Chiranjeeb Das v. State of Assam, Represented by the Additional Chief Secretary to the Government of Assam
2025-12-19
SOUMITRA SAIKIA
body2025
DigiLaw.ai
JUDGMENT : SOUMITRA SAIKIA, J. The petitioner before this Court is employed as Superintendent of Excise, Government of Assam. He was selected for appointment pursuant to a selection process conducted by the Assam Public Service Commission (hereinafter referred to as “APSC”). The petitioner topped in the merit list and after completion of his training, he joined in the year 1992. His first posting was in Barpeta as Superintendent of Excise. Thereafter, he was transferred to various places and he performed his duties to the best of his ability and without any complaints from any quarters. Because of his dedication to service, he had undertaken several research and studies into the various negative influences which had played the society. He submitted his report to the Government on the study in the research made. During his tenure of service, he was transferred and posted in various stations across the State. During his posting at Haflong, the Petitioner filed several representations before the authorities seeking his transfer to the district of Kamrup on account of his ailing parents who required medical treatment. After almost a lapse of one year, the Government of Assam, Excise department finally issued a notification dated 21.05.2015 by which the Petitioner was transferred and posted as Superintendent of Excise, Kamrup. The petitioner assumed his charge on 25.05.2015. Because of conspiracies hatched by one Shri Partha Pratim Phukan who was an applicant for a bar licence before the department and because of the non fulfillment of the Prescribed procedure, the application of the Shri Partha Pratim Phukan stood rejected by the petitioner. The said application was rejected as it was not accompanied by the application fee and the No Objection Certificate from the Guwahati Municipal Corporation, besides other documents as a result of which the said application could not be processed. Subsequently, the applicant filed another application before the authorities after obtaining the NOC from the GMC Authorities. As per the procedure, the concerned Inspector of Excise of the concerned zone was required to conduct an enquiry. On the basis of the enquiry report submitted by the concerned Inspector of Excise, the application of Sri Phukan stood rejected.
Subsequently, the applicant filed another application before the authorities after obtaining the NOC from the GMC Authorities. As per the procedure, the concerned Inspector of Excise of the concerned zone was required to conduct an enquiry. On the basis of the enquiry report submitted by the concerned Inspector of Excise, the application of Sri Phukan stood rejected. Although the said Sri Phukan repeatedly requested for review of the orders passed for rejection of his application for license, the petitioner being a Superintendent of Excise did not have the power to review and recall the order of rejection as per the Rules. Since the application of the said Sri Phukan for the license was not issued, the said Shri Phukan continued to pursue the said progress and status of his application. In this regard, the said Shri Phukan used to visit the House of the petitioner without any invitation. In order to hatch a conspiracy against the petitioner, on 27.09.2016, the said Sri Phukan approached the petitioner in his residence without any invitation and tried to thrust some currency notes to the petitioner and thereafter instantly move away from his house. The Petitioner was shocked at the behavior of said Sri Phukan and rushed after him calling his name but immediately the officials of vigilance and anti corruption entered the parental premises of the petitioner and arrested him on27.09.2016. 2. It is the case projected on behalf of the petitioner that he became a victim of a conspiracy hatched by the said Shri Partha Pratim Phukan because the petitioner maintained high integrity and discipline and dedication in rendering his official duties. Consequent to his arrest on 27.09.2016, the petitioner was placed under suspension with immediate effect pending drawl of disciplinary proceedings against him. The petitioner thereafter approached the Hon’ble Gauhati High Court seeking bail. By ordered dated 31.10.2016, the petitioner was released on bail. Thereafter, the Joint Secretary to the Government of Assam, Excise Department issued a Show cause notice dated 28.10.2016 under Rule 9 of the Assam Services (Discipline and Appeal) Rules 1964 (hereinafter to as “the Rule of 1964”) as to why any of the penalties prescribed under Rule7 of the said Rule should not be inflicted upon the petitioner. 3.
Thereafter, the Joint Secretary to the Government of Assam, Excise Department issued a Show cause notice dated 28.10.2016 under Rule 9 of the Assam Services (Discipline and Appeal) Rules 1964 (hereinafter to as “the Rule of 1964”) as to why any of the penalties prescribed under Rule7 of the said Rule should not be inflicted upon the petitioner. 3. After receipt of the show cause notice, the petitioner submitted an application praying for the list of documents as well as the witnesses on the basis of which the allegations levelled against the petitioner in the memorandum of charge, will be sought to be proved. However, no such list of the documents or witnesses were furnished to the petitioner. Accordingly, the petitioner submitted his reply on 01.02.2017 against the show cause notice categorically denying the allegations levelled against him. The petitioner explained in detailed as to how the application of the said Shri Partha Pratim Phukan for obtaining license stood rejected and the influence sought to be imposed by the said Shri Partha Pratim Phukan on the petitioner after his application stood rejected. Although the petitioner was entitled to subsistence allowance during the period of his suspension, however, as no such subsistence allowance was paid, the Petitioner represented before the authorities for release of the said, which however, yielded no response. Subsequently on 31.07.2018, the Joint Secretary to the Government of Assam, Excise Department furnished report of the enquiry officer dated 10.01.2018 to the petitioner. In the said enquiry report, the enquiry officer held the charges to be proved. 4. It is submitted that there was no discussion with regard to the evidence adduced before the Enquiry Officer vis-à-vis the charges levelled against the petitioner and therefore the said enquiry report could not have been sustained in the eye of law. Nevertheless, the petitioner submitted a detailed reply reflecting these defects and shortcomings in the enquiry report before the disciplinary authority. The petitioner are also filed representations before the authority for reinstatement in his service as well as payment of the subsistence allowance. Subsequently the Department reinstated the petitioner in service as Superintendent of Exercise, Kamrup. Thereafter, the petitioner was again transferred from Kamrup to be posted as Superintendent of Excise, Hailakandi by order dated 04.01.2020.
The petitioner are also filed representations before the authority for reinstatement in his service as well as payment of the subsistence allowance. Subsequently the Department reinstated the petitioner in service as Superintendent of Exercise, Kamrup. Thereafter, the petitioner was again transferred from Kamrup to be posted as Superintendent of Excise, Hailakandi by order dated 04.01.2020. The petitioner’s parents being aged and ailing and whereunder regular medical care and supervision is required, representations were filed by the petitioner as well as by his parents for retaining him in Kamrup as in the meantime, the COVID pandemic situation had engulfed the entire world, including the country and therefore regular movement for medical care and supervision of his ailing parents from Hailakandi to Kamrup district was not possible. However, the representations filed by the petitioner as well as his father stood rejected by the authorities. Being aggrieved, the petitioner approached this Court by filing W.P(C) No. 4459 of 2020 challenging the validity of the notification dated 04.01.2020 by which the petitioner’s posting in the district of Kamrup stood rejected. 5. During the course of the hearing, on the instructions furnished by the Government counsel that there was one vacant post of Superintendent of Excise available at Dima Hasao District, the petitioner agreed to go and join in that place of posting and accordingly, the writ petition stood disposed of by ordered08.11.2021. Thereafter, by notification dated 01.12.2021, the petitioner was transferred and posted as Superintendent of Excise at Dima Hasao. The Petitioner submitted his joining report on06.12.2021. 6. Being thus situated, the petitioner was surprised to be served with a notification dated 08.09.2020 issued by the Secretary, Government of Assam, Excise Department deciding to initiate de novo enquiry of the show cause notice dated 28.10.2016 which is almost after 4 years. The said decision was taken on the ground that the earlier enquiry report was not acceptable, a fresh enquiry officer was appointed to enquire afresh into the same set of charges framed against the petitioner earlier. Accordingly, the enquiry officer and the presenting officers were also appointed by the department. The newly appointed enquiry officer issued a fresh show cause notice dated 04.11.2020 containing the allegations which were already issued in the show cause notice dated 28.10.2016. 7.
