Gauhati High Court
Page No.# 1/15 vs The State Of Assam And 4 Ors on 19 June, 2025
Page No.# 1/15
GAHC010267542023
2025:GAU-AS:8306
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/7032/2023
NIPU KALITA
S/O- LATE JOGEN KALITA,
R/O- BANFUL NAGAR,
SIVA SHAKTI ENCLAVE,
P.O. AND P.S.- HATIGAON,
DISTRICT- KAMRUP(M), ASSAM.
VERSUS
THE STATE OF ASSAM AND 4 ORS.
TO BE REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM,
DEPARTMENT OF HOME,
DISPUR, GUWAHATI- 781006.
2:THE DIRECTOR GENERAL OF POLICE
ASSAM
ULUBARI
GUWAHATI- 781007
ASSAM.
3:THE INSPECTOR GENERAL OF POLICE (T AND AP)
ASSAM
ULUBARI
GUWAHATI- 781007
ASSAM.
4:THE INSPECTOR GENERAL OF POLICE (CR)
NAGAON
ASSAM
CAMP-DIPHU
Page No.# 2/15
782001.
5:THE COMMISSIONER OF POLICE
GUWAHATI
PANBAZAR
GUWAHATI- 781001
ASSAM
Advocate for the Petitioner : MR I RAFIQUE, MS A AFREEN,MS. R. R. SAIKIA,MRS S A
CHOUDHURY
Advocate for the Respondent : GA, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR
ORDER
Date : Date: 19.06.2025 Heard Mr. I. Rafique, learned counsel appearing on behalf of the petitioner. Also heard Mr. J. K. Goswami, learned Addl. Senior Government Advocate appearing for all the respondents.
2. The petitioner, by way of instituting the present proceeding has presented a challenge to an order dated 27.06.2023, issued by the Commandant Battalion Training Centre, Assam, Dergaon, imposing the penalty of dismissal of service upon the petitioner. The petitioner has also assailed the order dated 08.11.2023, passed by the Appellate Authority, rejecting the appeal filed by the petitioner and thereby, upholding the order dated 27.06.2023, passed by the Disciplinary Authority.
3. The facts requisite for adjudication of the issue arising in the present proceeding is noticed as below: -
A complaint dated 19.05.2019 was filed by one Shri Shibobrata Nath against the petitioner herein, leveling certain allegations against him before the Secretary, State Police Accountability Commission (herein after referred as the Commission), Assam.
Page No.# 3/15 The allegations leveled against the petitioner pertains to an incident occasioning on 09.05.2017 when the petitioner along with certain other police personnel had gone to the house of the complainant in civil dress and forcibly conducted a search therein. In the search nothing was stated to have been found but, the petitioner had asked two cartons of foreign liquor for his domestic function. It was further alleged in the complaint that the complainant was assaulted and wrongfully confined in Tarapur Town Out-Post (TOP) lockup. The complainant also alleged that he was released by the petitioner on the next day after having taken an amount of Rs. 2.75 lakh from his wife for the purpose.
The Commission, on consideration of the said complaint was pleased vide order dated 03.11.2020 to close the said proceeding with a direction to the Director General of Police, Assam, to initiate a departmental proceeding against the present petitioner. Basing on the said direction issued by the Commission, the Commissioner of Police, Guwahati, issued a show-cause dated 19.05.2021, under the provisions of Section 65 of the Assam Police Act, 2007 read with Rule 66 of Assam Police Manual Part-III and Article 311 of the Constitution of India, as to why penalty under Rule 7 of Assam Services (Discipline and Appeal) Rules, 1964 shall not be imposed upon him. The allegation leveled against the petitioner in the said show-cause notice is the same allegation that was so involved in the complaint filed before the SPAC, Assam.
The petitioner, on receipt of the said show-cause notice submitted his written statement thereto, on 11.06.2021, denying the allegations and charges leveled against him. The written statement submitted by the petitioner not being found to be satisfactory, the Disciplinary Authority directed vide order dated 18.06.2021 to institute a departmental proceeding in the matter against the petitioner. Accordingly, D.P. No. 07/2021 was initiated against him. An Enquiry officer and a Presenting officer came to be so appointed for the purpose of conduct of the enquiry vide the same order. The Enquiry officer initiated the enquiry and therein examined two witnesses including the complainant in the complaint filed before the SPAC, Assam. The petitioner was also Page No.# 4/15 examined in the enquiry.
