Gauhati High Court
WP(C)/5460/2020 on 22 July, 2025
GAHC010180892020
2025:GAU-AS:10003
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
W.P.(C) NO.5460 OF 2020
Sri Upendra Nath Sarmah,
S/o- Late Sashidhar Sarmah,
R/o- Prafulla Enclave, Flat no.5/E/3
Namghar Path, Panjabari, Guwahati,
Dist- Kamrup(M).
.......Petitioner
-Versus-
1. The State of Assam, represented by
the Commissioner & Secretary to the
Government of Assam, Home
Department, Dispur, Guwahati-781006,
Kamrup(M).
2. Director General of Police, Assam, Ulubari,
Guwahati, Assam.
3. The Special Director General of Police
(Border), Assam, Srimantapur,
Bhangagarh, Guwahati-32.
4. Deputy Inspector General of Police (CR)
Diphu, Karbi Anglong, Assam.
5. Superintendent of Police (Border),
Srimantapur, Guwahati-781032.
6. Superintendent of Police, District- Nagaon,
PIN. No. 782001.
.......Respondents
Page 1 of 25
-BEFORE-
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
For the Petitioner(s) : Mr. S. Borthakur, Advocate.
For the Respondent(s) : Mr. J.K. Goswami, Additional Senior
Government Advocate, Assam.
Date of Hearing : 22.07.2025.
Date of Judgment : 22.07.2025.
JUDGMENT & ORDER (ORAL)
Heard Mr. S. Borthakur, learned counsel
appearing for the petitioner. Also heard Mr. J. K. Goswami,
learned Additional Senior Government Advocate, Assam,
appearing for the State respondents.
2] By way of this petition under Article 226 of the
Constitution of India, the petitioner is assailing the order
dated 24.05.2000, issued by the Superintendent of Police,
Nagaon, whereby the petitioner was awarded the punishment
of stoppage of 2 (two) increments with cumulative effect, and
the order dated 20.09.2020, passed by the Deputy Inspector
General of Police (CR) Diphu, Assam, whereby the appeal
preferred against the order dated 24.05.2000 was rejected,
thereby upholding the order passed by the disciplinary
authority.
3] The brief facts of the case are that while the
petitioner was posted at Dhing P.S. as Officer-in-Charge, by
letter dated 27.11.1999, the Superintendent of Police,
Nagaon, issued a show-cause notice along with the statement
Page 2 of 25
of allegation under Section 7 of the Police Act (Act-V), 1861,
read with Rule 66 of the Assam Police Manual, Part-III, and
Article 311 of the Constitution of India, for inter-alia allegedly
not handing over 16 case diaries to his successor at the time
of handing over the charge of Dhing P.S. Accordingly, the
petitioner was charged with misconduct and gross negligence
of duty. Thereafter, the petitioner submitted his written
statement on 10.12.1999, wherein he denied the allegation
and requested to exonerate him from the charges leveled.
Thereafter, a disciplinary proceeding was held by the enquiry
officer, and after completion of the same, the enquiry officer
submitted its report. Thereafter, the disciplinary authority,
i.e., the Superintendent of Police, Nagaon, Assam, after
perusing the findings submitted by the enquiry officer, found
him guilty of the irregularities charged and accordingly, by
order dated 24.05.2000, awarded the penalty of stoppage of
2 (two) annual increments with cumulative effect. It is the
specific case of the petitioner that the enquiry was held in his
back, and he had no knowledge of the disciplinary
proceedings, and that prior to his retirement on 31.01.2020
as Inspector of Police, Border Branch, Assam, upon receiving
the letter dated 13.01.2020, issued by the respondent No.5
whereby the annual service increment of the petitioner was
regularized with an endorsement in Clause 2 that pay raised
from Rs. 5080/- to Rs.5200/- w.e.f., 01.07.2002 instead of
Rs.5375/- as he was awarded the subject penalty in
connection with Departmental Proceeding No.12/1999 vide
D.O. No.1725 dated 24.05.2000, he for the first time learned
that he was awarded the aforesaid punishment. Accordingly,
Page 3 of 25
the petitioner preferred an appeal before the DIG (CR),
Diphu, being the appellate authority against the aforesaid
order; however, the same was rejected by order dated
20.09.2020. Situated thus, the present writ petition has been
filed.
