Page No.# 1/15 GAHC010027442025 2025:GAU-AS:1822 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WA/60/2025 THE STATE OF ASSAM AND 3 ORS. REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO THE GOVERNMENT OF ASSAM , HOME AND POLITICAL DEPARTMENT, DISPUR, GUWAHATI 781006. 2: THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM FINANCE (TAXATION DEPARTMENT) DISPUR GUWAHATI-781006. 3: THE SECRETARY TO THE GOVT. OF ASSAM FINANCE DEPARTMENT DISPUR GUWAHATI-781006. 4: THE ADDITIONAL SECRETARY TO THE GOVT. OF ASSAM FINANCE (TAXATION) DEPARTMENT DISPUR GUWAHATI-781006 VERSUS PRIYANKA DEKA W/O BIKASH TALUKDAR, RESIDENT OF BARKURIHA VILLAGE, NEAR GOPINATH MANDIR, MOROWA, KAMALPUR ROAD, PO NALBARI, PS NALBARI, DISTRICT NALBARI, ASSAM PIN 781348 Advocate for the Petitioner : DIPANKAR NATH, SR. GOVT. ADVOCATE, Advocate for the Respondent : MR. A CHOUDHURY, SR. ADVOCATE, Page No.# 2/15 BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER Date : 19.02.2025 (K.R. Surana, J) Heard Mr. N. Kohli, learned senior counsel assisted by Mr. D. Nath, Senior Govt. Advocate and Mr. A. Roy, learned counsel for the appellants. Also heard Mr. A. Chowdhury, learned senior counsel assisted by Ms. B. Chowdhury, Mr. S. Dutta and Ms. Imsenkala, learned counsel for the respondent/ caveator. 2. This intra court appeal is directed against (a) order dated 06.12.2024, and (b) order dated 10.01.2025, both passed by the learned Single Judge in W.P.(C) No.5862/2024. Challenge in the writ petition and connected interlocutory application and orders impugned in this Intra-Court appeal: 3. The respondent is the writ petitioner in W.P.(C) 5862/ 2024. In the said writ petition, amongst others, the respondent has assailed the notification bearing eCF No. 415283/39 dated 30.11.2023, by which the respondent, namely, Smt. Priyanka Deka, Inspector of Taxes was placed under suspension. 4. The learned Single Judge, by order dated 06.12.2024, stayed the operation of the notification no.eCF No.415283/39 dated 30.11.2023, by which the respondent, namely, Smt. Priyanka Deka, Inspector of Taxes, was placed under suspension was stayed. 5. During the pendency of the said writ petition, the respondent was served with a communication dated 16.11.2024, issued by the Enquiry Officer, appointed in the Disciplinary/Departmental Proceeding initiated against Page No.# 3/15 the respondent, requiring her to appear on 26.11.2024. Accordingly, in connection with the said writ petition, the respondent had filed an interlocutory application, which was registered as I.A.(Civil) No. 3612/2024. 6. The learned Single Judge, found that the Co-ordinate Bench of this Court vide order dated 13.11.2024, passed in W.P.(C) 5862/2024, had fixed the matter on 06.12.2024 for consideration of interim prayer made in the writ petition. Accordingly, by order dated 10.01.2025, the learned Single Judge had directed that the disciplinary authority of the appellants not insist upon the presence of the respondent in the enquiry in terms of communication dated 16.11.2024, and further directed the authorities not to proceed further in the enquiry so instituted in respect of the respondent in this appeal. Moreover, the learned Single Judge had also directed the Finance Department to take steps for issuance of consequential order for permitting the respondent herein to resume her services. Submissions of the learned senior counsel for the appellants: 7. The submissions of the learned senior counsel for the appellants, in brief, is that the respondent had not cleared the Combined Competitive (Main) Examination, 2013 [CC(M) Exam, 2013 for short] held by the Assam Public Service Commission (APSC in short) as she had secured 738 marks only out of 1400 marks, which was less than the cut-off marks. However, the then Chairman of the APSC had shown undue favour to the petitioner and interpolating and manipulating her marks in three papers, illegally enhanced 90 marks, as compared to marks originally secured in the answer scripts of the three subjects. Accordingly, by showing as if the respondent had secured 828 marks out of 1400 marks, the respondent’s name found place at serial no. 3 in the final select list declared on 12.05.2015. It was submitted that as per the FSL Page No.# 4/15 report on handwriting, the then Chairman of the APSC had made the illegal manipulation of marks in his own handwriting. 8. It has been submitted that the State Government had constituted a One Man Commission under the Commissions of Inquiry Act, 1952 headed by a Former Judge of this Court. Upon conducting the inquiry, the One Man Commission had submitted its report to the Government, wherein he had indicted the then Chairman of APSC; several other officials of APSC; and others including the respondent for their hand in the scam, which is generally referred to as the APSC scam. 9. It has been submitted that in the meanwhile, a criminal investigation was independently carried out by the police upon lodging of Dibrugarh P.S. Case No.936/2016, where charge-sheets have been submitted from time to time and in the charge-sheet no. 13 dated 12.09.2024, the respondent has been arrayed as accused no.101. It is submitted that as per the charge-sheet, the respondent has been accused of entering into a criminal conspiracy for getting selected in the Inspector of Taxes through APSC and to make wrongful gain with the active support of the accused APSC officials, depriving eligible candidates. 