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2010 DIGILAW 8 (GAU)

Bidyut Buragohain v. State of Assam

2010-01-08

BIPLAB KUMAR SHARMA

body2010
JUDGMENT B.K. Sharma, J. 1. The petitioner is aggrieved by the orders dated 16.4.2008 and 28.8.2008 passed respectively by the Disciplinary Authority and the Appellate Authority. By the first order, the petitioner has been awarded with the major penalty of compulsory retirement from service and by the second order, the departmental appeal preferred by the petitioner has been rejected. 2. The petitioner was a member of the Assam Police Service (APS 1993 batch). While he was serving at Lakhimpur as Additional Superintendent of Police, he was placed under suspension by order dated 10.7.2001 in contemplation of a departmental proceeding. He was so placed under suspension when one Shri Gajen Bhuyan, a militant of United Liberation Front of Assam (ULFA) was found staying in his residential campus and was picked up by the Army with arms and ammunitions. An FIR was lodged with the statement that the said militant alongwith two others had given number of extortion calls/notices to some persons of the area called Boginadi. 3. The aforesaid order of suspension dated 10.7.2001 was followed by the order dated 9.8.2001 by which an enquiry committee was constituted headed by the Commissioner, North Assam Division, Tezpur. The enquiry committee carried out the preliminary enquiry regarding the nature of involvement of the petitioner in the entire episode. In the mean time, the petitioner was served with the show-cause notice dated 8.10.2001 to which the petitioner submitted reply dated 24.10.2001 denying the allegations made in the show-cause notice. Although in the writ petition, the petitioner has not annexed the copy of the charge-sheet but the said charges are reflected in the impugned order dated 16.4.2008. The charges levelled against the petitioner are as follows: 1. While Sri Bidyut Buragohain, APS was posted as Additional Superintendent of Police(S), Lakhimpur on 5.7.2001, the Army apprehended one Sri Gajen Bhuyan alias Sri Joon Kalita an ULFA militant along with arms and ammunitions from the barrack attached to his official residence as he had given shelter to the ULFA militant without informing his superior officers. Reportedly, the said Gajen Bhuyan had been staying with Sri Bidyut Buragohain for last 7 (seven) months during his tenure at North Lakhimpur and also during his previous tenure at Nalbari. He had failed to produce the militant either before his superior officer in time or to any other authority for appropriate action. Reportedly, the said Gajen Bhuyan had been staying with Sri Bidyut Buragohain for last 7 (seven) months during his tenure at North Lakhimpur and also during his previous tenure at Nalbari. He had failed to produce the militant either before his superior officer in time or to any other authority for appropriate action. His above act amounts to harbouring of criminal and is also detrimental the security of the State. 2. While Sri Gajen Bhuyan (ULFA militant) was staying in the premises of Sri Bidyut Buragohain Govt. quarter at North Lakhimpur, the ULFA militant attempted to extort money from some businessmen of North Lakhimpur by threatening them and the telephone of Sri Bidyut Buragohain, APS, was used but he did not take any action against the militant and thereby he 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. 3. While Sri Bidyut Buragohain, APS, was posted as Additional Superintendent of Police (HQ), Nalbari, one ULFA militant Sri Gajen Bhuyan alias Joon Kalita, surrendered secretly on 12.12.2000 before him and the O-C, Borbori Police Station in Subonsiri village under Borbori Police Station alongwith arm and ammunitions. Shri Bidyut Burabohain, APS, had taken over custody of the surrendered militant with arms and ammunitions and kept him under his personal custody with a reported intention to secure his surrender formally. But he had never secured his formal surrender and continued to keep him under his personal custody without any clear information to the Superintendent of Police, Nalbari. He didn't keep Sri Gajen Bhuyan (ULFA) along with other surrendered militants in the barrack designated for them by Nalbari Police Station. Sri Bidyut Buragohain, APS, was therefore charged with dereliction of duties and gross misconduct. 4. Again when Sri Buragohain, APS, was transferred to Lakhimpur from Nalbari as Additional Superintendent of Police (HQ) he took Sri Gajen Bhuyan an ULFA militant with him along and lodged him in the security barrack at his official residence premises and failed to inform the Superintendent of Police, Lakhimpur, Sri Bubhrajyoti Hazarika, APS, clearly that a militant had been staying with him in his security barrack, in the manner similar to when he was posted at Nalbari as Addl. S.P. (HQ), therefore, he was charged with serious misconduct and indiscipline. 5. S.P. (HQ), therefore, he was charged with serious misconduct and indiscipline. 