4] Mr. S. Borthakur, learned counsel appearing for the
petitioner, submits that the impugned order dated 24.05.2000
was never communicated to the petitioner until he received
the order dated 13.01.2020 from the Superintendent of Police
(Border), wherefrom it had been revealed that penalty was
awarded to him way back in the year 2000. He further
submits that the procedure stipulated in Clause (e) and (f) of
Rule 66 of the Assam Police Manual Part-III has completely
been violated by the disciplinary authority, and the appellant
authority has hardly discussed anything as regards the same
in the impugned order. He further submits that no opportunity
was given to cross-examine the listed witnesses. By relying on
the WT Message dated 03.03.2000, 06.03.2000, and
24.03.2000, he further submits that none of the eyewitnesses
were examined in the presence of the petitioner. He further
submits that since the petitioner was not given the
opportunity to cross-examine the witnesses, there has been a
complete violation of the principles of natural justice and the
rules applicable in the field. He further submits that no
presenting officer was appointed, and the enquiry officer
himself examined the witnesses and exhibited the documents
and, in fact, led the witnesses to prove the charge, as evident
from the enquiry report dated 23.05.2000. He further submits
Page 4 of 25
that the enquiry officer has acted beyond his jurisdiction, and
therefore, the departmental proceeding conducted by the
enquiry officer is in violation of the principles of natural
justice, and on this score alone, the order dated 24.05.2000
should be interfered with. He further submits that the enquiry
report was not served to the petitioner, and the respondent
No.6 in her affidavit did not rebut the said pleadings. He
further submits that since the petitioner was not provided
with the list of documents enclosed to the show-cause notice
dated 27.11.1999, the enquiry proceeding is in gross violation
of the principles of natural justice. He further submits that the
Photostat copy of the handing over of the case diaries by the
petitioner to the new O.C. R.K. Dowarah on 28.07.1999,
10.12.1999, and 27.12.1999, along with the enquiry report,
was also not furnished to the petitioner by the enquiry officer
during the proceeding, and the enquiry officer relied upon the
aforesaid documents in order to prove the charge against the
petitioner. He further submits that the penalty imposed under
the impugned order is not prescribed under Rule 66 of the
said Manual, and therefore, the aforesaid penalty could not
have been imposed upon the petitioner.
5] In support of his above submissions, he relied upon
the following case laws: –
(i) Dulu Devi v. State of Assam and Ors., reported in
(2016) 1 SCC 622,
(ii) Rahul Kumar v. Union of India, reported in 2018 SCC
Online Gau 1620,Page 5 of 25
(iii) State Bank of India v. T.J. Paul, reported in (1999) 4
SCC 759,
(iv) State of Rajasthan v. Bhupendra Singh, reported in
2024 SCC Online 1908,
(v) Anil Baishya v. State of Assam and Ors., reported in
(2014) 4 GLR 111,
(vi) Union of India v. Ram Lakhan Sharma, reported in
(2018) 7 SCC 670,
(vii) Union of India v. Mohd. Ramzan Khan, reported in
(1991) 1 SCC 588,
(viii) Management Director, ECIL, Hyderabad v. B.
Karunakar & Ors., reported in (1993) 4 SCC 727,
(ix) Chandrama Tewari v. Union of India, reported in
1987 (Supp) SCC 518.
6] Mr. J. K. Goswami, learned Additional Senior
Government Advocate, appearing for the State respondents,
submits in his usual fairness that from the office note and the
records of Departmental Proceeding No.12/1999 dated
24.05.2000, drawn up against the petitioner, there is no
evidence found to indicate that the order dated 24.05.2000
was communicated to the petitioner. However, he submits
that the opportunity to cross-examine the listed witnesses
was given to the petitioner during the departmental
proceeding. By drawing the attention of this Court to page
Nos. 38, 39, 40 and 41 of the records, he further submits that
the statement of the prosecuting witnesses, being recorded
by the enquiry officer, the enquiry officer asked the
Page 6 of 25
delinquent petitioner, whether he wanted to cross-examine,
but the delinquent petitioner denied to cross-examine the said
witnesses. He further submits that it is evident from the
records that the petitioner was present during the cross-
examination of the witnesses during the departmental
proceedings. As regards the appointment of the presenting
officer, he submits that no appointing officer was appointed
for the enquiry of the departmental proceedings. He further
submits that the list of documents alleged to have not been
provided to the petitioner appears to have been given to the
petitioner from the records.
7] I have given my prudent consideration to the
arguments advanced by the learned counsel for both the
contending parties and perused the material, including the
record of the departmental proceeding in question, as placed
by the learned counsel for the State respondents. I have also
considered the written arguments submitted by both the
counsels as well as the case laws cited at the bar.
8] Apt to refer to the impugned order dated
24.05.2000, which is annexed as Annexure-A to the affidavit
in opposition filed on behalf of respondent No.6, which read
as under: –
“Government of Assam
OFFICE OF THE SUPERINTENDENT OF POLICE
Nagaon Assam-782001
EXTRACT COPY OF D.O. NO.1725 DATED 24.05.2000
Page 7 of 25
The following order passed on the Note sheet
page No. 5 & 6 in connection with D.P. No. 12/99
against SI(UB) Upendra Nath Sarmah of this DEF.
“Perused the findings submitted by the E.O.
