Gauhati High Court
Binod Kumar Deka vs The State Of Assam And 3 Ors on 13 August, 2025
Author: Soumitra Saikia
Bench: Soumitra Saikia
Page No.# 1/36
GAHC010261372023
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6815/2023
BINOD KUMAR DEKA
S/O- LATE PRAFULLA CH. DEKA,
R/O- HOUSE NO- BAGHORBORI (PANJABARI),
NEAR SHIV MANDIR, GUWAHATI-781022,
P.S- DISPUR,
DIST- KAMRUP (M), ASSAM
VERSUS
THE STATE OF ASSAM AND 3 ORS
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
PERSONNEL (A) DEPARTMENT, ASSAM SECRETARIAT (CIVIL),
DISPUR, GUWAHATI-06
2:THE COMMISSIONER AND SECRETARY
TO THE GOVT. OF ASSAM
PERSONNEL (A) DEPARTMENT
ASSAM SECRETARIAT (CIVIL)
DISPUR
GUWAHATI-06
3:THE JOINT SECRETARY
TO THE GOVT. OF ASSAM
PERSONNEL (A) DEPARTMENT
ASSAM SECRETARIAT (CIVIL)
DISPUR
GUWAHATI-06
4:THE DEPUTY SECRETARY
TO THE GOVT. OF ASSAM
Page No.# 2/36
PERSONNEL (A) DEPARTMENT
ASSAM SECRETARIAT (CIVIL)
DISPUR
GUWAHATI-0
Advocate for the Petitioner : MS. B BHUYAN, MR. S BHUYAN,MR J DAS,MR A
TALUKDAR,MR. A KHOUND,MS B BORA,MR. M BORAH,MS. N CHOUDHURY,MR. M
DAS,MR. A K BHUYAN
Advocate for the Respondent : GA, ASSAM,
Linked Case : WP(C)/7962/2022
BINOD KUMAR DEKA
S/O LATE PRAFULLA CH. DEKA
R/O HOUSE NO. BAGHORBORI (PANJABARI)
NEAR SHIV MANDIR
GUWHAATI-781022
P.S.-DISPUR
DIST-KAMRUP(M)
ASSAM
VERSUS
THE STATE OF ASSAM AND 5 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM
SECRETARIAT ADMINISTRATION DEPARTMENT
DISPUR
GUWAHATI-781006
2:THE SECRETARY
GOVERNMENT OF ASSAM
PERSONNEL (A) DEPARTMENT
DISPUR
ASSAM
GUWAHATI-781006
3:THE DEPUTY SECRETARY TO THE GOVERNMENT OF ASSAM
PERSONNEL (A) DEPARTMENT
DISPUR
Page No.# 3/36
ASSAM
GUWAHATI-781006
4:THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF
ASSAM
FINANCE DEPARTMENT
ASSAM
5:THE ACCOUNTANT GENERAL (A AND E)
ASSAM
MAIDAMGAON
BELTOLA
GUWAHATI-781028
6:THE COMMISSIONER AND SECRETARY
PENSION AND PUBLIC GRIEVANCES
GOVERNMENT OF ASSAM
DISPUR
GUWAHATI-781006
------------
Advocate for : MS. B BHUYAN
Advocate for : GA
ASSAM appearing for THE STATE OF ASSAM AND 5 ORS
BEFORE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
JUDGMENT
Heard Mr. A.K. Bhuyan, learned counsel for the petitioner. Also heard Mr.
D. Mazumdar, learned Addl. Advocate General, Assam assisted by Ms. M.
Bhattacharjee, learned Addl. Senior Government Advocate for the State
respondents.
2. Insofar as the WP(C) No. 6815/2023, the case projected by the petitioner
before this Court is that the he is a retired ACS Officer of the State of Assam. He
was superannuated from service as the Joint Secretary to the Government of
Assam, Secretariat as Administrative Department. During his tenure as an ACS
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Officer, while he was posted as the Deputy Commissioner for the District of
Chirang certain allegations were made against him that he had accepted illegal
gratification in his office chamber. He was therefore, placed under suspension
vide suspension Order dated the 14.09.2017. In this context an FIR was also
filed against the petitioner on the 22.09.2017, which was registered as ACB PS
Case No.25/2017 alleging that the petitioner took bribe. The petitioner was put
under suspension on the basis of a report submitted by the Superintendent of
Police, Vigilance & Anti Corruption, Assam vide letter No. DGVA/RI/2017/3376
dated 08.09.2017 regarding the allegations against petitioner accepting bribe in
his office chamber. He was therefore, put under suspension pending drawal of
disciplinary proceedings under the Assam Services (Discipline and Appeal)
Rules, 1964. The petitioner was thereafter served with a show-cause notice
under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964.
Accordingly, the petitioner submitted his reply. Being dissatisfied with the show-
cause reply an Enquiry Officer was appointed and the enquiry proceeded against
the petitioner. The Enquiry Officer submitted his report on 23.05.2018, whereby
the charges levelled against the writ petitioner were held not proved beyond
reasonable doubt. Thereafter, by notification dated 29.06.2018 the suspension
order of the petitioner was revoked and he was reinstated in service. The
enquiry report however, was not accepted by the Disciplinary Authority and by
impugned letter dated 30.11.2019, the Disciplinary Authority disagreed with the
findings in the enquiry report submitted by the Enquiry Officer. The petitioner
thereafter, submitted a reply dated 13.08.2020 requesting the authority to give
its kind consideration and take necessary steps in the matter. Meanwhile in
respect of the investigations carried on by the Vigilance Cell charge sheet was
filed, the cognizance was taken by the Special Judge, Assam as Special Case
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No.12/2019. By order dated 16.10.2021 the Special Judge discharged the writ
petitioner as the Special Court found that there was no sufficient ground for
proceeding against the petitioner and the case was accordingly disposed of. A
copy of that order was also placed before the Disciplinary Authority, although
however, the said Disciplinary Authority did not take into consideration the
discharge order of the Special Court and did not recall the disagreement note
provided to the petitioner. Under such circumstances, the petitioner is before the
Court with the following prayers:
“1. A writ in the nature of certiorari shall not be issued to set aside the disciplinary
proceedings initiated against the Petitioner vide showcause notice dated 30.10.2017.
(Annexure-C)
2. A Writ in the nature of Certiorari shall not issued to set aside and quash the impugned
note of disagreement dated 29.11.2019 of the Disciplinary Authority. (Annexure-J).
3. A Writ in the nature of Mandamus shall not be issued directing the respondents to
forthwith cancel/ recall/rescind and/or otherwise forbear from giving effect to the
impugned disciplinary proceedings initiated against the Petitioner vide showcause notice
dated 30.10.2017. (Annexure-C).
4.A Writ in the nature of Mandamus shall not be issued directing the respondents to
forthwith cancel/ recall/rescind and/or otherwise forbear from giving effect to the
impugned note of disagreement dated 29.11.2019 of the Disciplinary Authority. (Annexure-]).
