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2020 DIGILAW 408 (GAU)

Nipu Kalita v. State Of Assam

2020-03-18

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT 1. Heard Mr. I Rafique, learned counsel for the petitioner. Also heard Mr. SS Roy, learned Junior Government Advocate for the respondent authorities. 2. By this writ petition, amongst others, a final show-cause notice dated 07.03.2020 has been assailed on the ground that the manner in which the final show-cause notice was issued would be unsustainable in view of an earlier pronouncement of this Court in a writ petition having same factual matrix. As the issues raised involves only an interpretation of the final show-cause notice, vis-a-vis, the decision of this Court in an earlier writ petition, we propose to take up the writ petition in the motion stage itself for its final consideration with the agreement of the parties. 3. Mr. I Rafique, learned counsel for the petitioner for the purpose of this writ petition urges only upon the final show-cause notice dated 07.03.2020 being assailed, although in the writ petition, the departmental proceeding No.01/2019 as well as the enquiry report dated 03.03.2020 had also been assailed, but the same has not been insisted upon for the purpose of this writ petition. As such, the writ petition is taken up only for adjudicating the final show-cause notice dated 07.03.2020 being assailed. 4. The petitioner, who is serving as a Sub-Inspector of Police (U/B) and is presently posted at Dispur Police Station was issued a show-cause notice dated 06.04.2019 under Section 65 of Assam Police Act 2007 read with Rule 66 of Assam Police Manual Part III and Article 311 of the Constitution of India and Rule 7 prescribed in the aforesaid Act/Rule resulting in a disciplinary proceeding being D.P.No.01/2019 being registered. 5. In the resultant enquiry that was conducted by the disciplinary authority, allegations are made by the petitioner that he was not given appropriate opportunity to cross examine the departmental witnesses. Be that as it may, an enquiry report dated 03.03.2019 was submitted by the enquiring authority. Upon receipt of the enquiry report, final show-cause notice dated 07.03.2020 was issued and served on the petitioner. The contents of the final show cause notice are extracted as under: 'You are hereby informed that the enquiry into the charges framed against you in connection with Departmental Proceeding No.01/2019 has been completed. A copy of the findings submitted by Shri Nabaneet Mahanta, APS, the then Addl. Deputy Commissioner of Police, East is enclosed herewith. The contents of the final show cause notice are extracted as under: 'You are hereby informed that the enquiry into the charges framed against you in connection with Departmental Proceeding No.01/2019 has been completed. A copy of the findings submitted by Shri Nabaneet Mahanta, APS, the then Addl. Deputy Commissioner of Police, East is enclosed herewith. On perusal of the findings it is noticed that the charges of gross misconduct and dereliction of duty against you are proved. In this regard, you are asked to submit as to why a major penalty be not imposed upon you. You are given 15(fifteen) days time to make a representation, if any, against the above referred findings and submit the same before the final order is passed by the Disciplinary Authority.' 6. Mr. I Rafique, learned counsel for the petitioner relies upon the pronouncement of this Court in Babulal Das Vs. State of Assam and Others reported in 2004 (2) GLT 259 and raises a contention that this Court in Babulal Das (supra) has held that when the disciplinary authority issues a show-cause notice upon accepting the enquiry report asking the delinquent to show-cause as to why a major penalty be not imposed would tantamount to a pre-determined view being taken by the disciplinary authority and in the process, the enquiry report is accepted without giving due opportunity to the delinquent. In paragraph 13 of Babulal Das (supra), it has been held as follows: '13.On perusal of the letter dated 03.03.1998 by which the enquiry report was forwarded to the petitioner with the proposal of imposing the penalty of removal after agreeing with the findings of the Inquiry Officer there is no iota of doubt that the Disciplinary Authority first made up his mind upon agreement with the findings of the Inquiry Officer to impose the penalty of removal from service and then asked the petitioner to furnish his reply to the action proposed and not to submit any representation against the enquiry report..' 7. In paragraph 5 of Babulal Das(supra), a factual aspect was taken into consideration in the following manner: 'The Disciplinary Authority-cum-Chief Judicial Magistrate, Tinsukia issued a letter dated 03.03.1998 to the petitioner forwarding a copy of the enquiry report to him and intimated about the agreement of the Disciplinary Authority with the findings of the inquiry officer holding the charges to be proved and his provisional decision to impose the penalty of removal from service and asked the petitioner to make representation against the proposed action.' '.It will be pertinent to mention here that the Disciplinary Authority did not ask the petitioner to have his say on the enquiry report but he was only asked to show cause against the proposed action of removal from service.' 8. From the factual matrix in Babulal Das (supra), it appears that in the said matter, the disciplinary authority had accepted the report of the enquiry officer and thereafter issued the show-cause notice asking the delinquent therein to make his submission on the proposed penalty of removal from service. In the said circumstances, this Court arrived at its satisfaction that the procedure adopted would tantamount to the disciplinary authority first making up its mind upon agreement with the findings of the enquiry officer to impose the penalty of removal from service and then ask the delinquent to furnish his reply to the proposed action, without requiring the delinquent to submit any representation against the enquiry report. It was held that such procedure adopted would amount to a case of empty formality inasmuch as, the disciplinary authority even before furnishing a copy of the enquiry report had asked the delinquent to submit his reply and the representation to be submitted only related to the penalty that was proposed to be imposed. 9. In the instant case, from the above extracted final show-cause notice, it is taken note of that the disciplinary authority had accepted the enquiry report submitted by the enquiry officer and thereafter, required the petitioner to submit a representation as to why a major penalty be not imposed. 10. We have specifically taken note of that in the final show-cause notice, the disciplinary authority had not required the petitioner to submit his representation on the findings of the enquiry officer and merely requires the petitioner to have his say on the proposed major penalty. 10. We have specifically taken note of that in the final show-cause notice, the disciplinary authority had not required the petitioner to submit his representation on the findings of the enquiry officer and merely requires the petitioner to have his say on the proposed major penalty. By following the propositions laid down by this Court in Babulal Das (supra), we are of the view that the final showcause notice in the present form would be un-sustainable in law. Accordingly, the final show-cause notice dated 07.03.2020 is set aside. The disciplinary authority shall now issue the required showcause notice to the petitioner strictly as per law as indicated above. 11. Writ petition stands disposed of in the above terms.