Gauhati High Court
Bhupesh Chandra Das vs The State Of Assam And 2 Ors on 29 October, 2024
Page No.# 1/13
GAHC010039362024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1053/2024
BHUPESH CHANDRA DAS
S/O- SRI GIRISH CH. DAS, R/O- HOUSE NO. 2, NAVADOY NAGAR PATH,
GHORAMARA, GUWAHATI-781028, DIST. KAMRUP, ASSAM
VERSUS
THE STATE OF ASSAM AND 2 ORS
REPRESENTED BY THE PRINCIPAL SECRETARY, PERSONNEL
DEPARTMENT (PERSONNEL A), ASSAM SECRETARIAT, DISPUR GHY-
781006.
2:SECRETARY TO THE GOVT. OF ASSAM
PERSONNEL (A) DEPARTMENT
ASSAM SECRETARIAT
DISPUR-781006.
3:SECRETARY TO THE GOVT. OF ASSAM
TRIBAL AFFAIRS DEPARTMENT
ASSAM SECRETARIAT
DISPUR
PIN- 781006
ASSA
Advocate for the Petitioner : MR. K N CHOUDHURY, MR. R M DEKA,MS N MAHANTA,N
GAUTAM,MR. D J DAS,MS SABINA AHMED
Advocate for the Respondent : GA, ASSAM,
Page No.# 2/13 BEFORE HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI JUDGMENT & ORDER (Oral) Date:-29.10.2024 Heard Mr. K. N. Choudhury, learned Senior Counsel assisted by Mr. D. Das, learned counsel for the parties. Also heard Ms. M. Bhattacharjee, learned Additional Senior Government Advocate for the State respondent.
2. By way of this petition under Article 226 of the Constitution of India, the petitioner is assailing the impugned departmental proceeding initiated against the petitioner by show-cause notice dated 09.02.2018.
The facts of the present case are that:-
3. The petitioner while serving as Chief Executive Officer at Darrang Zila Parishad was arrested by the Vigilance and Anti-Corruption Cell, Assam in connection with the ACB PS Case No. 24/2017 under sections 7/13(1)(d)/13(2) of the Prevention of Corruption Act, 1988 (herein referred to as PC Act, 1988) on 22.09.2017. In pursuant to the said arrest, the respondent authorities issued a show-cause notice dated Page No.# 3/13 09.02.2018 to the petitioner under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 read with Article 311 of the Constitution of India. (Herein referred to as Rules of 1964).
4. Accordingly along with the departmental proceeding a criminal proceeding being Special Case No. 32/2017 had commenced against the petitioner before the learned Court of Special Judge, Assam. The learned Court of Special Judge, Assam vide Judgment and Order dated 19.07.2023 was pleased to acquit the petitioner from the charges framed therein. Thereafter, the petitioner filed two representations to the respondent authorities praying to drop the departmental proceeding initiated against the petitioner.
5. As no action was forthcoming the petitioner has approached this Hon'ble Court by way of the instant writ petition praying for setting aside the impugned action of the respondents in continuing with the departmental proceeding against the petitioner.
6. Mr. K. N. Choudhury, learned Senior Counsel submits that the departmental proceeding is initiated on the basis of the allegation made in the FIR dated 21.09.2017, which has been registered as ACB PS Case No.24/2017 under Section 7/13(1) (d)/13 (2) of the PC Act,1988.
7. He further submits that the list of witnesses in the said Page No.# 4/13 departmental proceeding are also the same as that of the criminal case.
8. He further submits that Criminal Court by Judgment and Order dated 19.07.2023 has acquitted the petitioner of the charges framed against him.
9. He accordingly submits that departmental proceeding and criminal case being based on identical and similar set of facts and wherein the criminal court having acquitted the petitioner from the charges levelled therein, it would be unjust and unfair to continue the departmental proceeding against the petitioner on the same set of allegation.
10. He further relies upon the following decisions of the Apex Court in the case of:-
i. G.M. Tank Vs State of Gujarat and Others reported in (2006) 5 SCC 446.
ii. Capt. M. Paul Anthony Vs Bharat Gold Mines Ltd and Another reported in (1999) 3 SCC 679.
11. Per contra Ms. M. Bhattacharjee, learned counsel for the respondent submits that the nature of proceedings in criminal vis-à-vis departmental enquiry being wholly separate and distinct, acquittal in criminal proceedings does not entitle the delinquent employee for automatic discharge in departmental proceeding.
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12. She further relies upon the decision of the Apex Court in the case of State Bank of India & Ors Vs P. Zadenga reported in 2023 LiveLaw (SC) 850.
13. Heard the learned counsels for the contesting parties and perused the materials available on record and also considered the case laws cited at the bar.
14. It appears that by show-cause notice dated 09.02.2018 the petitioner was required to show-cause under Rule 9 of the Rules of 1964 readwith Article 311 of the Constitution of India as why any of the penalties prescribed in Rule 7 of the aforesaid rules should not be inflicted upon the petitioner on the charges stipulated therein.
