Disposed

Jyotirmoy Choudhary v. the State of Assam and 3 Ors.

Gauhati HC12 Mar 2026WP(C)/2421/2013

Case brief

AI extract

What is this about?

Dismissed employee challenged disciplinary proceedings for alleged misappropriation on grounds of non-supply of inquiry report and procedural violations. Court found he had received the inquiry report through RTI but concealed it, held prejudice must be shown per ECIL v. Karunakar, noted unexhausted statutory appeal under Rule 15, and relegated him to appeal with liberal limitation.

What did the court decide?

Petitioner permitted to file statutory appeal under Rule 15 within 30 days; appellate authority to condone delay excluding time spent before the High Court and decide afresh with all powers.

Jyotirmoy Choudhary Vs the State of Assam and 3 Ors. — Service and Employment | Gauhati HC (2026)

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GAHC010030942013

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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)/2421/2013

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JYOTIRMOY CHOUDHARY

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S/O LATE CHITTRANJAN CHOUDHURY, R/O 2ND LINK ROAD, BYE LANE NO.11, HOUSE NO.22, SILCHAR, DIST- CACHAR, ASSAM

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VERSUS

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THE STATE OF ASSAM AND 3 ORS REPRESENTED BY THE ITS COMMISSIONER, GOVT. OF ASSAM, PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT, DISPUR, GHY-6

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2:THE DIRECTOR PANCHAYAT AND RURAL DEVELOPMENT PANJABARI JURIPAR GHY-37

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3:THE DY. COMMISSIONER CACHAR SILCHAR ASSAM

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4:THE JT. DIRECTOR PANCHAYAT AND RURAL DEVELOPMENT PANJABARI JURIPAR GHY-3

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Advocate for the Petitioner : MR.N CHUTIA, MR. J H SAIKIA,MS.B GOGOI,MR.S M T CHISTIE,MS.M BARMAN,MR.R P SARMAH,MR.M P SARMA,MR.S BORA,MR.G R DEV,MR.A M BUZARBARUAH,MR.U K NAIR,MR.A CHETRY,MS M BORAH,MR M R ADHIKARI

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Advocate for the Respondent : SC, PNRD, ,,,,,,,GA, ASSAM,,,

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– B E F O R E –

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HON’BLE MR. JUSTICE SOUMITRA SAIKIA

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Advocate for the petitioner	:	Mr. R.P. Sarmah, Sr. Advocate
Advocate for the respondents	:	Mr. K. Konwar, Advocate Addl. A.G. Assam
Date on which judgment is reserved	:	16.12.2025
Date of pronouncement of judgment	:	13.03.2026
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 (CAV)

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Heard Mr. R.P. Sarmah, learned Senior Counsel for the petitioner. Also heard Mr. K. Konwar, learned Addl. Advocate General for the respondent P&RD.

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2. The petitioner before this Court by way of the present proceedings prays for setting aside the disciplinary proceedings, the order passed by the

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disciplinary authority dated 11.04.2013 and the consequential order of removal from service dated 26.04.2013.

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3. The essential facts in the present lis are that the petitioner, at the relevant point in time was serving as an Extension Officer (Panchayat) as well as Incharge Block Development Officer of Katigorah Development Block under the Director of Panchayat and Rural Development, Panjabari, Guwahati. For alleged misappropriation of Rs.10,41,190/- (Rupees Ten Lakh Forty One Thousand One Hundred Ninety) in implementing a scheme under I.A.Y. for the period of 20062007, the petitioner was placed under suspension pending drawal of departmental proceedings by order dated 13.06.2008 bearing Memo No. RDD/125/2007/72-A. By show cause notice No.PDDE(II)25/2008/11-13 dated 19.07.2008, the petitioner was served with a show cause notice under Rule 9 of the Assam Services (Discipline & Appeal) Rules 1964 read with Article 311 of the Constitution of India lavelling three charges against the petitioner. The show cause notice served on the petitioner contained the statement of allegations that as in his capacity as Block Development Officer in Silchar Development Block, for the period 30.10.2006 to 04.04.2007, petitioner received a total amount of Rs. 1,17,24,920/- (Rupees One Crore Seventeen Lakh Twenty Four Thousand Nine Hundred Twenty) against construction of IAY Houses from the Project Director, D.R.D.A. Cachar but he had shown a total expenditure of Rs. 1,07,13,344/- (Rupees One Crore Seven Lakh Thirteen Thousand Three Hundred Forty Four). He was therefore, charged with attempt to misappropriate Government money as the public fund was kept by him without dispersing it for the purpose for which it was drawn from the account.

