Gauhati High Court
WP(C)/4393/2022 on 3 December, 2025
GAHC010129632022
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT
WP(C) No. 4393/2022
Shri Sasanka Saikia,
S/o Late Kamakhya Prasad Saikia,
Village-Kailashpur, Assam Forest School,
PO-Gauhati University, PS-Jalukbari,
District-Kamrup(M), Assam, Pin-781014.
......Petitioner.
-Versus-
1. The Gauhati University,
Represented by its Vice Chancellor,
Jalukbari, Guwahati, Assam,
Pin-781014.
2. The Registrar,
Personnel Department (Establishment Branch),
Gauhati University, Jalukbari,
Guwahati, Assam, Pin-781014.
......Respondents.
For the Petitioner : Mr. A.K. Baruah. ......Advocate.
For the Respondents : Mr. P.J. Phukan, SC, G.U. ......Advocate.
Rajib Digitally signed by
Rajib Kumar Roy
Kumar Roy Date: 2025.12.04
14:38:50 +05'30'
WP(C) 4393/2022 Page 1 of 87
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
Date of Hearing :- 13.11.2025
Date on which judgment is reserved :- 13.11.2025
Date of pronouncement of judgment :- 03.12.2025
Whether the pronouncement is of :- N/A
the operative part of the judgment?
Whether the full judgment has been :- Yes
pronounced?
JUDGMENT AND ORDER (CAV)
Heard Mr. A.K. Baruah, learned counsel for the petitioner and
also heard Mr. P.J. Phukan, learned standing counsel, Gauhati
University, appearing for the respondents.
2. The petitioner, namely, Shri Sasanka Saikia, has instituted this
proceeding, under Article 226 of the Constitution of India, praying
for following relief:-
(i) For setting aside and quashing the Notification dated
25.09.2021 bearing Memo. No GU/Estt/Notification/
2021/5212 -5310 (Annexure - I),
WP(C) 4393/2022 Page 2 of 87
(ii) For issuing direction to the respondent authorities to
forthwith cancel/recall/rescind and/or otherwise forebear
from giving effect to the impugned Notification dated
25.09.2021, bearing Memo No. GU/Estt/Notification/
2021/5212 -5310 (Annexure - I) and/or,
(iii) For issuing direction to the respondent authorities to
allow the petitioner to continue render his services in his
respective post of 'Lower Division Assistant'.
Background facts:-
3. The background facts leading to filing of the present petition,
is adumbrated herein below:-
"After a due selection process, the petitioner was
appointed as a 'Lower Division Assistant' on 20.01.2016,
by the Registrar, Gauhati University in the Office of the
Secretary of the Gauhati University. The petitioner joined
on 27.01.2016, and started discharging his duties to the
utmost satisfaction of all concerned. Initially, he was
appointed on contractual basis for one year. However,
even after completion of one year, his services were not
regularized but extended from time to time. Thereafter, the
petitioner came to learn that services of fifteen similarly
situated candidates who were appointed pursuant to the
same advertisement dated 17.04.2012, were confirmed
and permanently absorbed in their respective posts vide
office order dated 01.11.2016. Then on 24.10.2016,
WP(C) 4393/2022 Page 3 of 87
03.01.2017 and 25.07.2017, the petitioner had submitted
his representations praying for regularization of his service.
But, on 14.03.2017 and 24.07.2017, the Registrar, Gauhati
University issued an order by way of which the service of
the petitioner was extended. Thereafter, also the services
of the petitioner was extended from time to time and not
regularized. Being aggrieved, he had filed one writ petition,
being W.P.(C) No. 4271 of 2018, which is pending for final
adjudication.
Thereafter, the petitioner was suddenly arrested by
the Chief Minister's Special Vigilance Cell on 25.09.2021, in
connection with the APDCL recruitment test. A criminal
case, being Vigilance P.S. Case No. 04 of 2021, was also
registered against the petitioner in this regard. Then on the
same day, i.e. on 25.09.2021, a notification was issued by
the Registrar, Gauhati University by way of which the
services of the petitioner was terminated with immediate
effect. The said Notification, dated 25.09.2021, was issued
without even show-causing the petitioner and without even
providing an opportunity of being heard to the petitioner to
present his case. The same was also never served upon
him. The petitioner came to know about the same only
when he tried to resume his duties. And till filing of the
petition, the petitioner has not been officially
communicated about his termination by the officials of the
Gauhati University.
WP(C) 4393/2022 Page 4 of 87
Thereafter, on 02.03.2022, the petitioner had filed an
application before the State Public Information Officer,
Gauhati University through a former colleague asking as to
why he has not been allowed to work in the said post. But,
no response has been forthcoming from the authorities.
After much effort, he could able to procure the aforesaid
impugned Notification dated 25.09.2021, from reliable but
unofficial sources.
Thereafter, on 04.05.2022, the petitioner visited the
offices of the respondent authorities to submit a
representation highlighting his grievances. However, the
petitioner was not allowed to enter inside the Gauhati
University campus in terms of the Notification dated
25.07.2021. As such, the petitioner asked one of his former
colleagues to submit the representation before the
respondent no. 2. Although, the said representation was
submitted in the office of the respondent no. 2, the officials
refused to acknowledge the said representation by putting
their official seal and signature.
Being aggrieved, the petitioner has approached this
Court by filing the present petition seeking the relief as
aforesaid."
4. The respondent No. 1 and 2 have filed their affidavit-in-
opposition. In the said affidavit, they have taken a stand that the
petitioner was engaged as Lower Division Assistant in the Secretary
WP(C) 4393/2022 Page 5 of 87
Office of the University by an Office Order under Ref. No.-
GU/Estt/C/Appt (Contractual)/ 2016/7861-82 dated 20.01.2016, and
the said engagement is on purely temporary and on contractual
basis initially for a period of 1 (one) Year and may be terminated at
any time without assigning any reasons thereof" and that "The
engagement is subject to getting the character and antecedents to
be verified from the police authorities". Then, after issuance of the
said Office Order dated 20.01.2016, the petitioner‟s engagement
period has been extended from time to time and on the last
occasion, the term was "extended for another period of 6 (six)
months" with effect from 01.07.2021 stipulating that "The other
terms and condition of this extension period of service will be same
as earlier", by an Office Order under Memo No.-
GU/Estt./C/LDA(Cont.)/2021/3692-99 dated 27.07.2021, and as
such the contractual term of the petitioner was to expire on
31.12.2021. It is the further stand of the respondents that the
petitioner has also filed one writ petition being W.P.(C) No.4271 of
2018 along with three others, which is still pending for final
adjudication before this Court. And in the meanwhile, the petitioner
was arrested by the Chief Minister's Special Vigilance Cell and
through a Notification under Memo No.- GU/Estt/Notification/2021/
5212-5301 dated 25.09.2021, the said service of the petitioner "has
been terminated with immediate effect as per Clause No.1 of the
terms and conditions of his appointment order dated 20.01.2016",
also restricting his entry inside the Gauhati University Campus and a
communication, under Memo No.- GU/Estt./C/LDA (Contr.)
WP(C) 4393/2022 Page 6 of 87
/Terminate/2021/5303-08 dated 25.09.2021, has also been issued
stating the termination of his service with immediate effect. And the
said Notification dated 25.09.2021, has been immediately uploaded
in the Gauhati University's official website for information of all
concerned. The petitioner has also been officially intimated about
the termination of his service, through a Speed Post communication
dated 27.09.2021. It is also stated that the petitioner has personally
visited the Office Chamber of the Registrar, GU to submit the Order
dated 30.06.2022, of this Court and also met the Registrar with a
representation on 01.07.2022. Further stand of the respondents is
that after the order of this Court dated 18.11.2021, in B.A. No.-
2882/2021 (Sasanka Saikia -vs.- The State of Assam) granting bail
to the petitioner; he has not approached the Gauhati University
authorities concerned for several months till submission of an RTI
Application in the first part of March, 2022. And prompt reply was
furnished to him by the Public Information Officer of the Gauhati
University through his reply communication dated 02.03.2022, which
was sent in Speed Post. It is also the stand of the respondents that
the petitioner is not at all prejudiced due to the termination of his
contractual engagement with effect from 25.09.2021 and further, he
is also not entitled to any protection under the provisions of the
Assam Services (Discipline and Appeal) Rules, 1964 and/or the
inquiry provision under the Article 311 (2) of the Constitution of
India prior to the said termination, which has also been accepted by
the Executive Council, the highest executive body of the Gauhati
University, exercising its power under the Gauhati University Act,
WP(C) 4393/2022 Page 7 of 87
1947 (as amended). Further stand of the respondents is that the
petitioner has willfully suppressed as well as misled this Court and
therefore, it is contended to dismiss the petition.
5. The petitioner has filed his reply by to the affidavit-in-
opposition filed by the respondents No.1 and 2, denying each of the
statement and averments made therein. The petitioner has also
categorically denied that the impugned Notification dated
25.09.2021, was duly communicated to him and that a bare perusal
of the impugned Notification dated 25.09.2021, makes it abundantly
clear that the same was a notification wherein copies were marked
to the Secretary to the V.C, G.U., Secretary to the Registrar, G.U.,
Administrative Heads, G.U., Heads of academic departments and all
office superintendents and the authorities did not even deem it
necessary to mark and/or serve a copy thereof to the person who is
most aggrieved i.e. the writ petitioner and that with unusual hurry,
the petitioner was terminated on the very same date on which he
was arrested. Neither any show-cause notice was issued to him
informing about the charges against him nor was any departmental
enquiry conducted. The petitioner also denied that he was aware of
his termination order dated 25.09.2021. It is also stated that
dismissal of an employee is governed by the constitutional mandate
of Article 311 (2) of the Constitution of India and not by media
trial(s). And even it is assumed that the impugned Notification dated
25.09.2021, was served upon the petitioner, the same is still liable
to be interfered by this Court since the termination of the petitioner
WP(C) 4393/2022 Page 8 of 87
was not preceded by either any show cause notice informing the
petitioner about the charges against him or a departmental enquiry
in terms of Article 311 (2) of the Constitution of India.
5.1 The petitioner has also filed an affidavit to place on record
following subsequent facts that the writ petition has been filed inter-
alia challenging the impugned Notification dated 25.09.2021,
bearing notification Memo. No. GU/Estt/Notification/2021/5212-5310
(Annexure - I). Then on 30.06.2022, this Court was pleased to issue
notice in the present writ petition and the impugned Notification
dated 25.09.2021, was stayed/suspended until further orders. And
that during the pendency of the present writ petition, on
25.07.2023, this Court in W.P.(C) No. 4271 of 2018 (wherein the
present writ petitioner was arrayed as petitioner No.3) was pleased
to dispose of the same with a direction to the respondent authorities
to process the cases of the petitioner and thereafter, take necessary
steps for regular absorption and/or regularization of the services of
all the petitioners by issuing necessary office orders.
6. The respondents have filed an additional affidavit stating that
this Court by an Order dated 28.05.2024 (in W.P.(C) No.
4393/2022) after hearing both the sides has allowed the respondent
Gauhati University "to file an additional affidavit-in-opposition
indicating the reasons for dispensing with the enquiry", directing the
matter to be listed on 06.06.2024. It is also stated that in a Note
dated 25.09.2021 of the Registrar to the Vice Chancellor of the
University (prior to the issuance of the termination Notification
WP(C) 4393/2022 Page 9 of 87
dated 25.09.2021), while inter alia stating that voluminous records
of more than lakhs of OMR Sheets were there in connection with
Writ Petitioner's Police Custody by CM Special Vigilance Cell and that
the Writ Petitioner's engagement is purely temporary and on
contractual basis initially for a period of 1 (one) year; it has further
been stated that -
"In such situation it is required that any such employee, who
happens to be engaged by Gauhati University be immediately
suspended and charge sheet is to be served upon him to start
the Disciplinary Proceedings. However, this is not feasible to
be done as he is presently in police custody and the relevant
records to be verified for the purpose of Disciplinary
Proceedings, could no longer be accessible for the University.