5. A Writ in the nature of Mandamus shall not be issued directing the respondents to
forthwith pass necessary order for dropping the Disciplinary proceedings against the
Petitioner and upon cause/causes that may be shown, after hearing the parties and upon
perusal of the records Your Lordships may be pleased to make the Rule absolute and / or to
Page No.# 6/36pass any other appropriate order or direction as to Your Lordships may deem fit and proper
in the facts and circumstances of the case so as to give full and complete relief to the
petitioner.
-AND-
Pending disposal of the Rule, Your Lordships may be pleased to stay/suspend the
i. The operation of the impugned note of disagreement dated 29.11.2019 of the Disciplinary
Authority. (Annexure-]).
ii. The impugned disciplinary proceedings initiated against the Petitioner vide showcause
notice dated 30.10.2017 (Annexure-C) and/or to pass such further or other orders) as Your
Lordships may deem fit and proper in order to grant adequate interim protection to the
petitioner.”
3. The WP(C) No. 7962/2022 is filed by the petitioner seeking a direction to
the respondents to release the salary due to the petitioner w.e.f. September
2017 to 29.06.2018 by regularizing his suspension period, notional promotion
benefits, pensionary benefits including Provident Fund, leave encashment, GPF,
Gratuity and all other benefits to which the petitioner is entitled to and also
direct the respondent authorities to release the subsistence allowance to the
petitioner with effect from the date on which he was placed under suspension.
The petitioner has also prayed for the release of his pension as he has since
superannuated. It is the case of the petitioner that although provisional pension
has been released, the regular pension and other retirement benefits have not
been released to the petitioner.
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4. Both these writ petitions were listed before the Court were heard together,
and are accordingly taken up together for disposal.
5. Mr. A.K. Bhuyan, learned counsel for the petitioner has urged before the
Court that the basic allegation against the petitioner was acceptance of illegal
gratification in his office chamber, while he was serving as the Deputy
Commissioner, Chirang. This alleged incident apparently was stated to have
been video recorded in a mobile phone by the complaint. However, during the
enquiry proceedings undertaken by the Enquiry Officer, this clip of the video
footage was not placed before the Enquiry Officer, in spite of opportunities
being granted to the prosecution and therefore, the Enquiry Officer concluded
that the allegations made against the petitioner are not proved. However, in the
disagreement note dated 29.11.2019 issued to the petitioner, the Disciplinary
Authority apparently concluded that on examination of documents and as per
police report, the petitioner was visibly seen in the video footage accepting cash
from the complainant and that recording of the video footage is not denied by
the petitioner, although he had submitted in his reply to show-cause notice that
the video footage does not show that he made any demand to the petitioner
rather he had taken a change for Rs.2,000/-.
6. Mr. Bhuyan submits that if the materials on the basis of which the
Disciplinary Authority arrived at its conclusions were never furnished to the
petitioner, the same could not have been relied upon as evidence against the
petitioner for recording the findings reflected in the note of disagreement. It is
further submitted that the criminal proceedings initiated against the petitioner
resulted in a discharge and this has also been submitted before the authorities
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concerned. The learned counsel for the petitioner therefore, submits that it is a
settled proposition of law that when the disciplinary proceedings and the
criminal proceedings are based on the same set of charges, and the criminal
proceedings have resulted in the discharge or acquittal of the petitioner, the
Department ought not to have proceeded on the same charges by way of the
disciplinary proceedings, as the materials and evidence before the criminal court
and those likely to be relied upon by the Disciplinary Authority are one and the
same. Referring to the statement of allegations made against the petitioner, it is
submitted that it is alleged that the petitioner had demanded gratification to the
tune of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand) out of which
Rs.1,20,000/- (Rupees One Lakh Twenty Thousand) was paid earlier and on
31.03.2017, namely the day on which the video was captured, he was receiving
the remaining amount of Rs.30,000/- (Rupees Thirty Thousand) out of a total
consideration of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand) as bribe. The
show cause notice was based on the report of the Superintendent of Police,
Vigilance and Anti Corruption, wherein it is mentioned that in the video footage
the petitioner was visibly seen accepting cash from the complainant and he has
also acknowledged in the cross-examination that the video was captured in his
office chamber of Deputy Commissioner, Chirang.
7. Upon a bare perusal of the statement of allegation and the order passed
by the Special Court in Special Case No.12/2019, it is evident that the charge
against the writ petitioner in the disciplinary proceedings as well as in the
criminal proceedings are one and the same. As such where the Special Court by
order dated 16.10.2021 in Special Case No. 12/2019 had arrived at a conclusion
on the basis of evidences that there is no specific evidence which points to the
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guilt of the petitioner and therefore the petitioner has been discharged. There is
no scope for the departmental authorities to proceed against the petitioner on
the basis of the charges framed.
8. It is submitted that the Special Court relying on the judgment of P. Vijayan
vs. State of Kerala and another reported in (2010) 2 SCC 398 held where that
two views are possible and one gives rise to suspicion only as distinguished
from grave suspicion as to the guilt of the accused, the Trial Judge will be
empowered to discharge the accused and at that stage the Trial Judge is not to
see whether the trial will end in conviction or acquittal and consequently the
Trial Judge concluded that there is no sufficient ground for proceeding against
the accused, hence the petitioner was discharged.
9. The learned counsel for the petitioner submits that the disagreement note
issued by the Disciplinary Authority is contrary to the provisions of law under
Rule 9(A) of the Assam Services (Discipline and Appeal) Rules, 1964. It is
submitted that the disagreement note to the findings of the Inquiring Officer
although have been submitted, but the disagreement note clearly indicates that
the Disciplinary Authority has concluded that the charges leveled against the
petitioner stands proved. There was no opportunity of hearing granted to the
petitioner before the Disciplinary Authority concluded that the charges leveled
against the petitioner stands proved. In support of his contentions, the learned
counsel for the petitioner refers to the judgment of Deputy General Manager
(Appellate Authority and Others Vs. Ajai Kumar Srivastava reported in 2021 (2)
SCC 612 and Punjab National Bank and Others Vs. Kunj Behari Misra reported in
1998 (7) SCC 84.
Page No.# 10/36
10. The learned counsel for the petitioner strenuously urges that when the
charges in the disciplinary proceedings and the criminal proceedings are similar
and identical and when the evidences, witnesses and the circumstances are all
the same, the disciplinary proceedings and the orders passed thereon should be
interfered with and set aside. In support of his contentions, the learned counsel
for the petitioner referred to the judgments of Ram Lal Vs. State of Rajasthan
reported in AIR 2024 SC 637, G.M. Tank Vs. State of Gujarat and Others
reported in 2006 (5) SCC 446, Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd.
and another reported in 1999 (3) SCC 679 and judgment dated 03.05.2017
passed in Writ Appeal No. 162/2024, State Bank of India and Others Vs. Nani
Gopal Palit by the Gauhati High Court.