On completion of the enquiry, the Enquiry officer submitted her enquiry report dated 04.05.2023. A copy of the enquiry report was furnished to the petitioner and he also submitted a representation against the same. Thereafter, the Disciplinary Authority vide order dated 27.06.2023, on consideration of the materials coming on record in the enquiry as well as the representation submitted by the petitioner against the same, accepted the findings of the Enquiry officer and concluded the allegations leveled against him in the show-cause notice dated 19.05.2021 to have been established. Accordingly, a penalty of dismissal from service came to be imposed upon the petitioner.
Being aggrieved, the petitioner preferred an appeal against the said order dated 27.06.2023 before the designated Appellate Authority. The Appellate Authority, on consideration of the matter was pleased vide order dated 08.11.2023 to reject the said appeal and thereby, uphold the penalty of dismissal from service imposed upon the petitioner by the Disciplinary Authority vide the order dated 27.06.2023.
Being aggrieved, the petitioner has instituted the present proceedings.
4. Mr. I. Rafique, learned counsel for the petitioner, by reiterating the facts noticed herein above has at the outset submitted that the complaint lodged before Commission, was so lodged after about 2(two) years from the date of the alleged incident. He has submitted that the complaint so lodged on 19.05.2019 and therein, the date of the alleged incident was reflected to have occasioned on 09.05.2017. Mr. Rafique has submitted that the petitioner, as a part of a Special Operation Team formed by the jurisdictional Superintendent of Police, headed by one SI (UB) Abdur Rahman had raided the shop premises of the complainant before the Commission, on an information being received that illicit liquor was being sold therein. On such raid being carried out, illicit foreign liquor was found to be stored therein and accordingly, the Special Operation Team had brought the said foreign liquor and the same was Page No.# 5/15 kept by SI (UB) Abdur Rahman outside the Malkhana of Tarapur Town Outpost.
5. Mr. Rafique, learned counsel has submitted that the allegations leveled against the petitioner by the complainant before the Commission, could not be established and further, it was also not established that the petitioner had taken money for the release of the complainant. Accordingly, he submits that the delay of more than two years occasioning in lodging of the complaint by the complainant before the Commission, raises a doubt with regard to the bonafide of the said complaint. He submits that the show-cause notice dated 19.05.2021 having been so issued solely basing on the directions passed vide order dated 03.11.2020 by the Commission and no information with regard to the occurring of such incident having been given to the departmental authorities, he has submitted that the said allegations could not have been leveled against the petitioner after such a long delay.
6. Mr. Rafique, by referring to the allegations leveled against the petitioner in the show-cause notice dated 19.05.2021 has submitted therein that it was alleged that the petitioner along with 3 or 4 other police personnel including SI (UB) Abdur Rahman had come to the complainant's house in civil dress and forcefully entered into his house and conducted a search. Nothing was stated to have been found in the house, however, 2 cartons of foreign liquor were taken away by the petitioner. However, it was alleged that the 2 cartons so seized were not deposited at the Malkhana of Tarapur Town Outpost. Mr. Rafique has submitted that in the show-cause, it was further alleged that the petitioner had assaulted the complainant and had wrongfully confined him Tarapur Town Outpost lockup and was only released on the next date after having taken a bribe of Rs. 2,75,000/. It was further alleged that no GD Entry about leaving the Town Out-Post along with the team for conducting the search in the house of the complainant was made by the petitioner herein.
7. Mr. Rafique, by referring to the enquiry report has submitted that in the enquiry two prosecution witnesses were examined i.e. SI (UB) Abdur Rahman as PW-2 and Page No.# 6/15 Shibobrata Nath, the complainant as PW-3. By taking this Court through the depositions of the said witnesses as set out in the enquiry report, Mr. Rafique has submitted that nothing incriminating was brought on record by the said witnesses against the petitioner herein. He has highlighted that the complainant PW-3 had while stating that the petitioner has raided his house and had found 2 cartons of foreign liquor therein, which were taken away by them, he was allowed to go after two hours on assuring the police personnel that he would not deal in such illegal activities again. Mr. Rafique has submitted that the PW-3 had emphatically stated during the enquiry that the Officer In-charge of Borkhola Police had called him to the police station and he was asked to sign in some black paper and after that he was allowed to go. The complainant had further stated that he came to know after two years that a case was filed against the petitioner herein and the other police personnel, who had gone to his house in the year 2017.