Shri K.K. Baishya, APS, Addl. S.P. (S), Nagaon in
connection with DP No. 12/99 drawn up against
S.I.(UB) Upendra Nath Sarmah of Nagaon DEF and
found that he is found guilty of two irregularities.
1. He showed 7 (seven) Cases disposed off but
in actually, they were not disposed off and
were not sent to the Court, which is highly
illegal. He committed this being as O/C of a P.S.
2. He did not hand over various Cases pending
with him despite his transfer from Dhing PS. He
handed over various cases after five months of
his transfer. He has not yet handed over 6 (six)
Cases even after one year of his transfer from
Dhing PS.
Hence, it is clear beyond reasonable doubt that he
has committed an unpardonable mistake which not
only compromises the discipline of the force but it also
defeats the basic purpose of the speedy and impartial
trail of the cases before the Court.
Hence, S.I (UB) Upendra Nath Sarmah is awarded
stoppage of two annual increments with commutative
effect. He is also awarded one Black Mark. He is
directed to hand over remaining 6 (six) cases still
pending with him within 10 (ten) days and report
compliance otherwise further punishment will be
awarded to him. D.P. No. 12/99 stands disposed off.
Sd/- S.N. Singh, IPS
Superintendent of Police,
Nagaon, Assam.”
9] It appears that the petitioner was charged for
committing two irregularities, i.e., “(i) he showed 7 (seven)
cases disposed of, but in actuality, they were not disposed of
and were not sent to the court, which is highly illegal, and he
committed this being O/C of a police station, & (ii) he did not
hand over various cases pending with him despite his transfer
Page 8 of 25
from Dhing P.S. He handed over various cases after five
months of his transfer, and he has not handed over 6 (six)
cases even after one year of his transfer from Dhing P.S.”,
and the aforesaid charges have been found to be established
in the enquiry held by the enquiry officer. It further appears
that the disciplinary authority, after perusing the enquiry
report submitted by the enquiry officer, upon being satisfied
that the same being an unpardonable mistake, which not only
compromises the discipline of the force but also defeats the
basic purpose of the speedy and impartial trial of the case
before the court, awarded the petitioner with stoppage of two
annual increments with cumulative effect and one Black Mark.
It appears that though an appeal against the aforesaid order
was passed, the same was rejected by the appellate authority
by order dated 20.09.2020. The order dated 20.09.2020, read
as under: –
“OFFICE OF THE DEPUTY INSPECTOR GENERAL OF
POLICE: (CENTRAL RANGE)
ASSAM:::DIPHUORDER
Perused the appeal petition vide Memo
No. SDGP (B)/R/42/Vol-XV/2020/65 Dtd, 30-01-
2020 of Insp (Ult) Upendra Nath Sarmah (the then SI
(UB) of Nagaon DEF) forwarded by the Superintendent
of Police, (B), Srimantapur, Guwahati and the
connected papers of D.P. No. 12/1999, considering
the ground for delay in making the appeal to the
undersigned.
After carefully observing the relevant
papers of D.P No. 12/1909 file, it is seen that the
findings submitted by the enquiry officer of the said
DP is satisfactory Since the delinquent did not submit
7 (seven) nos, of case diaries to the Hon’ble Court at
the time after being shown disposed off. Further he
Page 9 of 25
did not submit another 6 (six) nos. of case diaries after
1 (one) year of his transfer which is highly not
accepted in a disciplined force. Hence, I stand with
the order of the then Superintendent of Police, Nagaon.
The appeal petition is disposed off
accordingly.
Sd/-
Deputy Inspector General of Police, (CR)
Assam, Diphu”
10] The issues that falls for determination in the instant
writ petition are: (i) whether the enquiry report was
communicated to the petitioner, and if not, whether the same
vitiates the departmental proceedings, and the penalty
imposed thereof, and/or, (ii) whether the presenting officer
was appointed, and if not, whether the same vitiates the
enquiry proceedings, and/or, (iii) whether the impugned
penalty order was served to the petitioner, and if not, the
consequences thereof, and/or, (iv) whether the petitioner was
provided with the list of documents relied by the enquiry
officer to hold the petitioner guilty of the charged offence,
and if not whether the same is in violation of natural justice,
and/or, (v) whether the petitioner was provided opportunity
to cross-examine the witnesses adduced on behalf of the
respondents to prove the charges leveled against the
petitioner, and if not, whether the same vitiates the
departmental proceedings.
11] As regards the first and second issues, namely non-
communication of the enquiry report to the petitioner and
non-appointment of the presenting officer, Mr. J. K. Goswami,
learned Additional Senior Government Advocate, Assam,
appearing for the State respondents, has fairly concededPage 10 of 25
before this Court that there are no evidence in the record to
indicate either that the subject enquiry report submitted by
the enquiry officer was communicated to the petitioner or that
a presenting officer was appointed in the enquiry in question
held against the petitioner.