11. Per contra Mr. D. Mazumdar, learned Addl. Advocate General, Assam
strongly disputes the contentions of the counsel for the petitioner. It is
submitted that it is evidently clear that from the perusal of the provisions of
Assam Services (Discipline and Appeal) Rules, 1964, the power is reserved for
the Disciplinary Authority for disagreement with the findings of the enquiry
report.
12. The Disciplinary Authority upon due consideration of the enquiry report
dated 08.09.2017 conducted against the petitioner, disagreed with the findings
and a copy thereof has been furnished to the writ petitioner which is enclosed
as Annexure-I to the writ petition.
13. The disagreement note along with the copy of the enquiry report by the
Enquiry Officer was furnished to the petitioner by communication dated
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29.11.2019.
14. The learned Addl. Advocate General submits that the Rules do not
prescribe an opportunity of being heard before the Disciplinary Authority
disagrees with the findings of the Enquiry Officer. Referring to Rule 9(A) he
submits that all that is required for the Disciplinary Authority is to furnish a copy
of the disagreement note along with a copy of the enquiry report (if not already
furnished earlier) on the Delinquent Officer. This has been complied with by
communication dated 29.11.2019. Therefore, the impugned order assailed in
the present writ petition dated 29.11.2019 does not suffer from any infirmity. He
further submits that it is well-settled in law that criminal proceedings and
disciplinary proceedings can proceed simultaneously. Merely, because the
petitioner has been discharged in the criminal proceedings it will be of no
occasion to automatically withdraw the departmental proceedings initiated
against the petitioner. In this context, he refers to the judgments rendered in
Karnataka Power Transmission Corporation Limited vs. C. Nagaraju and Another
reported in (2019) 10 SCC 367, Deputy Inspector of Police and Another Vs. S.
Samuthiram reported in (2013) 1 SCC 598, State Bank of India and Others Vs.
P. Zadenga reported in (2023) 10 SCC 675, Punjab National Bank and Others
Vs. Kunj Behari Misra reported in (1998) 7 SCC 84, AIR 2024 (SC) 2420/2024 0
INSC 363.
15. The learned counsel for the parties have been heard. The pleadings
available before the Court as well as the judgments cited in the Bar have also
being carefully perused and noted.
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16. The brief facts in these writ petitions necessary for the purposes of
deciding the matter required are that the petitioner is a retired ACS Officer of
the State of Assam. He superannuated from service as the Joint Secretary to the
Government of Assam, Secretariat Administrative Department. During his tenure
as Civil Servant and while he was serving as the Deputy Commissioner for the
District of Chirang certain allegations were leveled against him that he had
accepted illegal gratification in his office chamber.
17. In WP(C) No. 6815/2023 the petitioner amongst others prayed for setting
aside the departmental proceedings initiated by show cause notice date
30.10.2017. The Enquiry Officer concluded that the charges leveled against the
petitioner could not be proved beyond reasonable doubt and that there are not
enough evidences to show that the Delinquent Officer had accepted illegal
gratification as alleged. Therefore, at the outset, this Court would like to
observe that the challenge made to the enquiry proceedings have become
redundant as the petitioner is not an aggrieved person insofar as the findings of
the enquiry report dated 23.05.2018 is concerned. The Enquiry Officer clearly
concluded that there are not sufficient evidences to conclude that the petitioner
was guilty for the offences alleged against the writ petitioner.
18. From the arguments or submissions made by the learned counsel for the
petitioner as well as from the pleadings available before this Court, it is clear
that there are two issues which are required to be decided in the present
proceedings. The first issue is that whether a prior notice is contemplated under
the Rule 9(A) of the Assam Services (Discipline and Appeal) Rules, 1964 is
required to be served on a Delinquent Officer before and/or at the time the
Page No.# 13/36
Disciplinary Authority disagrees with the findings of the enquiry report. The
second issue is that whether in the face of the charges and the allegations
made against the petitioner being similar and/or identical, whether the
discharge of the Delinquent Officer by the Trial Court for lack of evidence would
necessitate the automatic closure of the departmental proceedings pending
against the petitioner is a question that requires consideration. In order to deal
with these questions at the outset, it is necessary to refer to the relevant
provisions of the Rule 9(A) of the Assam Services (Discipline and Appeal) Rules,
1964, is extracted below.
“9A.Communication of orders- Orders made by the Disciplinary Authority shall
be communicated to the Government servant who shall also be supplied with a copy of
the report of the inquiry, if any, held by the Disciplinary Authority and a copy its
findings on each charge, or where the Disciplinary Authority is not the Inquiring
Authority, a copy of the report of the Inquiring Authority and a statement of the
findings of the Disciplinary Authority together with brief reasons for its disagreements,
if any, with the findings of the Inquiring Authority (unless they have already been
supplied to him) and also a copy of the advice, if any, given by the Commission, and
where the Disciplinary Authority has not accepted the advice of the Commission, a
brief statement of the reasons for such non-acceptance”
19. A perusal of Rule 9(A) shows that when the disciplinary authority
disagrees with the findings of the Enquiry Officer then the findings of the
Enquiry Officer together with the brief reasons of disagreements should be
furnished to the Delinquent Officer. On facts there is no dispute that this
procedure duly was complied with. However, while doing so from the
disagreement note that is enclosed to the writ petition, it is seen that the
Disciplinary Authority has inferred that the charges leveled against the petitioner
Page No.# 14/36
and concluded that it stands proved. The disagreement note is extracted below:
Note of Disagreement
An enquiry was held with respect to departmental proceeding initiated vide Shov Cause notice
No.AAP-303/2017/13 dated 30,10.2017 against Shri Binod Kr Deka, ACS, the then Deputy
Commissioner, Chirang by appointing the Shri Lalit Gogoi, IAS, as the Inquiring Officer. The Enquiry
Officer submitted the report vide No. TMV/409/2015/Pt-I/42 dated 23.5.2018. The Inquiry Officer in
his report stated that there are not enough evidences which show that the DO had taken bribe as
alleged and concluded that the charges leveled against the DO could not be proved beyond reasonable
doubt. After perusal of the Enquiry Report, the Disciplinary Authority disagrees with the Enquiry Report
on the following grounds:
(i) On examination of the available documents it is seen that as per the police report Shri
Binod Kr Deka was visibly seen in a video footage accepting cash from the complainant, who also
alleged that Shri Deka had demanded money.
(ii) Shri Binod Kr Deka had also acknowledged in the cross examination that the video
was captured in his office chamber of Deputy Commissioner, Chirang.
(iii) In his reply to the Show Cause notice Shri Binod Kr Deka has stated that the footage
does not show that he had made any demand whatsoever and that he had accepted money. However,
the video is not directly denied.
(iv) Shri Binod Kr Deka has stated that he had taken change for 2 Two Thousand Rupees
note. But the witnesses he named did not affirm this.
