Abdur Rejjak Mondal Vs the State of Assam and 4 Ors.

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GAHC010211642022

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/6736/2022

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ABDUR REJJAK MONDAL

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S/O LATE ANOWAR HUSSAIN, VILL-DALAIGAON, UZANPARA, P.O. AND DIST-BONGAIGAON (ASSAM)

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VERSUS

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THE STATE OF ASSAM AND 4 ORS REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM, HOME AND POLITICAL DEPARTMENT, DISPUR, GUWAHATI-06

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2:THE DIRECTOR GENERAL OF POLICE ASSAM ULUBARI GUWAHATI-06 3:THE INSPECTOR GENERAL OF POLICE WESTERN RANGE ASSAM BONGAIGAON PIN-783380

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4:THE DEPUTY INSPECTOR GENERAL OF POLICE ASSAM ULUBARI GUWAHATI-06 5:THE SUPERINTENDENT OF POLICE BONGAIGAON ASSAM 78338

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Advocate for the Petitioner : MS. R CHOUDHURY, MR N RAHMAN

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Advocate for the Respondent : GA, ASSAM, MR. T C CHUTIA,MR R DHAR, LEARNED COUNSEL FOR RESPONDENTS

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– B E F O R E –

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HON’BLE MR. JUSTICE SOUMITRA SAIKIA

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Date on which judgment is reserved	: N/A
Date of pronouncement of judgment	: 03.12.2025
Whether the pronouncement is of the operative part of the judgment?	: No.
Whether the full judgment has been pronounced?	: Yes

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JUDGMENT AND ORDER (ORAL)

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Heard Mr. R.P. Sharma, learned counsel for the petitioner. Also heard Mr. T.C. Chutia, learned Addl. Government Advocate for the State respondents.

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2. This petition has been filed by the petitioner praying for setting aside and quashing the departmental proceeding being DP 06/2019 and order dated 04.07.2022, whereby the petitioner has been dismissed from service with immediate effect, as per the Rule 7(VII) of the Assam Services (Discipline & Appeal) Rules, 1964 and also the order dated 07.10.2022 passed by the respondent No. 3 dismissing the appeal of the petitioner.

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3. The petitioner was serving as an Unarmed Branch Constable under the Assam Police and was posted in the Bidyapur Out Post under the Bongaigaon Police Station. While he was serving as a Constable an FIR was lodged by the informant namely Sahida Khatun on 31.07.2019 with the Officer-in-Charge of

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the Bongaigaon Police Station stating that the petitioner had committed rape on her sister-in-law aged about 11 years old on 27.07.2019. In the FIR, it was alleged that the petitioner had called the sister-in-law of the informant in his house on the pretext of cleaning utensils and when she reached the house of the petitioner she was forcibly raped. An FIR was registered as Bongaigaon P.S. Case No. 550 of 2019 under Section 4 of the POCSO Act, 2012. The petitioner was arrested on 01.08.2019 and thereafter, he was placed under suspension pending drawal of the Departmental Proceedings. The petitioner was subsequently enlarged on bail. Thereafter, the Departmental Authority issued a show cause notice dated 13.11.2019, charging the petitioner with gross immoral conduct of indisciplined act and dereliction of duty. Subsequently, the petitioner submitted his reply to the show cause notice. Being dissatisfied with reply furnished by the petitioner, the Departmental Authority appointed an Inquiry Officer to proceed with the Departmental Enquiry to enquire into the allegations levelled against the petitioner by the show cause notice and as to whether imposition of punishment under Rule 7 is required. The Inquiry Officer completed the enquiry and concluded that the allegations against the petitioner have been proved and the enquiry report was submitted to the Disciplinary Authority. The Disciplinary Authority upon receipt of the enquiry report issued a second show cause notice dated 11.06.2022 on the petitioner. The petitioner was called upon to submit his reply, if any, within 15 days from the date of receipt of the communication. The petitioner filed another reply dated 25.06.2022 urging the Disciplinary Authority not to impose punishment as contemplated. Thereafter, by order dated 04.07.2022, the impugned order of termination was issued. The petitioner was dismissed from service with immediate effect as per Rule 7(VII) of the Assam Services (Discipline & Appeal)

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Rules, 1964 for his gross immoral conduct of indisciplined act and dereliction of duty. An appeal under Rule 66(V) of the Assam Police Manual was filed before the Appellate Authority, namely the Deputy Inspector General of Police, Assam. This appeal also came to be rejected by the Appellate Authority vide order dated 07.10.2022, whereby the order passed by the Disciplinary Authority was upheld. Being aggrieved, the present writ petition has been filed.