5. Being a senior and responsible police officer, Sri Bidyut Buragohain, APS, could have easily secured his surrender as per laid down procedure, but although several opportunities were available during his posting at Nalbari as well as in Lakhimpur, he did not take any positive and effective action and continued to harbour the ULFA militant on the pretext of securing his surrender. Nor he did deposit the arms and ammunition at malkhana for the reasons best known to him. 6. When the militant was lodged in the security barrack in his official residence premises, Sri Gajen Bhuyan alias Joon Kalita had come to close association with Sri Khorgeswar Doley and Sri Dhiren Sonowal, a student of Lakhimpur college. They had jointly planned for extortion of money from local businessmen and written extortion letters purported to be issued by ULFA militant. They had used the official telephone of Sri Bidyut Buragohain, APS, for threatening businessmen and demanding money. Quite contrary to the claim of Sri Bidyut Buragohain, APS, to have kept the militant under proper watch, the ULFA militant could indulge in the above mentioned criminal activities while staying with Sri Bidyut Buragohain, APS, for which he was charged with gross misconduct and indiscipline. 7. The official residential premises of Sri Bidyut Buragohain, APS, was raided by the army, the fact that he had harboured a militant under his custody and the militant had been indulging in criminal activities was not known to his superiors. Therefore, Sri Bidyut Buragohain, APS was charged with gross misconduct for hiding important information from seniors and for harbouring militant. 4. Being not satisfied with the reply furnished by the petitioner, the Disciplinary Authority decided to enquire into the charges by appointing an Inquiry Officer who on conclusion of the enquiry submitted his report dated 29.1.2003 (Annexure-1). 5. The Disciplinary Authority on receipt of the enquiry report decided to start the enquiry de novo vide order dated 19.4.2003. Being aggrieved, the petitioner approached this Court by filling a writ petition being WP(C) 6097/2003. The writ petition was allowed by judgment and order dated 9.8.2005 holding that the de novo enquiry could not have been ordered after conclusion of the enquiry. Being aggrieved, the petitioner approached this Court by filling a writ petition being WP(C) 6097/2003. The writ petition was allowed by judgment and order dated 9.8.2005 holding that the de novo enquiry could not have been ordered after conclusion of the enquiry. Referring to the provisions of the Assam Services (Discipline and Appeal) Rules, 1964, it was observed that the proposal to hold a fresh enquiry against the petitioner was without jurisdiction and/or authority of law. 6. After the aforesaid judgment and order, the Disciplinary Authority passed the Annexure-3 impugned order dated 16.4.2008 imposing the penalty of compulsory retirement on the petitioner making a grievance against which the petitioner preferred an appeal before the appellate authority and the appellate authority by its order dated 28.8.2008 having dismissed the same, the petitioner has invoked the writ jurisdiction of this Court assailing both the orders. 7. It is the case of the petitioner that the enquiry report dated 29.1.2003 in consideration of which the disciplinary authority had ordered for a fresh enquiry could not have formed the basis of the impugned orders. According to the petitioner, the charges having not been established, the disciplinary authority without first recording its disagreement with the said report and providing an opportunity to the petitioner to respond to the said disagreement, could not have passed the impugned order of penalty. 8. The respondents have filed their counter-affidavit denying the contentions raised in the writ petition. While broadly agreeing with the factual aspects of the matter referred to above, it has been stated that although the de novo enquiry could not be started in view of the interference of this Court in the aforesaid judgment and order but on the basis of the materials available on records including the enquiry report, the disciplinary authority decided to impose the penalty of compulsory retirement upon the petitioner. The respondents have justified the impugned orders by referring to the observations made by the Inquiry Officer in his report. 9. I have heard Mr. R. Biswas, learned Counsel for the petitioner as well Ms. R. Chakraborty, learned Addl. Senior Govt. Advocate. I have also carefully examined the disciplinary proceeding file. Upon a consideration of the matter in its entirety on the basis of the available materials and the submissions made by the learned Counsel for the parties, I record my findings as follows. 10. R. Biswas, learned Counsel for the petitioner as well Ms. R. Chakraborty, learned Addl. Senior Govt. Advocate. I have also carefully examined the disciplinary proceeding file. Upon a consideration of the matter in its entirety on the basis of the available materials and the submissions made by the learned Counsel for the parties, I record my findings as follows. 