Hence, it is inferred that the charges levelled against Shri Binod Kr Deka, ACS (Retd.) stands
proved.
20. Careful perusal of the Rule 9(A) does not reveal that there is a prescription
under the Rules for furnishing of an opportunity of being heard to the
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Delinquent Officer prior to issuance of a disagreement note. However, from the
disagreement note it is seen that the Disciplinary Authority has not only
disagreed with the findings of the Enquiry Officer but has also arrived at a
conclusion that the charges leveled against the petitioner stood proved.
Whether such a course of action was permissible by the Disciplinary Authority
will require examination in the present proceedings.
21. The law in this regard as have been held by the Apex Court in the various
judgments which are pressed into service before this Court needs to be
explicated. In Punjab National Bank and Others Vs. Kunj Behari Misra (supra)
the Apex Court was examined the correctness of the orders passed by the
Disciplinary Authority who had disagreed with the findings of the Enquiry Officer
in respect of disciplinary proceedings initiated against the respondent before the
Apex Court. Upon examination of the provisions of the Rules/Regulations
governing the services of the Bank as also the precedence, the Apex Court
concluded that the principles of natural justice will have to be read into the
relevant regulation laying down the procedure of disagreement by Disciplinary
Authority with the findings of the Enquiry Officer. It was held that where the
Disciplinary Authority disagrees with the enquiry authority on any charge or
article, then before it records its own findings on such charge, it must record
tentative reasons for disagreement and give to the Delinquent Officer an
opportunity to represent before it records its findings. The report of the Enquiry
Officer containing the findings will have to be conveyed and the Delinquent
Officer will have an opportunity to persuade the Disciplinary Authority to accept
the favorable conclusions of the Enquiry Officer. The Apex Court held that the
principles of natural justice require that the authority empowered to take a final
Page No.# 16/36
decision and impose a penalty must provide the officer charged with misconduct
an opportunity to submit a representation before the Disciplinary Authority
records its findings on the charges. The relevant paragraph is extracted below.
“19. The result of the aforesaid discussion would be that the principles of natural justice have to be
read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the
enquiry authority on any article of charge, then before it records its own findings on such charge, it
must record its tentative reasons for such disagreement and give to the delinquent officer an
opportunity to represent before it records its findings. The report of the enquiry officer containing its
findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the
disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural
justice, as we have already observed, require the authority which has to take a final decision and can
impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation
before the disciplinary authority records its findings on the charges framed against the officer.”
22. In Rajasthan State Road Transport Corporation and Another vs. Bal
Mukund Bairwa reported in (2009) 4 SCC 299, the question before the Apex
Court was the purported conflict between the two judgments of the Apex Court
in Rajasthan SRTC v. Krishna Kant reported in (1995) 5 SCC 75 and Rajasthan
SRTC v. Khadarmal reported in (2006) 1 SCC 59 and the purported conflict in
those two judgments centered around the jurisdiction of the Civil Court to
entertain suits questioning orders of termination passed by the corporation
against the respondents as the suits were filed by the respondents on the
premise that their termination of services were in violation of the principles of
natural justice. The Apex Court held that an employee charged with grave acts
of misconduct must be held to be entitled to a fair hearing in the departmental
proceedings. The common law principles of natural justice must be complied
with along with the rules laid down in the statutory provisions. The Apex Court
held that while the corporation is bound to comply with the mandatory
Page No.# 17/36
provisions of the statute or regulations framed under it, a subordinate legislation
when validly framed becomes a part of the Act and it is also bound to follow the
principle of natural justice. In the event it is found that the action on the part of
the State is violative of the constitutional provisions or the mandatory
requirements of the statute or statutory rules, the Civil Court will have the
jurisdiction to direct reinstatement of back wages.
23. In SBI and others vs. Arvind K. Shukla reported in (2004) 13 SCC 797, the
Apex Court following the judgments rendered in Punjab National Bank Vs. Kunj
Behari Mishra (supra) as well as the Institute of Chartered Accountants of India
Vs. L.K. Ratna reported in (1986) 4 SCC 537, Ram Kishan Vs. Union of India
reported in (1995) 6 SCC 157 held that the Disciplinary Authority was required
to record its tentative reasons for disagreement and to give to the Delinquent
Officer an opportunity to represent before it reported the ultimate finding.
24. The exposition of the judgments rendered by the Apex Court clearly
delineates the position in law that an opportunity of hearing must be permitted
to the Delinquent Officer before the Disciplinary Authority arrives at any
conclusion which will adverse to the Delinquent Officer under the provisions of
instant Rules, it is seen that Rule 9(A) mandates furnishing of the enquiry report
along with the disagreement note of the Disciplinary Authority to the Delinquent
Officer. But it does not provide specifically that an opportunity of hearing is
required to be given to the Delinquent Officer in view of the disagreement of
the Disciplinary Authority with the findings of the enquiry report as submitted by
the Enquiry Officer.
Page No.# 18/36
25. From perusal of the provisions of Rule 9 of the Assam Services (Discipline
and Appeal) Rules, 1964 it is clear that the procedure prescribed under Rule 9
for imposes the punishments prescribed under Rule 7. Such punishments can
only be imposed upon an enquiry duly conducted in terms of the procedure
prescribed in Rule 9.
26. Under Rule 9 there is a detailed procedure prescribed for holding such
enquiry. The Disciplinary Authority will frame definite charges on the basis of the
allegations at the time of delivery the charges. The Disciplinary Authority will
furnish to the Government a list of documents and witnesses by which each
article of charges are proposed to be sustained. The Government servant will
also be permitted to inspect and take extracts from the official records in order
to prepare his defence.
27. On receipt of the written statement of defence, the Disciplinary Authority
shall inquire into such charges if such charges are not admitted to and if it
considers necessary, it shall appoint an Enquiry Officer to conduct the enquiry.
The Delinquent Officer is also permitted to take assistance of any other
Government servant approved by the Disciplinary Authority, if so required. The
Enquiry Officer will take into account such documentary evidences and oral
evidences as may be presented in support of the charges and/or in defence by
the Delinquent Officer. The presenting officer is also permitted to cross examine
the delinquent servant and the witnesses examined in his defence and at the
conclusion of the enquiry, the enquiry officer will prepare a report recording its
findings on such charges together with the reasons. Therefore, the record of the
enquiry shall include the charges framed against the government servant, his
Page No.# 19/36
written statement of defence, his oral evidence taken in the course of the
enquiry, the documentary evidence, the orders, if any, made by the Disciplinary
Authority and the enquiring authority with regard to the enquiry, as well as a
report setting out the findings on each charge and the reasons.
28. The Disciplinary Authority thereafter, if it is not the Inquiring Officer shall
consider the record of the enquiry and record its findings on each charge. It is
therefore seen that the Rules of 1964 lay down a very elaborate and specific
procedure when charges are framed against the Delinquent Officer and when
the penalty, more particularly major penalty is proposed to be imposed on the
charges leveled against the Delinquent Officer subject to the charges being
found to have been proved.
