Gauhati High Court
Page No.# 1/26 vs The State Of Assam And 4 Ors on 29 July, 2025
Page No.# 1/26
GAHC010057592024
2025:GAU-AS:10386
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1630/2024
MANABJYOTI SAIKIA S/O- DHRUBA SAIKIA,
R/O- BOKUL MAH GAON, P.O AND P.S- LAHOWAL, DIST- DIBRUGARH,
ASSAM
VERSUS
THE STATE OF ASSAM AND 4 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF
ASSAM, HOME AND POLITICAL DEPARTMENT
ASSAM SECRETARIAT, DISPUR, GUWAHATI-781006
2:THE DIRECTOR GENERAL OF POLICE ASSAM
ASSAM POLICE HEADQUARTERS B.K. KAKATI ROAD
ULUBARI GUWAHATI-781007
3:THE DEPUTY INSPECTOR GENERAL OF POLICE SB ASSAM
KAHILIPARA GUWAHATI-19
4:THE SUPERINTENDENT OF POLICE CUM DISCIPLINARY AUTHORITY
SB (E) ASSAM KAHILIPARA GUWAHATI-19
5:THE SUPERINTENDENT OF POLICE WEST KARBI ANGLONG
HAMREN ASSA
Advocate for the Petitioner : MR A K DAS, MS J AKTAR,MR A.SARKAR,MR. M KHAN
Advocate for the Respondent : GA, ASSAM,
:::BEFORE:::
HON'BLE MR. JUSTICE N. UNNI KRISHNAN NAIR
Date of hearing : 29.07.2025
Date of Judgment & Order: 29.07.2025
Page No.# 2/26
JUDGMENT & ORDER (ORAL)
Heard Mr. Mollah Khan, learned counsel, appearing on behalf of the
petitioner. Also heard Mr. T. C. Chutia, learned Addl. Senior Government
Advocate, appearing on behalf of all the respondents.
2. The petitioner, herein, by way of instituting the instant writ petition
has presented a challenge to an order, dated 02-01-2024, issued by the
disciplinary authority imposing upon him, the penalty of removal from
service on conclusion of a departmental proceeding instituted against him.
The petitioner has also presented a challenge to an order, dated 23-02-
2024, issued by the appellate authority rejecting the appeal preferred by
him in the matter against the order, dated 02-01-2024, and upholding the
penalty so imposed upon him by the disciplinary authority.
3. The brief facts requisite for adjudication of the issue arising in the
present proceeding, is noticed as under:
The petitioner, herein, was appointed as a Sub-Inspector of Police
(Probation)(Unarmed Branch), vide order, dated 26-02-2021 and he had
joined his services on 04-03-2021. The petitioner while serving at
Baithalangso Police Station; a police case being Baithalangso Police Station
Case No. 35/2023 under sections 341/384/409/201/120(B) of the Indian
Penal Code, came to be registered against him basing on an allegation that
on 31-05-2023, while he was on naka duty along with his staff, on the
pretext of police checking; had illegally collected money from the
informant. The petitioner was arrested in connection with the said police
case on 05-06-2023, however, on his production before the Judicial
Magistrate, First Class, West Karbi Anglong, Hemren, he was released on
Page No.# 3/26bail on the next day i.e. on 06-06-2023.
The petitioner was placed under suspension vide order, dated 05-06-
2023, in connection with his involvement in the said criminal case.
However, the said order of suspension was revoked with effect from 05-12-
2023.
The allegations levelled against the petitioner, herein, having revealed
the commission of a misconduct by him; the disciplinary authority of the
petitioner i.e. the Superintendent of Police, West Karbi Anglong, Hemren,
proceeded to institute a departmental proceeding against the petitioner
vide issuance of a Show Cause Notice, dated 09-07-2023.
3(three) allegations came to be levelled against the petitioner, herein;
all pertaining to his conduct while discharging duties on 31-05-2023.
The petitioner, on receipt of the said Show Cause Notice, submitted
his reply thereto, on 18-07-2023. In the said reply, the petitioner had
denied the allegations levelled against him in the said Show Cause Notice
to be absolutely baseless and thereafter, by highlighting the proceedings
instituted by him before this Court for setting aside the First Information
Report(FIR) lodged in the matter leading to registration of Baithalangso
Police Station Case No. 35/2023, refrained from dealing with the allegations
levelled against him in the Show Cause Notice, dated 09-07-2023 in
details.
Page No.# 4/26
The disciplinary authority, not being satisfied with the reply as
submitted by the petitioner, herein, in the matter; proceeded to direct for
an inquiry and accordingly, an inquiry officer and a presenting officer, came
to be appointed in the matter. The petitioner participated in the inquiry
without any objection and on conclusion of the inquiry; the inquiry officer
submitted his report in the matter. The said inquiry report was forwarded to
the petitioner and he submitted his representation against the same on 11-
12-2023.
The disciplinary authority, thereafter, on consideration of the materials
coming on record in the inquiry, the inquiry report as well as the
representation submitted, thereon, by the petitioner; proceeded to
conclude that the allegations levelled against the petitioner vide the Show
Cause Notice, dated 09-07-2023, stood established and proceeded to
impose the penalty of removal from service upon the petitioner, herein. The
disciplinary authority also issued a corrigendum on 22-01-2024 that the
penalty of removal from service upon the petitioner, so effected would be
w.e.f. 02-01-2024.
