Mukut Ali vs The State Of Assam & Ors.

Heard Mr. J. Patowary, learned counsel appearing for the petitioner. Also heard Mr. T. C. Chutia, learned Senior counsel-cum-State Counsel assisted by Ms. L. Islam, learned counsel appearing for the respondents.

By filing this writ petition, the petitioner has challenged the order of dismissal dated 31.07.2024 passed by the Superintendent of Police, Kamrup, Amingaon, whereby he was dismissed from service consequent to departmental proceedings. The petitioner has also challenged the appellate order dated 07.12.2024 passed by the Deputy Inspector General of Police (CWR), Assam, Guwahati, whereby the statutory appeal preferred by the petitioner against the order of dismissal was rejected.

The brief facts leading to the filing of the present writ petition are that the petitioner was serving as ASI (UB) under Kamrup District Executive Force. While he was posted at Boko Police Station, Kamrup, departmental proceedings were initiated against him on the allegation of misconduct arising out of ACB Police Station Case No. 84/2023 registered under Section 7(a) of the Prevention of Corruption Act, 1988 (as amended in 2018).

The allegation against the petitioner was that while functioning as the Investigating Officer of Boko Police Station Case No. 416/2023 registered under Section 376 IPC read with Section 67(A) of the Information Technology Act, 2000, wherein one Babul Baruah was an accused, he demanded Rs. 6,000/-from Smt. Sabitri Das Baruah, wife of the accused, for producing the case diary before the learned District and Sessions Judge, Kamrup, in connection with the bail application of her husband. It was further alleged that on 16.10.2023, one Shri Phanindra Chandra Das was apprehended by the officials of the Anti-Corruption Branch while accepting Rs. 3,000/- from Smt. Sabitri Das Baruah on the instruction of the petitioner, as part of the alleged illegal gratification demanded by the petitioner. Thereafter, the petitioner was also arrested in connection with ACB Police Station Case No. 84/2023.

On the basis of the aforesaid allegations, a show cause notice dated 19.12.2023 along with the statement of allegation was issued to the petitioner. The allegation was that the conduct of the petitioner amounted to misconduct in discharge of official duties and abuse of his official position. The petitioner was accordingly called upon to submit his written statement of defense. Along with the statement of allegation, the list of witnesses and documents relied upon by the department were furnished to the petitioner. Thereafter, an Enquiry Officer and Presenting Officer, were appointed and the departmental proceedings proceeded, wherein the petitioner was afforded opportunity to defend himself.

The Enquiry Officer, after completion of the departmental enquiry, submitted his findings holding the charges against the petitioner to be proved. The Enquiry Officer recorded that the allegation of demand of illegal gratification was supported by the materials available on record, including the audio recording relied upon by the department, and that the acceptance of the alleged bribe amount through Shri Phanindra Chandra Das on the instruction of the petitioner was established during the enquiry. Upon receipt of the enquiry report, the Superintendent of Police, Kamrup, Amingaon, being the Disciplinary Authority, issued the second and final show cause notice dated 12.04.2024 to the petitioner. In the said notice, the Disciplinary Authority stated that he had gone through the findings of the Enquiry Officer and agreed with the opinion that the charges framed against the petitioner had been proved on the basis of preponderance of probabilities. The petitioner was thereafter called upon to submit his explanation against the findings of the Enquiry Officer before further action was taken.

The petitioner submitted his reply to the second show cause notice. However, after considering the materials on record and the explanation submitted by the petitioner, the Disciplinary Authority imposed the major penalty of dismissal from service by order dated 31.07.2024, holding that the conduct of the petitioner had tarnished the image of the disciplined force and amounted to serious misconduct.

Being aggrieved by the order of dismissal, the petitioner preferred an appeal before the Deputy Inspector General of Police (CWR), Assam, being the Appellate Authority. The Appellate Authority, after considering the records of the departmental proceedings, the findings of the Enquiry Officer, the order of the Disciplinary Authority and the grounds urged in the appeal, rejected the appeal by order dated 07.12.2024. Hence, the present writ petition has been filed challenging the order of dismissal as well as the appellate order.

Mr. J. Patowary, learned counsel appearing for the petitioner, submits that the impugned orders are liable to be interfered with as the same have been passed in violation of the principles of natural justice. Learned counsel submits that the primary challenge of the petitioner is with regard to the manner in which the second show cause notice dated 12.04.2024 was issued by the Disciplinary Authority.