29. Therefore, under the Rules in a given situation where the charges are not
found to be proved, conclusively proved against the Delinquent Officer during
the enquiry instituted by the Disciplinary Authority, there is still a power reposed
on the Disciplinary Authority to disagree with any or all the findings returned by
the Enquiry Officer. However, mere disagreement and subsequent conclusion of
the Disciplinary Authority that the charges are proved without recording the
findings against each and every charge will be totally opposed to the principles
of natural justice. The purpose of an enquiry as prescribed in terms of the
provisions of Rule 9 is to arrive at a conclusion by examining the allegations
levelled against the Delinquent Officer by an officer of the department
appointed as an Enquiry Officer so that the Delinquent Officer is given full
opportunity to present his case in his defence with such witnesses and such
documents as may be called for. Upon conclusion of such an elaborate process
Page No.# 20/36
of enquiry, where the Enquiry Officer comes to a conclusion that any or all of
the charges are not proved, notwithstanding the power reserved for the
Disciplinary Authority under Rule 9(A) of the Assam Services (Discipline and
Appeal) Rules, 1964, it cannot imply that the Disciplinary Authority can simply
disagree with the findings of the Enquiry Officer and arrive at a conclusion
contrary to the findings in the enquiry to the effect that the charges are held to
be proved against the Delinquent Officer. Where the Disciplinary Authority
disagrees with the findings in the enquiry report which were in favour of the
Delinquent Officer and if prior to such conclusion no opportunity is given to the
Delinquent Officer, such procedure is permitted to be read into the Rules, then
besides being opposed to the principles of natural justice it will render the entire
purpose of an elaborate enquiry proceeded against the Delinquent Officer as
prescribed under Rule 9, to be nugatory.
30. Under such circumstances, the Rules of natural justice being one of the
fundamental rights enshrined in the Constitution of India must be necessarily
read into the Rules. The Rules of 1964 made under Article 309 must necessarily
be made subservient to the fundamental rights enshrined in the Constitution of
India, more particularly, to the Rules of natural justice. Therefore,
notwithstanding that there being no specific prescription under Rule 9(A) of the
Rules of 1964, it held that prior to arriving at any adverse conclusion by the
Disciplinary Authority disagreeing with the findings of the Enquiry Officer, it is
incumbent on the Disciplinary Authority to furnish a copy of the disagreement
note along with its tentative conclusion on the petitioner and further provide an
opportunity to the Delinquent Officer to effectively represent his case before the
Disciplinary Authority with an attempt to persuade the Disciplinary Authority to
Page No.# 21/36
accept the findings of the Enquiry Officer which were earlier favorable to him.
31. In the judgment rendered by the Apex Court in Punjab National Bank v.
Kunj Behari Misra (supra), the matter was examined in great detail by
considering the earlier precedents. The Apex Court referred to the judgment of
the State of Assam and another vs. Bimal Kumar Pandit reported in AIR 1963
SC 1612 wherein it was held that:
“If the dismissing authority differs from the findings recorded in the enquiry report, it
is necessary that its provisional conclusions in that behalf should be specified in the
second notice. It may be that the report makes findings in favour of the delinquent
officer, but the dismissing authority disagrees with the said findings and proceeds to
issue the notice under Article 311(2). In such a case, it would obviously be necessary
that the dismissing authority should expressly state that it differs from the findings
recorded in the enquiry report and then indicate the nature of the action proposed to
be taken against the delinquent officer. Without such an express statement in the
notice, it would be impossible to issue the notice at all. There may also be cases in
which the enquiry report may make findings in favour of the delinquent officer on
some issues and against him on some other issues.
If the dismissing authority accepts all the said findings in their entirety, it is another
matter: but if the dismissing authority accepts the findings recorded against the
delinquent officer and differs from some or all of a those recorded in his favour and
proceeds to specify the nature of the action proposed to be taken on its own
conclusions, it would be necessary that the said conclusions should be briefly indicated
in the notice.”
32. In order to give the Delinquent Officer a reasonable opportunity to show
cause, it is essential that the conclusions provisionally reached by the dismissing
Page No.# 22/36
authority (disciplinary authority) must be specified in the notice. But where the
dismissing authority purports to issue the notice against the Delinquent Officer
after accepting the enquiry report in its entirety, it cannot be said that it is
essential that the dismissing authority must say that it has also accepted the
report.
33. Again referring to the judgment of Managing Director, ECIL v. B.
Karunakar, reported in (1993) 4 SCC 727 where the question considered by the
Apex Court was whether after the 42 nd Amendment of the Constitution where
the Enquiry Officer was other than a Disciplinary Authority, the Delinquent
Officer was not required to be served with a copy of the enquiry report before
the Disciplinary Authority took the final decision as to whether to impose penalty
or not. This issue was answered in negative by the Apex Court. It was explained
and held by the Apex Court that the position after 42 nd Amendment of the
Constitution is to advance the point of time at which the representation of the
employee against the Enquiry Officer’s report would be considered. The
Disciplinary Authority is now required to consider the representation of the
employee against the enquiry report before arriving at its conclusion regarding
the employee’s guilt or innocence of the charges. The Apex Court has explained
that disciplinary proceedings are to be divided into two stages: the first stage
concludes when the Disciplinary Authority arrives at its conclusion based on the
evidence on record, the Enquiry Officer’s report, and the delinquent employee’s
reply thereto. The second stage begins when the Disciplinary Authority decides
to impose penalty on the basis of its conclusions. The Apex Court held that it
was the second right which was taken away by the 42nd Amendment; however,
the right of the charged officer to receive the report of the Enquiry Officer
Page No.# 23/36
remained an essential part of the first stage of the disciplinary proceedings.
Referring to the earlier precedents in Punjab National Bank v. Kunj Behari Misra
(supra) held it is mandatory for the authority which is to finally record an
adverse finding, to give a hearing to the Delinquent Officer. The Apex Court held
that the principles of natural justice would demand that the authority which
proposes to decide against the Delinquent Officer must give him a hearing.
When the inquiring officer holds the charges to be proved, then the report has
to be given to the Delinquent Officer who can make a representation before the
Disciplinary Authority and takes further action, which may be prejudicial to the
Delinquent Officer. But where the enquiry of a report is in favour of the
Delinquent Officer, but the Disciplinary Authority proposes to differ with such
conclusions arrived at by the Enquiry Officer, then the Delinquent Officer must
be given an opportunity of being heard or otherwise he would be condemned
unheard. In departmental proceedings, what is of ultimate importance is the
finding of the Disciplinary Authority. The relevant arguments of this judgment
are expected below.