Accordingly, the enquiry officer and the presenting officers were also appointed by the department. The newly appointed enquiry officer issued a fresh show cause notice dated 04.11.2020 containing the allegations which were already issued in the show cause notice dated 28.10.2016. 7. It is the contention of the learned counsel for the petitioner that the Assam (Discipline and Appeal) Rules, 1964 does not have any provision for initiating a de novo enquiry on the basis of the same set of allegations which were earlier issued to the delinquent officer in the previous charge sheet. The petitioner was furnished copies of the list of documents and accordingly, the petitioner submitted his detailed reply denying the allegations levelled against him. His prayer for appointment of a defence assistant was rejected by the enquiry officer. In the list of witnesses only the name of the investigating officer who was conducting the investigation into the alleged trap case at the instance of the said Sri Partha Pratim Phukan was the only witness. The petitioner participated in the enquiry and thereafter the enquiry report was submitted on 23.06.2021. Being thus situated, the petitioner approached this Court by filing W.P(C) No. 5058/2022 putting to challenge the show cause notice dated 04.11.2020, the enquiry report dated 23.06.2021 and a further direction to the respondents to exonerate the petitioner from all allegations containing the show cause notice. 8. While this writ petition was pending, the respondent authorities on the basis of the show cause notice submitted by order dated 20.08.2022, the Governor of Assam in exercise of powers under Article 311 (2) of the Constitution of India read with Rule 10 (i) was pleased to impose the penalty of dismissal from service which shall ordinarily be disqualification from future employment on the petitioner under Rule 7(vii) of the Assam (Discipline and Appeal) Rules, 1964. The period of suspension of the petitioner with effect from 29.09.2016 to 04.01.2020 was also treated to be absent from duties. Thereafter, by order dated 01.09.2022, the petitioner was released from service in view of the order of penalty dated 20.08.2022. Being aggrieved, another writ petition was filed being W.P(C) No. 6452/2022 by the petitioner. Both these writ petitions were directed to be listed together. Accordingly, these petitions were listed for hearing and were heard and disposed of together. 9.
Thereafter, by order dated 01.09.2022, the petitioner was released from service in view of the order of penalty dated 20.08.2022. Being aggrieved, another writ petition was filed being W.P(C) No. 6452/2022 by the petitioner. Both these writ petitions were directed to be listed together. Accordingly, these petitions were listed for hearing and were heard and disposed of together. 9. The learned counsel for the petitioner submits that the subsequent de novo enquiry sought to be initiated against the petitioner is completely without jurisdiction as the Assam (Discipline and Appeal) Rules, 1964 does not have any provision which permits the authority for initiating a de novo enquiry. Therefore, the very initiation of de novo proceedings is contrary to the Rules as well as the judgments passed by this Court as well as the Apex Court. He further submits that the show cause notice was issued by the enquiry officer appointed to conduct the de novo enquiry. This, again, is contrary to law under the Rules of 1964. The show cause notice is to be issued by the disciplinary authority and not by the enquiry officer. Therefore, the second show cause notice issued to the petitioner for the de novo enquiry is completely contrary to the provisions of the Rules and on that count also the de novo proceedings should be interfered with and the punishment imposed should be set aside and quashed. 10. The further contention of the learned counsel for the petitioner is that the complainant on the basis of whose complaint the petitioner was taken into custody on the conspiracy hatched by Sri Partha Pratim Phukan and because of which the proceedings under Rule 9 were initiated by the department, was never called for and examined as a witness during the enquiry proceedings. It is the contention of the learned counsel for the petitioner that the complainant is a vital witness whose evidence is necessary to sustain the very complaint against the petitioner. Therefore, in the absence of any such evidence of the complainant, there was no merit in the proceedings initiated and no materials can effectively be relied upon by the enquiry officer to conclude that the charges levelled against the writ petitioner stood proved. 11. The learned counsel for the petitioner further disputes the allegation that the petitioner attempted to receive illegal gratification in lieu of grant of IMFL licence from the applicant Shri Partha Pratim Phukan.
11. The learned counsel for the petitioner further disputes the allegation that the petitioner attempted to receive illegal gratification in lieu of grant of IMFL licence from the applicant Shri Partha Pratim Phukan. It is submitted that upon rejection of the application of Shri Partha Pratim Phukan, the matter had already been communicated to the next higher authorities and the writ petitioner did not have any powers to review such orders passed. Therefore, the allegation that the petitioner demanded illegal gratification is totally belied and false and is just a conspiracy sought to be hatched against the petitioner by the said Sri Partha Pratim Phukan. 12. The learned counsel for the petitioner further submits that if illegal gratification to be proved, there must be evidence to suggest that the petitioner had demanded such illegal gratification and had accepted the same pursuant to such demand made. It is submitted that suspicion or presumption cannot take place of actual evidence which suggests that the petitioner had received illegally gratification pursuant to such demands made. Referring to the Judgment of the. Apex court rendered in Commissioner of Police Delhi and Ors. Vs. Jai Bhagwan, reported in (2011) 6 SCC 376 , it is submitted that unless there is a demand and acceptance proved during the enquiry, suspicion or presumption cannot take place or substitute such concrete evidence to lead to a conclusion that there was any demand for illegal gratification. The investigating officer who was examined during the proceedings also deposed that there was no demand by the writ petitioner for any illegal gratification. During the enquiry, the enquiry officer relied upon the progress report of the investigation carried out by the investigating officer in ACB case number 12/2016. However, the same is not a part of the charge sheet and therefore the same could not have been relied upon. 13. The learned counsel for the petitioner submits that there are several Judgments by the Coordinate Bench of this High Court which lays down the law that the Rules of 1964 does not empower the authorities to proceed for a de novo enquiry and in the absence of such specific provisions empowering the authorities to proceed for de novo enquiry, the authorities could not have issued the impugned notification for Conducting a de novo enquiry. The learned counsel for the petitioner has referred to the following Judgments in this regard: 1.
The learned counsel for the petitioner has referred to the following Judgments in this regard: 1. Commissioner of Police, Delhi and Ors. Vs. Jai Bhagwan, reported in (2011) 6 SCC 376 ; 2. Bidyut Buragohain Vs. State of Assam, reported in 2005 (3)GauLT 457 ; 3. Chand Mohammad Ali Vs. State of Assam & Ors., reported in 2016(4) GauLT 277 ; 4. The General Manager Personnel Syndicate Bank & Ors Vs. BSN Prasad [Civil Appeal No. 6327/2024]; 5. Union of India and Ors. Vs. R.P. Singh, reported in (2014) 7 SCC 340 ; 6. Hardwari Lal Vs. State of U.P. and Ors, reported in (1999) 8 SCC 582 ; 7. Shobha Ram Raturi Vs. Haryana Vidyut Prasaran Nigam Limited, reported in (2016) 16 SCC 663 14. The learned counsel for the petitioner further submits that the punishment which was imposed is grossly inappropriate and very severe for the findings which have been arrived at. The findings of the enquiry report are very vague and the only findings arrived at are that the petitioner is guilty of misconduct under the Assam Civil Services Conduct Rules 1959. However, the enquiry report does not specifically hold that the petitioner was guilty of demanding and receiving illegal gratification. The learned counsel for the petitioner therefore submits that the impugned order instituting the de novo enquiry, the fresh show cause notice dated 04.11.2020 for the de novo enquiry, the enquiry report dated 23.06.2021, the impugned order imposing a penalty of dismissal from service which will be a disqualification for future employment and his release order from the post as Superintendent of Excise, Hailakandi, are all required to be interfered with, set aside and quashed and the petitioner should be suitably reinstated with full backwages and all service benefits that he is entitled to. 15. The learned Addl. Advocate General appearing for the respondents disputes the contentions raised by the petitioner. At the first instance, he submits that the writ petition should be dismissed on the ground of not availing alternative remedy as Rule 15 of the Rules of 1964 which categorically provides for an appeal before a higher authority and which appeal admittedly was not preferred by the petitioner. He further submits that the scope of judicial review in writ petitions in respective of orders passed by the disciplinary authority on the basis of a duly conducted enquiry is extremely limited.
