Debananda Borah vs State Of Assam And Ors

Heard Mr. A. Sahad, learned Senior counsel for the petitioner assisted by Dr. B. Ahmed, learned counsel for the petitioner. Also heard Mr. N. Goswami, learned Government Advocate as well as Mr. M.K. Misra, learned Government Advocate for the State of Assam.

By this writ petition filed under Article 226 of the Constitution of India, the petitioner has challenged the impugned order dated 28.11.2008 passed by the Deputy Inspector General of Police (MPC) Assam, thereby awarding the punishment of removal from service to the petitioner who was working as Stenographer Grade-III in the Office of the Superintendent of Police, Lakhimpur, North Lakhimpur. The case of the petitioner in brief is that while the petitioner was discharging his duties on 23.12.2003, one Dilip Gogoi, had lodged an Ejahar in North Lakhimpur Police Station to the effect that the petitioner had taken a sum of Rs.35,000/- in 2(two) installments by giving him assurance of appointment as AB constable in Assam Police Battalion. Accordingly, North Lakhimpur P.S. Case No.981/2003 under section 406/ 420 IPC was registered. On 28.12.2003, one Naba Kumar Phukan, lodged another Ejahar to the effect that the petitioner had taken a loan of Rs. 3,37,000/- with assurance of returning money within 7 days time and gave him a cheque which could not be collected because there is no money in the SBI account of the petitioner. Accordingly, North Lakhimpur P.S. Case No.989/2003 under section 406/ 420 IPC was registered.

In connection with the said case, the petitioner was arrested and produced before the Court. Accordingly, the petitioner was placed under suspension. Thereafter, the petitioner was served with a 1st show-cause notice on the basis of the said 2 Ejahars, it was further mentioned therein that during the investigation, the Inquiry Officer had collected the materials that the petitioner had collected money from some other individuals by assuring them to give government jobs in police department and he had also issued some fake words to the Contractor for the supply of materials like cement, iron rods, CI sheet, electric ceiling fans etc, in the name of Superintendent of Police, Lakhimpur, North Lakhimpur which was procured for own personal use by the petitioner. It was further alleged that the petitioner had forged the signature of Superintendent of Police, Lakhimpur and Additional Inspector General (A), Assam and by using those signatures, the petitioner had passed some orders of cheating individuals. Accordingly, the petitioner had been charged with gross mis-conduct and dereliction of duty rendering him unfit to be retained in service. The said show-cause notice was accompanied by a statement of allegation, list of documents and list of witnesses. The petitioner had submitted his reply to the 1st show-cause notice on 21.06.2004. Thereafter, the authorities being dissatisfied with the reply, initiated departmental proceeding against the petitioner by virtue of order dated 01.07.2004 by appointing an Inquiry Officer to conduct departmental proceeding against the petitioner. By another departmental order, the Inquiry Officer was changed because of transfer of the earlier Inquiry Officer. In course of the departmental proceeding, 7 departmental witnesses were examined and the statement of the petitioner was also examined as a delinquent. The Inquiry Officer submitted his inquiry report dated 19.07.2008 within which it was held that the charge of mis-conduct as well as the dereliction of duty brought against the petitioner is well established beyond all his reasonable doubts. The petitioner was served with the Inquiry report by letter dated 02.09.2008 granting him 7 days time to make a representation and to give an intimation whether he would like to be heard in person before the final order is passed by the Disciplinary authority.

The petitioner submitted his written representation on 04.09.2008 with a prayer to exonerate him of his gross mis-conduct as well as dereliction of duty. Thereafter, the 2nd show-cause notice dated 23.10.2008 was served on the petitioner against which the petitioner had submitted his reply on 06.11.2008.

By the impugned order dated 28.11.2008, the Disciplinary authority i.e. Deputy Inspector General of Police (MPC), Assam by recording his satisfaction on merit of the case had decided to award the punishment of removal from service against the petitioner by holding that he is not entitled to arrear pay and allowances other than what he has already drawn for his suspension period. Thereafter, the petitioner had submitted an appeal before the Director General of Police, Assam on 26.12.2008.

