Disciplinary Authority Must Provide Reasonable Opportunity To Employee To Submit Reply To Enquiry Report Before Acting On It: Gauhati HC

The Court was hearing a Writ Petition against an order passed in a disciplinary proceeding by which the petitioner was removed from service.

The bench of Justice Sanjay Kumar Medhi observed, “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…”

Advocate R. Mazumdar appeared for the Appellant and State Counsel R. Dhar appeared for the Respondent.

Brief Facts-

The Petitioner, a Constable in the 16th Assam Police (IR) Battalion, faced disciplinary proceedings for unauthorised absence and overstaying leave. He submitted medical documents which the medical board found insufficient to justify his absence. The Petitioner claimed that the proceedings were never concluded, yet he was not allowed to rejoin service. During the pendency of a contempt case filed by him, an order for his removal from service was produced, hence he challenged the order.

The Court observed, “the role to be played by a Court in exercise of powers under Article 226 of the Constitution of India while examining disciplinary proceeding is a secondary role and the duty of this Court is only to oversee whether the proceeding was held in consonance with the principles of natural justice and whether proper safeguard was given to the delinquent to defend himself.”

The Court explained the safeguard available to a Government Servant facing a Disciplinary Proceeding under Article 311 of the Constitution of India. The Court observed, “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. The requirement to give an opportunity to cross examine the witnesses produced by the management and to adduce evidence as defence and also to have the assistance of a defence representative are some of the mandatory inbuilt mechanism to ensure that the process is done fairly and transparently.”

The Court mentioned the Supreme Court decision in the Union of India and Ors. vs. Mohd. Ramzan Khan reported in (1991)1 SCC 588 where it 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. The Court also mentioned the decision in Managing Director, ECIL Ltd. & Ors. vs. B. Karunakar and Ors. reported in (1993) 4 SCC 727 where it has been clarified that the decision of Ramzan Khan (supra) would be prospective.

Accordingly, the Court set aside the impugned order that removed the Petitioner from service.

Finally, the Court allowed the Writ Petition.