Point of Law: Even though there is no express requirement in Fundamental Rule 54[3] for giving an opportunity to employee before passing an order, giving of such an opportunity is implicit in the exercise of power which has been conferred by the said provision.

JUDGMENT :

By invoking the extra-ordinary jurisdiction under Article 226 of the Constitution of India, the petitioner has preferred this writ petition assailing the action on the part of the respondent no. 2 as the appellate authority who by the impugned order dated 19.07.2017 has treated the petitioner’s period of absence from duty as dies-non.

2. The facts which are not in dispute can be narrated, in brief, as follows :-

2.1. The petitioner was inducted in the service of Assam Police on 01.08.1987. When he was in service in the year 2008, a crime case came to be registered against him on the basis of a First Information Report [FIR], lodged on 10.07.2008 before the Officer In-Charge, Nagaon Sadar Police Station. The said FIR was registered as Nagaon Police Station Case no. 711/2008 [corresponding G.R. Case no. 1357/2008], for the offence defined under Section 394, Indian Penal Code [IPC]. In the course of investigation of Nagaon Police Station Case no. 711/2008, the petitioner was arrested and at a later point of time, he was allowed to go on bail. After completion of investigation in connection with the said case, the Investigating Officer [I.O.] of the case submitted a charge sheet under Section 173[2], Code of Criminal Procedure [CrPC] against 3 [three] accused persons including the petitioner. One of the 3 [three] accused persons viz. Zakir Hussain was shown as an absconder in the charge sheet.

2.2. In connection with the said incident, as alleged in the FIR, the disciplinary authority initiated a departmental proceeding vide D.P. no. 19/2008 against the petitioner who, at the relevant point of time, was serving as Head Constable in the D.E.F., Nagaon. During the course of the departmental proceeding, the Enquiry Officer appointed for the purpose, examined 5 [five] nos. of prosecution witnesses. In the course of the departmental proceeding, documentary evidence was also produced and considered. The petitioner was allowed to participate in the departmental proceeding by affording opportunity to examine the prosecution witnesses and controvert documentary evidence adduced on behalf of the prosecution in that connection. By taking into consideration the explanation provided by the petitioner as the charge sheeted employee, the Enquiry Officer submitted his Enquiry Report with a finding that there was involvement of the charge sheeted employee i.e. the petitioner in the crime. Upon consideration of the Enquiry Report submitted by the Enquiry Officer, the respondent no. 3 as the disciplinary authority, by his order dated 25.04.2009, had imposed the penalty of dismissal from service upon the petitioner. In the said order imposing penalty, the disciplinary authority had further observed that the period of suspension of the petitioner shall be treated as dies-non.

2.3. The trial of G.R. Case no. 1357/2008 had, in the meantime, proceeded in the Court of the learned Chief Judicial Magistrate, Nagaon [‘the trial court’, for short]. During the course of the trial, the prosecution examined 15 [fifteen] nos. of witnesses where the petitioner standing as the accused, took the plea of total denial. After closure of prosecution evidence, the petitioner was examined under Section 313, CrPC. After conclusion of the trial, the learned trial court delivered its judgment in G.R. Case no. 1357/2008 on 04.04.2017 by holding that the prosecution had failed to establish the guilt of the accused persons who stood the trial, beyond all reasonable doubt. Consequently, the accused persons were acquitted of the charge under Section 394, IPC and were set at liberty.

2.4. After his acquittal in G.R. Case no. 1357/2008 by the judgment and order dated 04.04.2017, the petitioner preferred an appeal before the appellate authority i.e. the respondent no. 2 on 29.05.2017 along with a copy of the judgment and order dated 04.04.2017 passed by the learned trial court against the order passed by the disciplinary authority imposing penalty of dismissal from service alon