Subhash Chandra Koch vs The State Bank Of India And 3 Ors.

GAHC010063562019


2026:GAU-AS:12311


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

O OF
WP(C) N . 2035 2019

Sri Subhash Chandra Koch
S/o- Late Gauri Kanta Koch,
R/o- Sharma Building, Arunudoy Path,
Narayan Nagar, Bharalumukh,
Guwahati- 781009, Assam.


…….Petitioner


-Versus-

1. The State Bank of India,
Represented by the Chief General Manager
and the Appellate Authority, North Eastern
Circle, G.S. Road, P.O- Assam Sachivalaya,
Dispur, Guwahati- 781006.
2. The Disciplinary Authority and General
Manager (Network-I) State Bank of India
North Eastern Circle, G. S. Road, P.O.-
Assam Sachivalaya, Dispur, Guwahati-
781006.
3. The Appointing Authority and General
Manager (Network II) State Bank of India
Local Head Office, North Eastern Circle, G.
S. Road, P.O.- Assam Sachivalaya, Dispur,
Guwahati- 781006.
4. The Inquiring Authority, State Bank of
India Local Head Office, NE Circle, A block,
th
5 floor, G. S. Road, P.O. Assam
Page 1 of 32

Sachivalaya, Guwahati- 781006.

……. Respondents


– B E F O R E –

HON’BLE MR. JUSTICE KAUSHIK GOSWAMI

For the Petitioner(s) : Mr. S Bharali, Advocate.

For the Respondent(s) : Mr. G Jalan, Advocate.

Date on which judgment
is reserved : 20.08.2026

Date of pronouncement
of judgment : 26.08.2026

Whether the pronouncement
is of the operative part
of the judgment ? : No.

Whether the full judgment
has been pronounced : Yes.


UDGMENT RDER
J & O (CAV)

Heard Mr. S Bharali, learned counsel appearing for
the petitioner. Also heard Mr. G Jalan, learned counsel
appearing for the respondents.
2] By way of this writ petition under Article 226 of the
Constitution of India, the writ petitioner is putting to challenge,
inter alia, the impugned Enquiry Report dated 11.01.2018 of
the Enquiring Authority as well as the impugned order dated
31.01.2018 passed by the Disciplinary Authority (respondent
No. 2), whereby the services of the petitioner were dismissed in
Page 2 of 32

terms of Rule 67 (j) of the State Bank of India Officers’ Service
Rules, 1992 (hereinafter referred to as the “Service Rules,
1992”) and also the subsequent order of the Appellate Authority
(respondent No. 1) dated 11.06.2018, whereby the appeal filed
by the petitioner was dismissed.
3] The brief facts of the case, as projected by the
petitioner, are that he was posted as Branch Manager of the
State Bank of India, Goreswar Branch, during the period from
06.01.2008 to 31.03.2010. While he was so posted, a
Memorandum of Charge-sheet dated 10.07.2012 was issued
against him alleging commission of certain acts of misconduct
in discharge of his official duties.
4] On the basis of the aforesaid allegations, six charges
were framed against the petitioner, which read as under: —
“ALLEGATION NO.1
There were deposits made without valid consideration,
as stated below, by way of cash in your joint account
with Smt. Dipa Koch No. 10044332725 maintained at
Pandu Port branch, a non-home branch, which did hot
commensurate with your known source of income. Smt.
Dipa Koch being a housewife and having no
independent source of income of her own, could not had
contributed to such deposits.
ⅰ ₹
) A cash deposit of 93,000.00 was made on 20-10-
2008 at Pandu Port branch.
ii) A cash deposit of 6,000.00 was made on 24-10-2008
at Pandu Port branch.
iii) A cash deposit of 2,50,000.00 was credited in your
joint account on 28-05-2009 at Pandu Port branch.
iv) A cash deposit of 2,50,000.00 was made on 08-08-
2009 at Pandu-Port branch.
ALLEGATIOΝ ΝΟ.2
There were deposits made without valid consideration,
as stated below, by way of cash and transfer in your
Page 3 of 32

joint account with Smt. Dipa Koch No. 10044332725
maintained at Pandu Port branch, a non-home branch,
which did not commensurate with your known source of
income. Your ID No.. 1952862 was used in following
cases during the period when you were posted as
Branch Manager at Goreswar branch. Smt. Dipa Koch
being a housewife and having no independent source of
income of her own, could not had contributed to such
deposits.
i) A cash deposit of ₹ 2,000.00 was made on-24-10-2008
at Goreswar branch. The entry was made under your
ID.
ii) A cash deposit of ₹ 20,000.00 was made on27-03-
2009 at Goreswar branch. The entry was made under
your ID.
iii) A cash deposit of ₹ 8,000.00 was made on 31-03-
2009 at Goreswar branch. The entry was made under
your ID.
vi)An amount of ₹ 18,000.00 was credited on 30-05-
2009 at Goreswar branch. The entry was made using
your ID:
v) An amount of ₹ 2,00,000.00 was diverted to your joint
account on 06-06-2009 from the loan account
No.30761090144 of Shri Horeswar Rajbongshi under
your own ID.
vi) An amount of ₹ 80,200.00 was credited in your joint
account on by cheque belonging to A/C
No.30510526927 of M/s. Trade India Associates, a
business firm al Goreswar. Similarly, an amount of
1,00,000.00 was deposited in your joint account by
cheque from the same business firm on 05-05-2009.
Both the entries were made under your ID.
ALLEGATION NO.3
There were deposits made without valid consideration,
as stated below, by way of cash in your Joint account
with Smt. Dipa Koch No. 10044332725 maintained at
Pandu Port Branch which did not commensurate with
your known source of income. Smt. Dipa Koch being a
housewife and having no independent of her own, could
not had contributed to such deposits:
1. A cash deposit of 1,00,000.00 was made on 22-04-
2009 at Goreswar branch.
II. A cash deposit of ₹ 1,50,000.00 was made on 08-08-
2009 at Goreswar branch.
III. A cash deposit of 55,000.00 was made on 30-05-
2009 at Goreswar branch.
Page 4 of 32

