Sirazul Haque Laskar Vs the State of Assam and 2 Ors.

1. Heard Mr. M.H Laskar, learned counsel for the petitioner. Also heard Ms. M. Bhattarcharjee, learned Addl. Sr. Government Advocate appearing for the State respondents.

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2. The challenge in this writ petition is to the order dated 16.08.2016 by which the appeal of the petitioner filed before the Deputy Inspector General of Police, Assam, Silchar had been rejected by upholding the order dated 17.04.2014 discharging the petitioner from his service. The order dated 17.04.2014 is also the subject matter of this writ petition.

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3. The facts in brief leading to the passing of the impugned order dated 17.04.2014 can be traced back to a show cause notice issued upon the petitioner on 10.02.1996 in D.P Case No. 2/1996 by the Superintendent of Police Karimganj leveling 5 charges against the petitioner. On the basis of the 5 charges, the petitioner was required to submit his statement in defense within 10 days from the date of receipt of the communication provided to him. The statement of allegation was also apprehended to the said show cause notice. A list of 10 witnesses and the documents and articles to be exhibited were also given to the petitioner. The petitioner gave his reply on 20.06.1996 and thereafter by an order dated 29.11.1997, the Superintendent of Police Karimganj discharged the petitioner from service with immediate effect. Pertinent to note here as pointed out by the learned counsel for the petitioner, the petitioner had joined in service on 19.09.1990 as UB Constable in Assam Police.

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4. Being aggrieved by the order dated 29.11.1997, the petitioner had approached this Court by way of filing the W.P(C) No. 6289/2006 whereby an order dated 12.12.2013, the impugned discharge order was quashed, the petitioner was permitted to prefer a representation against the inquiry proceeding and if such representation is filed the disciplinary authority would consider the same on merit by taking note of the petitioner’s grievances. It was observed in the order passed by this Court that the petitioner would not be

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reinstated in service automatically since the interference with the discharge order was being made by the Court only on consideration of breach of the principle of natural justice. The petitioner thereafter filed a representation to the Superintendent of Police, Karimganj. The Superintendent of Police, Karimganj by a communication dated 15.03.2014 served the second show cause notice, thereby supplying a copy of the inquiry report and a certified copy of the departmental proceeding and the inquiry report to the petitioner requiring him to file a reply to the second show cause notice within 10 days from the date of receipt of the same. The petitioner replied to the aforesaid show cause notice by which he had prayed for a reinstatement. The petitioner had submitted that he was not allowed to cross-examine any of the witnesses during the inquiry proceeding and that the Inquiry Officer had acted perfunctorily. After a consideration of the reply filed, by an order dated 17.04.2014, which is a subject matter in this writ petition, the petitioner was discharged from his services again for his criminal activities. However, no orders were passed with regard to the interim period which had passed between the date of the original order, the date of the High Court for quashing the earlier proceeding and the date of passing the order passed against the petitioner. The petitioner thereafter filed another writ petition being W.P.(C) No. 3680/2014 which came to be disposed on 22.04.2015 requiring the petitioner to file an appeal against the discharge order as provided for in the Rule-13 of the Assam Services (Discipline & Appeal) Rules, 1964 within a period of 1 months from the date of passing of the order. The petitioner preferred an appeal dated 07.05.2015 which came to be rejected on 16.08.2016.

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5. Mr. M.H. Laskar, learned counsel for the petitioner has submitted that the order passed by the appellate authority would demonstrate that the appellate

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authority had tried to communicate with all the witnesses mentioned in the disciplinary proceeding. However, none of the witnesses except one of the witnesses was traced out to corroborate the earlier statement made in the disciplinary proceeding. The appellate authority had found that there was almost a lapse of 20 years and therefore, all the Police personnel had already retired.

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6. Mr. M.H. Laskar, learned counsel for the petitioner submits that although it is apparent from the order passed by the appellate authority that the appellate authority had come to a finding that the statement of the witnesses carried their signature, the order does not reflect any finding on the fact as to whether that the petitioner had been allowed an opportunity to cross-examine during the inquiry proceeding. He has further emphasis on the acquittal granted to him in the criminal court to prove that the appellate authority could not have relied upon the principle of preponderance of probability to dismiss the appeal filed by the petitioner.