10. The charges against the petitioner have been noted above which by their very nature are very serious. Although, it is the case of the petitioner that none of the charges levelled against him could be established during the enquiry but on perusal of the enquiry report dated 29.1.2003, it is found not to be so. The basic charge against the petitioner is that while he was posted as Additional Superintendent of Police, Nalbari, he alongwith officer-in-charge of Barburi PS with a stream of security persons picked up one Shri Gajen Bhuyan @ Joon Kalita, an ULFA militant from Subansiri village. The said militant was to surrender before the authority but before formal surrender could be arranged, the petitioner was transferred to North Lakhimpur as Addl. SP. He, instead of either arranging the formal surrender of the militant or his formal arrest, took said Shri Gajen Bhuyan to North Lakhimpur and kept alongwith him till July, 2001. It was on 5.7.2001, Army Personnel picked up the said ULFA militant from the residential campus of the petitioner alongwith two other boys engaged in issuing extortion notices to the businessmen of North Lakhimpur town. As the said militants were picked up from the said residential campus of the petitioner, he was charged with the aforementioned 7(seven) charges. 11. As per Charge No. 1, the petitioner failed to hand over the ULFA militant along his arms and ammunitions rather gave him shelter without informing the superior officers. As per the said charge, the ULFA militant had been staying with the petitioner for last about 7 (seven) months at North Lakhimpur. Thus, the charge against the petitioner was that he had been keeping the ULFA militant with him without any order from the superior authority. 12. As per the enquiry report, the petitioner did not take prompt action in respect of surrender of the militant. Thus, the charge against the petitioner was that he had been keeping the ULFA militant with him without any order from the superior authority. 12. As per the enquiry report, the petitioner did not take prompt action in respect of surrender of the militant. As per the report, the arms and ammunitions belonging to the ULFA militant had been kept by the petitioner after taking back the same from the militant on 2.7.2001, the same till taken over by the army on 5.7.2001. Although, as per the report, the charge of gross misconduct for not bringing the fact to the notice of the superior officers or to the authority concerned could not be proved but the fact remains that the petitioner had kept the militant alongwith him till he was picked up by the army on 5.7.2001. It is really surprising that the petitioner took the ULFA militant alongwith him on his transfer to North Lakhimpur from Nalbari and kept with him for long six alongwith arms and ammunitions. 13. Charge No. 2 relates to making use of the telephone of the petitioner for collection of money illegally by threatening the businessmen of North Lakhimpur. The charge is that the ULFA militant while staying in the premises of the petitioner made use of his telephone. 14. The finding of the Inquiry Officer is that the charge could not be established but at the same time it is the finding of the Inquiry Officer that there was extortion notices from the ULFA militant but the same was not in the notice of the petitioner. Here also, the fact remains that the ULFA militant used to stay in the petitioner's premises without any authority. It is another thing whether the extortion notices were with or without the knowledge of the petitioner. 15. Charge No. 3 is that the petitioner, although took custody of the ULFA militant alongwith arms and ammunitions but he never secured his formal surrender and continued to keep him under his personal custody without any information to the authority. The findings of the Inquiry Officer is that although the failure of securing formal surrender could not be established but the fact of not keeping the ULFA militant in the barrack meant for surrendered militants was established. 16. The findings of the Inquiry Officer is that although the failure of securing formal surrender could not be established but the fact of not keeping the ULFA militant in the barrack meant for surrendered militants was established. 16. The fourth charge against the petitioner is in respect of the failure of the petitioner to inform the authority the fact that the ULFA militant had been staying with him. The findings of the Inquiry Officer is that the same could not be established. As regards the fifth charge that the petitioner did not take any positive and effective action towards arranging surrender of ULFA militant who continued to harbour with him, the findings of the Inquiry Officer is that the said charge has been established. 