High Court · 2012

While the petitioner was serving as an Additional Superintendent of Police in Lakhimpur District, he was placed under suspension by an order dat ed 10.07.2001 in contemplation of a departmental enquiry. The petitioner was sub sequently served with the memorandum of charges containing following charges :- While Sri Bidyut Buragohain, APS was posted as Additional Superintendent (cid:28)1. of Police(S), Lakhimpur on 05.07.2001, the Army apprehended one Sri Gojen Bhuya n alias Sri Joon Kalita an ULFA militant along with arms and ammunitions from th e barrack attached to his official residence as he had given shelter to the ULFA militant without informing his superior officers. Reportedly, the saidGojen Bhu yan had been staying with Sri Bidyut Buragohain for last 7(seven) months durin g his tenure at North Lakhimpur and also during his previous tenure at Nalbari. He had filed to produce the militant either before his superior officer in time or to any other authority for appropriate action. His above amounts to harbourin g of criminal and is also detrimental the security of the State. 2. While Sri Gojen Bhuyan (ULFA militant) was staying in the premises of Sri Bid yut Buragohain Govt. quarter at North Lakhimpur,the ULFA militant attempted to e xtort money from some businessman of North Lakhimpur by threatening them and the telephone of Sri Bidyut Buragohain, APS, was used but he did not take any acti on against the militant and thereby he had completely ailed to keep any check or watch on the activities of the ULFA militant being an important security office r in the district of Lakhimpur. 3. While Sri Bidyut Buragohain, APS, was posted as Additional Superintenden t of Police (HQ), Nalbari, one ULFA militant Sri Gojen Bhuyan alias Joon Kalita, surrendered secretly on 12.12. 2000 before him and the O.C, Borbori Police Stat ion in Subonsiri village under Borbori Police Station alongwith arms and ammunit ions. Shri Bidyut Buragohain, APS, had taken over custody of the surrendered mi litant with arms and ammunitions and kept him under his personal custody with a reported intension to secure his surrender formally. But he had never secured h is formal surrender and continued to keep him under his personal custody withou t any clear information to the Superintendent of Police, Nalbari. He didn’t ke ep Sri Gojen Bhuyan(ULFA) along with other surrendered militants in the barrack designated for them by Nalbari Police Station. Sri Bidyut Buragohain, APS,was th erefore charge with dereliction of duties and gross misconduct. 4. Again when Sri Bidyut Buragohain, APS, was transferred to Lakhimpur from Nalbari as Additional Superintendent of Police (HQ) he took Sri Gojen an ULFA m ilitant with him along and lodged him in the security barrack at his official re sidence premises and failed to inform the Superintendent of Police, Lakhimpur, S ri Bubhrajyoti Hazarika, APS, clearly that a militant had been staying with him in his security barrack, in the manner similar to when he was posted at Nalbari as addl. S.P(HQ), therefore, he was charged with serious misconduct and indiscip line. 5. Being a senior responsible police officer, Sri Bidyut Buragohain, APS, c ould have easily secured his surrender as per laid down procedure, but although several opportunities were available during his posting at Nalbari as-well-as La khimpur, he did not take any positive and effective action and continued to har bor the ULFA militant on the pretext of securing his surrender. Nor he did not d eposit the arms and ammunitions at malkhana for the reasons best known to him. 6. When the militant was lodged in the security barrack in his official residenc e premises, Sri Gojen Bhuyan alias Joon Kalita had come to close association wi th Sri Khorgeswar Doley and Sri Dhiren Sonowal, a student of Lakhimpur college. They had jointly planned for extortion of money from local businessman and writt en extortion letters purported to be issued by ULFA militant. They had used the official telephone of Sri Bidyut Buragohain, APS, for threatening businessman a nd demanding money. Quite contrary to the claim of Sri Bidyut Buragohain, APS, t o have kept the militant under proper watch, the ULFA militant could indulge in the above