Page No.# 1/7 GAHC010201542025 2025:GAU-AS:12494 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/5191/2025 TAPAN TALUKDAR S/O. SRI MRIGENDRA NATH TALUKDAR, R/O. VILL.- KAWAIMARI, BLOCK 6, MOUZA- PAKA MAUJA, P/O. KARAGARI, P/S. SARTHEBARI, DIST. BARPETA. VERSUS THE STATE OF ASSAM AND 5 ORS. REP. BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM, HOME AND POLITICAL DEPARTMENT, GUWAHATI-06, DIST. KAMRUP (M), ASSAM. 2:DIRECTOR GENERAL OF POLICE ASSAM ULUBARI GUWAHATI DIST. KAMRUP (M) 3:THE INSPECTOR GENERAL OF POLICE (ADMN) ASSAM GUWAHATI DIST. KAMRUP (M) 4:SENIOR SUPERINTENDENT OF POLICE DIST. MORIGAON 5:SENIOR SUPERINTENDENT OF POLICE DIST. DHUBRI 6:DHRUBAJYOTI NATH APS ADDITIONAL SUPERINTENDENT OF POLICE (HEADQUARTER) Page No.# 2/7 MORIGAON OFFICE OF THE SENIOR SUPERINTENDENT OF POLICE MORIGAON DIST. MORIGAON PIN-782105 Advocate for the Petitioner : MR. S BORTHAKUR, MS. J GAYAN,MS. S KAKATI Advocate for the Respondent : GA, ASSAM, BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY ORDER 10.09.2025 Heard Mr. S. Borthakur, learned counsel for the petitioner and Mr. J.K. Goswami, learned Additional Senior Government Advocate, Assam for the respondent nos. 1 – 5. 2. For alleged commission or omission on the part of the petitioner while he was serving as In-Charge at Jaluguti Police Post under Mikirbheta Police Station, the petitioner was placed under suspension for his alleged involvement in connection with Morigaon Police Station Case no. 129/2025 registered under Sections 281/106[1]/324[4], Bharatiya Nyaya Sanhita, 2023. The petitioner was subsequently reinstated into service by an Order dated 08.06.2025 and by the same order, he was posed at Laharighat Police Station as Attached Officer. 2.1. The petitioner was served with a Show Cause Notice on 19.05.2025 under Section 65 of the Assam Police Act, 2007 read with Rule 7 of the Assam Services [Discipline & Appeal] Rules, 1964 [‘the 1964 Rules’, for short] asking him to show cause as to why any of the penalties prescribed therein should not be imposed upon him. The Show Cause Notice was accompanied by a Statement of Allegations, a List of Witnesses and a List of Documents. In response to the Show Cause Notice, the petitioner had submitted his reply. An Inquiry Officer was thereafter, appointed to inquire into the charges leveled against the petitioner. The Page No.# 3/7 Inquiry Officer submitted an Inquiry Report before the respondent no. 5 as the Disciplinary Authority. 2.2. On receipt of the Inquiry Report, the respondent no. 5 being the Disciplinary Authority, forwarded a copy of the Inquiry Report to the petitioner by a Notice dated 23.08.2025, treating the notice as the second Show Cause Notice. In the Notice, the respondent no. 5 has inter alia observed that the findings recorded in the Inquiry Report have been perused by him. The respondent no. 5 has further observed that on the basis of the evidentiary records, statements of prosecution witnesses and facts and for the acts of gross misconduct and dereliction of duty committed by the petitioner, the petitioner is awarded penalty of dismissal from service as per service rules. The respondent no. 5 has further observed that the period of suspension would be treated as on leave. After observing so, the petitioner has been asked to submit his reply within a period of seven days from the date of receipt of its communication. 3. Mr. Borthakur has submitted that from the second Show Cause Notice the Disciplinary Authority has demonstrated a prejudicial mind. After awarding penalty of dismissal from service treating the period of suspension as on leave, the petitioner has been asked to submit his reply. He has submitted that the requirement of seeking response on the proposed penalty even if it is assumed to be proposed penalty is not a requirement. He has relied upon a Judgment and Order dated 30.07.2024 passed by a Coordinate Bench of this Court in a writ petition, W.P.[C] no. 9445/2019 to buttress his submission. 4. Mr. Goswami, learned Additional Senior Government Advocate, Assam who sought time to obtain instructions on 08.09.2025, has submitted, on the basis of instructions received by him from the respondent no. 5, that the second Show Cause Notice has been issued as per the provision contained in Rule 9A of the 1964 Rules. It has been issued on the basis of the findings submitted by the Inquiry Officer. It is submitted by Mr. Goswami that the second Show Cause Notice dated 23.08.2025 has been issued to the delinquent officer informing him Page No.# 4/7 to submit his reply in defence since the award of penalty is based on the evidence in the records, statements of prosecution witnesses and facts and for the acts of the delinquent officer whose acts have amounted to gross misconduct and dereliction of duty as per rules. 5. The instructions forwarded to Mr. Goswami by the respondent no. 5 vide an Office Letter issued under Memo no. DBB/RO/2025/3619 dated 09.09.2025 and placed by him before the Court are kept with the case record by marking it as Document-‘A’. 6. In this connection, it is apt to refer to the basic facts adverted to in the Judgment and Order dated 30.07.2024 passed in W.P.[C] no. 9445/2019. The petitioner therein was a Constable in the 16th Assam Police [IR] Battalion against whom the disciplinary proceeding was initiated on the allegation of unauthorised absence/overstay of leave. After conclusion of the disciplinary proceeding, the petitioner was served with a second Show Cause Notice dated 06.05.2014 by the Disciplinary Authority while forwarding the Inquiry Report to have views of the delinquent. In the second Show Cause Notice, the Disciplinary Authority had recorded that he had already come to a finding, which was in agreement with the views of the Inquiry Officer and the Disciplinary Authority had also reached a tentative finding to impose the penalty of removal from service. The response was, in essence, sought for only on the proposed penalty which was contemplated as removal from service. 