He further submits that the scope of judicial review in writ petitions in respective of orders passed by the disciplinary authority on the basis of a duly conducted enquiry is extremely limited. It is submitted that the earlier enquiry report itself reveals that the petitioner was not given any documents or list of witnesses nor were any witnesses examined and it is only on the basis of the charge memo and the reply filed by the petitioner that the first enquiry Officer concluded that the petitioner is guilty of the charges levelled in the show Cause notice. Subsequently, the department took a decision that the manner and the process in which the enquiry was conducted is contrary to the Rules of 1964, as well as the Manual of Departmental Enquiry and therefore a conscious decision was taken to hold the de novo enquiry on the same charges. It is submitted that proper enquiry officer and a Presenting Officer were duly appointed and it is disputed by the learned Additional Advocate General that there is no law specifically laid down by any Courts which restricts the authorities from holding a de novo enquiry under all circumstances. It is submitted that where deficiencies are noticed in the enquiry procedure or in the manner in which the enquiries conducted, the Department is within its right to proceed for a de novo enquiry so that no prejudice is caused to the delinquent officer and the case of the department is also correctly projected. The very purpose of the Rules of 1964 in laying down the procedure of conduct of enquiry is to allow the department to make necessary enquiry into the allegations on the basis of the materials available and also to afford adequate opportunity to the delinquent officer to rebut the allegations levelled against him in the charge sheet. Under such circumstances to submit on behalf of the petitioner that the rules prohibit initiation of de novo enquiry cannot be accepted. Referring to the judgments relied upon by the petitioner, the learned Additional Advocate General for the state submits that each case was rendered on the peculiar facts before the Court. The conclusions and the ratio laid down in these judgments will have to be understood on the facts and circumstances which were urged before that Court. 16. Referring to the first enquiry report, the learned Addl.
The conclusions and the ratio laid down in these judgments will have to be understood on the facts and circumstances which were urged before that Court. 16. Referring to the first enquiry report, the learned Addl. Advocate General submits that even the first enquiry report concluded that the charges levelled against the petitioner have been proved. Under such circumstances, had the Department been inimical to the writ petitioner, the disciplinary authority could have proceeded to impose the penalty on the said enquiry report. However, upon a careful perusal of the enquiry report, it was revealed to the Department that the enquiry was conducted without furnishing the list of documents and list of witnesses to the petitioner and in the absence of any evidence adduced before the enquiry officer. Consequently, notwithstanding the conclusions arrived at by the first enquiry report which is against the petitioner, the department proceeded to initiate the de novo proceedings as per the procedure prescribed under the Rules of 1964 so that no prejudices caused to the delinquent officer. In support of his contentions, the learned counsel refers to the Judgment of Apex Court rendered in Union of India Vs. K.D Pandey and Anr., reported in (2002) 10 SCC 471 submits that where the department seeks to correct procedure which was incorrectly followed, such step can be taken by the department. The terms of reference “de novo” does not necessarily mean that the same was initiated because the conclusions of the first enquiry report was not found palatable by the disciplinary authority, as have been alleged by the writ petitioner. Under such circumstances, there is no merit in the writ petitions and the writ petitions should therefore be dismissed both on the ground of alternative remedy as well as on merit itself. 17. The learned counsel for the respondents has also placed the Court the records pertaining to the enquiry conducted to submit that the procedure prescribed has been carefully followed and sufficient opportunity has been granted to the petitioner and which the petitioner has also availed of. Therefore, there is no infirmity in the enquiry conducted and the conclusions arrived at by the enquiry Officer as also the penalty order imposed by the disciplinary authority.
Therefore, there is no infirmity in the enquiry conducted and the conclusions arrived at by the enquiry Officer as also the penalty order imposed by the disciplinary authority. In response to the contentions raised by the counsel for the petitioner that the enquiry officer could not have issued the de novo enquiry notice, the learned counsel for the respondent submits that at the relevant point in time, the Enquiry officer who was appointed by the department was also the disciplinary authority as she was holding dual charges, including the charge of Secretary of the Department of Excise, Government of Assam. The Rules of 1964 does not preclude the disciplinary authority from conducting the enquiry itself. Under such circumstances, the learned counsel for the respondents submits that the writ petitions being devoid of merit, the same should be dismissed accordingly. 18. The learned counsel for the parties have been heard. Pleadings available on record have been carefully perused. The relevant records called for from the Department are also made available for perusal of this Court. 19. The first argument made by the learned counsel for the petition is that the de novo enquiry is not contemplated under the Rules of 1964. Therefore, the very initiation of the de novo enquiry by Notification dated 08.09.2020 is contrary to the provisions of Rules of 1964 and therefore, the very proceeding itself is not contemplated in law and was continued by the authorities with utter disregard to the provisions of the Rules of 1964 as well as the judicial pronouncements by this Court. The judgments referred to by the learned counsel for the petitioner are required to be discussed in this regard. 20. In K.R Deb Vs. The Collector of Central Excise, Shillong, reported in (1971) 2 SCC 102 , the issue before the Apex Court is that the Collector of Central Excise, Shillong did not have the power to set aside the earlier enquiries and proceed with a third enquiry as there is no such provision contemplated under the Central Civil Services (Classification Control) Appeal Rules, 1957.
Upon examining the Rule 15 of the said Rules, the Apex Court held that in any particular case if it is possible that there has been no proper enquiry because of some serious defect having crept into the enquiry or some important witnesses not being available at the time of the enquiry or not examined for some other reason, Disciplinary authority may ask the enquiry officer to record further evidence. But, there is no provision in Rule 15 for completely setting aside the previous enquiries on the ground that the report of the enquiring Officer or officers do not appeal to the disciplinary authority. The disciplinary authority has enough powers to reconsider the evidence itself and coming to its conclusion under Rule 9. The Apex Court held on the facts of that case that the Collector appeared to have been determined to get some officer to report against the appellant and the said procedure adopted was not only not warranted by the Rules but also amounted to harassing the appellant. This judgment came to be considered in many Judgments rendered by Co-ordinate Benches of this Court. 21. In Bidyut Buragohain Vs. State of Assam, reported in 2005 (3) GauLT 487 relying on the judgment of the Apex Court, a Coordinate Bench of this High Court held that there is no specific power vested in the disciplinary authority by the Rules so as to enable the said authority to hold a fresh/de novo enquiry in case of disciplinary authority being in disagreement with the findings of the enquiry officer. If a power is claimed by the disciplinary authority to disregard the reports of enquiry officer earlier submitted and to conduct or hold a fresh enquiry, it is natural that there should be some indication of the availability or conferment of such power and the Rules itself. It was held that the Rules are conspicuously silent on the aforesaid question and as such no power has to be specifically or impliedly conferred with. 22. In. Bhupati Ranjan Mudoi Vs State of Assam and Anr, reported in 2012 (3) GauLT 394 , referring to the earlier decision of this Court in Bidyut Buragohain (Supra), a similar view was arrived at by this Court by allowing the writ petition and setting aside with the Notification for initiating de novo enquiry. 23.
