Swapan Malakar vs The State of Tripura and 4 others
- Court
- Tripura High Court
- Case type
- Writ Petition under Article 226 and 227 of the Constitution
- Decided on
- 17-03-2026
HIGH COURT OF TRIPURA
AGARTALA
WP(C) No. 235 of 2025
Swapan Malakar,
S/O Lt. Sudhan Malakar,
R/o-East Narayanpur, P.O.-Airport,
District-West Tripura, Pin-799009,
Age-55 years.
---- Petitioner(s)
Versus
1. The State of Tripura,
To be represented by its Secretary,
Department of Revenue,
Government of Tripura, Agartala,
New Secretariat Building, Kunjaban,
New Capital Complex, West Tripura, Pin-799010.
2. The District Magistrate & Collector,
West Tripura District, Govt. of Tripura,
O/o the DM & Collector, West Tripura,
Office Lane, Agartala, Tripura, Pin-799001.
3. The Addl. District Magistrate & Collector,
West Tripura District, Govt. of Tripura,
O/o the DM & Collector, West Tripura,
Office Lane, Agartala, Tripura, Pin-799001.
4. The Sub Divisional Magistrate,
Jirania Sub Division, West Tripura District,
Govt. of Tripura, O./o the SDM, Jirania,
West Tripura.
5. Dr. Vishal Kumar, IAS,
The District Magistrate & Collector,
West Tripura District, O/o the DM & Collector,
West Tripura, Office lane, Agartala,
West Tripura, Pin-799001.
---- Respondent(s)
For Petitioner(s) : Mr. Purusuttam Roy Barman, Sr. Adv.
Mr. Samarjit Bhattacharjee, Adv.
For Respondent(s) : Mr. Mangal Debbarma, Addl. GA.
Date of hearing : 20.02.2026
Date of delivery of judgment : 17.03.2026
Whether fit for reporting : Yes
Page 2 of 27
HON‟BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
Heard Learned Sr. counsel Mr. Purusuttam Roy Barman,
assisted by Mr. Samarjit Bhattacharjee, learned counsel
appearing on behalf of the petitioner and also heard learned
Addl. GA Mr. Mangal Debbarma, appearing on behalf of the
State-respondents.
2. The petitioner has filed this present writ petition seeking
the following reliefs:-
"(i) Issue Rule NISI upon the Respondents to show
cause why a writ of mandamus or in the nature
thereof shall not be issued directing the
Respondents to send the disciplinary proceedings
initiated against the Petitioner bearing No.
departmental proceedings case No. 02/DP/2024 to
the Commissioner of Departmental Inquiries, Govt.
of Tripura for inquiry and after hearing this petition
issue writ of mandamus or in the nature thereof
commanding upon the Respondents to send the
Disciplinary Proceedings initiated against the
Petitioner bearing No. 02/DP/2024 to the
Commissioner of Departmental Inquiries, Govt. of
Tripura.
(ii) Issue Writ in the light of the prayers made
above and make the rule absolute.
(iv) Stay the further proceedings of departmental
proceeding case No. 02/DP/2024, till disposal of the
writ petition.
(v) Any other order or direction, as this Hon'ble
Court considers appropriate may kindly be passed.
(vi) Cost of the petition may be allowed to the
petitioner."
3. Learned Sr. counsel Mr. Roy Barman, at the time of
hearing drawn the attention of this court that by a Memorandum
dated 23.08.2024 (Annexure-1) the District Magistrate &
Collector, West Tripura initiated an enquiry against the
Page 3 of 27
petitioner under Rule 14 of the CCS (CCA) Rules, 1965 with the
following article of charges:-
“STATEMENT OF ARTICLE OF CHARGE FRAMED
AGAINST SRI SWAPAN MALAKAR. ASO ATTACHED
TO THE OFFICE OF THE SDM, JIRANIA.
ARTICLE OF CHARGE NO.I
It is reported from Director, Land
Records & Settlement, Tripura, Agartala vide letter
No.F.4 (16)-RCC/2020 (P) dated 12.06.2024 that RS
plot No.6819, 6820, 6848, 6856, 6841, 6842, 6843,
6845, 6859, 6870, 6858 in Mouja Singerbil of
Lankamura TK under Barjala Revenue Circle bearing
Khatian No.894/1, 894/2, 894/3, 894/4 & 894/5
belong to Enemy Property and locked after
publication of the Notification No.F.4(16)-
RCC/2020(P)/4958-5022 dated 12 June, 2023. As
outlined in the Notification, approval of the State
Government through Directorate of Land Records &
Settlement (Revenue Department) is mandatory in
case of any transaction, sanction of building plans
or unlocking of Khatian (RoR) to be initiated against
the Enemy Properties.
Surprisingly, Sri Swapan Malakar, ASO
while posted at Mohanpur Sub-Division allowed the
following MR cases violating the provisions of the
Enemy Property Act, 1968 on the basis of forged
Deeds.
MR Case No. Date of
accepted
Sl
No.
Mutation accepted in
Mutation
accepted for
Mutation
allowed on the
basis of forged
Regd. Sale deed
Land
transferred
favour of
the
mutation
the area
measuring
from
(owner
detail)
number
produced by
applicants
MR-202106836 10.03.2021 Sri Haripada Das, S/o
1
Prafulla Das of
Chinaihani
2.520 acres. 1-179 dated
16.02.2009
Fathe Ali
(100000)
S/o Yaadh
Ali of
Bagladesh
MR-202105726 01.03.2021 Sri Krishnananda
2
Debnath S/o Pandab
Debnath (2) Nibedita
Debnath W/o
Krishnananda
Debnath of
Dhaleswar
0.20 acres 1-2870 dated
16.08.1990
-do-
MR-202110764 26.04.2021 Sri Makhan Das, S/o
3
Mahesh Das of
Ananga Nagar
0.960 acres 1-1019 dated
01.03.2007
-do-
Therefore, it can be said without any
doubt that the above named persons have illegally
got mutation of land measuring 2.520 acres, 0.20
acres & 0.960 acres respectively of Mouja Singerbil
by producing fake deeds bearing No as mentioned
against them.
Page 4 of 27
From the above, it is evident that Shri
Swapan Malakar, ASO has shown gross misconduct
by allowing the mutation cases based on fake Regd.