12] Apt at this outset to refer to the relevant paragraphs
of the affidavit-in-opposition submitted on behalf of the
respondent No.6 on 24.03.2023, which read as under: –
“6. That with regard to the statements made in
paragraphs 5 of the writ petition the deponent begs to
state that as per record of the District Order Book, in
D.O. No. 1725 dated 24/05/2000 the petitioner was
found guilty of 2 (two) irregularities :-
(i) “He showed 7 (seven) cases disposed off but
in actually, they were not sent to the court,
which is highly illegal. He committed this being
as O/C of a PS.
(ii) He did not handover various cases pending
with him despite his transfer from Dhing PS. He
handed over various cases after 5 (five) month
of his transfer. He has not yet handed over 6
(six) cases after one year of his transfer from
Dhing PS.
Hence it is clear beyond reasonable doubt that
he has committed an unpardonable mistake which not
only compromises the discipline of the force but it also
defeats the basic purpose of the speedy and impartial
trial of the cases before the case.
Hence, SI (UB) Upendra Nath Sarma is awarded
stoppage of two annual increments with cumulative
effect. He is also awarded one Black Mark”.
It is also found that the petitioner submitted an
appeal to the Deputy Inspector General of Police (CR),
Diphu, Assam, against the award of punishment i.e.
award of stoppage of 2 (two) Annual Increments with
cumulative effect on 27.01.2020 through the
Page 11 of 25
Superintendent of Police (Border), Assam,
Srimantapur, Guwahati.
However, the Deputy Inspector General of Police
(CR), Diphu, Assam, did not accept his appeal &
maintained the Order of the Superintendent of Police,
Nagaon, vide his order No. CR/57-NGN/2020/1503-
06 dated 20th Sept, 2020.
7. That with regard to the statements made in
paragraph 6 of the writ petition the deponent begs to
state that as per records as evident in the First Show
Cause Notice to the petitioner, issued by the
Superintendent of Police, Nagaon, vide M/No.
R/6708/99 dated 27.11.1999, the list of documents
& list of witnesses had been served to the petitioner
along with the Show Cause Notice which was received
by the petitioner on 01.12.1999 by putting his
signature.
8. That with regard to the statements made in
paragraph 7 of the writ petition the deponent begs to
state that as per record, on 10.12.1999, the petitioner
submitted his written statement to the Superintendent
of Police, Nagaon, in defence requesting him to
exonerate him from the charges framed against him.
9. That with regard to the statements made in
paragraph 8 of the writ petition the deponent begs to
state that as per record, it is found that Sri Chandra
Kt. Baruah, the then Inspector of Police, CI (West),
Batadrava, Nagaon, was appointed Enquiry Officer of
DP No. 12/99 vide DO No. 3806 dated 19.12.1999.
However, the DP file was returned by him since
he was cited as one of the prosecuting witnesses in
the said DP.
Hence, the enquiry of the DP was entrusted to
Sri K. K. Baishya, APS, the then Addl. SP (S), Nagaon,
as Enquiry Officer vide DO No. 259 dated 27.01.2000.
Accordingly, the Addl. SP (S), Nagaon, issued 03
(three) notices to the petitioner and the prosecuting
witnesses to appear before him in his office chambers
to depose their statements in connection with the
above mentioned DP on 04.03.2000, 07.03.2000 &
27.03.2000. It may be noted that during this period
the petitioner was posted at Police Reserve, Nagaon.
Page 12 of 25
On completion of the enquiry, the EO submitted his
findings dated. 23rd May 2000.
Hence, the question of providing no
opportunities to the petitioner does not arise. Further,
regarding pressure exerted by Sri K. K. Baishya, APS,
the then Addl. SP (S), Nagaon, upon the petitioner is
not a fact.
10. That with regard to the statements made in
paragraph 9 of the writ petition the deponent begs to
state that as per record, the Show Cause Notice along
with the lists of documents and prosecuting witnesses
proposed were duly received by the petitioner. As per
record, the Enquiry Officer of DP No. 12/99 recorded
the statements of the prosecuting witnesses in
presence of the petitioner. The petitioner was given the
opportunity to cross examine the prosecuting
witnesses to which the petitioner declined. The
statements so recorded by the Enquiry Officer in
presence of the petitioner were duly signed by him
after he had adduced his reply.
11. That with regard to the statements made in
paragraph 10 of the writ petition the deponent begs to
state that no Presenting Officer for enquiry of the DP
was appointed. Further, the petitioner was given all
opportunities to examine/cross examine the charges,
the listed documents, the listed witnesses and present
his case as per the rules/ procedure.
12. That with regard to the statements made in
paragraph 11 of the writ petition the deponent begs to
state that the petitioner was found guilty of 2 (two)
irregularities as mentioned in the copy of the D.O. No.
