IMPORTANT POINT
The Court affirmed that a show cause notice can initiate disciplinary proceedings if it meets the procedural requirements outlined in the relevant rules.

JUDGMENT :

Sanjay Kumar Medhi, J.

Imposition of a penalty of stoppage of 3 increments with cumulative effect in a disciplinary proceeding which was affirmed in the departmental appeal is the subject matter of challenge in this petition under Article 226 of the Constitution of India.

2. As per the facts projected, the petitioner was working as a Constable (UB) and relating to an incident of theft of a departmental motorcycle which was in his custody, a disciplinary proceeding was initiated. It is the case of the petitioner that relating to the said incident of theft, he had lodged an FIR on 03.01.2015 and thereafter, a show cause notice was issued to him on 25.01.2015. The said notice was replied to by the petitioner on 06.02.2015 and being dissatisfied, an inquiry was initiated. The inquiry culminated in a report in which, the allegations against the petitioner were found to be substantiated. Accordingly, on 06.05.2015, the second show cause notice was issued to the petitioner which he had replied on 15.05.2015. Thereafter, the impugned order dated 22.05.2015 was issued imposing the penalty of stoppage of 3 increments with cumulative effect. The petitioner had preferred a departmental appeal against the aforesaid order of penalty which, however, was rejected by the Appellate Authority on 07.07.2015. It is the legality and correctness of the aforesaid orders which have been put to challenge.

3. I have heard Shri B. Malakar, learned counsel for the petitioner. I have also heard Ms. M. Bhattacharjee, learned Addl. Sr. Government Advocate, Assam.

4. Shri Malakar, learned counsel for the petitioner has submitted that there was no negligence at all and since his quarter was located at a distance, he had used the departmental motorcycle. He has also submitted that immediately on detecting the theft, he had lodged an FIR on 03.01.2015. On the issue of the procedure adopted, it is submitted that the show cause notice dated 25.01.2015 cannot be construed to be initiation of a formal disciplinary proceeding as no charge sheet was issued to him. He submits that unless a formal charge sheet is issued, no action can be taken on the basis of a show cause notice. He has also drawn the attention of this Court to the averments made in the writ petition and the reply made by the respondent no. 5 in the affidavit-in-opposition on the aforesaid issue.

5. The learned counsel has relied upon a judgment dated 28.04.2010 passed in WA No. 104 of 2010 (Shri Rallenthang Vankal Vs. The Hindustan Paper Corporation Ltd. & Ors.). By referring to paragraph 7 of the said judgment, he has submitted that a definite charge sheet is required to be submitted before proceeding with the disciplinary action. The learned counsel has also submitted that the penalty imposed is not prescribed either under the Assam Services (Discipline and Appeal) Rules, 1964 (hereafter referred to as the Rules) or the Police Manual. He, accordingly submits that the penalty has been imposed without any jurisdiction and is liable to be interfered with. He has also submitted that the penalty prescribed in the Rules also includes the penalty of recovery to the extent of loss caused and without availing the said option, the present penalty of withholding of increments with cumulative effect has been imposed. The learned counsel accordingly submits that the impugned action be interfered with.

6. Per contra, Ms. Bhattacharjee, learned State Counsel has submitted that the entire action has been taken by following the due process of law. She submits that the petitioner has not expressed any grievance with the procedure adopted in the inquiry and she adds that the delinquent petitioner was given a fair and reasonable opportunity to defend himself. As regards the submission that no formal departmental proceeding was initiated, she contends that the show cause notice dated 25.01.2015, in clear terms reflected that a formal departmental proceeding was, indeed initiated. She has also submitted that the case