Sale deeds. This act has been carried out without
proper verification of the authenticity of the
documents and field verification, Indicating
involvement in corrupt practices.
ARTICLE OF CHARGE NO.II
Sri Swapan Malakar, ASO now attached
to O/o the SDM, Jirania while functioning as
Mutation officer has not followed the right and
necessary steps before passing mutation cases as
mentioned in Article of charge-l. He failed to verify
the authenticity of the documents and the
legitimacy of the mutation applications, has also
ignored several warnings and guidelines issued by
higher authorities regarding the handling of Enemy
Property. Despite clear instructions, he processed
and approved the aforementioned mutation cases,
which directly contravenes the directives aimed at
protecting Enemy Property.
The above act as committed by Sri
Swapan Malakar, ASO shows that he had willfully
done this with ulterior motives, which is
unbecoming of a Government erriployee. This act of
Sri Swapan Malakar, ASO constitutes a serious
failure to maintain absolute integrity and devotion
to Govt, duty which tantamount to gross misconduct
as laid down under Rule 3 of the Tripura Civil
Service Conduct Rules, 1988.
Signed by
Vishal Kumar
Date: 23-08-2024 14:59:43
District Magistrate & Collector
West Tripura District ”
4. Against the said Memorandum the petitioner submitted his
written statement of defense on 05.09.2024 (Annexure-2) denying
and disputing the article of charges pleading not guilty and also
prayed for exonerating him from the said article of charges
(Annexure-2).
5. Learned Sr. counsel Mr. Roy Barman, thereafter submitted
that the petitioner on 29.10.2024 submitted one prayer to the DM
& Collector for sending the enquiry before the Commissioner of
Departmental Enquiries (Annexure-5).
Page 5 of 27
6. Prior to that, personal hearing was held by DM & Collector
on 25.10.2024 and in course of personal hearing, according to
learned Sr. counsel, the petitioner was compelled to put his
signature on blank order sheets and in course of personal hearing
DM & Collector told the petitioner that the petitioner will be
dismissed from service. So, considering this threat and under
compelling circumstances the petitioner had no other option but to
put his signature in blank order sheets, and the same has been
specifically mentioned in the writ petition.
7. Learned Sr. counsel Mr. Roy Barman, thereafter submitted
that although in the writ petition the DM & Collector was made
party by name but he did not appear in this case nor did he file
any counter affidavit as respondent No.5. Rather the counter
affidavit has been sworn by one Chandra Krishna Malsom, Joint
Secretary to the Government of Tripura, Revenue Department who
had no personal knowledge as to what happened in course of
personal hearing.
8. After that the petitioner filed one writ petition before the
court challenging the departmental proceeding initiated against
him and this High Court by order dated 24.01.2025 in WP(C)
No.716/2024 disposed of the same with the following
observations:-
“8. In my opinion, in this situation,
following the doctrine of fairness and fairplay, the
Disciplinary Authority should not be the Inquiry
Officer and the inquire may be conducted by a
person other than the Disciplinary Authority in
terms of Rule 14 of Rules, 1965. The Disciplinary
Page 6 of 27
Authority shall appoint the Inquiry Officer before
the next date of recording evidence positively.
The petitioner has prayed for referring
the matter to the Commission of Departmental
Inquires. In my opinion, it is absolutely within the
domain or discretion of the appointing authority
either to appoint Inquiring Authority or to send the
matter to the Commissioner of Departmental
Inquiries.
With the aforesaid observations and
directions, the instant writ petition stands
disposed.”
9. Learned Sr. counsel Mr. Roy Barman, further submitted
that in pursuance of the direction of this High Court, ADM &
Collector, West Tripura, Agartala was appointed as Inquiring
Authority on 10.02.2025 by the Disciplinary Authority. The
Inquiring Authority issued notice and accordingly, the petitioner
made a prayer to the Disciplinary Authority to change the Inquiring
Authority by submitting one representation dated 19.03.2025
(Annexure-11). Not only that, the petitioner also made separate
prayer to the Inquiring Authority to stop further proceedings of the
enquiry initiated against him by another representation on
19.03.2025 (Annexure-12). But that was not considered. However,
the proceeding continued and the DM & Collector, being the
Disciplinary Authority, by order dated 07.04.2025 (Annexure-14)
dismissed the petitioner from service under Rule 11 of CCS (CCA)
Rules, 1965 with the further observation that the dismissal of
service shall ordinarily disqualify him from future employment, but
according to learned Sr. counsel Mr. Roy Barman, although the
present petitioner approached the Inquiring Authority to stop
further proceeding and also urged to the Disciplinary Authority to
refer the matter to the Commissioner of Departmental Enquiries
Page 7 of 27
but his representations were not considered by the authority. Even
before imposition of punishment the copy of the enquiry report
was not furnished to the petitioner either by the Inquiring
Authority or by the Disciplinary Authority. Even the Disciplinary
Authority also did not mention in the order that the enquiry report
was supplied to the petitioner.
10. Thus, according to learned Sr. counsel Mr. Roy Barman,
the principles of natural justice were violated in respect of the
present petitioner. Even his signatures were forcefully obtained by
the authority. Learned Sr. counsel Mr. Roy Barman, referring the
order of proceeding (Annexure-R/9) and the Enquiry Report
(Annexure-R/10) drawn the attention of the court that it was
specifically observed by the Inquiring Authority that the Articles of
Charges had been denied by the Accused Officer and the enquiry
proceeded in respect of the charges.
11. But, surprisingly, the same Inquiring Authority observed
that on 28.03.2025 (Annexure-R/10) the present petitioner, as
accused officer, admitted to “approving mutation based on forged
deeds” which are contrary to the facts of the proceeding. Thus, the
findings of Inquiring Authority were perverse and finally, learned
Sr. counsel Mr. Roy Barman, submitted that since the principles of
natural justice have been violated in this case, so, under
compelling circumstances the petitioner has filed the writ petition
seeking the reliefs as mentioned above.
