Gauhati High Court
Madhab Gogoi vs The State Of Assam And 5 Ors on 15 October, 2020
Author: Achintya Malla Bujor Barua
Bench: Achintya Malla Bujor Barua
Page No.# 1/3
GAHC010141402020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 4212/2020
1:MADHAB GOGOI
S/O LATE DHANURAM GOGOI, R/O MISHRA COMPANY, PO SILAPATHAR,
PS SILAPATHAR, DIST. DHEMAJI, ASSAM
VERSUS
1:THE STATE OF ASSAM AND 5 ORS.
REPRESENTED BY COMMISSIONER AND SECRETARY TO THE GOVT. OF
ASSAM, HOME DEPARTMENT, DISPUR, GUWAHATI-6
2:THE DIRECTOR GENERAL OF POLICE
ULUBARI
GUWAHATI-7
3:THE DEPUTY INSPECTOR GENERAL OF POILCE (NR)
TEZPUR
ASSAM
784001
4:THE DEPUTY COMMISSIONER
LAKHIMPUR
NORTH LAKHIMPUR
ASSAM
PIN-787001
5:THE SUPERINTENDENT OF POLICE
LAKHIMPUR
NORTH LAKHIMPUR
ASSAM
PIN-787001
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6:THE DEPUTY SUPERINTENDENT OF POLICE (HQ)
LAKHIMPUR
NORTH LAKHIMPUR
LAKHIMPUR
ASSAM
PIN-78700
Advocate for the Petitioner : MR. A KHANIKAR
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
JUDGMENT
Date : 15-10-2020 Heard Mr. A. Khanikar, learned counsel for the petitioner. Also heard Mr. N. Goswami, learned counsel for the respondent.
2. The petitioner D/C ABC/30 30 Madhav Gogoi, who is a constable in the Assam Police has been dismissed from service by the order dated 08.04.2020. The dismissal was on the basis of an enquiry report of the Deputy Superintendent of Police, Headquarter that the petitioner behaved in an irresponsible manner during Covid-19 Pandemic situation by taking away the vehicle of the District Police Chief which not only violated the lockdown norms but also created nuisance in the public place and he was under the influence of alcohol and also assaulted a senior officer who went forward to control him. We are not on the reasons as to why the petitioner had been dismissed. The order of Superintendent of Police, Lakhimpur, North Lakhimpur provides that the dismissal was made without holding any disciplinary proceeding by invoking the power of Article 311(ii)(b)(c) of the Constitution of India and Rule 10(ii) of the Assam Service (Discipline and Appeal) Rules,1964. We have gone through the Constitution of India but have not come across any such power as Article 311 (ii)(b)(c).
3. Be that as it may, the order of dismissal was also issued under Rule 10(ii) of Assam Service (Discipline and Appeal) Rule 1964. Both, the provision of Article 311(2) in respect of sub-clauses (b) and (c) to the proviso thereof, as well as Rule 10(ii) of the Assam Service (Discipline and Appeal) Rules 1964 empowers the disciplinary authority to pass any such Page No.# 3/3 order as it deems fit, where the disciplinary authority is satisfied for reasons to be recorded in writing that it is not reasonably practical to follow the procedure of holding the disciplinary enquiry or in respect of Article 311(2) sub-clause (c) of the proviso thereof, the President or the Governor is satisfied that for the interest of security of the State it is not expedient to hold such enquiry. The order of 08.04.2020 does not record any such satisfaction that neither it is practical to hold an enquiry nor that it is not expedient to hold the enquiry in the interest of security of the State.
4. In the context that the condition precedent of Article 311(2) sub clauses (b) and (c) of the proviso thereto of the Constitution, as well as that of Rule 10(ii) of the Assam Services (Discipline and Appeal) Rules 1964 had not been followed to the extent that no satisfaction was arrived at in writing as to why it is not practicable to hold the enquiry or as to why it is not expedient to hold the enquiry in the interest of the security of the State, we are of the view that the order of dismissal from service against the petitioner by the order dated 08.04.2020 would not be sustainable in law.
5. Accordingly, the order dated 08.04.2020 dismissing the petitioner from service stands set aside and the matter is remanded back to the Superintendent of Police, Lakhimpur, North Lakhimpur /Disciplinary Authority for passing of a fresh order against the petitioner.
6. On being remanded back, the Superintendent of Police/Disciplinary Authority would be at liberty to proceed against the petitioner in any manner as may be permissible under the law.
7. If the disciplinary authority again intends to invoke the provision of Article 311(2) sub clauses
(b) and (c) of the proviso thereto of the Constitution, as well as Rule 10(ii) of the Assam Services (Discipline and Appeal) Rules 1964, a satisfaction may be arrived at in writing as to why it is not practicable to hold the enquiry in the circumstance of the case or why it would not be expedient to hold the enquiry in the interest of the security of the State.
8. If the Superintendent of Police/Disciplinary Authority intends to follow any other procedure as may be available under the law, it would be open for the authority to do so and in doing so it would also be open to follow any of such provision of law that may be applicable.
9. Writ petition stands allowed to the extent as indicated above.
JUDGE Comparing Assistant