Shyamal Bezboruah Vs the Gauhati High Court and Anr.

Heard Mr. M. Sharma, the learned counsel appearing on behalf of the petitioner and Mr. H. K. das, the learned Standing counsel appearing on behalf of the Gauhati High Court.

¶16

The petitioner herein has approached this Court by filing the present writ petition seeking a writ in the nature of certiorari for setting aside the dismissal order dated 13.03.2006 and for consequential benefits on the basis thereof.

¶17

MATERIAL FACTS OF THE CASE:

¶18

The case of the petitioner herein is that the petitioner while working as a Superintendent in the Principal Seat of the Gauhati High Court, was issued a show cause notice on 08.12.2004 under Rule 23 Part-IV of the Gauhati High Court Services (Appointment, Conditions of Service and Conduct) Rules, 1967 (for short ‘the Rules of 1967’) as to why any one of the penalties prescribed in Rule 22 of Part-IV of the said Rules of 1967 should not be imposed upon the petitioner on the charges so made. The petitioner submitted a reply to the said show cause notice denying the allegations. On the basis thereof, an enquiry proceedings was initiated.

¶19

The Enquiry Officer submitted a report on 11.10.2004 whereby the Enquiry Officer opined that from the materials available before the enquiry, it was not possible to ascertain as to who had forged the original judgment more particularly Page 9 of the original and it was therefore opined that it cannot be held that the petitioner had forged the judgment. It was also

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opined in the said enquiry report that it was sufficiently proved that a certified copy of the judgment was prepared without following the due procedure and that much irregularity and illegality was committed by the concerned officials, including the petitioner who was the Superintendent at that relevant time. The Enquiry Officer further opined that the petitioner had acted negligently and committed serious lapse and thus failed to discharge his duty efficiently and diligently. In the said enquiry report, it was mentioned that the manner in which the certified copy was prepared, signed and delivered amounted to failure to maintain devotion to duty and absolute integrity. The said act done by the petitioner as per the opinion of the Enquiry Officer was unbecoming of an Officer of the Gauhati High Court and it amounted to gross negligence to duty and misconduct.

¶22

On the basis of the opinion so rendered by the Enquiry Officer in its report dated 11.10.2004, the petitioner was show caused as to why he should not be imposed with the penalty under Sub-Rule (8) of Rule 22 of the Rules of 1967.

¶23

The petitioner thereupon submitted a reply on 15.03.2005. The reply so submitted however was not accepted and vide an order dated 13.03.2006, the petitioner was dismissed from the services of the Gauhati High Court with immediate effect.

¶24

The petitioner thereupon preferred an Appeal which was rejected and the same was informed to the petitioner vide the communication dated 09.06.2006.

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The petitioner thereupon challenged the penalty imposed upon the Petitioner of dismissal from service by filing a writ petition before this Court which was registered and numbered as WP(C) No.1982/2007. The said writ petition was withdrawn on 10.12.2013 that too without any liberty.

¶27

It is relevant to observe that in the order dated 10.12.2013, it was categorically mentioned that the counsel appearing on behalf of the petitioner had submitted that the writ petition be dismissed as withdrawn and the petition was accordingly dismissed. The issue pertaining to the penalty imposed upon the petitioner of dismissal from service therefore attained finality.

¶28

In the meantime, on account of the allegation of forgery of the certified copy of the judgment, a CBI investigation was carried out pursuant to an FIR being filed which was registered as RC Case No.5(A)/99-(SHG) under Sections 120B/420/468/471A and 211 of the Indian Penal Code read with Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988.

¶29

A charge sheet thereupon was filed against the petitioner and two others sometime in the year 2004 which resulted in registration of a case being Special Case No.28/2004 before the learned Special Judge, CBI, Assam. The learned Special Judge, CBI, Assam convicted the petitioner vide a judgment and order dated 23.05.2012 under Section 120B/468 of the Indian Penal Code read with Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. An appeal thereagainst was filed which was registered and numbered as Criminal Appeal No.97/2012. Vide a judgment

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and order dated 21.11.2023, a Coordinate Bench of this Court set aside the judgment and order dated 23.05.2012 passed by the learned Special Judge, CBI, Assam in Special Case No.28/2004 primarily on the ground that prosecution could not establish the case against the petitioner under Section 120B/468 of the Indian Panel Code read with Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 beyond reasonable doubt and hence it was held that the petitioner was entitled for acquittal on the benefit of doubt.

