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2016 DIGILAW 117 (GAU)

Khagendra Nath Buragohain v. State of Assam

2016-02-19

HRISHIKESH ROY, MANOJIT BHUYAN

body2016
JUDGMENT : Manojit Bhuyan, J. 1. We proceed to determine the appeal with the following preface. In Cooper v. Wandsworth Board of Works reported in (1863) 143 ER 414, the principles of natural justice was traced to the date of creation of the human race by recording that even God himself did not pass sentence upon Adam before he was called upon to make his defence. This principle gained significance and shades with the passage of time. Notice is the first limb of this principle, as any unilateral administrative action may per se involve civil consequences. The issuance of Notice being an indispensable part of the principle, the said Notice cannot be conceived as an empty formality but must be precise and unambiguous so as to apprise the party determinatively of the case he has to meet. This is the minimum protection that is to be granted to an individual before a quasi judicial and administrative authority decides upon any issue that may perhaps affect the rights. 2. The three appellants are all retired Government employees who had served as Commissioner of Excise during different periods of time. The necessity for instituting the present appeal is a fall-out of the judgment and order dated 28.06.2013 passed in WP(C) 2856 of 2012. In the said writ petition the primary issue was with regard to an order passed by the State Respondent directing temporary closure of a Bar (IMFL ‘ON’ in short). During the course of the proceeding an issue came to fore involving thirteen instances where ‘ON’ licences were allowed to be converted to ‘OFF’ licenses despite there being no statutory provisions under the Assam Excise Rules, 1945 permitting such conversion. 3. Under the directions of the Court dated 24.8.2012 an enquiry was set in motion for apprising the Court of the steps proposed to be taken by the Government against the Excise officials prima facie responsible for violation of the laws while granting liquor license in Guwahati city. The Report of the administrative enquiry dated 30.01.2013 is the moot point leading to filing of this appeal. This Report of the Enquiry Officer was referred to and relied upon while rendering the judgment and order dated 24.08.2012 in WP(C) 2856/2012. The Report of the administrative enquiry dated 30.01.2013 is the moot point leading to filing of this appeal. This Report of the Enquiry Officer was referred to and relied upon while rendering the judgment and order dated 24.08.2012 in WP(C) 2856/2012. At paragraph 76 of the judgment the Court recorded that the Enquiry Officer had pointed out thirteen cases with regard to conversion of IMFL ‘ON’ licence to ‘OFF’ licence after 18.03.2005, an act which is beyond the scope of the Excise Act and the Rules. Further, the same was also in violation of the Government decision dated 29.11.2001. Referring to the Report, it was also recorded that the Enquiry Officer had clearly pointed out the role of the then Excise Minister, the Departmental Commissioner & Secretary as well as the Departmental Secretary of having been party to such unauthorised action. Initiation of disciplinary steps against the erring officials as well as a closer examination of the Report to ascertain the criminal culpability of the key players was found to be imperative as the said officials were answerable for their actions. The thirteen conversion cases, as illustrated in paragraph 77 of the judgment, makes mention of the names of the present appellants, amongst others. 4. Although the appellants do not refute their role in the conversion cases post 18.03.2005, justification is sought to be made that in the absence of any statutory embargo under the Assam Excise Act and the Rules, their involvement cannot be viewed as repugnant to any laid down norms or the Rules in question. Justification is also sought to be made that the action of the appellants had, in fact, aided higher generation of revenue to the State Exchequer. The administrative Report is also called to question on ground that prior to furnishing of the Report, the appellants were not put to notice, far from being afforded any opportunity of hearing. On the submissions with regard to violation of the principles of natural justice, Mr. Choudhury relies upon the judgments of this Court, primarily in the case of Registrar (I&E), Guwahati High Court, Guwahati and Another v. Amarjit Borgohain & Others reported in 2007 (4) GLT 357. Attention is also drawn to the affidavit-in-opposition filed by Respondent Nos. On the submissions with regard to violation of the principles of natural justice, Mr. Choudhury relies upon the judgments of this Court, primarily in the case of Registrar (I&E), Guwahati High Court, Guwahati and Another v. Amarjit Borgohain & Others reported in 2007 (4) GLT 357. Attention is also drawn to the affidavit-in-opposition filed by Respondent Nos. 1 & 2 to say that even the State Respondents have conceded to the extent that the existing Excise Act and Rules are altogether silent on the aspect of conversion of a licence from ‘ON’ licence to ‘OFF’ licence. 5. Mr. P.N. Goswami, Standing Counsel, Excise Department stands by the statement made in the affidavit-in-opposition to the extent that there is no prescription under the Assam Excise Rules regulating conversion of ‘ON’ licence to ‘OFF’ licence. On the aspect of the principles of natural justice, Mr. Goswami submits that the sacrosancy of the principle requires no reiteration. 