The petitioner, herein, thereafter, filed an appeal in the matter vide
his appeal memorandum, dated 09-01-2024. However, the appellate
authority, on consideration of the same; proceeded to reject the
contentions raised by the petitioner, therein, and by further holding that the
penalty of removal from service upon the petitioner imposed by the
disciplinary authority to be adequate; confirmed the same and rejected the
appeal, in question.
Page No.# 5/26
Being aggrieved, the petitioner, herein, has instituted the present
proceeding before this Court.
4. It is to be noted that during the pendency of the present proceeding;
the police, on conclusion of the investigation, the police had lodged a
charge-sheet against the petitioner, herein, under Section
341/384/409/465/201/120(B) of the Indian Penal Code. The learned Court
of Judicial Magistrate, First Class, West Karbi Anglong, Hemren, in PRC
Case No. 234/2023, considered the petition filed by the petitioner and
other accused person in the case for discharge and on such consideration,
proceeded vide order, dated 21-11-2024, to discharge the petitioner and
the other accused by drawing a conclusion that there was no sufficient
materials to prove the alleged offence against the accused persons.
5. Mr. Khan, learned counsel for the petitioner, at the outset, has
submitted that the charge levelled against the petitioner in the criminal
case and that so levelled against him in the Show Cause Notice, dated 09-
07-2023, being the same and the petitioner having been discharged from
the criminal case; the penalty as imposed upon him by the departmental
authorities basing on the same charge; would mandate an interference
from this Court.
6. Mr. Khan, learned counsel, by referring to the Show Cause Notice,
dated 09-07-2023, and the allegations levelled against the petitioner,
therein; has submitted that in the enquiry report submitted in the matter
by the enquiry officer; the enquiry officer had recorded findings only with
regard to one of the allegations levelled against the petitioner in the said
Page No.# 6/26
Show Cause Notice, dated 09-07-2023. Mr. Khan, learned counsel, has
further submitted that the conclusions so drawn by the enquiry officer in
the enquiry report, are not based on the materials coming on record,
rather, the same has been so drawn only for the purpose of holding the
charge levelled against the petitioner in the departmental proceeding; to
have been established.
7. Mr. Khan, learned counsel, by referring to the order, dated 02-01-
2024, passed by the disciplinary authority, has submitted that the
disciplinary authority had failed to appreciate the contentions raised by the
petitioner in his representation submitted against the enquiry report,
wherein, he had brought on record, the lacunae existing in the enquiry,
more particularly, with regard to the conclusions drawn by the enquiry
officer in the enquiry report. Mr. Khan, learned counsel, has further
submitted that the conclusions drawn by the disciplinary authority in the
order, dated 02-01-2024, have been so drawn without a proper
appreciation of the materials coming on record in the enquiry.
8. Mr. Khan, learned counsel, has further submitted that even before the
appellate authority, the petitioner, herein, in his appeal memorandum,
dated 09-01-2024, had categorically stated there was no material brought
on record to justify the imposition of the penalty of removal from service
upon him. The learned counsel has further submitted that in his appeal
memorandum, the petitioner had highlighted that the conclusions drawn by
the enquiry officer suffered from inherent contradictions, however, the
appellate authority, ignoring the same, proceeded to uphold the penalty of
removal from service imposed upon the petitioner. Accordingly, Mr. Khan,
Page No.# 7/26
learned counsel, has submitted that the order, dated 02-01-2024, along
with the order passed by the appellate authority; would mandate an
interference from this court.
9. Mr. Khan, learned counsel, has further submitted that the petitioner,
herein, being a probationary Sub-Inspector of Police(UAB); his career ought
not to be permitted to be terminated in the manner, it was so done and
accordingly, the learned counsel has prayed that upon interference of the
orders, impugned in the present petition, a direction be issued by this
Court to the respondent authorities to reinstate the petitioner in his service.
10. To buttress his submissions, Mr. Khan, learned counsel for the
petitioner, has relied upon the following decisions:
1. The decision of this Court in the case of W. Birbal Singh v. State of
Manipur & ors., reported in 2010(5) GLT 371;
2. The decision of this Court in the case of Kiran Chandra Deka v.
State of Assam & ors., reported in 2016(3) GLT 256;
3. The decision of the Hon’ble Supreme Court in the case of G.M. Tank
v. State of Gujarat & anr., reported in (2006) 4 SCC 740; and
4. The decision of the Hon’ble Supreme Court in the case of Ram Lal
v. State of Rajasthan & ors., reported in (2024) 1 SCC 175.
11. Per contra, Mr. Chutia, learned Addl. Senior Government Advocate
appearing on behalf of the State Respondents, has submitted that the
contention of the petitioner that he having been discharged in the criminal
proceeding instituted against him in the matter by the learned trial Court,
Page No.# 8/26
the penalty imposed upon him by the disciplinary authority, would
mandated an interference; is clearly not sustainable, in-as-much as, the
said discharge would not ipso facto absolve the petitioner from his liability
under the disciplinary jurisdiction. The learned Addl. Senior Government
Advocate has further submitted that the discharge of the petitioner by the
learned trial Court, would have no impact on the concluded departmental
proceeding instituted against him.