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4. In response to the show cause notice, the petitioner submitted his written statements on 09.08.2008. The disciplinary authority thereafter, by order dated 25.08.2008 appointed the Enquiry Officer and a Presenting Officer in respect of the departmental proceedings initiated against the petitioner.

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5. During the pendency of the departmental proceedings, the petitioner was reinstated in service and was transferred and posted in Katigorah Development Block in the same capacity. It is submitted on behalf of the petitioner that the petitioner earlier approached this Court by filing WP(C) No.3319 of 2011 praying for quashing of the departmental proceedings initiated against him. By order dated 28.01.2013, the writ petition came to be disposed of by Coordinate Bench directing the respondent authority to conclude the departmental proceedings drawn up against the petitioner pursuant to the show cause notice dated 19.07.2008 within a period of 2(two) months from the date of receipt of certified copy of the said order. The respondents were directed to follow all procedural safeguards before taking the final decision in the matter.

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6. Pursuant to the order passed by the Coordinate Bench, the proceedings were initiated and the Enquiry Officer concluded the inquiry proceedings and submitted a report dated 23.03.2013.

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7. The disciplinary authority by order dated 11.04.2013 accepted the findings and came to the conclusion that this is a fit case where major penalty of not less than removal from Government service will meet the ends of justice and by the said order, the petitioner was removed from Government service under Rule 7(vi) of the Assam Services (Discipline & Appeal) Rules, 1964 with immediate

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effect and in exercise of power under Rule 7(iii) of the Rules of 1964, the disciplinary authority ordered recovery of the half of the total of the misappropriated amount i.e. Rs. 31,76,250/- (Rupees Thirty One Lakh Seventy Six Thousand Two Hundred Fifty) from the petitioner. The other half was directed to be recovered from Sri. Iqbal Hussain, Jr. Engineer against whom the said proceedings were also initiated. The disciplinary proceedings accordingly concluded and the matter was referred to the Government for recovery of the misappropriated amount. Thereafter, by order dated 26.04.2013, the petitioner was removed from service in pursuance to the order dated 11.04.2013 passed by the disciplinary authority.

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8. The learned counsel for the petitioner submits that the entire proceedings leading to the removal from service of the petitioner was conducted by the authorities without following the proper procedure prescribed as per Rules. It is submitted that the enquiry report was never furnished to the petitioner and as a consequence the petitioner suffered great prejudice and the impugned order of removal was issued in complete violation of the procedure prescribed under the Rules of 1964, which led to the prejudice suffered by the petitioner in view of the of the fact that protection was granted under Article 311 of the Constitution of India. It is further submitted that the petitioner submitted a representation before the disciplinary authority requesting for appointment of a defence assistant which was not responded to by the authority concerned. It is the further submission by the learned counsel for the petitioner that in spite of the request made, the copy of the inquiry report was never furnished and therefore, the petitioner also could not avail of the forum for appeal as prescribed under the Rules. Under such circumstances, the petitioner is before this Court. In

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support of his contentions the learned counsel for the petitioner has referred to the following judgments:

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a) Union Of India And Ors vs Mohd. Ramzan Khan reported in 1991 (1) SCC 588.

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b) Minati Bora vs. Commissioner and Secretary, Education Department, Dispur, Assam and Ors. reported in 2014 (5) GLT 370.

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c) Jayanta Hasamsa vs. State of Assam & Ors. reported in 2015 (3) GLT 369.

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d) Madhab Chandra Das vs. The State of Assam and Ors. reported in 1987 2 GLR 210.

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e) Foyez Uddin Ahmed Laskar (MD.) vs. Gauhati High Court & Ors. reported in 2017 (4) GLT 969.

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f) Hiren Chandra Talukdar vs. State of Assam & Ors. reported in 2016 (3) GLT 805.

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g) Sukhen Konwar vs. Assam State Electricity Board & Ors. reported in 2018 (2) GLT 964.