12. Learned Sr. counsel Mr. Roy Barman, finally submitted
that admittedly in this case challenging the order of the
Page 8 of 27
Disciplinary Authority i.e. Annexure-14 dated 07.04.2025 wherein
the DM & Collector imposed major penalty upon the petitioner, the
present petitioner considering the facts and circumstances of the
case did not approach to the Appellate Authority, rather directly
filed this writ petition before this Court under Article 226 of
Constitution of India and in this regard according to learned Sr.
counsel Mr. Roy Barman, there are series of judgments of the
Supreme Court which supports the case of the petitioner.
13. Reliance was placed upon the judgment of the Hon’ble
Supreme Court of India reported in Godrej Sara Lee Ltd. v.
Excise and Taxation Officer-cum-Assessing Authority & Ors.,
reported in 2023 SCC OnLine SC 95 , wherein in para Nos.2, 4
and 6, Hon’ble the Apex Court observed as under:
“2. Two questions emerge for decision on
this appeal. First, whether the High Court was
justified in declining interference on the ground of
availability of an alternative remedy of appeal to the
appellant under section 33 of the VAT Act, which it
had not pursued. Should the answer to the first
question be in the negative, we would next be
required to decide whether to remit the writ petition
to the High Court for hearing it on merits or to
examine the correctness or otherwise of the orders
impugned before the High Court.
4. Before answering the questions, we
feel the urge to say a few words on the exercise of
writ powers conferred by article 226 of the
Constitution having come across certain orders
passed by the High Courts holding writ petitions as
"not maintainable" merely because the alternative
remedy provided by the relevant statutes has not
been pursued by the parties desirous of invocation
of the writ jurisdiction. The power to issue
prerogative writs under article 226 is plenary in
nature. Any limitation on the exercise of such power
must be traceable in the Constitution itself.
Profitable reference in this regard may be made to
article 329 and ordainments of other similarly
worded articles in the Constitution. Article 226 does
not, in terms, impose any limitation or restraint on
the exercise of power to issue writs. While it is true
that exercise of writ powers despite availability of a
remedy under the very statute which has been
Page 9 of 27
invoked and has given rise to the action impugned
in the writ petition ought not to be made in a
routine manner, yet, the mere fact that the
petitioner before the High Court, in a given case, has
not pursued the alternative remedy available to
him/it cannot mechanically be construed as a
ground for its dismissal. It is axiomatic that the
High Courts (bearing in mind the facts of each
particular case) have a discretion whether to
entertain a writ petition or not. One of the self-
imposed restrictions on the exercise of power under
article 226 that has evolved through judicial
precedents is that the High Courts should normally
not entertain a writ petition, where an effective and
efficacious alternative remedy is available. At the
same time, it must be remembered that mere
availability of an alternative remedy of appeal or
revision, which the party invoking the jurisdiction of
the High Court under article 226 has not pursued,
would not oust the jurisdiction of the High Court and
render a writ petition "not maintainable". In a long
line of decisions, this court has made it clear that
availability of an alternative remedy does not
operate as an absolute bar to the "maintainability"
of a writ petition and that the rule, which requires a
party to pursue the alternative remedy provided by
a statute, is a rule of policy, convenience and
discretion rather than a rule of law. Though
elementary, it needs to be restated that
"entertainability" and "maintainability" of a writ
petition are distinct concepts. The fine but real
distinction between the two ought not to be lost
sight of. The objection as to "maintainability" goes
to the root of the matter and if such objection were
found to be of substance, the courts would be
rendered incapable of even receiving the lis for
adjudication. On the other hand, the question of
"entertainability" is entirely within the realm of
discretion of the High Courts, writ remedy being
discretionary. A writ petition despite being
maintainable may not be entertained by a High
Court for very many reasons or relief could even be
refused to the petitioner, despite setting up a sound
legal point, if grant of the claimed relief would not
further public interest. Hence, dismissal of a writ
petition by a High Court on the ground that the
petitioner has not availed the alternative remedy
without, however, examining whether an
exceptional case has been made out for such
entertainment would not be proper.
6. At the end of the last century, this
court in paragraph 15 of its decision reported in
(1998) 8 SCC 1 (Whirlpool Corporation v. Registrar
of Trade Marks, Mumbai) carved out the exceptions
on the existence whereof a writ court would be
justified in entertaining a writ petition despite the
party approaching it not having availed the
alternative remedy provided by the statute. The
same read as under :
(i) where the writ petition seeks enforcement
of any of the fundamental rights ;
(ii) where there is violation of principles of
natural justice ;
Page 10 of 27
(iii) where the order or the proceedings are
wholly without jurisdiction ; or
(iv) where the vires of an Act is challenged.”
14 . Referring the same learned Sr. counsel Mr. Roy Barman,
submitted that although the petitioner has not challenged the
order of the Disciplinary Authority before the Appellate Authority
and has directly approached to this High Court, but there is no
legal bar to seek appropriate remedy before this court. Reliance
was further placed upon another judgment in B.C. Chaturvedi v.
Union of India & Ors. , reported in (1995) 6 SCC 749, wherein
in para Nos.12, 18, 24 and 25, Hon’ble the Apex Court observed as
under:
“12. Judicial review is not an appeal from a
decision but a review of the manner in which the
decision is made. Power of judicial review is meant
to ensure that the individual receives fair treatment
and not to ensure that the conclusion which the
authority reaches is necessarily correct in the eye of
the court. When an inquiry is conducted on charges
of misconduct by a public servant, the
Court/Tribunal is concerned to determine whether
the inquiry was held by a competent officer or
whether rules of natural justice are complied with.
Whether the findings or conclusions are based on
some evidence, the authority entrusted with the
power to hold inquiry has jurisdiction, power and
authority to reach a finding of fact or conclusion.
But that finding must be based on some evidence.
Neither the technical rules of Evidence Act nor of
proof of fact or evidence as defined therein, apply to
disciplinary proceeding. When the authority accepts
that evidence and conclusion receives support
therefrom, the disciplinary authority is entitled to
hold that the delinquent officer is guilty of the
charge. The Court/Tribunal in its power of judicial
review does not act as appellate authority to
reappreciate the evidence and to arrive at its own
independent findings on the evidence. The
Court/Tribunal may interfere where the authority
held the proceedings against the delinquent officer
in a manner inconsistent with the rules of natural
justice or in violation of statutory rules prescribing
the mode of inquiry or where the conclusion or
finding reached by the disciplinary authority is
based on no evidence. If the conclusion or finding
be such as no reasonable person would have ever
reached, the Court/Tribunal may interfere with the
conclusion or the finding, and mould the relief so as
to make it appropriate to the facts of each case.