The learned counsel for the petitioner has referred to the statements of allegation accompanying the 1st show-cause notice and it is submitted that the charges No. 1 and 2 and the statements of allegation No.1 and 2 of taking money from a person to assure him service and a loan of Rs.3,37,000/- could not be proved in trial and in this connection he has referred to the additional affidavit filed on 15.03.2016 to project that in GR Case No.1524/03 corresponding to North Lakhimpur P.S. Case No.981/03. The petitioner was acquitted due to lack of evidence by judgment and order dated 12.10.2015 passed by the learned SDJM (S), North Lakhimpur in GR Case No.1524/03. He has also referred to the judgment and order dated 17.11.2015 passed by the same learned Court in G.R. Case No.1543/03 corresponding to North Lakhimpur P.S. Case No.989/03 whereby the petitioner was acquitted on benefit of doubt.

It is submitted that in the criminal trial it could not be proved that the sum of Rs. 35,000/- was paid to the petitioner. It is also submitted that the loan taken by the petitioner in respect of the 2nd statement of the petitioner did not constitute any mis-conduct and therefore, the departmental proceeding was wrongly instituted against the petitioner. It is also submitted that the Inquiry Officer had assigned no reason to reach to a conclusion that the petitioner was guilty of the charges and that although many documents were relied upon by the departmental officers but only the 4 documents were exhibited and, as such no charges were proved by documentary files. Much stress has been given to the statement that the private loan transaction could not be a subject matter of departmental inquiry.

He has submitted that none of the charges framed against the petitioner for filling of the definition of mis-conduct for a government employee. He has also submitted that during the pendency of the writ petition, the petitioner had crossed the age of superannuation and therefore, the petitioner would be entitled to be re-instated in service for the purpose of grant of full pay and back wages. In support of his submissions, the learned counsel for the petitioner has relied on the following cases:-

1) G.M. Tank Vs. State of Gujarat & Ors, (2006) 5 SCC 446,

2) Corporation of the city of Nagpur, Civil lines Nagar Vs Ramchandra, AIR 1984 SC 626,

3) A.L. Kalra Vs. Project and Equipment Corporation Ltd, (1984) 3 SCC 316,

4) Ramashis Sharma (Constable No:319) Vs. State of Jharkhand & Ors, 2007 (50) AIC 847 (JHAR. H.C.)

5) Jagadish Chandra Mandloi Vs. Oil and Natural Gas Commission & Ors, 1995 (3) GLT 197.

6) Akshaya Kumar Goswami Vs. State of Assam and Ors, 2003 (2) GLT 86.

He has further submitted that no definite charges were framed against the petitioner within the meaning of Rule 9(2) of the Assam Service (Disciplinary and Appeal) Rules 1964.

Per contra, the learned State counsel has submitted that during the pendency of the writ petition, the appellate authority i.e. the Director General of Police, Assam had visited the appeal dated 26.12.2008 filed by the petitioner. Accordingly, it is submitted that the substantial appellate order has not been assailed by the petitioner. It is further submitted that in the departmental proceeding, all the charges passed on which the departmental proceeding was drawn has been clearly stated and the materials based on which the said charges were framed against the petitioner is contained in the statement of allegation which is substantial to the list of documents.

It is also submitted that all the witnesses examined by the department lacked to have all gross negligence and also the petitioner had admitted taking money for both the private contents, the said facts prove mis-conduct and dereliction of duty and the quantum of punishment ought not to have been interfered with.

Having heard the learned counsel for the parties, the materials on record has been perused. It appears to the Court that the existence of two conditions tilts heavily against the petitioner.

a. Firstly, although the present writ petition was filed on 11.04.2012, during the pendency of this writ petition, the the Director General of Police, Assam & The Appellate Authority by his order dated 14.07.2012, had disposed of the departmental appeal filed against the impugned order dated 28.11.2008. The said appellate order dated 14.07.2012 is annexed as Annexure-C to the affidavit- in-opposition filed on 14.08.2012 by the respondent No.2 through the Deputy Inspector General of Police (A), Assam. However, the said appellate order has not been challenged till date, as such, the appellate order has been allowed to attain finality.

