Munin Dutta vs The State Of Assam And 4 Ors

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GAHC010242172024

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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6105/2024
MUNIN DUTTA
S/O- LT. ATUL CHANDRA DUTTA,
R/O- VILL.- GARAKA,
P.O.- RANGIA,
P.S.- RANGIA,
DIST.- KAMRUP(RURAL), ASSAM.
VERSUS
THE STATE OF ASSAM AND 4 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM,
HOME DEPARTMENT, DISPUR, GUWAHATI-06.
2:THE DIRECTOR GENERAL OF POLICE
ASSAM POLICE HEADQUARTERS

ULUBARI
GUWAHATI- 781007

ASSAM.
3:THE INSPECTOR GENERAL OF ASSAM (ADM)
ASSAM POLICE HEADQUARTERS

ULUBARI
GUWAHATI- 781007.
4:THE INSPECTOR GENERAL OF POLICE
OFFICE OF THE I.G.P. (BTAD)

KOKRAJHAR

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ASSAM.
5:THE SUPERINTENDENT OF POLICE
OFFICE OF THE SUPERINTENDENT OF POLICE BAKSA

MUSHALPUR
(BTAD)
ASSAM

B E F O R E
Hon’ble MR. JUSTICE SANJAY KUMAR MEDHI

Advocate for the Appellants : Shri P.K. Das, Advocate.

Advocates for the respondents : Ms. M. Bhattacharjee

Date on which judgment is reserved : 03.11.2026
Date of pronouncement of judgment : 13.11.2026

Whether the pronouncement is of the operative part of the judgment? : NA
Whether the full judgment has been pronounced? : Yes


Judgment & Order

The present writ petition has been instituted challenging an order of
dismissal from service dated 31.12.2024. The petitioner is also aggrieved by the
rejection of the departmental appeal preferred against the dismissal order vide
order dated 02.10.2024.
2. Before going into the issue involved and the grounds of challenge, it would
be convenient if the facts of the case are narrated in brief.

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3. The petitioner was appointed in the Home Department in the year 1982
and has superannuated from service on 28.02.2019. While he was serving as a
Sub-Inspector (UB), the in-charge of Kaurbaha Police Outpost under the
Tamulpur Police Station had lodged an FIR on 28.06.2018 leading to registration
of ACB PS Case No.12/2018 under section 7/8/13 of the Prevention of
Corruption Act, 1988. It was alleged that in two assault cases registered against
the complainant, the petitioner had demanded bribe. Accordingly, a trap team
was constituted in which the petitioner was caught red-handed while accepting
the bribe and he was arrested on 28.06.2018. In the said case, the charge-
sheet is yet to be filed and prosecution sanction is yet to be obtained. It is also
the case of the petitioner that the complainant, who had lodged the Ejahar was
killed and accordingly, the main witness was not there.
4. Nonetheless, a statement of allegation was served on the petitioner which
he had replied and on being unsatisfied, a departmental inquiry was initiated in
which the Department had proved the allegations against the petitioner through
4 (four) nos. of witnesses. It is the case of the petitioner that he was not given
a reasonable opportunity to defend himself.
5. The Enquiry Report was submitted and on 30.09.2023, the petitioner was
served with a copy of the report with a notice to show cause as to why the
same should not be accepted. The petitioner had accordingly replied to the
second show cause notice. In the meantime, on 25.02.2019, the petitioner had
attained the age of superannuation and had retired from service. However, the
departmental proceeding culminated in an order of dismissal from service dated
31.12.2023. The petitioner had preferred an appeal which was also dismissed
on 02.10.2024 by the appellate authority, namely, the Inspector General of

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Police. It is the validity and legality of the aforesaid action which is the subject
matter of challenge in the present writ petition.
6. I have heard Shri P.K. Das, learned counsel for the petitioner. I have also
heard Ms. M. Bhattacharjee, learned Addl. Senior Government Advocate, Assam.
7. Shri Das, the learned counsel for the petitioner has submitted that the
impugned order of dismissal from service is unsustainable in law and liable to be
interfered with. He has submitted that the petitioner was deprived of a
reasonable and fair opportunity to defend himself. He has also submitted that
no opportunity to cross-examine the witnesses of the Department was afforded
to the petitioner. It is also submitted that the petitioner was not afforded the
assistance of a defence representative and therefore, he had suffered prejudice
while defending himself in the departmental proceeding.
8. The learned counsel has also submitted that since the complainant on
whose complaint the police case was registered against the petitioner had
passed away, there was no witness to prove the allegation against him. He has
also submitted that the allegations are baseless and the punishment imposed is
untenable in law.
9. In support of his submissions, the learned counsel for the petitioner has
relied upon the following case laws:
(i) (2009) 2 SCC 570 (Roop Singh Negi v. Punjab National Bank
& Ors.)
(ii) (2006) 4 SCC 713 (Narinder Mohan Arya v. United India

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Insurance Co. Ltd. & Ors.)
(iii) AIR 1983 SC 454 (Bhagat Ram v. State of Himachal Pradesh
and Ors.)
10. The case of Roop Singh Negi (supra) has been cited to contend that
the charges must be proved in a disciplinary proceeding. It is submitted that in
the present case, the charges were not proved and further, reasons were not
given for imposing the penalty.
11. In the case of Narinder Mohan Arya (supra), there is a requirement of
a speaking order. It is submitted that the impugned order of dismissal does not
assign reasons and is therefore unsustainable in law.
12. The case of Bhagat Ram (supra) has been cited on the aspect that there
is a requirement to furnish defence assistant and in the instant case no such
assistance was provided.
13. The learned counsel for the petitioner accordingly submits that the writ
petition is liable to be allowed by setting aside the impugned order of dismissal
and also the order of the appellate authority rejecting the appeal.
14. Per contra, Ms. Bhattacharjee, the learned State Counsel, has submitted
that the grounds sought to be urged in the argument are not the grounds in the
departmental appeal. She has added that even in the writ petition, no such
grounds have been pleaded and only in the oral submission, certain grounds
have been made without the support of any pleadings. She has otherwise
submitted that all the grounds are factually incorrect. She has submitted that