1725 dated 24.05.2000 therefore the question of
devoid of any reason does not arise.
13. That with regard to the statements made in
paragraphs 12, 13, 14, 15, 16, 17, 18 and 19 of the
writ petition the deponent has no comments to offer.”
13] Reading the aforesaid paragraphs, it is apparent that
the respondent No.6 is silent as regards the allegation of the
petitioner to the effect that the impugned order of the
disciplinary authority was not communicated to him, and also
Page 13 of 25
as regards the allegation of non-appointment of presenting
officer.
14] Apt to refer to the decision of the Apex Court in the
case of Mohd. Ramzan Khan (Supra), wherein the Apex
Court has held that a delinquent employee is entitled to a
copy of the enquiry report submitted by the enquiry officer to
the disciplinary authority and to make a representation
against it, and non-furnishing of the same to the delinquent
would be violative of the principles of natural justice, thereby
rendering the final order invalid. Paragraph Nos.13 to 18 of
the aforesaid judgment read as under: –
“13. Several pronouncements of this Court dealing
with Article 311(2) of the Constitution have laid down
the test of natural justice in the matter of meeting the
charges. This Court on one occasion has stated that
two phases of the inquiry contemplated under Article
311(2) prior to the Forty-second Amendment were
judicial. That perhaps was a little stretching the
position. Even if it does not become a judicial
proceeding, there can be no dispute that it is a quasi-
judicial one. There is a charge and a denial followed
by an inquiry at which evidence is led and
assessment of the material before conclusion is
reached. These facets do make the matter quasi-
judicial and attract the principles of natural justice. As
this Court rightly pointed out in the Gujarat case, the
disciplinary authority is very often influenced by the
conclusions of the Inquiry Officer and even by the
recommendations relating to the nature of punishment
to be inflicted. With the Forty-second Amendment, the
delinquent officer is not associated with the
disciplinary inquiry beyond the recording of evidence
and the submissions made on the basis of the
material to assist the Inquiry Officer to come to his
conclusions. In case his conclusions are kept away
from the delinquent officer and the Inquiry Officer
submits his conclusions with or withoutPage 14 of 25
recommendation as to punishment, the delinquent is
precluded from knowing the contents thereof although
such material is used against him by the disciplinary
authority. The report is an adverse material if the
Inquiry Officer records a finding of guilt and proposes
a punishment so far as the delinquent is concerned. In
a quasi-judicial matter, if the delinquent is being
deprived of knowledge of the material against him
though the same is made available to the punishing
authority in the matter of reaching his conclusion,
rules of natural justice would be affected. Prof. Wade
has pointed out:
‘The concept of natural justice has existed for many
centuries and it has crystallised into two rules: that no
man should be judge in his own cause; and that no man
should suffer without first being given a fair hearing….
They (the courts) have been developing and extending the
principles of natural justice so as to build up a kind of
code of fair administrative procedure, to be obeyed by
authorities of all kinds. They have done this once again,
by assuming that Parliament always intends powers to be
exercised fairly.’
14. This Court in Mazharul Islam Hashmi v. State of
U.P. pointed out:
„Every person must know what he is to meet and he must
have opportunity of meeting that case. The legislature,
however, can exclude operation of these principles
expressly or implicitly. But in the absence of any such
exclusion, the principle of natural justice will have to be
proved.’
15. Deletion of the second opportunity from the
scheme of Article 311(2) of the Constitution has
nothing to do with providing of a copy of the report to
the delinquent in the matter of making his
representation. Even though the second stage of the
inquiry in Article 311(2) has been abolished by
amendment, the delinquent is still entitled to represent
against the conclusion of the Inquiry Officer holding
that the charges or some of the charges are
established and holding the delinquent guilty of such
charges. For doing away with the effect of the enquiry
report or to meet the recommendations of the Inquiry
Officer in the matter of imposition of punishment,
Page 15 of 25
furnishing a copy of the report becomes necessary
and to have the proceeding completed by using some
material behind the back of the delinquent is a
position not countenanced by fair procedure. While by
law application of natural justice could be totally ruled
out or truncated, nothing has been done here which
could be taken as keeping natural justice out of the
proceedings and the series of pronouncements of this
Court making rules of natural justice applicable to
such an inquiry are not affected by the Forty-second
Amendment. We, therefore, come to the conclusion
that supply of a copy of the inquiry report along with
recommendation, if any, in the matter of proposed
punishment to be inflicted would be within the rules of
natural justice and the delinquent would, therefore, be
entitled to the supply of a copy thereof. The Forty-
second Amendment has not brought about any
change in this position.