b. Secondly, in his Show Cause Reply submitted on 21.06.2004, against the first show cause notice, the petitioner has categorically admitted having taken a loan of Rs.2,50,000/- from "a contractor by executing an agreement". In his representation dated 04.09.2008, submitted against the "enquiry report", the petitioner had admitted having taken a loan of Rs.1,50,000/- from "contractor". Thus, acceptance of loan from an unrelated person and that too from a contractor is admitted by the petitioner. In this regard, a perusal of the provision of 10(4) of the Assam Civil Services (Conduct) Rules, 1965 would indicate that the Government servant is prohibited from accepting a loan. Thus, a clear case of misconduct has been made out.

One of the plea strongly urged by the learned counsel for the petitioner is to the effect that the charges framed against the petitioner was not specific, which was in aberration of Rule 9(2) of the Assam Services (Discipline & Appeal) Rules, 1964 and in this connection reliance was placed on the case of Akshaya Kumar Goswami (supra). In the said cited case the first charge against the delinquent was for (i) shortage of cement, rod, CI sheet, and other articles worth Rs.44,723/-, (ii) submitting false accounts of TCI sheets worth Rs.11,910/- and, as such, he was charged with misappropriation of government property. The second charge was that the petitioner had handed over charge on 31.05.1983, but he did not hand charge memo, which was submitted on 07.07.1984 and, as such, he was charged with delinquency in handing over official records and ill motive. Charge No.3 was for insubordination to the superiors for his failure to regularise his accounts despite direction by the Executive Engineer concerned. However, although none of the charges were proved against the petitioner, the Enquiry Officer held that on the basis of evidence it could be presumed that the petitioner could be held to be responsible for loss of 57 pieces of CI sheets and for issuing 20 pieces of CI sheets to a contractor without permission from his superior, as such, it was held that government property was misappropriated. It is under these facts whereupon this Court had held that under Rule 9(2), the disciplinary authority is required to frame specific charges. However, in the present case in hand, the distinguishable fact is that specific charges are found to be framed against the petitioner and he has been held guilty on account of the said charges. Hence, the Court is of the considered opinion that this is not a case where the charges framed against the petitioner cannot be said to be "specific", as such, the ratio of the cited case is not applicable in this case. For similar reasons, the ratio of the case of A.L. Kalra (supra) is not found to be applicable under the facts of the present case.

As indicated herein before, the charges of misconduct within the meaning of Rule 10(4) of the Assam Civil Services (Conduct) Rules, 1965 has been made out, the ratio of case of Dr. J.J. Irani (supra), cited by the learned counsel for the petitioner is found to be not applicable because in the said case it was held that the charges of rape and murder was not misconduct. As indicated hereinbefore, the petitioner has admitted having taken a loan. Admission by the delinquent is the best evidence, as such, the ratio of the case of Jagadish Chandra Mandloi (supra) is not found applicable because it has been held therein that suspicion not to take place of proof. Moreover, in the present case in hand, by judgment and order dated 17.11.2015 passed in GR Case No. 1543/2003, the petitioner was acquitted by the learned trial Court on the basis of benefit of doubt and, as such, the ratio of the case of Corporation of the City of Nagpur (supra), is not found applicable because in the said case it was held by the Supreme Court that where the accused is acquitted honourably and completely exonerated of the charges it is not expedient to continue a departmental inquiry on the very same charges. For the same reasons, the ratio of the case of (i) G.M. Tank (supra), (ii) Capt. M. Paul Anthony (supra) is also not applicable under the distinguishable facts of this case.

Thus, in light of above discussions, when the departmental appeal filed by the appellant had been rejected by order dated 26.12.2008, which has attained finality, no other issue is required to be gone into. Thus, notwithstanding that the points urged by the learned counsel for the petitioner has been looked into, no case is made out for this court to examine any point urged in this writ petition. Accordingly, this writ petition fails and the same is dismissed.

The rule issued by order dated 24.04.2012 stands discharged. There shall be no order as to cost.

Court Master shall return the 3(three) departmental records File No. Proc. Cell/ XXVII/2004 (Vol-I), (Vol-II and Vol-III) to the learned Government Advocate.