Judgment & Order (Cav)
1. Heard Mr. I. Rafique, learned counsel for the petitioner. Also heard Mr. C. K. S. Baruah, learned Government Advocate for the State respondent.
2. Challenges made in these writ petitions are to the order dated 06.09.2024, passed by the Director General of Police, Assam whereby, a fresh/de novo enquiry has been directed to be conducted while rejecting the findings of the enquiry officer dated 22.08.2025 against the petitioner, and the suspension order dated 13.12.2023, whereby, the petitioner was placed under suspension for following his arrest in connection with ACB P.S. Case No. 103/2023, under Section 7 (a) of the Prevention of Corruption Act, 1988.
3. The petitioner is an Inspector (UB) of Police under Assam Police. While working as Officer-In-Charge of Dhula Police Station, Darrang District, Assam, the petitioner has been subjected to departmental proceedings in connection with ACB P.S. Case No. 103/2023, under Section 7(a) of the Prevention of Corruption Act, 1988. The petitioner, along with one Muktar Hussain, was arrested on 13.11.2023 on the basis of the F.I.R. lodged on 29.11.2023 by one Shri Rafik Ali before the Officer-In-Charge ACB Police Station, Assam cum Superintendent of Police, Directorate of Vigilance and Anti-Corruption, alleging demanding of Rs. 3,20,000/- as bribe from the complainant. The petitioner was arrested by Trap Team of the Directorate of Vigilance and Anti-Corruption, Assam.
4. In WP(C) No. 4819/2024, the petitioner has challenged the order dated 06.09.2024, passed by the Director General of Police, Assam, whereby a fresh/de novo enquiry was directed to be conducted after rejecting the findings of the enquiry officer where the charges of serious misconduct and dereliction of duty against the petitioner were not proved on the ground that the petitioner was apprehended by Trap Team of Directorate of Vigilance and Anti-Corruption, for demanding bribe and accepting it through middleman one Shri Muktar Hussain. While in WP(C) No. 1590/2024, the petitioner challenges the suspension order dated 13.12.2023 and it’s prolong continuation.
5. Mr. I. Rafique, learned counsel for the petitioner, submits that the impugned order dated 06.09.2024 directing a de-novo/fresh enquiry has been passed solely on the ground that the petitioner was arrested by a trap team and not on the ground of any material irregularity in the enquiry. Such an approach is contrary to the scheme of the Assam Services (Discipline & Appeal) Rules, 1964 (the Services Rules, 1964 in short). As per the said Rules, upon receipt of the enquiry report, the Disciplinary Authority is required to consider the records of the enquiry and thereafter record its findings on each charge. The Rules do not vest any power to the Disciplinary Authority to discard the report altogether and direct a fresh or de-novo enquiry. He submits that Chapter VI, Para 6.18.1 of the Manual of Departmental Proceedings provides that where the Disciplinary Authority, upon a contention raised by the person or otherwise, finds that any material irregularity has been committed which has caused or is likely to cause prejudice to the charged person or is likely to vitiate the proceedings, the Authority shall consider (i) whether the whole enquiry should be set aside and a fresh enquiry started de novo; or (ii) whether the enquiry should be set aside from the stage of occurrence of the irregularity and it is ordered to be started afresh from that particular stage. He submits that as per Para 6.18.2, as far as possible, where the ends of justice can be served and the charged officer is afforded reasonable opportunity of hearing, the enquiry should ordinarily be resumed from the stage at which the irregularity occurred.
6. He submits that the above provisions become applicable only when the Disciplinary Authority actually finds the existence of a material irregularity causing or likely to cause prejudice to the delinquent. Only in such circumstances can the Authority examine whether to order a de novo enquiry or to resume from the defective stage. These provisions are intended solely to protect the charged officer from prejudice and in any event, the said provision cannot override the statutory scheme under the Services Rules, 1964. There is no provision under the Services Rules of 1964 empowering the Disciplinary Authority to remand a matter to the Enquiry Officer for a fresh or de-novo enquiry merely because it does not agree with the findings recorded in the enquiry report. In the impugned order dated 06.09.2024, there is no indication that the Disciplinary Authority examined the enquiry report with reference to the charges or recorded its own conclusion. The only observation made is that the report is not acceptable since the petitioner was arrested by the Trap Team. Such a ground, by itself, does not constitute any material irregularity in the conduct of the enquiry so as to warrant a fresh or de-novo proceedings. If such an approach is permitted, the Disciplinary Authority would be free to repeatedly remand matters for fresh enquiries whenever the findings are not favourable to it, which would cause serious prejudice to the delinquent employee. If the authority disagrees with the findings of the Enquiry Officer, it may record its own reasons and conclusions, but cannot relegate the matter to another enquiry officer merely because the report is not favourable. Therefore, he submits that the impugned order dated 06.09.2024 is wholly unsustainable and liable to be set aside.
