The denial of the opportunity to examine a defense witness in disciplinary proceedings constitutes a violation of procedural fairness, warranting the annulment of the dismissal order.

JUDGMENT :

Heard Mr. I. Rafique, learned counsel for the petitioner and Mr. K. Konwar, learned Addl. Advocate General, Assam assisted by Mr. A.K. Ghosh, learned counsel for the respondents.

[2.] By filing this writ petition, the petitioner who was working as Driver/Naik in the Assam Police has challenged the order by which he was dismissed he was dismissed from service and also the order by which his appeal was rejected by the Appellate Authority. The sole issue to be considered and decided is as to whether any prejudice has been cause to the petitioner for not giving him the opportunity to produce and examine the sole defense witness named by him.

[3.] The petitioner was served with a Show Cause Notice dated 31.08.2020 where it was stated that in the investigation that was made, it was revealed that he was keeping in regular contact with known drug peddlers and that they were all together arrested on being found to be involved in a criminal case. Therefore, the Show Cause Notice was issued charging him of gross misconduct, indisciplined conduct and dereliction of duty rendering him unfit to continue in the force. He was therefore asked to submit his written statement in his defense within ten (10) days from the date of receipt of the communication. It was also stated that if he intended to examine any witness in his defense, the same should be submitted in his written statement of defense within the time specified. Further, if the Disciplinary Authority decided to appoint an Enquiry Officer to enquire into the charge, the petitioner will be allowed to present his case through a defense assistant who should be a Government Servant and approved by the Disciplinary Authority.

[4.] The petitioner thereafter submitted his written statement/show cause reply on 10.09.2020 denying the allegation and charges that was mentioned in the show cause notice. The petitioner also mentioned that he intended to examine one witness in his defense and gave his details alongwith his show cause reply.

[5.] Not satisfied with the reply submitted by the petitioner, the Disciplinary Authority proceeded to go ahead with the Departmental Enquiry by appointing an Enquiry Officer. Consequently, after the enquiry proceedings was over, the Enquiry Officer submitted the Enquiry Report with a finding that the charge leveled against the petitioner was found to be proved. The petitioner was therefore given a second show cause notice on 31.05.2021 by enclosing a copy of the Enquiry Report and giving him seven (7) days time to submit his representation against the same. The petitioner therefore submitted his reply to the second show cause notice on 04.06.2021 and prayed for his exoneration from the charge. The petitioner also stated that although he furnished the name of one (1) defense witness to be examined in his defense but the same was turned down and therefore, serious prejudice has been cause to him. Despite the second show cause reply submitted by the petitioner, he was dismissed from service vide order dated 16.06.2021. The petitioner then preferred an appeal before the Joint Commissioner of Police on the grounds amongst others that he had not been given a chance to produce the defense witness named by him in his first show cause reply therefore, the was prejudiced. However, the said appeal was not disposed of by the Appellate Authority and in the meantime, the petitioner filed WP(C) No. 1830/2020. The said writ petition was disposed of at the motion stage itself vide order dated 28.03.2022 by directing the Appellate Authority to consider and dispose of the appeal filed by the petitioner within a period of one (1) month from the date of receipt of a certified copy of the order. Thereafter, the appeal of the petitioner was disposed of by the Appellate Authority vide order dated 06.05.2022 by rejecting his appeal and maintaining the order of his dismissal from service passed by the Disciplinary Authority. Aggrieved, the petitioner is again before this Court.

[6.