17. The sixth and seventh charges against the petitioner are that the petitioner contrary to his plea that the militant was under proper watch, he alongwith his associates could indulge in circulating extortion letters and that he had harboured with a militant under custody. The findings of the inquiry officer is that both the charges could not be established, but reference has been made to the findings recorded in respect of charge Nos. 1, 2 and 3. 18. It is on the above basis, the disciplinary authority imposed the penalty of compulsory retirement by his Annexure-3 order dated 16.4.2008. While imposing the said penalty, the disciplinary authority i.e. the Principal Secretary to the Govt. of Assam in the Home and Political Department, appreciated the entire evidence on record and also considered the report furnished by the Inquiry Officer. On the earlier occasion, although a de novo enquiry was ordered but the same having not found favour of this Court, the disciplinary authority was left with no other option than to pass appropriate order on the basis of the enquiry report and the representation submitted by the petitioner 19. As noted above, on perusal of the entire enquiry report, it cannot be said to be a case of total exoneration of the petitioner from all the charges rather it is a case of establishing at-least 3 (three) charges out of 7 (seven). 20. As noted above, on perusal of the entire enquiry report, it cannot be said to be a case of total exoneration of the petitioner from all the charges rather it is a case of establishing at-least 3 (three) charges out of 7 (seven). 20. If all the charges are taken together, the basic charge against the petitioner is that although the particular ULFA militant was taken into custody at Nalbari but the petitioner did not arrange his formal surrender nor he kept him under custody as is required to be done in case of a suspected criminal. The petitioner instead of behaving as a responsible disciplined Police Officer rather kept the militant alongwith him even to the extent of taking him to North Lakhimpur on his transfer from Nalbari and while doing so, the ULFA militant was allowed to take his arms and ammunitions alongwith him. It was only on 5.7.2001, the army personnel carried out the raid in the premises of the petitioner and could apprehend the ULFA militant alongwith arms and ammunitions. The enquiry revealed that the said ULFA militant not only was allowed to remain free by the petitioner but taking advantage of his freedom, he also indulged in the sending extortion notes by writing letters and making use of the telephone belonging to the petitioner. If this is not misconduct, I am afraid, nothing could be termed as misconduct. 21. Mr. Biswas, learned Counsel for the petitioner upon a reference to the decisions of the Apex Court in Punjab National Bank and Ors. v. Shri Kunj Behari Misra reported in AIR 1998 SC 2713 ; Lav Nigam v. Chairman and MD, ITI Ltd. reported in (2006) 9 SCC 440 and Ram Kishan v. Union of India reported in AIR 1996 SC 255 , submitted that in case of any disagreement with the findings recorded, by the Inquiry Officer, the disciplinary authority ought to have recorded findings to that effect and thereafter afforded an opportunity to the petitioner to make representation against such disagreement. According to the learned Counsel, it is a case of disagreement on the part of the disciplinary authority with the findings recorded by the Inquiry Officer. 22. According to the learned Counsel, it is a case of disagreement on the part of the disciplinary authority with the findings recorded by the Inquiry Officer. 22. While there is no disagreement with the aforesaid proposition of law laid down by the Apex Court but the instant case is not the one of any disagreement recorded by the disciplinary authority with the findings recorded by the Inquiry Officer. As discussed above, as per the enquiry report, the petitioner has not been exonerated fully from all the charges. As per the said report, the basic charge against the petitioner of keeping the ULFA militant alongwith him for long more than six months and that too with the arms and ammunitions has been established. It was the duty of the petitioner to keep the ULFA militant in custody and to deposit the arms and ammunitions with the proper authority. However, he all along allowed the ULFA militant to remain with him in the name of arranging surrender. In the process, the said ULFA militant could even undertake the journey from Nalbari to Lakhimpur alongwith the petitioner and also alongwith his arms and ammunitions but for the intervention of the Army Personnel, the said ULFA militant could have continued to stay with the petitioner all along. 