“15. At this stage, it will be appropriate to refer to the case of State of Assam v. Bimal Kumar Pandit®
decided by a Constitution Bench of this Court. A question arose regarding the contents of the second
show-cause notice when the Government accepts, rejects or partly accepts or partly rejects the findings
of the enquiry officer. Even though that case relates to Article 311(2) before its deletion by the 42nd
Amendment, the principle laid down therein, at p. 10 of the Report, when read along with the decision of
this Court in Karunakar case will clearly apply here. The Court observed at SCR pp. 10-11 as follows:
“We ought, however, to add that if the dismissing authority differs from the findings recorded in the
enquiry report, it is necessary that its provisional conclusions in that behalf should be specified in
the second notice. It may be that the report makes findings in favour of the delinquent officer, but
the dismissing authority disagrees with the said findings and proceeds to issue the notice under
Article 311(2). In such a case, it would obviously be necessary that the dismissing authority should
expressly state that it differs from the findings recorded in the enquiry report and then indicate the
Page No.# 24/36nature of the action proposed to be taken against the delinquent officer. Without such an express
statement in the notice, it would be impossible to issue the notice at all. There may also be cases
in which the enquiry report may make findings in favour of the delinquent officer on some issues
and against him on some other issues. That is precisely what has happened in the present case. If
the dismissing authority accepts all the said findings in their entirety, it is another matter: but if the
dismissing authority accepts the findings recorded against the delinquent officer and differs from
some or all of those recorded in his favour and proceeds to specify the nature of the action
proposed to be taken on its own conclusions, it would be necessary that the said conclusions
should be briefly indicated in the notice. In this category of cases, the action proposed to be taken
would be based not only on the findings recorded against the delinquent officer in the enquiry
report, but also on the view of the dismissing authority that the other charges not held proved by
the enquiring officer are, according to the dismissing authority, proved. In order to give the
delinquent officer a reasonable opportunity to show cause under Article 311(2), it is essential that
the conclusions provisionally reached by the dismissing authority must, in such cases, be specified
in the notice. But where the dismissing authority purports to proceed to issue the notice against the
delinquent officer after accepting the enquiry report in its entirety, it cannot be said that it is
essential that the dismissing authority must say that it has so accepted the report. As we have
already indicated, it is desirable that even in such cases a statement to that effect should be made.
But we do not think that the words used in Article 311(2) justify the view that the failure to make
such a statement amounts to contravention of Article 311(2). In dealing with this point, we must
bear in mind the fact that a copy of the enquiry report had been enclosed with the notice, and so,
reading the notice in common sense manner, the respondent would not have found any difficulty in
realising that the action proposed to be taken against him proceeded on the basis that the
appellants had accepted the conclusions of the enquiring officer in their entirety.”
16. In Karunakar case the question arose whether after the 42nd Amendment of the Constitution, when
the enquiry officer was other than a disciplinary authority, was the delinquent employee entitled to a copy
of the enquiry report of the enquiry officer before the disciplinary authority takes decision on the question
of guilt of the delinquent. It was sought to be contended in that case that as the right to show cause
against the penalty proposed to be levied had been taken away by the 42nd Amendment, therefore, there
was no necessity to give to the delinquent a copy of the enquiry report before the disciplinary authority
took the final decision as to whether to impose a penalty or not. Explaining the effect of the 42nd
Amendment the Constitution Bench at p. 755 observed that: (SCC para 28)
“All that has happened after the Forty-second Amendment of the Constitution is to advance the
point of time at which the representation of the employee against the enquiry officer’s report would
Page No.# 25/36
be considered. Now, the disciplinary authority has to consider the representation of the employee
against the report before it arrives at its conclusion with regard to his guilt or innocence of the
charges.
The Court explained that the disciplinary proceedings break into two stages. The first stage ends when
the disciplinary authority arrives at its conclusions on the basis of the evidence, the enquiry officer’s
report and the delinquent employee’s reply to it. The second stage begins when the disciplinary authority
decides to impose penalty on the basis of its conclusions. It is the second right which was taken away by
the 42nd Amendment but the right of the charged officer to receive the report of the enquiry officer was
an essential part of the first stage itself. This was expressed by the Court in the following words: (SCC p.
754, para 26)
“26. The reason why the right to receive the report of the enquiry officer is considered an essential
part of the reasonable opportunity at the first stage and also a principle of natural justice is that the
findings recorded by the enquiry officer form an important material before the disciplinary authority
which along with the evidence is taken into consideration by it to come to its conclusions. It is
difficult to say in advance, to what extent the said findings including the punishment, if any,
recommended in the report would influence the disciplinary authority while drawing its conclusions.
The findings further might have been recorded without considering the relevant evidence on
record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents
to be considered by the disciplinary authority, the principles of natural justice require that the
employee should have a fair opportunity to meet, explain and controvert it before he is
condemned. It is negation of the tenets of justice and a denial of fair opportunity to the employee
to consider the findings recorded by a third party like the enquiry officer without giving the
employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed
to arrive at its own findings on the basis of the evidence recorded in the enquiry, it is also equally
true that the disciplinary authority takes into consideration the findings recorded by the enquiry
officer along with the evidence on record. In the circumstances, the findings of the enquiry officer
do constitute an important material before the disciplinary authority which is likely to influence its
conclusions. If the enquiry officer were only to record the evidence and forward the same to the
disciplinary authority, that would not constitute an additional material before the disciplinary
authority of which the delinquent employee has no knowledge. However, when the enquiry officer
goes further and records his findings, as stated above, which may or may not be based on the
evidence on record or are contrary to the same or in ignorance of it, such findings are an additional
material unknown to the employee but are taken into consideration by the disciplinary authority
while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the
Page No.# 26/36
principles of natural justice, therefore, require that before the disciplinary authority comes to its
own conclusions, the delinquent employee should have an opportunity to reply to the enquiry
officer’s findings. The disciplinary authority is then required to consider the evidence, the report of
the enquiry officer and the representation of the employee against it.”
17. These observations are clearly in tune with the observations in Bimal Kumar Pandit case® quoted
earlier and would be applicable at the first stage itself. The aforesaid passages clearly bring out the
necessity of the authority which is to finally record an adverse finding to give a hearing to the delinquent
officer. If the enquiry officer had given an adverse finding, as per Karunakar case the first stage required
an opportunity to be given to the employee to represent to the disciplinary authority, even when an
earlier opportunity had been granted to them by the enquiry officer. It will not stand to reason that when
the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority
then no opportunity should be granted. The first stage of the enquiry is not completed till the disciplinary
authority has recorded its findings. The principles of natural justice would demand that the authority
which proposes to decide against the delinquent officer must give him a hearing. When the enquiring
officer holds the charges to be proved, then that report has to be given to the delinquent officer who can
make a representation before the disciplinary authority takes further action which may be prejudicial to
the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent
officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is
deciding against the delinquent officer must give him an opportunity of being heard for otherwise he
would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding
of the disciplinary authority.