Page 11 of 27
18. A review of the above legal position
would establish that the disciplinary authority, and
on appeal the appellate authority, being fact-finding
authorities have exclusive power to consider the
evidence with a view to maintain discipline. They
are invested with the discretion to impose
appropriate punishment keeping in view the
magnitude or gravity of the misconduct. The High
Court/Tribunal, while exercising the power of
judicial review, cannot normally substitute its own
conclusion on penalty and impose some other
penalty. If the punishment imposed by the
disciplinary authority or the appellate authority
shocks the conscience of the High Court/Tribunal, it
would appropriately mould the relief, either
directing the disciplinary/appellate authority to
reconsider the penalty imposed, or to shorten the
litigation, it may itself, in exceptional and rare
cases, impose appropriate punishment with cogent
reasons in support thereof.
24. What has been stated above may be
buttressed by putting the matter a little differently.
The same is that in a case of a dismissal, Article 21
gets attracted, and, in view of the interdependence
of fundamental rights, which concept was first
accepted in the case commonly known as Bank
Nationalisation case [Rustom Cavasjee Cooper v.
Union of India, (1970) 1 SCC 248 : (1970) 3 SCR
530] , which thinking was extended to cases
attracting Article 21 in Maneka Gandhi v. Union of
India [(1978) 1 SCC 248 : AIR 1978 SC 597] , the
punishment/penalty awarded has to be reasonable;
and if it be unreasonable, Article 14 would be
violated. That Article 14 gets attracted in a case of
disproportionate punishment was the view of this
Court in Bhagat Ram v. State of H.P. [(1983) 2 SCC
442 : 1983 SCC (L&S) 342 : AIR 1983 SC 454] also.
Now if Article 14 were to be violated, it cannot be
doubted that a High Court can take care of the same
by substituting, in appropriate cases, a punishment
deemed reasonable by it.
25. No doubt, while exercising power
under Article 226 of the Constitution, the High
Courts have to bear in mind the restraints inherent
in exercising power of judicial review. It is because
of this that substitution of the High Court's view
regarding appropriate punishment is not
permissible. But for this constraint, I would have
thought that the law-makers do desire application of
judicial mind to the question of even proportionality
of punishment/penalty. I have said so because the
Industrial Disputes Act, 1947 was amended to insert
Section 11-A in it to confer this power even on a
labour court/industrial tribunal. It may be that this
power was conferred on these adjudicating
authorities because of the prevalence of unfair
labour practice or victimisation by the management.
Even so, the power under Section 11-A is available
to be exercised, even if there be no victimisation or
taking recourse to unfair labour practice. In this
background, I do not think if we would be justified
in giving much weight to the decision of the
employer on the question of appropriate punishment
in service matters relating to government
Page 12 of 27
employees or employees of public corporations. I
have said so because if need for maintenance of
office discipline be the reason of our adopting a
strict attitude qua the public servants, discipline has
to be maintained in the industrial sector also. The
availability of appeal etc. to public servants does not
make a real difference, as the appellate/revisional
authority is known to have taken a different view on
the question of sentence only rarely. I would,
therefore, think that but for the self-imposed
limitation while exercising power under Article 226
of the Constitution, there is no inherent reason to
disallow application of judicial mind to the question
of proportionality of punishment/penalty. But then,
while seized with this question as a writ court
interference is permissible only when the
punishment/penalty is shockingly
disproportionate.”
15. Referring the same, learned Sr. counsel Mr. Roy Barman,
submitted that in this case the copy of the report of Inquiry Officer
was not furnished to the petitioner before imposition of
punishment which was in gross violation of principles of natural
justice and asked for setting aside the order passed by the
Disciplinary Authority.
16. Further, reference was made upon another citation of
Hon’ble Supreme Court of India in State of Uttar Pradesh & Ors.
v. Saroj Kumar Sinha, reported in (2010) 2 SCC 772 , wherein
in para Nos.29 and 39, Hon’ble the Apex Court observed as under:
“29. Apart from the above, by virtue of
Article 311(2) of the Constitution of India the
departmental enquiry had to be conducted in
accordance with the rules of natural justice. It is a
basic requirement of the rules of natural justice that
an employee be given a reasonable opportunity of
being heard in any proceedings which may
culminate in punishment being imposed on the
employee.
39. The proposition of law that a
government employee facing a departmental
enquiry is entitled to all the relevant statements,
documents and other materials to enable him to
have a reasonable opportunity to defend himself in
the departmental enquiry against the charges is too
well established to need any further reiteration.
Nevertheless given the facts of this case we may re-
emphasise the law as stated by this Court in State of
Page 13 of 27
Punjab v. Bhagat Ram [(1975) 1 SCC 155 : 1975 SCC
(L&S) 18] : (SCC p. 156, paras 6-8)
“6.The State contended that the
respondent was not entitled to get
copies of statements. The reasoning of
the State was that the respondent was
given the opportunity to cross-examine
the witnesses and during the cross-
examination the respondent would
have the opportunity of confronting the
witnesses with the statements. It is
contended that the synopsis was
adequate to acquaint the respondent
with the gist of the evidence.
7.The meaning of a reasonable
opportunity of showing cause against
the action proposed to be taken is that
the government servant is afforded a
reasonable opportunity to defend
himself against charges on which
inquiry is held. The government
servant should be given an opportunity
to deny his guilt and establish his
innocence. He can do so when he is
told what the charges against him are.
He can do so by cross-examining the
witnesses produced against him. The
object of supplying statements is that
the government servant will be able to
refer to the previous statements of the
witnesses proposed to be examined
against the government servant.
Unless the statements are given to the
government servant he will not be able
to have an effective and useful cross-
examination.
8. It is unjust and unfair to deny the
government servant copies of
statements of witnesses examined
during investigation and produced at
the inquiry in support of the charges
levelled against the government
servant. A synopsis does not satisfy the
requirements of giving the government
servant a reasonable opportunity of
showing cause against the action
proposed to be taken.”
