Gauhati High Court
WP(C)/5498/2021 on 25 May, 2026
GAHC010171082021
2026:GAU-AS:7227
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
WP(C) No. 5498/2021
Dr. Kandarpa Das,
S/o Late Golak Chandra Das,
Resident of Shantidan Path, Khanamukh,
Lankeswar, Jalukbari, Guwahati,
PS-Jalukbari, Dist.-Kamrup(M),
Assam, Pin-781014.
......Petitioner.
-Versus-
1. The Chancellor,
Gauhati University,
Gopinath Bordoloi Nagar,
Guwahati, Pin-781014.
2. The Vice Chancellor,
Gauhati University, Gopinath Bordoloi Nagar,
Guwahati, Pin-781014.
3. The Gauhati University,
Represented by its Registrar,
Gopinath Bordoloi Nagar,
Guwahati, Pin-781014.
4. The Executive Council,
Gauhati University, Gopinath Bordoloi, Nagar,
Guwahati, Pin-781014,
Represented by its Secretary.
5. The Registrar,
Gauhati University, Gopinath Bordoloi Nagar,
Guwahati, Pin-781014.
WP(C) 5498/2021 Page 1 of 88
6. The Inquiry Officer,
In the Departmental Proceeding drawn up against
Dr. Kandarpa Das.
......Respondents.
For the Petitioner : Mr. M.K. Choudhury, Sr. Adv.,
Mr. T. Chakraborty.
......Advocates.
For the Respondents : Mr. D. Saikia, AG, Assam,
Mr. K. Gogoi,
Mr. P.J. Phukan.
......Advocates.
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
Date(s) of Hearing :- 03.02.2026 & 12.02.2026
Date on which judgment is reserved :- 12.02.2026
Date of pronouncement of judgment :- 25.05.2026
Whether the pronouncement is of the :- N/A
operative part of the judgment?
Whether the full judgment has been :- Yes
pronounced?
WP(C) 5498/2021 Page 2 of 88
JUDGMENT AND ORDER
Heard Mr. M.K. Choudhury, learned Sr. Counsel, assisted by Mr. T.
Chakraborty, learned counsel for the petitioner and also heard Mr. D.
Saikia, learned Advocate General, Assam - cum- Sr. Counsel, assisted by
Mr. K. Gogoi and Mr. P.J. Phukan, learned counsel for the respondents.
2. In this petition, under Article 226 of the Constitution of India, the
petitioner, namely, Dr. Kandarpa Das, has challenged the order dated
06.10.2021, issued by the Registrar & Secretary, Executive Council,
Gauhati University and also prayed for issuing direction to the respondent
authorities, to allow him to continue his service as Professor, Department
of Foreign Languages, Gauhati University.
Background Facts:-
3. The background facts leading to filing of the present petition are briefly stated as under:-
"The petitioner was serving as Professor in the Department of Foreign Languages, Gauhati University, in Russian language and Literature. Then he was appointed as Director of Gauhati University Institute of Distance and Open Learning (GUIDOL), which was started in the month of May, 1998 and it was re-designated as GUIDOL in the month of April, 2008. He was released from the post of Director, GUIDOL on 31.01.2016, and thereafter, he continued to serve in the University as Professor in the Department of Foreign Languages. Thereafter, in the year 2018, the Comptroller and Auditor General of India (CAG) had submitted it report on Social, General and Economic (Non-PSUs) Sectors for the WP(C) 5498/2021 Page 3 of 88 year ended on 31st of March, 2018 before the State Assembly. The report was forwarded to the Gauhati University by the State Government. Then on receipt of the report of the CAG, the Executive Council of the Gauhati University on 04.12.2019, decided to constitute an Inquiry Commission, headed by Dr. Justice Aftab Hussain Saikia, to inquire into the anomalies indicated in the report of CAG. Thereafter, the Commission has submitted its report to the Gauhati University, containing various recommendations on 28.09.2020. Thereafter, the University had decided to conduct an inquiry on 08.06.2021, on various charges, for running unapproved courses on his own, while he was working as Director of GUIDOL, and issued show cause notice to him. The petitioner had submitted his reply to the Disciplinary Authority, denying all the charges leveled against him.
Then the University had appointed one Shri Pallab Bhattacharyya, Retd. IPC and former Chairman Assam Public Service Commission (APSC), as Inquiry Officer on 08.06.2021, and the Inquiry Officer had accepted the offer on 17.06.2021, and a charge-sheet was served upon the petitioner on 22.06.2021, under Rule 11 of the Gauhati University Teachers‟ Conduct Rules, 1984 read with Rule 7 and 9 of the Assam Services (Discipline and Appeal) Rules, 1964. The petitioner had submitted his written statement denying all the charges leveled against him. Then after the inquiry, the Inquiry Officer had submitted its report.
It is the contention of the petitioner that none of the witnesses could prove the charges leveled against the petitioner. But, without considering the said evidence as well as exhibit on WP(C) 5498/2021 Page 4 of 88 record, the Inquiry Officer on 10.09.2021, had submitted his report to the Gauhati University authority, declaring therein the petitioner as guilty of misconduct. Thereafter, the Executive Council of the Gauhati University has accepted the report on 20.09.2021, and the petitioner was directed to submit his comments on the Inquiry Report, on 21.09.2021. Though the petitioner has sought for time to submit his written reply to the Inquiry Report on 30.09.2021, the same was rejected by the Gauhati University authority on 01.10.2021. The petitioner then submitted his reply to the Gauhati University authority on 02.10.2021. Thereafter, vide impugned order dated 06.10.2021, the Gauhati University authority has removed the petitioner from service, with immediate effect.
4. Being aggrieved, the petitioner has approached this court by filing the present petition, seeking the reliefs, as aforesaid, on the following grounds:-
(i) The Inquiry Officer was appointed by the University authority much prior to the date of issuance of the charge-sheet to the petitioner and the same goes to show that the principle of natural justice and Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 are violated.
(ii) The Disciplinary Authority is the Executive Council of the Gauhati University and the memorandum of charge dated 22.06.2021 was not placed before the Disciplinary Authority for approval and as such, the same is non-est in the eye of law and thereby rendering the consequential proceeding stands vitiated.
(iii) Though there was allegation of violation of Rule 4 of the Gauhati University Teachers' Conduct WP(C) 5498/2021 Page 5 of 88 Rules, 1984, the charge-sheet is silent on the specific ground on which the petitioner has been charged for misconduct and that the word 'misconduct' has to be construed strictly.
(iv) While conducting the inquiry, the Inquiry Officer did not even consider the stand taken by the Gauhati University in the matter of running the unapproved courses. The stand taken by the Gauhati University regarding running of those unapproved courses by GUIDOL has already been clarified by the University vide communication dated 18.01.2019 under Memo No.Gu/Regr(SF)/2019 /2(A) and in the said communication the matter relating to running of unapproved courses, was said to be bona-fide error of judgment on the part of the authorities of GUIDOL and that there was no ill motive on anybody's part in running those unapproved courses.
(v) The Inquiry Report, submitted by the Inquiry Officer, is contrary to the record and the said report therefore, is perverse, as while deciding the article of charges, the Inquiry Officer made extraneous allegations against the petitioner which were not part of the statement of imputation served upon the petitioner on 22.06.2021.
(vi) The communication dated 06.10.2021, issued by the Registrar & Secretary, Executive Council of the Gauhati University, who is the Disciplinary Authority, decided to impose a major penalty of removal from service as per Rule 7(vi) of the Assam Services (Discipline and Appeal) Rules, 1964. But before imposing such a major penalty, it was incumbent upon the Disciplinary Authority to issue a show-cause notice to the petitioner, as to why such penalty should not be imposed.
WP(C) 5498/2021 Page 6 of 88But, in the instant case, before issuing the impugned order dated 06.10.2021, no such show- cause notice was issued.
(vii) The penalty, so imposed upon the petitioner, is disproportionate to the allegations leveled against the petitioner, in view of the fact that the finding recorded by the Inquiry Officer in the report submitted by him is absolutely perverse and on such count, it is contended to allow this writ petition.
5. The respondent Nos. 2, 3, 4, 5 and 6 have filed their affidavit-in- opposition, wherein a stand has been taken that Dr. Justice Aftab Hussain Saikia Commission was constituted as per the Gauhati University Executive Council‟s Resolution, adopted in its meeting held on 04.12.2019, and the said Commission submitted its report on 28.09.2020, and the same was accepted by the Gauhati University Executive Council, in its meeting held on 05.10.2020, and consequent upon acceptance of the report, dated 28.09.2020, the same was sent to the Chancellor of the University, as well as to the Higher Education Department of Govt. of Assam and to the University Grants Commission, vide letter, dated 06.10.2020, and also the same was forwarded to the writ petitioner, for submitting his comment on the findings and recommendations, within 30 days. Thereafter, in the meeting of the Executive Council held on 08.06.2021, it was resolved to initiate disciplinary proceedings against the petitioner and also resolved to request and one Pallab Bhattacharyya, IPS (Retd.), former Chairman of the APSC, to take up the responsibility to act as an Inquiry Officer, and the same was communicated to him on 10.06.2021, and requesting to accept the offer. He was informed that his name had been suggested to conduct Departmental Proceedings, as WP(C) 5498/2021 Page 7 of 88 follow up action, consequent upon the submission of the Dr. Justice Aftab Hussain Saikia Commission‟s Report against the petitioner.
5.1. Then on receipt of the response of Shri Bhattacharyya, he was duly appointed as the Inquiry Officer by a subsequent official communication dated 01.07.2021 and that the charge memo dated 22.06.2021, was issued much prior to the aforesaid communication, dated 01.07.2021, as regards formal appointment of the Inquiry Officer concerned and that the charge-sheet was not approved by the Disciplinary Authority is incorrect in view of the contents of the proceeding along with Resolution of the Executive Council meeting held on 08.06.2021, and that the petitioner was duly communicated to make his submission upon the report dated 28.09.2020, and on submission of report, the same were placed before the Executive Council in its meeting held on 26.02.2021, wherein a Committee of 4(four) Executive Council members was constituted to examine the recommendation of the Commission and thereafter to make necessary recommendation to be executed in this regard. The said EC Committee had submitted its report on 31.03.2021. Then the Principal Secretary to the Govt. of Assam in Higher Education Department had also written one urgent letter on 31.05.2021, urging the Vice Chancellor to start disciplinary action as per provision of the Assam Services (Discipline and Appeal) Rules, Gauhati University Act, Rules and Regulation as applicable to them without any further delay and the same was placed before the EC meeting held on 08.06.2021, to discuss the matter and the EC had decided to initiate disciplinary proceedings against the petitioner, primarily based on the findings and 8 nos. of recommendations, of the report of Dr. Justice Saikia Commission, as regards the following 12(twelve) nos. of issues, which are as under:-
WP(C) 5498/2021 Page 8 of 881. Whether GUIDOL had run exactly 21 unapproved courses during the period 2010-17 as observed in CAG Report?
2. Whether the continuation of the alleged 21 unapproved courses was within the knowledge of the then Director(s) of GUIDOL and other Authorities of Gauhati University during the period 2010-17?
3. Whether the approval from DEC/UGC was necessary to run those unapproved courses and if yes, whether any appropriate step(s) was/were taken by the then Director(s) of GUIDOL?
4. Whether any of the students enrolled and passed out on completion of alleged unapproved courses during the period 2010-11 to 2016-2017, did file any complaints/written statements/grievances before the Commission in pursuance of the "Public Notices" published in local daily newspapers both in English or Vernacular on 05.01.2020 and 11.01.2020?
5. Whether DEC/UGC were aware of running such alleged 21 unapproved courses by GUIDOL during those long periods of 7 years, i.e. 2010-2017? If yes, whether they did take any necessary steps whatsoever in this period?
6. Whether any procedure was prescribed or in existence for getting approval of courses offered by GUIDOL from DEC/UGC?WP(C) 5498/2021 Page 9 of 88
7. Whether proper procedure was followed by GUIDOL Authority(ies) for seeking required approval for running the courses?
8. Whether the steps taken by the then Director, GUIDOL in obtaining approval of the left-out courses from DEC/UGC, justified his action of continuing the unapproved courses in GUIDOL?
9. Whether the decision to run the unapproved courses by GUIDOL Authority(ies) pending approval of the UGC was justifiable?
10. Whether the irregularities committed by GUIDOL Authority (ies) by running the unapproved courses resulted in personal gain of any individual(s)/official(s) associated with GUIDOL and/or GU?
11. Whether the then Director(s) of GUIDOL and/or any other responsible officer(s) was/were liable for running of such alleged 21 unapproved courses?
12. Whether the matters pertaining to fictitious payment, extra avoidable expenditure etc. made by the then Director(s), GUIDOL as observed in CAG Report shall come within the purview of this Commission?
5.2. It is also stated that subsequent to the resolution of the Executive Council, dated 08.06.2021, charge memo was issued and the Registrar & Secretary, Ex-officio member of the Executive Council, Gauhati University had issued the relevant memorandum, on 22.06.2021, in the name of the WP(C) 5498/2021 Page 10 of 88 Executive Council (as per Annexure-8 of the writ petition) and thereafter, the said memorandum, dated 22.06.2021, was issued after legal consultation, as per the decision of the Executive Council and which is in tune with the provisions of the Gauhati University Act, 1947 and the same was duly informed to the Executive Council and by the said memorandum, dated 22.06.2021, the petitioner was informed that an inquiry will be held in respect of those article of charges, as are not admitted and therefore, he was asked to specifically admit or deny each article of charges. And in the Inquiry Report of Shri Pallab Bhattacharyya dated 10.09.2021, it was stated that while having discussed these aspects with the Charged Officer(CO) i.e. the petitioner, it is inter alia stated that the CO was specifically asked if he has any objection against the Inquiry Officer, where he clearly mentioned about his full confidence upon the Inquiry Officer and the DOS 3 is an eloquent testimony to this contention" (para No.11 of the Inquiry Report) and as such, the proceeding of the said inquiry got concluded with the petitioner‟s consent and no prejudice was caused to the petitioner as alleged.
It is also stated that the Inquiry Report, dated 10.09.2021, indicates that charges leveled against the petitioner, were found to have been proved and the said Report was accepted by the Executive Council of the Gauhati University, in its meeting held on 20.09.2021 and thereafter, the petitioner was removed from the post of Professor, Department of Foreign Languages, Gauhati University, with immediate effect, in view of the resolution of the Executive Council, dated 05.10.2021, in connection with the Inquiry Report dated 10.09.2021. It is also stated that the petitioner was given ample opportunity to defend himself in every stage, including that of the proceeding before Dr. Justice Saikia Commission as well as before the Inquiry Officer, Shri Pallab WP(C) 5498/2021 Page 11 of 88 Bhattacharyya, maintaining the provisions of relevant laws and the principle of natural justice in this regard.