15. The statement of allegation as appended to the show-cause notice dated 09.02.2018 is reproduced hereunder for ready reference:-
Statement of Allegation "1. That on 21/09/2017 Shri Teharu Gour, Sto Lt Borjan Gour, Vill & PS-Dalgaon, Darrang, Assam & Member, Darrang Zilla Parishad lodged an FIR at ACB police station to the effect that on 20/9/2017 Shri Bhupesh Ch. Das, ACS, CEO, Darrang Zilla Parishad, had called one lessee namely Saidur Rahman to his official residence and demanded from him a sum of Rs.8,00,000/- (Rupees eight lakhs) only for allotment of lease of Besimari weekly and daily bazar in his name. As alleged, Shri Bhupesh Ch. Das also told that he would allot the bazar to other person, if Saidur Rahman failed to pay Rs.1,00,000/-
(one lakh) within one or two days. Since. Saidur Rahman was not willing to pay any bribe, he informed Shri Teharu Gour, Zilla Parishad Member about the matter and requested to take necessary action. The complainant Sri Teharu Gour lodged the FIR seeking necessary legal actions, which was received in the Directorate of Vigilance & Anti Page No.# 6/13 Corruption on 21/9/2017 and Inspector Lakhi Narayan Baruah was directed to conduct an enquiry. Accordingly, a case was registered on 22/9/2017 at ACB police station vide ACB PS Case No.24/2017 U/s 7/13(1)(d)/13(2) PC Act, 1988.
2. That, the Olo the Director General of Vigilance & Anti Corruption, Assam has reported that Shri Bhupesh Ch. Das, ACS was caught red handed on 22/09/2017 while accepting the bribe of Rs.1,00,000/- (One lakh) only from the complainant Shri Teharu Gour and he was arrested in connection with ACB PS Case NO.24/2017 U/S 7/13(1)(d)/13(2) P.C. Act. 1988. The commission of the crime is also supported by the report of the Forensic Science Laboratory."
16. The listed documents and witnesses as appended to the said show-cause notice is also reproduced hereunder for ready reference:-
A. List of Documents & Witnesses
1. Letter No.DGVA/RI/2017/3931 dated 08/11/2017 of the O/o the Director General of Vigilance & Anti Corruption, Assam B. List of Witnesses
1. Shri Teharu Gour, S/o Lt. Borjan Gour, Vill & PS-Dlagaon Dist-Darrang, Assam
2. Md. Saidur Rahman, S/o Md. Abdul Kalam Azad. Vill-Madhupur, PS-Dalgaon Dist-
Darrang, Assam
3. Shri Karuna Bordoloi, APS Dy Supdt of Police & Trap Leader Vigilance & Anti Corruption, Assam, Srimantapur, Guwahati-32
4. Shri Lakhi Narayan Baruah, Inspector of Police, Vigilance & Anti Corruption, Assam, Srimantapur, Guwahati-32
5. Shri Hari Charan Pathak, Inspector of Police & Investigating Officer Vigilance & Anti Corruption, Assam, Srimantapur, Guwahati-32
17. Apparent that on the basis of allegation levelled in the FIR Page No.# 7/13 dated 22.09.2017, the departmental proceeding have been initiated against the petitioner for the alleged ground of accepting bribe from the complainant.
18. It further appears that the FIR upon being investigated and charge-sheet submitted and trial having commenced, the Criminal Court (Special Judge, Assam, Guwahati) by Judgment and Order dated 19.07.2023 acquitted the petitioner for the charges levelled in the said FIR.
19. Paragraph 48 of the aforesaid Judgment is reproduced hereunder for ready reference:-
"48. After carefully scanning the evidences on record, it is safely concluded that the prosecution has failed to establish that the accused had demanded illegal gratification from Saidur Rahman with a promise that he would allot Besimari markets to him. The allegation of acceptance of illegal gratification by the accused from the informant is also not proved beyond all reasonable doubt. Under such circumstances it is safely hold that the prosecution is unable to establish the charge framed against the accused under sections 7/13 (2) of the P. C. Act beyond all reasonable doubt and hence the accused deserves benefit of doubt."
20. Apparent that allegation of acceptance of illegal gratification by the petitioner/accused from the informant having been not proved by the prosecution, the Criminal Court acquitted the petitioner from the aforesaid charge.
21. It further appears that the witnesses sought to be relied in the departmental proceeding have been examined by the Criminal Court as PW-1, PW-5, PW-14, PW-17 and PW-20 as witnesses.