ALLEGATION NO.4
It is observed that an amount of 2,70,000.00 had been
disbursed in Term Loan Account. No. 30784409642 of
Shri Hareswar Rajbongshi on 05/06/2009 and credited
to his Savings Bank account No. 30761090144. On 06-
06-2009 you No. 30761090144 of Sri Rajbongshi by
₹ 200000.00 and diverted/ transferred this amount had
debited the Savings Bank Account of 2200000.00 to
your joint account no. 10044332725 with your wife,
Smt. Dipa Koch, under your ID No. 1952862. Thus, you
had misappropriated the bank's fund and defrauded
the Bank by such act of misappropriation.
ALLEGATION NO.5
The above irregularity was glaring example of total
misuse of official powers vested on you by the Bank..
Taking advantage, of your position as Branch Manager,
you had resorted to embezzlemem of funds from
borrowers accounts to your own joint account with
malafide intention.
ALLEGATION NO.6
Due to alleged lapses/ irregularities on your part as
mentioned in allegation no.1, you have defrauded the
bank and the bank has suffered a loss of
13,32,200.00.”
5] Pursuant to the charge-sheet, the petitioner submitted his
reply. As the disciplinary authority was not satisfied with the
explanation furnished by him, a departmental enquiry was
instituted. The Enquiry Officer submitted his report on
29.12.2012, which was forwarded to the petitioner by the
disciplinary authority by letter dated 30.01.2013 for submission
of his comments. Thereafter, the appointing authority, by letter
dated 24.04.2013, proposed to impose upon the petitioner the
major penalty of dismissal from service and afforded him an
opportunity of personal hearing on 04.05.2013 in respect of the
proposed penalty. The appointing authority, by order dated
31.05.2013, thereafter imposed the penalty of dismissal from
service. The petitioner preferred an appeal before the appellate
Page 5 of 32

authority, which, by order dated 20.11.2013, dismissed the
appeal and affirmed the order of dismissal.
6] Aggrieved thereby, the petitioner approached this Court
by way of WP(C) No. 3748/2014, principally contending that he
had not been afforded an opportunity to cross-examine Shri
Hareswar Rajbongshi, an account holder of the Bank, in whose
account the petitioner had allegedly deposited an amount of
Rs.2,00,000/-. This Court, by judgment and order dated
07.06.2016, upon consideration of the matter, noticed that the
petitioner ought to have been afforded an opportunity to
produce and examine the said witness, whose evidence could
have a bearing upon the outcome of the disciplinary
proceedings. Accordingly, this Court considered it appropriate
to dispose of the writ petition by directing the respondents to
conduct/continue the disciplinary proceedings by examining the
said witness. It was further directed that the petitioner be given
notice to appear on the date fixed for examination of the said
witness and that the Enquiry Officer thereafter submit a fresh
enquiry report and bring the proceedings to their logical
conclusion. Consequently, the earlier enquiry report dated
01.06.2013 and the appellate order dated 20.11.2013 were set
aside. This Court further clarified that the disciplinary
proceedings would continue from the stage of examination of
the aforesaid witness and would be completed within three
months from the date of receipt of the certified copy of the
order. In view of the aforesaid direction, the respondents were
also directed to reinstate the petitioner in service, with liberty to
Page 6 of 32

place him under suspension until completion of the disciplinary
proceedings and final decision thereon.
7] It appears that the respondents preferred a writ appeal
against the aforesaid judgment and order of the learned Single
Judge. However, subsequently, on 28.04.2017, the respondents
sought permission to withdraw the writ appeal with liberty to
pursue the remedy of review. The writ appeal was accordingly
dismissed as withdrawn by order dated 28.04.2017.
8] As the petitioner was not reinstated in terms of the order
dated 07.06.2016, he was compelled to institute Cont.Cas(C)
No. 383/2017 alleging non-compliance with the aforesaid order.
During the pendency of the contempt proceeding, the petitioner
was reinstated in service. It was also brought to the notice of
the Court that the disciplinary proceedings had, in the
meantime, been concluded and a final order of dismissal from
service had been passed. In view thereof, the contempt
proceeding was closed by order dated 23.03.2018.
9] In continuation of the disciplinary proceedings pursuant to
the judgment and order dated 07.06.2016, the petitioner’s
witness, Shri Hareswar Rajbongshi, was examined on
14.07.2017. On the same date, the Presenting Officer supplied
the prosecution documents, marked as P.Ex-1 to P.Ex-9, and
the petitioner submitted his defence document, marked as
Defence Exhibit-1. Upon taking the aforesaid documents on
record, the proceedings continued in respect of charge Nos. 2
and 4. Thereafter, the enquiry was treated as concluded and
the matter was posted for submission of written briefs.
Page 7 of 32

