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Gauhati High Court
Page No.# 1/7 vs Rudra Chandra Das on 13 August, 2025
Author: M. Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/7
GAHC010221262024
2025:GAU-
AS:10813-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/255/2025
THE VICE CHANCELLOR AND 4 ORS,
GAUHATI UNIVERSITY, GUWAHATI 781014
2: THE REGISTRAR
GAUHATI UNIVERSITY GUWAHATI 781014
3: THE EXECUTIVE COUNCIL
GAUHATI UNIVERSITY
GUWAHATI 781014
4: THE TREASURER
GAUHATI UNIVERSITY
GUWAHATI 781014
5: THE SUPERINTENDENT
ESTABLISHMENT BRNACH
GAUHATI UNIVERSITY GUWAHATI 78101
VERSUS
RUDRA CHANDRA DAS
S/O LATE ANANDA RAM DAS, VILL. KUKURMARA, CHAIGAON, P.S.
CHAIGAON, DIST. KAMRUP, ASSAM, PIN 781134
Advocate for the Petitioner : MR. P J PHUKAN, SC, G U
Advocate for the Respondent : ,
Page No.# 2/7
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HONOURABLE MR. JUSTICE ANJAN MONI KALITA
ORDER
Date : 13-08-2025
(M. Zothankhuma, J)
Heard Mr. P.J. Phukan, learned counsel for the appellants, who submits that
the impugned judgment and order dated 06.09.2024, passed by the learned
Single Judge in WP(C) No.6962/2021, whereby the writ petitioner’s prayer for
setting aside the order terminating his service was allowed, should be set aside.
2. The case of the writ petitioner before the learned Single Judge was that the
order dated 24.09.2020, issued by the Registrar, Gauhati University, terminating
the service of the petitioner by invoking the provisions of Rule 7 of the Assam
Services (Discipline & Appeal) Rules, 1964, read with Rule 46 of the Gauhati
University Employees Service Conditions, Conduct and Appeal Rules, 1970,
should be set aside, inasmuch as, no disciplinary enquiry had been held prior to
terminating the petitioner’s service. Further, the petitioner’s termination from
service had been done under Clause (b) of the second proviso to Article 311(2)
of the Constitution of India, without there being any satisfaction being drawn by
the authorities, to the effect that it was not reasonably practicable to hold a
departmental enquiry against the petitioner in terms of Article 311(2) of the
Constitution of India.
3. The learned Single Judge, on considering the submissions of the parties
and the pleadings, had held that in terms of the judgment of the Hon’ble
Supreme Court in the case of Union of India & Anr. Vs. Tulsiram Patel &
Ors., reported in (1985) 3 SCC 398, the condition precedent for invoking the
provisions of Clause (b) of the second proviso to Article 311(2) of the
Page No.# 3/7
Constitution of India was clearly absent, as there was no reason or satisfaction
recorded, as to why it was not reasonably practicable to hold an enquiry against
the writ petitioner under Article 311(2) of the Constitution of India.
4. The learned Single Judge also observed that neither was the said Clause
(b) of the second proviso to Article 311(2) referred to in any of the orders
passed by the Gauhati University authority, nor in any of the notes put up in the
matter against the petitioner.
5. The learned Single Judge also held that Rule 9(1) of the Assam Services
(Discipline & Appeal) Rules, 1964 prescribed that no order could be imposed on
a delinquent Officer, in respect of any of the penalties specified in Rule 7, except
after an enquiry was held, in the manner provided in the said Rules. The
provisions of Rule 9 of the Assam Services (Discipline & Appeal) Rules, 1964
thus required the holding a departmental proceeding against the delinquent
officer, prior to imposing any penalty under Rule 7 of the said Rules. However,
without following the procedure under Rule 9, which was mandatory in nature,
the respondent authorities had invoked the power under Rule 7, vide the
impugned order dated 24.09.2020, terminating the services of the writ
petitioner.
6. The learned counsel for the appellants, i.e. Gauhati University, submits that
three notices along with one newspaper publication had been served upon the
writ petitioner, informing him to report back for duty, failing which, the same
would invite disciplinary action against him for termination from service. Despite
the above, the writ petitioner continued to remain absent from his duties.
Further, the writ petitioner did not submit any appeal/review application against
the impugned termination order under the provisions of the Gauhati University
Employees Service Conditions, Conduct and Appeal Rules, 1970, prior to
Page No.# 4/7
approaching this Court. He submits that when there is an alternative efficacious
remedy available, the learned Single Judge should not have entertained the writ
petition and should have directed the writ petitioner to approach the
appellate/review authority, in terms of the Gauhati University Rules, for
redressal of his grievance. He further submits that there is no infirmity in
terminating the services of the writ petitioner, in terms of Clause (b) of the
second proviso to Article 311(2) of the Constitution of India, inasmuch as, the
same has been made in line with the judgment of the Hon’ble Supreme Court in
the case of Tulsiram Patel (supra).
