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2016 DIGILAW 681 (GAU)

Anjan Bora v. State of Assam

2016-07-26

MANOJIT BHUYAN

body2016
JUDGMENT : Manojit Bhuyan, J. 1. Heard Mr. U.K. Nair, learned counsel for the petitioner as well as Mr. B. Chetry, learned counsel represent all the respondents. 2. Although the petitioner has prayed for setting aside the Show Cause Notice dated 03.07.2006 whereby allegations were made against him, there are other aspect of this case inviting the Court's attention. The said Show Cause Notice dated 03.07.2006 and the reply made by the petitioner formed the basis of initiation of disciplinary proceedings against him. The procedure as prescribed under Rule 9 of the Assam Services (Discipline & Appeal) Rules, 1964 was followed upto the stage of Sub-Rule (7) thereof, in that, upon consideration of the oral and documentary evidence etc. the Enquiry Officer submitted a Report in the year, 2010. Incidentally, enquiry commenced from the year 2009. According to the petitioner, neither a copy of the Enquiry Report was furnished to him nor the result of the enquiry was brought to its logical conclusion. For the inordinate delay caused and for the fact that the petitioner was made to lead a life under a state of uncertainty, this instant petition was instituted. In the course of this proceeding, several orders were passed by this Court, requiring the respondent authorities to inform the Court as to the fate of the disciplinary proceedings. The respondent authorities had also filed affidavit-in-opposition on 6.01.2016 ensuring that the disciplinary proceedings will be concluded in three months' time. A new twist to the case was brought about when a letter dated 22.04.2016 was produced by Mr. B. Chetry, learned Senior Counsel, State of Assam. This Letter/Order dated 22.04.2016 forms part of the record in IA (C) No. 66/2016. 3. As evident from the Order dated 22.04.2016, the Enquiry Officer had submitted the Report and while the matter was processed in the Department, the file got misplaced and records pertaining to the disciplinary proceedings remained untraced. Meantime, the petitioner was reinstated in service. The said Order dated 22.04.2016 makes mention that the charges levelled against the petitioner are serious in nature and the petitioner cannot be exonerated simply because the records have been misplaced. A decision was taken to order a de novo enquiry into the matter and by observing that the same will be concluded within a period of 7(seven) months. Most importantly, the earlier proceedings against the petitioner were ordered to be treated as closed. 4. A decision was taken to order a de novo enquiry into the matter and by observing that the same will be concluded within a period of 7(seven) months. Most importantly, the earlier proceedings against the petitioner were ordered to be treated as closed. 4. The aforesaid Order dated 22.04.2016 has virtually brought an end to the writ petition itself. What remains is the decision for a de novo enquiry which is put to question on grounds that the same is not permissible in law in view the decision in Bidyut Borgohain vs. State of Assam, reported in 2005 (3) GLT 457 and also in view of the fact that the earlier proceedings have been treated as closed. 5. At this stage, Mr. B. Chetry, makes reference to the decision in Chairman-cum- Managing Director, Coal India Limited and Others vs. Ananta Saha and Others, reported in (2011) 5 SCC 142 to say that it is always open to the Respondent State to initiate fresh disciplinary proceedings. Mr. Chetry submits that the disciplinary proceedings against the petitioner were not closed on merits but because of the fact that the records pertaining to the disciplinary proceedings have been misplaced and no longer available. 6. On this issue, Mr. Nair submits that following the decision in Chairman-cum-Managing Director, Coal India Limited and Others (supra) it may be open to the Respondent State to initiate fresh disciplinary proceedings, however, the same has to be done by issuing a fresh Charge Sheet and by giving all reasonable opportunities to the petitioner to defend his case as well as to make objection to any fresh initiation. 7. I have heard the learned counsels for the parties at length. Apparently, the present writ petition does not survive for any further consideration in view of the Order dated 22.04.2016 whereby a decision has been taken by the respondent authorities to the effect that the earlier proceedings against the petitioner are to be treated as closed. What remains is as to whether the respondent authorities can be permitted to initiate fresh disciplinary proceedings against the petitioner. The answer to that lies in paragraph 45 of the case in Chairman-cum-Managing Director, Coal India Limited (supra). What remains is as to whether the respondent authorities can be permitted to initiate fresh disciplinary proceedings against the petitioner. The answer to that lies in paragraph 45 of the case in Chairman-cum-Managing Director, Coal India Limited (supra). While disposing of this writ petition it is made clear that the decision of the Government as indicated in the Order dated 22.04.2016 to order a de novo enquiry into the matter has to be read with the observation of the Apex Court in paragraph 45 of the aforesaid case, meaning thereby that if the Respondents State wishes to initiate fresh disciplinary proceedings against the petitioner, the same has to be done by issuing fresh Charge Sheet by giving all reasonable opportunities including making of objections to the petitioner to defend himself. 8. In view of the above, this writ petition stands disposed of. Order accordingly.