It is also stated that the provision, enshrined in the Rule 4 of the Gauhati University Teachers‟ Conduct Rules, 1984 is precise, accurate and clear enough as regards the aspect of specific allegation of misconduct, committed by the writ petitioner and that the penalty imposed upon the petitioner is not disproportionate and that he has not been selectively picked by the respondent authorities, making him a scapegoat, as alleged and that the petitioner admitted that though an appeal lies against the impugned order dated 06.10.2021, before the Chancellor of Gauhati University, but he chooses not to prefer the appeal, since filing of any appeal will not be an efficacious remedy, in purported view of his recent suspension from the post of Vice-Chancellor of K.K. Handique State Open University by the order of the Chancellor, though offices of both the Chancellors are totally different, governed by two distinct Acts of the State Legislature, and the contention made by the petitioner is erroneous in view of the factual and legal matrix, and under such circumstances, it is contended to dismiss the petition.
6. The petitioner has filed reply to the affidavit-in-opposition filed by the respondent authorities denying the statement and averment made in the affidavit-in-opposition.
Submission of Learned Counsel for the Petitioner:-
7. Mr. Choudhury, learned Sr. Counsel for the petitioner, referring to the grounds taken in the petition, submits that the petitioner is basically aggrieved by the action of the respondent authorities, on the following grounds:-
WP(C) 5498/2021 Page 12 of 88(a) The charge-sheet, which was served upon the petitioner, was not placed before the Executive Council for its approval and in that view of the matter, the charge-sheet is non-est in the eye of law and all subsequent proceeding, initiated thereafter stands vitiated.
(b) The finding, so recorded by the Inquiry Officer in respect of the charges being proved against the petitioner, are perverse and not based on the legally admissible evidence.
(c) The respondent authorities have adopted pick and choose policy and picked up the petitioner and made him scapegoat, though Dr. Justice Saikia Commission had recommended for taking action against the Vice-Chancellor, Registrar and other persons also.
(d) Rule 9(2) of the Assam Services (Discipline and Appeal) Rules, 1964 has not been followed in case of the petitioner and the Inquiry Officer was appointed prior to filing charge sheet against the petitioner and as such, removal of the petitioner from the service is without any basis.
7.1 Mr. Choudhury also submits that though the Assam Services (Discipline and Appeal) Rules, 1964 provides for appeal, yet, the petitioner chooses not to prefer the appeal on the ground that while he was serving as Vice-Chancellor of the K.K. Handique State Open University, he was suspended and removed from the said post by the Chancellor of the University who is the same Chancellor of Gauhati University also, and on such count, he found the remedy of appeal not efficacious and not effective, and the same would have been a futile exercise as the Chancellor had already formed an opinion.
WP(C) 5498/2021 Page 13 of 887.2 Mr. Choudhury further submits that no show-cause notice was served upon the petitioner before imposing the punishment; however, he is not willing to pursue this ground. In respect of running unapproved courses, Mr. Chancellor submits that the UGC has not issued any direction, and some of the courses were approved by the UGC and some were not approved, but the same does not mean that there was refusal or rejection. Mr. Choudhury also pointed out that the petitioner was appointed as the Director of GUIDOL on 19.08.2006, and he was relieved on 31.01.2016, and the courses were being run prior to his joining and after his release in the year 2016. Mr. Choudhury also pointed out that the petitioner was targeted by the University authority, and that the petitioner was not the authority to run the unapproved courses and the same was in the knowledge of the Executive Council, Academic Council and also the Vice-Chancellor, but no proceeding was initiated against them.
7.3 He also pointed out that the principle of estoppel cannot override the law and though during the course of inquiry, he had imposed faith upon the Inquiry Officer, yet, the Inquiry Report is perverse and as such, the same would not operate as estoppel.
7.4 Mr. Choudhury has also pointed out that the Inquiry Officer was appointed prior to filing of the charge-sheet, which contravenes Rules 9(2) and 4 of the Assam Services (Discipline and Appeal) Rules, 1964, which are pari-materia provision of the Rule 14(3) of the CCS (CCA) Rules and only after appointment of the Inquiry Officer, the charge-sheet was filed after 12 days, which indicates that the respondent authorities were predetermined to remove the petitioner from service.
WP(C) 5498/2021 Page 14 of 887.5 To substantiate his submission Mr. Choudhury has also drawn attention of this court to Annexure II of the reply affidavit of the petitioner, which is an order dated 23.06.2021, passed by a division bench of this court in PIL No. 35 of 2021, filed by one Gopal Das in respect of anomalies committed in Gauhati University during the period of 2010-2017, wherein it has been noted by the division bench that the EC has resolved - (iv) To appoint one Shri Pallab Bhattacharya, IPS(Retd.) former Chairman Assam Public Service Commission to draw the Departmental proceeding against said Professor Kandarpa Das with the present Registrar as the Presenting Officer thereof. Mr. Choudhury also pointed out that this observation of the court was based upon a document supplied to the court by the learned standing counsel for the Gauhati University, Mr. P.J. Phukan. Referring to Annexure III and IV, the daily order sheet of the disciplinary proceeding, Mr. Choudhury also submits that the petitioner has raised objection to the Inquiry Officer in respect of appointment of Inquiry Officer in violation of the principle of natural justice and the same has been recorded in the said order sheets.
7.6 Mr. Choudhury also pointed out that the written statement filed by the petitioner was not placed before EC and considered by the EC and that one of the members of the EC had recorded a dissenting note and the same is placed on record at Page No.104(D) and in the said dissenting note also, it is stated that the charge sheet was never placed before the Executing Council for approval.
7.7 It is also being pointed out by Mr. Choudhury that the Gauhati University had taken a plea in the letter dated 18.01.2019, that there was error of judgment in continuing the unapproved courses and that the WP(C) 5498/2021 Page 15 of 88 error of judgment cannot be a 'misconduct' on the part of the petitioner, and the entire act of removal of the petitioner, smacks mala- fide and bias and the charge memo is also vague and the entire proceeding is farce and under such circumstances, Mr. Choudhury has contended to allow this writ petition by setting aside the order, dated 06.10.2021.
Submission of learned Counsel for the Respondent:-
8. Per contra, Mr. Saikia, learned Advocate General, Assam- cum-Sr. Counsel, submits that the Inquiry Officer was appointed under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 and that Annexure-„D‟ of the petition is an offer letter and Annexure-„E‟ is an appointment letter, and the offer letter was issued on 28.06.2021, and the appointment letter was issued on 01.07.2021, and the offer letter is not an appointment letter and it is incorrect that the appointment of the Inquiry Officer was made prior to filing of charge-sheet.
8.1. He also submits that the allegation of charge sheet not being placed before the Executive Council is also incorrect and that the charge-
sheet was placed before the Executive Council on 08.06.2021 and the same was approved vide Resolution No.4. He also submits that the running of courses without approval of the UGC is certainly misconduct, as 78,960 students were granted degrees in 19 unapproved courses, while the UGC has approved only 6/7 courses and the gullible students were exploited and the same has been explained in paragraph No.9 of the additional affidavit at page No.289.
8.2. Referring to another decision of Hon‟ble Supreme Court in the case of M.M. Malhotra v. Union of India and others, reported in WP(C) 5498/2021 Page 16 of 88 (2005) 8 SCC 351, he submits that what constitute misconduct is dealt with the said case and applying the law laid down in the said case it can definitely be said that granting degrees to 78,960 students in 19 unapproved courses by the petitioner is a misconduct herein this case and that the Inquiry Officer had rightly held the petitioner guilty of the same.
8.3. Referring to the decision of Prof. Yaspal Singh & Anr. State of Chhattishgarh and Ors. reported in (2005) 5 SCC 420, Mr. Saikia submits that the degree not approved is not a degree in the eye of law. He further submits that in every stage of the inquiry, against the petitioner the principle of natural justice has been complied with and show-cause notice was issued to the petitioner and he has submitted his reply also.
8.4. Referring to another decision of Hon‟ble Supreme Court in the case of Deputy General Manager (Appellate Authority) and others vs. Ajai Kumar Srivastava, reported in (2021) 2 SCC 612, Mr. Saikia submits that in disciplinary proceeding, the scope of judicial review is very limited and that there is no averment in the petition in respect of violation of any rule and that there was no procedural lapse and there are sufficient materials to support the charges. He has also referred to another decision in the case of Union of India and others v. P. Gunasekaran, reported in (2015) 2 SCC 610 (para 12), in support of his submission and also referred another decision of the Hon‟ble Supreme Court in the case of Lucknow Kshetriya Gramin Bank (Now Allahabad, Uttar Pradesh Gramin Bank) and another v. Rajendra Singh, reported in (2013) 12 SCC 372 (para nos.13, 14, 15 and 19) WP(C) 5498/2021 Page 17 of 88 8.5. Further submission of Mr. Saikia is that notice was not issued before imposing punishment as the same was not required in view of the decision of Hon‟ble Supreme Court in the case of Competition Commission of India v. Kerala Film Exhibitors Federation and others, reported in 2025 SCC OnLine SC 2092 (para 52 and 61) and no prejudice was shown to have been caused to the petitioner. And established and in view of the decision of Hon‟ble Supreme Court in the case of State Bank of Patiala and others v. S.K. Sharma, reported in (1996) 3 SCC 364, the same has to be established.
8.6. Referring to Rule 15 of the Assam Services (Discipline and Appeal) Rules, 1964 Mr. Saikia submits that said Rule provides for an appeal and that in view of availability of the alternative remedy by way of an appeal and without exhausting the same, the petitioner ought not to have approached this court directly and on such count also the present petition is not maintainable.
8.7. Mr. Saikia also pointed it out that the petitioner, during the course of enquiry stated that he has full confidence upon the Inquiry Officer. And this fact is apparent from the finding of the Inquiry Officer in point No.10 of the Inquiry Report, Annexure 14 of the petition. And now he cannot turn around to contend that Inquiry Officer is bias and he is barred from raising such issue because of the principle of estoppels.
8.8. Under the abovementioned facts and circumstances, Mr. Saikia has contended to dismiss the petition.
9. In reply, Mr. Choudhury learned counsel for the petitioner, submits that the petitioner has not chosen to file an appeal under Rule 15, as the same has to be preferred before the Chancellor, who has suspended and WP(C) 5498/2021 Page 18 of 88 removed him from the post of Vice Chancellor of K.K. Handique State Open University(KKHSOU) vide order dated 13.08.2021, and nowhere in the said order it is reflected that the order was issued pending drawal of departmental proceeding and Subsequently he was also removed from that post and on such count, the petitioner has found that the appeal would not be an efficacious remedy as the Chancellor had already formed an opinion.
9.1. It is further submitted that the principle of estoppels cannot override the law. In support of his submission Mr. Choudhury has referred to decision of Hon‟ble Supreme Court in Krishna Rai vs. Banars Hindu University, Through Registrars and Ors., reported in 2022 LiveLaw(SC) 553.
10. Having heard the submission of learned counsel for both the parties, this Court has carefully gone through the petition and the documents placed on record and also perused the decisions relied upon by learned counsel for both the parties and also the report submitted by Dr. Justice Aftab Hussain Saikia Commission, and the report of the Inquiry Officer.
Issues, to be addressed by this court:-
11. In view of the pleadings of the parties and the submissions so advanced the issues to be addressed by this court is formulated as under:-
(i) Whether the Inquiry Officer was appointed prior to filing of charge sheet, in contravention of the provision of Rules 9(1) (2) and (4) of the Assam Services (Discipline and Appeal) Rules, 1964.WP(C) 5498/2021 Page 19 of 88
(ii) Whether the charge-sheet served upon the petitioner, was non-est in the eye of law for not being placed before the disciplinary authority and also on account of non approval of the same by the Disciplinary Authority?
(iii) Whether the findings, so recorded by the Inquiry Officer in respect of the charges being proved against the petitioner, are perverse on account of the same being not based upon legally admissible evidence.
(iv) Whether the petitioner was made scapegoat, by adopting pick and choose policy even though there was recommendation of Dr. Justice Saikia Commission for taking action against the Vice-Chancellor and other persons also.
(v) Whether in view availability of alternate remedy, i.e. appeal under the Rule 15 of the Assam Services( Discipline and Appeals) Rules 1964, stands in the way of the petitioner in availing the extra-ordinary remedy?
(vi) Whether the petitioner has succeeded in demonstrating a case for interference of this court in exercising the power of judicial review, while the scope of judicial review in service matters is very limited?
(vii) Whether running of the unapproved courses in GUIDOL amounts to misconduct or not?
Discussion and analysis:-
12. Before a discussion is directed to the issues, formulated herein above, this court deems it appropriate to extract the chronology of events, which are discernible from the pleadings of the parties and to WP(C) 5498/2021 Page 20 of 88 which Mr. M.K. Choudhury, the learned counsel for the petitioner has drawn the attention of this court, herein below:-
19.08.2006: The petitioner, who was holding the post of Reader, joined as Director at Post Graduate Correspondence School.
Year 2008: The Post Graduate Correspondence School was renamed as Institute of Distance and Open Learning, Gauhati University (GUIDOL).
18.11.2011: On completion of term, Petitioner was repatriated to his earlier position as Professor, Deptt. of Foreign Languages, but was given additional charge of Director GUIDOL.
Year 2013: The petitioner was again appointed as Director, GUIDOL.
31.01.2016: The petitioner was released from the post of Director, GUIDOL and thereafter, the petitioner continued his service as Professor in Department of Foreign Languages.
Year 2019: The Comptroller and Auditor General of India submitted a report on Social, General and Economic (Non-PSus) Sectors for the year ended on 31.03.2018 before the State Assembly. Thereafter, the said report was forwarded to the Gauhati University by the State Government.
18.01.2019: Reply of the University to the State
Government regarding CAG observation
concerning unapproved courses.
WP(C) 5498/2021 Page 21 of 88
04.12.2019: On receipt of the CAG report, the Executive Council of the Gauhati University decided to constitute an Inquiry Commission headed by Dr. Justice Aftab Hussain Saikia to inquire into the anomalies indicated in the report of Comptroller and Auditor General of India.
06.12.2019: The Term of Reference to the Inquiry
Commission was notified by Gauhati
University.
06.03.2020: The petitioner was appointed as Vice
Chancellor of K.K Handique State Open
University.
28.09.2020: The Commission submitted its report before the Gauhati University containing various recommendations.
31.03.2021: Report submitted by the Committee constituted by the Executive Council, on recommendation of the Saikia Commission.
08.06.2021: The Executive Council decided to appoint Pallab Bhattacharyya as Inquiry Officer and the Registrar of Gauhati University as Presenting Officer.