22. In. Bhupati Ranjan Mudoi Vs State of Assam and Anr, reported in 2012 (3) GauLT 394 , referring to the earlier decision of this Court in Bidyut Buragohain (Supra), a similar view was arrived at by this Court by allowing the writ petition and setting aside with the Notification for initiating de novo enquiry. 23. Again in Moloy Bora Vs State of Assam, reported in 2015 (3) GauLR 152 , the judgments passed by the Coordinate Bench was carefully considered along with the judgments of the Apex Court rendered in K.R Deb (Supra) as well as K.D Pandey (Supra). Referring to the said proceedings on the facts of that case, this Court concluded that de novo or fresh enquiry on the same set of charges on the ground that the previous enquiry report is not acceptable to the disciplinary authority, is not permissible and is therefore contrary to law laid down by the Apex Court. 24. Another Coordinate Bench in Sonamani Sinha Vs. State of Assam, reported in 2021 (2) GauLT 620 also by referring to the judgments discussed above and other Judgments rendered on this aspect by the Apex Court held that there is no provision under Rule 9 of the Rules of 1964 which permits re-enquiry and/or fresh or de novo enquiry on the facts and circumstances of that case. 25. A reference is also made to another judgment by Coordinate bench rendered in Chand Mohammad Ali Vs. State of Assam & Ors, reported in 2016 (4) GauLT 277 wherein the various precedents have been discussed wherein it was held that the provisions of Rule 9 of the Rules of 1964 are mandatory in the nature and therefore the same are required to be scrupulously followed. 26. In Bidyut Borgohain (Supra), the enquiry conducted against the petitioner and the report thereof was disagreed with by the disciplinary authority. Accordingly, a fresh enquiry into the charges levelled was directed to be conducted. 27. Again in Bhupati Ranjan Mudoi (Supra), the Co-ordinate Bench of this Court pursuant to the earlier enquiry conducted and the report submitted, a second enquiry was instituted against the petitioner in view of the purported inconsistency in the report submitted by the earlier enquiry Officer upon conclusion of the enquiry. 28.
27. Again in Bhupati Ranjan Mudoi (Supra), the Co-ordinate Bench of this Court pursuant to the earlier enquiry conducted and the report submitted, a second enquiry was instituted against the petitioner in view of the purported inconsistency in the report submitted by the earlier enquiry Officer upon conclusion of the enquiry. 28. In Sonamani Sinha(Supra), the Co-ordinate Bench of this Court after the initiation of the disciplinary proceedings, the enquiry was conducted and the Enquiry officer submitted its report with the conclusion that the petitioner therein was not found responsible for the charges levelled and these charges therefore hold little substance. Upon submission of the said report, a fresh enquiry was directed to be initiated against the writ petitioner therein. 29. In Moloy Bora (Supra), the Coordinate Bench found that on the facts of the case, the enquiry conducted against the petitioner by the enquiry officer culminated with the conclusion that the petitioner therein may not be exposed to the punishment proposed as on the facts of the case therein singling out the petitioner for punitive action may not be found justified on the basis of the enquiry conducted. Consequent thereto, the disciplinary authority took the view that the basic charge against the petitioner alleged therein did not find place in the enquiry report and therefore, a second or a de novo was directed to be initiated. 30. In. K.R Deb (Supra) also the Apex Court found that there were two enquiries earlier conducted against the appellant therein and the Superintendent of Central Excise disagreed with the conclusions of the earlier two enquiries and proceeded to initiate the third enquiry and which subsequently came to be interfere with by the Court. Therefore, an analysis of the judgments referred to would go to show that ordinarily when an enquiry proceedings initiated as per the procedure prescribed and the enquiry officer arrives at a conclusion which is in favour of the delinquent officer, in the absence of any such specific provisions under the Rule 9 of the Assam (Discipline and Appeal) Rules, 1964, the disciplinary authority will not have any power to initiate a fresh or a de novo enquiry on the ground that the conclusions arrived at by the enquiry officer were not found suitable or that the disciplinary authority could not agree with the conclusions arrived at by the Enquiry Officer.
However, where there is some deficiency noticed which according to the departmental or disciplinary authority may require correction. 31. However, in K.R Deb (Supra), the Apex court held that even under Rule 15 of the CCS Discipline and Appeal Rules, it is possible that there may be a particular case where no proper enquiry has been conducted because of some serious defect which is crept into the enquiry or some other important witnesses were not available at the time of the enquiry or not examined for some other reason, the disciplinary authority may require the enquiry officer to record further evidence. However it was held that there is no provision in Rule 15 for completely setting aside the previous enquiries on the ground that the report of the enquiring Officer or the officers does not appeal to the disciplinary authority. It was held that the disciplinary authority has enough powers to reconsider the evidence itself and to come to its conclusion under Rule 9. 32. Similarly, in K.D Pandey (Supra), it was held by the Apex Court that where it is noticed by the disciplinary authority that the enquiry held earlier was bad or that the management or the establishment did not have proper opportunity to lead evidence or the findings were perverse, there would be no justification on the part of the disciplinary authority to commence fresh enquiry on the same set of charges. 33. Therefore, upon proper analysis of the judgments discussed above, it is seen that in all the judgments on the facts of each and every case, it is seen that the enquiry conducted earlier either concluded in favour of the delinquent officer thereby the enquiry officer concluding that the charges are not proved or that there was no sufficient evidence to sustain the charges levelled against the delinquent officer. In all these matters, the Disciplinary authority in each of these cases disagreed with the conclusions arrived at by the enquiry officer in favour of the delinquent officer.
In all these matters, the Disciplinary authority in each of these cases disagreed with the conclusions arrived at by the enquiry officer in favour of the delinquent officer. In other words, the conclusions arrived at by the Enquiry Officer did not appeal to the disciplinary authority and a consequence thereof de novo or fresh or second enquiry was instituted and under such circumstances, the Coordinate benches of this Court as well as the Apex court in K.R Deb(Supra) as well as K.D Pandey (Supra) considered and concluded that the second enquiry conducted was not permissible under the Rules. 34. A Perusal of Rule 9 of the 1964 Rules and Rule 15 of the CCS Rules are pari materia. Under such circumstances, it must be concluded that where it is noticed by the disciplinary authority that the enquiry conducted was contrary to the provisions of the Rules mandated or certain serious lapses have crept into the enquiry conducted then it cannot be said that the Rules of 1964 completely bars or restrains the disciplinary authority from taking necessary steps to ensure that the enquiry is conducted in terms of the mandate of the Rules and no prejudice is caused to the delinquent officer and/or to the interest of the Department. This aspect is evident from a bare perusal of the judgments in K.D Pandey (Supra) as well as K.R Deb(Supra). Subsequently, in Union of India and Ors. Vs. P Thayagarajan, reported in 1999 (1) SCC 733 , the Apex Court while considering the direction of the disciplinary authority to hold a de novo enquiry explained and the ratio laid down by the Apex Court in K.R Deb(Supra). The Apex Court held that where there has not been proper enquiry or some serious defects have crept into the enquiry or some important witnesses were not available at the time of the enquiry or were not examined, the disciplinary authority may ask the enquiry officer to record further evidence but that provision would not enable the disciplinary authority to set aside the previous enquiries on the ground that the report of the enquiry officer does not appeal to the disciplinary authority. In the case before the Apex Court, two witnesses whose evidence were considered to be essential, their statements were recorded although the witnesses did not appear before the enquiry officer.
In the case before the Apex Court, two witnesses whose evidence were considered to be essential, their statements were recorded although the witnesses did not appear before the enquiry officer. The disciplinary authority therefore disagreed with the course of action adopted by the Enquiry Officer and therefore directed a de novo enquiry against the respondent. This issue was assailed before the Apex Court as the delinquent officer held that the disciplinary authority did not have the powers to order for de novo enquiry. The Apex Court upon consideration of the earlier precedents laid down in K.R Deb(Supra) concluded that where important evidence either to be relied on by the department or delinquent official is shut out or where there is no proper enquiry because of some defect having crept into the enquiry or some important witnesses were not available, the disciplinary authority under the powers conferred under the relevant Rules, would be in a position to order for de novo enquiry in a case of the present nature. The Apex Court disagreed with the reasoning adopted by the Division Bench which order was under appeal. The Apex Court held that the disciplinary authority will have to be satisfied with the procedure adopted by the enquiry officer before passing an order. It does not stand to logic that in a given case the appellate authority could order a fresh enquiry and not the disciplinary authority at whose instance the enquiry began and which is not satisfied with the enquiry held for some vital defects in the procedure adopted. Therefore, the order made by the High Court was held to be not sustainable and the appeal was allowed. 35. Coming to the facts of this case, the first enquiry concluded against the writ petitioner did not conclude in favour of the petitioner. The enquiry officer rather concluded that the charges of misconduct have been proved against the petitioner. However, the first enquiry was conducted only on the basis of the charge memo and the reply filed by the delinquent officer, namely, the writ petitioner. The writ petitioner was not served with a list of documents as well as with the list of witnesses. No witnesses were examined and as a consequence thereof, the disciplinary authority upon careful examination of the report of the enquiry officer held that the enquiry was not conducted as per the procedure mandated under the Rules of 1964.
