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2020 DIGILAW 787 (GAU)

Sabita Das v. State of Assam

2020-11-26

MICHAEL ZOTHANKHUMA

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ORDER : Michael Zothankhuma, J. 1. Heard Mr. I. Rafique, learned counsel for the petitioner. Also heard Mr. D. Nath, learned Additional Senior Government Advocate for the respondents. The petitioner who is serving as Deputy Superintendent of Police and was posted as the Deputy Superintendent of Police, Headquarter, Nagaon was subjected to departmental proceeding vide HMA.-471/2018/39 dated 01.12.2018. In course of the proceeding, an Enquiry Officer was appointed and an Enquiry Report dated 30.01.2020 was submitted by providing that the charges against the petitioner was partially proved. The disciplinary authority being the Secretary to the Govt. of Assam in the Home (A) department by the order dated 27.02.2020 arrived at its conclusion that the enquiry officer had not given his finding against each of the charges and therefore, the Enquiry Report was considered not to be satisfactory. Accordingly, a fresh enquiry was ordered against the petitioner and for the purpose, an Enquiry Officer was also appointed. The order dated 27.02.2020 is assailed in this writ petition. 2. Mr. I. Rafique, learned counsel for the petitioner relies upon the pronouncement of this Court in Bidyut Buragohain Vs. State of Assam reported in 2005 (3) GLT 457 wherein in paragraph-5 it has been held that there is no specific power vested with the disciplinary authority under the provision of the Assam Services (Discipline and Appeal) Rules 1964 to enable the authority to hold a fresh/de novo enquiry in the event when the disciplinary authority is in a disagreement with the findings of the Enquiry Officer. It was further held that no specific power to hold a second enquiry on the same set of allegation which were earlier enquired having been vested on the disciplinary authority, a second enquiry on the same set of charges would not be maintainable. 3. Mr. D. Nath, learned Additional Senior Govt. Advocate on the other hand refers to Clause-6.18.1 of the manual of the departmental proceeding of the Govt. 3. Mr. D. Nath, learned Additional Senior Govt. Advocate on the other hand refers to Clause-6.18.1 of the manual of the departmental proceeding of the Govt. of Assam where in, it is provided that in the event of mere being any material irregularity having been committed and that they have caused or they may cause prejudice to the person charged or such irregularities are likely to vitiate the proceeding, it will consider whether the whole enquiry should be set aside and a fresh enquiry be started de novo or whether the enquiry be set aside from the stage of occurrence of irregularity and be ordered to be started afresh form that particular stage. 4. The aforesaid aspect was examined by this Court in Bhupati Ranjan Mudoi Vs. State of Assam & Anr. reported in 2012 (3) GLT 394 wherein in paragraph 11 it has been held that clause-6.18.1 of the manual of departmental proceeding is applicable only where the disciplinary authority finds that any material irregularity has been committed. 5. Material irregularity is explained by the Supreme Court to mean not to cover either errors of fact or law but the manner in which the decision had been reached. 6. To the aforesaid aspect, Mr. D. Nath, learned Additional Senior Govt. Advocate refers to Clause-3.13.1(8) and (9) which provides that the report of the enquiry shall include the finding of each of the charges. By referring to the said clause, Mr. D. Nath, learned counsel points out that the order of the disciplinary authority dated 27.02.2020 arrives at its satisfaction that the enquiry officer had not given its finding against each of the charges. 7. On perusing the memorandum of charge issued to the petitioner, it is seen that 4(four) charges had been framed against the petitioner in connection with the detaining of persons, demanding illegal gratification and failing to instruct the Police Officers of the Police Station to take legal action in the matter regarding alleged violation of law. 8. The finding of the Enquiry Officer in the enquiry report dated 30.01.2020, only states that the charges against the petitioner was partially proved. Though 4(four) charges were framed against the petitioner, no specific finding has been made by the Enquiry Officer in respect of any of the 4(four) charges individually. 9. 8. The finding of the Enquiry Officer in the enquiry report dated 30.01.2020, only states that the charges against the petitioner was partially proved. Though 4(four) charges were framed against the petitioner, no specific finding has been made by the Enquiry Officer in respect of any of the 4(four) charges individually. 9. Clause 6.18.1 & 6.18.2 of the manual of departmental proceeding followed by the Government of Assam states as follows:- "6.18.1. Where the Disciplinary Authority, on a contention raised by the persons proceeded against or otherwise finds that any material irregularities have been committed and that they have caused or they may cause prejudice to the person charged or such irregularities are likely to vitiate the proceedings, it will consider- (1) whether the whole enquiry should be set aside and a fresh enquiry started de novo; or (2) whether the enquiry be set aside from the stage of occurrence of the irregularity and it be ordered to be started afresh from that particular stage. 6.18.2. As far as possible, where ends of justice can be served and so long as the person proceeded against is given reasonable opportunity of being heard, efforts should be made to resume the enquiry from the stage at which the irregularity occurred." In view of the judgment of this Court in Bhupati Ranjan Mudoi (supra) which is with regard to clause 6.18.1 & 6.18.2, a fresh enquiry can be started de novo or from the stage of occurrence of the irregularity, if such irregularity is likely to vitiate the proceedings or cause prejudice to the delinquent officer. 10. Rule 9(8)(vi) of the Assam Services (Discipline and Appeal) Rules 1964 states that the Enquiry Report shall include the findings on each charge and the reasons therefore. 11. In the present case, the Enquiry Officer has not made a finding on each charge, as required under Rule 9(8)(vi) of the Assam Services (Discipline and Appeal) Rules 1964. 12. There is no denial by the parties that there was no irregularity of procedure while conducting the departmental enquiry against the petitioner, at the time of taking evidence or even at the time of hearing. Thus, there being no irregularity in procedure, prior to the making of the Enquiry Report, the disciplinary authority committed an error in calling for a fresh enquiry into the departmental proceeding without specifying the stage from which it should be conducted. Thus, there being no irregularity in procedure, prior to the making of the Enquiry Report, the disciplinary authority committed an error in calling for a fresh enquiry into the departmental proceeding without specifying the stage from which it should be conducted. Accordingly, this Court is of the view that the enquiry should be restarted from the stage of occurrence of the irregularity, which in this case is at the stage of making the Enquiry Report by the Enquiry Officer. 13. In view of the reasons stated above, the Enquiry Report dated 30.01.2020 submitted by the Enquiry Officer and the impugned order dated 27.02.2020 issued by the respondent No. 2 are hereby set aside. 14. The Enquiry Officer shall consequentially start the Departmental Enquiry from the stage of giving a fresh Enquiry Report on the basis of the materials collected in the Departmental Enquiry and thereafter give a finding on all the 4(four) charges separately, as per Rule 9(8)(vi) of the Assam Services (Discipline and Appeal) Rules 1964. 15. The Enquiry Officer shall make the Enquiry Report within a period of 1(one) month from the date of receipt of a certified copy of this order and the Respondent No. 2 shall thereafter take a decision within a further period of one month from the date of receipt of the Enquiry Report from the Enquiry Officer. The writ petition is accordingly disposed of.