12. Mr. Chutia, learned Addl. Senior Government Advocate, by
highlighting that the discharge of the petitioner, herein, at the stage of
framing of charge, was so directed by the learned trial Court only upon
examining the materials brought on record by the investigating officer and
the same not being in pursuance to a full-fledged trial, wherein, the
witnesses were so examined; has submitted that the same would have no
bearing on the conclusions drawn by the disciplinary authority in the
matter, which was so done, basing on the materials coming on record in the
inquiry instituted against the petitioner, wherein, the allegations levelled
against him were, admittedly, established.
13. Mr. Chutia, learned Addl. Senior Government Advocate, has further
submitted that the petitioner, in the present proceeding, has not contended
that he was denied of a due opportunity in the inquiry to defend his case.
Accordingly, it is submitted by the learned Addl. Senior Government
Advocate that the conclusion as drawn by the enquiry officer, would not
mandate interference by this Court.
14. Mr. Chutia, learned Addl. Senior Government Advocate, by contending
Page No.# 9/26
that this Court, while exercising its power of judicial review, would not act
as an appellate court, has submitted that the penalty as imposed upon the
petitioner, herein, being not perverse; would not call for an interference
from this Court. The learned Addl. Senior Government Advocate has further
submitted that the disciplinary authority in the matter, having agreed with
the conclusions drawn by the inquiry officer, the disciplinary authority was
not called upon to give detailed reasons against each of the charges framed
against the petitioner, herein.
15. In the above premises, Mr. Chutia, learned Addl. Senior Government
Advocate, has submitted that the present writ petition would not mandate
an acceptance and the same would be required to be dismissed.
16. I have heard the learned counsels appearing for the parties and also
perused the materials available on record.
17. A departmental proceeding was instituted against the petitioner,
herein, vide issuance of a Show Cause Notice, dated 09-07-2023. The
charges framed against the petitioner, therein, being relevant, is extracted,
hereinbelow:
“You are hereby required to show cause under Articles 311 of the Constitution
of India and Rule 9 of the Assam Services (Discipline and Appeal) Rules 1964 as to
why any of the penalties under Rule 7 of Assam Services (Discipline and Appeal) Rules
1964 should not be inflicted on you on the following charges based on the statement
of allegation attached herewith as Annexure A
1. That while you were posted in West Karbi Anglong District as Probationer
Sub-Inspector vide Memo No. FA/1/6/2018/Pt-1/332 dated 29/3/2022 for a period
of 2 (two) years and you were attached to Baithalangso PS. Vide Memo No
WKA/R/08/ 2021 /670-A Dtd 16/08/2022 and you joined as Probationer Sub-
Inspector on 18/08/2022 at Baithalangso PS. You have failed to discharge the
duties and responsibilities as Probationer Sub-Inspector, rather in the guise of
performing vehicle checking on the Public road, you have resorted to activities
Page No.# 10/26of extortion from the public and as such you are involved in serious Criminal
misconduct.
2. That while you were Probationer Sub-Inspector in West Karbi Anglong
district, you were involved in extortion and forcefully took away the valuables
such as money etc, from the bike riders, and pedestrians.
On 31/05/2023, while you were on the public road at Umru under Baithalangso
PS at about 3PM to 4 PM you intercepted a person namely Yasin Ali who was coming
on bike and stopped him under your command. On the pretext of doing checking the
Police personnel under your command took away the key of his bike and his mobile
phone along with 220 that was in his shirt pocket. When the Bike rider Yasin Ali
enquired about his restrain to you, one Abhijit Boro, HG slapped him under your
direction. The Police personnel under your command took away 30,000/- from the
pocket of Yasin All. When Yasin All asked for his 30,000/- you asked him to come to
Baithalangso PS. The victim Yasin Ali then insisted to return the money taken from
him forcefully but you made a concocted story as if that somebody has found the
money handed over the money to police station and to effect the concocted story you
engaged one Jeetu Basumatary to make a telephone call on 04/06/2023 to Yasin All to
collect the money. The victim Yasin All then lodged FIR at Baithalangso PS. in to the
entire incident.
Therefore, being a Probationer Sub-Inspector committing such illegal activities
of extortion and wrongful restrain in the public, you have involved in a serious
criminal misconduct.
3. That while you were posted as Probationer Sub-Inspector at Baithalangso PS
under West Karbi Anglong district, on 31/05/2023, you were at Hongkram
Tiniali, you resorted to wrongful restrain to the pedestrian and extorted
money, from one Babu Singh Teron was coming on foot with two buffaloes.
When Babu Singh Teron along with buffaloes reached the Tinali, the police
party under your command and asked him to stop and checked the receipt of
the buffaloes. Although receipt was in his name, the police personnel under
your command threatened him to take the buffaloes to the police station. From
the illegal demand made by you Sri Babu Singh Teron agreed to pay 3000/- but
you demanded ₹15,000/- Therefore, at around 7 o’clock in same day you made
a telephone call from your mobile phone number 9085238121 to Babu Singh
Teron for money. Sri Babu Singh Teron reportedly took 13,000 from a trader
and handed over the said money to you near Baithalangso Fish Market
4. That while you were posted as Probationer Sub-Inspector at Baithalangso
P.S., West Karbi Anglong district on 31/05/2023 in the guise of vehicle
checking at public road at Umru, from 3 PM to 4 PM you restrained one Mazibur
Rahman, S/O Abdul Barek Vill- Singimari, PS- Kachua who was going to
Rongkur on motor bike to bring Roti for his friends, the Police personnel under
your command forcibly took 17,500/- from his pocket and snatched his mobile
phone and key of the motorcycle.