10. Accordingly, by referring to the provisions of Section 6 of the Assam (Discipline and Appeal) Rules, 1964, it is submitted that the competent authority, in the name of the Governor of the State, having competence and authority, had suspended the petitioner vide notification dated 30.11.2023. 11. Accordingly, it has been submitted that the authority passing the suspension order against the petitioner had competence and that the suspension was lawful and permissible as per the provision of the Assam Page No.# 5/15 (Discipline and Appeal) Rules, 1964. Hence, it has been submitted that the said suspension order against the petitioner and disciplinary proceeding against the respondent ought not to have been mechanically stayed by the two orders impugned in this appeal. 12. Moreover, it has been submitted that the authority having authority and competence, had initiated a Disciplinary/ Departmental Proceeding against the respondent vide show- cause notice bearing Memo no. eCF No.410590/39 dated 30.11.2023. By the said notice the respondent was informed about the allegations against her and charging her with gross misconduct for getting into Government service by using illegal means for which she was not fit for Government service. Thus, she was asked to submit her written statement in defence. By the said memo, the respondent was also informed about her right to inspect the documents and to inform as to whether she desires to be heard in person. However, by the impugned order dated 10.01.2025, the learned Single Judge had stayed the disciplinary proceedings. 13. It has been submitted that it is well settled that at the stage of issuance of show-cause notice, the disciplinary proceedings should not be interfered with. Moreover, it has been submitted that under the provisions of section 6 of the Assam (Discipline and Appeal) Rules, 1964, envisaged power to suspend a Government servant in contemplation of a disciplinary proceeding as well as on his/her involvement in a criminal proceeding. Hence, the disciplinary proceeding cannot be said to be bad in law. It has been submitted that as the respondent did not qualify in the APSC CC(M) Exam, 2013, but she got through upon manipulation and interpolation of marks, the reinstatement of the respondent in service would be contrary to public interest. 14. In support of his submissions the following cases have cited, viz., Page No.# 6/15 (1) P.R. Nayak v. Union of India, 1973 SCC OnLine Del 10, (2) State of Karnataka v. Union of India, (1977) 4 SCC 608, (3) State of Rajasthan v. Swaika Properties, (1985) 3 SCC 217, (4) Kiran Bedi v. Committee of Inquiry, (1989) 1 SCC 494, (5) Commr./Secy., Govt. Health & Medical Education Deptt. v. Ashok Kumar Kohli (Dr), 1995 Supp (4) SCC 214, (6) K. Vijaya Bhaskar Reddy v. State of A.P., 1995 SCC OnLine AP 356, (7) State of Bihar v. Lal Krishna Advani, (2003) 8 SCC 361, (8) Union of India v. Kunisetty Satyanarayana, (2006) 12 SCC 28, (9) Dalip Singh v. State of U.P., (2010) 2 SCC 114, (10) Ghanshyam Upadhyay v. State of U.P., (2020) 16 SCC 811, and (11) Union of India v. Dwipendra Nath Sharma, 2024 SCC OnLine Gau 563. 15. Per contra, the learned senior counsel for the respondent has referred to the various orders passed from time to time by the learned Single Judge in W.P.(C) 5862/2024 and it has been submitted that by order dated 13.11.2024, the learned Single Judge had issued notice of motion, returnable in 3 (three) weeks and on the prayer for interim relief, the notice was made returnable on 06.12.2024, and time was granted to the learned counsel for the appellants herein to obtain instructions. 16. It has been submitted that after passing of the order dated 13.11.2024 by the learned Single Judge, the respondent was served with a communication dated 16.11.2024, issued by the Enquiry Officer appointed in the Departmental Proceeding initiated against her, directing her to appear on 26.11.2024. Accordingly, in connection with the said W.P.(C) 5862/2024, the respondent had filed an interlocutory application, which was registered as I.A. (Civil) 3612/2024. The learned Single Judge, having found that the Co-ordinate Bench, by order dated 13.11.2024, passed in W.P.(C) 5862/2024, had fixed the matter on 06.12.2024 for consideration of interim prayer made in the writ Page No.# 7/15 petition, it was directed that the disciplinary authority of the appellants, in terms of communication dated 16.11.2024, shall not insist upon the presence of the respondent in the enquiry and shall not proceed further in the enquiry so instituted in respect of the respondent in this appeal. 