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the charges are grave in nature wherein the petitioner, who was a police
personnel, was found to be taking bribe and was caught red-handed. In the
departmental proceeding, 6(six) nos. of witnesses were examined and they
were cross-examined. By producing the original records, the learned State
counsel has submitted that on many occasions, the petitioner himself remained
absent and the proceeding had to be adjourned.
15. By drawing the attention of this Court to the grounds taken in the
departmental appeal as well as those taken in the present writ petition, the
learned State Counsel has submitted that all the grounds are on the merits of
the decision and not on any violation of the procedure or the decision-making
process. The learned State Counsel has accordingly submitted that the writ
petition ought to be dismissed.
16. The rival submissions have been duly considered and the materials placed
before this Court have been carefully perused.
17. The challenge in the writ petition is against the order of dismissal from
service dated 31.12.2023 which has been upheld by the appellate authority vide
order dated 02.10.2024.
18. At the outset, this Court is reminded of the principles of law that while this
Court exercises Certiorari jurisdiction under Article 226 of the Constitution of
India, the examination is on the decision-making process and not on the
decision itself. In other words, the adjudication is on the lawfulness of the
decision and not the soundness thereof. With the said principles in mind, the
present case has been examined.

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19. This Court has noticed that while in the oral argument certain points have
been urged which are factual in nature, those have not been pleaded in the
departmental appeal. Even in the present writ petition, no such pleadings are
there. To be more specific, the learned counsel for the petitioner has argued
that the petitioner was not allowed to cross-examine the witnesses. However,
such grounds have not been taken at all either in the departmental appeal or in
the writ petition. Secondly, it has been urged in the oral argument that defence
assistant was not afforded. However, on a careful perusal of both the memo of
appeal filed before the appellate authority as well as the writ petition, no such
grounds have been taken. Nonetheless, this Court has looked into the original
records and has found that in many occasions, the petitioner himself was
absent. The records also reflect that the witnesses were cross-examined by the
petitioner.
20. Though the learned State Counsel had urged that all the witnesses were
examined, it is seen that out of the 6 (six) nos. of witnesses, one had expired
and there are records to show that witnesses Golam Nabi Azad and Lintu
Baruah were cross-examined by the petitioner. There is no mention that the
petitioner had asked for any defence representative and was denied. In any
case, unless any prejudice is pleaded and demonstrated, such grounds cannot
be taken at the time of oral arguments.
21. As regards the case laws cited, there is no dispute to the propositions laid
down. In the case of Roop Singh Negi (supra), it has been laid down that the
charges must be proved. In the instant case, it is found that the charges were
indeed proved which is revealed from the Enquiry Report. This Court is unable
to accept the proposition that the impugned order of dismissal is not a speaking

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order. A bare perusal of the said order of dismissal would show that the
disciplinary authority had applied mind and has passed the order. An order need
not be extraordinarily elaborate and what is required is that reasons are to be
recorded, which have been done. It appears that the disciplinary authority had
applied his mind independently before passing the impugned order. A similar
approach is also seen from the side of the appellate authority who had rejected
the appeal vide order dated 02.10.2024.
22. As noted above, in the oral arguments, certain new grounds were cited
which are factual in nature. In a writ proceeding, the adjudication is mainly
based on the pleadings and counter-pleadings. The relevant documents are
placed on record which requires a proper verification in the affidavit. Unless
there are specific pleadings and the adverse party is given an opportunity to
meet the same, those cannot be taken into consideration only on the basis of
oral argument, more particularly, when such argument is factual in nature. The
aspect would have been different if a point of law is argued. However, that is
not the case. In this regard, one may gainfully refer to the judgment of the
Hon’ble Supreme Court in the case of Bharat Singh and Ors. Vs. State of
Haryana reported in (1988) 4 SCC 534 wherein the following observations
have been made:
“ 13. As has been already noticed, although the point as to profiteering by the
State was pleaded in the writ petitions before the High Court as an abstract
point of law, there was no reference to any material in support thereof nor was
the point argued at the hearing of the writ petitions. Before us also, no
particulars and no facts have been given in the special leave petitions or in the
writ petitions or in any affidavit, but the point has been sought to be
substantiated at the time of hearing by referring to certain facts stated in the
said application by HSIDC. In our opinion, when a point which is ostensibly a
point of law is required to be substantiated by facts, the party raising the point,

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if he is the writ petitioner, must plead and prove such facts by evidence which
must appear from the writ petition and if he is the respondent, from the
counter-affidavit. If the facts are not pleaded or the evidence in support of such
facts is not annexed to the writ petition or to the counter-affidavit, as the case
may be, the court will not entertain the point. In this context, it will not be out
of place to point out that in this regard there is a distinction between a pleading
under the Code of Civil Procedure and a writ petition or a counter-affidavit.
While in a pleading, that is, a plaint or a written statement, the facts and not
evidence are required to be pleaded, in a writ petition or in the counter-affidavit
not only the facts but also the evidence in proof of such facts have to be
pleaded and annexed to it. So, the point that has been raised before us by the
appellants is not entertainable. But, in spite of that, we have entertained it to
show that it is devoid of any merit.”
23. In the conspectus of the aforesaid discussion, this Court is of the
considered opinion that no case for interference is made out.
24. The writ petition accordingly stands dismissed.
25. The records be handed over back to the learned State Counsel.

JUDGE
Comparing Assistant