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h) Sashi Bhusan Barman vs. State of Assam & Ors. reported in 2021 (4) GLT 1015.

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9. The respondents have disputed the contentions raised on behalf of the petitioner. They have referred to the affidavit filed by the respondent No.4. It is submitted that at the outset, an earlier proceedings, namely WP(C) No. 3319 of 2011 filed by the petitioner the said disciplinary proceedings was put to challenge and it came to be disposed of by the order dated 28.01.2013. However, the Co-ordinate bench by the said order while disposing of the writ petition did not interfere with the said proceedings rather the writ petition came to be disposed of directing the disciplinary authority to conclude the department proceedings within a period of 2(two) months from the date of receipt of a certified copy of this order. Therefore, the present challenge made to the

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disciplinary proceedings is barred by the doctrine of res judicata and therefore, the prayer made for interfering with the disciplinary proceedings in the present proceedings ought not to be granted and the writ petition should be dismissed.

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10. The learned Addl. Advocate General further submitted that the departmental proceedings were conducted as per the provisions of the Rules of 1964. All opportunities were granted to the petitioner. The petitioner participated in the departmental proceedings and thereafter, the inquiry report was submitted and conclusions of the Enquiry Officer were accepted by the disciplinary authority and the impugned order dated 11.04.2013 of removal of the petitioner was issued and thereby the departmental proceedings was closed. In respect of the contentions raised by the petitioner that no inquiry report was furnished, the learned counsel for the respondents submits that from the records available it is seen that the inquiry report was supplied to the petitioner pursuant to an RTI application filed by the petitioner. Therefore, no prejudice was caused to the petitioner as sought to be projected. It is further submitted that there is an alternative remedy available to the petitioner as per the Rules, which had not been availed of and therefore, the writ petition should be dismissed on that ground itself. Under such circumstances, this writ petition ought not to be allowed and the same should be dismissed as the same is without any merit.

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11. The learned counsel for the parties have been heard and the pleadings available on record have been carefully perused. The departmental records have been called for and the same have also been perused by the Court.

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12. Upon careful perusal of the records, it is seen that the petitioner had participated in the disciplinary proceedings and he was given due opportunity. However, it appears that the inquiry report was not furnished to the petitioner as is required under Rule 9A of the Rules of 1964. The disciplinary authority had passed the impugned order imposing the punishment of removal from service of the petitioner and consequently the writ petitioner was removed. The petitioner thereafter, submitted an application under RTI for certain documents including copy of the inquiry report. From the records it is seen that the application for inquiry report was submitted on 04.06.2013 and the inquiry report was furnished by the respondent authority on 29.07.2013.

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13. This writ petition was filed on 03.05.2013. Although the inquiry report was received by the petitioner through RTI on 29.07.2013, this fact has not been brought on record subsequent to the filing of the writ petition. In fact, it is the primary argument of the learned Senior Counsel for the petitioner that no inquiry report was furnished to the writ petitioner and thereby, he is prejudiced.

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14. Under such circumstances and upon perusal of the records, it is evident that the inquiry report was applied for by the petitioner through RTI and was accordingly supplied with it on 29.07.2013. While it is true that the inquiry report ought to have been furnished to the petitioner under Rule 9A of the Rules of 1964 the fact remains that mere non-supply of inquiry report in all cases cannot be accepted to be a ground for interference, unless prejudice is shown to have been suffered by the petitioner. In the facts of the present proceedings, it is evident from the records that the inquiry report was supplied to the petitioner subsequently on 29.07.2013 and no such averment is found upon

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scrutiny of the writ petition. No additional pleadings have been filed by the petitioner to bring it on record that the enquiry report came to be supplied or furnished to the petitioner pursuant to filing of the writ petition.

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15. There is also no averment in the pleadings as to why the statutory remedy for filing an appeal under Rule 15 of the Rules of 1964 was not resorted to by the petitioner. The limitation for filing an appeal is in respect of appeals filed under part V of the Rules is to be filed within a period of 3 months from the date on which the appellant (delinquent officer, delinquent employee) receives a copy of the order appealed against. The appellate authority may also entertain any appeal after the expiry of the said period, if it is satisfied that the appellant has sufficient cause for not submitting the appeal in time.