10] Upon submission of the written briefs by the respective
parties, the Enquiry Officer submitted his report holding charge
Nos. 2 and 4 to have been proved. The Disciplinary Authority,
agreeing with the findings of the Enquiry Officer, by order
dated 16.08.2017, called upon the petitioner to submit his
comments. At that stage, the petitioner, by letter dated
14.09.2017, brought to the notice of the Disciplinary Authority
that although this Court had set aside the earlier enquiry report
and directed continuation of the disciplinary proceedings from
the stage of examination of the aforesaid witness, the Enquiry
Officer had recorded findings only in respect of two charges out
of the total six charges. The petitioner accordingly contended
that the enquiry had not been completed in terms of the
direction of this Court.
11] The Disciplinary Authority, noticing that no findings had
been recorded in respect of charge Nos. 1, 3, 5 and 6, by letter
dated 26.10.2017 remitted the matter to the Enquiry Officer for
completion of the enquiry in respect of the remaining charges
and for submission of a complete report in respect of all the
charges contained in the charge-sheet dated 10.07.2012. The
petitioner, upon noticing that the remand was confined to
charge Nos. 1, 3, 5 and 6, raised an objection by letter dated
16.12.2017. It was contended that the six charges were
interconnected and that continuation of the enquiry only in
respect of charge Nos. 1, 3, 5 and 6, while allowing the findings
already recorded in respect of charge Nos. 2 and 4 to remain
undisturbed, would cause serious prejudice to him. According to
the petitioner, the Enquiry Officer, having already recorded
Page 8 of 32

findings of guilt in respect of charge Nos. 2 and 4, would
approach the remaining charges with a pre-determined mind
and the petitioner would consequently be deprived of a fair
opportunity to defend himself.
12] The disciplinary proceedings thereafter continued. The
Enquiry Officer ultimately submitted a further report holding the
petitioner guilty of all the charges. The said report was
forwarded to the petitioner by the Disciplinary Authority for his
comments. The petitioner submitted his response thereto. The
Disciplinary Authority, upon consideration of the enquiry report,
the petitioner’s statement of defence and the materials
available on record, held that the petitioner had failed to
discharge his duties with utmost integrity, honesty, devotion
and diligence and had thereby violated Rules 51 and 54 of the
Service Rules, 1992. By order dated 31.01.2018, the
Disciplinary Authority imposed upon the petitioner the penalty
of “Dismissal” in terms of Rule 67(j) of the Service Rules, 1992.
It was further directed that the period of suspension of the
petitioner would be treated as period not spent on duty. The
petitioner preferred an appeal under Rule 69(1) and (2) of the
Service Rules, 1992. The appellate authority, by order dated
11.06.2018, dismissed the appeal and affirmed the penalty of
dismissal from service. Aggrieved thereby, the petitioner has
approached this Court by the present writ petition.
13] Mr. S Bharali, learned counsel appearing for the
petitioner, submits that the disciplinary proceedings conducted
after the earlier enquiry report had been set aside by this Court
were conducted in complete disregard of the principles of
Page 9 of 32

natural justice and Rule 68 of the Service Rules, 1992. It is
submitted that the respondents proceeded with a pre-
determined approach and failed to afford the petitioner a fair
and reasonable opportunity of defence. He submits that on
14.07.2017, when the petitioner’s witness was examined and
cross-examined, the Enquiry Officer recorded that the enquiry
was over. Thereafter, the Enquiry Officer submitted a report
recording findings only in respect of charge Nos. 2 and 4. It
was only after the petitioner pointed out the aforesaid defect
that the Disciplinary Authority remitted the matter to the
Enquiry Officer, but even then confined the remand to charge
Nos. 1, 3, 5 and 6. According to the learned counsel, such
partial remand was itself impermissible because the charges
were interconnected and the findings already recorded in
respect of charge Nos. 2 and 4 were likely to influence the
Enquiry Officer while considering the remaining charges.
14] Learned counsel further submits that when the matter
was taken up on 16.12.2017, the petitioner informed the
Enquiry Officer that his defence representative was not
available and sought an adjournment. The matter was
accordingly fixed for 20.12.2017, with a direction to the
petitioner to appear along with his defence representative and
witness. However, on 20.12.2017, the petitioner, owing to
illness, could not appear. In his absence, the Presenting Officer
produced two witnesses, namely, Shri Diganta Kumar Rabha,
Branch Manager, Pandu Port Branch, and Shri Tultul Kumar
Das, Branch Manager, Goreswar Branch. The said witnesses
were examined and documents marked as P.Ex-10 and P.Ex-11
Page 10 of 32

were introduced through them. As the petitioner was absent,
he had no opportunity to cross-examine the said witnesses. It is
submitted that though the Enquiry Officer subsequently stated
that the evidence of those two witnesses could not be relied
upon as they had not been subjected to cross-examination, the
documents exhibited through them were nevertheless taken
into consideration. Learned counsel submits that merely
furnishing copies of the documents subsequently could not cure
the fundamental defect arising from the denial of an
opportunity to cross-examine the witnesses through whom the
documents had been introduced.
15] Learned counsel further submits that the petitioner’s
witness, Shri Hareswar Rajbongshi, after giving evidence in
favour of the petitioner, submitted a letter dated 09.01.2018
retracting his earlier statement. The said letter was admittedly
received after the petitioner had submitted his written brief and
after the evidentiary stage of the enquiry had concluded. The
letter was never furnished to the petitioner and no opportunity
was afforded to him to explain the circumstances in which the
witness had allegedly retracted his evidence. The witness was
also not recalled for examination or cross-examination.
16] It is therefore submitted that the Enquiry Officer, by
relying upon the said undisclosed letter to discredit the
petitioner’s sole defence witness, relied upon material behind
the back of the petitioner and thereby caused grave prejudice
to him. The petitioner had specifically approached this Court in
the earlier round of litigation for the purpose of examining the
said witness, and the subsequent reliance upon an undisclosed
Page 11 of 32