18. Under Regulation 6, the enquiry proceedings can be conducted either by an enquiry officer or by the
disciplinary authority itself. When the enquiry is conducted by the enquiry officer, his report is not final or
conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand
concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose
the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, an
opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of
the enquiry officer and proposes to come to a different conclusion, there is no reason as to why an
opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged
officers succeed before the enquiry officer, they are deprived of representing to the disciplinary authority
before that authority differs with the enquiry officer’s report and, while recording a finding of guilt,
imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an
opportunity to represent before the disciplinary authority before final findings on the charges are recorded
and punishment imposed. This is required to be done as a part of the first stage of enquiry as explained
Page No.# 27/36
in Karunakar case.
19. The result of the aforesaid discussion would be that the principles of natural justice have to be read
into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry
authority on any article of charge, then before it records its own findings on such charge, it must record
its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent
before it records its findings. The report of the enquiry officer containing its findings will have to be
conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to
accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have
already observed, require the authority which has to take a final decision and can impose a penalty, to
give an opportunity to the officer charged of misconduct to file a representation before the disciplinary
authority records its findings on the charges framed against the officer.”
34. These judgments of the Apex Court are subsequently followed in the
another Judgment of the Apex Court rendered in SBI and others v. Arvind K.
Shukla (super) as well as in Writ Appeal No.162/2024 (State Bank of India v.
Nani Gopal Palit), decided by Division Bench of this Court.
35. Culling out the propositions discussed above, it is clear that a disciplinary
proceedings culminates upon the final order passed by a Disciplinary Authority.
There may be three circumstances in any given departmental proceedings. In
the first circumstance, the Enquiry Officer does not find the Delinquent Officer
guilty of the allegations or the charges and the said finding is accepted by the
Disciplinary Authority, therefore, no prejudice will be caused to the Delinquent
Officer when no prior notice by the Disciplinary Authority is served on the
Delinquent Officer before concluding the departmental proceedings.
There may be another circumstance where the Enquiry Officer finds the
charge(s) leveled against the Delinquent Officer to be proved and the
Page No.# 28/36
Disciplinary Authority also contemplates to accept the findings of the enquiry
report, then non-service of a notice prior to the tentative conclusion or prior to
the conclusion sought to be arrived at by the departmental proceedings will
cause sufficient prejudice to the Delinquent Officer, if no notice is served on the
Delinquent Officer prior to conclusion of the departmental proceedings and
necessary orders passed by the Disciplinary Authority.
36. There may still be a third circumstance, as in the present case, where the
enquiry findings did not result in the charges being proved against the
Delinquent Officer, namely, the petitioner herein, but the Disciplinary Authority
disagrees with the findings of the Enquiry Officer. In such a scenario, the
question arises as to whether the Delinquent Officer is entitled to prior notice
before the Disciplinary Authority concludes the proceedings by arriving at a
finding that may prejudice the officer. In view of the exposition of the law laid
by the Apex Court the answer to the third circumstance will have to be
answered in affirmative.
37. It must be held that non-service of a prior notice to the Delinquent Officer
before the conclusion of the departmental proceedings, and before the
Disciplinary Authority arrives at a conclusion prejudicial to the officer will be
prejudicial to the Delinquent Officer. It is therefore held that a prior notice has
to be served on the Delinquent Officer, along with a copy of the Disciplinary
Authority’s disagreement note containing its tentative findings, as well as a copy
of the enquiry report, (if the same had not already been furnished). The
purpose of this notice would be to enable the Delinquent Officer to represent his
case before the Disciplinary Authority and provide him with an opportunity to
Page No.# 29/36
persuade, the Disciplinary Authority to accept the findings of the
Enquiry Officer and thereafter conclude the proceedings in favor of the
Delinquent Officer.
38. The facts elaborated and discussed above clearly reveal that the third
situation is squarely applicable in the present proceedings. Therefore, it is held
that the impugned disagreement note dated 29.11.2019, whereby the
Disciplinary Authority disagreed with the findings of the Enquiry Officer and
concluded that the charges stood proved, cannot be accepted as the conclusion
of the disciplinary proceedings, as the disagreement note does not indicate the
punishment proposed to be imposed on the writ petitioner. It has to be held that
the disagreement note dated 29.11.2019 is to be considered as a prior notice,
which will enable the Delinquent Officer, namely the petitioner to represent
before the Disciplinary Authority to persuade the Disciplinary Authority to accept
the conclusions of the Enquiry Officer in favor of the Delinquent Officer. It is
held that under Rule 9(A), when the Disciplinary Authority disagrees with the
findings of the Enquiry Officer and the disagreement is adverse to the
Delinquent Officer, it is mandatory for the Disciplinary Authority to give the
Delinquent Officer an opportunity to respond. This includes furnishing a copy of
the disagreement note and the tentative punishment proposed, before passing
the final order. This requirement must be read into Rule 9(A) in light of the legal
principles discussed above. The State authorities are directed to proceed in the
matter in terms of the conclusions arrived at by this Court in this respect.
39. In view of the foregoing discussions and the conclusions arrived at by this
Court, it is now necessary for the Disciplinary Authority to communicate to the
Page No.# 30/36
petitioner the tentative punishment proposed to be imposed, and thereafter
afford him an opportunity to submit his representation, so as to ensure that he
is not condemned without being given an opportunity of being heard.
40. Having discussed as above, it is evident that in view of the interim order
passed by this Court dated 08.12.2023, whereby the Court directed that the
impugned note of disagreement dated 29.11.2019 and all subsequent orders be
suspended until the returnable date, and which interim order was subsequently
extended the departmental proceedings could not have proceeded further. The
interim order therefore stands vacated and the respondent authorities are
directed to conclude the departmental proceedings as expeditiously as possible
in terms of the directions given in paragraph No. 38 above.
41. Insofar as the second issue is concerned as to whether departmental
proceedings can be allowed to proceed where the allegations and/or charges
against the Delinquent Officer are similar or identical to those framed in a
criminal proceeding, and where the trial court has discharged the
accused/petitioner due to lack of evidence. To examine this proposition, it is
necessary to summarize the law laid down by the Apex Court.
42. In Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and another reported
in (1999) 3 SCC 679 it was held that, in the facts of that case, where the
charges and accusations against the petitioner were identical to those in the
criminal case, and where the criminal court had acquitted the petitioner after
rejecting the prosecution’s case, it would be unjust, unfair, and rather
oppressive to allow the ex parte findings recorded against the petitioner in the
Page No.# 31/36
departmental proceedings to stand. Consequently, the Apex Court interfered
with the departmental proceedings against the petitioner. The judgment was
referred to and relied upon by the Apex Court in G.M. Tank Vs. State of Gujarat
and Others reported in (2006) 5 SCC 446, in that case, it was held that where,
during the pendency of departmental proceedings, the delinquent employee was
acquitted by the trial court, such acquittal was required to be duly considered by
the departmental authority. In that context, the appeal preferred by the
appellant therein the delinquent employee was allowed, and the conclusions
arrived at by the departmental authorities were interfered with.
