force and attached to the Howraghat Police Station, was charged to have committed rape on Smti. Rani Munda @ Lengeri Munda on 30.8.1996 while on duty. In the related departmental proceeding initiated on the said charge, the Appellant participated and eventually, the enquiry officer submitted its report on 8.9.1998. The proceeding was conducted in terms of the provision of the Assam Services (Discipline and Appeal) Rules, 1964 (hereinafter referred to as 'Rules'). The enquiry officer returned a finding that the charge levelled against the Appellant was proved and, therefore, by the impugned order dated 26.10.1998 passed by the Superintendent of Police, Assam the Appellant was dismissed from service. 4. The Respondents, in their affidavit, in substance have contended that the enquiry was held strictly in accordance with the Rules and that having regard to the gravity of the charge proved against the Appellant, the penalty of dismissal from service was rightly, inflicted on him. 5. The learned Single Judge having refused to interfere with the dismissal, the Appellant is before us. 6. The only submission made by the learned Counsel for the Appellant is that a plain reading of the impugned order reveals that it is approved to the letter and spirit of Sub-rule 9 of Rule 9 of the Rules mandatory requiring the disciplinary authority to consider the record of the inquiry and record its findings on each charge. According to Mr. Choudhury, not only the said mandate of the Rules has been violated but also no opportunity whatsoever was provided to the Appellant to represent against the penalty proposed. According to Mr. Choudhury, not only the said mandate of the Rules has been violated but also no opportunity whatsoever was provided to the Appellant to represent against the penalty proposed. The learned senior counsel, therefore, maintained that the impugned penalty/- on the face of the record-being in contravention of the Rules is liable to be interfered with and that the learned Single Judge in refusing to do so had fallen in error. 7. Mr. Musahary, learned senior Government Advocate, in reply, has argued that as the impugned order has been passed on the culmination of the disciplinary proceeding held in accordance with the Rules, the same in essence is in compliance thereof and, therefore, no interference is called for. 8. After carefully considering the rival submissions we are inclined to agree with the learned Counsel for the Appellant. It is no longer res integra that Rule 9 of the Rules is mandatory and that any action thereunder to sustain a legal scrutiny has to be in meticulous compliance thereof. This is principally as any order of penalty following a departmental proceeding would visit the delinquent officer with adverse civil consequences, even leading to his ouster from service as in the present case, with a stigma. Any departure from prescription of Rule 9, therefore, has to be at the pain of invalidation of the resultant decision. 9. On a plain reading of the order of dismissal impugned, it is obvious that the disciplinary authority in concluding the charge-levelled to have been proved against the Appellant in the enquiry did not make an endeavour to discuss the evidence on record. It is too fundamental to state that a conclusion of any authority having the power to decide any issue to the detriment of any person has to be preceded by a vigilant consideration of all relevant materials supported by reasons. Reasons, as a matter of fact, constitute the gravamen of valid decision, administrative or judicial. The impugned order is manifestly devoid of above essentially. Though an endeavour has been made by the Respondents in their affidavit to plead that an opportunity of hearing had been provided to the Appellant on the question of penalty, in our view, the same is not enough even if accepted, to validate the impugned order in view of the above violation of the Rules. 10. Though an endeavour has been made by the Respondents in their affidavit to plead that an opportunity of hearing had been provided to the Appellant on the question of penalty, in our view, the same is not enough even if accepted, to validate the impugned order in view of the above violation of the Rules. 10. In the above view of the matter the impugned judgment and order cannot be sustained in law and is, therefore, interfered with. Considering the seriousness of the charge remand the matter to the disciplinary authority for a de novo decision on the basis of the materials already on record but strictly complying with the requirement of the Rules. We make it clear that if on consideration of the issue, the disciplinary authority is inclined to hold that the charge against the Appellant is established, it would undoubtedly provide an opportunity to him before imposing any penalty As the Appellant stands dismissed from service from the year 1998, the exercise indicated hereinabove shall be completed within a period of one month from the date of receipt of the certified copy of this order. The impugned judgment and order, in the result, stand interfered with. 11. The appeal partly allowed, No cost.