The writ petitioner was not served with a list of documents as well as with the list of witnesses. No witnesses were examined and as a consequence thereof, the disciplinary authority upon careful examination of the report of the enquiry officer held that the enquiry was not conducted as per the procedure mandated under the Rules of 1964. It is under such circumstances that the Department initiated a de novo enquiry on the same set of charges by appointing a fresh enquiry officer as well as presenting officer. 36. In terms of the provisions prescribed under Rule 9 of the 1964 Rules read with the Manual of Disciplinary Proceedings, the Rules Mandated a very detailed procedure as to how departmental proceeding is to be conducted. Since the enquiry initially initiated by the department against the petitioner was undoubtedly in terms of the Rules and the procedure prescribed under Rule 9 of the Rules of 1964, it is also evident from the facts urged and the pleadings available before this Court that the conclusions arrived at by the Enquiry officer in the first enquiry were not in favour of the petitioner. Therefore, the contention of the writ petitioner that the de novo or the second enquiry was instituted against the petitioner because the conclusions of the first enquiry was not found paritable appears to be contrary to the facts urged and pleaded before this Court. As such, this Court is of the view that the ratio laid down by the Apex court is that under all given circumstances, a second enquiry or a de novo enquiry is not restricted or barred under the Rules more particularly where the said Rules permit the appellate authority to order for a fresh enquiry if found necessary. 37. The Rules of 1964 reveal that a detailed procedure is prescribed under Rule 9 of the Rules of 1964 in the manner as to how the disciplinary proceedings are to be conducted. The enquiry which was ordered to be conducted proceeded with in a manner contrary to procedure prescribed under the Rules and the enquiry officer thereafter had concluded the enquiry proceedings, then such defects can certainly be rectified by the Disciplinary authority by ordering second or a de novo enquiry if the need so arises.
The enquiry which was ordered to be conducted proceeded with in a manner contrary to procedure prescribed under the Rules and the enquiry officer thereafter had concluded the enquiry proceedings, then such defects can certainly be rectified by the Disciplinary authority by ordering second or a de novo enquiry if the need so arises. It is only in cases where the enquiry Officer returns a finding in favour of the delinquent officer and where the proceedings were conducted as per the procedure prescribed under the Rules that no de novo or fresh enquiry is permissible. But where the conclusions arrived at by the Enquiry Officer are found to be acceptable or palatable to the disciplinary authority, then initiation of a second enquiry/de novo enquiry or a fresh enquiry is not contemplated under the Rules. This is the view of the Apex Court in P Thayagarajan (Supra) and wherein the ratio laid down by the Apex court in K.R Dev(Supra) have been explained, the judgments of the Apex Court rendered in P Thayagarajan (Supra) therefore will have the effect of a binding precedent on this Court. The judgments rendered by the Coordinate Benches of this Court will therefore have to be understood in terms of the ratio laid down by the Apex Court in P Thayagarajan (Supra). A reference in this case may also be made to the judgment of the Apex court rendered in Nand Kishore Vs. State of Punjab, reported in (1995) 6 SCC 614 that under Article 141, the law declared by it is of a binding character and as commandful as the law made by a legislative body or an authorised delegatee of such body. The apex Court under Article 141 of the Constitution is not merely the interpreter of the law as existing but much beyond that. The Court as a wing of the State is by itself a source of law. The law is what the Court says it is. 38. Under such circumstances and in view of the above discussion, this Court will necessarily have to conclude that in the facts and circumstances of this present proceedings, the Court does not find any infirmity with the initiation of the subsequent enquiry proceedings against the writ petitioner which is assailed in the present proceedings.
38. Under such circumstances and in view of the above discussion, this Court will necessarily have to conclude that in the facts and circumstances of this present proceedings, the Court does not find any infirmity with the initiation of the subsequent enquiry proceedings against the writ petitioner which is assailed in the present proceedings. This Court holds that no interference is called for in respect of the proceedings conducted by the Disciplinary authority by the notification dated 08.09.2020. 39. Coming to the second contention of the petitioner that the enquiry officer appointed pursuant to the de novo enquiry could not have issued the show cause notice as the Rules of 1964 does not contemplate issuance of show cause notice by the enquiry officer. To appreciate these contentions, a reference to Rule 9 of Rule, 1964 is necessary. Rule 9 of the said Rule of 1964 is extracted below: “ 9. Procedure for imposing penalties- (1) Without prejudice to the provisions of the Public Servant (Inquiry) Act, 1850, no order imposing on a Government servant any of the penalties specified in rule 7 shall be passed except after an inquiry, held as far as may be in the manner hereinafter provided. (2) The Disciplinary Authority shall frame definite charges on the basis of the allegations on which the inquiry is proposed to be held. Such charges, together with a statement of the allegation on which they are based, shall be communicated in writing to the Government servant, and he shall be required to submit, within such time as may be specified by the Disciplinary Authority, written statement of his defence and also to state whether E desires to be heard in pension. (3) The Government servant shall, for the purpose of preparing Whis defence, be permitted to inspect and take extracts from such official records as he may specify, provided that such permission may be refused if for reasons to be recorded in writing, in the opinion of the Disciplinary Authority such records are not relevant for the purpose or its against the public interest to allow him access thereto: Provided that when a Government servant is permitted to inspect and take extracts from official records due case shall be taken against tempering removal or destruction of records.
(4) On received of the written statement of defence, or if no such statement is received within the time specified the Disciplinary Authority may itself inquire into such of the charge as are not admitted or, if it considers it necessary so to do, appoint for the purpose a Board of Inquiry or an Inquiring Officer. 5)The Disciplinary Authority may nominate any person to present the case in support of the charges before the authority inquiring into the charges (hereinafter referred to as the inquiring authority). The Government servant may present his case with the assistance of any other Government servant approved by the Disciplinary Authority, but may not engage a legal practitioner for the purpose unless the person nominated by the Disciplinary Authority as aforesaid is a legal practitioner or unless the Disciplinary Authority, having regard to the circumstances of the case so permits. (6) The Enquiring Authority shall, in the course of the enquiry consider such documentary evidence and take such oral evidence as may be relevant or material in regard to the charges. The Government servant shall be entitled to cross-examine witnesses examined in support of the charges and to give evidence in person and to adduce documentary and oral evidence in his defence. The person presenting the case in support of the charges shall be entitled to cross-examine the Government servant and the witnesses examined in his defence. If the Inquiring Authority declines to examine any witness or to admit any document in evidence on the ground that his evidence or such document is not relevant or material, it shall record its reasons in writing. (7) At the conclusion of the inquiry, the inquiring Authority shall prepare a report of the enquiry, recording its findings on each of the charges together with reasons therefor.” 40. Since the Rules have already been extracted hereinabove, a careful perusal of the Rules show that enquiry can be conducted by an enquiring officer appointed by the disciplinary authority or by the disciplinary authority itself. Where disciplinary authority is the enquiry officer then show cause notice can be issued by the said disciplinary authority who is also the enquiry officer.