retraction letter to negate the evidence of that witness, without
affording the petitioner an opportunity to deal with it, rendered
the entire enquiry unfair. He further submits that Rule 68 of the
Service Rules, 1992 requires reasonable notice regarding the
evidence and materials to be relied upon by the management.
In support of the aforesaid submission, the learned counsel for
the petitioner relies upon the following decisions: —
(i) Samarandra Kishore Endow v. State Bank of
India , reported in (1992) 1 GLR 407 ;
(ii) Kashinath Dikshita v. Union of India , reported in
(1986) 3 SCC 229 ;
(iii) Santosh Kumar Singh v. Union of India , reported
in (2018) 6 GLR 232 ; and
(iv) Hiren Chandra Talukdar v. State of Assam ,
reported in (2016) 4 GLR 170 .
17] Per contra, Mr. G Jalan, learned counsel appearing for the
respondents, while vehemently opposing the submissions made
on behalf of the petitioner, submits that the disciplinary
proceedings were conducted fairly and transparently and that
the petitioner was afforded adequate opportunity at every
stage. It is contended that the petitioner was fully aware of the
date of enquiry but, without sufficient justification, remained
absent on 20.12.2017. The Presenting Officer and the
prosecution witnesses were present on that date and the
proceedings were accordingly continued. It is submitted that
the documents marked as P.Ex-10 and P.Ex-11 were not
Page 12 of 32

documents newly created for the purpose of the enquiry, but
were documents already forming part of the records. It is
further pointed out that on the subsequent date of hearing, i.e.
26.12.2017, the petitioner was supplied the minutes of the
proceedings held on 20.12.2017 and specifically stated that he
was satisfied with the proceedings. He further admitted the
genuineness of the documents and stated that he had no
objection to their being taken on record. Learned counsel
therefore submits that the petitioner, having expressly accepted
the genuineness of the documents and having stated that he
was satisfied with the proceedings, cannot subsequently
contend that the documents were introduced in violation of the
principles of natural justice. Reliance is placed upon the
judgment of the Apex Court in State Bank of Patiala v. S.K.
Sharma , reported in (1996) 3 SCC 364 .
18] It is further submitted that the subsequent retraction
letter dated 09.01.2018 was relevant only for assessing the
credibility of the petitioner’s witness and was not the sole basis
for holding the petitioner guilty. According to the respondents,
even if the said letter were to be excluded from consideration,
the remaining materials on record were sufficient to establish
the charges against the petitioner.
19] Learned counsel further submits that where the
Disciplinary Authority agrees with the findings of the Enquiry
Officer, it is not necessary for the Disciplinary Authority to
independently record elaborate reasons beyond expressing its
concurrence. Reliance in this regard is placed upon the decision
Page 13 of 32

of the Apex Court in K.L. Tripathi v. State Bank of India ,
reported in (1984) 1 SCC 43 .
20] I have given my thoughtful consideration to the
submissions advanced by the learned counsel appearing for the
parties and have carefully perused the materials available on
record. The authorities cited at the Bar have also been duly
considered.
21] The controversy in the present case has to be examined
keeping in mind the peculiar course of the disciplinary
proceedings and, in particular, the directions issued by this
Court in the earlier round of litigation.
22] The earlier enquiry proceedings were set aside by this
Court with a specific direction that the disciplinary proceedings
would continue from the stage of examination of Shri Hareswar
Rajbongshi, whose evidence was considered material to the
defence of the petitioner. The direction was not merely to
permit the petitioner to produce the witness as a matter of
formality; rather, the very purpose of the remand was to afford
the petitioner an effective opportunity to establish his defence
by examining the said witness and thereafter for the Enquiry
Officer to submit a fresh report.
23] Pursuant to the aforesaid direction, Shri Hareswar
Rajbongshi was examined on 14.07.2017. The petitioner
thereafter submitted his defence. The Enquiry Officer, however,
treated the enquiry as concluded and submitted a report
recording findings only in respect of charge Nos. 2 and 4. The
petitioner brought this defect to the notice of the Disciplinary
Page 14 of 32