43. In Ram Lal Vs. State of Rajasthan reported in AIR 2024 SC 637, the Apex
Court on the basis of the facts pleaded before it came to the conclusion that the
charges against the Delinquent Officer were not only similar but identical to
those in the criminal case, and that the evidence, witnesses, and circumstances
were also the same. The Court, therefore, in the exercise of its discretion,
quashed the orders of the Disciplinary Authority and the Appellate Authority,
holding that allowing such orders to stand would be unjust, unfair, and
oppressive. The Apex Court also referred to its earlier precedent rendered by
the Apex Court in its judgment rendered in G.M. Tank Vs. State of Gujarat and
Others (supra).
44. There is no quarrel with the proposition of law laid down in Capt. M. Paul
Anthony v. Bharat Gold Mines Ltd. and Another (supra), G.M. Tank v. State of
Gujarat and Others (supra), and the other judgments referred to before this
Court. Where the charges made against the writ petitioner, who is the
Delinquent Officer, are identical or similar, and the witnesses and evidence are
Page No.# 32/36
the same, and further, where during the pendency of the departmental
proceedings the Delinquent Officer, namely the petitioner herein, has been
discharged by the trial Court due to lack of evidence and the prosecution’s
failure to prove the allegations, it is necessary for the departmental authority to
take these circumstances into consideration at the time of passing the
appropriate orders.
45. Where the criminal trial has acquitted or discharged the Delinquent Officer,
it will not automatically result in the departmental proceedings being dropped.
However, the departmental authorities are required to examine and take due
note of the judgment rendered by the trial Court. The findings arrived at by the
trial Court in respect of the charges framed cannot be ignored by the
Disciplinary Authorities unless the charges framed in the disciplinary proceedings
are not identical or similar to those framed before the trial Court. Therefore, it
will be incumbent upon the Disciplinary Authority to take a conscious decision,
based on the findings of the trial Court which discharged the petitioner for lack
of evidence, as to whether further proceedings in the departmental case should
continue, particularly if the charges in the departmental proceedings are the
same or identical to those brought against the Delinquent Officer in the criminal
proceedings.
The law laid down by the Apex Court is that it would not be proper to
proceed with the departmental proceedings merely because the Disciplinary
Authority is empowered to do so, without taking note of the findings of the
criminal Court, especially when the allegations against the petitioner in the
departmental proceedings and the charges leveled against the Delinquent
Page No.# 33/36
Officer before the criminal Court are one and the same and/or identical.
However, this question in the present proceedings cannot be decided, as in view
of the interim order dated 08.12.2023 passed earlier by this Court, the
proceedings pursuant to the disagreement note dated 29.11.2019 have been
stayed. As such, in view of the findings and discussions in the preceding
paragraphs hereinabove, this Court has concluded that the impugned
disagreement note dated 29.11.2019, since it does not reflect the punishment
proposed to be imposed on the petitioner, cannot be accepted as the conclusion
of the departmental proceedings by the Disciplinary Authority. Rather, it is a
communication of the reasons for disagreement by the Disciplinary Authority,
which, as directed hereinabove by this Court, is to be followed by the tentative
penalties sought to be imposed (if any) in view of the conclusions arrived at by
the Disciplinary Authority, as reflected in the disagreement note dated
29.11.2019.
46. However, whether these materials were considered by the Disciplinary
Authority or would have been considered it cannot be decided by the Court at
this stage as the departmental proceedings have been suspended by virtue of
the interim order passed by this Court earlier vide the order dated 08.12.2023.
Therefore, this question should be left to be answered only after the
departmental proceedings are concluded and are found to be adverse to the
petitioner. Therefore, the second question, given the present set of
circumstances if decided by this Court at this stage will foreclose the disciplinary
proceedings which this Court permitted the disciplinary authority to pass
appropriate orders.
Page No.# 34/36
47. In conclusion, this Court therefore allows the writ petition in part, directing
the respondent authorities to conclude the departmental proceedings against
the petitioner as expeditiously as possible in terms of the directions of this Court
in the aforementioned paragraph No.38. While the Court normally does not
consider it appropriate to prescribe any timeline, considering that the
departmental proceedings against the writ petitioner were initiated as far back
as 2017, this Court deems it appropriate that the ends of justice will be met if
the departmental proceedings are concluded by the Disciplinary Authority as
expeditiously as possible, and in any event within the outer limit of 90 days from
the date of receipt of a copy of this order, as indicated in the subsequent
paragraphs.
48. In terms of the directions aforesaid, the petitioner shall be served with the
tentative conclusion of the Departmental Authority within 30 days from the date
of receipt of a certified copy of this order, whereupon the Delinquent Officer
may choose to make representations before the authority within a further period
of 30 days. The Department Authority will thereafter, proceed to conclude the
proceedings within 90 days and serve the copies of such order on the writ
petitioner and will ensure service of copies on the writ petitioner.
49. It is also directed that while concluding the departmental proceedings, the
disciplinary authorities will consciously take into consideration the law laid down
by the Apex Court in the judgments rendered in Capt. M. Paul Anthony Vs.
Bharat Gold Mines Ltd. and Another (supra) , G.M. Tank Vs. State of Gujarat and
Others (supra) as well as the Ram Lal Vs. State of Rajasthan (supra) as have
been discussed above and thereafter, pass appropriate orders as per law.
Page No.# 35/36
50. In view of the conclusions of this Court as rendered in paragraph No. 38, a
copy of this judgment shall be placed before the Chief Secretary to the
Government of Assam who may consider issuance of necessary notifications if
required. Such notifications is issued should mandate that where the Disciplinary
Authority disagrees with the conclusions of the Enquiry Officer, a note of
disagreement, together with the conclusions of the Disciplinary Authority and
the report of the Enquiry Officer (if not already served), must be served on
every Delinquent Officer in disciplinary proceedings undertaken under the
Assam Services (Discipline and Appeal) Rules, 1964. Thereafter, the Delinquent
Officer shall be given a reasonable opportunity to make representations before
the Disciplinary Authority in respect of the tentative conclusions arrived at by
the Disciplinary Authority.
51. This writ petition is therefore allowed to the extent indicated, with no
order as to costs, and is accordingly disposed of.
52. In WP(C) No.7962/2022, since there is no dispute that the petitioner’s
suspension was subsequently revoked and he was reinstated in service.
Similarly, his claims towards DCRG and other service and retirement benefits are
required to be considered immediately upon the conclusion of the departmental
proceedings, as directed by the Court in terms of the directions issued in WP(C)
No. 6815/2023.
53. Insofar as the provisional pension is concerned, the same shall be
continued to be released to the petitioner until effective orders are passed upon
the conclusion of the departmental proceedings as directed in WP(C)
Page No.# 36/36
No.6815/2023.
54. Both these writ petitions therefore stand disposed of in terms of the
above.
55. Interim order dated 08.12.2023 passed in WP(C) No.6815/2023 stands
vacated.
JUDGE
Comparing Assistant