Since the Rules have already been extracted hereinabove, a careful perusal of the Rules show that enquiry can be conducted by an enquiring officer appointed by the disciplinary authority or by the disciplinary authority itself. Where disciplinary authority is the enquiry officer then show cause notice can be issued by the said disciplinary authority who is also the enquiry officer. It is submitted before the Court on behalf of the respondents and which is on the basis of pleadings available before this Court that the enquiry officer appointed by a notification at the relevant point in time, was also the disciplinary authority as the officer was holding charge of the post of Secretary, Department of Excise, Government of Assam. It is the submission of the respondent counsel that since the enquiry officer is also the disciplinary authority by virtue of holding the post as an In- charge Secretary, Department of Excise, it must be held that there is no infirmity in the second show cause notice when issued by the disciplinary authority/the enquiry officer as the same is also permissible under Rule 9 of the Assam Discipline and Appeal Rules, 1964 read with Rule 9A. The contention of the writ petitioner that the impugned show cause notice calls for interference as the same is issued by the enquiry officer therefore must fail. 41 In response to the contention of the petitioner that the enquiry the de novo enquiry conducted did not examine the complainant on whose basis the complaint was lodged before the Vigilance Department and on the basis of which a criminal case was registered against the petitioner and the petitioner was also taken into custody and the said vigilance case was numbered as ACB Case No.12/2016. 42. Considering the submissions of the learned counsel for the petitioner, it must be held that the proceedings initiated under Rule 9 was conducted or initiated as the petitioner was taken into custody and therefore placed under suspension under Rule 6(1). Under Rule6(2), a person who is taken into custody for more than 48 hours is deemed to be suspended with effect from the date of being taken into custody and will continue to be under suspension until such further orders. Rule 6(1) of the said Rules contemplates departmental proceedings. Consequently, the arrest of the petitioner and his consequent suspension required the department to initiate a departmental proceedings under Rule 9.
Rule 6(1) of the said Rules contemplates departmental proceedings. Consequently, the arrest of the petitioner and his consequent suspension required the department to initiate a departmental proceedings under Rule 9. Although the writ petitioner was subsequently bailed out but the proceedings in the ACB Case No. 12/2016 had remained pending and it is not placed before the Court about the status of the vigilance case. Since the Rules mandate an officer to be placed under suspension consequent upon his detention in custody for more than 48 hours, the reason for his arrest or detention and the consequences thereof if any are required to be necessarily determined by the procedure prescribed under the Rules of 1964. The procedure prescribed, as discussed above, is detailed under Rule 9 of the Rules of 1964. Under such circumstances, during the suspension of the petitioner, the show cause notice was submitted or served on the writ petitioner on the charges mentioned therein. The first show cause notice dated 28.10.2016 issued on the petitioner was on the following charges: “ CONFIDENTIAL GOVERNMENT OF ASSAM EXCISE DEPARTMENT NO. EX.152/2016/5 Dated Dispur, the 28 th October, 2016 To : Shri Chiranjeeb Das, Superintendent of Excise (under suspension) Kamrup Sub : SHOW CAUSE NOTICE You are hereby directed to show cause under Rule 9 of the Assam Service (Discipline & Appeal) Rules, 1964 read with Article 311 of the Constitution of India, why any of the penalties prescribed under Rule 7 of the aforesaid Rules should not be inflicted on you in the following charges based on the statement of allegation attached herewith. Charge No. 1: That while you were holding the post of Superintendent of Excise Kamrup you were arrested at your Office on 27.09.2016 from your residence at Guwahati while accepting illegal gratification of Rs. 1,50,000/- from one complainant Shri Parta Pratim Phukan of Guwahati as reported by the Superintendent of Police, Vigilance & Anti Corruption, Assam vide W.T Message No DGVA/RI/2016/2935, dtd.28/09/2016. Such conduct on your part as a responsible Government Servant is unbecoming of an officer of your status. You should submit your written Statement in defence within 10 (ten) days from the date of receipt of this communication provided you do not intend to inspect the documents which have relevance to the issues under inquiry.
Such conduct on your part as a responsible Government Servant is unbecoming of an officer of your status. You should submit your written Statement in defence within 10 (ten) days from the date of receipt of this communication provided you do not intend to inspect the documents which have relevance to the issues under inquiry. In case you intend to examine the documents, you may do so in the chamber of undersigned during office hours, within 7(seven) days from the date of receipt of this communication and submit your explanation/replies thereafter within 10(ten) days from the date of completion of the inspection. Your written statement stating clearly whether you desire to be heard in person should be submitted to the undersigned within the period specified above. By order and in the name of Govt of Assam. Sd/- Joint Secretary to the Assam Excise Department STATEMENT OF ALLEGATION That while you were serving as Superintendent of Excise, Kamrup there has been gross violation of Service conduct and Rules. 1. While you were holding the post of Superintendent of Excise Kamrup you were arrested at your office on 27.09.2016 from your residence at Guwahati while accepting illegal gratification of Rs. 1,50,000/- from one complainant Sri Partha Pratim Phukan of Guwahati as reported by the Superintendent of Police, Vigilance & Anti-Corruption, Assam vide W.T Message No. DGVA/RI/2016, dtd. 28/09/2016.” 43. Subsequently, the second show cause issued or served on the writ petitioner pursuant to the de novo enquiry was on the following charges: “REMINDER I GOVERNMENT OF ASSAM EXCISE DEPARTMENT NO.EX.152/2016/pt/1, Dtd. Dispur, the 04 th Nov, 2020 To:Shri Chiranjeeb Das, Superintendent of Excise, R/O-House No.8-9, Amarabati Path, Christianbasti, Guwahati-05. Ref : This deptt's letter NO.EX. 152/2016/122,Dtd. Dispur, the 8th October, 2020 Sub : SHOW CAUSE NOTICE. You are hereby directed to show cause under Rule 9 of the Assam Service (Discipline & Appeal) Rules, 1964 read with Article 311 of the Constitution of India, why any of the penalties prescribed under Rule 7 of the aforesaid Rules should not be inflicted on you in the following charges based on the statement of allegation attached herewith.
You are hereby directed to show cause under Rule 9 of the Assam Service (Discipline & Appeal) Rules, 1964 read with Article 311 of the Constitution of India, why any of the penalties prescribed under Rule 7 of the aforesaid Rules should not be inflicted on you in the following charges based on the statement of allegation attached herewith. That while you were holding the post of Superintendent of Excise, Kamrup you were arrested on 27/09/2016 from your residence at Guwahati while accepting illegal gratification of Rs.1,50,000/- from one complainant Sri Partha Pratim Phukan of Guwahati as reported by the Superintendent of Police, Vigilance & Anti- Corruption, Assam vide W.T. Message No.DGVA/RI/2016/2935, dtd. 28/09/2016. You are therefore charged with dereliction, in sincerity and gross violation of the Government procedures which is unbecoming of a Govt. servant of your status under the provisions of sub Rule 1 of Rule 3 of the Assam Civil Service (Conduct) Rules, 1965. You should submit your written Statement in defence within 10 (ten) days from the date of receipt of this communication provided you do not intend to inspect the documents which have relevance to the issues under inquiry. In case you intend to examine the documents, you may do so in the chamber of undersigned during office hours, within 7(seven) days from the date of receipt of this communication and submit your explanation/ replies thereafter within 10(ten) days from the date of completion of the inspection. Your written statement stating clearly whether you desire to be heard in person should be submitted to the undersigned within the period specified above. By order and in the name of the Governor of Assam. Addl. Secretary to the Govt. of Assam Excise Department. STATE OF ALLEGATION That while you were serving as Superintendent of Excise, Kamrup there has been gross violation of Service conduct and Rules. 1. While you were holding the post of Superintendent of Excise, Kamrup you were arrested at your office on 27/09/2016 from your residence at Guwahati while accepting illegal gratification of Rs. 1,50,000/- from one complainant Sri Partha Pratim Phukan of Guwahati as reported by the Superintendent of Police, Vigilance & Anti- Corruption, Assam vide W.T. Message No. DGVA/RI/2016/2935, dtd. 28/09/2016. Charge You are charged with dereliction, insincerity and gross violation of Govt. procedures which is unbecoming of a Govt.