Further, it is clear that the said disciplinary proceeding (DP, for
short) will be a lengthy and time consuming one, given the
voluminous documents to be checked, while his engagement is
valid only up to 31.12.2021 (i.e. near about 3 months).
Under the circumstances and given the situation, it is
well-nigh impossible or not feasible to start an enquiry against
Mr. Sasanka Saikia in the form of a DP
"As such" and "being satisfied that no enquiry is
feasible", the Writ Petitioner has been sought to be
"terminated from service with immediate effect" in the said
Note, which has subsequently been "Approved as
recommended" same day by the Vice Chancellor of the
WP(C) 4393/2022 Page 10 of 87
University, paving way for the issuance of the aforementioned
termination Notification dated 25.09.2021.
It would be relevant to point out here that the entire
exercise for the purpose of due termination of the Writ
Petitioner's service on 25.09.2021, has been in tune with the
provisions of Article 311 of the Constitution of India including
Article 311(2)(b) as well as Article 311(3) of the Constitution
of India, as enunciated by Hon'ble Apex Court and the Courts
thereunder on numerous occasions in this regard, including
the judgments rendered in Union of India & another -
Versus- Tulsiram Patel, reported in (1985) 3 SCC 398
(Constitution Bench) as well as in Kumari Shrilekha
Vidyarthi & others -Versus- State of U.P. &
others, reported in (1991) 1 SCC 212.
In this context, it may be stated here that the
aforementioned Constitution Bench has clearly held relying
upon the "Oxford English Dictionary" and "Webster's Third
New International Dictionary" that "not reasonably practicable
to hold" the inquiry as contemplated in Article 311(2)(b), is
"not a total or absolute impracticability", but what is "requisite
is that the holding of the inquiry is not practicable in the
opinion of a reasonable man taking a reasonable view of the
prevailing situation".
7. The petitioner has filed reply to the said additional affidavit of
the respondents. It is stated that an affidavit-in-opposition had
WP(C) 4393/2022 Page 11 of 87
already been filed by the respondents as far back as on 28.07.2022.
And now the authorities cannot improve upon the records by
manufacturing fresh ground(s) and this position is well settled in
the case of Mohinder Singh Gill and Another Versus The
Chief Election Commissioner New Delhi and Others,
reported in (1978) 1 SCC 405. In the note dated 25.09.2021,
two things have been stated:-
(i) Firstly, that it is not feasible to initiate the disciplinary
proceeding against the petitioner as he was in police
custody and the relevant records to be verified for the
purpose of disciplinary proceeding could no longer be
accessed by the University.
(ii) Secondly, another purported reason recorded in the
note dated 25.09.2021 is that DP will be lengthy and
time consuming, given the voluminous documents to
be checked, while his engagement is valid only up to
31.12.2021.
The petitioner also states that the purported reason as
recorded above is insufficient, irrelevant, improper as well as not
adequate. And that merely because DP might be lengthy and time
consuming, and the documents which needed to be checked are
voluminous, the authorities could not have dispensed with the
enquiry, more particularly, when lifelong stigmatic remarks have
been made against the petitioner. It is also stated that on
WP(C) 4393/2022 Page 12 of 87
25.07.2023, this Court was pleased to direct the authorities to
regularize the service of the petitioner in W.P.(C) No.4271 of 2018.
Submissions:-
8. Mr. A. K. Baruah, learned counsel for the petitioner, has
argued the matter at length and also supplemented the same by
written argument, and in both the form, he has emphasized on the
following points:-
(i) Firstly, Mr. Baruah submits that before the petitioner being
terminated, no show cause notice was issued to him and no
departmental proceeding was held and as such, not only the
principles of natural justice have been flagrantly violated in the
facts and circumstances of the present case but also the
procedure of inflicting penalty, as stipulated under Rule 48 of
the Gauhati University Employees Service Conditions, Conduct
and Appeal Rules, 1970 was also violated.
(ii) Secondly, he relied upon two decisions-(i) Parshotam Lal
Dhingra Vs. Union of India, so reported in AIR 1958
SC 36; and (ii) Mazid Ansari Vs. Union of India
and Ors, reported in (1997) IILLJ 329 Gau., Mr.
Baruah submits that even in the case of temporary employees,
if the termination order is not a termination simpliciter, but a
termination attaching stigma, the protection so available under
Article 311 (2) of the Constitution of India is applicable even to
a temporary employee.
WP(C) 4393/2022 Page 13 of 87
(iii) Thirdly, referring two other decisions in (a) The Manager,
Government Branch Press Another Vs. D.B.
Belliappa, reported in (1979) 1 SCC 477 (b) Sujata
Nath Vs. The State of Assam and Ors., reported in
2019 (5) GLT 774, Mr. Baruah submits that even in the
case of temporary employees, Articles 14 and 16 of the
Constitution of India is applicable and in the case in hand, the
principles of equality have been violated.
(iv) Fourthly, relied upon the decision of Hon'ble Supreme Court in
Parshotam Lal Dhingra (supra) as well as in Mazid
Ansari (supra), and also in Pavanendra Narayan Verma-
Vs-Sanjay Gandhi P.G.I. of Medical Sciences & Ors.,
reported in AIR 2002 SC 23, Mr. Baruah submits that a
termination order would amount to a stigma if the same
impute something over and above the mere unsuitability for
the job. In the present case, the impugned termination order
dated 25.09.2021, was so stigmatic that even the entry of the
petitioner into the Gauhati University campus was barred.
Therefore, the constitutional mandates enshrined under Article
311 (2) of the Constitution of India could have been violated
as held in the aforesaid cases by the Hon‟ble Apex Court.
(v) Fifthly, Mr. Baruah submits that the respondents have sought
to justify the impugned termination order dated 25.09.2021,
through fresh reasons/ afterthoughts by filing an additional
affidavit on 06.06.2024. The same is clearly impermissible in
WP(C) 4393/2022 Page 14 of 87
the eyes of the law, in view of decision of Hon‟ble Supreme
Court in Mohinder Singh Gill (supra).
(vi) Sixthly, Mr. Baruah submits that even assuming for argument's
sake that the subsequent reasons, so furnished by the
respondents i.e.-
i) It is not feasible to initiate departmental proceeding as
the petitioner is in police custody-Once an employee is in
police custody for more than 48 hours, he is deemed to
be suspended as per Rule 45 (2) of GU rules. However,
in the instant case, he was terminated from service
straight away. The reason is neither cogent nor
reasonable;
ii) DP will be lengthy and time consuming given the
voluminous documents to be checked;
are clearly unsustainable in the eyes of law and the same are
perverse. Merely because the documents are voluminous, the
same cannot be a ground to dispense with the enquiry.
(vii) Mr. Baruah, referring to following decisions -
(a) Jaswant Singh-Vs-The State of Punjab and
others, reported in MANU/SC/0093/1991,
(b) Southern Railway Officers Assn. and Ors -Vs-
UOI & Ors., reported in (2009) 9 SCC 24,
(c) Reena Rani-Vs-State of Haryana and others,
reported in MANU/SC/0286/2012,
(d) Ruben Kalita-Vs- The Union of India and Ors.,
W.P.(C) No. 2277/2010m
WP(C) 4393/2022 Page 15 of 87
(e) Aayush Tomar-Vs- The Union of India and Ors.,
reported in 2023 (6) GLT 162,
(f) Md. Hussain Ali -Vs- The State of Assam and
Ors., reported in 2022 (5) GLT 263,
submits that the ratio laid down in the aforesaid cases shows
that reasons for dispensing with an enquiry must be based on
objective facts and not the outcome of whim or caprice of the
concerned officer and the reasons must be cogent to arrive at
a satisfaction by the authorities for not holding an enquiry.
However, in the instant case, there was no assessment in this
regard and as such, the vindictiveness is apparent on the face
of the records. Therefore, Mr. Baruah has contended to allow
this petition.
9. Per contra, Mr. Phukan, the learned standing counsel for the
respondent authorities has vehemently opposed the petition.
According to him, the petition becomes infructous as the petitioner
has already been terminated from service and that he was a
contractual employee and his term has also expired in the meantime
on 31.12.2021. Producing the relevant file of the respondent
authorities, Mr. Phukan has drawn the attention of this Court to
office Note dated 25.09.2021, submits that reason has been
assigned for termination of service of the petitioner dispensing with
the departmental enquiry and his termination is in tune with the
provisions of Article 311 of the Constitution of India, including
Article 311(2)(b) as well as Article 311(3) of the Constitution of
WP(C) 4393/2022 Page 16 of 87
India, as enunciated by Hon'ble Supreme Court in Tulsiram Patel
(supra) as well as in Kumari Shrilekha Vidyarthi (supra).
Referring to para No.130 of the decisions in Tulshiram Patel
(supra), Mr. Phukan also submits that misquotation or absence of
source of power in the impugned order does not invalidate the
same.
9.1 Mr. Phukan also submits that the entry of the petitioner in the
University Campus was not barred but restricted in view of the
prevailing circumstances and that he has suppressed material facts
that he was a contractual employee and that his term had expired
on 31.12.2021, and as such his service was no more, with effect
from 01.01.2022.
9.2 However, to a pointed query of this Court, Mr. Phukan submits
that there is no mention in the University Rules about dispensation
of departmental proceeding.
10. Having heard the submissions of learned counsel for both the
parties this Court has gone through the pleadings of the parties and
the documents placed on the record and also perused the impugned
Notification dated 25.09.2021 and also gone through the decisions
so relied upon by both the parties.
The Issue Before the Court:-
11. In view of the contentions made by the respective parties in
the pleadings, and also in view of the submissions advanced by
WP(C) 4393/2022 Page 17 of 87
learned counsel for both the parties, the issues to be addressed by
this Court are:-
(i) Whether a temporary/contractual employee is
entitled to an opportunity of being heard before
termination from service?
(ii) Whether the impugned termination Notification,
dated 25.09.2021 is stigmatic and also violative
of the principles of natural justice and Article
311(2) of the Constitution of India?
(iii) Whether, in the given factual backdrop, the
respondent authorities had rightly dispensed with
the enquiry as contemplated under Article 311(2)
of the Constitution of India, by invoking the
proviso (b) to the said Article as contended by
learned counsel for the respondents?
12. Before a discussion is directed to the issues, so formulated
herein above, it would be in the interest of justice to understand the
legal framework/trajectory concerning the subject, which are
discussed as under:-
Legal Framework:-
12.1 Article 311 of the Constitution of India:- Article
311 provides for- Dismissal, removal or reduction in
rank of persons employed in civil capacities under the
Union or a State. It read as under:-
(1) No person who is a member of a civil service of
the Union or an all-India service or a civil
service of a State or holds a civil post under the
Union or a State shall be dismissed or removed by
WP(C) 4393/2022 Page 18 of 87
an authority subordinate to that by which he was
appointed.
(2) No such person as aforesaid shall be dismissed or
removed or reduced in rank except after an inquiry
in which he has been informed of the charges
against him and given a reasonable opportunity of
being heard in respect of those charges:
Provided that where it is proposed after such
inquiry, to impose upon him any such penalty, such
penalty may be imposed on the basis of the
evidence adduced during such inquiry and it shall
not be necessary to give such person any
opportunity of making representation on the
penalty proposed:
Provided further that this clause shall not
apply:-
(a) where a person is dismissed or removed or
reduced in rank on the ground of conduct which
has led to his conviction on a criminal
charge; or
(b) where the authority empowered to dismiss or
remove a person or to reduce him in rank is
satisfied that for some reason, to be recorded
by that authority in writing, it is not
reasonably practicable to hold such inquiry;
or
(c) where the President or the Governor, as the
case may be, is satisfied that in the interest
of the security of the State it is not
expedient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a
question arises whether it is reasonably
WP(C) 4393/2022 Page 19 of 87
practicable to hold such inquiry as is referred to
in clause (2), the decision thereon of the
authority empowered to dismiss or remove such
person or to reduce him in rank shall be final.