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16. In view of such clear provisions prescribed under the Rules of 1964, it was available to the delinquent employee to prefer an appeal before the appellant authority which is prescribed under Rule 15 of the Rules of 1964. It was equally incumbent on the delinquent employee to explain before this Court in its present proceedings as to why the appeal could not be filed or was not preferred and/or as to why the statutory forum for appeal would not be an efficacious remedy. No such averments are found in the writ petition nor have any submissions been advanced on behalf of the writ petitioner. In view of the clear provision under Rule 15 of the Rules of 1964, it appears to the Court that the writ petitioner could have preferred an appeal under Rule 15 within a period of 3 months from the date of receipt of a copy of the order passed by the disciplinary authority. In the opinion of the Court, non-furnishing of the enquiry report and the time taken to procure the copy of the inquiry report by way of a RTI application

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appears to this Court a plausible ground for condoning the period of limitation by any applicable authority.

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17. The further contentions that are urged on behalf of the writ petitioner are that there is no material before the Enquiry Officer to arrive at a conclusion holding the charges to be true and consequently the departmental authority also could not have accepted the findings of the Enquiry Officer thereby, holding the charges against the writ petitioner to be true. Presently the contention on behalf of the writ petitioner is that because of non supply of the inquiry report before imposition of penalty he suffered prejudice. Also non supply of the inquiry report is contrary to Mohd. Ramzan Khan (supra) and therefore, the order passed by the Disciplinary Authority should be set aside.

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18. It is the contention made in the writ petition that the petitioner was not served with a formal charge sheet nor was furnished with list of witnesses as well as documents to be used as evidence against him. However, from the written statements furnished, the copy of which is enclosed to the writ petition, no such objections are found to be raised. It is also seen from the records that the petitioner had earlier challenged the departmental proceedings by filing WP(C) No.3319 of 2011 which came to be disposed of by order dated 28.01.2013.

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19. From the recital of the order, it is seen that there were no specific pleas found, that the petitioner was not served with a formal charge sheet and/or any documents and the list of witnesses. In the present proceedings, the writ petition does not contain any statement indicating whether the same grounds or

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arguments were previously raised before the Court during the earlier round of litigation. Be that as it may, by the order dated 28.01.2013 the writ petition was disposed of with a direction to the respondent No. 2 therein to conclude the departmental proceedings drawn against the petitioner within a period of two months and the respondent No. 2 was directed to follow all procedural safeguards before taking a decision in the matter.

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20. From the departmental records produced before the Court, it is also not clear whether a formal charge sheet, along with the list of documents and witnesses, was ever furnished to the petitioner. There is no communication or representation is seen in the records regarding the suspect. Be that as it may, in terms of the earlier directions, the proceedings stood concluded by issuance of the order passed by the disciplinary authority, which is impugned in the present proceeding. From the pleadings available in the present proceedings, it is seen that pursuant to the directions issued by the Court in order dated 28.01.2013 passed in WP(C) No.3319 of 2011, the petitioner upon communicating the order, was served with a notice to appear before the Enquiry Officer in connection with the departmental proceedings and in pursuant to such notice being issued, petitioner appeared before the Enquiry Officer on 15.03.2013. However, there is no averment made in the present proceedings that upon appearing before the Enquiry Officer any prayers were made or any objections were raised before the Enquiry Officer that the formal copy of the charge sheet had not been served on the petitioner along with a list of witnesses or documents.

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21. It is also seen from the averments made in the writ petition that at a time when the disciplinary authority had passed the impugned order of removal on

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the basis of the inquiry report the petitioner was on casual leave since 26.04.2013. The impugned order was passed on 11.04.2013. According to the petitioner, he came to be aware by a news items published in a local daily namely “Samayik Prasanga” that the petitioner is removed from service.

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22. According to the petitioner, both the impugned orders dated 11.04.2013 and the consequential order of removal from service dated 26.04.2013 were not served on the petitioner.

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23. While it is correct that in terms of the Rules of 1964 and the judgment of Mohd. Ramjan Khan (supra) and subsequent judgments thereafter, it was incumbent on the respondent authority to ensure service of copy of the inquiry report on the writ petitioner. The respondents have not been able to justify as to why the inquiry report was not furnished to the petitioner prior to the imposition of the punishment by the disciplinary authority. Even after the disciplinary authority issued the impugned order, the same was not accompanied by the inquiry report. This act of non-furnishing of the inquiry report by the departmental officers is in conflict with the rules.