Authority. The Disciplinary Authority thereafter remitted the
matter to the Enquiry Officer for consideration of the remaining
charge Nos. 1, 3, 5 and 6. The petitioner objected to such
partial remand on the ground that the charges were
interconnected and that the findings already recorded in
respect of charge Nos. 2 and 4 could prejudice the
consideration of the remaining charges.
24] This Court need not determine whether the aforesaid
objection, by itself, is sufficient to vitiate the subsequent
proceedings, since the enquiry is otherwise found to be
fundamentally flawed on account of the reliance placed by the
Enquiry Officer on material which was not disclosed to the
petitioner.
25] It is apparent from the enquiry proceedings that on
16.12.2017 the petitioner informed the Enquiry Officer that his
defence representative was not available and sought an
adjournment. The matter was accordingly fixed for 20.12.2017
with a direction to the petitioner to appear along with his
defence representative and witnesses. On 20.12.2017, the
petitioner was absent. The Presenting Officer, however,
appeared along with two prosecution witnesses, namely, Shri
Diganta Kumar Rabha and Shri Tultul Kumar Das. The
proceedings were continued in the absence of the petitioner.
The said witnesses were examined and documents marked
P.Ex-10 and P.Ex-11 were introduced.
26] The first question which arises for consideration is
whether the reliance upon P.Ex-10 and P.Ex-11, which were
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introduced through the said two prosecution witnesses
examined on 20.12.2017 in the absence of the petitioner,
vitiates the disciplinary proceedings.
27] It is true that the two prosecution witnesses, namely, Shri
Diganta Kumar Rabha and Shri Tultul Kumar Das, were
examined on 20.12.2017 when the petitioner was absent and,
consequently, the petitioner had no opportunity to cross-
examine them. The Enquiry Officer, conscious of this position,
did not take into consideration the statements of the said
witnesses while arriving at its findings. To that extent, the
grievance of the petitioner cannot be said to be without
substance. However, the position with regard to P.Ex-10 and
P.Ex-11 stands on a different footing. The said documents,
though exhibited through the aforesaid prosecution witnesses,
were thereafter furnished to the petitioner along with the
minutes of the proceedings dated 20.12.2017. On 26.12.2017,
when the petitioner was present, he was specifically asked
whether he had received the proceedings and whether he was
satisfied therewith. The petitioner answered in the affirmative.
He was further specifically asked with regard to the documents
marked P.Ex-1 to P.Ex-11 and categorically stated that he had
no doubt regarding the genuineness of the documents and
accepted the same.
28] In the aforesaid circumstances, the fact that the oral
testimony of the two prosecution witnesses was not taken into
consideration cannot, by itself, render P.Ex-10 and P.Ex-11
incapable of consideration. The petitioner’s express admission
as to the genuineness of the documents removes the
Page 16 of 32

requirement of proving their authenticity through the testimony
of the witnesses who had exhibited them. The petitioner,
having thereafter accepted the documents as genuine, cannot
contend that the documents were wholly inadmissible merely
because the witnesses through whom they had been exhibited
were not subjected to cross-examination.
29] At the same time, an admission regarding the
genuineness or authenticity of a document cannot necessarily
be treated as an admission of the truth of every fact or
assertion contained therein. The evidentiary value of the
documents would depend upon their nature, contents and the
purpose for which they were relied upon. The question,
therefore, is not whether the documents could at all be taken
on record, but whether their contents were capable of
establishing the particular facts for which reliance was placed
upon them, having regard to the other evidence available on
record.
30] In the present case, however, the Enquiry Officer did not
rely upon the statements of the two prosecution witnesses who
had been examined in the petitioner’s absence. The petitioner
was subsequently furnished with P.Ex-10 and P.Ex-11 and
expressly accepted their genuineness. No objection was raised
by him to the documents being taken on record. Thus, insofar
as the introduction and consideration of P.Ex-10 and P.Ex-11
are concerned, the petitioner has failed to demonstrate any
prejudice sufficient to vitiate the disciplinary proceedings. The
first question is accordingly answered against the petitioner.
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31] The second question that arises for consideration,
however, stands on an entirely different footing, namely,
whether the Enquiry Officer was justified in taking into
consideration the letter dated 09.01.2018, purportedly
submitted by Shri Hareswar Rajbongshi retracting the evidence
earlier given by him in favour of the petitioner, without
furnishing a copy thereof to the petitioner or affording him an
opportunity to explain or controvert the same. The enquiry
report discloses that after the petitioner had submitted his
written brief on 08.01.2018, the Enquiry Officer received a
letter dated 09.01.2018 from Shri Hareswar Rajbongshi, the
witness whom the petitioner had examined pursuant to the
specific direction of this Court. By the said letter, the witness
purportedly retracted the evidence which he had earlier given in
favour of the petitioner. Admittedly, the said letter was never
furnished to the petitioner during the disciplinary proceedings.
The petitioner was not informed that his witness had allegedly
retracted his evidence. No opportunity was afforded to the
petitioner to respond to the contents of the letter. The witness
was not recalled for examination or cross-examination.
Nevertheless, the Enquiry Officer took the said letter into
consideration while assessing the credibility of the witness and
ultimately treated his evidence as unreliable.
32] The significance of the aforesaid letter cannot be
understated. The petitioner’s examination of Shri Hareswar
Rajbongshi was not an incidental event in the disciplinary
proceedings. It was the very subject matter of the earlier
litigation before this Court. This Court had interfered with the
Page 18 of 32

earlier disciplinary proceedings because the petitioner had not
been afforded an effective opportunity to examine the said
witness. The proceedings were specifically remitted so that the
petitioner could examine him and the Enquiry Officer could
consider his evidence while arriving at a fresh conclusion.
33] Having regard to the aforesaid background, once the
witness subsequently addressed a letter retracting his earlier
evidence, and the Enquiry Officer intended to rely upon that
letter while assessing the witness’s credibility, elementary
fairness required that the said material be brought to the notice
of the petitioner and that he be afforded an opportunity to deal
with it.
34] The respondents contend that the said letter was merely
an internal communication and was considered only for the
purpose of assessing the credibility of the witness. The
contention cannot be accepted. The test is not whether the
letter was formally treated as an independent piece of
substantive evidence. The relevant question is whether the
material was taken into consideration in arriving at an adverse
conclusion against the delinquent officer and whether the
delinquent was afforded an opportunity to meet the same. The
answer is clearly in the negative.
35] The Enquiry Officer expressly took note of the subsequent
retraction and treated the witness as not bona fide and
unreliable on that basis. Thus, the letter formed part of the
reasoning by which the petitioner’s defence evidence was
discredited. Once the material was used for such purpose, the
Page 19 of 32

