WRIT PETITION 37/1994 on 1 April 1994

1) G.M. Tank Vs. State of Gujarat & Others, reported in (2006) 5 SCC 446.

2) Ram Lal Vs. State of Rajasthan & Others, reported in (2024) 1 SCC 175.

3) Maharana Pratap Singh Vs. State of Bihar & Others, reported in 2025 SCC Online SC 890.

4) Deputy Inspector General of Police & Another Vs. S.

Samuthiram, reported in (2013) 1 SCC 598.

5) Rajendra Yadav Vs. State of Madhya Pradesh & Others, reported in (2013) 3 SCC 73.

7. He further submits that in respect of Sri Dipen Duarah, who was namedas accused No. 3 in the criminal case though was initially placed undersuspension, no departmental proceedings or any other disciplinary action wasinitiated against him and the respondent No. 4 by Order dated 31.12.2008revoked the order of suspension and reinstated the aforesaid person. Heaccordingly submits that there being a discrimination in conductingdepartmental proceedings inasmuch as a person with similar charges wasreinstated after trial, impugned order of discharge is bad in law.

8. In support of the aforesaid submission, he relies upon the decision of theApex Court in the case of Delhi Transport Corporation Vs. D.T.C. MazdoorCongress & Others reported in 1991 Supp (1) SCC 600. He further submitsthat the petitioners are entitled to adequate compensation for their sufferingdue to the arbitrary, unjust and unreasonable acts of the respondent authorityand to buttress the aforesaid submission, he relies upon the decision of theApex Court in the case of Maharana Pratap Singh Vs. State of Bihar &Others reported in 2025 SCC Online SC 890.

9. Per contra, Mr. T.C. Chutia, learned Addl. Senior Government Advocate submits that unless and until the accused is acquitted honorably and completelyof the charges, the power of the disciplinary authorities to continue thedepartmental proceeding inquiry is not taken away nor its discretion in any wayis fettered.

In support of the aforesaid submission, he relies upon the followingdecisions of the Apex Court:-

1) Corporation of the city of Nagpur Vs. Ramchandra, reported in

(1981) 2 SCC 714.

2) G.M. Tank Vs. State of Gujarat, reported in (2006) 5 SCC

446.

3) Ajit Kumar Nag Vs. G.M. Indian Oil Corporation, reported in

(2005) 7 SCC 764.

10. I have given my prudent consideration to the arguments advanced bythe learned Senior Counsel appearing for the petitioners as well as the learnedAddl. Senior Government Advocate for the State and have perused the materialsavailable on record. I have also duly considered the case laws cited at the bar.

11. It appears that the writ petitioners have been discharged from theirservices while they were serving as Constable in the Police Department on thebasis of the allegation that they were having close contact with ULFA and wereindulging in the activities of illegal outfit.

Conclusion

12. It further appears that upon the petitioners being acquitted andexonerated from the aforesaid charges by the criminal Court, the instant writ petition has been filed seeking setting aside of the impugned discharge order.The short question that arises for determination in this writ petition is whetherthe exoneration/acquittal of the petitioners in the criminal case would render theimpugned discharge orders issued to the petitioners unjustified.

13. Apt at the outset to refer to the First Show Cause Notice issued to thepetitioner No. 1 by Notice dated 24.06.1994, which reads as hereunder:- To, “FIRST SHOW CAUSE NOTICE.

UBC 49 Arun Konwar (U/Suspension)

Golaghat :D.E.F.

You are hereby required to show cause U/S 7 of the Police Act(Act Vof 1861)read with rule 66 of A.P.M. Pt. III and Article 311 of the Constitution of India as to whyany of the penslting prescribed in the aforesaid rules should not be inflicted on you onthe following charged based on the statement of allegation attached herewith.

That while you were serving as U.B. Constable in Golaghat D.E.F you werefound involved in Simaluguri P.S. Case No. 37/94 U/S 3/4 T.A.D(P) Act. You made aconfessional statement before the S.P. Sibsagar for having close contact with the ULFAactivists as an active member of Bengmuria Unit of ULFA, Accordingly you werearrested and forwarded in to Judicial custody.

Being on active member of the ULFA, you managed your appointment in thePolice deptt, with a view to bring disgrace to the Police deptt. as well as espionage forthe ULFA.

Thus, by acting in a manner as stated above, you have exposed yourself to thecharges of Criminal misconduct.

You are, therefore, charged with criminal misconduct.

You should submit your written statement in defence within 10 (ten) days onreceipt of this communication provided you do not intend to inspect the documentswhich have relevance with the issue. In case you do not intend to inspect those documents you should write to the under signed for the same within 7(seven) days onreceipt of this communication and submit your explanation there after within 10 (ten)days from the date of completion of inspection.