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24. It is also necessary to examine the aspect that in every case of non-supply of inquiry report, a Court is not required to interfere with the order of punishment without examining the prejudice that has been caused to the delinquent employee. In this context, a reference has to be made to the judgment of the Apex Court in Managing Director, ECIL, Hyderabad and Ors. vs. B. Karunakar and Ors. reported in (1993) 4 SCC 727. In this matter, the Apex Court having examined the earlier judgments rendered in Mohd. Ramzan Khan

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(supra) held that the Court or the Tribunal should not interfere with the order of punishment where it comes to a conclusion that non-supply of the report would have made no difference to the ultimate findings and punishments given. The Court or the Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished to the delinquent officer. It is only if the Court or the Tribunal finds that furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment and direct reinstatement of the employee with liberty to the authority to proceed with the enquiry and the enquiry should continue from the stage of furnishing him with the report. The relevant paragraph is extracted below:

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“ 31. Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of

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the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law.”

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25. This judgment of the Apex Court has subsequently been followed in several judgments. One such judgment is Union Bank of India v. Vishwa Mohan, reported in (1998) 4 SCC 310. In this matter the Apex Court interfered with the order passed by the High Court whereby the order issued by the disciplinary authority was interfered with and set aside on the ground that the delinquent employee was prejudiced by non supply of the inquiry report. In the facts of that case, although the inquiry report was not initially furnished to the delinquent employee, however, on a representation filed by the employee, the same was furnished. The Apex Court therefore, concluded that the delinquent employee did have an opportunity to assail the findings of the enquiry authority in the statutory appeal as well as in the writ petition and therefore, referring to the judgment of the Apex Court in Managing Director, ECIL, Hyderabad (supra) the Apex Court disagreed with the findings arrived at by the High Court. The Apex Court held that since the delinquent employee was in possession of the inquiry report or findings when he filed the statutory appeal or the writ petition

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in the High Court, the High Court was required to apply its judicial mind to all the circumstances and then form an opinion whether non-furnishing of the report would have made any difference to the result of the case and thereafter, pass an appropriate order. The Apex Court therefore, concluded that the High Court had failed to apply its judicial mind to the facts and circumstances of the case and erroneously concluded that non-supply of the inquiry report had caused prejudice to the petitioner. The judgment of the High Court was therefore set aside.

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26. Coming to the facts of the present case, from the records it is seen that on an application filed by the petitioner under RTI the petitioner was furnished with the inquiry report. While it is correct that the department ought to have furnished an inquiry report earlier and well prior to issuance of the impugned order, but upon a copy of the inquiry report being made available to the petitioner by the department, no steps were taken by the petitioner to either to file a statutory appeal as prescribed under Rule 15 of the Rules of 1964. It is equally surprising to note that no averment made by way of additional pleadings have been brought to state that the inquiry report had been supplied by the department. There is not a whisper in the present writ petition. It was open to the petitioner to assign the inquiry report including the findings arrived at by the Enquiry Officer in the present proceedings. However, no such steps were taken to incorporate these statement of averments before the Court by supporting documents, etc. There is simply no explanation why no such steps were taken.

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27. As discussed above, the pecuniary arguments before this Court was that prejudice was caused by non-supply of the inquiry report and therefore, it

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calls for interference. However, in view of the law laid down by the Apex Court in Managing Director, ECIL, Hyderabad (supra) and the subsequent judgment referred to in Vishwa Mohan (supra), it is clear that this Court will have to arrive at a conclusion that prejudice was caused by non-supply of the inquiry report. For reasons best known to the petitioner, it appears that the petitioner has deliberately suppressed the material facts that he was in possession of the inquiry report during the present proceedings which were filed before this Court as far back as 2013. It is also necessary to note that in the earlier proceedings, although a challenge was made to the entire departmental proceedings, the same came to be disposed of by order dated 28.01.2013 passed in WP(C) No.3319/2011 directing the respondents to conclude the enquiry within two months. Therefore, it has to be accepted that the challenge made by the petitioner to the departmental proceedings earlier were not accepted by the Court. That order had attained finality as no appeal or review has been filed by the petitioner. That being the position it was incumbent on the petitioner to explain before the Court how he can pursue the same challenge when it was earlier not considered by the Court. The petitioner was in possession of the inquiry report since 29.07.2013 and chose not to disclose this fact before this Court all along when the writ petition was filed in the year 2013 and thereby projecting that he suffered prejudice for non-supply of the inquiry report. Therefore, no purpose will be served to interfere with the impugned order and remand the same to the department to initiate the disciplinary proceeding from the stage of furnishing the inquiry report which the petitioner has in his possessions since July, 2013.

