Md. Mizanul Hoque vs State Of Assam And 3 Ors

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GAHC010107042024
GAHC010107042024

REPORTABLE

REPORTABLE
2026:GAU-AS:2830
2026:GAU-AS:2830

THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2888/2024
Case No. : WP(C)/2888/2024
MD. MIZANUL HOQUE
S/O- ABDUR RAHMAN,
VILL- AMARAGURI,
P.O.- JALAKIABORI,
P.S.- LAHORIGHAT,
DISTRICT- MORIGAON, ASSAM,
PIN- 782127.
MD. MIZANUL HOQUE
S/O- ABDUR RAHMAN,
VILL- AMARAGURI,
P.O.- JALAKIABORI,
P.S.- LAHORIGHAT,
DISTRICT- MORIGAON, ASSAM,
PIN- 782127.
VERSUS
VERSUS
STATE OF ASSAM AND 3 ORS
TO BE REPRESENTED BY THE COMMISSIONER-SECRETARY,
HOME DEPARTMENT, DISPUR,
GUWAHATI- 781005.
STATE OF ASSAM AND 3 ORS
TO BE REPRESENTED BY THE COMMISSIONER-SECRETARY,
HOME DEPARTMENT, DISPUR,
GUWAHATI- 781005.
2:THE INSPECTOR GENERAL OF POLICE (CR)
NAGAON
ASSAM ( CAMP AT DIPHU).
2:THE INSPECTOR GENERAL OF POLICE (CR)
NAGAON
ASSAM ( CAMP AT DIPHU).
3:THE SUPERINTENDENT OF POLICE
DISTRICT MORIGAON
MORIGAON ASSAM.
3:THE SUPERINTENDENT OF POLICE
DISTRICT MORIGAON
MORIGAON ASSAM.
4:THE ENQUIRY OFFICER RELATING TO DP NO. 06/2023
C/O SUPERINTENDENT OF POLICE
MORIGAON DISTRICT- MORIGAON
ASSAM
4:THE ENQUIRY OFFICER RELATING TO DP NO. 06/2023
C/O SUPERINTENDENT OF POLICE
MORIGAON DISTRICT- MORIGAON
ASSAM

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BEFORE
HON’BLE MR. JUSTICE RAJESH MAZUMDAR

Advocate for the petitioner(s): Mr B Chakravarty,

Advocate for the respondent(s): Ms M Bhattacharjee,
Addl. Sr. GA Assam.
Date on which judgment was reserved : 12.02.2026
Date of pronouncement of judgment : 24.02.2026
Whether the pronouncement is of the : NA
operative part of the judgment?
Whether the full judgment has been : Yes
pronounced?
JUDGMENT AND ORDER (ORAL)
Heard Mr B Chakravarty, learned counsel appearing for the petitioner. Also
heard Miss M Bhattacharjee learned Additional Senior Government Advocate,
Assam appearing on behalf of the respondents, who has also produced the
records of the disciplinary proceedings held against the petitioner.
2. The submissions of the learned counsel have been considered and the
records produced have been perused.
3. The writ petition has been filed challenging an order dated 26.12.2023
passed by the Superintendent of Police, Morigaon and the appellate order dated
17.04.2024, passed by the Inspector General of Police (CR) by which the order
of the disciplinary authority has upheld the penalty imposed upon the petitioner.

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The petitioner has also assailed the charge memo, the enquiry proceedings and
the enquiry report which was served upon the petitioner by the respondent
authorities.
4. The petitioner was arrested in connection with ACB Police Station Case
No. 60 of 2023 under Section 120B of the IPC read with Section 7 of the
Prevention of Corruption Act, 1988, on 11.8.2023 along with two other persons
working in the same department. He was, thereafter, placed under suspension
with effect from 11.8.2023 by an order of even date. The petitioner was
released on bail by the learned Trial Court on 13.9.2023.
5. On 18.09.2023, the Superintendent of Police, Morigaon, issued the first
show cause notice to the petitioner where he was required to show cause as to
why any of the prescribed penalties should not be imposed on him on the
charges based on statement of allegations, list of witnesses and list of
documents enclosed with the show cause notice.
6. The statement of allegations indicated that the petitioner exhibited
moral turpitude and failed to uphold integrity and abused his power being a
police personnel of a disciplined force. It further stated that the enquiry carried
out so far revealed that there is sufficient material to show the involvement of
the petitioner in the offence of demanding illegal gratification. His involvement
in the investigation of the Lahorighat PS case No. 190/2023 without the
knowledge of the office in charge of the Lahorighat PS also exhibited his clear ill
intentions. The petitioner filed his reply to the show cause notice on
22.10.2023.
7. The enquiry officer, having conducted the enquiry, had submitted the