petitioner was entitled to know of its existence and contents
and to have an opportunity to explain or controvert it.
36] The principle of audi alteram partem is not confined to
the initial stage of the enquiry. It operates throughout the
disciplinary process wherever material adverse to the
delinquent is proposed to be relied upon. A delinquent officer
cannot be expected to meet material of which he has no
knowledge. The position is particularly serious in the present
case because the letter was received after the petitioner had
submitted his written brief. Thus, the evidentiary stage had
effectively come to an end. The petitioner had already
formulated and presented his defence on the basis of the
material then available to him. The subsequent receipt of a
letter from his witness retracting his evidence materially altered
the evidentiary position. The petitioner was entitled to an
opportunity to address that changed situation.
37] The Enquiry Officer could not, without informing the
petitioner, take the subsequent retraction into consideration
and then use it to discard the evidence of the witness whose
examination had been specifically directed by this Court.
38] The prejudice caused to the petitioner is also apparent
from the record itself. The Enquiry Officer treated Shri
Hareswar Rajbongshi as an unreliable witness on account of the
subsequent letter. Thus, the very evidence which the petitioner
had been permitted to adduce pursuant to the order of this
Court was effectively neutralised on the basis of material which
was never disclosed to him. The respondents seek to contend
Page 20 of 32

that the remaining evidence was sufficient to establish the
charges. That contention cannot cure the procedural infirmity at
the enquiry stage. The Court, while exercising judicial review, is
not required to substitute its own assessment of the evidence
for that of the disciplinary authority. However, where the
decision-making process itself is found to have been
fundamentally unfair and the delinquent has been denied an
opportunity to meet material relied upon against him, the
question of sufficiency of the remaining evidence cannot
retrospectively validate the defective procedure.
39] The reliance placed by the respondents on S.K. Sharma
(supra) is well founded insofar as the general principle is
concerned. It is undoubtedly settled that every procedural
irregularity in a disciplinary enquiry does not, by itself, render
the enquiry or the consequential order of punishment invalid.
The Court is required to examine the nature of the procedural
requirement alleged to have been violated and, where the
complaint relates to a facet of the principles of natural justice,
whether the delinquent officer has, in fact, suffered prejudice or
has been denied a fair hearing. However, the factual setting in
S.K. Sharma (supra) is materially different from the present
case. In that case, the material relied upon against the
delinquent was within his knowledge; he had been associated
with the preliminary investigation, was aware of the factual
basis of the allegations, and had not disputed the facts or
questioned the credibility of the persons or the material upon
which the charges were founded. It was in that background
that the Apex Court held that the absence of a particular
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opportunity of cross-examination had not caused real
prejudice. In the present case, the position is entirely different.
The material relied upon by the Enquiry Officer to discredit the
petitioner’s defence witness came into existence only after the
petitioner had completed his evidence and submitted his written
brief. The letter dated 09.01.2018, by which the witness
purportedly retracted his earlier evidence, was admittedly never
disclosed to the petitioner. He was neither informed of the
retraction nor afforded any opportunity to explain or controvert
its contents, or to seek recall of the witness. The said material
was nevertheless taken into consideration by the Enquiry
Officer for the specific purpose of assessing the credibility of
the very witness whose examination had been permitted
pursuant to the earlier order of this Court. The prejudice,
therefore, is not founded upon the mere denial of a formal
procedural opportunity. It arises from the fact that material
adverse to the petitioner’s defence was introduced after closure
of the evidence, remained undisclosed to him, and was
thereafter used to discredit his defence evidence without
affording him an opportunity to meet it. In such circumstances,
the petitioner cannot be said to have had a fair and effective
opportunity to defend himself. The principle in S.K. Sharma
(supra), therefore, while applicable as to the test to be applied,
does not assist the respondents on the facts of the present
case.
40] In the present case, the prejudice is not illusory or
technical. The petitioner was kept completely unaware of the
subsequent retraction of his sole defence witness. The material
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was received after closure of evidence and after submission of
his written brief. It was thereafter relied upon by the Enquiry
Officer to discredit that witness. The petitioner was not afforded
any opportunity to explain the circumstances of the retraction,
to challenge its contents, or to seek recall of the witness. The
omission therefore goes to the fairness of the decision-making
process itself.
41] It is trite law that a disciplinary enquiry is quasi-judicial in
nature and must conform to the requirements of fairness and
reasonable opportunity. The Enquiry Officer is required to act
fairly and objectively and cannot rely upon material which has
not been disclosed to the delinquent where such material is
capable of influencing the determination of guilt.
42] The requirement of a reasonable opportunity to defend is
also embedded in the procedure prescribed for a disciplinary
enquiry under Rule 68 of the Service Rules, 1992. Rule 68 (xiv)
specifically provides that before the closure of the case in
support of the charges, the enquiring authority may, in its
discretion, allow the Presenting Officer to produce evidence not
included in the charge sheet or may itself call for new evidence
or recall or re-examine any witness. In such an event, the
officer is required to be given an opportunity to inspect the
documentary evidence before it is taken on record and to cross-
examine a witness who has been so summoned. The provision,
thus, expressly safeguards the delinquent’s right to meet
subsequent evidence introduced into the enquiry. Rule 68 (xvi)
similarly provides that after the case in support of the charges
is closed, the evidence on behalf of the officer may be
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produced, and his witnesses may be examined, with the
Presenting Officer being afforded an opportunity of cross-
examination. The scheme of the rule therefore mandates that
parties are made fully aware of the material being brought on
record and are afforded an opportunity to deal with it.