12.2 The Gauhati University Employees Service
Conditions, Conduct and Appeal Rules, 1970:-
Rule 46 of the said Rules provides for
discipline. It mentioned the nature of penalties. Under
this Rule any one or more of the following may, for
good sufficient reasons and as here in after provided,
be imposed by the Disciplinary Authority on an
employee, namely:-
(i) Censure;
(ii) Withholding of increment (s);
(iii) Compulsory leave;
(iv) Recovery from pay of the whole of part of
any pecuniary loss caused to the
University by negligence or breach of
orders,
(v) Revision to a lower service, grade or
post, or to a lower time scale, or to a
lower stage in a time scale;
(vi) Compulsory retirement;
(vii) Removal from service which shall not be
disqualification for future employment;
(viii) Dismissal from service which shall
ordinarily be disqualification for future
employment.
WP(C) 4393/2022 Page 20 of 87
Explanation:- The following shall not amount to a
penalty within the meaning of this rule:-
(a) Stoppage of an increment at an efficiency bar
in the time scale on the ground of his
unfitness to cross the bar,
(b) Non-promotion whether in substantive or
officiating capacity of an employee, after due
consideration of his case, to a service, grade
or post promotion to which he may be eligible,
(c) Revision to a lower service, grade or post of
an employee officiating in a higher service,
grade or post on the ground that he is
considered after trial, to be unsuitable for
such higher service, grade or post or on
administrative grounds unconducted with his
conduct;
(d) Reversion to his permanent service, grade post
of an employee appointed on probation to
another service, grade or post during or at
the end of the period of probation in
accordance with the terms of his appointment
or the rules and orders governing probation.
(e) Termination of services
(i) An employee appointed on probation during
or at the end of the period of probation
in accordance with the terms of his
appointment or the rules and orders
governing probation,
(ii) Of an employee, employed under an
agreement in accordance with the terms of
such agreement,
WP(C) 4393/2022 Page 21 of 87
(iii) Of an employee whose terms of appointment
provides for the termination of service
by either party giving notice for a
specific period;
Of an employee in whose case the appointment is
expressly stated to be on temporary basis and to
have been sanctioned until further orders and it
is also provided that his services may be
terminated at any time without notice.
Rule 48 provides for procedure for imposing
penalties:
(i) No order imposing on an employee any of
the penalties specified in rule 46 shall
be passed except after an inquiry, held
as far may be in the manner herein after
provided;
(ii) 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 the allegations on
which they are based shall be
communicated in writing to the employee
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
since whether he desires to be heard in
person.
(iii) The employee shall, for the purpose of
his preparing his defense be permitted to
inspect and on take extract from such
official records as he may specify
provided that such permission may be
WP(C) 4393/2022 Page 22 of 87
refused it for reason to be recorded in
writing in the portion of the
Disciplinary Authority such records are
not event for purpose or it is against
the interest of the University to allow
his access thereto, provided that when an
employee is permitted to inspect and to
take extract from official records due
care shall be taken against tempering,
removal or destruction of records.
(iv) 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 of the charges as are not
admitted or if considers it necessary so
to do, appoint for the purpose a Board of
inquiry or an Inquiring Officer.
(v) The Inquiry Authority Shall, in the
course of the Inquiry, consider such
documentary evidence and take such oral
evidence as may relevant or materials in
regard to the charges. The employee shall
be entitled to cross-examine witnesses
examined in support of the charges and to
give evidence in person and adduce
documentary and oral evidence in his
defense. If the Inquiry Authority
declines to examine any witness or to
admit any document in evidence on the
ground that his evidence or such document
is not relevant or material it shall
record its reasons in writing. No agent
of the employee nor any legal
WP(C) 4393/2022 Page 23 of 87
practitioner on the employee behalf shall
be allowed in such inquiry.
(vi) At the conclusion of the inquiry, the
Inquiry shall prepare a report of the
inquiry recording its finding on each of
the charges together with reasons
therefore.
(vii) The record of the inquiry shall include:-
(a) The Charge framed against the
employee and the statement of
allegations furnished to him under
sub-rule (2).
(b) His written statement of defense, if
any;
(c) The oral evidence taken in the
course of the inquiry.
(d) The documentary evidence considered
in the courses of the inquiry.
(e) The orders, if any, made by the
Disciplinary Authority and the
inquiring authority in regard on the
inquiry and Provided that where the
detention is made on account of any
charge not connected with his
position as a University employees
or continuance in office is not
likely to embarrass the University
or the University employee in the
discharge of his duties or the
charge does not involve moral
turpitude, the Appointing Authority
may vacate the suspension order made
or deemed to have been made when he
WP(C) 4393/2022 Page 24 of 87
is released on bail or is not
otherwise in custody or
imprisonment.
(f) A report setting out the finding on
each charge the reasons therefore;
(viii) The Disciplinary Authority shall, if it
is not the inquiring authority, consider
the record of the inquiry and records of
the inquiry. and records its finding on
each charge.
(ix) Major Penalties:-
(a) If the Disciplinary Authority having
regard to its finding on the charges is
of the opinion that any of the penalties
specified in clause (v) to (viii) of rule
46 should be imposed, shall
(b) Furnish to the employee a copy of the
report of the Inquiring Authority and,
where the Disciplinary Authority is not
the Inquiring authority a statement of
its findings together with brief reasons
for disagreement, if any with the
findings of the Inquiring authority and
(c) Give him notice stating the penalty
proposed to be impose on him calling upon
him to submit within a specified time
such representation as he may wish to
make on the proposed penalty only on the
basis of the evidence adduced during the
enquiry.
(d) The disciplinary Authority shall consider
the representation, if any, made by the
WP(C) 4393/2022 Page 25 of 87
employee in response to the notice under
clause (i) above determine what penalty,
if any, should be imposed on the employee
and pass appropriate final orders. If
such representation contains statements,
reference, request demands. etc. Not
based on the evidence adduced during the
inquiry such statement etc. should be
ignored and this fact should be brought
out in the final orders passed in the
case.
12.3 The Assam Services (Discipline and Appeal) Rules,
1964.
Rule - 7 of the Assam Services Discipline and
Appeal Rules also provides for the nature of
penalties. It provides that the following
penalties may for good and sufficient reason and
as hereinafter provided, be imposed, on a
Government servant, namely
(i) Censure;
(ii) Withholding of increments of promotion;
(iii) Recovery from pay of the whole or part of any
pecuniary loss caused by negligence or breach
of orders to the Government of Assam or the
Central Government or any other State
Government, or any local or other authority
to whom services of a Government servant had
been lent;
(iv) Reduction to a lower service, grade or post,
or to a lower time-scale, or to a lower stage
in a time-scale;
WP(C) 4393/2022 Page 26 of 87
(v) Compulsory retirement;
(vi) Removal from service which shall not be a
disqualification for future employment;
(vii) Dismissal from service which shall ordinarily
be a disqualification for future employment.
Explanation- The following shall not amount to a
penalty within the meaning of this rule-
(a) withholding of increments of a Government
servant for failure to pass a departmental
examination or successfully undergo training
prescribed in accordance with the rules or
orders governing the service or post or the
terms of his appointment;
(b) stoppages of a Government servant at an
efficiency bar in the time-scale on the ground
of his unfitness to cross the bar;
(c) non-promotion whether on a substantive or
officiating capacity of a Government servant,
after due consideration of his case to a
service, grade or post for promotion to which
he is eligible;
(d) reversion to lower service, grade or post of a
Government servant officiating in higher
service, grade or post on the ground that he
is considered after trial, to be unsuitable
for such higher service grade or post or on
administrative grounds unconnected with his
conduct;
(e) reversion to his permanent service, grade or
post of a Government servant appointed on
probation to another service grade or post
during or at the end of the period of
probation in accordance with the terms of his
appointment or the rules and orders governing
probation;
WP(C) 4393/2022 Page 27 of 87
(f) compulsory retirement of a Government servant
after completion of 25 years qualifying
service or 30 years qualifying service as the
case may be, under the provisions of Articles
103, 104 of the Assam Pension Manual and Rule
1(2) of Section 1 of the Assam Liberalised
Pension Rules;
(g) Termination of the Services:-
(i) of a Government servant appointed on
probation during or at the end of the
period on probation, in accordance with
the terms of his appointment or the rules
and orders governing probation; or
(ii) of a Government servant employed under an
agreement in accordance with the terms of
such agreement;
(iii) of a Government servant whose term
of appointment provides for the
termination of service by either party
giving notice for a specified period;
(iv) of a Government servant in whose case the
appointment is expressly stated to be on
temporary basis and to have been
sanctioned until further orders and it is
also provided that his services may be
terminated at any time without notice.
Rule - 9 provides for the procedure for imposing
penalties. It provides that:-
(1) Without prejudice to the provisions 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.
WP(C) 4393/2022 Page 28 of 87
(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 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
pension.
["At the time of delivering the charges, the
Disciplinary Authority shall invariably
furnish to the Government servant a list of
documents and witnesses by which each article
of charges is proposed to be sustained".]
Explanation- In this sub-rule and sub-rule
(3), the expression "the Disciplinary
Authority" shall include the authority
competent under these rules to impose upon
the Government servant any of the penalties
specified in Rule 7.
(3) The Government servant shall, for the purpose
of preparing his defence, be permitted to
inspect and take extracts from such official
records as he may specify, provided that such
permission may be refused if for reasons to
be recorded in writing, in the opinion of the
Disciplinary Authority such records are not
relevant for the purpose or its against the
public interest to allow him access thereto :
Provided that when a Government servant
is permitted to inspect and take extracts
from official records due case shall be taken
against tempering removal or destruction of
records.
WP(C) 4393/2022 Page 29 of 87
(4) On received 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 of the
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.
(5) The Disciplinary Authority may nominate any
person to present the case in support of the
charges before the authority inquiring into
the charges (hereinafter referred to as the
inquiring authority). The Government servant
may present his case with the assistance of
any other Government servant approved by the
Disciplinary Authority, but may not engage a
legal practitioner for the purpose unless the
person nominated by the Disciplinary
Authority as aforesaid is a legal
practitioner or unless the Disciplinary
Authority, having regard to the circumstances
of the case so permits.
(6) The Enquiring Authority shall, in the course
of the enquiry consider such documentary
evidence and take such oral evidence as may
be relevant or material in regard to the
charges. The Government servant shall be
entitled to cross-examine witnesses examined
in support of the charges and to give
evidence in person and to adduce documentary
and oral evidence in his defence. The person
presenting the case in support of the charges
shall be entitled to cross-examine the
Government servant and the witnesses examined
in his defence. If the Inquiring Authority
declines to examine any witness or to admit
any document in evidence on the ground that
his evidence or such document is not relevant
WP(C) 4393/2022 Page 30 of 87
or material, it shall record its reasons in
writing.
(7) At the conclusion of the inquiry, the
inquiring Authority shall prepare a report of
the enquiry, recording its findings on each
of the charges together with reasons
therefor.
["Explanations- If in the opinion of the
Enquiring Authority the proceedings of the
enquiry establish any article of charge
different from the original article of the
charge it may record its findings on such
article of charge :
Provided that the findings on such article of
charge shall not be recorded unless the
Government servant has either admitted the
facts on which such article of charge is
based or has a reasonable opportunity of
defending himself against such article of
charge"].