Therefore, as such due to illegal activities of extortion from the bike rider you
are involved in a serious criminal misconduct.
Your above acts tantamount to serious criminal misconduct is highly
unbecoming of a member of a disciplined force. Therefore, you are charged with
serious criminal misconduct accordingly.”
Page No.# 11/26
18. A perusal of the said Show Cause Notice, dated 09-07-2023, would go
reveal that with regard to the conduct of the petitioner, herein, while
discharging his duties on 31-05-2023, 3(three) distinct allegations came to
be levelled against him.
19. The first allegation levelled against the petitioner, pertains to his
interception of a person, namely Yasin Ali, who was coming on bike. It is
alleged that the said person was stopped by the police personnel under the
command of the petitioner, herein, and the key of his bike, mobile phone
along with Rs. 220/- was taken away from him. It is further alleged that
the police personnel involved in the naka duty, under the command of the
petitioner, herein, had taken away Rs. 30,000/- from the pocket of Yasin
Ali. Further, Yasin Ali, on insisting for return of his money, it is seen that the
money was returned after the same was found by one Jeetu Basumatary. It
is alleged that basing on the pressure exerted by said Yasin Ali, the
petitioner had engaged one Jeetu Basumatary to make a telephone call to
Yasin Ali on 04-06-2023, by projecting that said Jeetu Basumatary had
recovered the money and asked Yasin Ali to have the same collected from
him. Said Yasin Ali, thereafter, lodged an First Information Report(FIR) at
Baithalangso Police Station, in this connection.
20. The second allegation levelled against the petitioner, herein, is that on
the same day i.e. on 31-05-2023, he had wrongfully restrained a
pedestrian and extorted money from him. The pedestrian so restrained is
one Sri Babu Singh Teron who was coming on foot with two buffalos. The
petitioner, purportedly, had asked said Babu Singh Teron to furnish the
receipts of the buffalos which were with him and made an illegal demand of
Page No.# 12/26
Rs 15,000/- from him. It is alleged that on the same day, the petitioner had
made a phone call to said Babu Singh Teron for the money and said Babu
Singh Teron after taking Rs 10,000/-, on loan, had handed over the money
to the petitioner, herein.
21. The third allegation levelled against the petitioner, pertains to the
same day i.e. 31-05-2023, wherein, it was alleged that in the guise of
vehicle checking, he had restrained one Mazibur Rahman and the police
personnel under his command, had forcibly taken Rs 17,500/- from his
pocket and had also snatched his mobile phone and the key of the
motorcycle on which he was cruising.
22. The petitioner was, accordingly, charged of commission of a serious
criminal misconduct, unbecoming of a member of a disciplined force. The
petitioner, thereafter, on receipt of the Show Cause Notice, dated 09-07-
2023, had submitted his reply thereto and therein, while denying the
allegations levelled against him; had contended that he had filed a criminal
petition before this Court for setting aside and quashing the First
Information Report(FIR) lodged by Yasin Ali on 05-06-2023, which was
registered as Baithalangso Police Station Case No. 35/2023. The petitioner
had in view of the institution by him of the said criminal petition before this
Court, refrained from offering any comment on the allegations made
against him in the Show Cause Notice, dated 09-07-2023. The petitioner
had further prayed for keeping in abeyance the, Show Cause Notice, dated
09-07-2023, till the matter is finally decided by this Court in the criminal
petition.
Page No.# 13/26
23. It is seen that the disciplinary authority, not being satisfied with the
contentions raised by the petitioner, in his show cause reply, directed for
holding an enquiry and an enquiry officer came to be appointed in the
matter. It is to be noted that the petitioner participated in the said enquiry
without any objection.
24. In the enquiry, the Department had examined as many as 11(eleven)
witnesses including the persons from whom the petitioner was alleged to
have extorted money i.e. Yasin Ali, Babu Singh Teron and Mazibur Rahman.
25. A perusal of the statements made by the projected victim, Yasin Ali,
as PW-1 in the enquiry, would go to reveal that he had reiterated the
allegations levelled by him in the First Information Report(FIR). The PW-1,
in his statement, had deposed that he had approached the petitioner,
herein, on the next day, demanding his money. The said witness had
contended that he had told the petitioner that it was he who had taken the
money i.e. Rs. 30,000/- from his pocket but the same was denied by the
petitioner, herein. It was also deposed that the said witness was pursuing
the matter with the petitioner for return of his money. The said witness
further deposed that the petitioner had told him that it had come to his
knowledge that some police personnel had found his money and asked him
to have patience for 2-3 days. Thereafter, a stranger called the said witness
on phone and told him that he had found his money while rearing cattle
near Umro and asked him to collect it from the Council gate. As it was late
at night, the said witness had told that he would get back to the caller.
Later, the PW-1, had lodged an First Information Report(FIR) against the
petitioner. The said deposition of Yasin Ali was permitted to go on record by
Page No.# 14/26
the petitioner, herein, and he had not cross-examined the said witness.