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4. The learned Senior Counsel for the petitioner has strenuously urged before the Court that the entire departmental proceedings initiated against the writ petitioner was based on the FIR, which was lodged against the writ petitioner and the statements of the witnesses recorded by the Investigating Authority. It is submitted that the allegation made against the petitioner is a very serious allegation under Section 4 of the POCSO Act, 2012. The matter is presently under trial and the trial Court has not yet been delivered the judgment, either by convicting or by acquitting the writ petitioner. He therefore, submits that the allegation made against the petitioner is subject to such proof which may be arrived at during the trial by the trial Court. As on date, these are mere allegations made against the petitioner which have not yet been proved. Therefore, the departmental proceedings initiated against the writ petitioner only on the basis of the FIR and the statements made or recorded by the Investigating Authority is wholly incorrect and contrary to the rules of criminal jurisprudence. The learned Senior Counsel submits that there is no other material on the basis of which the charges have been held to be proved by the Enquiry Officer save and except the FIR and the statements made before the Investigating Authority during investigations in connection with Bongaigaon P.S. Case No.550 of 2019 under Section 4 of the POCSO Act, 2012.

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5. The learned Senior Counsel further submits that the entire proceedings

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were conducted in complete violation of the Rules of natural justice as the witnesses were not examined by the Inquiry Officer but only recorded their statements and that too the same were not furnished to the writ petitioner giving him an opportunity to rebut the same. He therefore, submits that the enquiry proceedings being contrary to the law and the same shall be interfered with and set aside and the order passed by the disciplinary authority dated 04.07.2022 and the appellate authority dated 07.10.2022 having failed to take note of these deficiencies of the enquiry are also required to be interfered with and set aside . In support of his contentions he placed reliance on the following judgments:

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Laldula Vs. The Union Territory of Mizoram reported in 1984 (1) GLR

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The Board of Trustees of the Bombay Appellant v. Dilipkumar Raghavendranath Nadkarni and Ors. reported in AIR 1983 SC 109.

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Aayush Tomar vs. The Union of India and 4 Ors in WP(C) No.8143/2022.

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Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. and anr reported in (1999) 3 SCC 679.

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S.C. Girotra Vs. United Commerical Bank and Ors. reported in 1995 Supp (3) SCC 212.

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6. Mr. T.C. Chutia, learned Addl. Senior Government Advocate assisted by Mr. P. Devi, learned counsel for the respondents strongly disputes the contentions raised by the writ petitioner. It is submitted that the departmental proceedings have been initiated by following the procedure prescribed under the Assam Services (Discipline & Appeal) Rules, 1964 read with the Police Act and the

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Rules. It is submitted that the list of witnesses and the documents enclosed to the show cause notice was duly furnished to the writ petitioner along with the show cause notice and therefore, the contention raised cannot be accepted that the proceedings were conducted in conflict with the rules of natural justice and/or the procedure prescribed under the Rules of 1964. The learned Addl. Senior Government Advocate further submits that from the enquiry report it is evident that the petitioner was given opportunity but he declined to avail the said opportunity to cross-examine the witnesses. Therefore, at this stage, to turn around and assail the procedure on the ground of being violative of natural justice would not be available to the writ petitioner.

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7. He further submits that on the facts which are pleaded before this Court, the only ground assailed before the Writ Court is that the proceedings have commenced in violation of natural justice and no opportunity was given, which is on a bare perusal of the enquiry report reflects that the same is incorrect, rather the petitioner declined to cross-examine the witnesses and maintained that he had nothing to say as he had already given his statement to the Inquiry Officer.

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8. The learned counsel for the parties have been heard and the pleadings available on record have been carefully perused. The records called for from the department have also been carefully examined. The facts which led to the departmental proceedings are not in dispute. While the petitioner was serving as a Constable in Bidyapur Out Post under the Bongaigaon Police Station an FIR was lodged by the complainant, which came to be registered as Bongaigaon PS Case No.550/2019 under section 4 of the POCSO Act. Thereafter, the petitioner was arrested and subsequently released on bail. As is mandated under the Rules of 1964, if a government servant is detained in custody for more than 48 hours,

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the department is to initiate departmental proceedings to enquire into the reasons for his detention beyond 48 hours. Consequently, a show cause notice was issued calling up the petitioner to respond to the charges brought against him. The show cause notice was enclosed with a list of witnesses and the documents to be relied upon. The charges in the show cause notice were duly replied to, by the petitioner denying the charges. Thereafter, an Inquiry Officer was appointed and the matter proceeded before the Inquiry Officer. No material has been placed by the petitioner to show that no opportunity was granted to him to verify or examine the documents relied upon by the department and/or lack of opportunity to examine the witnesses or even disputing that the proceedings cannot be initiated on the basis of the statements made by the informant and the witnesses which were recorded by the investigating authority. However, the enquiry proceeded and by order dated 02.04.2021 the Inquiry Officer concluded that the petitioner has been found to have indulged in gross misconduct. This was thereafter, submitted to the disciplinary authority who again issued a show cause notice to which the petitioner also replied to by denying the allegations levelled against him in the Inquiry Report. However, the authorities declined to accept the contentions of the petitioner and by order dated 04.07.2022, the disciplinary authority imposed the punishment of dismissal from service under Rule 7(vii) of the Assam Services (Discipline & Appeal) Rules of 1964. The petitioner preferred an appeal before the appellate authority which also came to be dismissed sustaining the order of dismissal passed by the Disciplinary Authority.