1,50,000/- from one complainant Sri Partha Pratim Phukan of Guwahati as reported by the Superintendent of Police, Vigilance & Anti- Corruption, Assam vide W.T. Message No. DGVA/RI/2016/2935, dtd. 28/09/2016. Charge You are charged with dereliction, insincerity and gross violation of Govt. procedures which is unbecoming of a Govt. Servant of your status as per the provisions of sub rule 1 of Rule 3 of the Assam Civil Service (Conduct) Rules, 1965. List of Documents: 1. W.T. Message No.DGVA/RI/2016/2935, dtd. 28/09/2016. 2. C.E. Assam's letter No.I-44/1992-93/188, dtd.29th Sep, 2016. 3. SP Vigilance & Anti-Corruption, Assam's letter No.DGVA/RI/2017/3309,dtd.04/09/2017. List of Witnesses: Commissioner of Excise, Assam. Superintendent of Police, Vigilance & Anti-Corruption, Assam. Sri Lakhi Narayan Boruah, Inspector of Police, Vigilance & Anti-Corruption Assam cum, Investigating Officer of P.S. Case No.12/2016.” 44. Therefore it is seen that essentially the charges levelled against the petitioner are of misconduct under the provisions of the Assam Civil Service Conduct Rules, 1959 (hereinafter referred to as the Rule of 1959). A perusal of the enquiry report reveals that points for determination were namely, demand of bribe and acceptance of illegal gratification of Rs. 1,50,000/-. The enquiry report refers to the evidence of the investigating officer in the Vigilance case No. 12/2016. As per the evidence recorded, it is seen that a trap was laid on 27/9/2016 to nab the delinquent officer. The complainant Shri Partha Pratim Phukan had given Rs.1,50,000/- to be to be used in the trap as bribe money. Phenolphthalein powder was brushed on the currencies of the denomination of Rs. 1000. The trap comprised of 11 people including the complainant and independent witnesses. At around 7:45 p.m, the team reached the house of the delinquent officer. The complainant went inside the House of the delinquent officer and handed over the amount of Rs.1,50,000/- which currency notes were brushed with phenolphthalein powder. When the trap team went inside the house of the delinquent officer, he was found holding the currencies in his hand. The Investigating Officer in the vigilance and anti corruption case however, in his cross examination deposed that that there is no evidence that the accused demanded Rs.5.00 Lac and other than the complainant no one else saw the handing over or taking over of the money. The enquiry report had recorded a finding that the petitioner had accepted some Currency notes which were powdered with Phenolphthalein powder. 45.
The enquiry report had recorded a finding that the petitioner had accepted some Currency notes which were powdered with Phenolphthalein powder. 45. From the records placed before the Court, it is however seen that the enquiry proceedings were conducted by examination of the I.O and the statements made before the I.O were also taken into consideration by the enquiry officer. The allegation of misconduct against the writ petitioner is purportedly based on a complaint by one Shri Partha Pratim Phukan before the competent investigating authorities that the petitioner had demanded illegal gratification and on his demand and upon informing the investigating authorities, a trap was laid and the complainant had as per plan proceeded to the residence of the petitioner by taking currency notes laced with phenolphthalein powder and handed over the same to the writ petitioner. Thereupon the officers of the investigating authority who had laid the trap caught the petitioner and the effect of the phenolphthalein powders smeared in the currency notes left on his hands revealed that he had accepted the illegal gratification as alleged. However, scanning the departmental proceeding records, it is seen that the complainant was never examined. There is no reason or material which is discernible from the departmental records as to why the enquiry officer did not examine the complainant. The examination of the complainant in matters of these nature are necessary to ascertain the truth of the allegations made against the delinquent officer. Therefore, in the absence of the examination of the complainant by the enquiry officer, enquiry proceeded only on the statements recorded of the I.O and other statements which were available with the investigating authority during the investigation of the criminal proceedings. Whether the statement of the delinquent officer in his written statement that the complainant had thrust some notes in his hands forcibly, would be sufficient to sustain an allegation of the demand and receipt of illegal gratification is a matter of fact which required detailed evaluation of facts by the enquiry officer. In this context, it would be apposite to refer to certain Judgments of the Apex Court rendered in Commissioner of Police, Delhi and Others Vs. Jai Bhagwan, reported in (2011) 6 SCC 376 .
In this context, it would be apposite to refer to certain Judgments of the Apex Court rendered in Commissioner of Police, Delhi and Others Vs. Jai Bhagwan, reported in (2011) 6 SCC 376 . The Apex Court was examining the correctness of the departmental proceedings initiated where on the facts of that case, an amount of Rs.100/- was returned by the delinquent officer to the complainant and it was taken to be an instance of demand and receipt of illegal gratification. The Apex Court in the said judgment held that while there is some evidence that certain amount was returned by the respondent (namely the delinquent officer) to the complainant, but there is no direct or reliable evidence produced by the appellants in the departmental proceedings which could clearly prove and establish that that the delinquent officer demanded and received an illegal gratification of the said denomination. It was held by the Apex court that the proof of taking such illegal gratification has been drawn from the evidence of returning Rs.100/- to the complainant by way of a link-Up. The Apex Court held that in the absence of such a definite proof supporting the case of the appellants, it was difficult to draw a finding of taking illegal gratification by the respondent from the complainant and therefore the Apex Court upheld the conclusion of the High Court that it was a case of no evidence. The relevant paragraphs of the said Judgment are extracted below: “ 15. In the present case, although there is some evidence that an amount of Rs. 100 was returned by the respondent to the complainant but there is no such direct and reliable evidence produced by the appellants in the departmental proceedings which could clearly prove and establish that the respondent demanded and received an illegal gratification of the said denomination. It seems that the proof of taking such illegal gratification has been drawn from the evidence of returning of Rs. 100 to the complainant by way of a link-up. 16. It also seems quite impracticable to presume that in the presence of so many passengers, the respondent could have extorted money. The allegation of receiving Rs. 100 as illegal gratification is framed on suspicions and possibilities while trying to link it up with the instance of returning back of Rs. 100 by the respondent to the complainant.
16. It also seems quite impracticable to presume that in the presence of so many passengers, the respondent could have extorted money. The allegation of receiving Rs. 100 as illegal gratification is framed on suspicions and possibilities while trying to link it up with the instance of returning back of Rs. 100 by the respondent to the complainant. There are many other shortcomings in the entire investigation and the enquiry like the statement of Mrs Ranjana Kapoor was not recorded by the Inspector and the Inspector also did not take down in writing and also attest the complaint made by her. The statement of S.P. Narang was also not recorded by the Inspector nor did the Inspector seize Rs. 100 note nor noted down its number. Mr Narang was also not examined during the course of departmental proceedings. Non- examination of the complainant and P.S. Narang during the departmental proceeding has denied the respondent of his right of cross-examination and thus caused violation of Rule 16(iii) of the Delhi Police (F&A) Rules, 1980. 17. In the absence of such a definite/clear proof supporting the case of the appellants it is difficult to draw a finding of taking illegal gratification by the respondent from the complainant. Therefore, as rightly held by the High Court the present case is a case of no evidence. 18. Therefore, in view of the facts and circumstances of the present case at hand we have no hesitation to hold that the view taken by the High Court does not suffer from any infirmity and that the present is a case of no evidence and that there is a violation of Rule 16(iii) of the Delhi Police (F&A) Rules, 1980. Albeit there could be a needle of suspicion pointed towards the respondent. However, suspicion cannot take the place of proof and, therefore, we find no merit in this appeal which is hereby dismissed.” 46. Again in Hardwari Lal Vs. State of U.P and others, reported in (1999) 8 SCC 582 , the Apex Court was examining the correctness of the judgment of the High Court which had rejected the petition filed by the appellant before the apex Court that principles of natural justice was not adhered to during the enquiry proceedings as the complainant was not examined.