7. Mr. Rafique, learned counsel for the petitioner, placed reliance on the following judgments in support of his case:-
(i) K. P. Deb Vs. Collector, Central Excise, Shillong, reported in AIR 1971 SC 1447
(ii) Bidyut Burahogain Vs. State of Assam, reported in 2005 (3) GLT 457
(iii) Bhuptai Ranjan Mudoi Vs. State of Assam, reported in 2012 (3) GLT 394
8. On the other hand, Mr. C.K.S. Baruah, learned Government Advocate, while referring to the impugned order dated 06.09.2024, passed by the Director General of Police, Assam, submits that the Disciplinary Authority found the enquiry report unsatisfactory inasmuch as the petitioner had been apprehended by the Trap Team of the Directorate of Vigilance and Anti-Corruption, Assam for demanding and accepting bribe through a middleman, namely, Muktar Hussain. On such factual background, the Disciplinary Authority was justified in directing a fresh enquiry. He submits that the concerned accused persons were arrested in ACB P.S. Case No. 103/2023, under Section 7(a) of the PC Act, 1988, and Section 12 was added subsequently. In the face of such serious allegations, the Disciplinary Authority was justified in not accepting the enquiry report. Therefore, he submits that the impugned order dated 06.09.2024 was passed bona fide, in the interest of justice, and to ensure a proper and fair departmental proceedings and as such, the writ petition is devoid of merit and liable to be dismissed.
9. Mr. C.K.S. Baruah, learned Government Advocate, in support of his submissions, has placed reliance upon the case of Union of India & Ors. vs. P. Thayagarajan, reported in (1999) 1 SCC 733.
10. Due consideration has been extended to the submissions advanced by the learned counsel for the petitioners and have perused the materials available on record.
11. The petitioner was subjected to departmental proceedings in connection with ACB P.S. Case No. 103/2023, under Section 7(a) and under Section 12 (which was added subsequently) of the Prevention of Corruption Act, 1988. The petitioner, along with one Muktar Hussain, was arrested on 13.11.2023 by Trap Team of the Directorate of Vigilance and Anti-Corruption, on the basis of the F.I.R. lodged on 29.11.2023 alleging demanding of Rs. 3,20,000/-. After the conclusions of the enquiry, the Enquiry Officer submitted the Enquiry Report dated 22.08.2021 to the Disciplinary Authority.
12. The Director General of Police, Assam, vide impugned order dated 06.09.2024, directed to conduct a fresh/de novo enquiry after rejecting the findings of the enquiry officer where the charges of serious misconduct and dereliction of duty against the petitioner were not proved on the ground that the petitioner was apprehended by Trap Team of Directorate of Vigilance and Anti- Corruption, for demanding bribe and accepting it through the middleman one Shri Muktar Hussain.
