Gauhati High Court
Sonamani Singha vs The State Of Assam And 2 Ors on 10 February, 2021
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/13
GAHC010120842017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/306/2017
SONAMANI SINGHA
SON OF LT. EHARI SINGHA R/O LANE NO. 1, MELA ROAD, MALUGRAM
SILCHAR, CACHAR, ASSAM.
VERSUS
THE STATE OF ASSAM and 2 ORS.
REP. BY THE COMMISSIONER and SECRETARY TO THE GOVT. OF ASSAM,
EXCISE DEPARTMENT, DISPUR, GUWAHATI - 781006.
2:THE SECRETARY TO THE GOVT. OF ASSAM
EXCISE DEPARTMENT
DISPUR
GUWAHATI -6.
3:THE COMMISSIONER OF EXCISE
ASSAM
HOUSEFED COMPLEX
DISPUR
GUWAHATI-6
Page No.# 2/13
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
For the petitioner: Mr. I. Chowdhury, Senior Advocate
Mr. N.J. Khataniar, Mr. S. Biswakarma, Advocates.
For the respondents: Mr. P.N. Goswami, Mr. B.B. Gogoi,
Standing counsel, Excise Deptt.
Date of hearing : 22.01.2021.
Date of judgment : 10.02.2021.
JUDGMENT AND ORDER
(C.A.V.)
Heard Mr. I. Chowdhury, learned senior counsel, assisted by Mr. N.J. Khataniar, learned counsel for the petitioner. Also heard Mr. P.N. Goswami, learned standing counsel for the respondents.
2) The challenge in this writ petition filed under Article 226 of the Constitution of India is the order dated 20.09.2016, passed by the Secretary to the Govt. of Assam, Excise Department (respondent no.2). By the said order, it was held that the enquiry report submitted by the State Enquiry Officer, Assam was not satisfactory and it was communicated that the Governor of Assam considers that an enquiry officer should be appointed to enquire into the charges framed against the petitioner and accordingly, a different enquiry officer as well as Presenting Officer were appointed respectively.
3) In brief, the case of the petitioner as projected in the writ petition is that at the relevant time, he was posted as Deputy Superintendent of Excise, Cachar, he was allowed to hold charge of Superintendent of Excise, temporarily vide order dated 22.04.2014 and 26.05.2014, till posting of a regular incumbent. On 19.07.2014, the Treasury Officer, Cachar reported that huge amount of government revenue was not deposited into public exchequer by the concerned depositors under the jurisdiction of the petitioner though challans were Page No.# 3/13 duly passed by his office, which caused loss of Rs.36,36,75,275/- to the revenue. On enquiry and reconciliation, the petitioner found that two IMFL licencees had defalcated excise revenue of Rs.16,63,65,818/-. On 01.08.2014, the petitioner issued notice on the said two defaulting excise licence holders to appear before him with stock and sales register and supporting documents of deposit of ad valorem levy on or before 03.08.2014. On default, the petitioner lodged an F.I.R. before the O/c. Silchar Sadar P.S. against the licencees found to be involved in defalcating government revenue, which was registered as Silchar P.S. Case No. 1951/2014 under sections 409/420 of the I.P.C.