16. At the hearing some argument had been advanced
on the basis of Article 14 of the Constitution, namely,
that in one set of cases arising out of disciplinary
proceedings furnishing of the copy of the inquiry
report would be insisted upon while in the other it
would not be. This argument has no foundation
inasmuch as where the disciplinary authority is the
Inquiry Officer there is no report. He becomes the first
assessing authority to consider the evidence directly
for finding out whether the delinquent is guilty and
liable to be punished. Even otherwise, the inquiries
which are directly handled by the disciplinary
authority and those which are allowed to be handled
by the Inquiry Officer can easily be classified into two
separate groups one, where there is no inquiry report
on account of the fact that the disciplinary authority is
the Inquiry Officer and inquiries where there is a
report on account of the fact that an officer other than
the disciplinary authority has been constituted as the
Inquiry Officer. That itself would be a reasonable
classification keep-ing away the application of Article
14 of the Constitution.
17. There have been several decisions in different
High Courts which, following the Forty-second
Amendment, have taken the view that it is no longer
necessary to furnish a copy of the inquiry report to
Page 16 of 25
delinquent officers. Even on some occasions this Court
has taken that view. Since we have reached a
different conclusion the judgments in the different
High Courts taking the contrary view must be taken to
be no longer laying down good law. We have not been
shown any decision of a coordinate or a larger bench
of this Court taking this view. Therefore, the
conclusion to the contrary reached by any two Judge
bench in this Court will also no longer be taken to be
laying down good law, but this shall have prospective
application and no punishment imposed shall be open
to challenge on this ground.
18. We make it clear that wherever there has been an
Inquiry Officer and he has furnished a report to the
disciplinary authority at the conclusion of the inquiry
holding the delinquent guilty of all or any of the
charges with proposal for any particular punishment
or not, the delinquent is entitled to a copy of such
report and will also be entitled to make a
representation against it, if he so desires, and non-
furnishing of the report would amount to violation of
rules of natural justice and make the final order liable
to challenge hereafter.”
15] Reading the aforesaid judgment, it is absolutely clear
that in the event the enquiry report is not furnished and the
enquiry officer and the departmental authority are not one
and the same person, the same shall prejudice the
delinquent, and there shall be a gross violation of the
principles of natural justice. In other words, if it is established
that the enquiry report based on which the departmental
authority has awarded the penalty/punishment to the
delinquent was not furnished to him in order to give him an
opportunity to submit a representation thereof, the final order
of penalty/punishment is a nullity, being in violation of the
rules of natural justice. In the case in hand, it is apparent that
since the report was not provided to the petitioner, the
Page 17 of 25
petitioner was not aware of the finding of the enquiry officer,
and in fact, no opportunity was given to the petitioner to be
represented before imposing the impugned penalty. That
being so, the impugned order of penalty is totally illegal and
invalid.
16] This takes me to the second issue as regards no
presenting officer being appointed in the subject enquiry. The
said allegation is also established, as it is evident from the
record that no presenting officer was appointed.
17] Apt at this stage to refer to the decision of the Apex
Court in the case of Union of India v. Ram Lakhan
Sharma. Paragraph Nos., 24, 26, 27, and 28, of the
aforesaid judgment read as under: –
“24. The disciplinary proceedings are quasi-judicial
proceedings and the Enquiry Officer is in the position
of an independent adjudicator and is obliged to act
fairly, impartially. The authority exercising quasi-
judicial power has to act in good faith without bias, in
a fair and impartial manner.
26. A Constitution Bench of this Court has elaborately
considered and explained the principles of natural
justice in A.K. Kralpak v. Union of India. This Court
held that the aim of the rules of natural justice is to
secure justice or to put it negatively to prevent
miscarriage of justice. The concept of natural justice
has undergone a great deal of change in recent years.
Initially recognised as consisting of two principles,
that is, no one shall be a judge in his own cause and
no decision shall be given against a party without
affording him a reasonable hearing, various other
facets have been recognised. In para 20 the following
has been held: (SCC p. 272)
’20. The aim of the rules of natural justice is to secure
justice or to put it negatively to prevent miscarriage ofPage 18 of 25
justice. These rules can operate only in areas not covered
by any law validly made. In other words they do not
supplant the law of the land but supplement it. The
concept of natural justice has undergone a great deal of
change in recent years. In the past it was thought that it
included just two rules, namely, (1) no one shall be a
judge in his own case (nemo debet esse judex propria
causa), and (2) no decision shall be given against a party
without affording him a reasonable hearing (audi
alteram partem). Very soon thereafter a third rule was
envisaged and, that is, that quasi-judicial enquiries must
be held in good faith, without bias and not arbitrarily or
unreasonably….’
27. In State of U.P. v. Saroj Kumar Sinha, this Court
had laid down that Enquiry Officer is a quasi-judicial
authority, he has to act as an independent adjudicator
and he is not a representative of the
department/disciplinary authority/Government. In
paras 28 and 30 the following has been held: (SCC p.