Learned counsel submits that after submission of the enquiry report, the petitioner was entitled to an effective opportunity to submit his representation against the findings of the Enquiry Officer and persuade the Disciplinary Authority to take a different view. However, such opportunity was rendered ineffective as the Disciplinary Authority had already expressed its agreement with the findings of the Enquiry Officer before considering the representation of the petitioner.

Learned counsel submits that the second show cause notice dated 12.04.2024 clearly indicates that the Disciplinary Authority had already arrived at a conclusion that the charges against the petitioner stood proved and had found it to be a fit case for imposition of major punishment. He submits that, the opportunity granted to the petitioner thereafter was only an empty formality.

In support of his submissions, Mr. Patowary, learned counsel for the petitioner, places reliance upon the judgments of this Court in Babulal Das vs. State of Assam & Ors., reported in 2004 (2) GLT 259 and Kandarpa Kumar Kalita vs. UCO Bank and Others, in WP(C) No. 5574/2018, to submit that where the Disciplinary Authority records its agreement with the findings of the Enquiry Officer before considering the representation of the delinquent employee, the same amounts to pre-determination of guilt and vitiates the subsequent proceedings.

Learned counsel further submits that the respondents have failed to effectively rebut the specific contention raised by the petitioner regarding pre-determination of guilt by the Disciplinary Authority. It is submitted that a mere assertion that the departmental proceedings were conducted in accordance with law and that the findings were based on the materials available on record does not address the specific grievance of the petitioner regarding the manner in which the second show cause notice was issued. Learned counsel further submits that the Appellate Authority also failed to consider the aforesaid aspect of the matter in its proper perspective and mechanically affirmed the order of dismissal. It is submitted that once the decision-making process stands vitiated on account of violation of the principles of natural justice, the appellate order affirming such decision cannot be sustained in law.

Per contra, Mr. T. C. Chutia, learned Senior Counsel/State Counsel appearing for the respondents, submits that there is no illegality or infirmity in the departmental proceedings conducted against the petitioner. The proceedings were initiated on the basis of serious allegations arising out of ACB Police Station Case No. 84/2023 registered under Section 7(a) of the Prevention of Corruption Act, 1988 (as amended in 2018), wherein the petitioner was alleged to have demanded illegal gratification from the wife of an accused person in connection with production of the case diary before the learned Court for the purpose of bail proceedings. He submits that the charges were duly enquired into and the Enquiry Officer, after considering the materials available on record, submitted his findings holding the charges against the petitioner to be proved.

Learned Senior Counsel submits that the departmental proceedings were conducted in accordance with the prescribed procedure and the petitioner was afforded sufficient opportunity to defend himself. It is submitted that the findings recorded by the Enquiry Officer were based on the evidence and materials brought on record during the enquiry, including the statements of the witnesses examined by the department. He submits that the petitioner failed to dislodge the evidence placed against him and the findings recorded by the Enquiry Officer cannot be said to suffer from any infirmity.

Learned Senior Counsel submits that the second show cause notice issued by the Disciplinary Authority does not suffer from any legal infirmity. It is submitted that the purpose of issuing the notice was to provide an opportunity to the petitioner to submit his explanation against the findings of the Enquiry Officer before imposition of the proposed major penalty. According to learned Senior Counsel, mere reference to the findings of the Enquiry Officer or expression of agreement therewith cannot by itself amount to pre-determination of guilt, particularly when the findings were recorded after conducting a full-fledged enquiry and considering the materials available on record.

Learned Senior Counsel submits that the reply submitted by the petitioner to the second show cause notice was duly considered along with the enquiry report and other materials available on record before passing the order of dismissal. It is submitted that the Disciplinary Authority, after due application of mind, imposed the penalty considering the seriousness of the allegations involving demand and acceptance of illegal gratification by abusing official position. Learned Senior Counsel submits that having regard to the nature of the misconduct and the position held by the petitioner, the punishment of dismissal from service imposed under Rule 66 of the Assam Police Manual Part III cannot be said to be disproportionate.

Learned Senior Counsel further submits that the standard of proof applicable in a departmental proceeding is that of preponderance of probabilities and not proof beyond reasonable doubt. He submits that the materials available on record, when examined on the said standard, clearly establish the charges against the petitioner. Therefore, the findings recorded by the Enquiry Officer cannot be interfered with merely on the ground that the petitioner disputes the appreciation of evidence.

Learned Senior Counsel further submits that the Appellate Authority also examined the records of the departmental proceedings and the grounds raised in the appeal petition and, upon being satisfied that the enquiry was conducted in accordance with law and no prejudice was caused to the petitioner, rejected the appeal. Learned Senior Counsel therefore submits that no interference is called for with the orders passed by the Disciplinary Authority and the Appellate Authority.