13. Perusal of the inquiry report dated 22.08.2021 reflects that the statement of PW-1 (Rofique Ali) is inconsistent and does not inspire confidence. The statements of PW-2 (Golam Hadi Choudhury) and PW-6 (Priyabrat Gogoi) do not establish that Mustak Hussain received Rs. 22,000/- from PW-1 for registering the FIR dated 11.11.2023 and their versions regarding the alleged bribe demand are mutually inconsistent. The unrebutted statement of the Charged Officer indicates that PW-1, PW-2, PW-3 & PW-4 were involved in cyber-related crime involving misappropriation of about Rs. 1.32 crore from innocent public and bank and had offered him a bribe for de-freezing their bank accounts, which he declined. PW-1 admitted that he worked as a source for the Charged Officer. PW-5 and PW-6 admitted that the voice transcription does not record any demand or payment of money to any middle man. No evidence exists to show that the Charged Officer demanded money through the middle man, i.e. DW-1 (Mustak Hussain). Rather, DW-1 appears to have been pressurized to hand over an envelope containing Rs. 5,000/-. PW-9 admitted that the Charged Officer had explained about the seized money of Rs. 30,000/-. No material/evidence to substantiate any demand of money by the Charged Officer from PW-1 or PW-2. Therefore, the charges of gross misconduct and dereliction of duty are not proved. Thus, as per the enquiry report, no charges appear to have been proved as there are inconsistencies in the statements of witnesses and no evidence of demand or acceptance of money as alleged.
14. Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964, prescribes the procedure for imposing penalties, which is extracted herein under:
“9. Procedure for imposing penalties. (1) Without prejudice to the provisions of the Public Servant; (Inquiry) Act, 1850, no order imposing on a Government servant any of the penalties specified in rule 7 shall be passed except after an inquiry, held as far as may be in the manner hereinafter provided.
(2) The Disciplinary Authority shall frame definite charges on the basis of the allegations on which the inquiry is proposed to be held. Such charges together with a statement of the allegations on which they are based shall be communicated in writing to the Government servant, and he shall be required to submit, within such time as may be specified by the Disciplinary Authority, a written statement of his defence and also to state whether he desires to be heard in person.
[“At the time of delivering the charges, the Disciplinary Authority shall invariably furnish to the Government servant a list of documents and witnesses by which each article of charges is proposed to be sustained.”]
Explanation - In this sub-rule (3) the expression "the Disciplinary Authority" shall include the authority competent under these rules to impose upon the Government servant any of the penalties specified in rule 7.
(3) The Government servant shall, for the purpose of preparing his defence, be permitted to inspect and take extracts from such permission may be refused if for reasons to be recorded in writing, in the opinion of the Disciplinary Authority such records are not relevant for the purpose or it against the public interest to allow him access thereto; Provided that when a Government servant is permitted to inspect and take extracts from official records due case shall be taken against tempering removal or destruction of records.
(4) On receipt of the written statement of defence, or if no such statement is received within the time specified, the Disciplinary Authority may itself inquire into such of the charge as are not admitted or, if it considers it necessary so to do, appoint for the purpose a Board of inquiry or an Inquiring Officer.
(5) The Disciplinary Authority may nominate any person to present the case in support of the charges before the Authority inquiring into the charges (hereinafter referred to as the inquiring Authority). The Government servant may present his case with the assistance of any other Government servant approved by the Disciplinary Authority, but may not engage a legal practitioner for the purpose unless the person nominated by the Disciplinary Authority as aforesaid is a legal practitioner or unless the Disciplinary Authority, having regards to the circumstances of the case so permits.
(6) The enquiring Authority shall, in the course of the enquiry consider such documentary evidence and take such oral evidence as may be relevant or material in regards to the charges. The Government servant shall be entitled to cross-examine witnesses examined in support of the charges and to give evidence in person and to adduce documentary and oral evidence in his defence. The person presenting the case in support of the charges shall be entitled to cross-examine the Government servant and the witnesses examine any witness or to admit any document in evidence on the ground that his evidence or such document is not relevant or material it shall record its reasons in writing.
(7) At the conclusion of the inquiry, the inquiring Authority shall prepare a report of the enquiry, recording its findings on each of the charges together with reasons therefor.
[Explanations: - If in the opinion of the enquiring authority the proceedings of the enquiry establish any article of charge different from the original article of the charge it may record it findings on such article of charge:
Provided that the findings on such article of charge shall not be recorded unless the Government servant has either admitted the facts on which such article of charge is based or has a reasonable opportunity of defending himself against such article of charge].
(8) The record of the inquiry shall include –
(i) the charges framed against the Government servant and the statement of allegations furnished to him under sub-rule. (2);
(ii) his written statement of defence, if any;
(iii) the oral evidence taken in the course of the enquiry;
(iv) the documentary evidence considered in the course of the inquiry;
(v) the orders, if any, made by the Disciplinary Authority and the Inquiring Authority in regard to the inquiry; and
(vi) a report setting out the finding on each charge and the reasons therefore, The Disciplinary Authority shall, if it is not the Inquiring Authority; consider the record of the inquiry and record its finding on each charge.”