(8) The record of the inquiry, shall include
(i) the charges framed against the Government
servant and the statement of allegations
furnished to him under sub-rule (2);
(ii) his written statement of defence, if any;
(iii) the oral evidence taken in the
course of the enquiry;
(iv) the documentary evidence considered in
the course of the inquiry;
(v) the orders, if any, made by the
Disciplinary Authority and the Inquiring
Authority in regard to the inquiry; and
(vi) a report setting out the findings on each
charge and the reasons therefor.
WP(C) 4393/2022 Page 31 of 87
(9) The Disciplinary Authority shall, if it is
not the Inquiring Authority; consider the
record of the inquiry and record its finding
on each charge.
(10) Major Penalties.
If the Disciplinary Authority having regard
to its finding on the charges and on the
basis of evidence adduced during the inquiry,
is of the opinion that any of the penalties
specified in Clauses (iv) to (vii) of Rule 7
should be imposed on the Government servant
it shall make an order imposing such penalty
and it shall not be necessary to give the
Government servant any opportunity of making
representation on the penalty proposed to be
imposed:
Provided that in every case where it is
necessary to consult the Commission the
record of the inquiry shall be forwarded by
the Disciplinary Authority to the Commission
for its advice and such advice shall be taken
into consideration before making an order
imposing and such penalty on the Government
servant".
(11) Minor Penalties:-
If the Disciplinary Authority, having regard
to its findings on the charges, is of the
opinion that any of the penalties specified
in clauses (i) to (iii) of Rule 7 should be
imposed, it shall, pass appropriate orders
and in every case in which it is necessary to
consult the Commission, shall do so, after
consulting the Commission.
(12) (a) Notwithstanding anything contained in
this rule, it shall not be necessary to
follow the procedure laid down in the
preceeding sub-rules in cases where it
WP(C) 4393/2022 Page 32 of 87
appears to the authority competent to impose
the penalty at the initial stage of the
proceedings that the penalty of censure would
be adequate, but if at any later stage it is
proposed to impose any other penalty
specified in Rule 7, the procedure laid down
in the said rules shall be followed.
(b) No order imposing the penalty of censure
shall however be passed, except after-
(i) the Government servant is informed in
writing of the proposal to take action
against him and of the allegations on
which it is proposed to be taken and
given an opportunity to make any
representation he may wish to make; and
(ii) such representation, if any, is taken
into consideration by the Disciplinary
Authority.
Rule - 10 provides for special procedure in
certain cases. It provides that notwithstanding
anything contained in Rule 9
(i) where a penalty is imposed on a Government
servant on the ground of conduct which has led
to his conviction on a criminal charge; or
(ii) where the Disciplinary Authority is satisfied
for reasons to be recorded in writing that it
is not reasonably practicable to follow the
procedure prescribed in the said; or
(iii) where the Governor is satisfied that in
the interest of the security of the state, it
is not expedient to follow such procedure,
the Disciplinary Authority may consider the
circumstances of the case and pass such orders
thereon as it deems fit :
WP(C) 4393/2022 Page 33 of 87
Provided that the Commission shall be
consulted before passing such orders in any
case in which such consultation is necessary.
The Precedents relevant on the Issue:-
13. The issue of entitlement of protection under Article 311(2) of
the Constitution of India was dealt with by Hon‟ble Supreme Court
in plethora of decisions. The sum and substance of the said
decisions are that if the Government takes action against them by
meeting out one of the three punishments i.e. dismissal, removal,
reduction in rank then the protection under Article 311(2) will be
available to them. The most cited decisions in this regard are
Parshotam Lal Dhingra (supra) and also in the case of
Champaklal Chimanlal Shah vs. The Union of India,
reported in AIR 1964 SC 1854.
13.1 It is to be noted here that in the case of Parshotam Lal
Dhingra (supra), Hon‟ble Supreme Court has held as under:-
‚The position may, therefore, be summed up as
follows: Any and every termination of service is
not a dismissal, removal or reduction in rank. A
termination of service brought about by the
exercise of a contractual right is not per se
dismissal or removal, as has been held by this
Court in Satish Chander Anand v. The Union of
India (supra) [1953] S.C.R. 655,. Likewise the
termination of service by compulsory retirement
in terms of a specific rule regulating the
conditions of service is not tantamount to the
infliction of a punishment and does not
attract Art. 311(2), as has also been held by
this Court in Shyam Lal v. The State of Uttar
WP(C) 4393/2022 Page 34 of 87
Pradesh (I). ,In either of the two
abovementioned cases the termination of the
service did not carry with it the penal
consequences of loss of pay, or allowances under
r. 52 of the Fundamental Rules. It is true that
the misconduct, negligence, inefficiency or
other disqualification may be the motive or the
inducing factor which influences the Government
to take action under the terms of the contract
of employment or the specific service rule,
nevertheless, if a right exists, under the
contract or the rules, to terminate the service
the motive, operating on the mind of the
Government is, as Chagla C.J. has said
in Shrinivas Ganesh v. Union of India (supra),
wholly irrelevant. In short, if the termination
of service is founded on the right flowing from
contract or the service rules then, prima facie,
the termination is not a punishment and carries
with it no evil consequences and so Art.311 is
not attracted. But even if the Government has,
by contract or under the rules, the right to
terminate the employment without going through
the procedure prescribed for inflicting the
punishment of dismissal or removal or reduction
in rank, the Government may, nevertheless,
choose to punish the servant and if the
termination of service is sought to be founded
on misconduct, negligence, inefficiency or other
disqualification, then it is a punishment and
the requirements of Art.311 must be complied
with. As already stated if the servant has got a
right to continue in the post, then, unless the
contract of employment or the rules provide to
the contrary, his services cannot be terminated
otherwise than for misconduct, negligence,
inefficiency or other good and sufficient cause.
A termination of the service of such a servant
on such grounds must be a punishment and,
therefore, a dismissal or removal
WP(C) 4393/2022 Page 35 of 87
within Art.311, for it operates as a forfeiture
of his right and he is visited with the evil
consequences of loss of pay and allowances. It
puts an indelible stigma on the officer
affecting his future career. A reduction in rank
likewise may be by way of punishment or it may
be an innocuous thing.' If the Government
servant has a right to a particular rank, then
the very reduction from that rank will operate
as a penalty, for he will then lose the
emoluments and privileges of that rank. If,
however, he has no right to the particular rank,
his reduction from an officiating higher rank to
his substantive lower rank will not ordinarily
be a punishment. But the mere fact that the
servant has no title to the post or the rank and
the Government has, by contract, express or
implied, or under the rules, the right to reduce
him to a lower post does not mean that an order
of reduction of a servant to a lower post or
rank cannot in any circumstances be a
Punishment. The real test for determining
whether the reduction in such cases is or is not
by way of punishment is to find out if the order
for the reduction also visits the servant with
any penal consequences. Thus if the order
entails or provides for the forfeiture of his
pay or allowances or the loss of his seniority
in his substantive rank or, the stoppage or
postponement of his future chances of promotion,
then that circumstance may indicate that
although in form the Government bad purported to
exercise its right to terminate the employment
or to reduce the servant to a lower rank under
the terms of the contract of employment or under
the rules, in truth and reality the Government
has terminated the employment as and by way of
penalty. The use of the expression "terminate"
or "discharge" is not con, elusive. In spite of
the use of such innocuous expressions, the court
WP(C) 4393/2022 Page 36 of 87
has to apply the two tests mentioned above,
namely, (1) whether the servant had a right to
the post or the rank or (2) whether he has been
visited with evil consequences of the kind
hereinbefore referred to? If the case satisfies
either of the two tests then it must be held
that the servant has been punished and the
termination of his service must be taken as a
dismissal or removal from service or the
reversion to his substantive rank must be
regarded as a reduction in rank and if the
requirements of the rules and Art.311, which
give protection to Government servant have not
been complied with, the termination of the
service or the reduction in rank must be held to
be wrongful and in violation of the
constitutional right of the servant.‛
13.2 Again in the case of Champaklal Chimanlal Shah (supra),
Hon‟ble Supreme Court has held as under:-
‚It is well settled that temporary servants are
also entitled to the protection of Art. 311(2)
in the same manner as permanent government
servants, if the government takes action
against them by meting out one of the three
punishments i.e. dismissal, removal or
reduction in rank:(see Parshotam Lal Dhingra v.
Union of India [1958] S.C.R. 828). But this
protection is only available where discharge,
removal or reduction in rank is sought to be
inflicted by way of punishment and not
otherwise.
It is also not disputed that the mere use
of expressions like "terminate" or "discharge"
is not conclusive and in spite of the use of
WP(C) 4393/2022 Page 37 of 87
such innocuous expressions, the court has to
apply the two tests mentioned in Parshotam Lal
Dhingra's case(supra), namely-
(1) whether the servant had a right to the
post or the rank or
(2) whether he has been visited with evil
consequences; and if either of the
tests is satisfied, it must be held
that the servant had been punished.
Further even though misconduct,
negligence, inefficiency or other
disqualification may be the motive or the
inducing factor which influences the Government
to take action under the terms of the contract
of employment or the specific service rule,
nevertheless, if a right exists under the
contract or the rules, to terminate the service
the motive operating on the mind of the
Government is wholly irrelevant.‛
13.3 Another decision of a Constitutional Bench of Hon‟ble Supreme
Court, upon which the learned counsel for the respondents relied
upon, to argue applicability of the ratio laid down in respect of
proviso to Article 311(2) is the case of Tulsiram Patel(supra).
The primary conditions for applicability of proviso (b) to Article
311(2) of the Constitution of India, so laid down in the said case,
can be summarized as under:-
(i) Before the disciplinary authority, there
should be material to conclude that holding a
departmental enquiry is not reasonably
WP(C) 4393/2022 Page 38 of 87
practicable/feasible, in the circumstances of
the case (e.g. serious threats to witnesses,
a situation of widespread violence or
disorder, or circumstances where the enquiry
process itself cannot function safely or
effectively).
(ii) Such opinion should always be based on
objective facts and circumstances, not on
mere convenience, departmental expediency, or
a desire to avoid the safeguards of Article
311(2), of the authority concerned.
(iii) The reason should be recorded in the
dismissal/removal order (or in a
contemporaneous note) that led the
disciplinary authority to the conclusion that
holding of an enquiry is not reasonably
practicable.
(iv) Whether holding of an enquiry is reasonably
practicable/feasible or not, the test
applicable is, what a reasonable man thinks
about it i.e. feasibility, having regards to
the prevailing situation.
(v) If such a person could regard an enquiry is
reasonably practicable, clause (b) cannot be
used.
(vi) Since the power is exceptional one, it must
be used sparingly.
(vii) On account of the enquiry being time
consuming or difficult or on account of the
believes by the authority the charges being
true, the proviso does not permit dispensing
with enquiry.
WP(C) 4393/2022 Page 39 of 87
(viii) If the reasons so recorded in the dismissal
/removal order passed under proviso (b), by
the authority are irrelevant, irrational,
mala fide, or show that the authority has
used clause (b), as a shortcut rather than
out of genuine impracticability of holding
the enquiry, the same is always subject to
judicial interference.
13.4 It is also useful in this context to refer to the decision in
Satyavir Singh v. Union of India, reported in (1985) 4 SCC
252, wherein Hon‟ble Supreme Court has dealt with the relevant
points as under:-
(50) The three clauses of the second proviso to
Article 311 are not intended to be applied in
normal and ordinary situations. The second
proviso is an exception to the normal rule
and before any of the three clauses of that
proviso is applied to the case of a civil
servant, the conditions laid down in that
clause must be satisfied.