17.06.2021: The Inquiry Officer had accepted the offer of the University Authority.
22.06.2021: The Executive Council of Gauhati University served a Charge-sheet upon the petitioner under Rule 11 of the Gauhati University Teachers' Conduct Rules, 1984 read with WP(C) 5498/2021 Page 22 of 88 Rule 7 and 9 of the Assam Services (Discipline and Appeal) Rules, 1964. The charge memo was not approved by the Disciplinary Authority.
23.06.2021: Order on PIL 35/2021, was passed and the same was closed.
28.06.2021:The petitioner submitted his written
statement of defense before the
Disciplinary Authority.
13.08.2021: The petitioner was placed under suspension from the post of Vice Chancellor, K.K. Handique State Open University.
10.09.2021: The Inquiry Officer submitted its report to the GU authorities.
20.09.2021: The report of the Inquiry Officer was accepted by the Executive Council.
21.09.2021: The petitioner was directed to submit his comment on the Inquiry Report.
30.09.2021: The petitioner sought for time to submit his written reply to the inquiry report.
01.10.2021: Prayer of the petitioner was rejected by the GU authorities.
02.10.2021: The petitioner submitted his reply to the GU authorities.
06.10.2021: The impugned order of removal was issued to the petitioner.
WP(C) 5498/2021 Page 23 of 8813. It is not disputed that the Disciplinary Proceeding against the present petitioner was drawn up on the basis of the recommendation made by Dr. Justice Saikia Commission. Said Commission was appointed by the respondent authorities in Gauhati University, in view of the report of the CAG of the year 2018, which was placed before the State Assembly, Assam and was forwarded to the Gauhati University by the State Government and thereafter, the Executive Council of the Gauhati University has decided to constitute an Inquiry Commission headed by Dr. Justice Aftab Hussain Saikia to inquire into anomalies mentioned in the report of the CAG, on 04.12.2019. Further, it appears that the Inquiry Commission has framed altogether 12 issues in terms of reference. It is also to be noted here that the term of reference was to inquire into alleged irregularities as regard continuation of 21 number of unapproved courses in GUIDOL, during the period 2010-2017, as reflected in the CAG report and recommendation of appropriate measures as deem fit.
14. The 12(twelve) issues, that were framed by the Dr. Justice Saikia Commission, has already been indicated in the foregoing para, and after conducting the inquiry, the Inquiry Commission has made as many as 8 recommendations. In order to deal with the issues in present petition, a reference to the said recommendations are found to be necessary and therefore the same are extracted herein below:-
I. GU authorities may approach the State Government for initiating appropriate action against the then VC of GU serving during the period 2010-17, being found responsible in terms of the issue wise findings recorded in the report.
II. GU authorities may initiate appropriate action itself and/or approach the State Government for WP(C) 5498/2021 Page 24 of 88 initiating appropriate action against the then Director(s) of GUIDOL serving during the period 2010-17, being responsible in terms of the issue wise findings recorded in the report.
III. GU authorities may initiate appropriate action itself and/or approach the appropriate authorities for initiating appropriate actions against the then Registrars serving during the period 2010-17, being responsible in terms of the issue wise findings recorded in the report.
IV. GU authorities may approach the State Government for directing investigation to be conducted by independent investigating agencies with professional expertise to enquire and ascertain as to whether there were any fictitious payments, misappropriation of funds of GUIDOL etc. by any person(s) during the period 2010-17 as reflected in the CAG report.
V. GU authorities may initiate the process of a detailed investigation itself, if so desired, to find out the actual loss caused by the then Director(s) of GUIDOL, during the period 2010-17 pertaining to excess payment of printing materials, payments made as honorarium and for purchase of study materials as indicated in the CAG report.
VI. GU authorities may approach the Central Government for a policy decision to accept the Degree/Diploma/Certificate granted by GUIDOL in respect of the unapproved courses during the period 2010-17, keeping in view the requirement of approval/recognition of DEC/UGC for the courses offered by GUIDOL through ODL mode is for Government employment.WP(C) 5498/2021 Page 25 of 88
VII. GU authorities may approach the State Government for a policy decision to accept the Degree/Diploma/Certificate granted by GUIDOL in respect of the unapproved courses during the period 2010-17, keeping in view the requirement of approval/recognition of DEC/UGC for the courses offered by GUIDOL through ODL mode is for Government employment.
VIII.GU authorities may approach UGC to grant approval/recognition of all those unapproved courses run by GUIDOL during the period 2010-17 with retrospective effect keeping in view the career of those students who obtained Degree/Diploma/Certificate on completion of their study in the courses not being approved/recognized by DEC/UGC during the period 2010-17 as required, keeping in mind the accepted maxim 'quod fiere non debet, factum valet' (fact cannot be altered though it should not have been done).
15. Further, it appears that upon the aforementioned recommendations of Dr. Justice Saikia Commission, the respondent authorities have picked up the present petitioner only and initiated disciplinary proceeding against him, though there was recommendation to initiate appropriate action against the Vice Chancellor, Directors, Registrars of the Gauhati University who were serving during the period of 2010-2017. Further, it appears that the disciplinary proceeding was initiated against the present petitioner only by appointing Pallab Bhattacharyya, Retd. IPS, as the Inquiry Officer and charge-sheet was submitted against the petitioner and the petitioner has submitted its reply.
WP(C) 5498/2021 Page 26 of 8815.1. It appears that the respondent authorities had filed charge sheet against the petitioner, with as many as 7 Articles of Charges, which are extracted herein below:-
Article-1. That the said Dr. Kanderpa Das while functioning as Director GUIDOL (Tenure 2006 31.1.2014) he voted and run 21 unapproved courses and which continued during the period 2016-17 as observed in CAG Report which constitutes violation of Rule 4 of Gauhati University Teachers Conduct Rules, 1984 Article 2. That Shri Dr. Kandarpa Das, while functioning as Director GUIDOL (Tenure: 2006 in 11.1.2016 during 2010-2017, continued the above unapproved courses in spite of his having knowledge of the mandatory requirement of approval of the courses by the DEC/UOC. This constitutes violation of Rule 4 of Gauhati University Teachers' Conduct Rules, 1984 Article 3. Though the approval from DEC/UGC was necessary to run courses in GUIDOL appropriate step(s) was/were not taken by Dr. Kandarpa Das when he was the then Director of GUIDOL (Tenure:
2006 to 31.1.2016) for 2010-2017. This constitutes violation of Rule 4 of Gauhati University Teachers Conduct Rules, 1984 Article 4. As many as 73,912 students were enrolled and passed out on completion of alleged unapproved courses during the period 2010-11 to 2016-17, making them ineligible for Central Government services, thereby threatening their future employability. Inspite of being well aware of this deficiency. Dr. Kandarpa Das who was Director IDOL (Tenure: 2006 to 31.1.2016) during this WP(C) 5498/2021 Page 27 of 88 period allowed the courses to run. This constitutes violation of Rule 4 of Gauhati University Teachers Conduct Rules, 1984 Article 5. DEC/UGC were unaware of running such alleged 21 unapproved courses by GUIDOL during those long periods of 7 years, i. e, 2010-2017. Dr. Kandarpa Das as head of IDOL (Tenure: 2006 to 31.1.2016) during this period failed to intimate DEC/UGC appropriately which constitutes violation of Rule 4 of Gauhati University Teachers' Conduct Rules, 1984 Article 6. Though well laid down procedures were prescribed or in existence for getting approval of courses offered by GUIDOL from DEC/UGC, the same was not followed properly by Dr. Kandarpa Das and his decision of continuing the unapproved courses is not justified. This constitutes violation of Rule 4 of Gauhati University Teachers' Conduct Rules, 1984 Article 7. The irregularities committed by GUIDOL Authority under Dr. Kandarpa Das by running the unapproved courses resulted in avoidable expenditure. This constitutes violation of Rule 4 of Gauhati University Teachers' Conduct Rules, 1984.
15.2. Thereafter, the inquiry was conducted and the Inquiry Officer had submitted his report by holding that all the articles of charges stand proved against the petitioner. Thereafter, the disciplinary authority, i.e. the Executive Council, had removed the petitioner from service by the impugned order, dated 06.10.2021.WP(C) 5498/2021 Page 28 of 88
16. Now, in the following para, an endeavor will be made to discuss the issues formulated herein above.
Issue No.I.
17. This issue relates to appointment of Inquiry Officer by the disciplinary authority prior to filing of the charge-sheet.
17.1. It is the categorical contention of Mr. Choudhury, learned Sr. counsel for the petitioner that the charge-sheet against the petitioner was submitted on 22.06.2021, but prior to the submission of the charge- sheet, on 08.06.2021, in the 3rd meeting of the Executive Council, vide Resolution No. R/EC-03/2021/14, the Executive Council, who is the disciplinary authority, had resolved to initiate departmental proceeding against the petitioner and thereafter, and also resolved to appoint Shri Pallab Bhattacharyee, Retd. IPS, Former Chairman, APSC as an Inquiry Officer and the Registrar as Presenting Officer and this shows that the settled principle of natural justice, granting fair opportunity of being heard to the petitioner, was denied.
17.2. There appears to be substance in the submission of Mr. Choudhury, learned Sr. Counsel for the petitioner, as it appears that charge-sheet was furnished to the petitioner on 22.06.2021 while the Executive Council had decided to appoint Shri Pallab Bhattacharyya as Inquiry Officer in its resolution dated 08.06.2021. It also appears from the record that on 10.06.2021, the relevant documents were issued to Pallab Bhattacharyya to act as Inquiry Officer and requested him to conclude the proceeding within one month and Shri Pallab Bhattacharyya had accepted the offer on 17.06.2021. It also appears that in connection with a PIL No.35/2021, filed by one Gunajit Das regarding anomalies WP(C) 5498/2021 Page 29 of 88 committed in Gauhati University during 2010-2017, the learned counsel for the respondent University, Mr. P.J. Phukan had produced some documents before division bench of this court on 23.06.2021, apprising the court about the appointment of Inquiry Officer and also initiation of the departmental proceeding. It also appears that the Registrar, Gauhati University had issued public notice regarding the issue on 24.06.2021. Thereafter, the petitioner was served with the charge sheet on 22.06.2021, and the petitioner had replied to the charge sheet, denying the charges, on 28.06.2021. Further, it appears that though the formal letter of appointment was issued to the Inquiry Officer on 01.07.2021, yet, according to Mr. Choudhury, the same is a mere formality and that the petitioner had raised objection regarding the manner of appointment of the Inquiry Officer and this fact is apparent from the Annexure III of the reply affidavit filed by the petitioner, and that the disciplinary authority had acted in most arbitrary and predetermined manner by appointing the Inquiry Officer much prior to the issuance of charge-sheet and submission of reply by the petitioner.
17.3. Notably, the petitioner, in his affidavit-in-reply, dated 11.01.2022, has brought on record the concerned resolution, dated 08.06.2021, concerning Agenda Item No. 2, i.e. (Matter regarding Report of the Committee constituted to examine and recommend on the submission made by the Directors of GUIDOL (2010-17) constituted vide E.C. Resolution No. R/EC- 02/2021/12(i) dated 26.02.2021 and regarding the letter from the Govt. of Assam on the matter. (The copy of the Report was circulated among the members), as Annexure-I which is extracted herein below:-
Resolution No. R/EC-03/2021/13;WP(C) 5498/2021 Page 30 of 88
‚Resolved that Disciplinary Proceedings be initiated against Professor Kandarpa Das, Professor. Dept. of Foreign Languages (On Lien), Former Director of GUIDOL after legal consultation. Also resolved that Sri Pallab Bhattacharyya, IPS (Retd.), former Chairman, Assam Public Service Commission (APSC) be requested to take up the responsibility to act as the Inquiry Officer to start the Disciplinary Proceedings. The Registrar, Gauhati University will be the Presenting Officer for the purpose..........‛ 17.4. Further, from the order dated 23.06.2021, Annexure II of the reply affidavit of the petitioner it appears that a Division Bench of this court, in PIL No. 35 of 2021, while closing the PIL filed by one Gopal Das, in respect of the anomalies committed in Gauhati University during the year 2010-2017, it has been observed that the EC has resolved - (iv) To appoint one Shri Pallab Bhattacharya, IPS(Retd.) former Chairman Assam Public Service Commission to draw the Departmental proceeding against said Professor Kandarpa Das with the present Registrar as the Presenting Officer thereof. Notably, this observation was made by the Division Bench based upon a document supplied to the court by the learned standing counsel for the Gauhati University on 23.06.2021. Thus, the contention of Mr. Choudhury, learned counsel for the petitioner also stands fortified from the order dated 23.06.2021, of a division bench of this court in PIL No. 35 of 2021.
17.5. It is also to be noted here that the manner of conducting an inquiry is provided in Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964. Relevant Rules are extracted herein below:-WP(C) 5498/2021 Page 31 of 88
Rule 9(1):- Without prejudice to the provision of the Public Servant (Inquiry) Act, 1850, no order imposing on a Government servant any of the penalties specified in Rule 7 shall be passed except after an inquiry, held as far as may be in the manner hereinafter provided.
Rule 9(2):-The disciplinary authority shall frame definite charges on the basis of the allegations on which the inquiry is proposed to be held. Such charges together with a statement of allegation on which they are based, shall be communicated in writing to the Government servant, and he shall be required to submit, within such time as may be specified by the disciplinary authority, a written statement of his defense and also to state whether he desires to be heard in person.
Rule 9(4):-On receipt of the written statement of defense, or if no such statement is received within the time specified, the disciplinary authority may itself inquire into such charge as are not admitted or, if it considers it necessary so to do, appoint for the purpose a Board of Inquiry or an Inquiring Officer.
17.6. In this context observation made by Hon‟ble Supreme Court in the case of South Bengal State Transport Corpn. vs. Ashok Kumar Ghosh and others, reported in (2010) 11 SCC 71, is found to be relevant, wherein it has been held as under:-WP(C) 5498/2021 Page 32 of 88
‚13. In our opinion, it may be open for a disciplinary authority to initiate the departmental proceedings on consideration of the reply of an employee, but as an absolute proposition of law, it cannot be said that before initiating the departmental enquiry or appointing an enquiry officer, reply of the delinquent employee is required to be obtained and considered unless it is the requirement of the rules. There may be cases where the charges are of such a nature that the disciplinary authority may not require any reply from the delinquent employee but straightaway initiate the departmental enquiry and appoint an enquiry officer.‛ 17.7. In the instant case, there is such requirement in view of Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 more particularly Rule 9(4). Thus, there appears to be considerable force in the submission of Mr. Choudhury, the learned counsel for the petitioner. Indisputably, the charge-sheet was furnished to the petitioner on 22.06.2021. But, the Executive Council, the disciplinary authority herein, had decided to appoint Shri Pallab Bhattacharyya as Inquiry Officer and the Registrar as Presenting Officer, in its resolution dated 08.06.2021.