4) In course of time, the Addl. Chief Secretary to the Govt. of Assam, Excise Department vide notification no. EX.134/2014/43 dated 22.10.2014, pending departmental proceeding, the petitioner was placed under suspension under Rule 6(1) of the Assam Services (Discipline and Appeal) Rules, 1964 (hereinafter referred to as the " 1964 Rules" for brevity) on the allegation that while posted as In-Charge Superintendent of Excise, Cachar, he had failed to detect defalcation of ad valorem duties by 2 (two) "OFF" Licencees, resulting in loss to the government exchequer. Thereafter vide Memo no. Ex.134/ 2014/47 dated 16.12.2014, show cause notice was issued to the petitioner under Rule 9 of the said 1964 Rules read with Article 311 of the Constitution of India, as to why any of the penalties prescribed under Rule 7 of the said Rules should not be inflicted on him. The said memo contained a statement of allegation and was accompanied by list of documents and list of witnesses. The petitioner submitted his show cause reply dated 22.12.2014. Thereafter, vide notification No. EX.236/2014/74 dated 23.02.2015 issued by the Commissioner and Secretary to the Govt. of Assam, Excise Department, the notification of suspension dated 22.10.2014 was revoked and the petitioner was reinstated in service. Thereafter, vide notification no. Ex. 236/2014/75 dated 13.03.2015 issued by the Commissioner and Secretary to the Govt. of Assam, Excise Department, the State Enquiry Officer was appointed as the Enquiring Authority to enquire into the charges framed against the petitioner and to submit enquiry report and by the same notification, a Presenting Officer was also appointed to present the case before the Enquiry Officer. On 08.04.2016, the petitioner had submitted his written submission before the Enquiry Officer. After conclusion of the enquiry, the Enquiry Officer had Page No.# 4/13 submitted his report. As per the said report, the reconciliation had not been the regular and usual practice for the Superintendents of Excise in the State till issuance of the order dated 07.08.2014 by the Commissioner of Excise. It was also stated that during the period from April, 2011 to June, 2014 when defalcation took place, besides the petitioner, other incumbents were also holding the post of Superintendent of Excise, Cachar. The Enquiry Officer had stated that the steps taken by the petitioner to find out the actual defalcated amount and the follow up action after detection of defalcation, it was reasonable to hold that although the charge of negligence and dereliction of duty against the petitioner resulting in loss to the government may be technically correct, but the ground reality is actually reflected in the issuance of the order dated 07.08.2014 of the Commissioner of Excise or rather the reason for issuance of the order. Hence, the conclusion of the Enquiry Officer was that holding the petitioner responsible for the defalcation was contrary to reason and that the charges hold little substance. Upon submission of the said report, the impugned order followed. The case projected by the petitioner is that the Enquiry Report as well as the impugned order dated 20.09.2016, initiating a fresh enquiry against him were not furnished to him and, as such, by submitting an application under Right to Information Act, the petitioner sought for the said two documents. The said two documents were furnished to the petitioner by the S.P.I.O. & Joint Secretary to the Govt. of Assam, Excise Department vide his forwarding letter dated 12.12.2016.
5) The learned senior counsel for the petitioner has submitted that As per the provisions of Sub- Rule (9) of Rule 9 of 1964 Rules, it is provided that if " The Disciplinary Authority shall, if it is not the Inquiring Authority, consider the record of the inquiry and record its finding on each charge." Accordingly, it is submitted that without recording its finding, the Disciplinary Authority could not have ordered a fresh enquiry by substituting the Enquiry Officer and Presenting Officer. It is also submitted that the 1964 Rules does not envisage re-enquiry or further enquiry and, as such, it is submitted that the impugned order is not sustainable on facts and in law. It is submitted that re-enquiry is not permissible because it would be never ending and cannot be allowed to continue till the Disciplinary Authority gets the desired report. In support of his submissions, the learned senior counsel Page No.# 5/13 for the petitioner has referred to the following cases, viz., (i) Vijay Shankar Pandey Vs. Union of India & Anr., (2014) 10 SCC 589, (ii) Union of India Vs. K.D. Pandey, (2002) 10 SCC 471,
(iii) K.R. Deb Vs. Collector of Central Excise, AIR 1971 SC 1147, (iv) Khagendra Nath Das Vs. The State of Assam & Ors., (2015) 2 GLR 716, (v) Bidyut Buragohain Vs. State of Assam & Ors., (2005) 3 GLT 457.