26. Likewise Babu Singh Teron, another projected victim, had deposed in
the enquiry as PW-2. The said PW-2 had during his deposition stated that
the petitioner had demanded Rs. 17,000/- from him. However, the said PW-
2 had paid Rs. 3,000/- to the petitioner. Thereafter, the said witness had
paid Rs. 10,000/- to the petitioner on the same day at night. It is seen that
the petitioner, herein, had cross-examined the said PW-2 i.e. Babu Singh
Teron and had asked, whether he had paid Rs. 3,000/- to the petitioner to
which the said witness had replied in affirmative.
27. The third projected victim Mazibur Rahman had deposed as PW-3 and
during his deposition, he had stated that the police party had taken Rs.
17,500/- from his pocket along with his phone and the key of his vehicle.
The PW-3 had further deposed that the mobile phone and the money so
taken from him, were kept by the police but his bike key was returned to
him and he was asked to leave. The said PW-3 had also deposed that in the
evening, he had gone to the police station concerned and requested the
petitioner to return his mobile. The mobile phone was returned by the
petitioner to him. It is to be noted that the petitioner although was offered
to cross-examine said Mazibur Rahman who had deposed as PW-3 in the
enquiry but the petitioner had declined to do so.
28. The other witnesses deposing in the enquiry as PW-4, PW-5, PW-6,
PW-7, PW-8 and PW-9, are the police personnel.
29. It is relevant to note the deposition made by PW-6, namely, Ziaur
Page No.# 15/26
Rahman Khan, Inspector of Police. During his deposition, while reiterating
the allegations levelled against the petitioner, the PW-6 had deposed that
Yasin Ali had received a phone call from an unknown person who had
informed him that the money lost by him, was found and he was asked to
collect the same. The said PW-6 had further submitted that during the
enquiry made in the matter, he had examined the victims. The petitioner
had cross-examined said PW-6 during the cross-examination and had
questioned him as to why he had not examined Jeetu Basumatary, to which
the said witness had submitted that he had only conducted a preliminary
enquiry and said Jeetu Basumatary was examined later by the
Investigating Officer.
30. Sri Ramesh Boro, a Home Guard who was also a part of the police
party along with the petitioner, deployed for naka duty on 31-05-2023, was
examined as PW-8 in the enquiry and he had deposed that Jeetu
Basumatary is the person who claimed to have found the money belonging
to Yasin Ali, was, in fact, his brother-in-law. Said Jeetu Basumatary was
examined in the enquiry as PW-10, and therein, he had deposed that the
money was found by him, when he had proceeded to attend nature’s call
near a bamboo grove besides the road.
31. The enquiry officer on conclusion of the enquiry, submitted his
enquiry report in the matter on 31.10.2023. A perusal of the enquiry report
would go to reveal that although materials had come on record with regard
to all the 3(three) distinct allegations levelled against the petitioner; the
enquiry officer had dealt with only one of the allegations qua Yasin Ali. The
other allegations levelled against the petitioner in the Show Cause Notice,
Page No.# 16/26
dated 09-07-2023, pertaining to the purported extortion of money made by
him from Babu Singh Teron and Mazibur Rahman, were not dealt with. The
enquiry officer on consideration of the materials coming on record in the
enquiry pertaining to the purported extortion of money made by the
petitioner, herein, from said Yasin Ali, on 31-05-2023, had concluded that
the same was established. Thereafter, the enquiry officer proceeded to
record a satisfaction to the effect that upon consideration of the entire facts
and circumstances of the proceeding, as discussed in the enquiry report
and on careful consideration by applying the ‘preponderance of probability’;
the charge of criminal misconduct brought against the petitioner, herein,
was held to be established.
32. The petitioner, herein, submitted a representation against the findings
of the enquiry officer and it is seen, on a perusal, thereof; that he had dealt
with the depositions recorded by all the witnesses appearing in the enquiry
including the depositions made by Sri Babu Singh Teron, as PW-2, and Sri
Mazibur Rahman, as PW-3. The petitioner, in his said representation,
highlighted certain contradictions that had come on record in the
depositions of the prosecution witnesses. However, on a close perusal of
the same, it is found that the contradictions as highlighted by the
petitioner, in his representation, would not be of any consequence.
33. The disciplinary authority, thereafter, on consideration of the materials
coming on record in the enquiry, the enquiry report and the representation
submitted by the petitioner, herein; proceeded to accept the said enquiry
report. On such acceptance, the disciplinary authority proceeded further to
record a finding to the effect that the petitioner being a probationer, was
Page No.# 17/26
involved in a serious misconduct. With regard to the inconsistencies
highlighted by the petitioner with regard to the depositions of the witnesses
in the enquiry; the disciplinary authority rejected the same and held that
the petitioner had not cross-examined said Yasin Ali and Mazibur Rahman
as well as a few other police personnel deposing in the enquiry. It was
further concluded that the statements of said Yasin Ali, brought on record,
the involvement of the petitioner in the commission of criminal misconduct
alleged against him.
34. By referring to the deposition of Sri Babu Singh Teron, PW-2; the
disciplinary authority concluded that although the said witness was cross-
examined by the petitioner, herein, the involvement of the petitioner was
further established during such cross-examination. Basing on the said
conclusion; the disciplinary authority proceeded to impose upon the
petitioner, the penalty of removal from service. Thereafter, vide a
corrigendum, dated 02-01-2024; the penalty of removal from service as
imposed upon the petitioner was specified to be so imposed w.e.f. 02-01-
2024. The enquiry officer having only dealt with one of the allegations
levelled against the petitioner, herein, in the Show Cause Notice, dated 09-
07-2023; it is to be examined by this Court that if the same can be held to
have been established in the enquiry. This Court would also examine as to
whether basing on the sole allegation held to be established in the enquiry
against the petitioner, herein; the penalty of removal from service, would
be permissible to be imposed upon him.