23. The other three cases on which the learned Counsel for the petitioner has placed reliance are BRPL v. Girish Chandra Sarma reported in AIR 2007 SC 2860 ; Director (Marketing) IOC Ltd. v. Sontosh Kumar reported in (2006) 11 SCC 147 and Mathura Prasad v. Union of India reported in (2007) 1 SCC 437 , are on the principle involving collective decision, non-application of mind and principles involving the concept of natural justice. According to Mr. Biswas, learned Counsel for the petitioner, the petitioner alone could not have been picked up for the departmental proceeding when others involved were allowed to go free. According to him, the decision relating to keeping the militant alongwith the petitioner and his surrender was a collective decision. His further submission was that there was total non-application of mind on the part of the authorities towards passing the impugned orders. 24. The principles of law involved in the aforesaid cases are sound principles to be followed in the decision making process. His further submission was that there was total non-application of mind on the part of the authorities towards passing the impugned orders. 24. The principles of law involved in the aforesaid cases are sound principles to be followed in the decision making process. In the instant case, it is not the case of the petitioner that he had taken the surrendered militant alongwith him to North Lakhimpur and kept him in his premises for long six months under any authority of the superior officers. If the surrender of the militant could not be arranged immediately, it was the duty of the petitioner to put him in custody instead of keeping with him (petitioner) dangerously exposing the public to such a militant. Not only that, the petitioner also allowed the militant to keep the arms and ammunitions with him. It is in evidence that the said militant while in custody of the petitioner sent out extortion notes and also made use of his telephone to threaten the businessmen of North Lakhimpur to part with their money. 25. Even assuming that others involved in the episode have been allowed to go free, same by itself will not justify same treatment to the petitioner lest the same mistaken view would be repeated. The Apex Court in Balbir Chand v. FCI reported in 1997 (1) SLJ 156(SC) and IOC v. Ashok Kumar Arora reported in (1997) 3 SCC 72 , rejecting the plea of discrimination in the matter of imposing penalty among co-accused laid the principles that omission to repeat same mistake does not violate Article 14 and that in disciplinary proceeding the concept of co-accused does not exist. In the instant case, the petitioner himself has admitted the fact which speaks for itself. As has been held by the Apex Court in Channabasappa Basappa Happali v. State of Mysore reported in AIR 1972 SC 32 , there is no distinction between admission of fact and admission of guilt. When the delinquent admits the facts, he is guilty and his plea amounts to a plea of guilty on the facts on which he is charged. 26. The disciplinary authority although initially wanted to start the enquiry de novo but in view of the intervention of this Court in the aforesaid judgment and order, decided to take appropriate action on the basis of the available materials. 26. The disciplinary authority although initially wanted to start the enquiry de novo but in view of the intervention of this Court in the aforesaid judgment and order, decided to take appropriate action on the basis of the available materials. The said authority considering the entire materials on record including the enquiry report and the representation submitted by the petitioner, passed the impugned order imposing the penalty of compulsory retirement. The impugned order of penalty is a detailed order and cannot be said to be a non-speaking order and/or to have been passed in violation of the principles of natural justice. It is not the pleaded case of the petitioner that there was violation of principles of natural justice in conducting the enquiry and/or he was not afforded with reasonable opportunity of being heard. 27. So far as the appellate order is concerned, what I find is that it has all the ingredients of a valid appellate order. The appellate authority in due consideration of entire materials on record, has passed the impugned order dated 28.8.2008. The appellate authority having agreed with the findings recorded by the disciplinary authority and there being enough indication of consideration of entire materials on record, the order itself need not contain detail reasons. Thus, I do not find any infirmity in the impugned appellate order. 28. There is another aspect of the matter. Considering the seriousness of the charges levelled against the petitioner and the findings recorded by the Inquiry Officer, the Disciplinary Authority and the Appellate Authority, although it was a fit case for imposing the penalty of dismissal/removal from service but the Disciplinary Authority taking a lenient view in the matter has imposed the penalty of compulsory retirement in terms of which petitioner may be entitled to certain service benefits which normally he would not have been entitled to had the penalty of removal/dismissal been passed against him. 29. For all the aforesaid reasons, I do not find any merit in the writ petition and accordingly it is dismissed, without however, any order as to costs. Petition dismissed.