15. Bare reading of Rule 9 shows that following the procedure and completion of inquiry by the Inquiring Authority, the Disciplinary Authority, upon receipt of the enquiry report, is required to consider the records of the enquiry and thereafter record its findings on each charges and it does not vest any power to the Disciplinary Authority to discard the report altogether and direct a fresh or de-novo enquiry.
16. Chapter VI the Manual of Departmental Proceedings prescribes guidelines on suspension and Departmental proceedings. The relevant paras No. 6.18.1 and 6.18.2 are reproduced herein below:-
“6.18.1. Where the Disciplinary Authority, on a contention raised by the person proceeded against or otherwise finds that any material irregularities have been committed and that they have caused or they may cause prejudice to the person charged or such irregularities are likely to vitiate the proceedings, it will consider-
(1) whether the whole enquiry should be set aside and a fresh enquiry started denovo; or
(2) whether the enquiry be set aside from the stage of occurence of the irregularity and it be ordered to be started afresh from that particular stage.”
“6.18.2. As far as possible, where the ends of justice can be served and the charged officer is afforded reasonable opportunity of hearing, the enquiry should ordinarily be resumed from the stage at which the irregularity occurred.”
17. Reading of the above para 6.18.1 shows that where the Disciplinary Authority, upon a contention raised by the person or otherwise, finds that any material irregularity has been committed which has caused or is likely to cause prejudice to the charged person or is likely to vitiate the proceedings, the Authority shall consider as to whether the whole enquiry should be set aside and a fresh enquiry started de novo, or as to whether the enquiry should be set aside from the stage of occurrence of the irregularity and it is ordered to be started afresh from that particular stage. Para 6.18.2, provides that as far as possible, where the ends of justice can be served and the charged officer is afforded reasonable opportunity of hearing, the enquiry should ordinarily be resumed from the stage at which the irregularity occurred.
18. As per the above provisions the fresh or de novo would be warranted when the Disciplinary Authority finds the existence of a material irregularity causing or likely to cause prejudice to the delinquent and upon a contention raised by a person or otherwise. Thus, it is seen that the existence of material irregularity only the Disciplinary Authority would examine whether to order a de novo enquiry or to resume from the defective stage. It appears that these provisions are intended to protect the charged officer from prejudice. However, no provision is discernable in the Services Rules, 1964 empowering the Disciplinary Authority to remand a matter to the Enquiry Officer for a fresh or de-novo enquiry merely because it does not agree with the findings recorded in the enquiry report.
19. The aforesaid provision is applicable only when the disciplinary authority finds that any material irregularity has been committed and the same might cause prejudice to the persons charged or such irregularity are likely to vitiate the proceedings. It is only in such circumstances, it is to be considered as to whether the whole enquiry shall be set aside or fresh enquiry should be initiated de novo.
20. Upon due consideration, it is seen that there is no indication in the impugned order that the disciplinary authority considered the report in reference to the charges and came to any conclusion. Only finding recorded is that the inquiry report is not acceptable as the petitioner was apprehended by Trap team. As held by this Court, if such course of action adopted by the disciplinary authority is allowed to stand, same will cause serious prejudice to the delinquent officer. On each and every occasion it will be the tendency of the disciplinary authority to remand the matter back to another enquiry officer, if it finds that the enquiry report is not favourable to it.
21. Perusal of the impugned order dated 06.09.2024, shows that the Disciplinary Authority has not examined the enquiry report with reference to the charges or recorded its own conclusion except an observation to the effect that the report is not acceptable since the petitioner was arrested by the Trap Team. Mere arrest of the petitioner whatsoever grave the allegation may be, would not by itself, constitute any material irregularity in the conduct of the enquiry so as to warrant a fresh or de-novo proceedings. As observed by this Court, if such an approach is permitted, the Disciplinary Authority would be free to repeatedly remand matters for fresh enquiries whenever the findings are not favourable to it, which would cause serious prejudice to the delinquent employee. If the authority disagrees with the findings of the Enquiry Officer, it may record its own reasons and conclusions, but cannot direct fresh enquiry merely because the report is not favourable. Thus, the impugned order dated 06.09.2024 has been passed without examination of the enquiry report with reference to the charges or recorded its own conclusion in terms of the rules but on mere unacceptability of the report on the ground that the petitioner was apprehended by the Trap Team, which is not sustainable.