6. This brings us to the directions passed in the judgment and order dated 28.06.2013, the directions with which the appellants are primarily aggrieved and which can be had from sub-para (4) and (5) of paragraph 79 thereof. The same are reproduced here under: “79. Thus, having regard to the discussions made above, the Court is of the view that the present proceeding should now be concluded by issuing the following directions:- 1. .......................................................... 2. .......................................................... 3. ............................................................ 4. The enquiry report of the administrative enquiry shall be placed before the Chief Secretary to the Government of Assam to examine any negligence, dereliction or misconduct in the discharge of duty by any of the Government servants mentioned in the said report or any other Government servant found responsible in the course of such examination. Depending upon the outcome of such examination, necessary consequential steps shall be taken. However, such examination should be completed within a definite time frame of four months from today. 5. A copy of the enquiry report of the administrative enquiry dated 30.01.2013 shall also be placed before the Criminal Investigation Department (CID), Assam Police to examine criminal culpability of the persons/officials mentioned in the enquiry report or any other person found responsible in the course of such examination. Depending upon the outcome of such examination, consequential steps shall be taken.” 7. The aforesaid directions, although at first glance appears to be innocuous, calling upon the Chief Secretary to the Govt. Depending upon the outcome of such examination, consequential steps shall be taken.” 7. The aforesaid directions, although at first glance appears to be innocuous, calling upon the Chief Secretary to the Govt. of Assam to examine the action of the Government servants mentioned in the Report or any other Government servant found responsible, the further direction built into it for taking consequential steps depending upon the outcome of such examination have invited our attention. Without any doubt the appellants are named in the list appended to the Enquiry Report dated 30.01.2013. Therefore, any unilateral action if allowed to be conducted by the Chief Secretary to the Govt. of Assam to ascertain the degree of negligence, dereliction or misconduct of the Government servants, which also includes the appellants, without affording opportunity of being heard, would go to offend the cardinal principles of audi alteram partem rule of natural justice. Further, the direction contained at sub-para (5) of paragraph 79 above for placing the Report before the Criminal Investigation Department (CID), Assam Police in order to examine criminal culpability of the persons/officials mentioned in the Enquiry Report may perhaps cause prejudice to the appellants entailing adverse civil and criminal consequences. The said directions are not merely confined to making an examination but also for taking steps depending upon the outcome of such examination. 8. The very institution of this appeal discloses that the appellants are labouring under any apprehension that the unilateral examination by the Chief Secretary may result in an adverse report as they were in office when the conversion cases took place. This apprehension can well be quelled and, very rightly so, by affording opportunity of a pre-decisional hearing to the appellants. As indicated earlier, notice is the first limb of the principles of natural justice. Opportunity of hearing must commence with the issuance of notice to the appellants enabling them to make adequate and effective representation/reply in case the Chief Secretary to the Govt. of Assam finds it imperative that the appellants needs to be heard while examining the Report of the Enquiry Officer. In the event Notices are issued to the appellants, the same must indicate precisely and unambiguously the points which the appellants have to meet. To this end, reasonable time should also be granted enabling the appellants to make their replies/representation. 9. In the event Notices are issued to the appellants, the same must indicate precisely and unambiguously the points which the appellants have to meet. To this end, reasonable time should also be granted enabling the appellants to make their replies/representation. 9. We read the requirement of the principles of natural justice into sub-para (4) of paragraph 79 of the judgment dated 28.06.2013. Accordingly, sub-para (4) stands modified to the extent that the Chief Secretary to the Govt. of Assam while examining the administrative Report shall refrain from taking any consequential steps without first putting the appellants to notice and without affording opportunity of hearing to the said appellants. As a necessary corollary, the directions at sub-para (5) of paragraph 79 will only be set in motion depending upon the outcome of the examination by the Chief Secretary to the Govt. of Assam in the manner as indicated above. The said sub-para (5) of paragraph 79 also stands modified to the extent that the respondent authority shall bring the matter to the notice of the Criminal Investigation Department (CID) depending upon the conclusion reached by the Chief Secretary to the Govt. of Assam after examination. 10. We are also aware of the fact that the entire exercise for bringing the matter to its logical conclusion has to be completed within a specific time frame. Accordingly, the time frame as indicated in the judgment dated 28.06.2013 is not disturbed, save and except, that the time of four months granted to the Chief Secretary shall run from the date of judgment of this appeal. 11. In view of the above, this appeal stands disposed of to the extent as indicated above. No costs.