The relevant documents were issued to Shri Pallab Bhattacharyya to act as Inquiry Officer on 10.06.2021, with a request to conclude the proceeding within one month. And Shri Pallab Bhattacharyya had accepted the offer on 17.06.2021.
17.8. Thus, it becomes apparent from the aforesaid discussion that Shri Pallab Bhattacharyya appears to be appointed as the Inquiry Officer and the Registrar of Gauhati University as Presenting Officer, prior to issuance of charge sheet to the petitioner, though formal letter was issued later WP(C) 5498/2021 Page 33 of 88 on. And as such the procedure so adopted by the disciplinary authority, in case of the petitioner, appears to be contrary to what is provided by Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964, specially Rule 9(4) which provides that on receipt of the written statement of defence, or if no such statement is received within the time specified, the disciplinary authority may itself inquire into such charges as are not admitted or, if it considers it necessary so to do, appoint for the purpose a Board of Inquiry or an Inquiring Officer. Thereby, the disciplinary authority has put the cart before the horse. Now, it is to be seen what would be the consequence of such action of the disciplinary authority.
17.9. This issue came before a Division Bench of Rajasthan High Court for consideration in the case of Seema Jain v. The Rajasthan High Court, through its Registrar General, reported in 2023 0 Supreme(Raj) 558. While dealing with the issue, Rajasthan High Court has held that the Disciplinary Authority at the time of issuing charge sheet cannot appoint Enquiry Officer simultaneously. It can make up its mind of appointing Enquiry Officer only in the event of charges not being admitted.
17.10. Relevant para in the said case is extracted herein below:-
‚59. This Court finds that a bare perusal of Rule 16(4) provides that the written statement/reply of a delinquent officer, is sought by the disciplinary authority and after receipt of such reply/written statement, the disciplinary authority has to proceed either by conducting the enquiry himself or to entrust it to some other Authority.
The Disciplinary Authority finds that if charge has been admitted, then there is no need to WP(C) 5498/2021 Page 34 of 88 appoint any other Authority and he himself can record finding on each charge.
60. The very purpose of providing an opportunity to a delinquent after receipt of charge-sheet, necessarily gives him a right to defend himself i.e. either to deny the charge or to admit the charge. The Disciplinary Authority can make up its mind of appointing Enquiry Officer only in the eventuality of charges not being admitted and as a necessarily corollary, the Disciplinary Authority at the time of issuing charge-sheet, cannot appoint the Enquiry Officer simultaneously, otherwise there would be no purpose of seeking written statement/reply of the delinquent and it would reflect the predetermination of the Disciplinary Authority to conduct the disciplinary proceedings.
61. The principles of natural justice also require that the delinquent has to be given a fair opportunity to defend himself and if charges are not admitted and regular departmental enquiry is conducted, then on the basis of findings recording against the Delinquent Officer, the Disciplinary Authority has ample power to punish a guilty officer.
62. The facts of the case at hand show that at the time of issuing charge-sheet to the petitioner, the decision was also taken to appoint an Enquiry Officer i.e. the Registrar (Vigilance) at the relevant time and later on, the Enquiry Judge and as such, the procedure adopted by the respondent-
High Court, cannot be considered valid according to the Rule of law.‛ 17.11. As already discussed and held, in the instant case, the applicable Rule is the Assam Services Disciplinary and Appeals Rules 1964, and Rule 9(4) of the said Rules provides that only on receipt of written statement of defence, the Disciplinary Authority may inquire itself or appoint an Inquiry Officer.
WP(C) 5498/2021 Page 35 of 8817.12. But, it appears from the record as well as from the submissions of Mr. Choudhury, the learned counsel for the petitioner, that the Inquiry Officer was appointed before serving the charge-sheet upon the petitioner and without considering the reply submitted by the petitioner, which seems to be in violation of the provision of Rule 9(4) of the Assam Services (Disciplinary and Appeals) Rules, 1964. This fact is also apparent from the dissenting note given by Professor H.K. Sharma, one of the members of the Executive Council, dated 22.09.2021, which was enclosed with the reply affidavit filed by the petitioner, at page No.242,(Annexure-V). Relevant paragraph of the letter dated 22.09.2021, (Annexure-V) is extracted herein below:-
‚9. We are investigating a 'procedural lapse' as confirmed by the EC committee and I feel, in the process, we ourselves should not create other procedural lapses during the course of taking our final decision.
As far my knowledge about the Disciplinary Procedure of the Assam Govt. the charge sheet should be framed and approved by the Disciplinary Authority (In this case the EC of GU) and served upon the Charged officer (in this case Prof. Kandarpa Das). After getting reply from the Charged officer within a specified time, the disciplinary authority itself can investigate the same on the basis of Charge sheet and the reply or can employ some Inquiry officer and Presenting officer to the same on the behalf of the Disciplinary Authority. In the present case the Inquiry Officer was employed on 10/6/2021 following the decision of the EC on 8/6/2021 i.e. much before the charges were framed and served on the Charged officer on 22/6/2021. Myself as EC member, I have not seen WP(C) 5498/2021 Page 36 of 88 that either the charges were framed by the EC or even it was approved by the EC.
The above 'procedural lapse' is a serious one and I feel, it is a violation of "Principle of Natural Justice and Rule 9 of Assam Services (Disciplinary and Appeal) rules, 1964 under which the inquiry is held.
17.13. Thus, from the aforesaid discussion, it becomes apparent that the respondent authorities had not adhered to the procedure prescribed under the law. And as such, the submission of Mr. Choudhury, learned counsel for the petitioner that the principle of natural justice, as held in the case of Seema Jain(supra) has been violated, has sufficient force.
17.14. It is also to be noted here that the requirement of following the procedure prescribed by law has been emphasized by Hon‟ble Supreme Court in the case of D.K. Yadav v. J.M.A. Industries Ltd., reported in (1993) 3 SCC 259, wherein it has been held as under:-
‚11. The law must therefore be now taken to be well-
settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Article 14 and such law would be liable to be tested on the anvil of Article 14 and the procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of Article 14. So it must be right, just and fair and not arbitrary, fanciful or oppressive. There can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative inquiry as well as the quasi-judicial inquiry is to arrive at a just decision and if a rule of natural justice is WP(C) 5498/2021 Page 37 of 88 calculated to secure justice or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi-judicial inquiry and not to administrative inquiry. It must logically apply to both.
12. Therefore, fair play in action requires that the procedure adopted must be just, fair and reasonable. The manner of exercise of the power and its impact on the rights of the person affected would be in conformity with the principles of natural justice. Article 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence. When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportunity of being heard and fair opportunities of defence. Article 14 has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory dictates.
Equality is the antithesis of arbitrariness. It is, thereby, conclusively held by this Court that the principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, fair and reasonable.
13. In Delhi Transport Corpn. v. D.T.C. Mazdoor Congress [1991 Supp (1) SCC 600 : 1991 SCC (L&S) 1213]this Court held that right to public employment and its concomitant right to livelihood received protective umbrella under the canopy of Articles 14 and 21 etc. All matters relating to employment include the right to continue in service till the employee reaches superannuation or until his service is duly terminated in accordance with just, fair and reasonable procedure prescribed under the provisions of the Constitution and the rules made under proviso to Article 309 of the Constitution or the statutory provisions or the WP(C) 5498/2021 Page 38 of 88 rules, regulations or instructions having statutory flavour. They must be conformable to the rights guaranteed in Parts III and IV of the Constitution. Article 21 guarantees right to life which includes right to livelihood, the deprivation thereof must be in accordance with just and fair procedure prescribed by law conformable to Articles 14 and 21 so as to be just, fair and reasonable and not fanciful, oppressive or at vagary. The principles of natural justice are an integral part of the guarantee of equality assured by Article 14. Any law made or action taken by an employer must be fair, just and reasonable. The power to terminate the service of an employee/workman in accordance with just, fair and reasonable procedure is an essential inbuilt of natural justice. Article 14 strikes at arbitrary action. It is not the form of the action but the substance of the order that is to be looked into. It is open to the Court to lift the veil and gauge the effect of the impugned action to find whether it is the foundation to impose punishment or is only a motive. Fair play is to secure justice, procedural as well as substantive. The substance of the order is the soul and the effect thereof is the end result.
14. It is thus well-settled law that right to life enshrined under Article 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity to put forth his case is given and domestic inquiry conducted complying with the principles of natural justice.
In D.T.C. v. D.T.C. Mazdoor Congress [1991 Supp (1) SCC 600 : 1991 SCC (L&S) 1213] the Constitution Bench, per majority, held that termination of the service of a workman giving one month's notice or pay in lieu thereof without inquiry offended WP(C) 5498/2021 Page 39 of 88 Article 14. The order terminating the service of the employees was set aside.
17.15. Again in the case of A.K. Kraipak v. Union of India, reported in (1969) 2 SCC 262, Hon‟ble Supreme Court has held as under:-
‚20. The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely:
(1) no one shall be a judge in his own case (Nemo debet esse judex propria causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem).
Very soon thereafter a third rule was envisaged and that is:- ‚that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably.
But, in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not WP(C) 5498/2021 Page 40 of 88 easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy George v. University of Kerala [1968 SCC OnLine SC 9] the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case.‛ 17.16. Further, in the case of Hukam Chand ShyamLal vs. Union of India and Others, reported in AIR 1976 SC 789, the Constitution Bench of Hon‟ble Supreme Court has held that it is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all and all other modes of performance are necessarily forbidden and where the power is of a drastic nature and is exercised in a mode other than the one provided, will be violative of the fundamental right and natural justice.
17.17. Thus, in the given factual backdrop and having perused the documents so placed on record and having tested the impugned order, WP(C) 5498/2021 Page 41 of 88 on the anvil of Article 14 and the procedure prescribed under Rule 9(2) and Rule 9(4) of the Assam Services (Discipline and Appeal) Rules 1964, that affecting the civil rights or result in civil consequences, this Court is unable to derive satisfaction that the disciplinary authority had followed the procedure prescribed in Rule 9 (2) and (4) of the Assam Services (Discipline and Appeal) Rules 1964, in its letter and spirit.
17.18. Though Mr. Saikia, learned Advocate General submits that the principles of natural justice were followed in every stage of the proceeding, yet, the said submission left this Court unimpressed, in view of the aforementioned discussion and finding. Violation of Rule 9(4) of the Assam Services (Discipline and Appeal) Rules 1964, is apparent on the face of the record and as such, the principles of natural justice is violated herein. In the instant case violation of Rule 9(4) is apparent on the face of the record and as such principle of natural justice stands violated. As held in the case of D.K. Yadav(supra) before taking any action putting an end to the tenure of an employee, fair play requires that a reasonable opportunity to put forth his case is given and domestic inquiry is conducted complying with the principles of natural justice. In the instant case the same has not been complied with.
17.19. In view of the aforesaid discussion and finding the Issue No. I has to be answered in affirmative and accordingly the same stands answered by holding that the Inquiry Officer was appointed prior to filing of charge sheet, in contravention of the provision of Rule 9(1) (2) and (4) of the Assam Services (Discipline and Appeal) 1964.
Issue No. II.
WP(C) 5498/2021 Page 42 of 8818. Issue No. II relates to filing of charge sheet dated 22.06.2021, without there being any approval of the disciplinary authority.
18.1. It is to be noted here that Rule 9(2) of the Assam Services (Discipline and Appeal) Rules, 1964 provides that the disciplinary authority shall frame definite charges on the basis of the allegations on which the inquiry is proposed to be held and such charges, together with a statement of the allegations on which they are based, shall be communicated in writing to the Government servant and he shall be required to submit within such time as may be specified by the Disciplinary Authority, a written statement of his defence and also to state whether he desires to be heard in person. It is not in dispute that the Disciplinary Authority in the case of the petitioner, is the Executive Council of Gauhati University and the same has been provided under Section 13(f) and Section 8-B(6) of the Gauhati University Act, 1947 and also in Rule 12 of the Gauhati University Teachers‟ Conduct Rules, 1984.
18.2 Indisputably, the charge-sheet, in the case of the petitioner, was filed on 22.06.2021. And from the resolution of the 3rd meeting of the Executive Council, dated 08.06.2021, and 4th meeting dated 12.07.2021, clearly indicates that the charge sheet dated 22.06.2021 was neither placed nor approved by the Disciplinary Authority. Notably, the petitioner herein has made a specific averment in para No. 34 of the petition. But, the affidavit-in-opposition filed by the respondent authorities are silent in this regard, not to speak of specifically denying the said averment in the paragraph No.8 of the affidavit in opposition.
18.3. Since the averment made in the para No.34 of the petition is not specifically traversed, the same is deemed to have been admitted. Reliance on the judgment to apply the doctrine of non-traverse is made WP(C) 5498/2021 Page 43 of 88 to the case of (1) Collector and Controller of Court of Ward, Kolhapur & Anr. V. G.N. Gharpade and others, reported in AIR 1973 SC 627, and also on a decision passed by (2) Gobinda Chandra Das v. State of West Bengal, reported in 1989 (2) CAL LT (HC) 63, and a co-ordinate bench of this court in Anil Ch. Rabha vs. State of Assam, represented by the Commissioner and Secretary to the Govt. of Assam & Ors., reported in 2022 SCC OnLineGau 198.
18.4. Though a contention is being made by the respondent authorities, that the Executive Council was informed about the charge sheet and Mr. Saikia, the learned Advocate General, Assam also submits that the charge sheet was placed before the Executive Council of the University on 08.06.2021, and the same was approved vide resolution No. 4, yet, such submission left this court unimpressed in view of the discussion made herein above. Similarly, the contention of the respondent authorities that the same was intimated to the Executive Council also left this Court unimpressed.
18.5. Further, the factum of non approval of the charge sheet by the Executive Council also finds support from the Dissenting Note; dated 22.09.2021, submitted by Prof. H.K. Sarmah, one of the members of the Executive Council. The relevant pargraph of his dissenting note has already been quoted in paragraph No.17.12, herein above. In the said dissenting note, dated 22.09.2021, Mr. Sharma had categorically stated that himself as EC member, he had neither seen the charges being framed by the EC nor approved by it.
18.6. It is to be noted here that the aforementioned contention made by the petitioner in his affidavit-in-reply has not been controverted by the WP(C) 5498/2021 Page 44 of 88 respondent authorities. Thus, the dissenting note and also the facts and circumstances on the record go a long way to show that the charge memo dated 22.06.2021, was never placed before the Executive Council for its approval.