mentioned criminal activities while staying with Sri Bidyut Buragohain , APS, for which he was charged with gross misconduct and indiscipline. The official residential premises of Sri Bidyut Buragohain, APS, was rai 7. sed by the Army, the fact that he had harboured a militant under his custody an d the militant had been indulging in criminal activities was not known to his su periors. Therefore, Sri Bidyut Buragohain, APS was charged with gross misconduct for hiding important information from seniors and for harbouring militant. (cid:29) On not being satisfied with the reply submitted by the petitione r, the disciplinary authority conducted the departmental enquiry by appointing a n Enquiry Officer. The Enquiry Officer submitted his report dated 29.01.2003. Th e disciplinary authority on consideration of the said enquiry report, having fel t that the enquiry did not fully reflect all the articles of charges of the proc eedings decided to hold a de novo enquiry which action was challenged by the pet itioner in W.P(C) No.6097/2003 and this Court by an order dated 09.8.2005 passe d in the said writ petition held the same to be without jurisdiction and set asi de the order for holding a fresh enquiry. Situated thus, the disciplinary author ity after considering the enquiry report dated 29.01.2003 and other materials on record passed a detailed speaking order on 16.4.2008 by which the petitioner wa s awarded the major penalty of compulsory retirement from service by invoking Ru le 7(V) of the Assam Services (Discipline & Appeal) Rules, 1964 for gross miscon duct and negligence of duties. In the said final order dated 16.4.2008, the disc iplinary authority held that although charges No.2, 4, 6 and 7 had not been prov ed, charge No.1 had been partially proved and charges No.3 and 5 which were seri ous in nature had been proved beyond doubt and accordingly, decided to award the major penalty of compulsory retirement. Being aggrieved by the aforesaid order of compulsory retirement passed by the disciplinary authority, the petitioner-ap pellant preferred an appeal before the appellate authority which was dismissed b y the appellate authority vide order dated 28.8.2008. [4] Being aggrieved by the aforesaid order of penalty dated 16.4.200 8 passed by the disciplinary authority as well as the order dated 28.8.2008 pass ed by the appellate authority dismissing the appeal filed by the petitioner, the petitioner approached this Court by filing the writ petition being W.P(C) No.6 097/2003 challenging the said orders. In the writ petition, the petitioner has assailed the actions of the aut horities by contending, inter-alia, that the Enquiry Officer had given the findi ng in favour of the petitioner that all the charges have not been proved or es tablished, and accordingly, since charges were not proved, the disciplinary auth ority could not have come to a contrary conclusion without recording its disagr eement with the enquiry report and also without affording an opportunity to the petitioner to represent against the said disagreement before proceeding to pass the final order. Thus, the main plea of the petitioner in the writ petition was that as t he Enquiry Officer had exonerated the petitioner of all the charges, if the disc iplinary authority decided to act contrary to the findings of the Enquiry Offic er, it ought to have recorded its disagreement with reasons thereof and ought to have given an opportunity to the petitioner to be heard before passing any adve rse order or imposing any penalty. The learned Single Judge, after considering t he various charges and also the findings given in the enquiry report, proceeded to hold that as per enquiry report, the petitioner had not been exonerated fully from all charges and also held that it cannot be said to be a case of total exo neration of the petitioner from all the charges, rather it was a case of establi shing at least 3(three) charges out of 7(seven) and observed as follows:- (cid:28)19. As noted above, on perusal of the entire enquiry report, it cannot be sa id to be a case of total exoneration of the petitioner from all the charges rath er it is a case of establishing at least 3(three) charges not of 7 (seven) 20. If all the charges are taken