17. Learned Sr. counsel Mr. Roy Barman, again referred
another judgment in Yoginath D. Bagde v. State of
Maharashtra & Anr. , reported in (1999) 7 SCC 739 , wherein in
para No.31, Hon’ble the Apex Court observed as under:
“31. In view of the above, a delinquent
employee has the right of hearing not only during
the enquiry proceedings conducted by the enquiry
Page 14 of 27
officer into the charges levelled against him but also
at the stage at which those findings are considered
by the disciplinary authority and the latter, namely,
the disciplinary authority forms a tentative opinion
that it does not agree with the findings recorded by
the enquiry officer. If the findings recorded by the
enquiry officer are in favour of the delinquent and it
has been held that the charges are not proved, it is
all the more necessary to give an opportunity of
hearing to the delinquent employee before reversing
those findings. The formation of opinion should be
tentative and not final. It is at this stage that the
delinquent employee should be given an opportunity
of hearing after he is informed of the reasons on the
basis of which the disciplinary authority has
proposed to disagree with the findings of the
enquiry officer. This is in consonance with the
requirement of Article 311(2) of the Constitution as
it provides that a person shall not be dismissed or
removed or reduced in rank except after an enquiry
in which he has been informed of the charges
against him and given a reasonable opportunity of
being heard in respect of those charges. So long as a
final decision is not taken in the matter, the enquiry
shall be deemed to be pending. Mere submission of
findings to the disciplinary authority does not bring
about the closure of the enquiry proceedings. The
enquiry proceedings would come to an end only
when the findings have been considered by the
disciplinary authority and the charges are either
held to be not proved or found to be proved and in
that event punishment is inflicted upon the
delinquent. That being so, the “right to be heard”
would be available to the delinquent up to the final
stage. This right being a constitutional right of the
employee cannot be taken away by any legislative
enactment or service rule including rules made
under Article 309 of the Constitution.”
18. Referring those judgments learned Sr. counsel Mr. Roy
Barman, again submitted that since the copy of enquiry report was
not furnished to the present petitioner by the authority, as such,
the petitioner has been prejudiced and principles of natural justice
have been violated against him.
19. Finally, learned Sr. counsel Mr. Roy Barman, referred
another citation in Whirlpool Corporation v. Registrar of Trade
Marks, Mumbai & Ors. , reported in (1998) 8 SCC 1 , wherein in
para No.14, Hon’ble the Apex Court observed as under:
“14. The power to issue prerogative writs
under Article 226 of the Constitution is plenary in
nature and is not limited by any other provision of
Page 15 of 27
the Constitution. This power can be exercised by the
High Court not only for issuing writs in the nature of
habeas corpus, mandamus, prohibition, quo
warranto and certiorari for the enforcement of any
of the Fundamental Rights contained in Part III of
the Constitution but also for “any other purpose”.”
20. Referring the same, learned Sr. counsel Mr. Roy Barman,
submitted that the power to issue prerogative writs under Article
226 is plenary in nature and is not limited to any other provisions
of the Constitution. The High Court not only can exercise the power
for issuing writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari for the enforcement of the
fundamental rights contained in Part III of the Constitution of India
but also for “any other purpose”.
21. He also submitted that the respondent authority was all
along hostile to the interest of the present petitioner and in spite of
his repeated representations his appeal was not considered by
them. Thus, from the act and conduct of the respondent authority
it transpires that the respondent authority before imposition of
punishment had already decided to punish the petitioner. So,
under imperative circumstances the petitioner has been compelled
to file this writ petition before this court seeking redress and as
such, the present case is very much maintainable for issuing
prerogative writs.
22. Learned Sr. counsel Mr. Roy Barman, thereafter referred
another judgment of the Supreme Court of India in Radha
Krishan Industries v. State of Himachal Pradesh & Ors. ,
reported in (2021) 6 SCC 771 , wherein in para Nos.25, 27, 27.1,
27.2, 27.3 and 27.4, Hon’ble the Apex Court observed as under:
Page 16 of 27
“25. In this background, it becomes
necessary for this Court, to dwell on the “rule of
alternate remedy” and its judicial exposition. In
Whirlpool Corpn. v. Registrar of Trade Marks
[Whirlpool Corpn. v. Registrar of Trade Marks,
(1998) 8 SCC 1] , a two-Judge Bench of this Court
after reviewing the case law on this point, noted :
(SCC pp. 9-10, paras 14-15)
“14. The power to issue prerogative
writs under Article 226 of the
Constitution is plenary in nature and is
not limited by any other provision of
the Constitution. This power can be
exercised by the High Court not only
for issuing writs in the nature of
habeas corpus, mandamus, prohibition,
quo warranto and certiorari for the
enforcement of any of the Fundamental
Rights contained in Part III of the
Constitution but also for “any other
purpose”.
15. Under Article 226 of the
Constitution, the High Court, having
regard to the facts of the case, has a
discretion to entertain or not to
entertain a writ petition. But the High
Court has imposed upon itself certain
restrictions one of which is that if an
effective and efficacious remedy is
available, the High Court would not
normally exercise its jurisdiction. But
the alternative remedy has been
consistently held by this Court not to
operate as a bar in at least three
contingencies, namely, where the writ
petition has been filed for the
enforcement of any of the Fundamental
Rights or where there has been a
violation of the principle of natural
justice or where the order or
proceedings are wholly without
jurisdiction or the vires of an Act is
challenged. There is a plethora of case-
law on this point but to cut down this
circle of forensic whirlpool, we would
rely on some old decisions of the
evolutionary era of the constitutional
law as they still hold the field.”
(emphasis supplied)
27. The principles of law which emerge are
that:
27.1. The power under Article 226 of the
Constitution to issue writs can be exercised not only
for the enforcement of fundamental rights, but for
any other purpose as well.
27.2. The High Court has the discretion not
to entertain a writ petition. One of the restrictions
placed on the power of the High Court is where an
effective alternate remedy is available to the
aggrieved person.
Page 17 of 27
27.3. Exceptions to the rule of alternate
remedy arise where : (a) the writ petition has been
filed for the enforcement of a fundamental right
protected by Part III of the Constitution; (b) there
has been a violation of the principles of natural
justice; (c) the order or proceedings are wholly
without jurisdiction; or (d) the vires of a legislation
is challenged.