In support of his submissions, Mr. T.C. Chutia, learned Senior Counsel/State Counsel, places reliance upon the judgment of the Hon’ble Supreme Court in Union of India vs. H.C. Goel reported in AIR 1964 SC 364 and submits that while the findings of the Enquiry Officer constitute relevant material for consideration, the Disciplinary Authority is required to independently examine the materials available on record. He further submits that in exercise of jurisdiction under Article 226 of the Constitution of India, the Court does not act as an appellate authority to re-appreciate the evidence or substitute its own conclusion for that of the departmental authorities. Unless the findings recorded in a departmental proceedings are based on no evidence or are perverse, interference by the Court is not warranted. Reliance is also placed upon the judgment of the Hon’ble Supreme Court in State of Karnataka vs. N. Gangaraj reported in (2020) 3 SCC 423 in support of the aforesaid proposition.

Learned Senior Counsel further relies upon the judgment of the Hon’ble Supreme Court in Deputy Inspector General of Police vs. S. Samuthiram reported in (2013) 1 SCC 598 and submits that the standard of proof applicable in a departmental proceeding is distinct from that applicable in a criminal trial. It is submitted that while a criminal case requires proof of guilt beyond reasonable doubt, the departmental proceedings are governed by the principle of preponderance of probabilities. Therefore, the findings recorded in a departmental proceeding, based on the materials available on record, cannot be interfered with merely because the strict standard applicable to criminal proceedings has not been satisfied.

I have considered the submissions advanced by the learned counsel appearing for the parties and have perused the record.

The challenge made by the petitioner is primarily with regard to the manner in which the disciplinary authority proceeded after receipt of the enquiry report. According to the petitioner, although an opportunity was granted to submit his representation against the findings of the Enquiry Officer, the same was rendered ineffective as the disciplinary authority had already expressed its agreement with the findings of the Enquiry Officer and had formed an opinion regarding the charges levelled against him. On the other hand, the respondents submit that the departmental proceedings were conducted in accordance with law and that the disciplinary authority, after considering the enquiry report and the materials available on record, proceeded to take a decision in accordance with the applicable rules.

After completion of the departmental enquiry, the Enquiry Officer submitted his findings holding the charges against the petitioner to be proved. Thereafter, the Disciplinary Authority issued the second and final show cause notice dated 12.04.2024 to the petitioner. The said notice reads as under:

A plain reading of the aforesaid notice indicates that the Disciplinary Authority did not merely record a tentative view upon consideration of the findings of the Enquiry Officer, but proceeded to express its final opinion that the charges levelled against the petitioner stood proved on the basis of preponderance of probabilities. The Disciplinary Authority further recorded its satisfaction that the case was fit for awarding major punishment for the alleged misconduct. Thus, the notice did not merely indicate a prima facie acceptance of the findings of the Enquiry Officer subject to consideration of the petitioner's representation; rather, it disclosed that the Disciplinary Authority had already arrived at a conclusion regarding the guilt of the petitioner and the proposed penalty before granting him an opportunity to submit his explanation.

The opportunity afforded to the delinquent officer to submit representation against the enquiry report, which forms part of the requirement of a fair decision-making process engrafted in the principles of natural justice, is intended to enable him to place his objections, point out any infirmity in the findings, explain the evidence on record and persuade the Disciplinary Authority to take a different view, if warranted. Such consideration is required to be undertaken with an open and unbiased mind before arriving at a final decision regarding guilt and punishment. While the Disciplinary Authority is entitled to consider the findings of the Enquiry Officer, such consideration cannot amount to recording a final conclusion on the charges before the representation of the delinquent employee is considered. In the present case, the expression of agreement with the findings of the Enquiry Officer, coupled with the observation that the case was fit for awarding major punishment, indicates that the Disciplinary Authority had already formed an opinion regarding the guilt of the petitioner before considering his explanation. Consequently, the opportunity granted to the petitioner through the second show cause notice was rendered ineffective.

The issue involved in the present proceedings is therefore not regarding the sufficiency of evidence or the correctness of the findings recorded by the Enquiry Officer. The petitioner has not challenged the proceedings merely on the ground of appreciation of evidence. The challenge is directed against the decision-making process adopted by the disciplinary authority while issuing the second show cause notice. The question is whether the opportunity granted to the petitioner was a meaningful opportunity as required under the principles of natural justice.