State of U.P and others, reported in (1999) 8 SCC 582 , the Apex Court was examining the correctness of the judgment of the High Court which had rejected the petition filed by the appellant before the apex Court that principles of natural justice was not adhered to during the enquiry proceedings as the complainant was not examined. The Apex Court held that while appreciating the evidence on record, the impact of the testimony of the complainant cannot be visualized. Therefore, the Apex Court held that it was a case of no proper enquiry by the authorities and the impugned order of dismissal was interfered with and set aside. The relevant paragraphs of the said Judgment are extracted below: “ 3. Before us the sole ground urged is as to the non-observance of the principles of natural justice in not examining the complainant, Shri Virender Singh, and the witness, Jagdish Ram. The Tribunal as well as the High Court have brushed aside the grievance made by the appellant that the non-examination of those two persons has prejudiced his case. Examination of these two witnesses would have revealed as to whether the complaint made by Virender Singh was correct or not and to establish that he was the best person to speak to its veracity. So also, Jagdish Ram, who had accompanied the appellant to the hospital for medical examination, would have been an important witness to prove the state or the condition of the appellant. We do not think the Tribunal and the High Court were justified in thinking that non-examination of these two persons could not be material. In these circumstances, we are of the view that the High Court and the Tribunal erred in not attaching importance to this contention of the appellant. 4. However, Shri Goel, the learned Additional Advocate General, State of Uttar Pradesh has submitted that there was other material which was sufficient to come to the conclusion one way or the other and he has taken us through the same. But while appreciating the evidence on record the impact of the testimony of the complainant cannot be visualised. Similarly, the evidence of Jagdish Ram would also bear upon the state of inebriation, if any, of the appellant. 5.
But while appreciating the evidence on record the impact of the testimony of the complainant cannot be visualised. Similarly, the evidence of Jagdish Ram would also bear upon the state of inebriation, if any, of the appellant. 5. In the circumstances, we are satisfied that there was no proper enquiry held by the authorities and on this short ground we quash the order of dismissal passed against the appellant by setting aside the order made by the High Court affirming the order of the Tribunal and direct that the appellant be reinstated in service. Considering the fact of a long lapse of time before the date of dismissal and reinstatement, and no blame can be put only on the door of the respondents, we think it appropriate to award 50 per cent of the back wages being payable to the appellant. We thus allow the appeal filed by the appellant. However, there shall be no order as to costs.” 47. The Judgment in Hardwari Lal (Supra) was subsequently referred to again in President, Nagar Panchayat Umari Vs. Shyam Charan Chaturvedi and others, reported in (2023) 18 SCC 311 . The Apex court held that departmental proceedings against a delinquent is a serious matter as it has its repercussions which can be far reaching. It was held that it is a trite law that departmental proceedings are Quasi judicial proceedings. The enquiry officer functions in a quasi judicial capacity. He has a neutral role to perform and cannot act in a representative management. Major punishments awarded visits the employee with serious civil consequences and therefore, such departmental proceedings ought to be in conformity with the principles of natural justice. Even if an employee prefers not to participate in an enquiry, the department has to establish the charges against the employee by adding oral as well as documentary evidence. In case where the charges warrant major punishment then oral evidence by producing the witnesses is necessary. The question of any cross examination by the delinquent arises subsequent to the charges having been prima facie established in accordance with law. If the charges are not established in accordance with law, there is nothing for the delinquent to deny. 48.
In case where the charges warrant major punishment then oral evidence by producing the witnesses is necessary. The question of any cross examination by the delinquent arises subsequent to the charges having been prima facie established in accordance with law. If the charges are not established in accordance with law, there is nothing for the delinquent to deny. 48. Coming to the facts of the present case although in his reply the petitioner stated that some currency notes were thrust into his hands by the complainant, that by itself cannot satisfy the allegation made against the petitioner when the charge against the petitioner is for acceptance of illegal gratification of Rs. 1,50,000/- from the complainant- Shri Partha Pratim Phukan. From the law enunciated by the Apex Court as discussed above, it is seen that there has to be independent finding by the enquiry officer to sustain the charges against the petitioner that there was demand and acceptance of illegal gratification. The vague response from the petitioner cannot be concluded to be an acceptance or a confession that he had received illegal gratification. Considering the grave charges leveled against the petitioner and if proved, the major penalty contemplated to be imposed against the petitioner, it was incumbent on the enquiry officer to lay proper evidence both oral and documentary evidence, to sustain the allegations made against the petitioner. 49. As discussed above, there is no explanation in the records as perused by the Court as to why the complainant was not examined during the enquiry proceedings. The question of cross-examination by the delinquent will only come when the departmental authorities are able to establish a prima facie case to sustain the allegations made against the petitioner. 50. From careful examination of the records as well as the pleadings available before the Court, it is seen that the principles of natural justice were not adhered to by the departmental authorities. It has to be therefore held that the charges levelled against the petitioner could not be prima facie established leading to the consequential conclusion of misconduct and inviting imposition of major penalty of dismissal or termination from service. 51. This Court accordingly has to hold that the enquiry proceedings conducted by the respondent authorities were contrary not only to the Rules but to the basic principles of natural justice.
51. This Court accordingly has to hold that the enquiry proceedings conducted by the respondent authorities were contrary not only to the Rules but to the basic principles of natural justice. The conclusions arrived at were based only by the note prepared by the investigating officer in respect of the criminal cases pending against the petitioner. No attempt has been made during the enquiry proceedings to independently arrive at a conclusion that the allegations made against the petitioner are duly supported by adequate and proper evidence. Although ordinarily a Writ Court is required to examine only the correctness of the procedure adopted by the departmental authorities and not to test the conclusions arrived at as if it is an exercising an appellate jurisdiction, but in the facts of the present case, in the absence of the complainant being examined on whose allegations the criminal case has been instituted and the departmental proceedings have been initiated in respect of the allegations of misconduct by the delinquent officer in demanding and receiving illegal gratification from the complainant, there are no foundational facts established during the enquiry proceedings to arrive at the conclusion that the delinquent officer is guilty of misconduct and/or that the allegations of misconduct made against the delinquent officer can be sustained. Therefore, this Court unequivocally comes to a conclusion that the enquiry proceedings conducted against the petitioner are contrary to the Rules of natural justice and as also the procedure prescribed under the Assam Services (Discipline and Appeal) Rules, 1964. Accordingly the enquiry proceedings, the consequential orders passed by the departmental authorities dismissing the petitioner from service as also the orders passed by the appellate authority are all set aside and quashed. The petitioner will be reinstated in service forthwith but without any back-wages. The period between the date the petitioner was dismissed from service and the date he is reinstated in service will be counted as a period spent on duty but without back wages. This period, however, shall also be counted towards his pensionary benefits. Since the impugned order of dismissal along with the enquiry proceedings as well as the appellate orders are all interfered with, the arguments made by the counsel for the petitioner in respect of quantum of punishment is not required to be answered at this stage. 52. The writ petition is therefore allowed. Interim orders if any stands vacated.
Since the impugned order of dismissal along with the enquiry proceedings as well as the appellate orders are all interfered with, the arguments made by the counsel for the petitioner in respect of quantum of punishment is not required to be answered at this stage. 52. The writ petition is therefore allowed. Interim orders if any stands vacated. No order as to cost. 53. Departmental records called for are therefore returned and handed over back to the learned Addl. Advocate General Mr. B Goswami, appearing for the respondent through the Court Master.