27.4. An alternate remedy by itself does not
divest the High Court of its powers under Article 226
of the Constitution in an appropriate case though
ordinarily, a writ petition should not be entertained
when an efficacious alternate remedy is provided by
law.”
23. Referring the same learned Sr. counsel Mr. Roy Barman,
submitted that the present case is squarely covered by the
principle of the said judgments. Finally learned Sr. counsel, has
prayed for dismissal of this writ petition.
24. On the other hand learned Addl. GA Mr. Debbarma,
appearing on behalf of the State respondents submitted that in this
case the respondent authorities have submitted their counter
affidavit denying the assertions of the petitioner. Learned Addl. GA
Mr. Debbarma, further submitted that this present petition is not
maintainable as because the petitioner without approaching the
Appellate forum has directly approached this High Court seeking
redress which is not permissible in the eye of law and as such, the
present writ petition is liable to be dismissed/rejected forthwith.
25. Learned Addl. GA Mr. Debbarma, further submitted that in
this case, all opportunities were given to the present petitioner
during departmental proceeding. Rather the petitioner had
admitted his guilt before the Inquiring Authority as well as
Departmental Authority. So there was no infirmity in the order
passed by the Disciplinary Authority and as such, there is no scope
to entertain the writ petition filed by the present petitioner.
Page 18 of 27
26. In support of his contention, learned Addl. GA Mr.
Debbarma, relied upon one judgment of the Hon’ble Supreme
Court of India in Union of India & Ors. v. P. Gunasekaran ,
reported in (2015) 2 SCC 610 , wherein in the relevant portion of
para No.15, Hon’ble the Apex Court observed as under:
“15. *
23. The jurisdiction to issue a writ of
certiorari under Article 226 is a supervisory
jurisdiction. The Court exercises it not as an
appellate court. The findings of fact reached by an
inferior court or tribunal as a result of the
appreciation of evidence are not reopened or
questioned in writ proceedings. An error of law
which is apparent on the face of the record can be
corrected by a writ, but not an error of fact,
however grave it may appear to be. In regard to a
finding of fact recorded by a tribunal, a writ can be
issued if it is shown that in recording the said
finding, the tribunal had erroneously refused to
admit admissible and material evidence, or had
erroneously admitted inadmissible evidence which
has influenced the impugned finding. Again if a
finding of fact is based on no evidence, that would
be regarded as an error of law which can be
corrected by a writ of certiorari. A finding of fact
recorded by the Tribunal cannot be challenged on
the ground that the relevant and material evidence
adduced before the Tribunal is insufficient or
inadequate to sustain a finding. The adequacy or
sufficiency of evidence led on a point and the
inference of fact to be drawn from the said finding
are within the exclusive jurisdiction of the Tribunal.
(See Syed Yakoob v. K.S. Radhakrishnan [AIR 1964
SC 477] .)
*
27. Referring the same, learned Addl. GA Mr. Debbarma,
submitted that admittedly in this case the petitioner did not
approach the Appellate Authority and has directly approached this
High Court seeking redress under Article 226 of the Constitution of
India and after considering the materials on record the authority
has passed the order and there was no infirmity in the order
passed by the Disciplinary Authority (Annexure-14) and as such,
Page 19 of 27
the present writ petition is not maintainable and there is also no
scope on the part of the High Court to entertain the same and
furthermore, the principles of the aforesaid judgment of the
Hon’ble Supreme Court is very much relevant for decision of this
petition.
28. Reliance was further placed upon another citation of the
Hon’ble Supreme Court of India in Union of India v. T. R.
Varma , reported in 1957 SCC OnLine SC 30 , wherein in para
Nos.5 and 6, Hon’ble the Apex Court observed as under:
“5. The respondent then filed the
application out of which the present appeal arises,
in the High Court of Punjab for an appropriate writ
to quash the order of dismissal dated September 16,
1954, for the reason that there was no proper
enquiry. As many as seven grounds were set forth in
support of the petition, and of these, the learned
Judges held that three had been established. They
held that the respondent had been denied an
opportunity to cross-examine witnesses, who gave
evidence in support of the charge, that further he
was not allowed to make his own statement, but
was merely cross-examined by the Enquiring
Officer, and that likewise, his witnesses were
merely crossexamined by the Officer without the
respondent himself being allowed to examine them.
These defects, they observed, amounted to a denial
of reasonable opportunity to the respondent to show
cause against his dismissal, and that the order
dated September 16, 1954, which followed on such
enquiry, was bad as being in contravention of Article
311(2). In the result, they set aside the order, and
directed him to be reinstated. The correctness of
this order is challenged by the Solicitor- General on
two grounds : (1) that the finding that the
respondent had no reasonable opportunity afforded
to him at the enquiry is not supported by the
evidence; and (2) that even if there was a defect in
the enquiry, that was a matter that could be set
right in the stage following the show-cause notice,
and as the respondent did not ask for an opportunity
to cross-examine the witnesses, he could not be
heard to urge that the order dated September 16,
1954, was bad as contravening Article 311(2).
6. At the very outset, we have to observe
that a writ petition under Article 226 is not the
appropriate proceeding for adjudication of disputes
like the present. Under the law, a person whose
services have been wrongfully terminated, is
entitled to institute an action to vindicate his rights,
and in such an action, the Court will be competent to
Page 20 of 27
award all the reliefs to which he may be entitled,
including some which would not be admissible in a
writ petition. It is well-settled that when an
alternative and equally efficacious remedy is open
to a litigant,he should be required to pursue that
remedy and not invoke the special jurisdiction of the
High Court to issue a prerogative writ. It is true that
the existence of another remedy does not affect the
jurisdiction of the Court to issue a writ; but, as
observed by this Court in Rashid Ahmed v. Municipal
Board, Kairana:(1950) SCR 566 “the existence of an
adequate legal remedy is a thing to be taken into
consideration in the matter of granting writs”. Vide
also K.S. Rashid and Son v. Income Tax
Investigation Commission:(1954) SCR 738. And
where such remedy exists, it will be a sound
exercise of discretion to refuse to interfere in a
petition under Article 226, unless there are good
grounds therefor. None such appears in the present
case. On the other hand, the point for determination
in this petition whether the respondent was denied
a reasonable opportunity to present his case, turns
mainly on the question whether he was prevented
from cross-examining the witnesses, who gave
evidence in support of the charge. That is a question
on which there is a serious dispute, which cannot be
satisfactorily decided without taking evidence. It is
not the practice of courts to decide questions of that
character in a writ petition, and it would have been
a proper exercise of discretion in the present case if
the learned Judges had referred the respondent to a
suit. In this appeal, we should have ourselves
adopted that course, and passed the order which the
learned Judges should have passed. But we feel
pressed by the fact that the order dismissing the
respondent having been made on September 16,
1954, an action to set it aside would now be time-
barred. As the High Court has gone into the matter
on the merits, we propose to dispose of this appeal
on a consideration of the merits.”
