BIDYUT BURAGOHAIN Vs. STATE OF ASSAM

JUDGEMENT

(1.) The writ petitioner Shri Bidyut Buragohain is a member of the Assam Police Service and is [presently holding the rank of Additional Superintendent of Police. A show cause notice dated 8.10.2001 was issued against the writ petitioner under the provisions of Rule 9 of the Assam Service (Discipline and Appeal) Rules, 1964, hereinafter referred to as the Rules, read with Article 311 of the Constitution of India leveling the following two charges:

(2.) By a subsequent show cause notice dated 23.4.2002, some further charges were levelled against the writ petitioner in respect of the incident/incidents as mentioned in the earlier show cause notice dated 8.10.2001. The petitioner submitted his reply to the charges levelled and thereafter a regular departmental proceeding was initiated against the writ petitioner wherein he participated. At the conclusion of the departmental proceeding, the enquiry officer submitted his report-dated 29.1.2003. On receipt of the said report of the enquiry officer, the disciplinary authority, by order dated 19.4.2003 indicated its di sagreement with the report of the enquiry officer and communicated to the petitioner the decision to hold a fresh enquiry into the charges levelled. Thereafter, by order dated 24.4.2003, one shri Dilip Bora, IPS, Inspector General of Police (TAP) was appointed as the enquiry officer and it is at that stage that the instant writ application has been filed calling into question the order dated 19.4.2003 whereby it was proposed to have a de novo enquiry, it is therefore, the validity of the aforesaid order that has to be decided by the Court in the present proceeding.

(3.) Shri K. K. Mahanta, learned Senior Counsel appearing for the petitioner has submitted that Rule 9 of the Rules has laid down an elaborate procedure for imposition of penalty. Drawing the specific attention of the Court to the provisions contained in the aforesaid Rule 9 of the Rules. Shri Mahanta has submitted that after the enquiry report is received by the disciplinary authority, the provisions of the aforesaid Rule cast upon the said authority a duty to consider the records of the enquiry and therea Her record its findings on each charge. No power has been conferred nor any provision has been made so as to enable the disciplinary authority to hold a fresh or de novo enquiry by discarding the report of the enquiry officer already submitted. Reliance on a judgment of the Apex Court in the case of K.R. Deb- Vs. - Collector, Central Excise, Shillong, reported in AIR 1971 SC 1447, learned counsel has submitted that the Apex Court in an identical situation, while interpreting the parametria pro visions of the C.C.S. (Classification, Control and Appeal) Rules, 1957, had laid down that the disciplinary authority will not have the power to order for a fresh/de novo enquiry and discard the report of the enquiry officer submitted earlier. Placing a Division Bench judgment of this Court in the case of Bandana Goala - Vs.- Assam Board of Revenue and others, reported in AIR 1972 Assam and Nagaland page 3, learned counsel for the petitioner has submitted that the provisions contained in Rule 9 of the Rules have been held by this Court to be mandatory provisions requiring strict compliance and adherence. It is further argued that in the present case, the report of enquiry has not been made available to the petitioner, but from the fact that the disciplinary authority has indicated its disagreement and proposed to hold a fresh enquiry, it can be inferred that the report of enquiry is in favour of the writ petitioner. Though not provided or empowered by the Rules, the disciplinary authority has discarded the said report and has proceeded to hold a fresh enquiry, which is not authorized under the provisions of the law. Learned counsel has, therefore, submitted that the course of action proposed not being authorized by law, the impugned order dated 19.4.2003 should be interfered by this court.