8. Mr. Rafique, learned counsel has submitted that none of the PWs had even indicated of any assault being made by the petitioner on the complainant and also there was no material brought on record with regard to taking of a bribe of Rs. 2,75,000/-, by the petitioner for release of the complainant. Mr. Rafique submits that in spite of the nature of evidence coming on record, the enquiry officer arrived at a forceful conclusion to the effect that the petitioner had proceeded for the search operation without a GD Entry and had not deposited the cartons of the seized liquor in the Malkhana, which was held to be a serious misconduct; however, the Enquiry officer had held that the allegation of taking bribe by the petitioner to have been not proved.
9. Mr. Rafique has submitted that during the enquiry, the Enquiry Officer had only held a part of the charge relating to proceeding for the charge search operation without a GD Entry and not depositing the cartons of liquor ceased from the complainants premises in the Malkhana, to have been established. Accordingly, he Page No.# 7/15 submits that the said allegations by itself would not be material enough to impose upon the petitioner, a penalty of dismissal from service. Mr. Rafique submits that the Disciplinary Authority without appreciating the matter in its proper perspective proceeded to hold the charges leveled against the petitioner to have been established even going beyond the findings recorded by the Enquiry officer without first issuing a disagreement note in the matter. On such conclusion being drawn, the Disciplinary Authority vide the order dated 27.06.2023, proceeded to impose the penalty of dismissal from service upon the petitioner. He has further submitted that the appeal preferred by the petitioner was also dismissed by the Appellate Authority vide the order dated 08.11.2023 without appreciating the contentions raised by the petitioner in the appeal so filed by him in its proper perspective.
10. In the above premises, Mr. Rafique submits that orders impugned in the present proceedings would mandate interference from this Court with a further direction to the respondent authorities for reinstatement of the petitioner with all consequential benefits.
11. Per contra, Mr. J. K. Goswami, learned counsel for the respondents has submitted that the misconduct committed by the petitioner, coming to the notice of the departmental authorities on the passing of the order dated 03.11.2020 by the Commission; and there being a direction for holding a departmental proceeding against the petitioner for ascertaining the veracity of the allegations leveled against him, a departmental proceeding came to be so instituted against the petitioner vide issuance of the show-cause notice dated 19.05.2021. Mr. Goswami has submitted that in the enquiry held, the petitioner was given all due opportunity to defend the allegations leveled against him. Basing on the materials coming on record in the enquiry, the Enquiry officer had submitted her report in the matter and therein had held that the allegation leveled against the petitioner of going for a search without a GD Entry and not depositing the cartons of liquor in the Malkhana was established and Page No.# 8/15 the same tantamounted to a serious misconduct on his part.
12. Mr. Goswami has submitted that the other allegation of wrongful confinement of the complainant and releasing him after receiving an amount of Rs. 2,75,000/- as bribe from the wife of the complaint although could not be proved. The allegations proved against the petitioner being serious in nature, he being a member of a disciplined force, the same was material enough for imposition of a major penalty upon the petitioner. Mr. Goswami has submitted that the disciplinary authority had examined the matter in its proper perspective and had thereafter, drawn its satisfaction that the conclusions reached by the Enquiry officer were not erroneous and accordingly, accepted the same and proceeded to impose upon the petitioner the penalty of dismissal from service vide the order dated 27.06.2023.