(51) Where a situation envisaged in one of the
clauses of the second proviso to Article
311(2) exists, it is not mandatory that the
punishment of dismissal, removal or reduction
in rank should be imposed upon a civil
servant. The disciplinary authority will
first have to decide what punishment is
warranted by the facts and circumstances of
the case. Such consideration would, however,
be ex parte and without hearing the concerned
civil servant. If the disciplinary authority
WP(C) 4393/2022 Page 40 of 87
comes to the conclusion that the punishment
which is called for is that of dismissal,
removal or reduction in rank, it must
dispense with the inquiry and then decide for
itself which of the aforesaid three penalties
should be imposed.
X. CLAUSE (A) OF THE SECOND PROVISO
(52) In a case where clause (a) of the second
proviso to Article 311(2) applies the
disciplinary authority is to take the
conviction of the concerned civil servant as
sufficient proof of misconduct on his part.
It has thereafter to decide whether the
conduct which had led to the civil servant's
conviction on a criminal charge was such as
to warrant the imposition of a penalty and,
if so, what that penalty should be. For this
purpose it must peruse the judgment of the
criminal court and take into consideration
all the facts and circumstances of the case
and the various factors set out in Challappan
case [(1976) 3 SCC 190 : 1976 SCC (L&S) 398 :
(1976) 1 SCR 783] such as, the entire conduct
of the civil servant, the gravity of the
offence committed by him, the impact which
his misconduct is likely to have on the
administration, whether the offence for which
he was convicted was of a technical or
trivial nature, and the extenuating
circumstances, if any, present in the case.
This, however, has to be done by the
disciplinary authority ex parte and without
hearing the concerned civil servant.
WP(C) 4393/2022 Page 41 of 87
(53) The penalty imposed upon the civil servant
should not be arbitrary or grossly excessive
or out of all proportion to the offence
committed or one not warranted by the facts
and circumstances of the case.
(54) Where a civil servant goes to the office of
his superior officer whom he believes to be
responsible for stopping his increment and
hits him on the head with an iron rod, so
that the superior officer falls down with a
bleeding head, and the delinquent civil
servant is tried and convicted under Section
332 of the Penal Code, 1860 but the
Magistrate, instead of sentencing him to
imprisonment, applies to him the provisions
of Section 4 of the Probation of Offenders
Act, 1958, and after such conviction the
disciplinary authority, taking the above
facts into consideration, by way of
punishment compulsorily retires the
delinquent civil servant under clause (i) of
Section 19 of the Central Civil Services
(Classification, Control and Appeal) Rules,
1965, it cannot be said that the punishment
inflicted upon the civil servant was
excessive or arbitrary.
XI. CLAUSE (B) OF THE SECOND PROVISO
(55) There are two conditions precedent which must
be satisfied before clause (b) of the second
proviso to Article 311(2) can be applied.
These conditions are:
WP(C) 4393/2022 Page 42 of 87
(i) there must exist a situation which makes the
holding of an inquiry contemplated by Article
311(2) not reasonably practicable, and
(ii) the disciplinary authority should record in
writing its reason for its satisfaction that
it is not reasonably practicable to hold such
inquiry.
(56) Whether it was practicable to hold the inquiry
or not must be judged in the context of
whether it was reasonably practicable to do
so.
(57) It is not a total or absolute impracticability
which is required by clause (b) of the second
proviso. What is requisite is that the holding
of the inquiry is not practicable in the
opinion of a reasonable man taking a
reasonable view of the prevailing situation.
(58) The reasonable practicability of holding an
inquiry is a matter of assessment to be made
by the disciplinary authority and must be
judged in the light of the circumstances then
prevailing. The disciplinary authority is
generally on the spot and knows what is
happening. It is because the disciplinary
authority is the best judge of the prevailing
situation that clause (3) of Article 311 makes
the decision of the disciplinary authority on
this question final.
(59) It is not possible to enumerate the cases in
which it would not be reasonably practicable
to hold the inquiry. Illustrative cases would
be--
WP(C) 4393/2022 Page 43 of 87
(60) The disciplinary authority is not expected to
dispense with a disciplinary inquiry lightly
or arbitrarily or out of ulterior motives or
merely in order to avoid the holding of an
inquiry or because the Department's case
against the civil servant is weak and must
fail.
(61) The word ‚inquiry‛ in clause (b) of the second
proviso includes a part of an inquiry. It is,
therefore, not necessary that the situation
which makes the holding of an inquiry not
reasonably practicable should exist before the
inquiry is instituted against the civil
servant. Such a situation can also come into
existence subsequently during the course of
the inquiry, for instance, after the service
of a charge-sheet upon the civil servant or
after he has filed his written statement
thereto or even after evidence has been led in
part.
(62) It will also not be reasonably practicable to
afford to the civil servant an opportunity of
a hearing or further hearing, as the case may
be, when at the commencement of the inquiry or
pending it, the civil servant absconds and
cannot be served or will not participate in
the inquiry. In such cases, the matter must
proceed ex parte and on the materials before
the disciplinary authority.
(63) The recording of the reason for dispensing
with the inquiry is a condition precedent to
the application of clause (b) of the second
proviso. This is a constitutional obligation
and if such reason is not recorded in writing,
WP(C) 4393/2022 Page 44 of 87
the order dispensing with the inquiry and the
order of penalty following thereupon would
both be void and unconstitutional. It is,
however, not necessary that the reason should
find a place in the final order but it would
be advisable to record it in the final order
in order to avoid an allegation that the
reason was not recorded in writing before
passing the final order but was subsequently
fabricated.
(64) The reason for dispensing with the inquiry
need not contain detailed particulars but it
cannot be vague or just a repetition of the
language of clause (b) of the second proviso.
(65) It is also not necessary to communicate the
reason for dispensing with the inquiry to the
concerned civil servant but it would be better
to do so in order to eliminate the possibility
of an allegation being made that the reason
was subsequently fabricated.
(66) The obligation to record the reason in writing
is provided in clause (b) of the second
proviso so that the superiors of the
disciplinary authority may be able to judge
whether such authority had exercised its power
under clause (b) properly or not with a view
to judge the performance and capacity of that
officer for the purposes of promotion etc.
(67) It is, however, better for the disciplinary
authority to communicate to the concerned
civil servant its reason for dispensing with
the inquiry because such communication would
eliminate the possibility of an allegation
being made that the reason had been
WP(C) 4393/2022 Page 45 of 87
subsequently fabricated. It would also enable
the civil servant to approach the High Court
under Article 226 or, in a fit case, the
Supreme Court under Article 32.
(68) The submission that where a delinquent
government servant so terrorizes the
disciplinary authority that neither that
officer nor any other officer stationed at
that place is willing to hold the inquiry,
some senior officer can be sent from outside
to hold the inquiry cannot be accepted. This
submission itself shows that in such a case
the holding of an inquiry is not reasonably
practicable. It would be illogical to hold
that administrative work carried out by senior
officers should be paralysed just because a
delinquent civil servant either by himself or
along with or through others makes the holding
of an inquiry by the designated disciplinary
authority or inquiry officer not reasonably
practicable.
(a) where a civil servant, particularly
through or together with his associates,
so terrorizes, threatens or intimidates
witnesses who are going to give evidence
against him with fear of reprisal as to
prevent them from doing so, or
(b) where the civil servant by himself or
together with or through others
threatens, intimidates and terrorizes the
officer who is the disciplinary authority
or members of his family so that he is
afraid to hold the inquiry or direct it
to be held, or
WP(C) 4393/2022 Page 46 of 87
(c) where an atmosphere of violence or of
general indiscipline and insubordination
prevails, it being immaterial whether the
concerned civil servant is or is not a
party to bringing about such a situation.
In all these cases, it must be remembered
that numbers coerce and terrify while an
individual may not.
(69) In a case falling under clause (b) of the
second proviso it is not necessary that the
civil servant should be placed under
suspension until such time as the situation
improves and it becomes possible to hold the
inquiry because in such cases neither public
interest nor public good requires that salary
or subsistence allowance should be continued
to be paid out of the public exchequer to the
concerned civil servant. It would also be
difficult to foresee how long the situation
would last and when normalcy would return or
be restored. In certain cases, the exigencies
of a situation would require that prompt
action should be taken and suspending a civil
servant would not serve the purpose and
sometimes not taking prompt action might
result in the trouble spreading and the
situation worsening and at times becoming
uncontrollable. Not taking prompt action may
also be construed by the trouble-makers as a
sign of weakness on the part of the
authorities and thus encourage them to step up
their activities or agitation. Where such
WP(C) 4393/2022 Page 47 of 87
prompt action is taken in order to prevent
this happening, there is an element of
deterrence in it but this is an unavoidable
and necessary concomitance of such an action
resulting from a situation which is not of the
creation of the authorities.
(70) The contention that where an inquiry into the
charges against a civil servant is not
reasonably practicable, nonetheless before
dispensing with the inquiry there should be a
preliminary inquiry into the question whether
the disciplinary inquiry should be dispensed
with or not is illogical and is a
contradiction in terms. If an inquiry into the
charges against a civil servant is not
reasonably practicable, it stands to reason
that an inquiry into the question whether the
disciplinary inquiry should be dispensed with
or not is equally not reasonably practicable.
(71) Where a large group of members of the Central
Industrial Security Force Unit posted at the
plant of the Bokaro Steel Ltd. indulged in
acts of insubordination, indiscipline,
dereliction of duty, abstention from physical
training and parade, taking out processions,
shouting inflammatory slogans, participating
in the ‚gherao‛ of supervisory officers, going
on hunger strike and ‚dharna‛ near the Quarter
Guard and Administrative Building of the Unit,
indulging in threats of violence, bodily harm
and other acts of intimidation to supervisory
officers and loyal members of the said Unit,
and thus created a situation whereby the
normal functioning of the said Unit of the
Central Industrial Security Force was made
WP(C) 4393/2022 Page 48 of 87
difficult and impossible, the disciplinary
authority was justified in applying clause (b)
of the second proviso to those who were
considered responsible for such acts. Clause
(b) of the second proviso to Article 311(2)
was also properly applied in the cases of
those members of the Central Industrial
Security Force who were considered responsible
for creating a similar situation at
Hoshangabad.
(72) In cases such as the above, it is not possible
to state in the order of dismissal the
particular acts done by each of the members of
the concerned group as such cases are very
much like a case under Section 149 of the
Penal Code, 1860.
(73) In situations such as the one where a large
group was acting collectively with the common
object of coercing those in charge of the
administration of the Central Industrial
Security Force and the Government to compel
them to grant recognition to their Association
and to concede their demands, it is not
possible to particularize in the orders of
dismissal the acts of each individual member
who participated in the commission of these
acts. The participation of each individual
might be of a greater or lesser degree but the
acts of each individual contributed to the
creation of a situation in which a security
force itself became a security risk.
(74) Railway service is a public utility service
within the meaning of clause (a) of Section 2
of the Industrial Disputes Act, 1947, and the
WP(C) 4393/2022 Page 49 of 87
proper running of the railway service is vital
to the country.
(75) Where, therefore, the railway employees went
on an illegal all-India strike without
complying with the provisions of Section 22 of
the Industrial Disputes Act, 1947, and thereby
committed an offence punishable with
imprisonment and fine under Section 26(1) of
the said Act and the situation became such
that the railway services were paralysed,
loyal workers and superior officers assaulted
and intimidated, the country held to ransom,
and the economy of the country and public
interest and public good prejudicially
affected, prompt and immediate action was
called for in order to bring the situation to
normal. In these circumstances, it cannot be
said that an inquiry was reasonably
practicable or that clause (b) of the second
proviso was not properly applied. The fact
that the railway employees may have gone on
strike with the object of forcing the
Government to meet their demands is not
relevant because their demands were for their
private gain and in their private interest and
the railway employees were not entitled in
seeking to have their demands conceded to
cause untold hardship to the public and
prejudicially affect public good and public
interest and the good and interest of the
nation.