17. It has been submitted that by the order dated 30.11.2024, the learned Single Judge had granted time to the learned counsel for the appellants to produce instructions on the interim prayer, but neither any instruction were produced nor an affidavit-in-opposition was filed by the appellants on 06.12.2024. By order dated 06.12.2024, directions were issued to the Home and Political Department to produce the relevant records including the One Man Inquiry Commission Report by the next date i.e. 07.01.2025. However, once again, the appellants had not filed any affidavit-in-opposition, and neither any instructions were produced nor the relevant records were produced. However, on the prayer made by the learned counsel for the appellants, the learned Single Judge directed the matter to be listed on 08.01.2025 as fixed item so as to enable the learned Additional Senior Government Advocate to obtain instruction and to produce the One Man Inquiry Commission Report. By order dated 10.01.2025, the learned Senior Government Advocate for the State was granted further 3 (three) weeks time by the learned Single Judge to file affidavit by appellant no.1. However, in course of hearing on 10.01.2025, the learned standing counsel for the Finance Department had submitted that by order dated 06.12.2024, while staying the operation of this suspension order dated 30.11.2023 as well as the show-cause notice dated 30.11.2023, no order was passed towards directing the appellant authorities to permit the respondent to resume her services and as such, the respondent authorities were not in a position to permit the respondent to resume her services. Page No.# 8/15 18. It has been submitted that accordingly, by the order dated 10.01.2025, the learned Single Judge had issued a specific order to the appellants, not insist upon the presence of the respondent in the enquiry in terms of communication dated 16.11.2024, and appellant authorities were also directed not to proceed further in the enquiry so instituted in respect of the respondent in this appeal. Moreover, the learned Single Judge had also directed the Finance Department to take steps for issuance of consequential order for permitting the respondent herein to resume her services. 19. It was submitted that as the learned senior counsel for the appellants had addressed this Court on the merit of the case, he is responding only to assist this Court. However, his primary submissions was to the effect that on merit, the matter ought to be allowed to be examined by the learned Single Judge, as any observation by this Court on merit of the case may have the effect of causing irreparable prejudice to either of the parties. 20. It has been submitted that he has instructions that the One Man Committee had failed to adhere to the statutory prescription of Section 8B and 8C of the Commissions of Inquiry Act, 1951 and that to procedural aberrations, the respondent was not provided with a proper notice and a reasonable opportunity to participate and/or be heard in the proceeding of the said One Man Committee. Accordingly, it has been submitted that the One Man Committee Report stands vitiated and is thus, non est in the eye of law and therefore, void, illegal and unsustainable on facts and in law. 21. It has been further submitted that the said One Man Commission Report was submitted before the Government on 02.04.2022, but the Government had placed it before the Assam Legislative Assembly only on 17.02.2025. However, the concerned officials associated with the conduct of Page No.# 9/15 disciplinary enquiry initiated against the respondent, as well as the Investigating Officer of Dibrugarh P.S. Case No. 936/2016, and several others had access to it, which is gathered from the contents of the charge-sheet in the criminal case and from the charge-sheet submitted in the disciplinary proceeding. However, in spite of specific directions issued by the learned Single Judge of this Court, the appellants have refrained from producing the same before the learned Single Judge to prima facie satisfy the learned Single Judge that procedural safeguards prescribed under section 8B and 8C of the Commissions of Inquiry Act, 1952 was scrupulously followed by the One Man Commission. 22. In support of his submissions, the learned senior counsel for the respondent has cited the following cases, viz., (1) Smt. Indira Gandhi & Anr. v. Shri J.C. Shah, Commission of Inquiry, ILR 1980 1 Del, (2) Kiran Bedi v. Committee of Inquiry, (1989) 1 SCC 494, and (3) State of Bihar v. Lal Krishna Advani, (2003) 8 SCC 361. Reasons and decision: 23. The learned senior counsel for both sides have advanced their elaborate submissions, which has been supplemented by several case citations. However, although the gist of those submissions as well as case citations are referred to in this order, the Court is not inclined to enter into the merit of the matter because if any order, touching upon the merit is passed, it is likely to irreparably prejudice one of the two contesting sides. 