5 reasons why Gauhati High Court called action against cop an “empty ritual”

Case: Prisoner escape, court trial, removed from service

• The petitioner was working as an unarmed branch constable (UBC) under the superintendent of police when the petitioner, along with other personnel who were tasked to escort a few under-trial prisoners to the National Investigation Agency Court.
• While returning, two of the undertrial prisoners managed to escape from the police van, and in the attempt to stop them, one of them sustained bullet injuries and later expired.
• The petitioner was arrested based on the FIR in July 2016, and he was released on bail in August 2016.
• The trial court, by its January 2023 order, acquitted the petitioner along with other persons accused of the charges levelled and set them at liberty.

• In between, the petitioner was served with a show-cause notice in September 2016, issued by the superintendent of police concerned, requiring him to show cause as to why penalties prescribed in the relevant rules in the show-cause itself should not be inflicted upon him.
• Later, the petitioner replied to the same, following another show cause notice.
• Following the disciplinary enquiry conducted in the matter, the petitioner was removed from service in February 2018, with the suspension period between July 2016 and December 2016 being treated as a period spent on duty.
• The petitioner filed the present plea seeking the quashing of the order dated 2018 by which the petitioner was removed from his services, and as consequential relief, for restoration in service and payment of back wages.

5 reasons for reinstating constable

1. The whole act of the disciplinary authority in declaring that the charge levelled against the petitioner for his gross misconduct has been proved beyond a reasonable doubt displays that they had made up their mind on the guilt of the petitioner even before the petitioner could have the opportunity to raise a grievance against the proceedings of the enquiry
2. The petitioner had not had an adequate opportunity to represent against the enquiry report, which found him guilty and which already stood accepted by the disciplinary authority even before the petitioner could represent against the same.
3. The disciplinary authority has come to a specific finding that the petitioner had provided the undertrial prisoners with a pain relief spray. However, none of the witnesses has made a statement that the petitioner had provided the pain removal spray to the undertrial prisoners.
4. There is no evidence that the petitioner had allowed the undertrial prisoners access to the pain relief spray; rather, there were specific statements that the officer commanding the escort party had allowed the undertrial prisoners to buy the pain relief spray.
5. The period of absence from the date of termination till the date of reinstatement of the petitioner should be taken up as continued service for all purposes, including seniority and pension, etc.

Court’s analysis of disciplinary authority’s action

• The first showcase notice issued by the relevant authority appears to be one which has required the petitioner to show cause as to why a penalty should not be imposed upon him, suggesting that the disciplinary authority had pre-conceived the notion about his guilt.
• The show-cause notice issued in the present case requires the petitioner to explain why any of the major penalties should not be imposed on him, not requiring him to show cause as to why he should not be held guilty of the charges levelled.
• There is an absence of specific allegations or acts that were committed by the petitioner, which could have suggested a serious lapse, willful negligence or dereliction of duty on his part.
• The evidence placed on record during the enquiry showed that the officer commanding the escort party had directed the handcuffs to be removed and also allowed the UTP to buy the pain relief spray and not the petitioner.
• The act of the petitioner, where he obeyed the command of a superior officer, cannot form a charge by itself against the petitioner, and no specific act has been attributed to the petitioner which can be considered as misconduct.
• There are shortcomings in the procedure adopted by the enquiry officer concerned, and for which the enquiry report is found to be faulty.
• The second show cause notice issued to the petitioner did not satisfy the requirements of an impartial and effective opportunity of placing his defence against the enquiry report.