35. A perusal of the materials brought on record in the enquiry, more
particularly, the deposition of said Yasin Ali therein, would go to reveal that
Page No.# 18/26
the allegations levelled against the petitioner of having extorted from him,
an amount of Rs. 30,000/-, in addition, to an amount of Rs. 220/-; was
established in the enquiry. The petitioner had, admittedly, not cross-
examined Sri Yasin Ali who had deposed in the enquiry, as PW-1. The
evidence of said Yasin Ali establishes the fact that the petitioner who was a
police officer and that too, in the rank of a Sub-Inspector, had resorted to
extortion of money and thereby, had committed a criminal misconduct.
Accordingly, in the considered view of this Court, the said allegations
levelled against the petitioner, herein, and proved in the enquiry, can form
the basis for imposition of the penalty of removal from service, in-as-much
as, the petitioner is a member of the disciplined force and has a code of
conduct set-out in the matter to be followed, which he had clearly violated.
36. Accordingly, in the considered view of this Court; the penalty of
removal from service as imposed upon the petitioner, herein, by the
disciplinary authority vide order, dated 02-01-2024, even if considered to
have been so done solely on the basis of the allegations levelled against
him, qua the extortion of money made by him from said Yasin Ali; the same
having been established, the penalty, in question, cannot be held to have
been so imposed without there being any basis for the same.
37. The petitioner, herein, in the appeal preferred in the matter, had only
highlighted the inconsistencies in the depositions of the prosecution
witnesses appearing in the enquiry. The appellate authority, vide order,
dated 23-02-2024, on noticing the said contention of the petitioner; had
rightly rejected the same and upheld the penalty imposed upon the
petitioner by the appellate authority.
Page No.# 19/26
38. Having drawn the above conclusions; this Court notices that it is a
settled position of law that the power of judicial review exercised by this
Court under Article 226 of the Constitution of India, with regard to the
disciplinary proceeding and order passed therein, is not an appeal, but, a
review of the manner in which the decision is made. This court, while
exercising its power of judicial review, is to ensure that the delinquent had
received fair treatment and not to ensure that the conclusions which the
authority reaches, is necessarily correct in the eye of the court. When an
enquiry is conducted on charges of misconduct by a delinquent, the Court
is concerned to determine whether the enquiry was held by a competent
officer, or, whether the rules of natural justice are complied with. This Court
is also required to examine whether the findings, or, conclusions, are based
on some evidence and the authority entrusted with the power to hold the
enquiry had the jurisdiction, power and authority to reach a finding of fact
or conclusion. Neither, the technical rules of evidence act, nor, of proof of
fact, or, evidence as defined, therein, apply to a disciplinary proceeding.
When the authority accepts that evidence and conclusions received support
thereon, the disciplinary authority is entitled to hold that the delinquent
officer is guilty of the charge. This Court, in its power of judicial review,
does not act as an appellate authority to re-appreciate the evidence and to
arrive at its own independent findings on the evidence. This Court may
interfere in a matter where the authority held the proceedings against the
delinquent in a manner inconsistent with the rules of natural justice, or, in
violation of statutory rules prescribing the mode of enquiry. It is also
permissible for this Court to interfere with the conclusions and findings of a
disciplinary authority, in the event, the same is based on no evidence. The
disciplinary authority is the sole judge of the facts and the appellate
authority also has co-extensive power to re-appreciate the evidence, or, the
Page No.# 20/26
nature of punishment. The adequacy of evidence, or, reliability of evidence,
also cannot be permitted by this Court to be canvassed by the delinquent.
39. Having noticed the powers of this Court while examining, in exercise
of its power of judicial review, the orders of a disciplinary authority; this
court, in the present proceeding, does not find any violation of the
principles of natural justice. The petitioner, in the enquiry, is found to have
been extended with all due opportunity to defend his case as well as cross-
examine the witnesses. The petitioner had exercised his right of cross-
examination selectively and as noticed hereinabove, during the cross-
examination so made; the allegations levelled against the petitioner,
herein, was further reiterated.
40. The deposition of said Yasin Ali as PW-1, in the enquiry, having not
been refuted by the petitioner, herein, by cross-examining him; the said
evidence having established the misconduct committed on the part of the
petitioner, this Court finds no perversity with regard to the conclusions so
drawn, thereon, by the enquiry officer in the enquiry report and the
disciplinary authority in its order, dated 02-01-2024.
41. Having drawn the above conclusions, this Court notices that
pertaining to the allegations levelled against the petitioner, herein, in the
Show Cause Notice, dated 09-07-2023, of purportedly extorting money
from said Yasin Ali, a criminal proceeding, thereon, was also instituted
against the petitioner basing on an First Information Report(FIR) lodged by
said Yasin Ali. The police on receipt of the said First Information
Report(FIR), had registered Baithalangso Police Station Case No. 35/2023.