13. Mr. Goswami, learned counsel for the respondents has submitted that a perusal of the order dated 27.06.2023, would bring to the forefront that all the requisites aspects were noticed by the Disciplinary Authority and the penalty of dismissal from service so imposed upon the petitioner was justified in the order dated 27.06.2023 itself. Mr. Goswami has submitted that the Appellate Authority had again re- appreciated the entire material coming on record and thereafter, dealing with the contentions raised by the petitioner in the appeal, proceeded to reject the same and thereby, rejected the appeal preferred by the petitioner, upholding the order passed by the Disciplinary Authority. In the aforesaid premises, Mr. Goswami submits that the petitioner was expected to act in a manner becoming of a member of disciplined force and he had failed to discharge his duties in the manner so required and accordingly, the penalty imposed upon the petitioner, in addition to punishing him for the misconduct committed by him, which is also necessary to be maintained for the purpose of maintaining discipline in the force.
14. I have heard the learned counsels appearing for the parties and also perused the materials brought on record.
Page No.# 9/15
15. The facts noticed herein above, leading to the institution of the departmental proceeding against the petitioner is not disputed. The departmental proceeding came to be instituted against the petitioner vide issuance of a show-cause notice dated 19.05.2021. The allegations leveled against the petitioner and the charge framed thereon against him being relevant, is extracted herein below: -
"While you were posted at Tarapur T.O.P. as I/C under Silchar P.S., on 19.05.2019 complainant namely Shri Shibobrata Nath, S/O- Late Satyendra Ch. Nath, Vili- Jarailtola, P.S. Borkhola, Dist. Cachar (Assam) submitted a complaint petition to the Hon'ble Secretary of SPAC, Assam, Ulubari, Guwahati that the complainant is a cold drink shop keeper situated at Jarailtola Bazar under Borkhola P.S. and on 09.05.2019 at about 10:00 PM you along with 3/4 other Police personnel namely SI(UB) Abidur Rahman and other two UBCs came to complainant's house in civil dress and forcibly entered into his house and conducted search. During search nothing could be found but 2/3 cartoons of illicit foreign liquor (wine) were found which were used for his domestic function but you asked the complainant to handover those cartoons of foreign liquor. However, you did not keep those cartons of foreign liquor at the Malkhana of Tarapur T.O.P. You had also assaulted Shri Shibobrata Nath by fist and blow and apprehended him wrongfully and confined him Tarapur T.O.P. Lockup. On the next day, you released him after taking a bribe of Rupees 2.75 Lakh from his wife. Being I/C, of Tarapur T.O.P., you should have made entry in the General Dairy about leaving of T.O.P. along with the team for conducting the search in the house of complainant, which had not been done by you. Your act of taking away the cartoons of foreign liquor from the house of the complainant, which was allegedly illicit liquor and not depositing the same in the Tarapur T.O.P. amounts to serious misconduct as defined in Sub-Section (1) of Section 78 of the Assam police Act, 2007. Moreover, your action in not making any entry in the G.D. of Tarapur T.O.P. about leaving the T.O.P. for conducting search in the house of complaints also amounts to misconduct, within the meaning of Sub-Section (3) of Section 78 of the aforesaid Act as your subsequent action reflects the wilful breach of the requirement to make such entry in the G.D. Page No.# 10/15 You are therefore, liable to punishment as per procedure of law.
You are, therefore, charged for serious misconduct, unbecoming act of public servant in gross violation of the relevant conduct rules."
16. The petitioner in his written statement dated 11.06.2021 had denied the charges leveled against him. As noticed herein above, the same on being not found to be satisfactory, a departmental enquiry came to be directed to be held in the matter against the petitioner. In the enquiry so held, 3 PWs were listed however; PW-1 SI (UB) Joseph Zate had not appeared in the enquiry on various dates due to his official engagements. Accordingly, his statements were not recorded.
17. PW-2 SI (UB) Abdur Rahman was a part of the operation team formed by the jurisdictional Superintendent of Police and he had accompanied the petitioner and other police personnel of the team to raid the shop of one Shibobrata Nath. In his deposition, the said aspect of the matter was reiterated by PW-2. It was deposed that on reaching the shop of Shibobrata Nath and finding it to be closed, they had proceeded to his residence. On a search being made in the residence of Shibobrata Nath, a carton of illicit liquor was found and the same was brought to the Tarapur Town Outpost. He further deposed that after he had come back to the police reserve, he did not know whether the formalities were done or not. PW-2 had further deposed that he had come to learn about the case only on receiving a notice from the Commission. PW-2 further projected in his deposition in the enquiry that he had heard that the Officer In-charge Borkhola P.S. had called Shibobrata Nath the next day and taken his signatures on blank paper. The reason for taking of the said signatures was stated to be unknown to Shibobrata Nath. Shibobrata Nath was stated to have known about the said complaint lodged in his name when he was called to the Commission. The PW-2 concluded his deposition by stating that the Officer In-charge, Borkhola P.S. must have done that for some personal grudge.