6) Per contra, the learned standing counsel for the respondents has submitted that the word "finding" as contained in Sub- Rule (9) of Rule 9 of the 1964 Rules would mean and include both acceptability as well as disagreement with the finding recorded by the Enquiry Officer. It is submitted that by judicial interpretation, the Disciplinary Authority cannot be rendered powerless to disagree with the enquiry report of the Enquiry Officer and therefore, on disagreement, there cannot be any fetters on the power of the Disciplinary Authority to order a fresh enquiry. It is submitted that the petitioner would not suffer any conceivable prejudice on a fresh enquiry being initiated. It is also submitted that the Disciplinary Authority is not subordinate to the Enquiry Officer and, as such, it is not bound to accept the report submitted by the Enquiry Officer. Hence, no impropriety was committed in ordering a fresh enquiry. It is also submitted that the petitioner, who was the delinquent officer had caused loss of Rs.16,63,65,818/- to the Government exchequer, as such, it was deemed fit and proper that the petitioner could not be exonerated and therefore, on disagreement, there was no infirmity to continue with a fresh enquiry. In support of his submissions, the learned standing counsel for the respondents has relied on the following cases, viz., (i) Sakiri Vasu Vs. State of U.P., (2008) 2 SCC 409; (ii) High Court of Judicature at Bombay Vs. Sashikant S. Patil, (iii) (2000) 1 SCC 416; (iii) State of Rajasthan Vs. M.C. Saxena, (1998) 3 SCC 385; (iv) Ram Kishan Vs. Union of India, (1995) 6 SCC 157.
7) The case of Sashikant S. Patil (supra) was cited for the following observations made by the Supreme Court, which is quoted below:-
"19. The reasoning of the High Court that when the Disciplinary Committee differed from the finding of the Inquiry Officer it is imperative to discuss the Page No.# 6/13 materials in detail and contest the conclusion of the Inquiry Officer, is quite unsound and contrary to the established principles in administrative law. The Disciplinary Committee was neither an appellate nor a revisional body over the Inquiry Officer's report. It must be borne in mind that the inquiry is primarily intended to afford the delinquent officer a reasonable opportunity to meet the charges made against him and also to afford the punishing authority with the materials collected in such inquiry as well as the views expressed by the Inquiry Officer thereon. The findings of the Inquiry Officer are only his opinion on the materials, but such findings are not binding on the disciplinary authority as the decision making authority is the punishing authority and, therefore, that authority can come to its own conclusion, of course bearing in mind the views expressed by the Inquiry Officer. But it is not necessary that the disciplinary authority should "discuss materials in detail and contest the conclusions of the Inquiry Officer".
Otherwise the position of the disciplinary authority would get relegated to a subordinate level.
20. Legal position on that score has been stated by this Court in A.N. D'Silva v. Union of India [1962 Suppl.(1) SCR 968: AIR 1962 SC 1130], that neither the findings of the Inquiry Officer nor his recommendations are binding on the punishing authority. The aforesaid position was settled by a Constitution Bench of this Court way back in 1963, [Union of India v. H.C. Goel, (1964) 4 SCR 718: AIR 1964 SC 364]. The Bench held that "the Government may agree with the report or may differ, either wholly or partially, from the conclusion recorded in the report". Their Lordships laid down the following principle:
"If the report makes findings in favour of the public servant and the Government disagree with the said findings and holds that the charges framed against the public servant are prima facie proved, the Government should decide provisionally what punishment should be imposed on the public servant and proceed to issue a second notice against him in that behalf".
Page No.# 7/13 However, it is seen that in the said case, the factual matrix was that after holding a preliminary enquiry, the High Court framed charges against the first respondent and appointed the Joint District Judge as the inquiry officer to conduct a formal inquiry into the charges. He submitted a report on 01.03.1994, exonerating the first respondent of the charges. But the Disciplinary Committee of the High Court consisting of five Judges of the Bombay High Court, after a scrutiny of the report of the Inquiry Officer, did not approve the findings therein. The Committee differed from the findings and proposed to proceed into the matter. A notice was thereupon issued to the first respondent calling upon him to show cause as to why the findings of the inquiry officer on the crucial points be not repudiated, and a major penalty of dismissal from service be not imposed on him. Thus, in this case, the Disciplinary Committee had proceeded with the enquiry. Therefore, on facts, the present case is distinguishable as because here the Disciplinary Authority did not proceed with the hearing, but order a fresh enquiry by a new Enquiry Officer. The cited case, thus, does not help the respondents.