(76) The quantum and extent of the penalty to be
imposed in cases such as the above would
depend upon the gravity of the situation at a
WP(C) 4393/2022 Page 50 of 87
particular centre and the extent to which the
acts said to be committed by particular civil
servants, even though not serious in
themselves, in conjunction with acts committed
by others contributed to bringing about the
situation. The fact, therefore, that at a
particular centre certain civil servants were
dismissed from service while at some other
centres they were only removed from service
does not mean that the penalties were
arbitrarily imposed.
XII. CLAUSE (C) OF THE SECOND PROVISO
(77) The expression ‚security of the State‛ in
clause (c) of the second proviso to Article
311(2) does not mean security of the entire
country or a whole State but includes
security of a part of a State.
(78) Security of the State cannot be confined to
an armed rebellion or revolt for there are
various ways in which the security of the
State can be affected such as by State
secrets or information relating to defence
production or similar matters being passed on
to other countries, whether inimical or not
to India, or by secret links with terrorists.
(79) The way in which the security of the State is
affected may be either open or clandestine.
(80) One of the obvious acts which would affect
the security of the State would be
disaffection in the armed forces or
paramilitary forces or the police force. The
importance of the proper discharge of the
duties by members of these forces and the
WP(C) 4393/2022 Page 51 of 87
maintenance of discipline among them is
emphasized in Article 33 of the Constitution.
(81) Disaffection in any armed force or
paramilitary force or police force is likely
to spread because dissatisfied and
disaffected members of such a force spread
dissatisfaction and disaffection among other
members of the force and thus induce them not
to discharge their duties properly and to
commit acts of indiscipline, insubordination
or disobedience to the orders of their
superiors. Such a situation cannot be a
matter affecting only law and order or public
order but is a matter vitally affecting the
security of the State.
(82) The interest of the security of the State can
be affected by actual acts or even by the
likelihood of such acts taking place.
(83) In an inquiry into acts affecting the
interest of the security of the State,
several matters not fit or proper to be made
public, including the source of information
involving a civil servant in such acts, would
be disclosed and thus in such cases an
inquiry into acts prejudicial to the interest
of the security of the State would as much
prejudice the interest of the security of the
State as those acts themselves would.
(84) The condition for the application of clause
(c) of the second proviso to Article 311(2)
is the satisfaction of the President or the
Governor, as the case may be, that it is not
expedient in the interest of the security of
the State to hold a disciplinary inquiry.
WP(C) 4393/2022 Page 52 of 87
(85) Such satisfaction is not required to be that
of the President or the Governor personally
but of the President or the Governor, as the
case may be, acting in the constitutional
sense.
(86) ‚Expedient‛ means ‚advantageous, fit, proper,
suitable or politic‛. Where, therefore, the
President or the Governor, as the case may
be, is satisfied that it will not be
advantageous or fit or proper or suitable or
politic in the interest of the security of
the State to hold an inquiry, he would be
entitled to dispense with it under clause (c)
of the second proviso.
(87) Under clause (c) of the second proviso the
satisfaction reached by the President or the
Governor, as the case may be, must
necessarily be a subjective satisfaction
because expediency involves matters of
policy.
(88) Satisfaction of the President or the Governor
under clause (c) of the second proviso may be
arrived at as a result of secret information
received by the Government about the brewing
danger to the security of the State and like
matters. There are other factors which are
also required to be considered, weighed and
balanced in order to reach the requisite
satisfaction whether holding an inquiry would
be expedient or not. If the requisite
satisfaction has been reached as a result of
secret information received by the
Government, making known such information may
very often result in disclosure of the source
WP(C) 4393/2022 Page 53 of 87
of such information and once known the
particular source from which the information
was received would no more be available to
the Government. The reason for the
satisfaction reached by the President or the
Governor under clause (c) of the second
proviso cannot, therefore, be required to be
recorded in the order of dismissal, removal
or reduction in rank nor can it be made
public.
(89) The police are the guardians of law and
order. They stand guard at the border between
the green valleys of law and order and the
rough and hilly terrain of lawlessness and
public disorder, and if these guards turn
law-breakers and create violent public
disorder and incite others to do the same,
one can only exclaim with Juvenal, Quis
custodiet ipsos! Custodes? -- ‚Who is to guard
the guards themselves?‛ (Satires, VI, 347).
In such a situation prompt and urgent action
becomes necessary and the holding of an
inquiry into the conduct of each individual
member of the police force would not be
expedient in the interest of the security of
the State.
(90) When, therefore, a number of members of the
Madhya Pradesh District Police Force and the
Madhya Pradesh Special Armed Force, in order
to obtain the release on bail of two of their
colleagues who had been refused bail and
remanded into judicial custody because of an
incident which took place at the annual Mela
held at Gwalior in which one man was burnt
WP(C) 4393/2022 Page 54 of 87
alive, indulged in violent demonstrations and
rioted at the Mela ground, attacked the
police station at the Mela ground, ransacked
it and forced the wireless operator to close
down the wireless set and the situation
became so dangerous that senior district and
police officers had to approach the Judicial
Magistrate at night to get the two arrested
constables released on bail and, after
discussion at a Cabinet meeting, a decision
was taken and the advice of the Council of
Ministers was tendered to the Governor of
Madhya Pradesh who accepted it and issued
orders of dismissal of these persons by
applying clause (c) of the second proviso to
them, it cannot be said that the provisions
of the said clause (c) were not properly
applied.
(91) Similarly, when after these members of the
Madhya Pradesh District Police Force and the
Madhya Pradesh Special Armed Force were
dismissed, some other members of these Forces
began carrying on an active propaganda
against the Government, visiting various
places in the State of Madhya Pradesh,
holding secret meetings, distributing
leaflets and inciting the constabulary in
these places to rise against the
administration as a body in protest against
the action taken by the Government and, on
such information being received, they were
also dismissed by applying clause (c) of the
second proviso to them, it cannot be said
that the said clause (c) was not properly
applied.‛
WP(C) 4393/2022 Page 55 of 87
13.5 Again in the case of Jaswant Singh vs. State of Punjab,
reported in (1991) 1 SCC 362, Hon‟ble Supreme Court has held
that the subjective satisfaction recorded by the respondent authority
has to be fortified by any independent material to justify the
dispensing with of the inquiry envisaged by Article 311(2) of the
Constitution. Relevant para is quoted herein below:-
‚5. The impugned order of April 7, 1981 itself
contains the reasons for dispensing with the
inquiry contemplated by Article 311(2) of the
Constitution. Paragraph 3 of the said order,
which we have extracted earlier, gives two
reasons in support of the satisfaction that it
was not reasonably practicable to hold a
departmental enquiry against the appellant.
These are (i) the appellant has thrown threats
that he with the help of other police employees
will not allow holding of any departmental
enquiry against him and (ii) he and his
associates will not hesitate to cause physical
injury to the witnesses as well as the enquiry
officer. Now as stated earlier after the two
revision applications were allowed on October
13, 1980, the appellant had rejoined service as
Head Constable on March 5, 1981 but he was
immediately placed under suspension.
Thereafter, two show cause notices dated April
4, 1981 were issued against him calling upon
him to reply thereto within 10 days after the
receipt thereof. Before the service of these
notices the incident of alleged attempt to
commit suicide took place on the morning of
WP(C) 4393/2022 Page 56 of 87
April 6, 1981 at about 11.00 a.m. In that
incident the appellant sustained an injury on
his right arm with a knife. He was, therefore,
hospitalised and while he was in hospital the
two show cause notices were served on him at
about 10.00 p.m. on April 6, 1981. Before the
appellant could reply to the said show cause
notices respondent 3 passed the impugned order
on the very next day i.e. April 7, 1981. Now
the earlier departmental enquiries were duly
conducted against the appellant and there is no
allegation that the department had found any
difficulty in examining witnesses in the said
inquiries. After the revision applications were
allowed the show cause notices were issued and
10 days time was given to the appellant to put
in his replies thereto. We, therefore, enquired
from the learned counsel for the respondents to
point out what impelled respondent 3 to take a
decision that it was necessary to forthwith
terminate the services of the appellant without
holding an inquiry as required by Article
311(2). The learned counsel for the respondents
could only point out clause (iv)(a) of sub-para
29(A) of the counter which reads as under:-
‚The order dated April 7, 1981 was
passed as the petitioner's activities
were objectionable. He was instigating
his fellow police officials to cause
indiscipline, show insubordination and
exhibit disloyalty, spreading
discontentment and hatred, etc. and his
retention in service was adjudged
harmful.‛
WP(C) 4393/2022 Page 57 of 87
This is no more than a mere reproduction of
paragraph 3 of the impugned order. Our
attention was not drawn to any material
existing on the date of the impugned order in
support of the allegation contained in
paragraph 3 thereof that the appellant had
thrown threats that he and his companions will
not allow holding of any departmental enquiry
against him and that they would not hesitate to
cause physical injury to the witnesses as well
as the enquiry officer if any such attempt was
made. It was incumbent on the respondents to
disclose to the court the material in existence
at the date of the passing of the impugned
order in support of the subjective satisfaction
recorded by respondent 3 in the impugned order.
Clause (b) of the second proviso to Article
311(2) can be invoked only when the authority
is satisfied from the material placed before
him that it is not reasonably practicable to
hold a departmental enquiry. This is clear from
the following observation at page 270
of Tulsiram case [(1985) 3 SCC 398 : 1985 SCC
(L&S) 672 : 1985 Supp 2 SCR 131] : (SCC p. 504,
para 130)
‚A disciplinary authority is not expected
to dispense with a disciplinary inquiry
lightly or arbitrarily or out of ulterior
motives or merely in order to avoid the
holding of an inquiry or because the
department's case against the government
servant is weak and must fail.‛
WP(C) 4393/2022 Page 58 of 87
The decision to dispense with the departmental
enquiry cannot, therefore, be rested solely on
the ipse dixit of the concerned authority. When
the satisfaction of the concerned authority is
questioned in a court of law, it is incumbent
on those who support the order to show that the
satisfaction is based on certain objective
facts and is not the outcome of the whim or
caprice of the concerned officer. In the
counter filed by respondent 3 it is contended
that the appellant, instead of replying to the
show cause notices, instigated his fellow
police officials to disobey the superiors. It
is also said that he threw threats to beat up
the witnesses and the Inquiry Officer if any
departmental inquiry was held against him. No
particulars are given. Besides it is difficult
to understand how he could have given threats,
etc. when he was in hospital. It is not shown
on what material respondent 3 came to the
conclusion that the appellant had thrown
threats as alleged in paragraph 3 of the
impugned order. On a close scrutiny of the
impugned order it seems the satisfaction was
based on the ground that he was instigating his
colleagues and was holding meetings with other
police officials with a view to spreading
hatred and dissatisfaction towards his
superiors. This allegation is based on his
alleged activities at Jullundur on April 3,
1981 reported by SHO/GRP, Jullundur. That
report is not forthcoming. It is no one's
contention that the said SHO was threatened.
Respondent 3's counter also does not reveal if
he had verified the correctness of the
WP(C) 4393/2022 Page 59 of 87
information. To put it tersely the subjective
satisfaction recorded in paragraph 3 of the
impugned order is not fortified by any
independent material to justify the dispensing
with of the inquiry envisaged by Article 311(2)
of the Constitution. We are, therefore, of the
opinion that on this short ground alone the
impugned order cannot be sustained.