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28. While it is a trite law that the presence of alternative remedy and/or

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statutory remedy would not be a complete bar for exercising powers under writ jurisdiction. However, it is also incumbent on a writ Court to exercise its jurisdiction sparingly in matters where there is an alternative and efficacious remedy, more particularly a statutory remedy and when there are no explanations forthcoming from the petitioner as to why such statutory remedy would not be an efficacious remedy. The appellate authority prescribed under the Rules is empowered to examine the matter in detail and decide whether the inquiry was conducted fairly and as per the rules and also whether the acceptance of the findings in the inquiry report was proper by the disciplinary authority leading to the issuance of the impugned order of removal.

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29. Ordinarily, after the matter is admitted for hearing, normally a litigant is not relegated to a departmental authority to pursue the alternative remedy. However, in the facts of the present case and upon proper examination of the records, it is seen that the petitioner was in possession of the inquiry report, which albeit was supplied to him upon a request made by the petitioner through a RTI. But the petitioner chose not to disclose the same before this Court for reasons best known to the petitioner.

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30. The conduct of the petitioner in this proceeding is also required to be taken note of. All along, the sheet anchor of the arguments of the petitioner is the non-supply of the inquiry report and the prejudice it has caused to the petitioner. However, the records made available before the Court by the department reveals otherwise. Under such circumstances, where the petitioner appears to have been deliberately avoided taking recourse to the statutory remedy and without any explanation as to why the remedy provided under the

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Rules was not availed of and coupled with the fact that the petitioner has suppressed the fact that he had received the inquiry report as far back as 29.07.2013 as is evident from the records, this Court is of the view that a Writ Court ought not to allow the writ petition, where a litigant does not come with clean hands and suppresses material facts before the Court. Such litigant cannot be considered to be entitled to the privilege of availing orders of the Court under the writ jurisdiction. One who seeks equity must come to the Court with clean hands. Where there is a deliberate suppression of fact that the petitioner had been supplied with a copy of the inquiry report pursuant to an application made under RTI Act and that to during the pendency of the present proceedings, it is clear that the petitioner deliberately attempted to suppress this material fact. It was open to the petitioner to bring it on record by filing additional pleadings that it was in receipt of the inquiry report. Under such circumstances the writ Court would be disinclined to grant any relief to the petitioner for having taken recourse of suppressing of material fact. There are numerous judgments of the Apex Court as also from this Court that no relief ought to be granted to such a litigant who deliberately and willfully suppresses the material facts and does not come with clean hands before the Court.

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31. In Raj Kumar Soni v. State of U.P., reported in (2007) 10 SCC 635 , it was held by the Apex court that it is a fundamental principle of law that a person invoking the extraordinary jurisdiction of the High Court under Article 226 must come with clean hands and make full and complete disclosure of facts to the Court. The parties are not entitled to choose their facts to put forward before the Court. The foundational facts are required to be pleaded enabling the Court to scrutinize the nature and the content of the right alleged to have been

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violated by the authority. The relevant paragraphs are expected below:

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“ 11. The High Court, after an elaborate consideration of the matter, in clear and categorical terms, found that the Sub-Divisional Officer had no jurisdiction vested in him to grant/allot the government land and the power vests only with the District Collector. The appellants did not plead and establish to the satisfaction of the Court that the SubDivisional Officer is conferred with the jurisdiction to allot/grant the government land on the strength of applications by the interested parties. It is a fundamental principle of law that a person invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India must come with clean hands and must make a full and complete disclosure of facts to the Court. Parties are not entitled to choose their own facts to put forward before the Court. The foundational facts are required to be pleaded enabling the Court to scrutinise the nature and content of the right alleged to have been violated by the authority.”