together, the basic charge against the peti tioner is that although the particular ULFA militant was taken into custody at N alabari but the petitioner did not arrange his formal surrender nor her kept hi m under custody as is required to be done in case of a suspected criminal. The p etitioner instead of behaving as a responsible disciplined Police Officer rather kept the militant alongwith him even to the extent of taking him to North Lakhi mpur on his transfer from Nalbari and while doing so, the ULFA militant was allo wed to take his arms and ammunitions alongwith him. It was only 5.7.2001, the ar my personnel carried out the raid in the premises of the petitioner and could ap prehend the ULFA militant alongwith arms and ammunitions. The enquiry revealed t hat the said ULFA militant not only was allowed to remain free by the petitioner but acting advantage of his freedom, he also indulged in sending extortion note s by writing letters and making use of the telephone belonging to the petitioner . If this is not misconduct, I am afraid, nothing could be termed as misconduct . (cid:29) [5] Thus, the learned Single Judge was of the view that as per the enquiry report, the petitioner had not been exonerated fully from all charges an d some of the charges were indeed established. The learned Single Judge also di d not find any infirmity with the appellate order dated 28.8.2008 in which the a ppellate authority agreed with the finding recorded by the disciplinary authori ty and held that there were enough indication of consideration of the entire ma terials on record. Accordingly, the learned Single Judge , considering the serio usness of the charges levelled against the petitioner and the findings recorded by the Enquiry Officer, declined to interfere with the imposition of major penal ty of compulsory retirement, which the Court considered to be a lesser penalty, though accordingly to the learned Single Judge, the petitioner was deserving of a harsher penalty of dismissal/removal from service. Therefore, it is clearly evident that the learned Single Judge upheld the decision of the disciplinary authority as well as the appellate auth ority primarily on the ground that some of the charges against the petitioner we re said to have been proved by repelling the contention of the petitioner that t he charges levelled against the petitioner were found not proved by the Enquiry Officer. In view of the above, learned Single Judge did not consider it necessa ry to deal with the contention of the petitioner that in case of any disagreemen t with the finding recorded by the Enquiry Officer, the disciplinary authority o ught to have recorded its own finding and thereafter, afforded an opportunity to the petitioner to make a representation against such disagreement, which conten tion was based on the decisions of the Apex Court in Punjab National Bank & ors . Vs. Shri Kunj Behari Misra reported in AIR 1998 SC 2713, Lav Nigam vs. Chairma n and MD, ITI Ltd., reported in (2006) 9 SCC 440 and Ram Kishan Vs. Union of Ind ia reported in AIR 1996 SC 255. The learned Single Judge held that the princip le enunciated in the aforesaid decisions will not be applicable in the present c ase as it is not a case where the disciplinary authority had disagreed with the finding recorded by the Enquiry Officer. The learned Single Judge held that on t he contrary, some of the charges can be held to have been proved as the Enquiry Officer did not exonerate the petitioner fully from the charges. [6] s well as the respondents. [7] Learned counsel appearing for the petitioner-appellant has stre nuously argued that such finding of the learned Single Judge that the petition er had not been exonerated fully from all the charges and the present case is no t one involving disagreement by the disciplinary authority from the findings rec orded by the Enquiry Officer, is not borne by record and has drawn attention to the enquiry report dated 29.01.2003.Therefore, we have considered it expedient t We have heard the learned counsel appearing for the appellant a o reproduce the findings of the Enquiry Officer as the findings recorded by th e Enquiry Officer are pivotal to the decision of the learned Single Judge as wel l as of this Court.