782)
’28. An Enquiry Officer acting in a quasi-judicial
authority is in the position of an independent adjudicator.
He is not supposed to be a representative of the
department/disciplinary authority/Government. His
function is to examine the evidence presented by the
Department, even in the absence of the delinquent official
to see as to whether the unrebutted evidence is sufficient
to hold that the charges are proved. In the present case
the aforesaid procedure has not been observed. Since no
oral evidence has been examined the documents have not
been proved, and could not have been taken into
consideration to conclude that the charges have been
proved against the respondents.
30. When a departmental enquiry is conducted against
the government servant it cannot be treated as a casual
exercise. The enquiry proceedings also cannot be
conducted with a closed mind. The Enquiry Officer has to
be wholly unbiased. The rules of natural justice are
required to be observed to ensure not only that justice is
done but is manifestly seen to be done. The object of rules
of natural justice is to ensure that a government servant
is treated fairly in proceedings which may culminate in
imposition of punishment including dismissal/removal
from service.’
Page 19 of 25
28. When the statutory rule does not contemplate
appointment of Presenting Officer whether non-
appointment of Presenting Officer ipso facto vitiates
the inquiry? We have noticed the statutory provision of
Rule 27 which does not indicate that there is any
statutory requirement of appointment of Presenting
Officer in the disciplinary inquiry. It is thus clear that
statutory provision does not mandate appointment of
Presenting Officer. When the statutory provision does
not require appointment of Presenting Officer whether
there can be any circumstances where principles of
natural justice can be held to be violated is the broad
question which needs to be answered in this case. We
have noticed above that the High Court found breach
of principles of natural justice in Enquiry Officer acting
as the prosecutor against the respondents. The
Enquiry Officer who has to be independent and not
representative of the disciplinary authority if starts
acting in any other capacity and proceeds to act in a
manner as if he is interested in eliciting evidence to
punish an employee, the principle of bias comes into
place.”
18] Apt also to refer to the decision of the Co-ordinate
Bench of this Court in the case of Anil Baishya (Supra).
Paragraph No.24 of the aforesaid judgment reads as under: –
“24. A departmental enquiry is a quasi-judicial
proceeding. Principles of natural justice, which
includes a fair procedure, is inbuilt in such a
proceeding. The Enquiry Officer has to discharge his
functions in a quasi-judicial manner. He has to act
fairly and impartially. The role of the Presenting
Officer is to present the case of the disciplinary
authority before the Enquiry Officer. He is the
representative of the disciplinary authority. He has to
assist the Enquiry Officer by presenting before him the
case of the disciplinary authority. He has to marshal
the facts and to examine and cross-examine the
witnesses produced during the enquiry. It is he who
has to produce and prove the listed documents during
the enquiry and lead the oral evidence in support of
the charge. Therefore, in the absence of the PresentingPage 20 of 25
Officer, it is the Enquiry Officer who will have to
produce the documents and present the witnesses. In
such a case, he will assume the role of the judge as
well as that of the prosecutor, which will be a total
negation of the avowed principles of natural justice
and fair procedure. Absence of the Presenting Officer
will certainly not be a fair procedure.”
19] Apt also to refer to the decision of the Co-ordinate
Bench of this Court in the case of Mutum Shantikumar
Singh v. Union of India (UOI) and Ors, reported in 2005
Supreme(Gau) 118. Paragraph No. 6 of the aforesaid
judgment reads as under: –
“6. The Apex Court (Constitution Bench) had
discussed the scope and object of natural justice and
its applicability to administrative enquiry in A. K
Kraipak and Ors. v. Union of India and Ors.. reported
in [1970] I SCR 457 held that the aim of the rules of
natural justice is to secure justice or to put it
negatively to prevent miscarriage of justice. These
rules can operate only in areas not covered by any
law validly made in other words, they do not supplant
the law of the land but supplement it. Para 20 (of AIR)
in A.K. Kraipak (supra) is quoted hereunder:
’20. The aim of the rules of natural justice is to secure
justice or to put it negatively to prevent miscarriage of
justice. These rules can operate only in areas not covered
by any law validly made. In other words they do not
supplant the law of the land but supplement it. The
concept of natural justice has undergone a great deal of
change in recent year. In the past it was thought that it
include just two rules, namely (1) no one shall be a judge
in his own cause (Nemo debet esse judex propria causa),
and (2) no decision shall be given against a party without
affording him a reasonable hearing (audi alteram
partem). Very soon thereafter a third rule was envisaged
and that is that quasi-judicial enquiries must be held in
good faith, without bias and not arbitrarily or
unreasonably. But in the course of years many more
subsidiary rules came to be added to the rules of natural
justice. Till very recently it was the opinion of the courts
that unless the authority concerned was required by thePage 21 of 25
law under which it functioned to act judicially there was
no room for the application of the rules of natural justice.