22. Now, this court would refer to the relevant case laws relied on by the learned counsel for the parties.
23. In the case of Bidyut Burahogain (supra), it has been held which is reproduced herein below:
“(5) The rival submissions advanced on behalf of the respective parties have been duly considered. The provisions of Rule 9 particularly 9 (9) of the Rules have already been noted. It has also been noted that there is no specific power vested in the disciplinary authority by the provisions of the Rules so as to enable the said authority to hold a fresh/de novo enquiry in case the disciplinary authority is in disagreement with the findings of the enquiry officer. If a power is claimed by the disciplinary authority to discard the report of enquiry officer earlier submitted and to hold a fresh enquiry, it is natural that there should be some indication of the availability/conferment of such a power in the rules itself. The Rules are conspicuously silent on the afteresaid question and no such power has been specifically or impliedly conferred. In K. R. Deb (supra), the charges levelled against ijhe delinquent officer were enquired into by a duly appointed enquiry officer, who returned a verdict of "not guilty". The disciplinary authority remitted the matter for examination of further witnesses by the enquiry officer. Once again the enquiry officer submitted a report favourable to the delinquent. The process was repeated for the second time and this time also the report of enquiry was in favour of the delinquent. It is at this stage that the disciplinary authority passed an order superseding the report of the enquiry officer and appointed a fresh enquiry officer to hold a de novo proceeding. In these facts, the question that was raised before the Apex court is whether whe having regard to the provisions of rule 15 (9) of the C. C. S. (Classification control and Appeal) Rules, 1957 such a power could be understood to be available tto the disciplinary authority. Rule 15 (9) and rule 9 (9) of the Assam Services (Discipline and Appeal) Rules, 1964, it must be noticed, are perimetria. The Apex Court answered the above question by taking the view that while it may be open for the disciplinary authority torequire the enquiry officer toexamine further witnesses anddo such other incidental acts in an already concluded proceeding, having regard to the language of Rule 15 (9) of the c. C. S. (Classification, Control and Appeal) Rules, 1957afreshenquiry in to the same set of allegations by discarding the earlier enquiry report is not contemplated. The question raised in the present writ petition, having regard to the identity of the language of Rule 15 (9) of the C. C. S. (Classification, Control and Appeal) Rules, 1957 and Rule 9 (9) of the Assam Services (Discipline and Appeal) Rules, 1964, therefore, stand squarely answered by the decision of the Apex Court in the case of K. R. Deb (supra ). No specific power to hold a second enquiry into the same set of allegations which were earlier enquired into, having been vested in the disciplinary authority and the provisions of Rule 9 of the assam Services (Discipline and Appeal) Rules, 1964 having been held to be mandatory in the case of Bandana Goala (supra), the conclusion that has to inevitably follow is that the Office Order dated 19. 4. 2003 proposing to hold a fresh enquiry against the petitioner is wholly without jurisdiction and/or authority of law and, therefore, this Court has no hesitation in interfering with the said order. Consequently this writ petition is allowed and the order dated 19. 4. 2003 shall stand interfered with.”
24. In Bhuptai Ranjan Mudoi (supra), it has been held which is reproduced herein below:
“(10) For a ready reference, the aforesaid provision on the subject of fresh/further enquiry is reproduced below:
"6. 18. 1. Where the Disciplinary Authority, on a contention raised by the person proceeded against or otherwise finds that any material irregularities have been committed and they have caused or they may cause prejudice to the person charged or such irregularities are likely to vitiate the proceedings, it will consider. (1) whether the whole enquiry should be set aside and a fresh enquiry started denovo; or (2) whether the enquiry be set aside from the stage of occurrence of the irregularity and it be ordered to be started afresh from that particular stage. 8. 18. 2 As far as possible, where ends of justice can be served and so long as the person proceeded against is given reasonable opportunity of being heard, efforts should be made to resume the enquiry from the stage at which the irregularity occurred."