18.7. Further, the reply of the petitioner dated 28.06.2021, also appears to be not placed before the Executive Council for its approval. Mr. Choudhury, the learned counsel for the petitioner has rightly pointed this out at the time of hearing. And to supplement weight to his argument he has relied upon following decisions:-
(i) Union of India and others v. B.V. Gopinath, reported in (2014) 1 SCC 351;
(ii) State of Tamil Nadu, represented by
Secretary to Government (Home) v. Promod
Kumar, IPS and another, reported in (2018)
17 SCC 677;
(iii) Sunny Abraham v. Union of India and
another, reported in 2022 0 AIR(SC) 336;
(iv) Seema Jain (supra);
18.8. This Court has carefully gone through the decisions referred to by Mr. Choudhury and it appears that the ratio laid down in the aforementioned cases clearly supports the contention of Mr. Choudhury.
In the case of B.V. Gopinath (supra), Hon‟ble Supreme Court has emphasized about the requirement of approval of charge sheet by the disciplinary authority. It was held that approval for initiation of disciplinary proceeding and approval of the charge sheet are not the same thing. After considering the Rule 14(2) of the CCS (CCA) Rules, 1965 it was held that when the Disciplinary Authority proposes to hold an enquiry against a government servant under Rule 14 or 15, the WP(C) 5498/2021 Page 45 of 88 Disciplinary Authority has to draw up or cause to be drawn up a charge- sheet, and Rule 14(4) mandates that the Disciplinary Authority shall deliver or cause to be delivered, the copy of the articles of charge. It has specifically rejected the submission made on behalf of employer that once the disciplinary authority approves the initiation of disciplinary proceedings, the charge-sheet can be drawn up by an Authority other than the Disciplinary Authority. It has been held that a charge- sheet can only be issued by the Disciplinary Authority and no other person can exercise this power.
18.9. The relevant paras 40, 41, 42, 48, 49, 51 & 52 of the said judgment are quoted, as under:-
"40. Article 311(1) of the Constitution of India ensures that no person who is a member of a civil service of the Union or an all India service can be dismissed or removed by an authority subordinate to that by which he was appointed. The overwhelming importance and value of Article 311(1) for the civil administration as well as the public servant has been considered stated and re-stated, by this Court in numerous judgments, since the Constitution came into effect on 19th January, 1950 (sic). Article 311(2) ensures that no civil servant is dismissed or reduced in rank except after an inquiry held in accordance with the rules of natural justice. To effectuate the guarantee contained in Article 311(1) and to ensure compliance with the mandatory requirements of Article 311(2), the [2023:RJ-JP:13575- DB] (32 of 58) [CW-10126/2016] Government of India has promulgated CCS (CCA) Rules, 1965.
41. Disciplinary proceedings against the Respondent herein were initiated in terms of Rule 14 of the aforesaid Rules. Rule 14(3) clearly lays down that where it is proposed to hold an inquiry against a WP(C) 5498/2021 Page 46 of 88 government servant under Rule 14 or Rule 15, the disciplinary authority shall draw up or cause to be drawn up the charge sheet. Rule 14(4) again mandates that the disciplinary authority shall deliver or cause to be delivered to the government servant, a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and the supporting documents including a list of witnesses by which each article of charge is proposed to be proved. We are unable to interpret this provision as suggested by the Additional Solicitor General, that once the disciplinary authority approves the initiation of the disciplinary proceedings, the charge sheet can be drawn up by an authority other than the disciplinary authority. This would destroy the underlying protection guaranteed under Article 311(1) of the Constitution of India.
Such procedure would also do violence to the protective provisions contained under Article 311(2) which ensures that no public servant is dismissed, removed or suspended without following a fair procedure in which he/she has been given a reasonable opportunity to meet the allegations contained in the charge sheet. Such a charge sheet can only be issued upon approval by the appointing authority i.e. Finance Minister.
42. In fact, issuance of the office order No. 205 dated 19th July, 2005 makes it evident that the Respondents were aware of the legal position. The office order clearly sets out the levels of the decision making authorities depending on the gravity of the consequences that would have to be faced by a delinquent public servant in case the decision is taken to proceed against the public servant. Clause (1) deals with closure of complaints which are anonymous /pseudonymous; if the decision is taken to close the complaint it can be taken by [2023:RJ-JP:13575-DB] (33 of 58) [CW-10126/2016] the CVO. But in case of verifiable facts, the complaints have to be referred to WP(C) 5498/2021 Page 47 of 88 the next level of hierarchy CVB (Central Vigilance Bureau). For placing an officer under suspension, the decision has to be taken by the Finance Minister himself. Even review of suspension at quarterly/half yearly interval rests with the Finance Minister.
This is so, as suspension during contemplation/pendency of enquiry, though may not be penal in nature per se, still has very serious adverse consequences on the professional as well as the personal life of the officer suspended. The office order recognizing the gravity of the consequences ensures that the decision in relation to suspension/review of suspension shall be taken by the highest authority in the department i.e. the Finance Minister. In matters related to reference to CVC for first stage advice, the competent authority is the Secretary (Revenue). Similarly, for reconsideration of CVC's first stage advice, again the competent authority is the Secretary (Revenue), but in case of disagreement with CVC's first stage advice on approval for referring the case to Department of Personnel and Training, the competent authority is the Finance Minister.
48. Much was sought to be made by Ms. Indira Jaising on Clause (10) of the order which provides that once the Finance Minister has approved the initiation of departmental proceedings, the ancillary action can be initiated by the CVO. According to the learned Addl. Solicitor General, the decision taken by the Finance Minister would also include the decision for approval of charge memo. She pointed out the procedure followed for initiation of penalty proceedings/disciplinary proceedings. She submitted that the decision to initiate disciplinary proceedings is based on a Satisfaction Memo prepared by the CVO. This satisfaction memo is submitted to the Member (P&V), Central Board of Direct Taxes, New Delhi who after being satisfied that the memo is in order, forwards it to the Chairman, CBDT who in turn, upon his own satisfaction forwards it to Secretary (Revenue) and WP(C) 5498/2021 Page 48 of 88 finally to the Finance Minister. Based on the satisfaction memo, the [2023:RJ-JP:13575-DB] (34 of 58) [CW-10126/2016] Finance Minister, who is the disciplinary authority in this case, takes the decision to initiate disciplinary proceedings. While taking the said decision, the Finance Minister has before him, the details of the alleged misconduct with the relevant materials regarding the imputation of allegations based on which the charge memo was issued. Therefore, approval by the Finance Minister for initiation of the departmental proceedings would also cover the approval of the charge memo.
49. We are unable to accept the submission of the learned Addl. Solicitor General. Initially, when the file comes to the Finance Minister, it is only to take a decision in principle as to whether departmental proceedings ought to be initiated against the officer. Clause (11) deals with reference to CVC for second stage advice. In case of proposal for major penalties, the decision is to be taken by the Finance Minister. Similarly, under Clause (12) reconsideration of CVC's second stage advice is to be taken by the Finance Minister. All further proceedings including approval for referring the case to DoP&T, issuance of show-cause notice in case of disagreement with the enquiry officer's report; tentative decision after CVC's second stage advice on imposition of penalty; final decision of penalty and revision/review/memorial have to be taken by the Finance Minister.
51. Ms. Indira Jaising also submitted that the purpose behind Article 311, Rule 14 and also the Office Order of 2005 is to ensure that only an authority that is not subordinate to the appointing authority takes disciplinary action and that rules of natural justice are complied with. According to the learned Addl. Solicitor General, the Respondent is not claiming that rules of natural justice have been violated as the charge memo was not approved by the disciplinary authority. Therefore, according to the Addl. Solicitor WP(C) 5498/2021 Page 49 of 88 General, the CAT as well as the High Court erred in quashing the charge sheet as no prejudice has been caused to the Respondent.
52. In our opinion, the submission of the learned Addl. Solicitor General is not factually correct. The primary submission of the Respondent was that the charge sheet not having been issued by the disciplinary authority is without authority of law and, therefore, non est in the eye of law. This plea of the Respondent has been accepted by the CAT as also by the High Court. The action has been taken against the Respondent in Rule 14(3) of the CCS (CCA) Rules which enjoins the disciplinary authority to draw up or cause to be drawn up the substance of imputation of misconduct or misbehaviour into definite and distinct articles of charges. The term "cause to be drawn up" does not mean that the definite and distinct articles of charges once drawn up do not have to be approved by the disciplinary authority. The term "cause to be drawn up" merely refers to a delegation by the disciplinary authority to a subordinate authority to perform the task of drawing up substance of proposed "definite and distinct articles of charge sheet". These proposed articles of charge would only be finalized upon approval by the disciplinary authority. Undoubtedly, this Court in the case of P.V. Srinivasa Sastry and Ors. Vs. Comptroller and Auditor General and Ors.; 1993 (1) SCC 419 has held that Article 311(1) does not say that even the departmental proceeding must be initiated only by the appointing authority. However, at the same time it is pointed out that: (SCC p.422, Para 4.
4."However, it is open to Union of India or a State Government to make any rule prescribing that even the proceeding against any delinquent officer shall be initiated by an officer not subordinate to the appointing authority." It is further held that "Any such rule shall not be inconsistent with Article 311 of the Constitution because it will amount to providing an WP(C) 5498/2021 Page 50 of 88 additional safeguard or protection to the holders of a civil post."
18.10. Again in the case of Promod Kumar IPS & Anr. (supra), Hon‟ble Supreme Court has reiterated the principle laid down by the Apex Court in the aforesaid case of B.V. Gopinath (supra) and held that the charge memo has to be drawn up or cause to be drawn up by the Disciplinary Authority. It has rejected the plea raised on behalf of the employer that approval of the Disciplinary Authority for initiation of disciplinary proceedings was sufficient and there was no need for another approval for issuance of charge-memo. It has reiterated that if any Authority other than the Disciplinary Authority is permitted to draw the charge memo, the same results in destroying the protection under Article 311(2) of the Constitution of India. The relevant paras 18 to of the said judgment, are quoted as under:-
"Validity of the Charge-Memo
18. Rule 8 of the All India Services (Discipline and Appeal) Rules, 1969 prescribes a procedure for imposing major penalties. A major penalty specified in Rule 6 cannot be imposed except after holding an enquiry in the manner prescribed in Rule 8. Where it is proposed to hold an enquiry against a member of the service under Rule 8, the disciplinary authority shall "draw up or caused to be drawn up"
the substance of the imputation of misconduct or misbehavior into definite and distinct article of charge. The Rule further provides for an opportunity to be given to the delinquent to submit his explanation, the appointment of an inquiring authority and the procedure to be followed for imposition of a penalty with which we are not concerned in this case. The disciplinary authority as defined [2023:RJ-JP:13575-DB] (37 of 58) [CW- 10126/2016] in Rule 2(b) is the authority competent WP(C) 5498/2021 Page 51 of 88 to impose on a member of the service any of the penalties specified in Rule 6. Rule 7 provides that the authority to institute proceedings and to impose penalty on a member of All India Service is the State Government, if he is serving in connection with the affairs of the State. There is no doubt that the Government of Tamil Nadu is the disciplinary authority. The authority to act on behalf of the State Government as per the Business Rules is the Minister for Home Department. There is no dispute that the Hon'ble Chief Minister was holding the said department during the relevant period (2011-2016).
19. Matters pertaining to disciplinary action against IPS, IAS and IFS officers had to be dealt with by the Chief Minister as per Standing Order No.2 dated 09.01.1992 issued by the Chief Minister of Tamil Nadu under Rule 35(4) of the Business Rules which reads as follows:-
Paragraph 18. Disciplinary Action:
Files relating to disciplinary action against IAS/IPS/IFS Officers in the senior-grade and above at the stage of issue of charge memo/show cause notice to the above officers alone should be circulated to the Chief Minister.
In the case of Secretaries to Government where action is contemplated under Rule 17(a) or 17(b) of the Tamil Naidu Civil Services (CC & A) Rules such files should be circulated to the Chief Minister. In the case of Heads of Department files where action is contemplated under Rule 17(b) of the T.N.C.S. (CC & A) Rules, alone should be circulated to the Chief Minister. In the case of District Revenue Officers, the files should be circulated to the Chief Minister only at the stage of imposition of [2023:RJ-JP:13575-DB] (38 of 58) [CW-10126/2016] penalty after obtaining the explanation of the officers.WP(C) 5498/2021 Page 52 of 88
In the case of Joint Secretary Deputy Secretary where action is contemplated under Rule 17(b) of the T.N.C.S. (CC & A) Rules such cases should be circulated by the Chief Secretary to the Chief Minister.
In respect of all other officers files should be circulated to the Chief Minister as per Business Rules."
20. By an order dated 19.04.2018, we directed the Chief Secretary, State of Tamil Nadu to file an affidavit explaining the position pertaining to the Business Rules and the standing orders. The affidavit filed by the Chief Secretary, Government of Tamil Nadu dated 14.05.2018 discloses that the first Respondent was arrested on 02.05.2012. He was placed under suspension on 10.05.2012 under Rule 3(2) of the All India Services (Discipline and Appeal) Rules, 1969 after obtaining the approval of the Hon'ble Chief Minister on the note for circulation dated 09.05.2012. It was further stated in the affidavit that regular departmental action for a major penalty was initiated against Respondent No. 1 under the All India Services (Discipline and Appeal) Rules, 1969 on 05.04.2013 after obtaining the approval of the Hon'ble Chief Minister.
21. It is clear that the approval of the disciplinary authority was taken for initiation of the disciplinary proceedings. It is also clear from the affidavit that no approval was sought from the disciplinary authority at the time when the charge memo was issued to the delinquent officer. The submission made on behalf of the Appellant is that approval of the disciplinary authority for initiation of disciplinary proceedings was sufficient and there was no need for another approval for issuance of charge memo. The basis for such submission is that initiation of disciplinary proceedings and issuance of charge memo are at the same stage. We are unable to agree [2023:RJ-
WP(C) 5498/2021 Page 53 of 88JP:13575-DB] (39 of 58) [CW-10126/2016] with the submission in view of the judgment of this Court in B.V. Gopinath (supra). In that case the charge memo issued to Mr. Gopinath under Rule 14(3) of the Central Civil Service (Classification, Control and Appeal) Rules, 1965 was quashed by the Central Administrative Tribunal on the ground that the Finance Minister did not approve it. The judgment of the Tribunal was affirmed by the High Court. The Union of India, the Appellant therein submitted before this Court that the approval for initiation of the departmental proceedings includes the approval of the charge memo. Such submission was not accepted by this Court on an interpretation of Rule 14(3) which provides that the disciplinary authority shall "draw up or cause to be drawn up"
the charge memo. It was held that if any authority other than the disciplinary authority is permitted to draw the charge memo, the same would result in destroying the underlying protection guaranteed under Article 311(2) of the Constitution of India.