Page No.# 21/26
On conclusion of the investigation, thereon, the police had lodged a charge-
sheet against the petitioner, herein, and other accused persons under
Section 341/384/409/465/201/120(B) of the Indian Penal Code. The Court
of learned Judicial Magistrate, First Class, West Karbi Anglong, Hemren,
upon consideration of the petition filed by the petitioner and other accused
persons for their discharge in the matter, had, vide order, dated 21-11-
2024, proceeded to discharge the petitioner and other accused persons by
drawing a conclusion that there was no sufficient material to prove the
offence alleged against the petitioner, herein, and other accused persons.
42. Mr. Khan, learned counsel, by projecting that the enquiry officer only
having drawn his conclusions with regard to the allegation levelled against
the petitioner, herein, in the Show Cause Notice, dated 09-07-2023, of the
purported extortion made by him from said Yasin Ali and basing on the
same allegation; the petitioner, having been discharged from the criminal
proceeding drawn against him, the conclusions drawn by the enquiry officer
in the enquiry report, in this connection, would not mandate acceptance
and accordingly, the order, dated 02-01-2024, passed by the disciplinary
authority, would mandate an interference by this Court.
43. In support of his submissions, Mr. Khan, learned counsel for the
petitioner, as noted-above, has placed reliance on the decisions of the
Hon’ble Supreme Court in the case of G.M.Tank(supra) and Ram Lal
(supra).
44. At this stage, it is to be noted that the petitioner, herein, was
discharged by the learned trial Court from the criminal charges in the
Page No.# 22/26
criminal case levelled against him, at the stage of framing of charge.
45. The Hon’ble Supreme Court in the case of G.M.Tank (supra), in the
facts of the said case, had held that the departmental case and the criminal
case involved therein, were based on identical and similar set of facts and
the charges in the departmental case against the appellant and the charge
before the criminal court, were one and the same and the case being one
of no evidence and the witnesses being the same in both the proceedings
and the appellant involved therein, having been acquitted in the criminal
case; the Hon’ble Supreme Court had held that under such circumstances,
it would be unjust and unfair and rather oppressive to allow the findings
recorded in the departmental proceeding against the appellant, therein, to
stand.
46. The Hon’ble Supreme Court while recording the said conclusion in the
case of G. M.Tank(supra), had also noted that the petitioner was acquitted
in the criminal proceeding after a regular trial and/or on hot contest. The
relevant conclusions of the Hon’ble Supreme Court in the matter, as
available in paragraph No. 31, is extracted hereinbelow:
“31. In our opinion, such facts and evidence in the departmental as well as criminal
proceedings were the same without there being any iota of difference, the appellant
should succeed. The distinction which is usually proved between the departmental
and criminal proceedings on the basis of the approach and burden of proof would not
be applicable in the instant case. Though the finding recorded in the domestic enquiry
was found to be valid by the courts below, when there was an honourable acquittal of
the employee during the pendency of the proceedings challenging the dismissal, the
same requires to be taken note of and the decision in Paul Anthony case will apply.
We, therefore, hold that the appeal filed by the appellant deserves to be allowed.”
47. The decision of the Hon’ble Supreme Court in the case of
G.M.Tank(supra) was considered by the Hon’ble Supreme Court in one of
Page No.# 23/26
its recent decision in the case of Ram Lal(supra). The Hon’ble Supreme
Court, in this connection, had proceeded to draw the following conclusions:
“Effect of acquittal in the criminal proceeding – Question 2
25. With this above background, if we examine the criminal proceedings the following
factual position emerges. The very same witnesses, who were examined in the
departmental enquiry were examined in the criminal trial. Jagdish Chandra, Bhawani
Singh, Shravan Lal, Raj Singh and Karan Sharma were examined as PW 2, PW 3, PW
6, PW 9 and PW 13 respectively at the criminal trial. Apart fromthem, eight other
witnesses were also exam ed. The gravamen of the charge in the criminal case was
that the appellant had submitted an application for recruitment along with his
marksheet and he, by making alteration in his date of birth to reflect the same as 24-
4-1972 in place of 21-4-1974, and obtained recruitment to the post of Constable.
26. Though the trial court convicted the appellant under Section 420 IPC, the
appellate court recorded the following crucial findings while acquitting the appellant:
“…Mainly the present case was based on the documents so this effect
whether the date of birth of accused is 21-4-1972 or 21-4-1974. Ext. P-3 is
original marksheet, in which, the date of birth of accused has been shown as
21-4-1972 and same has also been proved by the witnesses examined on behalf
of the prosecution. Whatever the documents have been produced before the
court regarding the date of birth of 21-4-1974 are either the letters of Principal
or are duplicate TC or marksheets. Neither the prosecution has produced any
such original documents in the subordinate court to this effect that when the
admission form of accused was filled, what date of birth was mentioned by the
accused in it, what was the date of birth in Roll Register of School, what date
of birth was mentioned by accused in the examination form of Secondary, and
nor after bringing the original records from the witnesses concerned, same
were got proved in the evidence. In these circumstances, this fact becomes
doubtful that date of birth of the accused was 21-4-1974, and the accused is
entitled to receive its benefit. In the considered opinion of this Court, the
conviction made by the learned subordinate court merely on the basis of oral
evidence and letters or duplicate documents, is not just and proper. It is
justifiable to acquit the accused.
Resultantly, on the basis of aforesaid consideration, the present appeal
filed by the appellant-accused is liable to be allowed.”