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7. Mr. M.H Laskar, learned counsel for the petitioner has also referred to the show cause notice dated 15.03.2014 to impress upon this Court that the very language used would demonstrate that even before deciding to supply a copy of the inquiry report herein to the petitioner. The disciplinary authority had already proposed to award a major punishment for dismissal upon the petitioner. The learned counsel for the petitioner has submitted that the disciplinary proceeding having already had framed its mind with regard to the guilt of the petitioner while issuing the show cause notice, the supply of the inquiry report to the petitioner and also the so called second show cause notice giving him a purported opportunity of controverting the findings of the inquiry report were made as a mere formality and did not give an effective opportunity of defense to the petitioner. In such view of the matter, he prays that the impugned order

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dated 17.04.2014 be set aside and quashed. He further prays that since the second show cause notice does not reflect that it was done with an impartial mind, the same also deserve the interference of this Court.

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8. Per contra, Ms. M. Bhattarcharjee, learned Addl. Sr. Government Advocate has submitted that the petitioner had been given all the opportunity to defend himself during the departmental proceedings and he has also been given acopy of the inquiry report to which he has filed detailed representation after the matter had been remanded back by this Court. The learned counsel has also submitted that the appeal preferred by the petitioner had taken up all possible grounds and every ground has been addressed by the appellate authority while rejecting the appeal. The learned counsel has further submitted that the petitioner had joined the service in the year 1990 and had been terminated in the year 1996 and the matter being an old matter, no fruitful relief can be granted to the petitioner at this stage, even though the litigation continued with regard to the impugned termination of service.

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9. I have given due consideration to the submissions made and I have also perused the records made available to this Court. The records reveal that the second show cause notice as annexed to the writ petition which was in fact the notice which was served upon the petitioner after this Court had directed the same to be done by its order dated 12.12.2013. The relevant portion of the second show cause notice is quoted herein below;

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“ OFFICE OF THE SUPERINTENDENT OF POLICE KARIMGANJ :: ASSAM

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Memo No. K/R/20/2014/ Dated 15/03/2014

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To,

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Delinquent UBC/454-Sirajul Haque Laskar S/o Haji Guljar Ali Laskar

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Vill Didarkhush Part-I

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P/O Motinagar, PSSonai, Dist-Cachar (Assam)

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Sub- Second Show cause Notice

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Ref:- D/P No. 02/1996 drawn up against you. & Your representation in pursuance to Hon’ble Gauhati High Court WP(C) No. 6289/2006

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“ Based on the findings of enquiry on D.P. No. 02/1996 drawn up against you submitted by Shri. A. Borgohain, APS, then, it has been proposed to award you major punishment of Dismissal from service.”

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It is thus appears to this Court that the Superintendent of Police, Karimganj who was the disciplinary authority of the petitioner had agreed to the findings of the inquiry report and had made up its mind to propose the award the major punishment for dismissal from service. This Court feels so because the question of the quantum of punishment to be imposed upon the delinquent would arise only once the disciplinary authority was convinced with the findingsin the inquiry report. This Court notices that such a finding was arrived at by the disciplinary authority even before the petitioner had given the opportunity to have his hearsay on the inquiry report.

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10. This Court in the case of Babul Hussain -Versus- State of Assam & Others , reported in 2024 (1) GLT 51 has held as follows;

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“ 21. The safeguards given to a Government Servant facing a Disciplinary Proceeding is given under Article 311 of the Constitution of India. The prime objective of the said Article is to provide adequate and reasonable safeguard to a delinquent facing an enquiry. It may be mentioned that prior to the 42nd amendment of the Constitution of India, there was a requirement to notify the delinquent on the proposed penalty, which however has been done away with. However, what is required is that in the enquiry, all reasonable safeguards are to be afforded to the delinquent officer and on completion of the same, a copy of the said

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Enquiry Report is required to be forwarded to the delinquent by the Disciplinary Authority before concurring with the findings so that the delinquent is given an opportunity to persuade the disciplinary authority to take a view in favour of the delinquent based on the materials on record and not to concur with the findings of guilt arrived at by the Enquiry Officer. The requirement to give an opportunity to cross examine the witnesses produced by the management and to adduce evidence as defence and also to have the assistance of a defence representative are some of the mandatory inbuilt mechanism to ensure that the process is done fairly and transparently.