8) Similarly, the case of M.C. Saxena (supra), that was cited is also distinguishable because in the said case, the Disciplinary Authority disagreed with the finding and by recording reasons, proceeded to hold that the charges against the delinquent officer had been established, which is not the case in hand. Hence, the cited case does not help the respondent in any way. Paragraph 5, on which the learned standing counsel for the respondent has relied upon is self explanatory and is quoted below.
5. The grievance of the delinquent government servant is based upon a thorough misconception about the rights of the government servant concerned. It is undisputed that the enquiring officer did not rely upon the FSL report on the ground that the procedure prescribed for taking sample have not been followed and therefore exonerated the delinquent government servant. But the disciplinary authority recorded reasons for disagreeing with the findings of the enquiring officer and held that the charges against the respondent has been established. It is well settled that the disciplinary authority can disagree with the findings arrived at by the enquiring officer and act upon his own conclusion, but the only Page No.# 8/13 requirement is that the said disciplinary authority must record reasons for his disagreement with the findings of the enquiry officer. If the disciplinary authority gives reasons for disagreeing with the findings of enquiring officer then the Court cannot interfere with those findings unless it comes to the conclusion that no reasonable man can come to the said finding. In this view of the matter, the disciplinary authority was well within his powers to award punishment on the findings arrived at by him. We do not find any force in the submission of the learned counsel appearing for the delinquent government servant that before the disciplinary authority proceeds to award punishment, the delinquent government servant should have been afforded a further opportunity of hearing. As it appears, the punishment of stopping two increments without cumulative effect is a minor punishment under CCA Rules. Then again the delinquent government servant filed review petition and State Government allowed the review petition and reduced the punishment to stoppage of one increment without cumulative effect. In such circumstances the argument that there has been a gross violation of principle of natural justice is devoid of force. A set of charges having been framed and the delinquent government servant having filed his show cause to the set of charges, the regular enquiry having been held and the enquiring officer having recorded his findings and thereafter the disciplinary authority having disagreed with the findings by recording the reasons therefor, and ultimately awarding minor punishment of stoppage of one increment without cumulative effect, there is no procedural irregularity therein nor can it be said that there has been any violation of principle of natural justice. Thus the punishment imposed upon by the authority has rightly not been interfered with by the High Court.
9) The case of Sakiri Vasu (supra) was relied to demonstrate that . Paragraph 18 thereof is quoted below:-
18. It is well-settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, Page No.# 9/13 there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective.
Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution .
The above quoted legal position is not disputed by the learned senior counsel for the petitioner. However, the fact is that the provisions contained in 1964 Rules do not envisage re-enquiry by appointing a different Enquiry Officer and that too by non-compliance of the requirement of Sub-Rule (9) of Rule 9 which prescribes that the Disciplinary Authority shall record its finding when it is not the Inquiring Authority. Thus, the cited case does not help the petitioner.
10) The case of Ram Kishan (supra), was cited for the following observations made by the Supreme Court of India, which is quoted below:-
10. The next question is whether the show cause notice is valid in law. It is true, as rightly contended by the counsel for the appellant, that the show cause notice does not indicate the reasons on the basis of which the disciplinary authority proposed to disagree with the conclusions reached by the inquiry officer. The purpose of the show cause notice, in case of disagreement with the findings of the enquiry officer, is to enable the delinquent to show that the disciplinary authority is persuaded not to disagree with the conclusions reached by the inquiry officer for the reasons given in the inquiry report or he may offer additional reasons in support of the finding by the inquiry officer. In that situation, unless the disciplinary authority gives specific reasons in the show cause on the basis of which the findings of the inquiry officer in that behalf is based, it would be difficult for the delinquent to satisfactorily give reasons to persuade the disciplinary authority to agree with the conclusions reached by the inquiry officer. In the absence of any ground or reason in the show cause notice it amounts to an empty formality which would cause grave prejudice to the delinquent officer and would Page No.# 10/13 result in injustice to him. The mere fact that in the final order some reasons have been given to disagree with the conclusions reached by the disciplinary authority cannot cure the defect. But, on the facts in this case, the only charge which was found to have been accepted is that the appellants had used abusive language on the superior authority. Since the disciplinary authority has said that it has agreed partly to that charge, the provisional conclusion reached by the disciplinary authority in that behalf even in the show cause notice, cannot be said to be vague.