The validity of that limitation is not questioned. If the
purpose of the rules of natural justice is to prevent
miscarriage of justice one fails to see why those rules
should be made inapplicable to administrative enquiries.
Often times it is not easy to draw the line that demarcates
administrative enquiries from quasi-judicial enquiries.
Enquiries which were considered administrative at one
time are now being considered as quasi-judicial in
character. Arriving at a just decision is the aim of both
quasi-judicial enquiries as well as administrative
enquiries. An unjust decision in an administrative
enquiry may have more far reaching effect than a
decision in a quasi-judicial enquiry. As observed by this
Court in Suresh Koshy Georege v. University of Kerala,
Civil Appeal No. 990 of 1968, dt. 15.7.1968, [1969] 1
SCR 317 the rules of natural justice are not embodied
rules. What particular rule of natural justice should
apply to a given case must depend to a great extent on
the facts and circumstances of that case, the frame work
of the law, under which the enquiry is held and the
constitution of the Tribunal or body of persons appointed
for that purpose. Whenever a complaint is made before a
court that some principle of natural justice had been
contravened the court has to decide whether the
observance of that rule was necessary for a just decision
on the facts of that case.'”
20] Reading the aforesaid judgments, it is absolutely
clear that the enquiry proceeding is not a casual formality.
Notwithstanding, whether there is statutory provision for
applicability of natural justice or not in the disciplinary enquiry
proceedings, the same must be read into the statue in
question, unless the same is explicitly excluded. In short, the
enquiry proceedings cannot be conducted in a biased manner.
The rules of natural justice are required to be observed to
ensure not only that justice is done but is manifestly seen to
be done. Thus, the enquiry officer has to act fairly and
impartially and, therefore, cannot assume the role of the
Page 22 of 25
judge as well as that of the prosecutor. In such a
departmental enquiry, the role of the presenting officer is to
present the case of the disciplinary authority before the
enquiry officer. In other words, the presenting officer is the
representative of the disciplinary authority, who, by assisting
the enquiry officer presents the case of the disciplinary
authority before the enquiry officer. It is the presenting officer
who has to marshal the facts and thereby examine and cross-
examine the witnesses produced during the enquiry. It is he
who has to produce and prove the listed documents during
the enquiry and lead the oral evidence in support of the
charge. Therefore, in the absence of the presenting officer, it
is the enquiry officer who will have to produce the documents
and present the witnesses, and while doing so, he assumes
the role of the judge as well as that of the prosecutor, which
will be a total violation of the principles of natural justice and
fair procedure. Hence, the same vitiates the enquiry and the
consequential punishment imposed.
21] In the case in hand, it is established from the
records that the enquiry officer himself examined the
witnesses and exhibited the documents of the disciplinary
authority and, in fact, led the witnesses to prove the charge.
Therefore, it is clearly established that the enquiry officer in
the enquiry in question acted as a judge as well as the
prosecutor. Hence, the non-appointment of a presenting
officer had clearly prejudiced the petitioner, inasmuch as the
enquiry officer undertook the role of the prosecutor; the
unfairness and biasness on the part of the enquiry officer
Page 23 of 25
cannot be ruled out. Fairness being a necessary concomitant
of the principles of natural justice, any action that is unfair
would be in violation of the principles of natural justice. That
being so, there is a gross violation of the principles of natural
justice. Therefore, on this score alone, the enquiry held
against the petitioner is totally vitiated.
22] In view of the fact that this Court has held the first
two issues in favour of the petitioner, the enquiry proceeding
against the petitioner is illegal, and hence, the entire enquiry
proceeding stands vitiated. It is needless to clarify that the
enquiry proceeding having been found to be illegal and
vitiated, upon determination of the first two issues, the
remaining issues are not required to be decided in the instant
writ petition. Accordingly, the enquiry proceeding against the
writ petitioner is hereby quashed, and in consequence, the
impugned penalty order also cannot stand in the eye of law.
As such, the impugned order dated 24.05.2000 issued by the
Superintendent of Police, Nagaon, and the order dated
20.09.2020, passed by the Deputy Inspector General of Police
(CR) Diphu, are hereby set aside and quashed.
23] However, the respondent authority is at liberty to
initiate fresh de-novo proceeding against the petitioner as per
law if so advised within a period of 3 (three) months from the
date of receipt of the certified copy of this order.
24] It is needless to be clarified that in the event the
respondent authorities do not initiate the de-novo enquiry
within the time period stipulated hereinabove, the arrear
Page 24 of 25
salary as withheld by the Superintendent of Police, Nagaon,
vide order dated 24.05.2000, be released to the petitioner
within a period of 3 (three) weeks thereof.
25] With the aforesaid observation and direction, the
writ petition stands allowed, and is disposed of.
JUDGE
Comparing Assistant
Page 25 of 25