The disciplinary authority does not have the power to order a fresh or de novo enquiry by discarding the report of the enquiry officer already submitted, if the rules do not confer such a power.

Ranjan Gogoi, J.

1. The writ petitioner Shri Bidhyut Buragonhain 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 Services (Discipline and Appeal) Rules, 1964, hereinafter referred to as the Rules, read with Article 311 of the Constitution of India levelling the following two charges:

1. That while you were posted as Additional Superintendent of, Police (s), Lakhimpur on 5.7.2001, the Army apprehended one Shri Gojen Bhuyan @ Joon Kalita an ULFA Militant alongwith arms and ammunitions from the barrack attached to your official residence as you had given him shelter without informing your superior officers. Reportedly, the said Gojen Bhuyan had been staying with you for the last 7 (seven) months during your present tenure at North Lakhimpur and previous tenure of Nalbari. You had failed to produce the militant either before your superior officer in time or to any other authority for appropriate action. Your above act amounts to harbouring of criminal and is also detrimental to the security of the State.

You are therefore, charged with gross misconduct and negligence of duty.

2. That while Shri Gojen Bhuyan (ULFA militant) was staying in the premises of your Government quarter at North Lakhimpur, he (ULFA) attempted to extort money from some businessmen of North Lakhimpur, threatening them by using your telephone but you did not take any action against the militant and thereby you had completely failed to keep any check or watch on the activities of the ULFA militant being an important security officer in the District of Lakhimpur.

You are therefore, charged with gross misconduct and negligence of duty.

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 disagreement with the report of the enquiry officer and communicated to the petitioner the decision to hold a fresh enquiry into the charge 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 lias 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 thereafter 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 v. Collector, Central Excise, Shillong learned Counsel has submitted that the Apex Court in an identical situation, while interpreting the pari materia provisions of the