22. Rule 8(4) of the All India Service (Discipline and Appeal) Rules, 1969 also mandates that the disciplinary authority shall "draw up or cause to be drawn up" the charge memo. We see no reason to take a view different from the one taken by this Court in B.V. Gopinath (supra). We also see no substance in the submission made by the Senior Counsel for the State that the said judgment needs reconsideration. Assuming that Mr. Giri is right in his submission that the initiation of disciplinary proceedings and issuance of charge memo are at the same stage, the mandatory requirement of Rule 8 which provides for the charge memo to be drawn by the disciplinary authority cannot be ignored. We reject the submission on behalf of the Appellant that Gopinath's case can be distinguished on facts. We are not in agreement with the contention of the Appellant that the business Rules and standing orders of the State of Tamil Nadu are quite different from the office orders and circulars issued by the Union of India which formed WP(C) 5498/2021 Page 54 of 88 the basis of the judgment in Gopinath's case. A close [2023:RJ-JP:13575-DB] (40 of 58) [CW-
10126/2016] reading of the said judgment would disclose that reliance on the office note was only in addition to the interpretation of the Rule.
23. It is also settled law that if the Rule requires something to be done in a particular manner it should be done either in the same manner or not at all- Taylor Vs. Taylor [(1875) 1 Ch. D. 426, 431]. In view of the mandatory requirement of Rule 8(4) and the charge memo being drawn up or cause to be drawn up by the disciplinary authority is not complied with, we are of the considered opinion that there is no reason to interfere with the judgment of the High Court on this issue. The only addition we would like to make is to give liberty to the disciplinary authority to issue a charge memo afresh after taking approval from the disciplinary authority."
18.11. Thereafter, in the case of Sunny Abraham (supra) Hon‟ble Supreme Court, having dealt with an issue of ex-post facto approval by the Disciplinary Authority and found that charge-sheet/charge memo if not having approval of the Disciplinary Authority, would be non-est in the eye of law. The relevant paras 10 to 12 of the said judgment are quoted, as under:-
"10. As it has already been pointed out, the High Court sought to distinguish the case of B.V. Gopinath (supra) with the facts of the present case on the ground that in the case of the Appellant, the Disciplinary Authority had not granted approval at any stage and in the present case, ex-post facto sanction of the charge memorandum or chargesheet was given when the departmental proceeding was pending. The High Court found such approach to be practical and pragmatic, having regard to the fact that the departmental proceeding had remained pending in the case of the Appellant and evidences WP(C) 5498/2021 Page 55 of 88 had been recorded. The High Court thus considered [2023:RJ-JP:13575-DB] (41 of 58) [CW- 10126/2016] the fact that in the case of B.V. Gopinath (supra), the proceeding stood concluded whereas in the Appellant's case, it was still running when ex-post facto approval was given. That was the point on which the ratio of B.V. Gopinath (supra) was distinguished by the High Court.
11. We do not think that the absence of the expression "prior approval" in the aforesaid Rule would have any impact so far as the present case is concerned as the same Rule has been construed by this Court in the case of B.V. Gopinath (supra) and it has been held that chargesheet/charge memorandum not having approval of the Disciplinary Authority would be non est in the eye of the law. Same interpretation has been given to a similar Rule, All India Services (Discipline and Appeal) Rules, 1969 by another Coordinate Bench of this Court in the case of State of Tamil Nadu v. Promod Kumar, IPS and Anr. [(2018) 17 SCC 677] (authored by one of us, L. Nageswara Rao, J). Now the question arises as to whether concluded proceeding (as in the case of B.V. Gopinath) and pending proceeding against the Appellant is capable of giving different interpretations to the said Rule. The High Court's reasoning, referring to the notes on which approval for initiation of proceeding was granted, is that the Disciplinary Authority had taken into consideration the specific charges. The ratio of the judgments in the cases of Ashok Kumar Das (supra) and Bajaj Hindustan Limited (supra), in our opinion, do not apply in the facts of the present case. We hold so because these authorities primarily deal with the question as to whether the legal requirement of granting approval could extend to ex-post facto approval, particularly in a case where the statutory instrument does not specify taking of prior or previous approval. It is a fact that in the Rules with which we are concerned, there is no stipulation of taking "prior"WP(C) 5498/2021 Page 56 of 88
approval. But since this very Rule has been construed by a Coordinate Bench to the effect that the approval of the Disciplinary Authority should be there before issuing the charge memorandum, the principles of law enunciated in the aforesaid two cases, that is Ashok Kumar Das (supra) and Bajaj [2023:RJ-JP:13575-DB] (42 of 58) [CW-
10126/2016] Hindustan Limited (supra) would not aid the Respondents. The distinction between the prior approval and approval simplicitor does not have much impact so far as the status of the subject charge memorandum is concerned.
12. The next question we shall address is as to whether there would be any difference in the position of law in this case vis-à-vis the case of B.V. Gopinath (supra). In the latter authority, the charge memorandum without approval of the Disciplinary Authority was held to be non est in a concluded proceeding. The High Court has referred to the variants of the expression non est used in two legal phrases in the judgment under appeal. In the context of our jurisprudence, the term non est conveys the meaning of something treated to be not in existence because of some legal lacuna in the process of creation of the subject-instrument. It goes beyond a remediable irregularity. That is how the Coordinate Bench has construed the impact of not having approval of the Disciplinary Authority in issuing the charge memorandum. In the event a legal instrument is deemed to be not in existence, because of certain fundamental defect in its issuance, subsequent approval cannot revive its existence and ratify acts done in pursuance of such instrument, treating the same to be valid. The fact that initiation of proceeding received approval of the Disciplinary Authority could not lighten the obligation on the part of the employer (in this case the Union of India) in complying with the requirement of Sub-clause (3) of Rule 14 of CCS (CCA), 1965. We have quoted the two relevant sub- clauses earlier in this judgment. Sub-clauses (2) and (3) of Rule 14 contemplates independent WP(C) 5498/2021 Page 57 of 88 approval of the Disciplinary Authority at both stages-for initiation of enquiry and also for drawing up or to cause to be drawn up the charge memorandum. In the event the requirement of Sub- clause (2) is complied with, not having the approval at the time of issue of charge memorandum under Sub-clause (3) would render the charge memorandum fundamentally defective, not capable of being validated retrospectively. What is non- existent in the eye of the law cannot be revived retrospectively. Life cannot be breathed into the stillborn charge [2023:RJ-JP:13575-DB] (43 of 58) [CW-10126/2016] memorandum. In our opinion, the approval for initiating disciplinary proceeding and approval to a charge memorandum are two divisible acts, each one requiring independent application of mind on the part of the Disciplinary Authority. If there is any default in the process of application of mind independently at the time of issue of charge memorandum by the Disciplinary Authority, the same would not get cured by the fact that such approval was there at the initial stage. This was the argument on behalf of the authorities in the case of B.V. Gopinath (supra), as would be evident from paragraph 8 of the report which we reproduce below:
8. Ms. Jaising has elaborately explained the entire procedure that is followed in each and every case before the matter is put up before the Finance Minister for seeking approval for initiation of the disciplinary proceedings. According to the learned Additional Solicitor General, the procedure followed ensures that entire material is placed before the Finance Minister before a decision is taken to initiate the departmental proceedings. She submits that approval for initiation of the departmental proceedings would also amount to approval of the charge memo. According to the learned Additional Solicitor General, CAT as well as the High Court had committed a grave error in quashing the departmental proceedings against the Respondents, as the procedure for taking approval WP(C) 5498/2021 Page 58 of 88 of the disciplinary authority to initiate penalty proceeding is comprehensive and involved decision making at every level of the hierarchy."
18.12. Over and above, from the affidavit in opposition filed by the respondent No. 2, 3, 4 and 5, on 04.01.2022, specially in paragraph No.5, also it appears that the charge sheet was never placed and approved by the E.C. The stand taken in the affidavit is extracted as under:-
‚Further, it would be pertinent to point out here that subsequent to the aforementioned Executive Council Resolution dated 08.06.2021, the Charge memo was issued, since the Vice Chancellor being the Chairman of the Executive Council, Gauhati University proposed to hold an inquiry against the Writ Petitioner and the Registrar & Secretary ex-officio of the Executive Council, Gauhati University issued the relevant Memorandum dated 22.06.2021, by order and in the name of the Executive Council (ANNEXURE-8 of the Writ petition may be referred to).
18.13. It is also stated that in the said paragraph as under:-
‚Moreover, the said Memorandum dated 22.06.2021 was issued after proper legal consultation as per the decision of the Executive Council and in tune with the provisions enshrined in the Gauhati University Act, 1947 and it was also duly intimated to the Executive Council of the University on numerous occasion in different stages of its discussions without any objection in this regard. Furthermore, by the said Memorandum dated 22.06.2021 the Writ Petitioner was informed that "an inquiry will be held only in respect of those articles of charges as are WP(C) 5498/2021 Page 59 of 88 not admitted‛ and therefore he was asked ‚specifically admit or deny each articles of charges.‛ 18.14. From the aforesaid averment, it becomes clear that the charge sheet was not approved by the disciplinary authority. Rather it appears that the same was issued without approval of the E.C., since the Vice Chancellor being the Chairman of the Executive Council, Gauhati University proposed to hold an inquiry against the Writ Petitioner and the Registrar & Secretary ex-officio of the Executive Council, Gauhati University issued the relevant Memorandum dated 22.06.2021, by order and in the name of the Executive Council and it was also duly intimated to the Executive Council on numerous occasions in different stages of its discussions without any objection in this regard.
18.15. Thus, it becomes crystal clear that the petitioner herein has succeeded in demonstrating from the record that without approval of the disciplinary authority, charge-sheet was furnished to the petitioner, in view of the decision of Hon‟ble Supreme Court in Sunny Abraham (supra), it can safely be concluded that the charge sheet, so furnished to the petitioner is non-est in the eye of law, and fundamentally defective and such defect cannot be cured by subsequent post facto approval or ratification.
18.16. Under the given factual and legal matrix, the Issue No. II has to be answered in affirmative, and accordingly, the same stands answered by holding that the charge-sheet, so served upon the petitioner, was non- est in the eye of law for not being placed before the disciplinary authority and also on account of non approval of the same by the disciplinary authority.
WP(C) 5498/2021 Page 60 of 88Issue No. III
19. This relates to the findings, so recorded by the Inquiry Officer in respect of the charges being proved against the petitioner. It is to be looked into, if the said finding is based upon legally admissible evidence or not.
The Argument of perversity in the Inquiry Report:-
19.1. It is the categorical contention of Mr. Choudhury that there is perversity in the report of the Inquiry Officer. He has pointed out that the Inquiry Officer had tried to cover up the illegal acts of the disciplinary authority by providing fictitious information in page No.3 of the report to the effect that the disciplinary authority i.e. the Executive Council, not being satisfied with the explanation offered after perusal of the response to the charge-sheet by the Charges Officer (CO), decided to initiate a disciplinary proceeding against Dr. Kandarpa Das, in view of the fact that it is an well established fact that neither the charge memo dated 22.06.2021, nor the reply of the petitioner dated 28.06.2021, was placed before the Executive Council for its perusal/approval.
19.2. It is to be noted here that in point No.6 of the Inquiry Report, the Inquiry Officer has noted as under:-
‚6. The Disciplinary Authority i.e. the Executive Council, not being satisfied with the explanation offered, after perusal of the response to the Charge sheet by the CO, decided to institute a Disciplinary Proceeding against Dr Kandarpa Das. Accordingly, Registrar GU Dr. H.K. Nath sent a letter to Pallab Bhattacharyya vide Letter Ref. No. GU/Regr(SF)/2021/92 dated 01-07-2021 appointing him as the Enquiry Officer(EO or 10) for conducting the Departmental Proceeding (DP). Copy of the Charge WP(C) 5498/2021 Page 61 of 88 sheet served to Prof Kandarpa Das and Written Statement from Prof. Kandarpa Das were also enclosed with the Appointment Letter.‛ 19.3. But, in paragraph No.16.9, of this judgment this court has already recorded a finding to the effect that -it appears from the record as well as from the submission of Mr. Choudhury, the learned counsel for the petitioner, that the Inquiry Officer was appointed before serving the charge-sheet upon the petitioner and without considering the reply submitted by the petitioner, which seems to be in violation of the provision of Rule 9(4) of the Assam Services (Discipline and Appeal) Rules, 1964.
19.4. In that view of the matter, the finding of the Inquiry Officer in paragraph No. 6 of the Inquiry Report is not born out of the record and on such count the same is perverse and thereby set the grounds for interference of this court by invoking the power of judicial review by this court.
19.5. Further, it appears that the Inquiry Officer has also ignored the communication dated 18.01.2019, issued to the State Government by the then Registrar I/C of Gauhati University, where running of unapproved courses by the GUIDOL was said to be bona-fide error of judgment, while it is well settled in the case of J. Ahmed (supra) that error of judgment cannot be construed as misconduct, under the service jurisprudence. And in that view of the matter, the Inquiry Officer seems to have conducted roaming and fishing inquiry, as pointed out by Mr. Choudhury, the learned counsel for the petitioner, and on such count the finding of the Inquiry Officer not being supported by any material, is perverse.WP(C) 5498/2021 Page 62 of 88
19.6. Mr. Choudhury has also pointed out several other perversities in the inquiry report in respect of Articles of charge Nos. 1, 3, 4, 5, 6 and 7 by introducing some extraneous material that caused prejudice to the petitioner in the inquiry.
19.7. Thus, having carefully gone through the same, this Court finds force in the submission of Mr. Choudhury, learned counsel for the petitioner, that it is well settled that it is not open to the authorities to generate extraneous allegation, with which petitioner was not charged.
19.8. Notably, from page 101 of the writ petition, it appears that in respect of Article 1 of the charge sheet, the Inquiry Officer has held that -
"The CO as head of IDOL immediately after joining in the year 2006, seeing the unavailability of any statute or ordinance should have proactively used these materials to frame the guidelines and put it up in appropriate forum for approval." This observation was made by the I.O. in acceptance of the fact that there was no clear cut statute and Ordinance defining the duties and responsibilities of Director, IDOL. But, nowhere in the charge sheet, as discussed in the foregoing para, has this fact formed a part and on such count the same is an extraneous material. In that view of the matter, the petitioner herein was denied the opportunity to defend himself in respect of this new allegation. Therefore, by production of extraneous material, the enquiry proceeding has vitiated.
19.9. It also appears from page 114 of the writ petition that the Inquiry Officer, with regards to Article No. 2 of the charge sheet arrived at the conclusion that "If there is any omission and commission in the working of VC, AC or EC there is appropriate forum to deal with them departmentally. The purview of the instant WP(C) 5498/2021 Page 63 of 88 DP is to limit itself to the charge sheet issued to the CO." This finding appears to be an attempt to selectively victimize the petitioner, though it involves commissions and omissions by several authorities and not the Charged Officer alone.
