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2006 Supreme(Gau) 554
IN THE HIGH COURT OF GAUHATI
BIPLAB KUMAR SHARMA, J.
Paban Kalita – Appellant
Vs.
State of Assam and Ors. – Respondent
WP. (C) No. 3412 of 2004
Decided On: 08.06.2006
Advocate Appeared
For Appellant/Petitioner/Plaintiff: C.C. Deka and R.K. Saikia, Advs.
For Respondents/Defendant: R. Chakraborty, Adv.
Procedural irregularities and discriminatory penalties render departmental proceedings illegal and unsustainable.
Headnote:
Procedural Irregularity - Departmental Enquiry - Rule 66 of Part-Ill A.P.M. - The Enquiry Officer conducted the enquiry alone without a Presenting Officer, did not afford the Petitioner the opportunity to engage a defense counsel, and relied on materials not part of the enquiry proceeding. The charge sheet did not contain the list of documents and witnesses. The Enquiry Officer's reliance on unexhibited documents and failure to examine key witnesses rendered the proceeding illegal. Discrimination in Penalty - The Petitioner, a mere driver, was dismissed from service, while the leader of the patrolling party, SI Surendra Nath Sarma, was awarded only a minor penalty. The extreme penalty imposed on the Petitioner was disproportionate and discriminatory. The appellate authority and the Tribunal's non-speaking orders were unsustainable. The findings were not based on evidence and shifted the burden of proof to the Petitioner. The judgment and orders were set aside, and the Petitioner was reinstated without backwages.
Fact of the Case:
The Petitioner, a Driver/Lance Naik, was dismissed from service following a departmental proceeding. The charge against him involved extorting money from a car occupant, which he denied. The departmental proceeding was marred by procedural irregularities, and the penalty imposed was discriminatory.
Finding of the Court:
The court found that the departmental proceeding was vitiated by procedural irregularities, including the Enquiry Officer conducting the enquiry alone, relying on unexhibited materials, and not affording the Petitioner the opportunity to engage a defense counsel. The extreme penalty imposed on the Petitioner was disproportionate and discriminatory, especially considering the minor penalty awarded to the leader of the patrolling party. The appellate authority and the Tribunal's non-speaking orders were unsustainable.
Issues: Procedural irregularity in the departmental proceeding, discrimination in the penalty imposed, and the sustainability of the appellate authority and Tribunal's orders.
Ratio Decidendi: The court held that the procedural irregularities and discriminatory penalty rendered the departmental proceeding illegal. The non-speaking orders of the appellate authority and the Tribunal were unsustainable as they were not based on evidence and shifted the burden of proof to the Petitioner.
Final Decision: The judgment and orders were set aside, and the Petitioner was reinstated without backwages.
B.K. Sharma, J.
1. The Petitioner in the rank of Driver/Lance Naik, who has been dismissed from service pursuant to a departmental proceeding drawn up against him, has made a challenge to the same on ground of procedural irregularity in conducting the enquiry, perverse finding of the Enquiry Officer based on which the penalty of dismissal from service has been imposed and discrimination in the matter of awarding the penalty.
2. The Petitioner, while was serving as Driver/Lance Naik, was taken up for a departmental proceeding by way of a first show cause notice dated 25.9.1998. The proceeding was numbered as D.P. No.5/1993. The charge levelled against him reads as follows:
That while you were attached to Patacharkuchi P.S. with unit vehicle No. ASP-808 you drove the unit vehicle No. ASP-808 on 28.6.93 at 11.45 P.M. in which UBSI Surendra Nath Sarma 2) UBC/1398 Lohit Doimary of Patacharkuchi P.S. 3) NK/172 Jogen Ch. Nath 4) C/366 Aban Borgohain 5) C/577 Padmadhar Medhi 6) C/641 Moneswar Boro and 7) C/636 Tapan Ch. Das of 7th A.P. Bn camping at Patacharkuchi P.S. travelled from Patacharkuchi Police Station to Pathsala side on National Highway No.31. On that night of 28/29.6.93 you found one Ambassador Car near Janata High School Pathsala at 2 A.M. and stopped the said car which was coming from Guwahati side and you produced the driver and the document of the car before SI (UB) Surendra Nath Sarma. You also took Rs. 15,000.00 (Rupees fifteen thousand) only from the occupant of the car Md. Hussain Ali Sheikh, S/o Late Johuruddin Ali Sheikh of village Dharamsala under Dhubri P.S.
On 29.6.93 before Shri M.K. Rai, APS, SDPO, Bajali at Patacharkuchi P.S. you confessed that you took Rs. 2,000.00 (Rupees two thousand) only from the victim Md. Hussain Ali Sheikh.
But after a while you confessed before the SDPO Bajali at Patacharkuchi P.S. that you took Rs. 15,000.00 (Rupees fifteen thousand) only from Md. Hussain Ali Sheikh on the previous night and refunded Rs. 10,000.00 (Rupees ten thousand) only to Md. Hussain Ali Sheikh in present of the SDPO Bajali and the following persons namely, SI Surendra Nath Sarma 2) UBC/1398 Lohit Doimari 3) NK/172 Jogen Chandra Nath 4) C/366 Aban Borgohain 5) C/577 Padmadhar Medhi 6) C/641 Moneswar Boro and 7) C/636 Tapan Ch. Das.
You did not report to SI Surendra Nath Sarma about your collecting Rs. 15,000.00 (Rupees fifteen-thousand) only from Md. Hussain Ali Sheikh with whom you were doing duty at that time.
You are therefore charged with gross misconduct, remiss and negligence in duty which render you unfit to be retained in service.
3. In response to the show cause notice, the Petitioner submitted his reply denying the charge. For a ready reference, the reply furnished by the Petitioner is reproduced below:
To
Hon'ble Superintendent of Police,
Barpeta, Assam.
Dated Barpeta the 9th Feb/1995
Ref:- Departmental Proceeding No. 5/93
Sub :- Reply to the show cause notice.
Respective Sir,
I have the honour to lay the following few lines for favour of your kind information and sympathetic consideration.
1) That on the night of 28.6.93 at about 11.45 A.M. I was with UBSI Sri Surendra Nath Sarma and six other police persons of APBn and we by the vehicle No. ASP-808 were patrolling in the National Highway. It was raing night. On our way we found one Ambassador car coming from Gauhati side. The incharge UBSI Sri Surendra Nath Sarma directed to stop the car. The car was stopped and SI Sarma asked to bring the driver with the documents. The documents were checked by Sri Sarma and after enquiry the driver of the car was allowed to move the vehicle. This things being done by Sri Sarma and whatever was discussed with the driver of the car was all done by him. I was on my vehicle at that time. So, I did not hear anything what was verified and discussed. Thereafter we were informed through a Bus that the O/C of Patacharkuchi P.S. has directed to return to police station. We then return to P.S. and after arriving there I along with