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32. Although Rule 15 does not elaborate on the procedure to be followed, the manual of departmental proceedings, which are appended to the Rules of 1964 provides clear instructions as to how the appeals are to be considered. Under Rule 23.2 in respect of an appeal against an order imposing any of the penalties specified under Rule 7 (Rules of 1964) the steps required to be carried out by the appellate authority are clearly indicated. The same are extracted below.

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“ Rule 23(1) ……………………………………………

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(2) In the case of an appeal against an order imposing any of the penalties specified in Rule 7, the appellate authority shall consider –

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a) Whether the procedure prescribed in these rules has been complied with an, if

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not whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice;

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b) Whether the findings are justified; and

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c) Whether the penalty imposed is excessive, adequate or inadequate; and, after consultation with the Commission, if such consultation is necessary in the case, pass orders –

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i. setting aside, reducing, confirming or enhancing the penalty; or

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ii. remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case;

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Provided that –

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i. the appellate authority shall not impose any enhanced penalty which neither such authority nor the authority which made the order appealed against is competent in the case to impose;

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ii. if the enhanced penalty which the appellate authority proposes to imposes, is one of the penalties specified in clauses (iv) to (vii) of Rule 7 and an inquiry under Rule 9 has not already been held in the case, the appellate authority shall, subject to the provisions of Rule 10, itself hold such enquiry or direct that such enquiry be held in accordance with the provisions of Rule 9 and thereafter, on consideration of the proceedings of such enquiry make such orders as it may deem fit;

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iii. if the enhanced penalty which the appellate authority proposes to

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impose be one of the penalties specified in clauses (iv) to (vii) of Rule 7 and an enquiry under Rule 9 has already been held in the case, the appellate authority shall make such orders as it may deem fit;

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iv. no order imposing an enhanced penalty shall be made in any other case unless the appellant has been given a reasonable opportunity as far as may be in accordance with the provisions of Rule 9, of making a representation against such enhanced penalty.

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33. In view of such elaborate instructions having been prescribed for the appellate authority, this Court is of the considered view that ends of justice will be met, if the petitioner is permitted to file an appeal before the appellate authority prescribed under Rule 15. Considering the facts urged before the Court in respect of the charges and the allegations made against the petitioner are disputed by the petitioner and such contentions of the petitioner are also denied by the respondent authorities. The Court therefore, directs that the petitioner will approach the appellate authority prescribed for filing necessary appeals under Rule 15 of the Rules of 1964.

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34. However, considering the fact that the petitioner suffered dismissal from service and the disciplinary authority by the impugned dated 11.04.2013 imposed the severest penalty on the writ petitioner, the Court considers it appropriate to relegate the writ petitioner to file an appeal before the appellate authority as prescribed under Rule 15 of the Rules of 1964. The appellate authority will consider the aspect of limitation liberally inasmuch as an appeal could not have been filed before the appellate authority without supply of the inquiry report.

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35. The appellate authority will consider the fact that by the time the petitioner applied for and was supplied with the inquiry report the present writ petition had already been filed before this Court on 03.05.2013. Therefore, the period spent before this Court in the present proceedings will not be considered by the appellate authority while considering the period of limitation, if and when the appeal is filed. It is also necessary to mention here that the appellate authority will have all the powers of the disciplinary authority to pass all adequate orders in respect of the proceedings initiated as also the orders passed by the disciplinary authority, if it finds any infraction with the Rules and the procedures prescribed. In view of the above discussions the judgments referred to by the writ petitioner are therefore, required to be discussed at this stage.

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36. The writ petition accordingly, stands disposed of in terms of the above. The petitioner may prefer an appeal before the appellate authority as prescribed under Rule 15 within a period of 30 days from the date of receipt of the certified copy of this order.

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37. If such an appeal is preferred within the period prescribed, the appellate authority will examine the matter by calling all relevant records and thereafter, pass appropriate orders.

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38. While hearing the appeal, the appellate authority will grant all opportunities to the petitioner and pass appropriate orders by examining the necessary report.

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39. The Departmental records are returned back to the Government Counsel through the Court Master.

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40. Interlocutory application, if any is also disposed of. Interim order(s), if any stands merged.

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JUDGE

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Comparing Assistant

Jyotirmoy Choudhary v. the State of Assam and 3 Ors.

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Jyotirmoy Choudhary v. the State of Assam and 3 Ors.

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