19.10. In respect of the Article No. 3 & 4, page 123 of the writ petition indicates that the I.O. had observed that -"Had CO wished to ensure recognition of the unapproved courses something more proactive like visiting DEC/DEB could have been resorted to. The visit of Expert Committee and its refusal to accord recognition to other unapproved courses is a clear testimony of the state of affairs in IDOL. When the Expert team visited GU/IDOL the Director could have interacted with the team regarding the shortcomings of the Institution for the un-recognised courses and take effective steps for taking corrective actions which was not discernible from the evidence adduced". But, these facts are not related to the charge sheet and thereby the I0 had imported his personal knowledge not related to the Charge Memo and statement of allegations, which is a glaring instance of violation of the principle of Natural Justice. The I.O. also concluded that -"being the head of the organisation, it was his responsibility to obtain necessary approvals" is a instance of non-application of mind by the IO, despite the fact that the responsibility of getting recognition/approval from DEC/UGC primarily lies with the Registrar. Same is the position in respect of Article No.4 and is an attempt to selectively implicate the petitioner.
19.11. From page 136 of the writ petition, it becomes apparent that in respect of Article No.5, the I.O. concluded that ‚Though these WP(C) 5498/2021 Page 64 of 88 affidavits were sworn by the concerned Registrar as the nodal authority these were prepared by the Director and as such he is squarely responsible for such misrepresentation.‛ And in view of the evidence of Dr. S. K. Nath (examined by the presenting officer) who had admitted that "All Affidavits were approved by my competent authority (VC) before signing as were done in other similar important cases" and also in view of the Affidavits were sworn by the Registrar dated 18.03.2016 (two affidavits) and 14- 07-2016 i.e. after the tenure of the petitioner as Director, GUIDOL, the finding so recorded appears to be perverse, who had selectively ignored and misrepresented the facts above.
19.12. From the last paragraph of page 145 of the writ petition it appears that in respect of Article No.6, the IO has observed that "The absence of imputations relating to the charge as objected by CO is not explained by PO." But, what the Inquiry Officer had ignored is that Rule 9 (2) of the Assam Services (Discipline and Appeal) Rule, 1964 provides that the charge has to be based upon statement of allegations. In absence of such statement of allegation the petitioner is deprived of filing his reply, and on such count the charge in Article No. 6 becomes null and void. But, this aspect eschewed consideration of the I.O. Instead he went on to observe as under:- "The CO contends that there was neither any laid down procedure for working of Director, GUIDOL nor he had any decision making power (not being member of AC & EC) and he as such followed the instruction of his superiors like VC, AC and EC. This argument does not hold water as being the head of an institution, he could and should have influenced his superiors based on the established guidelines of DEC/DEB WP(C) 5498/2021 Page 65 of 88 and the GU practices in place." Thus, it appears that the I.O. had tried to step into the shoes of the Disciplinary authority and attempted to formulate statement of allegations and become a witness himself effectively trying to become the Judge of his own case.
19.13. It appears from the page No. 152 of the petition that in respect of Article No.7, the I.O. had observed that- "Now these funds obtained from DEC/DEB were obviously spent to run the courses some of which were not recognized by the DEC/DEB. Though to find out the exact amount of fund spent on unapproved courses require a detailed enquiry there can be no denying the fact that the amount spent on the unapproved courses could have been avoided. Hence the fund spent on these courses can be considered as avoidable expenditure."
This observation, specially "Now these funds obtained from DEC/DEB were obviously spent to run the courses some of which were not recognized by the DEC/DEB‛, seems to be neither based on the statement of allegation nor on the evidences adduced. Such finding of the I.O., being not based upon any material, is perverse and thereby causing serious prejudice to the petitioner and on such count the disciplinary proceeding stands vitiated.
19.14. In view of aforesaid discussion and findings, Issue No. III has to be answered in affirmative. This court is of the considered opinion that the finding of the Inquiry Officer, in respect of the charges being proved against the petitioner, are perverse on account of the same being not based upon legally admissible evidence. And on such count the impugned order of removal, dated 06.10.2021, is liable to be interfered with, being based upon a perverse finding of the I.O. in the Inquiry Report.
WP(C) 5498/2021 Page 66 of 88Issue No. IV:-
20. This issue relates to making the petitioner scapegoat, by adopting a pick and choose policy, even though there was recommendation of Dr. Justice Saikia Commission for taking action against the Vice-Chancellor and other persons also.
20.1. It is the contention of Mr. Choudhury, learned counsel for the petitioner, that before joining of the petitioner as Director, GUIDOL on 19.08.2006, several unapproved courses were offered and the same continued even after his tenure and the Academic Council (AC) of the University, had taken the decision to run any course in GUIDOL, which was approved by the Executive Council and that the Director of GUIDOL was neither a member of the Academic Council nor Executive Council. Mr. Choudhury, learned counsel for the petitioner, has also pointed out that Justice Saikia Commission had nowhere stated that the petitioner was solely responsible for running the unapproved courses in GUIDOL and it had recorded a finding that the unapproved courses continued with full knowledge and support of the Gauhati University authorities, including the Vice Chancellors, Registrars, the Academic Council and the Executive Council and as such, all of them appear to be responsible. Mr. Choudhury also pointed it out that by adopting a pick and choose policy the respondent authorities decided to proceed only against the petitioner and thereby made him scapegoat and this is not permissible. To supplement weight to his argument Mr. Choudhury has referred to a decision of Hon‟ble Supreme Court in Bongaigaon Refinery & Petrochemicals Ltd. and others v. Girish Chandra Sarma, reported in (2007) 7 SCC 206.
WP(C) 5498/2021 Page 67 of 8820.2. As discussed in paragraph No.14 of this judgment, Dr. Justice Saikia Commission had made 8 recommendations and out the 8 recommendations three recommendations related to initiate appropriate action against the Vice Chancellors of Gauhati University, who served during the period of 2010-2017, the then Director(s) of GUIDOL who served during the period 2010-17, the then Registrars who served during the period 2010-17.
20.3. But, it appears that the petitioner has been singled out in this case. Notably, the petitioner being the Director, was neither a member of the EC nor of AC, and as such, it is difficult to accept that without the knowledge of the Vice-Chancellor, Registrars and members of the Academic Council and the Executive Council, the decision to run the unapproved courses, was taken by the petitioner herein alone. The assertion made by the petitioner in paragraph No. 44 of the petition is not specifically traversed by the respondents in para No.10 of the affidavit in opposition filed by the respondent authorities. It is conspicuously silent as to why no action was initiated against the then VC and Registrars and other Directors of GUIDOL. Moreover, the dissenting note of Professor H.K. Sharma, which is annexed to the affidavit-in-reply of the petitioner, also indicates that -
‚6. Introduction of new courses, admission to any of the courses of the IDOL, GU is regulated by the statutory provisions of the Gauhati University Act. The same has been substantiated by a written statement of Dr. Mridul Hazarika, former Vice Chancellor of GU to Mr. K. K. Sharma, Secretary in the Department of Higher Education, Government of India on 03/08/2017. Dr. Hazarika wrote "Prior to and after obtaining Institutional Recognition, WP(C) 5498/2021 Page 68 of 88 GUIDOL, introduced several Masters Degree courses and Diploma Programmes by following the established Gauhati University statutory procedure." A Core Committee or an advisory Board was always there since its inception in which VC was the Chairman and Registrar, Controller, Academic Registrar, Treasurer etc. were other members of this committee or the Board. Every action was carried out according to the resolutions taken in this committee or Board.‛ 20.4. Under the given factual matrix there appears to be sufficient force in the submission of Mr. Choudhury that the petitioner was singled out and made scapegoat. And the decision in Bongaigaon Refinery & Petrochemicals Ltd.(supra), so relied upon by him, also strengthened his submission. Notably in the aforesaid case it has been held by Supreme Court in para No.17, 18 and 22 as under:-
‚17. All the three committees i.e. Tender Committee (Technical) along with the respondent, other four members were there and similarly in Techno-commercial Committee along with the respondent as member there were other four members and likewise in the Price Negotiation Committee Shri S.C. Goswami, General Manager (Marketing) was Chairman, Shri P.K. Baruah, Deputy General Manager (Project/GM) (HRD), Shri D.B. Das, Deputy General Manager, Shri T.V. John, CM/DGM (Finance) and Shri P.K. Gogoi, SM/CM (Project-Civil) were the members along with the respondent. All these three Committees have processed the deal and it is only the respondent who has been made a scapegoat.
18. After going through the report and the finding recorded by the Division Bench of the High Court, we are of opinion that in fact the Division Bench correctly assessed the situation that the WP(C) 5498/2021 Page 69 of 88 respondent alone was made a scapegoat whereas the decision by all three Committees was unanimous decision by all these members participating in the negotiations and the price was finalised accordingly. It is not the respondent alone who can be held responsible when the decision was taken by the Committees. If the decision of the committee stinks, it cannot be said that the respondent alone stinks; it will be arbitrary. If all fish stink, to pick one and say only it stinks is unfair in the matter of unanimous decision of the Committee.
22. The learned Additional Solicitor General has submitted that since learned counsel for the respondent-writ petitioner has already abandoned the plea of perversity i.e. that the finding is perverse, the same is not open for learned counsel for the respondent-writ petitioner to press again before the Division Bench of the High Court. Since the writ appeal is in continuation of the original order passed in the writ jurisdiction by the learned Single Judge, it cannot operate as an estoppel against learned counsel for the respondent to press the same. If the finding recorded by the inquiring officer is not sound and it relates to perversity then the appellate court in writ appeal cannot estop the counsel from raising the same.
More so, the Division Bench after considering the matter has found that the whole approach was perverse because the respondent alone has been made a scapegoat. When the decision of all the three Committees was unanimous, then to take one and put the entire blame on him is definitely perverse approach and the court cannot stand to the technicalities so as to defeat the ends of justice. Thus, the submission of the learned Additional Solicitor General has no merit.
WP(C) 5498/2021 Page 70 of 8820.5. In view of above the Issue No. IV has to be decided in affirmative and accordingly, the same stands answered. And in view of affirmative finding of this issue, and as held in the case of Bongaigaon Refinery & Petrochemicals Ltd.(supra), the approach of the respondent authority in proceeding against the petitioner only, is a perverse approach.
21. Moving forward to Issue No. V, this court finds that this issue relates to the availability of alternate remedy, and the bar in availing extra-ordinary remedy.
21.1. As states earlier, Mr. Saikia, learned Advocate General, submits that there is a provision for filing appeal under Rule 15 of the Assam Services( Discipline and Appeal) Rules, 1964, to challenge the impugned removal order and in view of availability of the efficacious and alternative remedy and without availing the same, the petitioner cannot approach this court directly under Article 226 of the Constitution of India.
21.2. The counter argument of Mr. Choudhury, learned counsel for the petitioner, is that though against the impugned removal order, an appeal lies, yet the petitioner chooses not to avail the same in view of the fact the Chancellor of Gauhati University to whom the appeal lies, is also the Chancellor of the K.K. Handique State Open University, who had suspended the petitioner from the post of Vice Chancellor of said University, while he was serving there availing lien, on the same ground and that the Chancellor had already formed an opinion for which the petitioner has found the alternative remedy would not be efficacious. And as such, and also on account of violation of the principle of natural WP(C) 5498/2021 Page 71 of 88 justice, availability of alternative remedy and not availing the same would not be a bar in availing the extraordinary remedy.
21.3. The submission of learned counsel for both the parties have received due consideration of this court. Indisputably there is a provision in Assam Services (Discipline and Appeal) Rules 1964 i.e. Rule 15, which provides for appeal. And admittedly, the same has not been availed by the petitioner. The reason assigned by the petitioner is that the Chancellor is the appellate authority and the same Chancellor has suspended him from the post of Vice Chancellor of K.K. Handique State Open University (KKHSOU) vide order dated 13.08.2021, (Annexure-12 of the writ petition) and nowhere in the said order it is reflected that the order was issued pending drawal of departmental proceeding and subsequently, he was removed from that posts. On such ground the petitioner has found that the appeal would not be an efficacious remedy as the Chancellor had already formed an opinion.
21.4. The reason so put forwarded, cannot be said to be irrelevant or stale. In the case of Whirlpool Corpn. v. Registrar of Trade Marks, Mumbai and others, reported in (1998) 8 SCC 1, Hon‟ble Supreme Court has held that the alternative remedy shall not to operate as a bar in at least three contingencies, namely:-
(i) where the writ petition has been filed for the enforcement of any of the Fundamental Rights or
(ii) where there has been a violation of the principle of natural justice or
(iii) where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.WP(C) 5498/2021 Page 72 of 88
21.5. The relevant paragraph is extracted herein below:-
‚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.‛ 21.6. In the instant case, it has already been found and held that the disciplinary proceeding was initiated and also conducted in contravention of the procedure prescribed in that behalf i.e. in contravention of the provision of Rule 9(2) and Rule 9(4) of the Assam Services(Discipline and Appeal) Rules, 1964 for imposing a major penalty under Rule 7 of the said Rules and also in contravention of the principles of natural justice. In that view of the matter, this court has the authority to review the disciplinary proceeding by exercising its power under Article 226 of the Constitution of India. Therefore, this court is unable to agree with the submission advanced by Mr. Saikia, learned Advocate General, Assam, in this regard.WP(C) 5498/2021 Page 73 of 88
21.7. Under the aforesaid factual and legal matrix, the Issue No. V, stands answered by holding that the availability of alternative remedy would not be a bar in approaching the court to invoke the jurisdiction under Article 226 of the Constitution of India.
22. Moving forward to the Issue No. VI, i.e. whether the petitioner has succeeded in demonstrating a case for interference of this court in exercising the power of judicial review, while the scope of judicial review in service matters is very limited, this court finds that- it is well settled that the scope of judicial review in respect of disciplinary matter is very limited. Mr. Saikia, the learned Advocate General, Assam has rightly pointed this out. However, this is not the absolute proposition of law, according to Mr. Choudhury, learned counsel for the petitioner.
22.1. It is also well settled that when the statutory provision and the principles of natural justice are violated, the Court has the jurisdiction under Article 226 of the Constitution of India to interfere with the same. Reference in this context can be made to a decision of Hon‟ble Supreme Court in the case of Union of India and others v. P. Gunasekaran, reported in (2015) 2 SCC 610 , wherein it has been held as under:-
‚12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its WP(C) 5498/2021 Page 74 of 88 powers under Articles 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether:-
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the
procedure prescribed in that behalf;
(c) there is violation of the principles of
natural justice in conducting the
proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, the High Court shall not:-
(i) re-appreciate the evidence;
WP(C) 5498/2021 Page 75 of 88(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience.