43] In Tirlok Nath v. Union of India , reported in 1960
Supreme(SC) 263 , the Apex Court held that a delinquent must
have access to material which is relevant to the charge and
necessary for an effective defence. Relevant paragraph of the
aforesaid judgment read as under: -
“Had he decided to do so, the documents would have
been useful to the appellant for Cross examining the
witnesses who deposed against him. Again had the
copies of the documents been furnished to the appellant
he might, after perusing them, will have exercised his
right under the rule and asked for an oral inquiry to be
held. The reefer, in our view the failure of the Inquiry
Officer to furnish the appellant with copies of the
documents such as the first information report and the
statements recorded at the Shidipura house and during
the investigation must be held to have caused prejudice
to the appellant in making his defence at the Inquiry.
The inquiry held must, in these circumstances, be
regarded as one in violation cot only of r. 55 but also of
Art. 311 (2). Accordingly we quash the order of removal
of the appellant from service passed by the Chief
Commissioner of Delhi. The costs of this appeal shall be
paid by the respondent to the appellant.”
44] The aforesaid principle was reiterated by the Apex Court
in Kashinath Dikshita (supra), wherein the Apex Court, upon
finding that the delinquent had sought copies of the statement
of witnesses and other documents that were relied upon in the
disciplinary proceedings, emphasized that the delinquent is
entitled to have access to the documents and statement that
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are relevant to the charges and that are necessary to enable
him to effectively cross-examine the witnesses and make his
defence. It was further observed therein that the denial of such
documents must be examined in the context of whether the
delinquent was thereby deprived of a reasonable opportunity of
defending himself, and such a question of whether there has
been a denial of reasonable opportunity necessarily depends
upon the facts and circumstances of the peculiar case. Relevant
paragraphs of the aforesaid judgment read as under: -
“11. Be that as it may, even without going into minute
details it is evident that the appellant was entitled to
have an access to the documents and statements
throughout the course of the inquiry. He would have
needed these documents and statements in order to
cross-examine the 38 witnesses who were produced at
the inquiry to establish the charges against him. So also
at the time of arguments, he would have needed the
copies of the documents. So also he would have needed
the copies of the documents to enable him to effectively
cross-examine the witnesses with reference to the
contents of the documents, it is obvious that he could
not have done so if copies had not been made available
to him. Taking an overall view of the matter we have no
doubt in our mind that the appellant has been denied a
reasonable opportunity of exonerating himself. We do
not consider it necessary to quote extensively from the
authorities cited on behalf of the parties, beyond making
passing reference to some of the citation, for, whether or
not there has been a denial to afford a reasonable
opportunity in the backdrop of this case must
substantially depend upon the facts pertaining to this
matter.”
45] It is also apposite to refer to the decision of the Apex
Court in Santosh Kumar Singh (supra), wherein the Apex
Court, having applied the aforesaid principles enunciated in
Tirlok Nath (supra) and Kashinath Dikshita (supra), held
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that non-furnishing of relevant documents deprived the
delinquent of an effective opportunity to cross-examine the
witnesses and to establish his defence in the facts of that case
wherein relevant documents, including earlier statements of a
material witness and the investigator’s report, had not been
furnished to the delinquent. The Apex Court further emphasized
that an Enquiry Officer, while acting in a quasi-judicial capacity,
is required to function as an independent adjudicator and
cannot assume the role of the Presenting Officer or otherwise
act in a manner designed to secure a particular result. It was in
this context that the Apex Court held the Enquiry to be vitiated
where the procedure adopted had materially affected the
fairness of the adjudication.
46] In Hiren Chandra Talukdar (supra), in the context of
that case where the Enquiry Officer had considered documents
that were not included in the list of documents and also
examined a person who was not named as a witness, it was
held that evidence, whether documentary or oral, which is
sought to be relied upon in a departmental enquiry must be
made known to the delinquent in advance so that he is not
taken by surprise. The Apex Court, accordingly, held this
requirement as a facet of fair procedure and, consequently, of
the principle of natural justice. Relevant paragraphs of the
aforesaid judgment read as under: -
“23. It is necessary that evidence, both documentary
and oral, which are sought to be relied upon in a
departmental enquiry against a Government servant,
should be made known to him in advance so that the
Government servant, who is proceeded against, is not
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taken by surprise. This is a facet of fair procedure and
by extension a part of the principles of natural justice.”
47] The aforesaid decisions, read together undoubtedly, do
not lay down an inflexible proposition that every departure from
the prescribed procedure would invariably vitiate a disciplinary
proceeding. However, what flows from the aforesaid decisions
is that the delinquent must have a reasonable and effective
opportunity to meet the material which is proposed to be relied
upon against him. Where material is introduced or comes to the
knowledge of the Enquiry Officer subsequently and is thereafter
used in a manner adverse to the delinquent, fairness requires
that such material be disclosed to him and that he be afforded
an opportunity to deal with the same.
48] The facts of the present case fall squarely within this
principle. The letter dated 09.01.2018 was not a part of the
material available to the petitioner at any relevant point of time
of the enquiry proceeding nor when he submitted his written
brief on 08.01.2018. The letter admittedly came into existence
after the evidentiary stage had concluded and purported to
retract the evidence which the witness had earlier given in
support to the petitioner’s defence. The Enquiry Officer
thereafter took the letter into consideration and, on that basis,
treated the witness as unreliable. The petitioner, however, was
never informed of the said letter nor was a copy thereof
furnished to him. He was not afforded an opportunity to explain
the circumstances in which the witness had purportedly
retracted his evidence to controvert the contents of the letter or
to seek to recall the witness for the purpose of further
Page 27 of 32