29. Referring the same, learned Addl. GA Mr. Debbarma,
submitted that since without seeking alternative remedy to the
Appellate Authority the petitioner has approached this Court. So
there is no scope to entertain the writ petition filed by the present
petitioner.
30. Finally, learned Addl. GA Mr. Debbarma, referred another
citation of the Hon’ble Supreme Court of India in Managing
Director, ECIL, Hyderabad & Ors. v. B. Karunakar & Ors. ,
reported in (1993) 4 SCC 727 , wherein in para Nos.25 and 26,
Hon’ble the Apex Court observed as under:
Page 21 of 27
“25. While the right to represent against the
findings in the report is part of the reasonable
opportunity available during the first stage of the
inquiry viz., before the disciplinary authority takes
into consideration the findings in the report, the
right to show cause against the penalty proposed
belongs to the second stage when the disciplinary
authority has considered the findings in the report
and has come to the conclusion with regard to the
guilt of the employee and proposes to award penalty
on the basis of its conclusions. The first right is the
right to prove innocence. The second right is to
plead for either no penalty or a lesser penalty
although the conclusion regarding the guilt is
accepted. It is the second right exercisable at the
second stage which was taken away by the Forty-
second Amendment.
26. The reason why the right to receive the
report of the enquiry officer is considered an
essential part of the reasonable opportunity at the
first stage and also a principle of natural justice is
that the findings recorded by the enquiry officer
form an important material before the disciplinary
authority which along with the evidence is taken
into consideration by it to come to its conclusions. It
is difficult to say in advance, to what extent the said
findings including the punishment, if any,
recommended in the report would influence the
disciplinary authority while drawing its conclusions.
The findings further might have been recorded
without considering the relevant evidence on
record, or by misconstruing it or unsupported by it.
If such a finding is to be one of the documents to be
considered by the disciplinary authority, the
principles of natural justice require that the
employee should have a fair opportunity to meet,
explain and controvert it before he is condemned. It
is negation of the tenets of justice and a denial of
fair opportunity to the employee to consider the
findings recorded by a third party like the enquiry
officer without giving the employee an opportunity
to reply to it. Although it is true that the disciplinary
authority is supposed to arrive at its own findings
on the basis of the evidence recorded in the inquiry,
it is also equally true that the disciplinary authority
takes into consideration the findings recorded by
the enquiry officer along with the evidence on
record. In the circumstances, the findings of the
enquiry officer do constitute an important material
before the disciplinary authority which is likely to
influence its conclusions. If the enquiry officer were
only to record the evidence and forward the same to
the disciplinary authority, that would not constitute
any additional material before the disciplinary
authority of which the delinquent employee has no
knowledge. However, when the enquiry officer goes
further and records his findings, as stated above,
which may or may not be based on the evidence on
record or are contrary to the same or in ignorance of
it, such findings are an additional material unknown
to the employee but are taken into consideration by
the disciplinary authority while arriving at its
conclusions. Both the dictates of the reasonable
opportunity as well as the principles of natural
justice, therefore, require that before the
Page 22 of 27
disciplinary authority comes to its own conclusions,
the delinquent employee should have an opportunity
to reply to the enquiry officer's findings. The
disciplinary authority is then required to consider
the evidence, the report of the enquiry officer and
the representation of the employee against it.”
31. Referring the same, learned Addl. GA Mr. Debbarma,
submitted that since in the proceeding drawn up against the
petitioner all the opportunities were given to the petitioner during
the course of enquiry and the order the Disciplinary Authority is
based upon the evidence on record and the present petitioner in
course of hearing could not project any ground to this Court for
interference, so the present writ petition is liable to dismissed.
32. I have heard both the sides at length and perused the writ
petition and the connected documents submitted as annexures as
well as counter affidavit filed by the State respondents along with
the annexures.
33. Admittedly, in this case, the petitioner without challenging
the order of the Disciplinary Authority (Annexure-14) has directly
approached this High Court under Article 226 of Constitution of
India seeking redress without approaching to the appellate forum.
34. From the judgments referred by the parties it appears to
this Court that from the citations referred by learned Sr. counsel
for the petitioner it appears to this Court that if the principle of
natural justice are violated in that case there will be no bar for the
petitioner to straightway approach this High Court for seeking
redress under Article 226 of Constitution of India.
35. The citations referred by the learned Sr. counsel Mr. Roy
Barman, for the petitioner in this case are very much relevant for
Page 23 of 27
decision of this case and it also appears to this Court that the High
Court even apart from exercising powers under Article 226 of
Constitution of India for enforcement of writs can also entertain
the petition for enforcement of the fundamental rights under part
III of Constitution of India and also where there has been a
violation of the principles of natural justice and the Constitution
itself empowers the Court to exercise the power.
36. The power to issue prerogative writs under Article 226 of
Constitution of India is plenary in nature and is not limited by any
other provision of Constitution. These powers can be exercised by
the High Court not only for issuing writs in the nature of Habeas
Corpus, Mandamus, Prohibition, Quo warranto and certiorari for
the enforcement of any of the fundamental rights contained in part
III of the Constitution but also “for any other purpose” (emphasis
added). So it appears to this Court that this Court can also
entertain a writ petition in such a matter when challenging the
order of the Disciplinary Authority any person fails to approach to
the Appellate forum like the present petitioner herein for gross
violation of the principles of natural justice. Thus, the objection
raised by the learned Addl. GA Mr. Debbarma, for the State
respondents cannot be accepted in this regard.