1. (cid:28)Findings: In respect of first charge From the evidence recorded as mentioned above and after scrutinizing th e written statements it is revealed that Shri B. Buragohain brought the matter of formal and official surrender of Shri Gojen Bhuyan to the notice of immedia te superior officers and junior officers as revealed from the Statements of Shri S.J. Hazarika,APS the then S.P of Lakhimpur, Shri S.N. Singh, IPS the then S.P of Lakhimpur Shri Tularam Das, APS/ Asstt. Commandant with A.P. Bn. The then D. S.P DSB North Lakhimpur and Shri Ranjan Bhuyan, D.S.P Headquarter Nalbari. Shri Deepak Kumar, IPS, the then S.P Nalabari could not remember whether Shri B. Bura gohain had reported the matter for his formal surrender. Shri Ranjan Bhuyan D.S. P Headquarter, Nalbari further stated that SHri B. Buragohain has kept Shri Goje n Bhuyan as a ’Source’. ’Source’ is not informed to other officers. Shri Kamal C h. Bora, Retd. D.S.P DSB further stated that list for surrender on 26/1/01 was preferred by DSP Headquarter. As per procedure the list is to be prepared by DSP DSB. Shri B. Buragohain was away from the Headquarter from 24/1/01 to 26/1/01 f or Law and Order duty and as such the name of Shri Gojen Bhuyan could not be en tered for surrender. Further as there was no formal reporting of picking up fro m Subansiri village under Borburi P/S for surrender, his name could not be enlis ted for surrender on 26/1/01 at Guwahati. From the Statement of Shri Kamal Ch. Bora, SI of Police and the then She astader of Nalbari P/S Malkhana it is revealed that Shri B. Buragohain had kept the arms and ammunitions in the P/S Malkhana on 13.12.2000 and taken to North L akhimpur after 2/3 months of his transfer to North Lakhimpur by sending police e scort. At the time of Cross-examination by Shri P.P. Barua P.O. Shri B. Buragoha in D.O stated that on 15/6/01 two arms taken from Nalbari were kept in North Lak himpur P.S Malkhana. He further stated that as per discussion with the then S.P, Lakhimpur Shri S.N. Singh for surrender the arms and ammunition were taken back to his (Shri Buragohain) custody on 2/7/01 and Shri Buragohain had kept this ar ms till taken by army on 5/7/01. From the Statement of Shri S.N. Singh, IPS who had agreed for surrender with arms was revealed. As such the charge of gross m isconduct for not bringing to the notice of the superior officers or to the aut hority concerned could be proved. Shri Buragohain wanted that Shri Gojen Bhuyan be surrendered formally and ceremonially and be could not avail the opportunity on 26/1/01 as he was away from the Headquarter for law and order duty. At Lakhi mpur he was preparing for surrender of Shri Gojen Bhuyan with arms and ammunitio ns in consultation with S.P Shri S. N Singh, IPS which was revealed from the Sta tement of Shri S.N. Singh and as such his negligence of duty could be proved, i t is also revealed that he was not taken prompt action in respect of surrender.( emphasis added). 2. In respect of 2nd charge. From the statement (oral) as well as from the written statement of Shri K.K. Nath, DIG, the using of Shri B. Buragoghain’s phone by Shri Gojen Bhuyan, @ Joon Kalita, Ulfa militant, for attempting the extortion of money from the bus inessman of North Lakhimpur Town could not be ascertained. No proof was found in this respct.The same thing revealed from the Statements of the House Guards e.g . Shri Dandiram Saikia, Havildar, Shri Tulan Dutta, Constable, Shri Jitan Bora, Constable, Shri Muhiram Panging, Constable and Shri Dev Kr. Chetri, Constable. T hey further stated that nothing adverse of Shri Gojen Bhuyan was kwon to them a s well as to Shri B. Guragohain, except Shri Khageswar Doley no body came to mee t him(Gojen Bhuyan). Further he was not going out frequently. From the statement of Shri Tuluram Das, the then D.S.P DSB North Lakhimpur it revealed that Shti G ojen Bhuyan and other two accused issued only one extortion notice to one Punja bi Singh and this was the first case. As this was the first case of issuing ext ortion notice, this matter was not known to Shri B. Buragohain. And as such, th e 2nd charge of gross misconduct and negligence of duty brought against Shri B . Buragohain for his failure to check and watch the activities of Shri Gojen Bhu yan could not be proved. (emphasis added). In respect of 3rd charge. 