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enquiry report. By the second show cause notice dated 13.12.2023, the
petitioner was served a copy of the enquiry report requiring him to show cause
against the findings. The disciplinary authority had recorded that on perusal of
the findings, it was noticed that the charges of gross misconduct, indiscipline act
and dereliction of duty are proved and hence the petitioner was liable for
punishment.
8. The petitioner, thereafter, filed his representation which was received
by the disciplinary authority on 16.12.2023 and by the order dated 26.12.2023,
he was dismissed from service with immediate effect.
9. An appeal was preferred to the Inspector General of Police, Central
Range, Nagaon, Assam on 25.1.2024, which came to be dismissed by the order
dated 17.4.2024.
10. The petitioner is now before the court with the prayers as referred to in
the preceding paragraphs of this order.
11. The learned counsel for the petitioner has based his arguments on the
grounds of bias and has submitted that the departmental proceedings had been
conducted with a predetermined outcome regarding the guilt of the petitioner.
He has submitted that such enquiry proceedings which were conducted with the
intention to prove the guilt cannot sustain the scrutiny of law and is liable to be
set aside and quashed.
12. To evaluate and appreciate the arguments made on behalf of the
petitioner, this Court, with the assistance of the learned counsel appearing for
the contesting parties, has thoroughly perused the records of the departmental
proceedings initiated against the petitioner.

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13. A perusal of the show cause notice would reflect that instead of
requiring him to show cause as to why he should not be held guilty of the
allegations levelled upon him, the notice required the petitioner to show cause
as to why any of the prescribed penalties should not be imposed upon the
petitioner on the charges levelled.
14. In Kumaon Mandal Vikas Nigam Limited -versus- Girija Shankar
Pant and others ; reported in (2001) 1 SCC 182 , the Apex Court was dealing
with a show cause notice issued to an employee. The court made the following
observations by referring to the language in the show cause notice:
“ 25. Upon consideration of the language in the show-cause notice- cum-
charge-sheet, it has been very strongly contended that it is clear that the
Officer concerned has a mindset even at the stage of framing of charges and
we also do find some justification in such a submission since the chain is
otherwise complete.”
“ The test, therefore, is as to whether a mere apprehension of bias or there being a
real danger of bias and it is on this score that the surrounding circumstances must
and ought to be collated and necessary conclusion drawn therefrom -- in the
event, however, the conclusion is otherwise inescapable that there is existing a real
danger of bias, the administrative action cannot be sustained”
15. In Oryx fisheries Private Limited -versus- Union of India and
others; reported in (2010) 13 SCC 427 , the Apex Court had held as follows;
“ 31. It is of course true that the show cause notice cannot be read hyper-
technically and it is well settled that it is to be read reasonably. But one
thing is clear that while reading a show- cause notice the person who is
subject to it must get an impression that he will get an effective opportunity
to rebut the allegations contained in the show cause notice and prove his
innocence. If on a reasonable reading of a show-cause notice a person of
ordinary prudence gets the feeling that his reply to the show cause notice
will be an empty ceremony and he will merely knock his head against the
impenetrable wall of prejudged opinion, such a show cause notice does not
commence a fair procedure especially when it is issued in a quasi- judicial
proceeding under a statutory regulation which promises to give the person
proceeded against a reasonable opportunity of defence.

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32. Therefore, while issuing a show-cause notice, the authorities must take
care to manifestly keep an open mind as they are to act fairly in adjudging
the guilt or otherwise of the person proceeded against and specially when
he has the power to take a punitive step against the person after giving him
a show cause notice.
33. The principle that justice must not only be done but it must eminently
appear to be done as well is equally applicable to quasi judicial proceeding
if such a proceeding has to inspire confidence in the mind of those who are
subject to it.”
16. In Shri Hiramohan Doley -versus- The State of Assam & others,
reported in 2017 (3) GLJ 714 , where similar language was employed in the
show cause notice, this Court had held that such a language indeed reflects the
pre-conceived mind of a disciplinary authority. It was held when the delinquent
was asked to show cause as to why disciplinary action should not be taken
against him as per Assam Municipal Act, 1956 even before hearing his version,
the respondents had already formed the opinion that he had remained willingly
absent from duty. It appeared that the show cause notice was issued with a
pre-determined mindset and was a mere formality adopted by the respondents
to terminate the services of the petitioner.
17. In the present case, it is noticed that the disciplinary authority had while
furnishing the first notice itself used language such as your above act amount to
gross misconduct, act of indiscipline and dereliction of duty and you have
exhibited absolute lack of integrity. Going by the language used in the first
notice itself, this Court is of the considered opinion that the law laid down by
this Court and also the Apex Court as referred hereinabove clearly apply to the
circumstances of the present case and therefore the very initiation of the
disciplinary proceeding against the petitioner by the first show notice itself
cannot stand the scrutiny of law.