¶32

Pursuant to the said judgment delivered on 21.11.2023 in Criminal Appeal No.97/2012, the petitioner straight away approached this Court by filing the present petition even without approaching the Gauhati High Court on the Administrative Side.

¶33

The record reveals that this Court vide an order dated 05.04.2024 issued notice. The record further reveals that an affidavit-in-opposition has been filed by the respondent Nos. 1 and 2 wherein amongst other aspects on merit, it was specifically contended that the issue pertaining to the imposition of the penalty of dismissal of the petitioner has attained finality when the learned Division Bench of this Court vide an order dated 10.12.2013 had dismissed the writ petition as withdrawn. It was also mentioned that the acquittal of the petitioner was purely based on benefit of doubt and such acquittal of the petitioner on benefit of doubt has got no bearing in the decision of the disciplinary authority.

¶34

The instant writ petition was listed before this court on 19.06.2025,

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wherein this Court put a pointed query upon the counsel appearing on behalf of the petitioner as to whether the instant writ petition challenging the order of dismissal can be maintained at this stage. The backdrop on the basis of which the said query was made can be seen from a perusal of the order dated 19.06.2025 and more particularly the contents of the said order mentioned at paragraph Nos. 2 to 7 which being relevant are reproduced herein under:

¶37

“2. The petitioner herein was dismissed from service vide an order dated 13.03.2006 upon consideration of the Enquiry Report submitted by the Enquiry Officer in Disciplinary Proceeding No.5/2001. It is relevant to take note of that the Enquiry Officer while arriving at his finding observed that from the materials on record, it was not possible to ascertain as to whether the petitioner had forged the judgment and more particularly page No.9 of the said judgment. But on account that the petitioner having acted negligently and committed serious lapse on his failure to discharge his duty efficiency and diligently, it was observed that the act done by the petitioner was unbecoming of the Government servant and it amounted to gross negligence to duty and misconduct.

¶38

It is relevant to take note of that pursuant to the said Enquiry Report being submitted and the petitioner being afforded an opportunity, the penalty of dismissal from service was passed on 13.03.2006. An appeal/review was filed by the petitioner which was also dismissed. The petitioner thereupon filed a writ petition which was registered and numbered as WP(C) No.1982/2007 challenging the Enquiry Report as well as the penalty so imposed upon the petitioner. However, the said writ

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petition was withdrawn by the petitioner on 10.12.2023 without seeking any liberty.

¶41

It further appears that the petitioner was initially convicted in a proceedings initiated under Section 120(B)/468/471 of the Indian Penal Code read with Section 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988. The said conviction was overturned in Criminal Appeal No.97/2012 by this Court vide a judgment and order dated 21.11.2023 and it is under such circumstances, the present proceedings have been initiated.

¶42

The learned Senior counsel for the petitioner submitted that as the petitioner has been acquitted, the penalty of dismissal from service as imposed vide the order dated 13.03.2006 is required to be interfered with.

¶43

This Court having perused the materials on record finds it relevant to observe that the Enquiry Officer did not hold that the petitioner had forged the document rather on the ground that the petitioner was negligent and his actions were unbecoming of a Government servant and the said Enquiry Report being accepted, the petitioner was dismissed from service. It is also relevant to take note of that neither the Enquiry Report nor the dismissal of the petitioner was on the basis of any conviction against the petitioner at that relevant point of time.

¶44

The question therefore arises as to whether after the withdrawal of the writ petition earlier, can the petitioner now maintain the present writ petition?”

¶45

Upon such query being made, the learned senior counsel who

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represented the petitioner sought for time to address this Court on the said issue.

¶48

In the backdrop of the above, let this Court now take note of the submissions so made by the learned counsels appearing on behalf of the parties.