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22. The Hon’ble Supreme Court in the case of Union of India and Ors. vs. Mohd. Ramzan Khan reported in (1991) 1 SCC 588 had laid down that furnishing of the Enquiry Report is mandatory so as to give the delinquent an opportunity to persuade the disciplinary authority not to accept the said report. In the subsequent case of Managing Director, ECIL Ltd. & Ors.vs. B. Karunakar and Ors. reported in (1993) 4 SCC 727, it has been clarified that the decision of Ramzan Khan (supra) would be prospective in nature. In subsequent cases, it has also been clarified that depending on the particular facts and circumstances, the delinquent would also have to plead suffering of prejudice due to non-supply of the Enquiry Report.

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24. With regard to the second show cause notice dated 24.04.2012 by which the disciplinary authority had asked for the views of the petitioner on the Enquiry Report, it appears that the said authority had stated that the findings of the Enquiry Officer were already concurred with. The aforesaid action on the part of the Disciplinary Authority is not in consonance with the requirement of affording a reasonable opportunity to a delinquent to safeguard himself as such opportunity is required to be given at all stages of a Disciplinary Proceeding.”

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11. This Court has also noticed that the penalty imposed upon the petitioner is one of the discharge from service which is not a prescribed penalty. With regard to the imposition of discharge from service as a penalty upon an incumbent who was serving in the Assam Police, this Court in the case of Babul Hussain (supra) has held as follows;

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“ 25. With regard to the contention that Discharge from service is not a prescribed penalty, this Court finds force in the argument that when the Rules governing the field do not prescribe such a penalty, the same

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cannot be imposed. This Court is unable to accept the submissions made on behalf of the State that the import and meaning is to be gone into and Discharge can be construed as Dismissal. The different penalties prescribed under Rule 9 of the Rules have different connotations and implications and therefore such submissions are not acceptable.”

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12. This Court notices that the facts involved in the Babul Hussain (supra) were familiar in the present case, insofar as they relate to the challenge to the disciplinary proceeding. In the aforesaid case, as has been done in this case, the allegation of absence of opportunity to cross-examination of the witness in the inquiry has also been considered.

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13. Agreeing with the law laid down by this Court in the case of Babul Hussain (supra), I am of the considered opinion that the process and method adopted by the disciplinary authority in coming to a conclusion of guilt of the petitioner, as has been done in the present case, cannot find the support of law or reasons and therefore, the impugned show cause notice dated 15.03.2014 and all action taken by the disciplinary authority and the appellate authority consequent to such show cause notice deserves the interference of this Court.

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14. Accordingly, the show cause notice dated 15.03.2014, the impugned order of discharge dated 17.04.2014 and the appellate order dated 16.08.2016 are set aside and quashed. On setting aside of the proceedings after 15.03.2014, the petitioner would now be entitled to be re-instated in service. The respondents would be at liberty to issue a fresh second show cause notice to the petitioner, if it is deemed necessary to continue the disciplinary proceeding, despite the fact that the DP was initiated against the petitioner in the year 1996 and even the appellate authority in the order itself come to a conclusion that none of the witnesses would now be available.

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15. It is noticed that the petitioner has been kept out of service not on his

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choice but due to an order, which has required the interference of this Court. It is also noticed that the show cause notice and the consequential orders have been interfered with only because of the violation of principle of natural justice. In such circumstances, it is ordered that the petitioner would be deemed to be entitled to continuity in service, however there would be no entitlement to back wages. The petitioner is directed to report to the Office of Superintendent of Police, Karimganj on or before 21.02.2026.

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16. It is also provided that in case the departmental authorities deem it fit and proper to continue with the issue, the show cause notice shall be served within a period of 1 month of the petitioner reporting for duty and the departmental proceeding shall be concluded as early as possible, and in any case not continued beyond a period of 3 months from the date when the petitioner reports for duty.

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17. This Court has not expressed any view as to whether or not the departmental proceeding is required to be continued against the petitioner.

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18. The departmental counsel is permitted to return back the original case record requisitioned.

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19. Accordingly, the writ petition is allowed. No cost.

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JUDGE

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Sirazul Haque Laskar v. the State of Assam and 2 Ors.

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Sirazul Haque Laskar v. the State of Assam and 2 Ors.

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