(emphasis supplied)
27. What is important to notice is that the Appellate Judge has clearly recorded that
in the document Ext. P-3 original marksheet of the 8 th standard, the date of birth was
clearly shown as 21-4-1972 and the other documents produced by the prosecution
were either letters or a duplicate marksheet. No doubt, the Appellate Judge says that
it becomes doubtful whether the date of birth was 21-4-1974 and that the accused
was entitled to receive its benefit. However, what we are supposed to see is the
substance of the judgment. A reading of the entire judgment clearly indicates that the
appellant was acquitted after full consideration of the prosecution evidence and after
noticing that the prosecution has miserably failed to prove the charge (see S.
Samuthiram).
28. Expressions like “benefit of doubt” and “honourably acquitted”, used in judgments
are not to be understood as magic incantations. A court of law will not be carried
Page No.# 24/26
away by the mere use of such terminology. In the present case, the Appellate Judge
has recorded that Ext. P-3, the original marksheet carries the date of birth as 21-4-
1972 and the same has also been proved by the witnesses examined on behalf of the
prosecution. The conclusion that the acquittal in the criminal proceeding was after
full consideration of the prosecution evidence and that the prosecution miserably
failed to prove the charge can only be arrived at after a reading of the judgment in its
entirety. The Court in judicial review is obliged to examine the substance of the
judgment and not go by the form of expression used.
29. We are satisfied that the findings of the Appellate Judge in the criminal case
clearly indicate that the charge against the appellant was not just, “not proved” in
fact the charge even stood “disproved” by the very prosecution evidence. As held by
this Court, a fact is said to be “disproved” when, after considering the matters before
it, the court either believes that it does not exist or considers its non-existence so
probable that a prudent man ought, under the circumstances of the particular case,
to act upon the supposition that it does not exist. A fact is said to be “not proved”
when it is neither “proved” nor “disproved”(see Vijayee Singh v. State of U.P.).
30. We are additionally satisfied that in the teeth of the finding of the Appellate
Judge, the disciplinary proceedings and the orders passed thereon cannot be allowed
to stand. The charges were not just similar but identical and the evidence, witnesses
and circumstances were all the same. This is a case where in exercise of our
discretion, we quash the orders of the disciplinary authority and the appellate
authority as allowing them to stand will be unjust, unfair and oppressive. This case is
very similar to the situation that arose in G.M. Tanks.”
48. Applying the decisions rendered by the Hon’ble Supreme Court in the
case of G.M.Tank(supra) and Ram Lal(supra), to the facts of the present
case; it is seen that the petitioner in the present case, was discharged from
the criminal charge levelled against him at the stage of framing of charge.
It is a settled position of law that the trial Court in a criminal proceeding, at
the stage of framing of charge, only assesses whether there is a prima facie
case against the accused, meaning ‘sufficient evidence’, to proceed against
the trial. If the Court finds that the evidence brought on record by the
investigating agency is weak or lacking, it may discharge an accused. At
that stage, it cannot be conclusively said that the accused’s guilt, or,
innocence, has been decided, rather, the same pertains to the fact whether
the prosecution had now presented enough evidence to warrant a trial.
Page No.# 25/26
49. In the case on hand, it is to be noted that the discharge of the
petitioner, herein, had occasioned at the stage of charge framing. The
learned trial Court having discharged the petitioner at the initial stage of
the trial, there was no occasion for the learned trial Court to examine the
evidences that would have come on record, in the event, a trial was held in
the criminal proceeding so instituted against the petitioner. Accordingly, the
order of discharge of the petitioner passed by the learned trial Court,
admittedly, not being in pursuance of a regular trial, and/or, on hot contest;
this Court is of the considered view that in the light of the decisions of the
Hon’ble Supreme Court holding the field in the matter that the power of the
disciplinary authority, under such circumstances, to hold a disciplinary
inquiry in the matter, is not denuded. Further, the said discharge of the
petitioner in the criminal proceedings, in the facts and circumstances
involved in the present proceeding, would have no bearing on the already
concluded departmental proceeding against the petitioner, herein.
50. Accordingly, this Court is of the considered view that the decisions of
the Supreme Court of India in the case of G.M.Tank(supra) and Ram Lal
(supra), will have no application to the facts of the present matter.
51. In view of the above discussions; this Court holds that the said
discharge of the petitioner, herein, would have no consequence on the
concluded departmental proceedings, involved in the matter. This Court
further by noticing the conclusions drawn by the enquiry officer in his
enquiry report and the conclusions drawn by the disciplinary authority, in
its order, dated 02-01-2024, even, by limiting the same to the allegation
levelled against the petitioner in the Show Cause Notice, dated 09-07-
Page No.# 26/26
2023, pertaining to the purported extortion of money made by him from
said Yasin Ali on 31-05-2023, the same having demonstrated commission
of misconduct by the petitioner, herein; the penalty of removal from service
imposed upon the petitioner, in the considered view of this Court, is not
disproportionate to the allegations levelled against the petitioner in the said
Show Cause Notice, dated 09-07-2023, and established in the enquiry.
Accordingly, the penalty imposed upon the petitioner, herein, would not
mandate any interference from this Court.
52. In the above view of the matter; this Court is of the considered view
that the instant writ petition is held to be devoid of any merit and the
same, consequently, stands dismissed. However, there shall be no order as
to costs.
JUDGE
Comparing Assistant