examination. Thus, the material which was subsequently used
to discredit the petitioner’s defence witness was never placed
before the petitioner. The distinction between the present case
and the cases where the Court has declined to interfere on
account of the absence of demonstrated prejudice is therefore
material. In the present case, the petitioner was not merely
denied access to a document which was material to the
proceeding; the said undisclosed material went directly to the
credibility of the sole defence witness whose examination had
been specifically permitted pursuant to the earlier order of this
Court. The material was received after the petitioner had
completed his evidence and submitted his written brief and was
thereafter used by the Enquiry Officer to discard that evidence.
In such circumstances the prejudice to the petitioner is inherent
in the procedure accepted. The petitioner cannot be accepted
to demonstrate what explanation he would have offered to a
document of which he had no knowledge or what course he
would have adopted had the alleged retraction been disclosed
to him. What is material is that he was denied the opportunity
to deal with a subsequent development which directly affected
his defence.
49] The reliance placed by the respondents on K.L. Tripathi
(supra) is clearly distinguishable on the facts of the present
case. In K.L. Tripathi (supra), the materials gathered during
the preliminary investigation were subsequently shown to the
delinquent officer, the factual basis of the allegations was not
disputed by him, and he did not question the veracity or
credibility of the persons whose statements or information
Page 28 of 32

formed the basis of the proceedings. He was also afforded an
opportunity to furnish his explanation and did not seek an
opportunity to cross-examine the persons concerned. It was in
that factual setting that the Apex Court held that the absence
of a formal opportunity of cross-examination had not caused
any real prejudice. Significantly, the Apex Court itself observed
that had the delinquent denied any of the facts or questioned
the credibility of the persons who had furnished the information
against him, refusal to afford an opportunity to cross-examine
them or to lead evidence in rebuttal would have been necessary
and denial of such opportunity would have been fatal. The facts
of the present case stand on an entirely different footing and
hence, are of no relevance. In the present case, the petitioner
was not a person who had accepted the factual basis of the
material relied upon against him or had declined to challenge
the credibility of the person concerned, unlike the facts of that
case. On the contrary, the very credibility of his defence
witness was put in issue by material which came into existence
after the closure of the evidence and which was never brought
to his notice. Hence, the principle in K.L. Tripathi (supra) that
there must be demonstrable prejudice, does not assist the
respondents; rather, the factual distinction recognised in that
very decision supports the petitioner’s case that, where the
credibility of a witness is in issue, an effective opportunity to
meet the material affecting such credibility is an essential
component of fair play.
50] The cumulative effect of the aforesaid circumstances
leads this Court to the conclusion that the disciplinary enquiry,
Page 29 of 32

after the receipt of the retraction letter dated 09.01.2018, was
not conducted in accordance with the principles of natural
justice. The Enquiry Officer relied upon material adverse to the
petitioner without furnishing the same to him and without
affording him an opportunity to explain, rebut or otherwise deal
with the same. The defect is substantive and has caused
demonstrable prejudice to the petitioner.
51] Once the disciplinary enquiry is found to have been
vitiated on account of violation of the principles of natural
justice, the consequential orders founded upon such enquiry
cannot be sustained. The Enquiry Report dated 11.01.2018, the
order of dismissal dated 31.01.2018 passed by the Disciplinary
Authority and the appellate order dated 11.06.2018 are,
accordingly, liable to be interfered with.
52] Accordingly, the Enquiry Report dated 11.01.2018
submitted by the Enquiry Officer (respondent No. 4), the order
dated 31.01.2018 passed by the Disciplinary Authority
(respondent No. 2), whereby the petitioner was dismissed from
service under Rule 67(j) of the Service Rules, 1992, and the
appellate order dated 11.06.2018 passed by the Appellate
Authority (respondent No. 1) are hereby set aside and quashed.
53] It is, however, noticed that the petitioner attained the age
of superannuation on 31.10.2021. Consequently, a direction for
reinstatement in service is neither necessary nor feasible at this
stage. The petitioner shall be treated as having continued in
service, notionally, up to 31.10.2021, for the purpose of
determining his service and retiral entitlements.
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54] The disciplinary proceedings against the petitioner having
been initiated while he was in service, the respondents shall be
at liberty, if otherwise permissible under Rule 19(3) of the
Service Rules, 1992, to continue and conclude the disciplinary
proceedings in accordance with law. Any such proceeding shall
be conducted from the stage at which the petitioner is required
to be afforded a fair and effective opportunity to adduce and
establish his defence, keeping in view the directions contained
in the earlier judgment and order dated 07.06.2016 passed in
WP(C) No. 3748/2014.
55] In conducting such enquiry, the respondents shall ensure
that all material sought to be relied upon against the petitioner
is duly disclosed to him and that he is afforded reasonable
opportunity to examine and cross-examine witnesses and to
respond to any subsequent material which may have a bearing
upon the determination of the charges. The disciplinary
proceedings shall thereafter be concluded strictly in accordance
with law and without being influenced by the findings recorded
in the enquiry reports or orders which have been set aside by
this Court.
56] The petitioner’s retiral and other consequential service
benefits shall be determined in accordance with the applicable
Rules and shall abide by the final outcome of the disciplinary
proceedings, if continued under Rule 19(3). The respondents
shall thereafter pass appropriate orders regarding such benefits
in accordance with law.
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57] The aforesaid exercise shall be completed within a period
of four months from the date of receipt of a certified copy of
this order.
58] Accordingly, the writ petition stands allowed.

JUDGE
Comparing Assistant
Digitally
signed by
Pranab Kumar
Deka
Date:
2026.08.26
18:39:54
+05'30'

Pranab
Kumar
Deka
Page 32 of 32