¶49

CONTENTION OF THE PARTIES:

¶50

Mr. M. Sharma, the learned counsel appearing on behalf of the petitioner submits that though the dismissal of the petitioner vide the order of dismissal dated 13.03.2006 was prior to the conviction of the petitioner vide the judgment and order dated 23.05.2012 by the learned Special Judge, CBI, Assam in Special Case No.28/2004 but both the disciplinary proceedings as well as the criminal proceedings arises out of the same set of facts. He therefore submits that when the petitioner has been acquitted by this Court vide the judgment and order dated 21.11.2023 in Criminal Appeal No.97/2012 after looking into all the evidence, the order of dismissal dated 13.03.2006 is required to be interfered with and thereby the petitioner should be granted all consequential benefits on the basis thereof. The learned counsel for the petitioner further submitted that the judgment and order dated 21.11.2023 in Criminal Appeal No.97/2012 had given rise to a fresh cause of action to the petitioner and the cause of action on the basis of which the earlier petition was withdrawn does not preclude the petitioner to file the instant writ petition.

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Mr. H. K. Das, the learned Standing counsel appearing on behalf of the Respondents submitted that the order of dismissal dated 13.03.2006 is based upon the enquiry report wherein the Enquiry Officer did not go into the question of forgery which was the subject matter of the criminal proceedings. On the ground of negligence and acting in a manner unbecoming of an Officer of the Gauhati High Court, the penalty of dismissal of service of the petitioner was imposed. The petitioner though challenged the said order of dismissal by filing the writ petition being WP(C) No.1982/2007 but the petitioner withdrew the same on 10.12.2013, that too without any liberty. The Standing learned counsel for the Respondents therefore submitted that the act of withdrawal of the writ petition without reserving liberty amounts to acceptance of the punishment of dismissal dated 13.03.2006 and as such, the petitioner cannot be permitted to agitate the said issue after being acquitted that too on the ground of benefit of doubt by the judgment and order dated 21.11.2023 in Criminal Appeal No.97/2012. The learned counsel further relying on the judgment of the Supreme Court in the case of State of Rajasthan and Others Vs. Heem Singh reported in (2021) 12 SCC 569 submitted that when an acquittal in a criminal case is not an honorable acquittal but on the ground of benefit of doubt, it shall not affect the decision in the disciplinary proceedings and lead to automatic reinstatement.

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ANALYSIS AND DETERMINATION :

¶54

This Court have duly perused the materials on record as well as taken into consideration the submissions so made by the learned counsels

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appearing on behalf of the parties as noted above.

¶57

It is well settled that there is no bar in proceeding with a disciplinary proceedings as well as a criminal proceedings on the same set of facts. In the instant case, it would be seen from the Enquiry Report dated 10.11.2004 that though charge of forgery was involved in the charges framed in the disciplinary proceedings, but the Enquiry Officer in its report categorically held that the charge of forgery could not be proved. However, on the basis of the evidence, the Enquiry Officer opined that the conduct of the petitioner suffered from negligence and was unbecoming of an officer of the Gauhati High Court. On the basis of those findings in the enquiry report dated 10.11.2004, the petitioner was issued a show cause asking the petitioner to explain as to why penalty in terms with Rule 22(8) of the Rules of 1967 should not be imposed upon the petitioner. The petitioner though replied but vide the order dated 13.03.2006 the petitioner was dismissed from service with immediate effect.

¶58

At this stage, it is very pertinent to observe that though criminal proceedings were parallelly proceeding, but the decisions in the disciplinary proceedings were independent of the criminal proceedings. Rather, the criminal proceedings being Special Case No.28/2004 stood culminated only vide judgment and order dated 23.05.2012 whereby the petitioner was convicted. The petitioner filed an Appeal against the punishment and the said appeal did not yield any favorable result. The petitioner filed a writ petition which was withdrawn that too without reserving any right to approach in the circumstance the criminal proceedings are decided in favour

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of the petitioner. Under such circumstances, the order of dismissal dated 13.03.2006 had attained finality and the same cannot be disturbed subsequently and more so in the facts of the present nature where the order of penalty was not based upon any criminal conviction.

¶61

This Court further finds it pertinent to observe that the judgment and order dated 21.11.2023 in Criminal Appeal No. 97/2012 may have acquitted the petitioner from the charges labeled against him in Special Case No.28/2004, but the said in the opinion of this Court cannot reopen the issue of imposition of penalty of dismissal of the petitioner which stood concluded with the withdrawal of the writ petition on 10.12.2013.

¶62

CONCLUSION:

¶63

Accordingly, this Court does not find any merit in the instant writ petition for which the writ petition stands dismissed.

¶64

JUDGE

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Shyamal Bezboruah v. the Gauhati High Court and Anr.

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Shyamal Bezboruah v. the Gauhati High Court and Anr.

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