In disciplinary proceedings, findings must be based on evidence properly adduced; documents not exhibited through witnesses cannot be relied upon. Penalty imposed on unsubstantiated conclusions is unsustainable.

ORDER :

N. UNNI KRISHNAN NAIR, J.

Heard Mr. I. Rafique, learned counsel appearing on behalf of the petitioner. Also heard Mr. J. K. Goswami, learned Addl. Senior Government Advocate appearing for all the respondents.

2. The petitioner, by way of instituting the present proceeding has presented a challenge to an order dated 27.06.2023, issued by the Commandant Battalion Training Centre, Assam, Dergaon, imposing the penalty of dismissal of service upon the petitioner. The petitioner has also assailed the order dated 08.11.2023, passed by the Appellate Authority, rejecting the appeal filed by the petitioner and thereby, upholding the order dated 27.06.2023, passed by the Disciplinary Authority.

3. The facts requisite for adjudication of the issue arising in the present proceeding is noticed as below: -

A complaint dated 19.05.2019 was filed by one Shri Shibobrata Nath against the petitioner herein, leveling certain allegations against him before the Secretary, State Police Accountability Commission (herein after referred as the Commission), Assam. The allegations leveled against the petitioner pertains to an incident occasioning on 09.05.2017 when the petitioner along with certain other police personnel had gone to the house of the complainant in civil dress and forcibly conducted a search therein. In the search nothing was stated to have been found but, the petitioner had asked two cartons of foreign liquor for his domestic function. It was further alleged in the complaint that the complainant was assaulted and wrongfully confined in Tarapur Town Out-Post (TOP) lockup. The complainant also alleged that he was released by the petitioner on the next day after having taken an amount of Rs. 2.75 lakh from his wife for the purpose.

The Commission, on consideration of the said complaint was pleased vide order dated 03.11.2020 to close the said proceeding with a direction to the Director General of Police, Assam, to initiate a departmental proceeding against the present petitioner. Basing on the said direction issued by the Commission, the Commissioner of Police, Guwahati, issued a show-cause dated 19.05.2021, under the provisions of Section 65 of the Assam Police Act, 2007 read with Rule 66 of ASSAM POLICE MANUAL Part-III and Article 311 of the Constitution of India, as to why penalty under Rule 7 of Assam Services (Discipline and Appeal) Rules, 1964 shall not be imposed upon him. The allegation leveled against the petitioner in the said show-cause notice is the same allegation that was so involved in the complaint filed before the SPAC, Assam.

The petitioner, on receipt of the said show-cause notice submitted his written statement thereto, on 11.06.2021, denying the allegations and charges leveled against him. The written statement submitted by the petitioner not being found to be satisfactory, the Disciplinary Authority directed vide order dated 18.06.2021 to institute a departmental proceeding in the matter against the petitioner. Accordingly, D.P. No. 07/2021 was initiated against him. An Enquiry officer and a Presenting officer came to be so appointed for the purpose of conduct of the enquiry vide the same order. The Enquiry officer initiated the enquiry and therein examined two witnesses including the complainant in the complaint filed before the SPAC, Assam. The petitioner was also examined in the enquiry.

On completion of the enquiry, the Enquiry officer submitted her enquiry report dated 04.05.2023. A copy of the enquiry report was furnished to the petitioner and he also submitted a representation against the same. Thereafter, the Disciplinary Authority vide order dated 27.06.2023, on consideration of the materials coming on record in the enquiry as well as the representation submitted by the petitioner against the same, accepted the findings of the Enquiry officer and concluded the allegations leveled against him in the show-cause notice dated 19.05.2021 to have been established. Accordingly, a penalty of dismissal from service c