7. We have heard the learned counsels for the parties and have also perused
the documents on record.
8. The impugned order dated 24.09.2020 states as follows:-
“OFFICE ORDER
Whereas, Sri Rudra Ch. Das, Cook (utilized as Peon), Establishment
Branch, G.U. has been unauthorizedly absent from his duty since
06.02.2019 till date without any information and have not responded to
the show cause notices issued on 06.05.2019, 23.05.2019 & 26.07.2019
and the newspaper advertisement dated 28.11.2019.
On referring the matter to the Executive Council and pursuant upon
the resolution of the Executive Council meeting held on 12.03.2020 vide
resolution no. R/EC-03/2020/31 and subsequent approval of the Hon’ble
Vice-Chancellor, G.U. dated 02.09.2020, the undersigned in exercise of the
power conferred by Rule 7 of Assam Services (Discipline & Appeal) Rules,
1964 under Rule 46 of Gauhati University Employees Service Conditions,
Conduct and Appeal Rules, 1970 hereby terminates Sri Rudra Ch. Das,
Cook (utilized as Peon), Establishment Branch, G.U. from Gauhati
University service with immediate effect.
Page No.# 5/7
Sd/-
Registrar Gauhati University”
9. A perusal of the impugned order dated 24.09.2020 clearly shows that there
is no satisfaction recorded by the authorities, to the effect that it was not
reasonably practicable to hold a departmental enquiry against the writ
petitioner, to have enabled the appellants to invoke Clause (b) of the second
proviso to Article 311(2) of the Constitution of India.
10. There is nothing on record to show that any satisfaction had been arrived
at by the authorities, to show that they had made a finding to the effect that it
was not reasonably practicable to hold a departmental enquiry against the writ
petitioner in terms of Article 311(2) of the Constitution of India.
11. Paragraph 133 and 134 of the judgment of the Hon’ble Supreme Court in
Tulsiram Patel (supra) clearly provides that the disciplinary authority should
record in writing it’s reasons for it’s satisfaction, that it was not reasonable
practicably to hold an enquiry contemplated under Article 311(2) of the
Constitution of India, prior to imposing a penalty upon the delinquent officer. It
further held that this requirement is a Constitutional obligation and if such
reason is not recorded in writing, the order dispensing with the enquiry and the
order of penalty would both be void and unconstitutional.
12. Paragraph 133 and 134 of the judgment of the Hon’ble Supreme Court in
Tulsiram Patel (supra) states as follows:-
“133. The second condition necessary for the valid application of clause (b) of
the second proviso is that the disciplinary authority should record in writing its
reason for its satisfaction that it was not reasonably practicable to hold the
inquiry contemplated by Article 311(2). This is a constitutional obligation and if
such reason is not recorded in writing, the order dispensing with the inquiry and
Page No.# 6/7the order of penalty following thereupon would both be void and
unconstitutional.
134. It is obvious that the recording in writing of the reason for dispensing with
the inquiry must precede the order imposing the penalty. The reason for
dispensing with the inquiry need not, therefore, find a place in the final order. It
would be usual to record the reason separately and then consider the question
of the penalty to be imposed and pass the order imposing the penalty. It would,
however, be better to record the reason in the final order in order to avoid the
allegation that the reason was not recorded in writing before passing the final
order but was subsequently fabricated. The reason for dispensing with the
inquiry need not contain detailed particulars, but the reason must not be vague
or just a repetition of the language of clause (b) of the second proviso. For
instance, it would be of no compliance with the requirement of clause (b) for
the disciplinary authority simply to state that he was satisfied that it was not
reasonably practicable to hold any inquiry. Sometimes a situation may be such
that it is not reasonably practicable to give detailed reasons for dispensing with
the inquiry. This would not, however, per se invalidate the order. Each case
must be judged on its own merits and in the light of its own facts and
circumstances.”
13. In view of the fact that the appellants have not been able to show that
they have made any recording of their satisfaction that it was not reasonably
practicable to hold an enquiry under Article 311(2) of the Constitution, prior to
invoking Clause (b) of the second proviso to Article 311(2) of the Constitution of
India, we do not find any ground to interfere with the judgment of the learned
Single Judge.
14. With regard to the submission of the learned counsel for the appellants
that the writ petitioner should be made to avail the alternative efficacious
remedy available, it is settled law that the High Court under Article 226 of the
Constitution has the discretion to entertain a writ petition, even if there are
alternative remedies available. In the present case, the impugned order dated
24.09.2020, which had been set aside by the learned Single Judge, being wholly
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in violation of Clause (b) of the second proviso to Article 311(2) of the
Constitution of India and Rule 9 of the Assam Services (Discipline & Appeal)
Rules, 1964, this Court is not inclined to allow the appeal, only because there is
an alternative remedy available.
15. The writ appeal is accordingly dismissed.
JUDGE JUDGE Comparing Assistant
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