Therefore, we do not find any justification to hold that the show cause notice is vitiated by an error of law, on the facts in this case."
However, on facts, the present case is also distinguishable from the facts of the present case in hand, because in the cited case, the Disciplinary Authority after disagreeing with the finding of the Inquiring Officer, proceed to issue notice to the delinquent officer and decided the matter. Paragraph 2 of the said judgment is quoted below:-
2. The appellants, while working as constable under the charge of Additional Deputy Commissioner of Police, Central District, New Delhi, was charged with two-
fold grave misconduct:(i) while he was in charge of the sub-jail (naib Court) he facilitated one Puran, s/o. Rama, undertrial prisoner, to drink alcohol before being taken to the Court; and (ii) he had abused the superior Officer and created an ugly scene in their presence. The inquiry officer in his report dated July 20, 1985 found that the second charge was partly proved and the first charge had not been proved. The disciplinary authority, viz., Additional Deputy Commissioner, disagreeing with the conclusions reached by the inquiry officer, issued a show cause notice on August 16, 1985 as to why both the charges should not be taken to have been proved. The appellant submitted his explanation and thereon by order dated September 6, 1986, the Additional Deputy Commissioner dismissed him from service.
11) This Court in the case of Bidyut Buragohain (supra), had considered the Page No.# 11/13 provisions of Rule 9(9) of the 1964 Rules while considering the direction for a fresh/ de novo trial. Paragraph 5 thereof is quoted 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 aforesaid question and no such power has been specifically or impliedly conferred. In K.R. Deb (supra), the charges leveled against the delinquent officer were enquiry 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. 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 having regard to the provisions of Rule 15(9) and Rule 9(9) of the Assam Services (Discipline and Appeal) Rules, 1964, if must be noticed are per materia. The Apex Court answered the above question by taking the view that while it may be open for the disciplinary authority to require the enquiry officer to examine further witnesses and do such other incidental acts in an already concluded proceedings, having regard to language of Rule 15(9) of CCS (Classification, Control and Appeal) Rules, 1957 a fresh enquiry into the same set of allegations by discarding the earlier enquiry report is not contemplated. The question raised in the present enquiry, report is not contemplated. The question raised in the present writ petition having regard to the identity of language of Rule 15(9) of the CCS. (Classification, Control Page No.# 12/13 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 Bandhana Goala (supra), the conclusion that has to inevitably follow is that the Office Order dated 19.04.2003 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 19.04.2003 shall stand interfered with.
12) In the case of Khagendra Nath Das (supra), this Court was considering the case involving the 1964 Rules, and held that the Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9. It was also held that the normal rule is that there can be only one enquiry and it was further held the report submitted by the enquiring authority is not acceptable to the disciplinary authority, is not a ground for completely setting aside the enquiry report and ordering a second enquiry.
13) In this present case in hand, as the Disciplinary Authority was not the Inquiring Officer, it had the power, authority and jurisdiction under Sub- Rule (9) of Rule 9 of 1964 Rules to consider the record of the inquiry and record its finding on each charge. However, having not done so, as the learned standing counsel for the respondents has not been able to show any provision in 1964 Rules contemplating re-enquiry and/or a fresh or de novo enquiry by appointing a different Enquiry Officer, the impugned order is held to be not sustainable on facts and in law.
14) Accordingly, the Court has no hesitation to set aside and quash the impugned notification issued by the Secretary to the Govt. of Assam, Excise Department under Memo Page No.# 13/13 no. EX.236/2014/122 dated 20th September, 2016. This writ petition stands allowed only to the extent as indicated above.
JUDGE Comparing Assistant