22.2. In the instant case there is clear and unambiguous averment that the principles of natural justice have been violated in case of the petitioner on several counts, such as, inquiry officer was appointed prior to filing of charge sheet and due to non approval of the charge sheet by the disciplinary authority and not placing and also non consideration of the reply to show cause before the disciplinary authority, i.e. the Executive Council. In that view of the matter, this court can interfere with the conclusion so arrived at by the Inquiry Officer, by invoking the jurisdiction under Article 226 of the Constitution of India.
22.3. Accordingly, Issue No. VI stands answered.
23. Now, in respect of the last issue, being Issue No.VII, i.e. whether running of the unapproved courses in GUIDOL amounts to „misconduct‟ or not under the service jurisprudence, that has to be looked into.
23.1. Mr. Choudhury, learned counsel for the petitioner, has drawn the attention of this Court to the communication, dated 18.01.2019, issued by the Registrar I/C of Gauhati University, who is presently serving as Vice-Chancellor of the University, has stated that running of unapproved WP(C) 5498/2021 Page 76 of 88 courses was a bona-fide error of judgment on the part of the authorities of GUIDOL, Gauhati University and there was no ill intention on anybody‟s part and the said communication was of dated 18.01.2019, issued on behalf of the University to the Higher Education Department, Govt. of Assam, on CAG‟s report of unapproved courses offered by the GUIDOL. Mr. Choudhury also submits that it is well settled that error of judgment is not misconduct in service jurisprudence. In support of his contention he has relied upon a decision of Hon‟ble Supreme Court in Union of India and others v. J. Ahmed, reported in (1979) 2 SCC 286, and the petitioner has been awarded the major penalty for such error of judgment on the part of the entire authorities of GUIDOL and on such count the punishment imposed seems to be disproportionate.
23.2. The submission of Mr. Choudhury, while examined in the light of the facts and circumstances on the record and also in the light of the decision of Hon‟ble Supreme Court, in the case of J. Ahmed (supra), this Court finds sufficient force in the same. The relevant para in the decision in J. Ahmed is extracted herein below:-
‚11. Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that conduct which is blameworthy for the government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pierce v. Foster [17 QB 536, 542]). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspapers [(1959) 1 WLR 698])]. This view was adopted in Shardaprasad Onkarprasad Tiwari vs. WP(C) 5498/2021 Page 77 of 88 Divisional Superintendent, Central Railway, Nagpur Division, Nagpur [61 Bom LR 1596] , and Satubha K. Vaghela v. Moosa Raza [10 Guj LR 23] . The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under:
‚Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct.‛ In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct but in Utkal Machinery Ltd. v. Workmen, Miss Shanti Patnaik [AIR 1966 SC 1051: (1966) 2 SCR 434: (1966) 1 LLJ 398: 28 FJR 131] in the absence of standing orders governing the employee's undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive. In S. Govinda Menon v. Union of India [(1967) 2 SCR 566: AIR 1967 SC 1274 : (1967) 2 LLJ 249] the manner in which a member of the service discharged his quasi judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings. A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in P.H. Kalyani v. Air France, Calcutta [AIR 1963 SC 1756 :
(1964) 2 SCR 104 : (1963) 1 LLJ 679 : 24 FJR 464] wherein it was found that the two mistakes committed by the employee while checking the load-
sheets and balance charts would involve possible accident to the aircraft and possible loss of human WP(C) 5498/2021 Page 78 of 88 life and, therefore, the negligence in work in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar instances of which a railway cabinman signals in a train on the same track where there is a stationery train causing head-on collision; a nurse giving intravenous injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashes causing heavy loss of life. Misplaced sympathy can be a great evil (see Navinchandra Shakerchand Shah v. Manager, Ahmedabad Coop. Department Stores Ltd. [(1978) 19 Guj LR 108, 120]). But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of WP(C) 5498/2021 Page 79 of 88 Rule 3 of the Conduct Rules as would indicate lack of devotion to duty.
12. The High Court was of the opinion that misconduct in the context of disciplinary proceeding means misbehaviour involving some form of guilty mind or mens rea. We find it difficult to subscribe to this view because gross or habitual negligence in performance of duty may not involve mens rea but may still constitute misconduct for disciplinary proceedings.‛ 23.3. This court has also carefully considered the submission of Mr. Saikia, the learned Advocate General, Assam in this regard and also gone through the decision referred by him in the case of M.M. Malhotra (supra). In the said decision, Hon‟ble Supreme Court has dealt with the issue of misconduct in the following para:-
‚16. The scheme of the disciplinary rules in general is to identify the conduct which is made punishable and then to provide for the various punishments which may be imposed for the acts which are inconsistent with such conduct. For example, the Central Civil Services (Conduct) Rules, 1964 contain provisions which pertain to the standards of conduct which government servants (within the meaning of those rules) are to follow whereas the Central Civil Services (Classification, Control and Appeal) Rules, 1965 provide the punishment or penalties which may be imposed for misconduct. The Conduct Rules and the Rules for punishment may be provided in separate rules or combined into one. Moreover, there are a host of departmental instructions which elucidate, amplify and provide guidelines regarding the conduct of the employees.WP(C) 5498/2021 Page 80 of 88
17. The range of activities which may amount to acts which are inconsistent with the interest of public service and not befitting the status, position and dignity of a public servant are so varied that it would be impossible for the employer to exhaustively enumerate such acts and treat the categories of misconduct as closed. It has, therefore, to be noted that the word ‚misconduct‛ is not capable of precise definition. But at the same time though incapable of precise definition, the word ‚misconduct‛ on reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of the duty. The act complained of must bear a forbidden quality or character and its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the statute and the public purpose it seeks to serve.
18. In Union of India v. Harjeet Singh Sandhu [(2001) 5 SCC 593 : 2001 SCC (L&S) 891] in the background of Rule 14 of the Army Rules, it was held that any wrongful act or any act of delinquency which may or may not involve moral turpitude would be ‚misconduct‛ under Rule 14.
19. In Baldev Singh Gandhi v. State of Punjab [(2002) 3 SCC 667] it was held that the expression ‚misconduct‛ means unlawful behaviour, misfeasance, wrong conduct, misdemeanour, etc.
20. Similarly, in State of Punjab v. Ram Singh Ex.
Constable [(1992) 4 SCC 54 : 1992 SCC (L&S) 793 :
AIR 1992 SC 2188] it was held that the term ‚misconduct‛ may involve moral turpitude. It must be improper or wrong behaviour, unlawful behaviour, wilful in character, forbidden act, a transgression of established and definite rule of WP(C) 5498/2021 Page 81 of 88 action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character.
21. ‚Misconduct‛ as stated in Batt's Law of Master and Servant (4th Edn. at p. 63) ‚comprised positive acts and not mere neglects or failures‛.
The definition of the word as given in Ballentine's Law Dictionary (148th Edn.) is:‚A transgression of some established and definite rule of action, where no discretion is left except what necessity may demand, it is a violation of definite law, a forbidden act. It differs from carelessness.‛ 23.4. In the case in hand, a careful perusal of the Article of charges indicates that what misconduct the petitioner has committed, is silent. It was simply stated that as violation of Rule 4 of the Gauhati University Teachers‟ Conduct Rules, 1984, nothing more and nothing less.
23.5. However, in view of the decision of Hon‟ble Supreme Court in the case of A.L. Kalra v. Project and Equipment Corporation of India Ltd., reported in (1984) 3 SCC 316, where misconduct, when proved, entails penal consequences, it is obligatory on the part of the employer, to specify and if necessary to define it with precision and accuracy, so that any ex post facto interpretation of some incident, may not be camouflaged as misconduct.
23.6. Indisputably, the alleged misconduct entailed penal consequence in the case of the petitioner. However, misconduct has not been defined, though an obligation is casted upon the respondent authority to specify and if necessary to define the same with precision, in view of the decision of Hon‟ble Supreme Court in the case of A.L. Kalra (supra). And as WP(C) 5498/2021 Page 82 of 88 discussed herein above, nothing is mentioned in the Articles of Charges, except, however, mentioning about violation of Gauhati Universities Teachers Conduct Rules, 1984, more particularly Rule 4. Notably Rule 4 of the Gauhati Universities Teachers Conduct Rules, 1984, read as under:-
4. A teacher shall at all time-
(i) maintain absolute integrity,
(ii) maintain devotion to duty,
(iii) be present in the University and make himself available to students and Head of the Department on each working day. This will be applicable to a whole-time teacher only,
(iv) do nothing which is unbecoming of a University Teacher, 23.7. However, in Rule 10 of the said Rules, it is provided that following lapses will shall constitute improper conduct on the part of the teachers:-
(i) Failure to perform his academic duties such as preparation lectures, demonstrations, assessment, guidance, invigi19- tion etc.
(ii) Gross partiality and deliberate over-marking or under marking in the assessment of students.
(iii) Inciting students against other Students, teachers or the administration. (This will not interfere with the right of a teacher to express his difference on principles in seminars or other academic discussions whore students are present).WP(C) 5498/2021 Page 83 of 88
(iv) Raising questions of caste, creed, religion race or sex in matters relating to the affairs of the University or any of its departments or colleges.
(v) Refusal to carry out the decisions and orders of appropriate administrative/Academic bodies end or functionaries of the University. This will not inhibit his right to express his difference with their policies or decision.
23.8. However, in the case in hand there is no allegation of improper conduct on the part of the petitioner herein. And in respect of Rule 4, there is no allegation of not maintaining absolute integrity by the petitioner. Also there is no allegation of not remaining present in the University and make himself available to students and Head of the Department on each working day. In respect of other two i.e. maintain devotion to duty, do nothing which is unbecoming of a University Teacher, this court is of the considered opinion that running of 21 unapproved courses in the GUIDOL in its own version of the respondent University, as per the letter of the then Registrar I/C of the Gauhati University dated 18.01.2019, is a bona-fide error of judgment, which in view of decision of Hon‟ble Supreme Court in the case of J. Ahmed (supra), State of Punjab and others v. Ram Singh Ex. Constable reported in (1992) 4 SCC 54, cannot be termed as misconduct.
23.9. However, neither the disciplinary authority nor the Inquiry Officer had considered the letter of the then Registrar I/C of the Gauhati University dated 18.01.2019, where running of unapproved courses by GUIDOL was said to be of bona-fide error of judgment. And in that view WP(C) 5498/2021 Page 84 of 88 of the matter the submission of Mr. Saikia cannot be concurred with. On the other hand, this court finds sufficient force in the submission of Mr. Choudhury, learned counsel for the petitioner and record concurrence to the same.
The Issue of Estoppels vis-à-vis the law:-
24. It is being argued by Mr. Saikia, learned Advocate General, Assam that during the course of enquiry stated that he has full confidence upon the Inquiry Officer which is noted in the Inquiry Officer itself, and now he cannot turn around to contend that Inquiry Officer is bias and he is barred from raising such issue because of the principle of estoppels.
24.1. The counter submission is of Mr. Choudhury learned counsel for the petitioner, is that the principle of estoppels cannot override the law. Merely, because the petitioner has reposed faith the same cannot stands in his way to challenge a perverse finding of the Inquiry Officer. In support of his submission Mr. Choudhury has referred to decision of Hon‟ble Supreme Court in Krishna Rai vs. Banars Hindu University, Through Registrars and Ors., reported in 2022 LiveLaw(SC) 553.
24.2. This court has considered the submission of learned counsel for both the parties and also gone through the decision of in Krishna Rai (dead) Through LRS. & Ors. (supra) and find sufficient force in the submission of Mr. Choudhury and the decision referred by him also fortified his submission. It is well settled in the said case that the principle of estoppels cannot override the law. When the Assam Services and Discipline and Appeal) Rule 1964, provides for conducting the inquiry against a government servant in a particular manner, then the same has WP(C) 5498/2021 Page 85 of 88 to be conducted in that particular manner only. If it was not done in that manner and thereby violates the principles of natural justice, it is always open to the petitioner to challenge the same. The principle of estoppels would not come into assistance of the respondent herein.
Conclusion:-
25. Thus, to recapitulate on the following counts, the impugned order dated 06.10.2021, is liable to be interfered with:-
(i) The Inquiry Officer, and also the Presenting Officer, both were appointed before the charge sheet being served upon the petitioner, and thereby Rule 9 (1), (2) and (4) of the Assam Services (Discipline And Appeal) Rules 1964 are violated.
(ii) The Charge Sheet, dated 22.06.2021, was not placed before the disciplinary authority, and also not approved by the Disciplinary Authority and thereby Rule 9(2) of the 1964 Rule, is violated and this rendered the consequential proceeding vitiated.
(iii) The reply dated 28.06.2021, filed by the petitioner, was not placed before the disciplinary authority, before appointing the Inquiry Officer, as required by Rule 9(4) of 1964 Rules, which is a pari-materia provision with Rule 14(5)(a) of the CCS (CCA) Rule, 1965 and as held in the case of B.V. Gopinath (supra), Rule 14(5)(a) of CCS(CCA) Rule, is mandatory, and as a logical corollary, it can be held that Rule 9(4) of the Assam Services Discipline and Appeal Rules 1964 is also mandatory.WP(C) 5498/2021 Page 86 of 88
(iv) The petitioner was singled out, though the Commission had recommended action against the Vice Chancellors, Directors and Registrars and as such the approach of the respondent authorities is perverse.
(v) When there is contravention of the principle of natural justice, the court has the authority to review the disciplinary proceeding by exercising its power under Article 226 of the Constitution of India.
(vi) Error of judgment cannot be termed as
misconduct.
(vii) The principle of estoppels cannot override the
law.
(viii) Enquiry report is perverse, as the observation made by the Inquiry Officer in the report, in respect of Article of Charge No. VI, is not supported by any statement of allegation, as required under Rule 9(2) of the Rule 1964, besides, some of the observation made by the Inquiry Officer in respect of the Article of Charges also not based upon statement of allegation or upon evidence, and also in respect of the observation, that having been dissatisfied with the reply submitted by the petitioner, the Executive Council has decided to draw up disciplinary proceeding against the petitioner, is not born out of the record.
26. In the result, this Court finds sufficient merit in this petition and accordingly, the same stands allowed. The impugned order dated 06.10.2021, stands set aside and quashed as the same failed withstand the legal scrutiny. Consequently, the petitioner shall be reinstated to his WP(C) 5498/2021 Page 87 of 88 post, if in the meantime not superannuated from the service, with all consequential service benefits, which the petitioner is legally entitled to.
27. The parties have to bear their own costs.
Sd/- Robin Phukan JUDGE Comparing Assistant WP(C) 5498/2021 Page 88 of 88