18. PW-3 Shibobrata Nath, the complainant, before the Commission and whose Page No.# 11/15 house was raided by the team consisting of the petitioner and SI (UB) Abdur Rahman in his deposition in the enquiry had stated that on 09.05.2017, five police personnel in civil dresses including the petitioner and SI (UB) Abdur Rahman from Tarapur Town Outpost had come to his house and asked him whether he deals illicit foreign liquor. Thereafter, search was made in the house and 2 cartons of foreign liquor were found. The police personnel were contended to have taken the cartons along with PW-3 to the Town Out-post. He further deposed that he was allowed to go after he had assured the police personnel that he would not deal in such illegal activities. PW-3 reiterated the deposition made by PW-2 to the extent that the Officer In-charge, Borkhola Police had called him to the Police Station on the next day and he was asked to sign in a blank paper. He further deposed that it was only after two years that he had come to know that he had filed a case against SI (UB) Nipu Kalita and the police personnel, who had gone to his house in the year 2017.
19. A perusal of the statements brought on record by the PWs does not reveal that they had deposed anything with regard to the non-registration of a GD Entry by the petitioner before proceeding for the raid and also about the manner in which the liquor seized from the house of the complainant PW-3 was dealt with. The Enquiry officer, basing on the depositions of PW-2 & PW-3 in the enquiry as well as that of the petitioner, proceeded to draw the following conclusions in the matter: -
"During the enquiry, the statements of two prosecution witnesses and the Charged Officer SI (UB) Nipu Kalita were recorded. On the basis of the exhibits enclosed with the DP file and the statements of the prosecution witnesses on record, it can be inferred that the act of the Charged Officer SI (UB) Nipu Kalita, the then I/C Tarapur Town Outpost, of going for a search operation without a GD Entry and not depositing the Cartons of liquor in the Malkhana tantamount to a serious misconduct on his part. Further, from the statements of the prosecution witnesses the other charges of Bribe of Rs. 2,75,000/- (Two lakhs Seventy Five Thousand) and wrongfully confining the complainant Shri Shibobrata Nath could not be proved. Thus, the charge Page No.# 12/15 of serious misconduct, unbecoming act of public servant in gross violation of the relevant conduct rules is proved in pre-ponderence of probability."
20. A perusal of the said conclusion would go to show that on the basis of the documents enclosed with the departmental proceeding file and the statements of the PWs on record, the act of the petitioner of going for a search operation without a GD Entry and not depositing the cartons of liquor in the Malkhana was held to be established. The materials brought on record does not reveal that the any document were so exhibited in the enquiry through either PW-2 or PW-3.
21. It is a settled position of law that in the enquiry a document can be exhibited only through a witness. No such documents having been exhibited through a witness, the documents cannot be held to be evidence coming on record in the enquiry and the Enquiry officer could not have placed reliance on the said documents by treating them to be exhibits. Further, the said conclusion drawn by the petitioner of having gone for a search operation without a GD Entry and not depositing the cartons of liquor in the Malkhana is also not borne out from the statements of PW-2 and PW-3. While drawing the said conclusions, the Enquiry officer failed to reckon the statements made by the petitioner in the enquiry to the effect that SI (UB) Abdur Rahman had kept the 2 cartons of foreign liquor outside the Malkhana of Tarapur Town Outpost and had told him that they will take them the next day. Further, he had stated that a GD Entry was not made because the area wherein the raid was conducted fell within the jurisdiction of Borkhola Police Station. He further deposed that the In-charge of the special operation team was SI (UB) Abdur Rahman and it was he who would be held to be responsible for non-compliance of any mandated formalities and the petitioner could not have been held to be responsible for the same, inasmuch as, he had only accompanied the team as one of its members.