24. It is noted that the orders dated 06.12.2024 and 10.01.2025, passed by the learned Single Judge are interim in nature. Moreover, it is seen that although notice was issued by order dated 13.11.2024, in connection with the writ petition, the appellants, for reasons best known to them, have not filed Page No.# 10/15 their affidavit-in-opposition in the said writ petition. Thus, there was no occasion for the learned Single Judge to examine the contention of the appellants, which have been raised in this intra-Court appeal for the first time. 25. It is not in dispute that the main contention of the respondent in her writ petition is that she was not given any opportunity to participate in the proceeding and/or hearing before the One Man Commission, which was inquiring into her conduct, which may hamper her future career. The statement of the respondent in para-1 of the writ petition is that she seeks to assail the ex parte proceedings conducted by the One Man Commission. Moreover, amongst others, the respondent has prayed in the writ petition for declaring the proceedings before the One Man Commission, culminating in the ex parte report dated 02.04.2022, containing ex parte observations/ findings/ recommendations concerning the respondent as illegal, in gross violation of the rights and safeguards conferred by sections 8B and 8C of the Commissions of Inquiry Act, 1952 and the fundamental rights of the respondent guaranteed and prescribed under Article 14, 16(2), 19(1)(g) and 21 of the Constitution of India and hence, non est and not binding on the respondent. 26. The contention of the respondent could have been dispelled by the appellants by filing their affidavit-in-opposition in the writ petition and by producing the One Man Commission Report. 27. The specific contention of the respondent in second sub- paragraph of paragraph 5(XX) of the writ petition is that the report of the One Man Commission has not been furnished to the respondent till date. If it was provided to the respondent, a proof thereof could have been produced before the learned Single Judge, which was not done. Such a proof has also not been produced before this appellate Bench. Page No.# 11/15 28. Moreover, the order dated 10.1.2025, passed by the learned Single Judge reveals in no uncertain terms that the learned standing counsel for the Finance Department had submitted that by order dated 06.12.2024, while staying the operation of this suspension order dated 30.11.2023 as well as the show-cause notice dated 30.11.2023, no order was passed towards directing the appellant authorities to permit the respondent to resume her services and as such, the respondent authorities were not in a position to permit the respondent to resume her services. Under such circumstances, the order dated 10.01.2025, which contains a direction upon the Finance Department to take steps for issuance of consequential order for permitting the respondent herein to resume her services appears to have been invited by the appellants. 29. The learned senior counsel for the appellants has not been able to show one good reason for not filing their affidavit-in-opposition in the writ petition or for not producing the One Man Commission report dated 02.04.2022, before the learned Single Judge. The materials available in the memo of appeal prima facie reveal that the departmental authorities, disciplinary authority and the investigating officer of Dibrugarh P.S. Case No. 936/2016 have access to the said report. Moreover, the said report is the only document entered in the list of documents accompanying the show-cause notice dated 30.11.2024, issued upon the respondent. Therefore, the Court is of the considered opinion that no cogent and acceptable reason has been forthcoming for the appellants to withhold the same from the learned Single Judge, despite orders of the Court. 30. The learned senior counsel for the appellants has submitted that on 10.01.2025, the said report dated 02.04.2022, by the One Man Commission was produced before the learned Single Judge. The order dated 10.01.2025, of the learned Single Judge does not record the same. But, even in course of Page No.# 12/15 hearing today, the appellants’ side has not produced any acknowledgement showing that a copy thereof was served upon the respondent’s side. In our considered opinion, we do not see any apparent error on part of the learned Single Judge for not accepting production of copy of the said report directly before the learned Judge, without being filed before the Registry in an appropriate manner and without service of a copy thereof upon the learned instructing counsel for the respondent (i.e. writ petitioner). Moreover, no order was passed by the learned Single Judge to produce a copy of the said report confidentially, or in a sealed cover. 