3. As per statement of Shri Bhuben Gohain, the then O.C Barbari P.S it is revealed that before proceeding to Subansiri village under Borbori P/S for pick ing up Shri Gojen Bhuyan for surrender General Diary entry was there at Barbu ri P/S. After return also as stated, the details are being recorded on the Gene ral Diary. As per statement of Shri Kamal Ch. Bora, the then Sherastadar of Nal bari P/S it is revealed that the packet of arms and ammunitions was kept in Na lbari P/ on 13/12/200. In formal and ceremonial surrender function held at Guaha ti on 26/1/01 Shri Gojen Bhuyan could not be produced as Shri B. Guragohain was away from the Headquarters from 24/1/01 to 26/1/01 for law and order duty and hi s name was not listed by D.S.P Headquarter for surrender. And as such the charge of gross misconduct and negligence of duty for secretly surrender of Shri Goje n Bhuyan before Shri B. Buragohain and O.C Borabori and failure of securing for mal surrender could not be established. But not keeping Shri Gojen Bhuyan in th e barrack meant for surrendered militant was a fact. (emphasis added). 4. In respect of 4th charge. The charge of serious misconduct and indiscipline brought against Shri B . Buragohain, APS the then Addl. S.P could not be established as mentioned again st the charge No.1 above. (emphasis added). 5. In respect of 5th charge. The charge for not securing formal surrender of Shri Gojen Bhuyan, ULFA militant, and for not deporting the arms and ammunitions could (sic. not) be established as mentioned in charge No1 and charge No.2 above. (emphasis added). 6. In respect of 6th charge. The charge of gross misconduct and indiscipline brought against Shri Bur agohain for keeping him in the security barrack and use of Shri B. Guragohain’s telephone and failure of proper watching Shri Gojen Bhuyan the Ulfa militant cou ld not be established as mentioned in the charges No.1, Charge No.2 and Charge No.3 above. (emphasis added). 7. In respect of 6th charge. The charge of Gross misconduct for hiding important information form the superior against Shri B. Buragohain, APS in harbouring the militant under his c ustody indulging criminal activities could not be established as mentioned in Ch arge No.1, Charge No.2 and in charge No.3 above. (cid:29) (emphasis added). It may be mentioned that the word (cid:28)not (cid:29) was not found in the fin ding relating to 5th charge in the enquiry report annexed to the petition, which the learned counsel for the petitioner-appellant stated to be missing due to ty pographical mistake, which was not contested by the learned counsel for the resp ondents. [8] As regards the first charge, the Enquiry Officer gave the findin g that the charge of gross-misconduct for not bringing to the notice of the supe rior officer or to the authority concerned of the surrender of an ULFA member co uld not be proved. Similarly, in respect of 2nd charge of gross-misconduct and n egligence of duty against the petitioner for failure to check the activities of the surrendered ULFA member, the Enquiry Officer held that the same could not be proved. In respect of 3rd charge of gross-misconduct and negligence of duty reg arding the secret surrender of ULFA member and failure to secure formal surrend er, it was held that it could not be established. In respect of 4th and 5th cha rges, the Enquiry Officer also held that the same could not be proved. Similarly , in respect of 6th charge, the Enquiry Officer held that the same could not be established as mentioned in Charges Nos. 1, 2 and 3. Similar finding was given i n respect of charge No.7 of not being established. Thus, the findings given by t he Enquiry Officer as recorded in the enquiry report dated 29.01.2003 as quoted above would clearly reveal that Enquiry Officer had held that all the charges a gainst the petitioner could not be proved or could not be established. That bein g the position, we find it difficult to agree with the finding of the learned Si ngle Judge as recorded in Para Nos. 19 of the impugned judgment and order dated

08.01.2010 that it was not a case of total exoneration of the petitioner from a ll charges, rather, it was a case of establishing at least three charges out of seven. [9] Therefore, even though the Enquiry Officer had given a finding t hat the charges against the petitioner were not proved or could not be establish ed, the same was not binding upon the disciplinary authority and it could have come to a different conclusion based on the materials already existing in the en quiry report. However, law requires that the disciplinary authority gives an opp ortunity to the charged officer of being heard before proceeding to impose any p enalty on the basis of his own findings not consistent or contrary to the findi ngs given by the Enquiry Officer with reasons thereof. In the present case, what we have noted is that the disciplinary authority, after re-appreciation of the evidence which had emerged in course of the inquiry and other materials came to the conclusion that even if charges Nos. 2, 4, 6 and 7 could not have been prov ed, charge No.1 has been partially proved and charges Nos. 3 and 5, which are se