22. A further perusal of the conclusions drawn by the Enquiry officer extracted herein above, would go to reveal that the allegation leveled against the petitioner of Page No.# 13/15 wrongful confinement of the complainant and receiving an amount of Rs. 2,75,000/- from the complainant's wife for his release was not proved. Basing on the said conclusions, the Enquiry officer had returned a finding to the effect that charge of serious misconduct unbecoming act of public servant in gross violation of the relevant conduct rules was proved by pre-ponderence of probability against the petitioner. The disciplinary authority vide order dated 27.06.2023, on considering the materials coming on record in the enquiry as well as the representation submitted by the petitioner against the enquiry report, proceeded to draw the following conclusions: -
"Whereas, I being the Disciplinary Authority have perused the findings submitted by the Enquiry Officer including all the available relevant records of the Departmental Proceeding file. As per the available records, the Charged Officer SI(UB) Nipu Kalita had violated the disciplinary rules in the manner of (i) by not making GD Entry before he left for Jaralltola to conduct search operation (ii) by not informing O/C Borkhola PS as the place Jaralltola falls under the jurisdiction of Borkhola Police Station of Cachar district (iii) in addition, said Charged Officer has made no any GD entry about the cartons of foreign liquor which were taken by him in an improper manner i.e. without making any seizure list etc. and all the violation lead to the act tantamount to serious misconduct. During the enquiry, the Enquiry Officer has opined that on the preponderance of probability, the charges of serious misconduct and unbecoming act of public servant in gross violation on the part of charged officer are proved.
Whereas, taking into account of whole fact, I agree with the findings of the Enquiry Officer and also perused the representation dated 26/06/2023 submitted by charged officer SI(UB) Nipu Kalita. But the charged officer has not been able to bring in any new facts in his representation. The preponderance of probability of the charged officer having indulged in the alleged serious misconduct and unbecoming act of public servant in gross violation of the relevant conduct rules existed in the finding of the enquiry.
Hence, after careful consideration of all the documents and records including the written representation of the charged officer and application of mind, I hereby impose the punishment of Dismissal from service upon charged officer SI(UB) Nipu Kalita of BTC by exercising the powers conferred by Rule 7 of The Assam Services(Discipline & Page No.# 14/15 Appeal) Rule, 1964, Rule 66 of Assam Police Manual Part-III read with Section 65 of Assam Police Act, 2007 and Article 311 of the Constitution of India."
23. A perusal of the conclusions drawn by the Disciplinary Authority would go to reveal that he had held the petitioner to have violated the disciplinary rules in not making a GD Entry before he left for conducting the search operation; in not informing the Officer In-charge Borkhola P.S. and in addition; not making a GD Entry about the cartons of foreign liquor which were taken by him in an improper manner without making any seizure list. The said conclusions drawn by the disciplinary authority is not borne out from the materials coming on record in the enquiry. None of the witnesses had made any depositions to that said effect in the enquiry. Further, the petitioner had made a categorical statement that the search was so conducted by a team constituted by the jurisdictional Superintendent of Police and the In-charge of the same was SI (UB) Abdur Rahman (PW-2). Accordingly, the conclusions drawn by the Disciplinary Authority not being based on the materials coming on record in the enquiry, the said conclusions cannot form the basis of imposing any penalty upon the petitioner herein. Accordingly, the penalty of dismissal from service imposed upon the petitioner based on the said conclusions would not be maintainable and the same stands interfered with.
24. In view of the interference made by this Court with the order of the Disciplinary Authority dated 27.06.2023, the order passed by the Disciplinary Authority would also mandate interference and accordingly, the same also stands set aside.
25. Having interfered with the orders impugned in the writ petition, the respondents are directed to reinstate the petitioner in his service forthwith. The period, the petitioner had remained out of the service i.e. 27.06.2023 till the date of his reinstatement in terms of the directions passed by this Court herein above, the petitioner shall be regularized by the respondent authorities 'as on duty' and the petitioner shall be released his arrear of salaries.
Page No.# 15/15
26. The consequential orders allowing the petitioner to join his services shall be passed by the competent authority within a period of 15 days from the date of receipt of a certified copy of this order.
27. With the above observations and directions, the present writ petition stands disposed of.
JUDGE Comparing Assistant