SABITA DAS Vs. STATE OF ASSAM

JUDGEMENT

(1.) Heard Mr. I. Rafique, learned counsel for the petitioner. Also heard Mr. D. Nath, learned Additional Senior Government Advocate for the respondents. The petitioner who is serving as Deputy Superintendent of Police and was posted as the Deputy Superintendent of Police, Headquarter, Nagaon was subjected to departmental proceeding vide HMA.-471/2018/39 dated 01.12.2018. In course of the proceeding, an Enquiry Officer was appointed and an Enquiry Report dated 30.01.2020 was submitted by providing that the charges against the petitioner was partially proved. The disciplinary authority being the Secretary to the Govt. of Assam in the Home (A) department by the order dated 27.02.2020 arrived at its conclusion that the enquiry officer had not given his finding against each of the charges and therefore, the Enquiry Report was considered not to be satisfactory. Accordingly, a fresh enquiry was ordered against the petitioner and for the purpose, an Enquiry Officer was also appointed. The order dated 27.02.2020 is assailed in this writ petition.

(2.) Mr. I. Rafique, learned counsel for the petitioner relies upon the pronouncement of this Court in Bidyut Buragohain Vs. State of Assam reported in 2005 (3) GLT 457 wherein in paragraph-5 it has been held that there is no specific power vested with the disciplinary authority under the provision of the Assam Services (Discipline and Appeal) Rules 1964 to enable the authority to hold a fresh/de novo enquiry in the event when the disciplinary authority is in a disagreement with the findings of the Enquiry Officer. It was further held that no specific power to hold a second enquiry on the same set of allegation which were earlier enquired having been vested on the disciplinary authority, a second enquiry on the same set of charges would not be maintainable.

(3.) Mr. D. Nath, learned Additional Senior Govt. Advocate on the other hand refers to Clause-6.18.1 of the manual of the departmental proceeding of the Govt. of Assam where in, it is provided that in the event of there being any material irregularity having been committed and that they have caused or they may cause prejudice to the person charged or such irregularities are likely to vitiate the proceeding, it will consider whether the whole enquiry should be set aside and a fresh enquiry be started de novo or whether the enquiry be set aside from the stage of occurrence of irregularity and be ordered to be started afresh form that particular stage.