Your written statement in defence stating whether you desire to be heard inperson and whether you intend to adduce any defence witness you should submit tothe undersigned within the period specified above.

Illegible

Superintendent of Police,Golaghat.”

14. Reading of the aforesaid show cause notice, it is clear that the petitionerNo. 1 is charged with the allegation that he is an active member of the ULFAand he managed his appointment in the Police Department with a view to bringdisgrace to the Police Department as well as espionage for the ULFA.

15. It appears that thereafter, departmental proceeding was initiated againstthe petitioner No.1 wherein in the inquiry, the Inquiry Officer examined 3prosecution witnesses being i) S.I. Puspa Bora of Simaluguri Police Station, ii)Jyoti Prasad Phukan, informant and iii) S.I. Nundalal Hazarika of SimaluguriPolice Station.

16. It appears that on the basis of the confessional statement made by thepetitioner No. 1 before the Superintendent of Police, Sibsagar respondent No. 4held the petitioner No. 1 guilty of the aforesaid charge.

17. It appears that thereafter a Second Show Cause Notice was issued tothe petitioner No.1 by Notice dated 15.06.2004, whereby the petitioner No. 1was informed that the Inquiry Officer appointed to enquire into the chargesleveled against him by departmental proceedings No. 3/94 of Golaghat had submitted his findings upon completion of his inquiry and that upon goingthrough the findings of the Inquiry Officer, the departmental authority agreeswith the aforesaid findings of the Inquiry Officer and has provisionally come tothe conclusion that the petitioner No. 1 should be dismissed from his serviceimmediately.

18. The aforesaid Second Show Cause Notice dated 15.06.2004 isreproduced hereunder for ready reference:- “2[nd] Show Cause Notice To, UBC/49 Arun Konwar, (under suspension)

Golaghat Police Reserve.

SUB :: 2ND SHOW CAUSE NOTICE.

REF :: DEPTL. PROCEEDING NO. 3/94.

You are hereby informed that the Enquiry Officer appointed to enquire in to thecharges levelled against you vide departmental proceeding no. 3/94 of Golaghat DEFhas already submitted his findings on completion of his enquiries. A copy of thefindings submitted by enquiry officer is enclosed herewith for your information.

On going through the findings and on perusal of the records and having regardto the evidences and circumstances appearing in this dept. proceeding, I agree withthe findings of the enquiry officer and hold that the charges levelled against you havebeen proved beyond all reasonable doubt. I, therefore, have provisionally come to theconclusion that you should be dismissed from your service immediately.

You are, therefore, required to show cause if any against the action proposed tobe taken against you. Any representation may make in that connection will be duly considered. Such representation if any should be made in writing and submitted so asto reach the undersigned within 10(ten) days from the date of receipt of thiscommunication. Else, this departmental proceeding will be disposed of 'Ex-parte'.

Illegible

Superintendent of Police,Golaghat”

19. Reading of the aforesaid Second Show Cause Notice, it is clear that thedepartmental authorities before issuing the Second Show Cause Notice to thepetitioners has already decided that the petitioner is guilty of the chargesleveled against him and that the petitioner No. 1 should be dismissed from hisservice.

20. It further appears that thereafter the departmental authorities by Orderdated 27.04.2006 removed the petitioner No. 1 from service with immediateeffect (w.e.f. 25.10.2004 vide D.O No.3944 dated 25.10.2004).

21. It further appears that ultimately the Criminal Court after completion ofthe trial acquitted the petitioner Nos. 1 and 2 from the said charges based onwhich they were found guilty in the departmental inquiry.

22. A perusal of the impugned Judgment and Order dated 21.07.2012 of theCriminal Court indicates that on the basis of an FIR alleging interalia that theinformant had received a secret information that some ULFA extremists havebeen taking shelter at Safrai Barpathergaon and upon conducting a search, inthe aforesaid location, some ULFA related documents were recovered from thepossession of one Kamal Hussain alongwith Babul Konwar, Golap Ali@Pankaj Gogoi, who were taking shelter at the location and upon being interrogated, itwas learnt that the aforesaid accused persons were involved in some Anti Socialactivities and were members of Ban ULFA organization. Accordingly, a case wasregistered and after completion of investigation, chargesheet was submittedagainst the aforesaid persons as well as against the petitioner Nos. 1 and 2.

23. It appears that the two witnesses, whose statements were recorded inthe departmental proceeding came to a conclusion of establishing guilt againstthe petitioner No. 1, were also examined as prosecution witnesses before theCriminal Court.