37. Now regarding non-supply of enquiry report learned Sr.
counsel for the petitioner at the time of hearing drawn the
attention of the Court that before imposition of punishment by the
Disciplinary Authority by issuing order on 07.04.2025 (Annexure-
14) the copy of the enquiry report conducted by the Inquiring
Page 24 of 27
Authority was not furnished to the present petitioner to enable him
to submit his proper defence.
38. In this regard, at the time of hearing, learned Addl. GA Mr.
Debbarma, could not explain anything before this court as to why
the same was not supplied to the petitioner before imposition of
punishment by the Disciplinary Authority (Annexure-14). In this
regard, to countenance the same the respondent authority could
not place any materials before this Court to substantiate that the
copy of the enquiry report was supplied.
39. Hon’ble Supreme Court of India in a very recent judgment
reported in State of Uttar Pradesh through Principal Secretary,
Department of Panchayati Raj, Lucknow v. Ram Prakash Singh ,
reported in 2025 SCC OnLine SC 891 has dealt with the issue
wherein in para Nos.38, 39, 52 and 55, Hon’ble the Apex Court
observed as under:
“38. Thus, the right to receive the enquiry
report as a fundamental safeguard in disciplinary
proceedings, where such report holds the charges
against the delinquent employee to be established,
was firmly entrenched by the Constitution Bench in
the jurisprudence relating to proceedings initiated
for disciplinary action for misconduct. This valuable
right applies uniformly, regardless of who the
employer is (Government, public or private) and
regardless of what the rules governing the service
ordain. Even if the rules are silent or do not require
furnishing of the enquiry report, the same has to be
furnished. Additionally, the report must be furnished
to the employee even without a request, as it forms
an integral part of ensuring a fair and reasonable
opportunity to defend against the charges. By not
furnishing the report, an employer cannot scuttle
the rights of the delinquent employee.
39. Reading the passage from S.K. Sharma
(supra) highlighted above bearing in mind the
guidance received from the dicta in B. Karunakar
(supra), one can safely conclude that furnishing of a
report of enquiry though is a procedural step, it is of
a mandatory character. However, such a
requirement can be waived by the delinquent
Page 25 of 27
employee, expressly or by conduct, but if on facts he
is found not to have waived his right to receive the
report, the theory of substantial compliance or the
test of „prejudice‟ would not be applicable.
52. We now sum up our understanding of
the law declared in B. Karunakar (supra) and
answer the four questions delineated in paragraph
26 (supra) compositely. Reading the declaration of
law by the Constitution Bench regarding the
imperative need to furnish the report of enquiry to
the delinquent employee even when : (i) the
relevant statutory rules are silent or against it, (ii)
the punishment to be imposed is other than the
punishment referred to in clause (2) of Article 311
of the Constitution, (iii) the employee does not ask
for it, and (iv) the burden is cast on a private
employer too, and the law requiring furnishing of
the report being made to operate prospectively from
the date the decision in Mohd. Ramzan Khan (supra)
was rendered, thereby reinforcing the legal position
that prevailed after the GoI Act was enacted but
became unsettled later, there can be no two
opinions that on and from 20th November, 1990
[i.e., when Mohd. Ramzan Khan (supra) was
decided] it is the mandatory requirement of law that
the report of enquiry has to be furnished to the
delinquent employee. Taking a cue from S.K.
Sharma (supra), we are inclined to the view that the
requirement of furnishing the report of enquiry,
though procedural, is of a mandatory character and
the bogey argument of the employer to apply the
test of „prejudice‟ when the report of enquiry is not
furnished cannot be of any avail to thwart the
challenge of the delinquent employee. Such test
could call for application, if from the facts and
circumstances, it can be established that the
delinquent employee waived his right to have the
report furnished. Should satisfactory explanation be
not proffered by the employer for its
failure/omission/neglect to furnish the enquiry
report, that ought to be sufficient for invalidating
the proceedings and directing resumption from the
stage of furnishing the report. No proof of prejudice
for breach of a statutory rule or the principles of
natural justice and fair play need be proved, unless
there is a waiver, either express or by conduct, to of
the right to receive the report. And, it is only in
specific and not in all circumstances that proof of
„prejudice‟ ought to be insisted upon.
55. Relying on the law declared in S.K.
Sharma (supra) which, in turn, relied on B.
Karunakar (supra), we hold that prejudice is self-
evident and no proof of prejudice as such is called
for in this case.”
40. From the aforesaid judgment of Hon’ble Apex Court it
appears that even if the rules are silent or do not require
furnishing of the enquiry report the same has to be furnished. The
report must be furnished to an employee even without a request
Page 26 of 27
as it forms an essential part of ensuring a fair and reasonable
opportunity to defend against the charges. By not furnishing the
report(s) an employer cannot curtail the rights of the delinquent
employee.
41. Here in the case at hand, from the order of the Disciplinary
Authority (Annexure-14) nowhere I find that the same was
supplied to the present petitioner. Furthermore, in course of
hearing learned Addl. GA Mr. Debbarma, appearing on behalf of
the State respondents also could not submit anything in this
regard, save and except referring the citations.
42. Situated thus, it appears to this Court that by not
supplying the copy of the report of Enquiry Officer the principles of
natural justice have been violated and as such, in my considered
view, without ensuring compliance of the same there was no scope
on the part of the Disciplinary Authority to pass the impugned final
order dated 07.04.2025 (Annexure-14) although in the top of the
first page of the order it was written as 07.04.2024.
43. Thus, the action of the respondents was not proper. Even
respondent No.5 did not consider it necessary to defend the
personal allegation leveled against him by the present petitioner by
filing of counter affidavit.
44. In the result the writ petition filed by the petitioner is
hereby allowed.
45. The order dated 07.04.2025 (Annexure-14) issued by
respondent DM & Collector thus stands set aside and quashed. The
matter is remanded back to the authority to ensure supply copy of
Page 27 of 27
the enquiry report to the petitioner and after affording opportunity
to the petitioner to defend the enquiry report the Disciplinary
Authority shall pass a fresh order in accordance with law within a
period of 4(four) months from the date of passing of this
judgment.
With these observations, the present writ petition disposed
of.
Pending applications, if any, stands also disposed of.
JUDGE
SATABDI DUTTA
Satabdi
Digitally signed by SATABDI DUTTA
Date: 2026.03.19 16:39:19 +05'30'