13.6 Further, in the case of Reena Rani vs. State of Haryana,
reported in (2012) 10 SCC 215, Hon‟ble Supreme Court,
referring to earlier decisions has held as under :-
7. In the order of dismissal, the
Superintendent of Police has not disclosed any
reason as to why it was not reasonably
practicable to hold regular departmental
enquiry. The learned Additional Advocate
General fairly stated that the order of
dismissal does not contain the reasons as to
why it was not reasonably practicable to hold
regular departmental enquiry against the
appellant. He also admitted that no other
record has been made available to him which
would have revealed that the Superintendent of
Police had recorded reasons for forming an
opinion that it was not reasonably practicable
to hold regular departmental enquiry for
proving the particular charge(s) against the
appellant.
8. In view of the above, we hold that the
learned Single Judge and the Division Bench of
the High Court committed serious error by
negating the appellant's challenge to her
dismissal from service without enquiry. The
WP(C) 4393/2022 Page 60 of 87
Division Bench of the High Court did not
examine the issue in the correct perspective
and made general observations that each case is
required to be decided on its own facts and no
straitjacket formula can be adopted to decide
whether it is reasonable and practicable to
hold regular enquiry for imposing major penalty
of dismissal from service. Such general
observations could not have been made basis for
approving her dismissal from service without
enquiry.
9. In Union of India v. Tulsiram Patel (1985) 3
SCC 398 the Constitution Bench considered the
scope of clauses (a), (b) and (c) of the second
proviso to Article 311. While dealing with
clause (b), Madon, J., who spoke for the
majority of the Constitution Bench observed:
(SCC pp. 503-06, paras 130 & 133-35)
‚130. The condition precedent for the application
of clause (b) is the satisfaction of the
disciplinary authority that 'it is not
reasonably practicable to hold' the inquiry
contemplated by clause (2) of Article 311.
What is pertinent to note is that the words
used are 'not reasonably practicable' and
not 'impracticable'. According to Oxford
English Dictionary 'practicable' means
'capable of being put into practice, carried
out in action, effected, accomplished, or
done; feasible'. Webster's Third New
International Dictionary defines the word
'practicable' inter alia as meaning
'possible to practise or perform: capable of
being put into practice, done or
accomplished: feasible'. Further, the words
used are not 'not practicable' but 'not
WP(C) 4393/2022 Page 61 of 87
reasonably practicable'. Webster's Third New
International Dictionary defines the word
'reasonably' as 'in a reasonable manner: to
a fairly sufficient extent'. Thus, whether
it was practicable to hold the inquiry or
not must be judged in the context of whether
it was reasonably practicable to do so. It
is not a total or absolute impracticability
which is required by clause (b). What is
requisite is that the holding of the inquiry
is not practicable in the opinion of a
reasonable man taking a reasonable view of
the prevailing situation. It is not possible
to enumerate the cases in which it would not
be reasonably practicable to hold the
inquiry, but some instances by way of
illustration may, however, be given. It
would not be reasonably practicable to hold
an inquiry where the government servant,
particularly through or together with his
associates, so terrorises, threatens or
intimidates witnesses who are going to give
evidence against him with fear of reprisal
as to prevent them from doing so or where
the government servant by himself or
together with or through others threatens,
intimidates and terrorises the officer who
is the disciplinary authority or members of
his family so that he is afraid to hold the
inquiry or direct it to be held. It would
also not be reasonably practicable to hold
the inquiry where an atmosphere of violence
or of general indiscipline and
insubordination prevails, and it is
immaterial whether the government servant
concerned is or is not a party to bringing
about such an atmosphere. In this
WP(C) 4393/2022 Page 62 of 87
connection, we must bear in mind that
numbers coerce and terrify while an
individual may not. The reasonable
practicability of holding an inquiry is a
matter of assessment to be made by the
disciplinary authority. Such authority is
generally on the spot and knows what is
happening. It is because the disciplinary
authority is the best judge of this that
clause (3) of Article 311 makes the decision
of the disciplinary authority on this
question final. A disciplinary authority is
not expected to dispense with a disciplinary
inquiry lightly or arbitrarily or out of
ulterior motives or merely in order to avoid
the holding of an inquiry or because the
Department's case against the government
servant is weak and must fail. The finality
given to the decision of the disciplinary
authority by Article 311(3) is not binding
upon the court so far as its power of
judicial review is concerned and in such a
case the court will strike down the order
dispensing with the inquiry as also the
order imposing penalty. ...
***
133. The second condition necessary for the valid application of clause (b) of the second proviso is that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311(2). This is a constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty WP(C) 4393/2022 Page 63 of 87 following thereupon would both be void and unconstitutional.
134. It is obvious that the recording in writing of the reason for dispensing with the inquiry must precede the order imposing the penalty. The reason for dispensing with the inquiry need not, therefore, find a place in the final order. It would be usual to record the reason separately and then consider the question of the penalty to be imposed and pass the order imposing the penalty. It would, however, be better to record the reason in the final order in order to avoid the allegation that the reason was not recorded in writing before passing the final order but was subsequently fabricated. The reason for dispensing with the inquiry need not contain detailed particulars, but the reason must not be vague or just a repetition of the language of clause (b) of the second proviso. For instance, it would be no compliance with the requirement of clause (b) for the disciplinary authority simply to state that he was satisfied that it was not reasonably practicable to hold any inquiry. Sometimes a situation may be such that it is not reasonably practicable to give detailed reasons for dispensing with the inquiry. This would not, however, per se invalidate the order. Each case must be judged on its own merits and in the light of its own facts and circumstances.
135. It was vehemently contended that if reasons are not recorded in the final order, they must be communicated to the government servant concerned to enable him to challenge the validity of the reasons in a WP(C) 4393/2022 Page 64 of 87 departmental appeal or before a court of law and that failure to communicate the reasons would invalidate the order. This contention too cannot be accepted. The constitutional requirement in clause (b) is that the reason for dispensing with the inquiry should be recorded in writing. There is no obligation to communicate the reason to the government servant. As clause (3) of Article 311 makes the decision of the disciplinary authority on this point final, the question cannot be agitated in a departmental appeal, revision or review. The obligation to record the reason in writing is provided in clause (b) so that the superiors of the disciplinary authority may be able to judge whether such authority had exercised its power under clause (b) properly or not with a view to judge the performance and capacity of that officer for the purposes of promotion, etc. It would, however, be better for the disciplinary authority to communicate to the government servant its reason for dispensing with the inquiry because such communication would eliminate the possibility of an allegation being made that the reasons have been subsequently fabricated. It would also enable the government servant to approach the High Court under Article 226 or, in a fit case, this Court under Article 32. If the reasons are not communicated to the government servant and the matter comes to the court, the court can direct the reasons to be produced and furnished to the government servant, and if still not produced, a presumption should be drawn that the reasons were not recorded in writing and WP(C) 4393/2022 Page 65 of 87 the impugned order would then stand invalidated. Such presumption can, however, be rebutted by a satisfactory explanation for the non-production of the written reasons.‛ (emphasis supplied)
10. In Jaswant Singh v. State of Punjab (1991) 1 SCC 362, the two-Judge Bench referred to the ratio of Union of India v. Tulsiram Patel [(1985) 3 SCC 398 and observed: (Jaswant Singh case [(1991) 1 SCC 362 : 1991 SCC (L&S) 282 : (1991) 15 ATC 729] , SCC p. 369, para 5) ‚5. ... The decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse dixit of the authority concerned. When the satisfaction of the authority concerned is questioned in a court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the officer concerned.‛
11. By applying the ratio of the above extracted observations to the facts of this case, we hold that the appellant's dismissal from service was ultra vires the provisions of Article 311 and the learned Single Judge and the Division Bench of the High Court committed serious error by upholding the order dated 23- 4-2010 passed by the Superintendent of Police.
13.7 In the case of Kumari Shrilekha Vidyarthi (supra), Hon‟ble Supreme Court has dealt with the power to terminate the WP(C) 4393/2022 Page 66 of 87 appointment at any time 'without assigning any cause' in para 13 as under:-
‚13. The learned Additional Advocate General contended that clause (3) of para 7.06 says that the appointment of a District Government Counsel is only professional engagement terminable at will on either side and not appointment to a post under the government; and the government has the power to terminate the appointment at any time 'without assigning any cause'. He contended that this power to terminate the appointment at any time without assigning any cause and the clear statement that the appointment is only professional engagement terminable at will on either side is sufficient to indicate that the relationship is the same as that of a private client and his counsel. In our opinion, this provision has to be read not in isolation, but in the context in which it appears and along with the connected provisions, already referred to. The expression 'professional engagement' is used therein to distinguish it from 'appointment to a post under the government' in the strict sense. This, however, does not necessarily mean that a person who is not a government servant holding a post under the government does not hold any public office and the engagement is purely private with no public element attaching to it. This part of clause (3) of para 7.06 means only this and no more. The other part of clause (3) which enables the government to terminate the appointment 'at any time without assigning any cause' can also not be considered in the manner suggested by the learned Additional Advocate General.WP(C) 4393/2022 Page 67 of 87
The expression 'at any time' merely means that the termination may be made even during the subsistence of the term of appointment and 'without assigning any cause' means without communicating any cause to the appointee whose appointment is terminated. However, 'without assigning any cause' is not to be equated with 'without existence of any cause'. It merely means that the reason for which the termination is made need not to be assigned or communicated to the appointee. It was held in Liberty Oil Mills v. Union of India [(1984) 3 SCC 465] that the expression 'without assigning any reason' implies that the decision has to be communicated, but reasons for the decision have not to be stated; but the reasons must exist, otherwise, the decision would be arbitrary. The non-assigning of reasons or the non-communication thereof may be based on public policy, but termination of an appointment without the existence of any cogent reason in furtherance of the object for which the power is given would be arbitrary and, therefore, against public policy.
Clause (3) of para 7.06 must, therefore, be understood to mean that the appointment of a District Government Counsel is not to be equated with appointment to a post under the government in the strict sense, which does not necessarily mean that it results in denuding the office of its public character; and that the appointment may be terminated even during currency of the term by only communicating the decision of termination without communicating the reasons which led to the termination. It does not mean that the appointment is at the sweet will of the government which can WP(C) 4393/2022 Page 68 of 87 be terminated at any time, even without the existence of any cogent reason during the subsistence of the term. The construction, suggested on behalf of the State of U.P. of this provision, if accepted, would amount to conceding arbitrary power of termination to the government, which by itself is sufficient to reject the contention and thereby save it from any attack to its validity.
14. Now, adverting to the facts herein this case, we find that there is no dispute that the petitioner was appointed to the post of LD Assistant vide Office Order dated 20.01.2016 (Annexure-D of the petition), subject to the following terms and conditions:-
1. The engagement is on purely temporary and on contractual basis initially for a period of 1 (one Year) and may be terminated at any time without assigning any reasons thereof.
2. A consolidated amount of Rs. 16,000/- per month will be paid against this engagement.
3. The candidates shall have no claim for regular appointment against any, permanent post virtue of this engagement.
4. The engagement is subject to getting the character and antecedents to be verified from the police authorities.
5. The engaged candidates shall have to follow the Service Conduct Rules applicable for University employees.
6. Candidate are request to join on or before 1st February, 2016.WP(C) 4393/2022 Page 69 of 87
Sd/ Registrar Gauhati University 14.1 It is also not in dispute that after elapse of one year of the initial term his service was extended from time to time and last such extension was granted till 31.12.2021. It is also not in dispute that in the meantime, the petitioner had instituted a writ proceeding before this Court being W.P.(C) No.4271 of 2018, and during the pendency of this petition, vide order dated 25.07.2023, this Court was pleased to direct the authorities to regularize the service of the petitioner.