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18. The records also reveal that though the allegation is that the petitioner
exhibited moral turpitude and failed to uphold the integrity and abused power, it
has not been specified as to in what manner he had exhibited the aforesaid
attributes. The very fact of his arrest in connection with the ACB PS case has
been projected to be a charge, which, in law, cannot be so done. The co-
accused with him in the ACB PS case, namely the Sub-Inspector of Police and
the other constable were named as witnesses against the petitioner, which
again cannot be done. Such procedure is unheard of in law, where a prime
accused in a criminal trial who is also a senior officer, can be made a witness
against a junior co-accused in a departmental proceeding on the same issue. In
the opinion of this Court, when both the senior officer and the junior had been
found to be involved in the same criminal case with allegations of corruption, at
best both could have been made to suffer a common disciplinary proceeding,
but allowing the disciplinary authority to make one a witness against the other
and not to put the senior officer to face any proceedings would be preposterous
proposition, which cannot stand to reasonableness.
19. The records do not reveal that the petitioner was informed about his
right to engage a defence assistant and in the opinion of this Court, in the
absence of any information or proposal from the disciplinary authority to allow
the petitioner to engage a defence assistant as required in law, the petitioner
suffered prejudice. The Court finds support in this proposition from the law laid
down in Chand Mohammad Ali -Versus- State of Assam, reported in 2016
(4) GLT 277 .
20. This Court has further noticed that while seven witnesses were named
in the list of witnesses provided to the petitioner, only three had been called in

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the enquiry and as many as eight other witnesses, who were not named in the
list of witnesses and of whom the petitioner had no notice, had been called
during the enquiry proceeding. It is a settled position in law that when unlisted
witnesses are called for in an enquiry, it is incumbent upon the
accused/delinquent officer has to be given notice of the intention to call for such
witness and also has to be informed as to by whom such witnesses has been
proposed and what was the requirement for calling such witnesses into the
enquiry.
21. There is nothing on record to show that the request has been made by
the presenting officer or by the disciplinary authority to the enquiry officer to
call for the additional witnesses. In the absence of such request, it has to be
presumed that the enquiry officer had taken it himself to call for such witnesses
as being necessary to prove the allegations imputed against the petitioner. The
learned counsel for the petitioner has submitted that the witnesses who has
been called for during the enquiry proceedings included independent witnesses,
which were not informed prior to their summon into the enquiry to the
petition. This Court finds force in such submission.
22. Referring to the procedure adopted by the enquiry officer, the learned
counsel for the petitioner has submitted that the enquiry report itself would
illustrate that the petitioner has been cross-examined after each of the
witnesses has made their statements before the enquiry officer. Such a
procedure was unheard of. The petitioner had been put to disadvantage when
instead of being allowed to cross examine the witness, the petitioner has been
cross-examined by the enquiry officer. The counsel for the petitioner has also
brought to the notice of the Court that a perusal of the cross examination of the

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petitioner after the statement of each of the witnesses had been recorded
would show that the same questions and answers were repeated after every of
the statements recorded for the disciplinary authority.
23. The role of an enquiry officer has been extensively discussed in the case
of Union of India –Vs- Ram Lakhan Sharma , reported in (2018) 7 SCC
670 , wherein it has been held as follows:
“ 28. Xxxx As far as position in law is concerned, it is common ground that if
the Inquiring Authority plays the role of a Prosecutor and cross-examines
defence witnesses or puts leading questions to the prosecution witnesses
clearly exposing a biased state of mind, the inquiry would be opposed to
principles of natural justice. But the question for consideration in this case
is : Whether the Inquiry Officer did so ? It is also settled law that an Inquiring
Authority is entitled to put questions to the witnesses for clarification
wherever it becomes necessary and so long the delinquent employee is
permitted to cross-examine the witnesses after the Inquiring Authority
questions the witnesses, the inquiry proceedings cannot be impeached as
unfair.”