rious in nature have been proved beyond doubt. Though the disciplinary authority may be entitled to come to such a conclusion, the fact remains that the said co nclusion is contrary to the findings recorded by the Enquiry Officer as discuss ed above. Therefore, if the disciplinary authority comes to a different or contr ary conclusion to that of the Enquiry Officer and draws its own conclusion, law requires that the charged officer be given an opportunity of being heard against the contrary or different decision reached by the disciplinary authority with t he reasons thereof before proceeding to impose any penalty as has been held by t he Supreme Court in a number of cases, viz., in Punjab National Bank & ors. Vs. Shri Kunj Behari Misra (supra), Yoginath D.Bagde v. State of Maharastra, reporte d in (1999) 7 SCC 739. [10] If the findings of the Enquiry Officer are favourable to the cha rged employee and if the disciplinary authority takes a view different from the one taken by the Enquiry Officer, the disciplinary authority is bound to given n otice setting out its tentative conclusion to the charged officer and only afte r hearing the charged officer, the disciplinary authority can arrive at a final finding of guilt. [11] ), the Supreme Court had held, (cid:28)19. The result of the aforesaid discussion would be that the principles of natu ral justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article o f charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the en quiry officer containing its findings will have to be conveyed and the delinquen t officer will have an opportunity to persuade the disciplinary authority to acc ept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer c harged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer. (cid:29) In Punjab National Bank & ors. Vs. Shri Kunj Behari Misra (supra (cid:28)29. & & &.. But the requirement of (cid:28)hearing (cid:29) in consonance with the principles of In Yoginath D.Bagde (supra), the Supreme Court also held that, natural justice even at that stage has to be read into Rule 9(2) and it has to be held that before the disciplinary authority finally disagrees with the findin gs of the enquiring authority, it would give an opportunity of hearing to the de linquent officer so that he may have the opportunity to indicate that the findin gs recorded by the enquiring authority do not suffer from any error and that the re was no occasion to take a different view. The disciplinary authority, at the same time, has to communicate to the delinquent officer the (cid:28)TENTATIVE (cid:29) reasons for disagreeing with the findings of the enquiring authority so that the delinqu ent officer may further indicate that the reasons on the basis of which the disc iplinary authority proposes to disagree with the findings recorded by the enquir ing authority are not germane and the finding of (cid:28)not guilty (cid:29) already recorded b y the enquiring authority was not liable to be interfered with. (cid:29) Court in subsequent cases. The above decisions have been consistently followed by the Apex In the present case, admittedly, the impugned order dated 16.04. [12] 2008 was passed by the disciplinary authority imposing major penalty of compulso ry retirement without giving any notice to the petitioner after the disciplinary authority recorded its conclusions differing with the findings of the Inquiry O fficer. The above course of action is plainly contrary to the well established p rinciple of law as discussed above. In view of the above, the appeal is allowed by setting aside the judgment and order dated 08.01.2010 passed by the learned Single Judge in W.P(C) No.4827 of 2008. Resultantly, the impugned order dated 16.4.2008 passed by the disciplinary authority imposing penalty of compulsory retirement and order dated 28.8.2008 passed by the appellate authority affirmi ng the penalty are set aside. As a consequence, the petitioner would be entitled to be reinstated to service. However, the State respondents would be at liberty to proceed with the enquiry by furnishing a copy of the findings/conclusions re ached by the disciplinary authority which are different from the findings record ed by the Enquiry Officer with reasons thereof to the petitioner to enable the p etitioner to submit his representation against such conclusions and findings arr ived at by the disciplinary authority before passing any final order in this reg ard. Till such final order is passed by the competent authority as stated above, the petitioner-appellant, who would be reinstated in service, shall be deemed t o be under suspension. However, he will not be entitled to any back wages upto t oday. With the above observation and direction, the appeal stands allo wed.