7. In the aforesaid backdrop, the Court has observed as under :- 15. The requirement of seeking a response on the proposed penalty is not a mandatory requirement after the 42nd amendment of the Constitution of India. However, such requirement is mandatory so far as the aspect of seeking the response of a delinquent on the findings by an Enquiry Officer before the disciplinary authority takes a call on such findings. It is incumbent upon the disciplinary authority that before he comes to a finding, Page No.# 5/7 he is required to take into consideration the response, if any, by the delinquent on the findings which are against the delinquent in the enquiry. 16. The safeguards given to a Government Servant facing a Disciplinary Proceeding is given under Article 311 of the Constitution of India. The prime objective of the said Article is to provide adequate and reasonable safeguard to a delinquent facing an enquiry. It may be mentioned that prior to the 42nd amendment of the Constitution of India, there was a requirement to notify the delinquent on the proposed penalty, which however has been done away with. However, what is required is that in the enquiry, all reasonable safeguards are to be afforded to the delinquent officer and on completion of the same, a copy of the said Enquiry Report is required to be forwarded to the delinquent by the Disciplinary Authority before concurring with the findings so that the delinquent is given an opportunity to persuade the disciplinary authority to take a view in favour of the delinquent based on the materials on record and not to concur with the findings of guilt arrived at by the Enquiry Officer……. 17. The Hon’ble Supreme Court in the case of Ramzan Khan (supra) had laid down that furnishing of the Enquiry Report is mandatory so as to give the delinquent an opportunity to persuade the disciplinary authority not to accept the said report. In the subsequent case of Managing Director, ECIL Ltd. (supra) it has been clarified that the decision of Ramzan Khan (supra) would be prospective in nature. In subsequent cases, it has also been clarified that depending on the particular facts and circumstances, the delinquent would also have to plead suffering of prejudice due to non- supply of the Enquiry Report. 18. With regard to the second show cause notice dated 06.05.2014 by Page No.# 6/7 which the disciplinary authority had asked for the views of the petitioner on the Enquiry Report, it appears that the said authority had stated that the findings of the Enquiry Officer were already concurred with. The aforesaid action on the part of the Disciplinary Authority is not in consonance with the requirement of affording a reasonable opportunity to a delinquent to safeguard himself as such opportunity is required to be given at all stages of a Disciplinary Proceeding. 19. In the cases of Babulal [supra] and Babul Hussain [supra], this Court has laid down that if the Disciplinary Authority, before taking the views of the delinquent on the Enquiry Report concurs with such findings, it is apparent that he has acted with a predetermined mind which is not in consonance with the requirement in law. 20. Be that as it may, this Court is of the view that even if the enquiry is held to be done in accordance with law, acting on the same by the Disciplinary Authority before giving a reasonable opportunity to the petitioner to submit his reply to the said report is not in accordance with law and accordingly the same is interfered with and the impugned order of removal from service dated 12.05.2014 is set aside. 21. Resultantly, the petitioner is directed to be reinstated in service. However, taking into consideration the nature of charges, the respondent authorities, if so advised, may proceed from the stage of issuing the second show cause notice against the report of the Enquiry Officer and thereafter to take a decision strictly in accordance with law. In that event, interest of justice would require that the role of the disciplinary authority should be played by any other person competent to discharge the said role, other than the officer who was the disciplinary authority at that relevant point of time. Page No.# 7/7 8. The issuance of the impugned second Show Cause Notice has been with imposition of penalty of dismissal from service treating the period of suspension as on leave. Therefore, this Court is of the view that such action on the part of the Disciplinary Authority is not in conformity with the requirement of affording opportunity to the delinquent to submit his reply to the Inquiry Report. Having regard to the observations made by the respondent no. 5 as the Disciplinary Authority in the second Show Cause Notice dated 23.08.2025, this Court has to hold that the respondent no. 5 acting as the Disciplinary Authority has already expressed on the penalty he is imposing upon the petitioner. In such view of the matter, the impugned second Show Cause Notice dated 23.08.2025 is to be interfered with. It is accordingly set aside and quashed. 9. Taking into consideration the grave nature of the charges leveled against the petitioner, the respondent authorities shall proceed from the stage of forwarding the Inquiry Report, submitted by the Inquiry Officer, to the petitioner allowing the petitioner to submit his representation as regards the findings recorded in the Inquiry Report and thereafter, the disciplinary authority shall take a decision strictly in accordance with law. 10. It is found that the respondent no. 5 acting as the Disciplinary Authority has already expressed his mind. Therefore, the interest of justice would be sub-served if the role of the Disciplinary Authority is assumed by any other authority, competent to take action including imposition of penalty upon the petitioner, to discharge the said role other than the officer who had issued the impugned second Show Cause Notice. 11. The writ petition stands allowed to the extent indicated above. There shall be no order as to cost. JUDGE Comparing Assistant