35. Thus, the question as to whether Inquiry Officer who is supposed to
act independently in an inquiry has acted as prosecutor or not is a question
of fact which has to be decided on the facts and proceedings of particular
case. In the present case we have noticed that the High Court had
summoned the entire inquiry proceedings and after perusing the proceedings
the High Court came to the conclusion that Inquiry Officer himself led the
examination in chief of the prosecution witness by putting questions. The
High Court further held that the Inquiry Officer acted himself as prosecutor
and Judge in the said disciplinary enquiry. The above conclusion of the High
Court has already been noticed from paragraphs 9 and 10 of the judgment of
the High court giving rise to Civil Appeal No.2608 of 2012.”
24. In the case in hand, though a presenting officer hasthe been appointed,
the enquiry proceedings reveal that presenting officer was a mere spectator and
the entire proceeding was conducted at the instance of the enquiry officer.
Neither any of the witnesses has introduced any documents during the enquiry
procedures nor any document has been exhibited by any of the witnesses. It is

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apparent from the records, that while finalizing his opinion on the guilt of the
petitioner, the enquiry officer has neither required the presenting officer to
present a presenting officers brief nor required the petitioner herein to present a
defence brief. Therefore, on the facts recorded in the disciplinary proceedings,
there is no doubt in the mind of the Court that the enquiry officer has played
the role of a presenting officer also, thereby vitiating the entire proceedings.
25. The second Show cause notice issued to the petitioner on 13.12.2023
now deserves a closer look by this Court. It is revealed therefrom that the
disciplinary authority has already made up his mind regarding the guilt of the
petitioner and has already framed a mind that the petitioner was liable for
punishment. It is only through the second show cause notice that the petitioner
was for the first time put to notice about the findings of the departmental
proceeding and therefore it is apparent that the enquiry report has been
provided to the petitioner after the disciplinary authority had already accepted
the report and held the petitioner liable for punishment. The opportunity, if it
can be so-called, to the petitioner to frame a reply to the enquiry report, was a
mere formality. Such empty formalities would vitiate the enquiry proceedings
and therefore any action or decision on the basis of such a proceeding suffer
serious infirmities and in the present case, would render the order dated
26.12.2023, dismissing the petitioner from service with immediate effect
unworthy of being sustained in law and deserving an interference of the writ
Court.
26. When the charge sheet, the enquiry proceedings and the impugned
order passed by the disciplinary authority suffers from illegalities, the appellate
order rising out of the aforesaid procedure also cannot be sustained in law and

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has to be necessarily interfered with.
27. As a consequence of the findings and observations made herein above,
this Court has no option but to hold the first show cause notice dated
18.09.2023, the enquiry proceedings which culminated in a biased report, the
second show cause notice dated 13.12.2023, the order dated 26.12.2023 by
which the services of the petitioner has been terminated as well the orders
passed by the appellate authority to be beyond the contours of law as
understood in service jurisprudence, deserving to be declared null and void. It is
accordingly declared.

28. On the setting aside of the order of termination dated 26.12.2023, the
petitioner shall now be entitled for a reinstatement in his services. Since the
case substantially complies with the conditions laid down in Deepali Gundu
Surwase -Versus- Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and
Others; reported in ( 2013) 10 SCC 324 , upon reinstatement of his service,
the petitioner shall file an affidavit regarding his employment or otherwise in the
interregnum and unless the respondents find that the petitioner was gainfully
engaged during the period, the petitioner shall be entitled to the arrears of
salary which could have accrued to him, but for the illegal termination, however,
without entitlement to the allowances which are connected to the actual
discharge of duty. The period of absence from the date of termination till the
date of reinstatement shall, in any case, be taken up as a continued service for
all purposes including seniority and pension etc. Since the allegations levelled
are indicative of corruption, the disciplinary authority would be at liberty to post
the petitioner, upon reinstatement, to such duties as may be deemed fit.
29. The fate of the criminal trial initiated against the petitioner has not been

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divulged to this Court. In such circumstances, it is clarified that the Trial shall
not be influenced by this judgment and order and further, in the event the Trial
concludes adversely to the petitioner, the disciplinary authority would be at
liberty to proceed in accordance with law on the basis of the conviction
recorded, if any, against the petitioner.
30. Records submitted by Ms M Bhattacharjee, learned Senior Government
Advocate, Assam be returned to her forthwith with proper receipt.
31. Writ petition accordingly stands disposed of.
32. No cost(s).
JUDGE
Comparing Assistant
Order downloaded on 27-02-2026 12:10:25 AM