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9. From the submissions made before this Court as well as the pleadings available before this Court, it is seen that the primary ground urged before this Court is the violation of the Rules of Natural Justice by the respondents while

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conducting the disciplinary proceedings leading to the impugned order of dismissal. The petitioner submits that he was not given sufficient opportunity to defend his case by examining or cross-examining the witnesses nor the documents which were relied upon. Although from the writ petition no reference is seen in respect of any such objection being filed/raised before the department, in the appeal memo filed before the appellate authority there is a specific ground taken by the writ petitioner to that effect. Ground No.4 has urged before the appellate authority as under:

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“That, the appellant begs to state that at para 4 of the Order dated 04.07.2022, it is recorded that the statements of 4 nos of prosecution witnesses were recorded in presence of the appellant and the appellant was given ample opportunity to cross examine those witnesses but the same is totally incorrect. The statements of those witnesses were not recorded in presence of the appellant, rather all those witnesses submitted their statements in written and not in the presence of the appellant and the appellant was not provided any opportunity to cross examine them. Moreover, the Enquiry Officer was also changed twice and the 1^st Enquiry Officer never called the appellant to record his statement.”

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10. To this Court it appears that the petitioner raised his grievance before the appellate authority of not being granted any opportunity during the inquiry to cross examine the witnesses. However, upon a careful perusal of the order passed by the appellate authority, it is seen that the appellate authority did not specifically deal with these grounds and no finding to that effect was rendered in the order dated 07.10.2022 passed by the appellate authority. There is a finding in the recital of the order that the appeal petition as well as the Departmental Proceedings has been scrutinized by the appellate authority. However, there is no finding by the appellate authority that the grounds urged by the writ petitioner in respect of violation of natural justice whereby the

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petitioner was denied any opportunity from examining or cross-examining the witnesses are not a valid grounds and/or such grounds urged cannot be sustained upon examination of the departmental records. In the absence of any such findings by the appellate authority, the grievance of the writ petitioner that the opportunity of cross-examining the witnesses raised before the appellate authority remains unanswered. According to this Court, the appellate authority was empowered to return a finding on these grounds urged and in absence of any specific finding upon disposing of the appeal filed by the petitioner by an omnibus conclusion that the Inquiry Officer during the proceedings had given ample opportunity cannot be considered as effective consideration of the grievances urged by the writ petitioner in the appeal memo.

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11. In Narinder Mohan Arya Vs. United India Insurance Co. Ltd. and Ors. reported in (2006) 4 SCC 713, it was held that the appellate authority must give reasons in the appellate order so as to enable the Writ Court to ascertain whether there was any application of mind to the points urged before the appellate authority. It was the duty of the appellate authority to give reasons and/or record reasons thereof. The appellate authority is required to examine the conclusions arrived at by the Inquiry Officer as well as by the disciplinary authority as to whether the evidence adduced before the Inquiry Officer had nexus to the charges levelled against the writ petitioner. The power vested on the disciplinary authority is equally available to the appellate authority. If the appellate authority was of the view that adequate opportunity was not granted, then there are ample powers to interfere with the orders passed by the disciplinary authority by passing appropriate orders. It was incumbent on the appellate authority to give sufficient reasons while confirming the conclusions arrived at by the disciplinary authority imposing the punishment.

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12. The impugned order passed by the appellate authority does not contain the adequate reasons. Therefore, considering the matter in its entirety, the writ petition is allowed in part by interfering with the impugned order dated 07.10.2022 passed by the appellate authority. The matter is remanded back to the appellate authority to re-decide the matter afresh and pass appropriate orders by examining the matter in detail. The appellate authority must examine the grievances urged by the writ petitioner and decide with reasons which must disclose as to whether the petitioner was granted adequate opportunity to examine or cross-examine the witnesses and whether the statement and/or the examination of the witnesses by the departmental authority was undertaken during the departmental proceedings and in the presence of the writ petitioner.

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13. Since the order is passed in presence of the learned counsel for the parties no further notice is required to be issued to the writ petitioner. He will appear before the appellate authority by submitting a certified copy of this order. If the petitioner makes any application by filing additional grounds the same shall be considered by the appellate authority as per the procedure prescribed.

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14. This writ petition is accordingly disposed of in terms of the above. The appellate authority is expected to pass appropriate orders as expeditiously as possible within a period of one month from the date of receipt of certified copy of this order.

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JUDGE

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Abdur Rejjak Mondal v. the State of Assam and 4 Ors.

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Abdur Rejjak Mondal v. the State of Assam and 4 Ors.

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