31. There are no materials to convince the Court why the contentions, which have been raised in this Intra-Court appeal, could not be raised by the appellants before the learned Single Judge in the writ petition. Even assuming that there is any merit in the contention of the appellants that there was sufficient compliance of the provisions of Section 8B and 8C of the Commissions of Inquiry Act, 1952, in the considered opinion of the Court, the same can also be demonstrated before the learned Single Judge. 32. In the considered opinion of the Court, it would not be in the interest of justice for a issue to be raised and decided by a Division Bench in Intra-Court appeal, arising out of interim order passed in the presence of parties, when no affidavit-in-opposition has been filed by the appellants, in spite of reasonable time granted vide orders dated 13.11.2024, 06.12.2024, 07.01.2025, 08.01.2025 and 13.01.2025. As on the date of this order, the appellants have not filed their affidavit-in-opposition in connection with the writ petition. Therefore, the Court is not convinced to countenance and/or approve of such a practice and give our imprimatur to such practice. This would open floodgates to litigants to avoid filing their affidavits in writ proceedings and Page No.# 13/15 instead to file an Intra-Court appeal, as and when orders, adverse to their interest are passed. 33. Rather, in the absence of any affidavit-in-opposition filed before the learned Single Judge, this is a fit case for the Court to draw a presumption by invoking the provisions of section 119, Illustration (g) of the Bharatiya Sakshya Adhiniyam, 2023, which provides that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. 34. The learned senior counsel for the appellants has made a strenuous effort to show from the notice of the One Man Commission that it was compliance of principle of natural justice. The Court is not impressed by the said effort, because merely from reading of the notice or from some excerpts of the said report dated 02.04.2022, by the One Man Commission from here and there cannot partake the character of proof that the provisions of 8B and 8C of the Commissions of Inquiry Act, 1952 was duly complied with. 35. Therefore, this is not found to be a case where the learned Single Judge had exercised his discretion improperly or with material irregularity. It is quite plausible that the learned Single Judge has stayed the order of suspension and notice by the disciplinary authority to the respondent to appear before the authority and to file her written statement of defence, if the document relied upon by the disciplinary authority is not provided to the respondent. As mentioned herein before, the Report dated 02.04.2022 by the One Man Commission is the only document which is entered in the list of documents, accompanying the show-cause notice. Continuation of disciplinary proceeding in the absence of a copy thereof being provided to the respondent would be a travesty of justice and violative of the rules of natural justice. Page No.# 14/15 36. Therefore, in light of the discussions above, the Court is of the considered opinion that the (a) order dated 06.12.2024, and (b) order dated 10.01.2025, both passed by the learned Single Judge in W.P.(C) No.5862/2024 do not suffer from any perversity or error apparent on the face of the record. It cannot be held that the discretion available to the learned Single Judge was not properly exercised. Moreover, in the absence of any affidavit-in-opposition being filed before the learned Single Judge, in spite of sufficient time being granted, this Court would exercise self-restraint in this case in entertaining this Intra- Court appeal. 37. In the case of N. Ramachandra Reddy v. State of Telengana, AIR 2019 SC 4182: (2020) 16 SCC 478, the Supreme Court of India has held that while considering intra court appeal, unless the appellate Bench concludes that the findings of the learned Single Judge is perverse, it shall not disturb the same. We are inclined to respectfully follow the said ratio. 38. Therefore, the cases cited at the Bar by the learned senior counsel for the appellants and the respondent have not been examined, as a consideration and/or examination thereof would compel the Court to simultaneously also examine the appeal on merit. 39. Therefore, for the reasons assigned hereinbefore, this appeal fails and the same is dismissed at the threshold, without issuance of any notice on the respondent. 40. Thus, as the merit of the case of the parties has not been entered into, it would be open to both sides to take such stand in the writ petition, as the parties may be so advised. The Court has been informed by both sides that by order passed today i.e. 19.02.2025, in W.P.(C) No. Page No.# 15/15 5862/2024, the matter is ordered to be listed on 21.02.2025. 41. Accordingly, we pass the following – O R D E R 42. The Intra-Court appeal is dismissed. The orders under challenge do not warrant any interference. 43. There shall be no order as to cost. JUDGE JUDGE. Comparing Assistant