In this regard, the judgments relied upon by the learned counsel for the petitioner in the cases of Babulal Das (Supra) and Kandarpa Kumar Kalita (supra) require consideration. The said decisions emphasize the importance of an independent and unbiased consideration by the Disciplinary Authority after receipt of the representation against the findings of the Enquiry Officer. The underlying principle is that while the Disciplinary Authority is entitled to consider the findings of the Enquiry Officer, such consideration must be undertaken only after affording an effective opportunity to the delinquent employee and without approaching the matter with a pre-determined conclusion regarding his guilt or the punishment to be imposed. Thus, in my view, the ratio of the above cases would aptly apply.

The respondents have relied upon the judgments of the Hon’ble Supreme Court in the cases of H.C. Goel (supra), S. Samuthiram (supra) and N. Gangaraj (supra), to contend that the scope of interference by this Court under Article 226 of the Constitution of India in matters relating to departmental proceedings is limited. It is submitted that this Court does not act as an appellate authority to re-appreciate the evidence or substitute its own conclusion for that of the departmental authorities, and interference is warranted only where the findings are based on no evidence, are perverse, or where the decision-making process suffers from legal infirmity.

There cannot be any dispute with regard to the settled legal position that this Court, while exercising jurisdiction under Article 226 of the Constitution of India, does not sit as an appellate authority over the findings recorded in a departmental proceeding. The Court is not concerned with the sufficiency of evidence or with determining whether another view could have been taken on the materials available on record. However, the limited scope of judicial review does not prevent this Court from examining whether the procedure adopted by the Disciplinary Authority and the decision-making process leading to the impugned order were in accordance with the principles of natural justice. In the present case, the petitioner does not seek re-appreciation of the evidence or challenge the findings of the Enquiry Officer on merits; the challenge is confined to the manner in which the Disciplinary Authority proceeded after receipt of the enquiry report and whether the opportunity granted to the petitioner was an effective opportunity in law. Thus, the cases relied by the learned Senior Counsel, does not support the case of the respondents.

The records indicate that before considering the petitioner’s explanation against the findings of the Enquiry Officer, the Disciplinary Authority had already expressed its agreement with the findings, recorded that the charges stood proved and observed that the case was fit for awarding major punishment. As noted above, the purpose of granting an opportunity to submit representation against the enquiry report is to enable the delinquent employee to point out any infirmity or relevant circumstance and persuade the Disciplinary Authority to take a different view, if warranted. Such consideration must be undertaken with an open mind. The fact that the petitioner submitted a reply to the second show cause notice by itself does not establish that an effective opportunity was afforded, when the Disciplinary Authority had already disclosed its conclusion regarding the guilt of the petitioner and the proposed punishment. In such circumstances, the subsequent consideration of the petitioner’s reply cannot cure the initial defect, as the decision-making process itself stood affected. The Appellate Authority also failed to examine this specific grievance regarding the manner in which the second show cause notice was issued.

In view of what has been discussed hereinabove, this Court is of the considered view that the order of dismissal dated 31.07.2024 passed by the Superintendent of Police, Kamrup, Amingaon (the Disciplinary Authority), cannot be sustained, as the same has emanated from a decision-making process which suffers from violation of the principles of natural justice. Consequently, the appellate order dated 07.12.2024 passed by the Deputy Inspector General of Police (CWR), Assam, Guwahati (the Appellate Authority), whereby the appeal preferred by the petitioner was rejected, also cannot be sustained in law. Accordingly, the order of dismissal dated 31.07.2024 and the appellate order dated 07.12.2024 are hereby set aside and quashed.

As a consequence of setting aside the order of dismissal, the petitioner shall be reinstated in service. The matter is remanded back to the Disciplinary Authority to proceed afresh from the stage of consideration of the enquiry report and to grant the petitioner an effective opportunity to submit his representation against the findings of the Enquiry Officer. The Disciplinary Authority shall thereafter take an independent decision in accordance with law, without being influenced by any observations made in the earlier second show cause notice, the order of dismissal or the appellate order. The reinstatement of the petitioner shall, however, remain subject to the final outcome of the departmental proceedings, which shall be conducted in accordance with the directions contained hereinabove.

It is made clear that this Court has not expressed any opinion on the merits of the charges levelled against the petitioner, and the Disciplinary Authority shall consider the matter independently on the basis of the materials available on record and in accordance with law. The petitioner shall be entitled to all consequential benefits arising out of reinstatement, subject to the final order that would be passed in the departmental proceedings. The entire exercise shall be completed as expeditiously as possible, preferably within a period of three months from the date of receipt of a certified copy of this order.

With the above observations and directions, the writ petition stands allowed. No order as to costs.