24. Apt to refer to the relevant paragraphs of the learned Criminal CourtJudgment and Order which reads as hereunder:- “37. What reveals from the evidence of Sri Krishna Kanta Sarma (PW-3) is that herecorded the confessional statement of the accused Maheswar Gogoi, AchyutHatimuriah, Ghana Duarah and Babul Konwar but the said confessional statementwere not corroborated by the evidence of other witnesses on record. The allegedconfessional statement of the accused Maheswar Gogoi, Achyut Hatimuriah, GhanaDuarah and Babul Konwar were not corroborated by any other material. In the case ofArup Bhuyan VS State of Assam reported in 2011 (3) GLT (SC) 1 Hon'ble SupremeCourt observed that confession is a very weak type of evidence particularly whenalleged to have been made to the police, and it is not safe to convict on its basisunless there is corroborative materials. In the present case as I have found that thereis no corroborative material to support the confessional statement of the accusedpersons recorded by the then Supdt. of Police, Sibsagr.

38. After going through the evidence of Sri Sidhiram Rajkonwar (PW-7) I have foundthat Sri Nitul Rajkonwar took shelter in his house amongst 3/4 persons on the groundthat on that particular night there was raining and on humanitarian ground PW-7allowed them including Nitul Rajkonwar (the accused) to stay for the night. But hecategorically stated that he knew the accused Nitul Rajkonwar as he is from his samevillage and his neighbour. But said Sidhiram Rajkonwar no where deposed that the said accused Nitul Rajkonwar did some antisocial activities in the name of ULFAorganization.

39. So far the approval of the concerned Supdt. of police is concerned it waselaborately decided in the case of Rangku Dutta @ Ranjan Kumar Dutta Vs State ofAssam reported in 2011 (3) GLT (SC) 12 that as per Section 20-A (1) -

(i) Notwithstanding anything contained in the Code no information aboutcommission of offence under this act shall be recorded by the police withoutprior approval of the district Superintendent of Police.

(ii) No court shall take cognizance of any offence under this act withoutsanction or the case may be, commissioner of police.

40. It is obvious that Section 20-A (1) is a mandatory requirement of law. First, it isstarts with an overriding clause and, thereafter, to emphasis is mandatory nature, usesexpression "NO" for the very clauses. Whenever the intent of the statute is mandatory,it is clothed with negative. On the basis of the said principle no information about thecommission of an offence under the said act can be recorded by the police without theprior approval of the District Superintendent of Police. Therefore, the requirement ofprior approval must be satisfied at the time of recording the information. If asubsequent investigation is carried on without a proper recording of the information bythe DSP in terms of Section 20-A(1), that does not cure the inherent defect ofrecording the information without the prior approval of the District Superintendent ofPolice.

41. So it is clear that requirement of approval must be made at the initial stage ofrecording the information. If there is absence of approval at the stage of recording theinformation, the same cannot be cured by subsequent carrying on of the investigationby the DSP.

42. I have gone through the citations referred above and found that the facts andcircumstances mentioned in that case is also similar and identical in the instant case,so far the approval, from the Sudpt. of police before launching of prosecution isconcerned.

43. Apart from the absence of the approval and non corroboration of the confessionalstatement of the accused with other witnesses, I have found that the prosecutionmiserably failed to prove its case through the evidence of the witnesses on record.

44. The prosecution evidence, thus, does not reach its requisite standard of provebeyond all reasonable doubt which is insisted in a criminal trial and I suffered nohesitation in concluding that the prosecution case is wholly baseless and false.

45. 1, therefore, hold that the prosecution has completely failed to substantiate andprove its case against the present accused persons beyond all reasonable doubt andthe accused persons are found not guilty of the charges leveled against them and Iaccordingly acquit the accused persons from the charges leveled against them underbenefit of doubt and set them liberty forthwith.”

25. Reading of the aforesaid Judgment and Order of the learned CriminalCourt, it is clear that the confessional statements based on which the InquiryOfficer has held the petitioner No. 1 guilty in the inquiry was found to be notproved and established in the criminal case.

26. It further appears that in the criminal case, the prosecution has failed toestablish that the petitioner No. 1 is an active member of the ULFAOrganisation. It further appears that the Criminal Court after perusing theevidences was of a clear opinion that the prosecution has miserably failed toprove its case through the evidence of the witnesses on record and accordingly,acquitted the accused persons including the petitioners.