(11) The aforesaid provision is applicable only when the disciplinary authority finds that any material irregularity has been committed and the same might cause prejudice to the persons charged or such irregularity are likely to vitiate the proceeding. It is only in such circumstances, it is to be considered as to whether the whole enquiry shall be set aside or fresh enquiry should be initiated de novo.
(12) From the above, what is seen is that the aforesaid provision for fresh/further enquiry has been made to remove any prejudice caused to the officer against whom the proceeding is initiated. Even otherwise also, the said provision cannot override the provision of Assam Services (Discipline and Appeal) Rules, 1964. Rule 9 of the said Rules laying down the detailed procedure for imposing penalties, provides that on the conclusion of the enquiry, the enquiring authority shall prepare the enquiry report and the disciplinary authority would consider the same towards recording its own findings on each charge. There is no provision for remanding the matter back to the enquiring authority, more particularly on the ground of there being inconsistencies in the report, as indicated in the impugned notification dated 20. 22. 2010 (Annexure-18).
(13) There is also no indication in the impugned notification that the disciplinary authority considered the report in reference to the charges and came to any conclusion. Only finding recorded in the notification is that the report is incomplete and inconsistent. If the course of action adopted by the respondent/disciplinary authority by issuing the impugned notification is allowed to stand, same will cause serious prejudice to the delinquent officer. On each and every occasion it will be the tendency of the disciplinary authority to remand the matter back to another enquiry officer, if it finds that the enquiry report is not favourable to it.
(14) In the instant case, the disciplinary authority after recording that there are inconsistencies in the report submitted by the enquiring authority on 06. 10. 2010, took recourse to the provision of the aforesaid Manual by appointing another enquiry officer to enquire into the charges, as if it is determined to get favourable report.”
25. Regard being had to the case of P. Thayagarajan (Supra), relied on by the learned counsel for the respondent, same is not applicable in the facts and circumstances of the present case as in that case a departmental enquiry was conducted against P. Thayagarajan. Two witnesses expressed their inability to appear before the enquiry officer but sent their written statement of facts within their knowledge. The enquiry officer finalized his enquiry report taking into account those statements though the witnesses did not appear before him. The disciplinary authority did not agree with this course of action and therefore directed de novo enquiry. It was contended that the disciplinary authority did not have power of ordering de novo enquiry. After considering Rule 27(c) of the Central Reserve Police Force Rules, 1955, the Hon’ble Supreme court has held that whatever may be the power of appellate authority, the disciplinary authority will have to be satisfied with the procedure adopted by the enquiry officer before passing an order. It does not stand to logic that in a given case, the appellate authority could order a fresh enquiry but not the disciplinary authority at whose instance the enquiry began and which is not satisfied with the enquiry held, for some vital defects in the procedure adopted, which is true and undisputable.
26. As regards the challenge to the suspension order, since the petitioner was arrested on 13.12.2023 and placed under suspension vide order dated 13.12.2023 and the Memorandum of Charges having been served to the petitioner on 29.01.2024, same is within the period of 3 (three) months, which is accordance with law. The first review appears to have been made on 21.05.2024 w.e.f. 13.03.2024 extending another period of 90 days, same appears to be within 6 (six) months, which is permissible under the law. However, it is not clear as to whether further periodical review has been done or not. Be that as it may, in view of the findings in WP(C) No. 4819/2024 with regard to initiation of fresh or de novo enquiry, arrived at herein above, no discussion is required to be made to the legality of the continued suspension as the same would merged with the decision culminated herein under.
27. In view of what has been discussed herein above, I am of the considered view that the impugned order dated 06.09.2024 passed by the Director General of Police, Assam, proposing to enquire into the charges a fresh/de novo enquiry against the petitioner is not in accordance with the applicable rules/law as no material irregularity is recorded by the authority with regard to the inquiry report dated 22.08.2021. Thus, same is unsustainable. Accordingly, the impugned order dated 06.09.2024 is interfered with and set aside. Consequently, the suspension order dated 13.12.2023 stands quashed.
28. In the result, writ petitions stand allowed and disposed of. No order as to cost(s).
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