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22. It further appears that the respondent no.2 has filed an affidavit- in-opposition on 10.05.2024, wherein in paragraph 7, it is categorically averred by the respondent authorities that the Enquiry Officer after submitting the enquiry report on 03.09.2021 and after the same was examined by the Disciplinary Authority, the Disciplinary Authority decided for a further enquiry. Paragraph 7 of the said affidavit-in- opposition is reproduced hereunder for ready reference:-
"7. That with regard to the statement made in paragraph 13 to the writ petition the deponent begs to state that the Departmental proceeding was initiated against Shri Bhupesh Ch. Das, ACS vide show cause Notice dated 09.02.2018 under the provisions of the Assam Services (Discipline and Appeal) Rules, 1964 for violation of Rule 3 of the Assam Civil Services Conduct Rules, 1965 which was unbecoming of a Govt. servant. The Inquiry Officer, who was appointed, vide order dated 02.08.2018, under the provisions of the Assam Services (Discipline and Appeal) Rules, 1964, has submitted the Enquiry Report, vide letter No:ABE.16/2018/66 dated 03.09.2021. On examination of the Enquiry Report, the Disciplinary Authority has decided for a further enquiry by recording further evidence including the statements of the remaining witnesses, particularly the police officers who are duty bound to give their statements, and also consider the pre-trap, trap and post-trap memorandums as well as FSL report, in the context of standard of proof required in a Departmental proceeding, in concurrence with the Judicial Department."
23. It appears that after the stand of the Disciplinary Authority for further enquiry, the Criminal Court by concluding the trial has acquitted the petitioner from the charges levelled in the FIR based on which the disciplinary proceeding had been initiated.
24. Pertinent to note that decision of the Disciplinary Authority to conduct further enquiry after perusal of the enquiry report is not preceded by show-cause notice. Infact, admittedly no copy of the enquiry report has been furnished to the petitioner till date.
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25. Pertinent that in terms of the decision of the Apex Court in the case of Ram Kishan Vs Union of India reported in (1995) 6 SCC 157, the departmental authorities are bound to provide an opportunity to the delinquent employee before disagreeing with the conclusions reached by the Enquiry Officer.
26. Be that as it may, it appears that in the case in hand, the decision of the departmental proceeding to conduct further enquiry was prior to the Criminal Court acquitting the petitioner from the similar set of allegations.
27. It further appears that the Criminal Court upon considering the testimonies of the witnesses which are also being relied by the Enquiry Officer in the departmental proceeding was pleased to hold that no charge of accepting illegal gratification was made out against the petitioner.
28. Apt to refer to the decision of the Apex Court in the case of G.M. Tank Vs State of Gujarat and Others reported in (2006) 5 SCC 446, wherein the Apex Court upon noting that the Criminal Court, wherein the allegations were identical has discharged the petitioner, set aside the dismissal order issued by the disciplinary authority. Paragraph 30 and 31 of the aforesaid judgment is quoted hereunder for ready reference:-
"30. The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar Page No.# 10/13 set of facts and the charge in a Departmental case against the appellant and the charge before the Criminal Court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts namely, raid conducted at the appellant's residence recovery of articles therefrom. The Investigation Officer, Mr. V.B. Raval and other departmental witnesses were the only witnesses examined by the Enquiry Officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by his judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.
31. In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony's case (supra) will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed."
29. Also apt to refer to the decision of the Apex Court in the case of Capt. M. Paul Anthony Vs Bharat Gold Mines Ltd and Another reported in (1999) 3 SCC 679. Paragraph 22 of the aforesaid judgment is reproduced hereunder for ready reference:-
"22. The conclusions which are deducible from various decisions of this Court referred to above are :
(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based on identical Page No.# 11/13 and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the Departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest."
(vi)
30. Reading of the aforesaid judgment, it is apparent that in a given case where the charges, evidences, witnesses and circumstances are one and the same and the Criminal Court after conclusion of trial acquits the accused/delinquent against the offence so alleged, findings recorded in the departmental proceeding, if allowed to stand, shall be unjust, unfair and oppressive. In other words, in the event, the facts and evidence in the department and as well as criminal proceeding if is one and the same, without there be any iota of difference, an acquittal in the said criminal proceeding shall have a vital bearing in the outcome of the departmental proceeding.
31. In such event, continuation of a criminal proceeding on the basis of the similar set of allegations and witnesses is not justified and the same shall be unfair and oppressive to the delinquent/accused.
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32. There is no quarrel to the proposition contended by Ms. M. Bhattacharjee, to the effect that nature of criminal proceedings and departmental proceeding are wholly separate and distinct and acquittal in criminal proceeding shall not lead to automatic discharge in departmental proceeding, however, each case has to be adjudged in the context of the facts and circumstances of that case.
33. As noted above, in the present case, the departmental proceeding and the criminal case are based on identical and similar set of facts and the charge in the departmental case and the charge before the Criminal Court against the petitioner are also one and the same. The listed witnesses in the departmental case were examined in the criminal case and the Criminal Court upon examination of such witnesses has concluded that the prosecution has failed to establish that the petitioner/accused had demanded illegal gratification form the informant. That being so, in the considered opinion of this Court, further continuation of the departmental proceeding against the petitioner is wholly unfair and unjustified.
34. Accordingly, this Court deems appropriate to dispose of the writ petition, in the interest of justice, by directing the respondent authorities to conclude the departmental proceeding which is pending against the petitioner in accordance with law by keeping in mind the observations made hereinabove within a period of 1 (one) month from the date of the receipt of the certified copy of the Court's order.
35. With the above observation and direction, this writ petition Page No.# 13/13 stands disposed of.
JUDGE Comparing Assistant