27. There can be no doubt that the two proceedings i.e. criminal anddepartmental proceeding are entirely two different proceedings and operate indifferent fields and have different objectives. However, in the event, theallegation/charges are identical in the criminal as well as departmental

Procedure

proceedings and the witnesses are also that of same when in such cases, theaccused is acquitted honorably and completely exonerated of the charges,continuation of the departmental inquiry on the very same charges and or theorder of discharge thereof is not justifiable. However, mere acquittal in criminalcase shall not preclude the departmental authorities from taking an action if it isotherwise permissible or shall not automatically render the order of dischargeunjustifiable.

28. In other words, the allegation, list of witnesses and the manner in whichthe acquittal has been reached and or granted is to be seen.

29. In the present case, it is clear that the charges are identical and thewitnesses examined in criminal as well as departmental proceedings is thesame. Apropos that from the record of the disciplinary proceedings which isplaced before this Court by the learned counsel appearing for the respondents,it appears that in the confessional statement based on which the Inquiry Officerhas held the petitioner No. 1 guilty of the charges leveled against him, thepetitioner while putting his signature therein categorically stated that theconfessional statement as recorded therein is not his version. Hence, the orderof the disciplinary proceeding on the face of the record appears to be whollyperverse.

30. It further appears that in the Criminal Court as well, the prosecution hadmiserably failed to establish and prove the confessional statement alleged tohave been made by the petitioner No. 1.

31. It is further apparent that the witnesses examined in the departmental proceedings is also examined by the Criminal Court and upon analyzing theevidences, the Criminal Court has completely exonerated the petitioners fromthe charges, which is identical as that of the departmental proceedings.

32. Apt to refer to the decision of the Apex Court in the case of MaharanaPratap Singh (Supra), wherein the Apex Court has held as under:- “25. The issues for determination that emerge for decision are:

(i) Whether due process was followed in dismissing the appellant fromservice and whether his dismissal from service is justified, on facts and in thecircumstances, that have unfolded before us?

(ii) Whether, in light of the facts, evidence, witnesses, and circumstances ofthe case, the charges in the criminal proceedings are substantially identical tothose in the departmental proceedings, such that an acquittal in the criminal case would render the findings in the disciplinary proceedingsvulnerable?

(iii) Whether the impugned judgment, which allowed the appeal of therespondents and dismissed the writ petition of the appellant, deserves to beupheld?

(iv) Whether the appellant is entitled to any relief, should the aforesaidquestions be answered in his favour?

26. At the outset, it is pertinent to note that considering the nature of argumentsadvanced which required ascertaining facts by looking into the records of inquiry,which are not on record, we had required the respondent-State of Bihar vide orderdated 17[th] December, 2024 to submit scanned copy of the complete departmental fileby 10[th] January, 2025.

27. Under Section 114(g) of the Indian Evidence Act, 1872, if a party fails to produceevidence that is within its control, it is presumed that the withheld evidence would beunfavourable to it. Though reference to any authority is not required, we may profitably refer to the decision in State (Inspector of Police) v. Surya Sankaram Karri inthis behalf.”

33. Pertinent that in respect of the petitioner No. 2, there was nodepartmental inquiry initiated and he was discharged from his service merely onthe allegation that he is an active member of ULFA organization which on thebasis of the allegation made in the criminal case. Such discharge of thepetitioner No. 2 without holding disciplinary proceeding is bad in law.

34. Thus, the petitioners having fully exonerated from the charges based onwhich they have been discharged from their services, the impugned dischargeorders are not justifiable. That apart, it appears that the departmentalauthorities before issuing the Second Show Cause Notice alongwith the copy ofthe inquiry report of the petitioner No. 1 to show cause as why the inquiryreport should not be accepted has already agreed with the findings of theInquiry Officer and have also decided to remove the petitioners from theservice. Issuance of opportunity/Second Show Cause notice is not an emptyformality. In fact, it is an opportunity given to the delinquent to explain as towhy the inquiry report should not be accepted which is submitted against himtherefore, while giving him the opportunity, if the departmental authorities havealready agreed with the finding of the Inquiry Officer and had also decided thepenalty, the same would render the Second Show Cause Notice obsolete and auseless formality which would be against the principle of natural justice.

35. Having noted that in the present case, the departmental authorities hasalready agreed with the finding of the Inquiry Officer and the proposed punishment, the impugned discharged order on that count also is bad in law.

36. In any view of the matter, the impugned discharge orders cannot standin the eye of law. Accordingly, the impugned order of discharge of thepetitioners from their services being Orders dated 27.10.2004 and 01.04.1994respectively are set aside and quashed.

37. Resultantly, the respondents are directed to reinstate the petitioners inservice with all service benefits.

38. Accordingly, the writ petition stands allowed.

Disposed of.

JUDGE

Comparing Assistant