14.2 It is also not in dispute that during the currency of his last extension till 31.12.2021, he was arrested on 25.09.2021, in connection with Vigilance Police Station Case No. 04 of 2021, by the Chief Ministers Special Vigilance Cell. And thereafter, vide impugned Notification, dated 25.09.2021, the service of the petitioner was terminated with immediate effect. The impugned Notification dated 25.09.2021 is read as under:-
OFFICE OF THE REGISTRAR :: GAUHATI UNIVERSITY GOPINATH BARDOLOI NAGAR :: GUWAHATI 14 :: ASSAM NOTIFICATION This is notified for information of all concerned that the Chief Minister's Special Vigilance Cell has arrested (1) Sri Sasanka Saikia, L. D. Assistant (Contractual), Office of the Secretary, University Classes, G. U. (2) Sri Tridip Sarma, (an employee of ITI. Ltd.) working WP(C) 4393/2022 Page 70 of 87 for IUMS and (3) Sri Babilon Kakoti, Security In- charge (an employee of Group 5 Placement & Security Services) in connection with the APDCL Requirement test.
In view of the above, the service of Sri Susanka Saikia L. D. Assistant (Contractual), Office of the Secretary, University Classes, G. U. has been terminated with immediate effect as per Clause No. 01 of the terms and condition of his appointment order, dated 20.01.2016. Further, ITI Ltd. is hereby informed to terminate the service of Sri Tridip Sarma with immediate effect and make an alternative arrangement in place of him.
Also, the Security Agency i.e. Group 5 Placement & Security Service is hereby informed to terminate Sri Babilon Kakoti with immediate effect.
Moreover, the entry of the above three persons is restricted inside the G.U. Campus, hence forth.
This is issued with the Hon'ble V.C.'s approval dated 25/09/2021.
Sd./-Registrar Gauhati University MemoNo.GU/Estt/Notification/2021/5212-5301, dated 25/09/2021, Copy for information and necessary action to:-
1. The Secretary to V.C., G.U.
2. The Secretary to Registrar, G.U.
3. The Administrative Head, G.U. WP(C) 4393/2022 Page 71 of 87
4. All Head of Academic Departments, G.U.
5. All Office Superintendents, G.U.
6. Concerned file.
Sd./-Illegible Registrar Gauhati University 14.3 Thus, from a cursory perusal of the impugned Notification dated 25.09.2021, following circumstances emerges:-
(i) No show-cause notice was issued to the petitioner, prior to issuance of impugned Notification dated 25.09.2021, terminating him from service;
(ii) No disciplinary proceeding/enquiry was conducted prior to issuance of the impugned Notification dated 25.09.2021;
(iii) Termination from service, which is an extremely harsh penalty, was imposed upon the petitioner.
(iv) Entry of the petitioner into the Gauhati University Campus was restricted;
(v) Even a copy of the said Notification was not marked/issued to the petitioner;
14.4 As discussed here in above, as per terms and conditions, so mentioned in Clause 5 of the Office Order dated 20.01.2016, the engaged candidates shall have to follow the Service Conduct Rules applicable for University employees. But, admittedly, in the said Rules, no such provision of termination of service of an employee, without conducting an enquiry, is available.
WP(C) 4393/2022 Page 72 of 87However, it is the submission of Mr. Phukan, the learned counsel for the respondents, that the provision of Rule - 10 of the Assam Services (Discipline and Appeal) Rules 1964 is parimateria to Article 311(2) and its proviso to the Constitution of India, which provides for special procedure in certain cases and notwithstanding anything contained in Rule 9, the Disciplinary Authority, if satisfied and for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the said Rule; may dispense with such enquiry, and since the respondent University is a state University, the said provision of Assam Service (Discipline and Appeal) Rules 1964 is also applicable in the case in hand. It is also his submission that in view of the decision of Hon‟ble Supreme Court in the case of Tulshiram Patel (supra), even if the reason is not assigned and the source of power is not indicated in the termination order or if there is wrong quotation/misquotation of the provision of law, the same would not invalidate the said order. It is also the stand of the respondents that the petitioner is not entitled to any protection under the provisions of the Assam Services (Discipline and Appeal) Rules, 1964 and/or the inquiry under the provision of the Article 311 (2) of the Constitution of India. Reliance is placed upon para No. 125, 126, 130, 133 and 135 of the said decision.
14.5 The counter argument is that the conduct of the authorities clearly leaves no room for any doubt that instead of providing a fair opportunity to the petitioner in terms of Article 311 (2) of the Constitution of India, they have deliberately stigmatize him and also WP(C) 4393/2022 Page 73 of 87 inflicted upon with the punishment with adverse civil consequences, without even affording him a chance to explain his stand and thereby proceeded with an predetermined vindictive attitude, which violated the fundamental right of the petitioner guaranteed by Article 14, 16(1) and 21 of the Constitution of India.
14.6 There appears to be substance in the submission of learned counsel for the petitioner. As, upon careful evaluation of the materials placed on record, it appears that the respondents had not assigned any reason for dispensing with the requirement of enquiry, as provided under Article 311(2) of the Constitution of India, in the impugned Notification, dated 25.09.2021. It had simply notified for information of all concerned that the Chief Minister's Special Vigilance Cell has arrested petitioner Sri Sasanka Saikia, L. D. Assistant (Contractual), Office of the Secretary, University Classes, G. U. in connection with the APDCL Requirement test and in view of the above, the service of the petitioner has been terminated with immediate effect as per Clause No. 01 of the terms and condition of his appointment order dated 20.01.2016.
14.7 The requirement of Article 311(2) of the Constitution of India is that there must be objective facts and circumstances before the respondent authorities to avoid the safeguards of Article 311(2), of the Constitution of India available to the employee concerned. This issue has already been settled in the case of Parshutom Lal Dhingra (supra). In the case in hand, there was no material, except the factum of arrest of the petitioner, in connection with the WP(C) 4393/2022 Page 74 of 87 APDCL Requirement test, to conclude that holding a departmental enquiry is not reasonably practicable/feasible, in the circumstances of the case such as serious threats to witnesses, a situation of widespread violence or disorder, or circumstances where the enquiry process itself cannot function safely or effectively. Though Mr. Phukan, the learned counsel for the respondent has pointed out that the respondent authority had relied upon Clause No. 01 of the terms and condition of his appointment order dated 20.01.2016, yet it is well settled in the case of Kumari Shrilekha Vidyarthi (supra), and Liberty Oil Mills (supra) which he had referred to, that „without assigning any cause‟ is not to be equated with „without existence of any cause‟. It merely means that the reason for which the termination is made need not to be assigned or communicated to the appointee. The expression „without assigning any reason‟ implies that the decision has to be communicated, but reasons for the decision have not to be stated; but the reasons must exist. Else, the decision would be arbitrary. It is also well settled in the said decisions that non-assigning of reasons or the non- communication thereof, may be based on public policy, but termination of an appointment without the existence of any cogent reason in furtherance of the object for which the power is given would be arbitrary and, therefore, against public policy. In that view of the matter this Court is unable to record concurrence to the submission of Mr. Phukan that the respondents have the power to terminate the service of the petitioner as per Clause 1 of the appointment order without assigning any reason.
WP(C) 4393/2022 Page 75 of 8714.8 However, in the additional affidavit the respondents had reproduced one Note, dated 25.09.2021, of the Registrar to the Vice Chancellor of the University. And perusal of the same indicates that on three grounds it had dispensed with the enquiry, as required under Article 311(2) of the Constitution of India. Firstly, due to voluminous records of more than lakhs of OMR Sheets in connection with the petitioner's police custody by CM Special Vigilance Cell and the secondly, the engagement of the petitioner is purely temporary and on contractual basis initially for a period of 1 (one) year; and though it is required that any such employee, who happens to be engaged by Gauhati University be immediately suspended and charge sheet is to be served upon him to start the Disciplinary Proceedings, yet, this is not feasible to be done as he is presently in police custody and the relevant records to be verified for the purpose of Disciplinary Proceedings, could no longer be accessible for the University. Thirdly, it is clear that the said DP will be a lengthy and time consuming one, given the voluminous documents to be checked, while his engagement is valid only up to 31.12.2021 (i.e. near about 3 months).
14.9 Under the given facts and circumstances, the respondent authorities had arrived at a finding that it is well-nigh impossible or not feasible to start an enquiry against petitioner in the form of a DP. And then being satisfied that no enquiry is feasible, the petitioner was terminated from service with immediate effect. Then after approval of the said by the Vice Chancellor, the impugned termination Notification, dated 25.09.2021, was issued.
WP(C) 4393/2022 Page 76 of 8714.10 Thus, the respondent authorities are trying to justify the impugned termination Notification, dated 25.09.2021, by filing the grounds in the additional affidavit on 06.06.2024, and also by producing the original file before this Court. But, it is the categorical submission of Mr. Baruah, the learned counsel for the petitioner that through fresh and afterthought reasons are supplied by filing the additional affidavit on 06.06.2024, the same is clearly impermissible in the eyes of the law, in view of decision of Hon‟ble Supreme Court in Mohinder Singh Gill (supra). Notably, in the case of Mohinder Singh Gill (supra), a Constitutional Bench of Hon‟ble Supreme Court has held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned at the time of issuance of the same, to ensure transparency and prevent after-the-fact justification. The reason cannot be supplemented in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, gets validated by additional grounds later brought out.
14.11 But, Mr. Phukan, learned counsel for the respondents submits that the reason may not be in the final order itself. It would be usual to record the reason separately, in view of the decisions in the case of Tulsiram Patel (supra). Notably, in the case of Tulshiram Patel (supra), Hon‟ble Supreme Court has, primarily, dealt with the scope of inquiry and the application of Article 311(2) of the Indian Constitution concerning protection against dismissal without inquiry. It addressed the procedure and WP(C) 4393/2022 Page 77 of 87 fairness in imposing penalties, but does not explicitly overruled or diluted the principle concerning supplementation of reasons in administrative orders in the case of Mohinder Singh Gill (supra). Though, narrow exceptions are curved out in very limited circumstances, but, the core idea that the reasoning in the administrative order is final and cannot be supplemented later remains intact. Thus, the foundational principle in the case of Mohinder Singh Gill (supra) about testing administrative orders on their original stated reasons has not been diluted in the case of Tulshiram Patel (supra).
15. This being the factual as well as legal position, the reasons for bypassing the requirement of enquiry, as provided under Article 311(2) of the Constitution of India, so supplemented by the respondent authorities in the additional affidavit filed by them, herein this case, cannot be reckoned with. Therefore, this Court is unable to record concurrence with the submission of Mr. Phukan, the learned standing counsel for the respondents.
16. Even for the sake of argument, the reasons for bypassing the enquiry, so supplemented by the respondents in their additional affidavit, i.e.:-
(i) the records are voluminous, involving more than lakhs of OMR Sheets were there in connection with the petitioner's police custody by CM Special Vigilance Cell,
(ii) the engagement of the petitioner is purely temporary and on contractual basis initially for a period of 1 (one) WP(C) 4393/2022 Page 78 of 87 year; and presently he is in police custody and the relevant records to be verified for the purpose of Disciplinary Proceedings, could no longer be accessible for the University,
(iii) the DP will be a lengthy and time consuming one, given the voluminous documents to be checked, while his engagement is valid only up to 31.12.2021 (i.e. near about 3 months), are examined, in the light of given factual backdrop, by applying the test of a reasonable man, as laid down in the case of Tulshiram Patel (supra), and also in the light of the given legal matrix, this Court afraid the same (grounds) would not withstand the legal scrutiny. When the right of the petitioner, under Article 311(2) of the Constitution of India, is balanced with the reasons mentioned above, so supplemented by the respondent authorities, the same tilted in favour of the petitioner. The grounds of inaccessibility of the voluminous documents, remaining behind the bar consequent upon arrest of the petitioner and lengthy and time consuming DP, and temporary nature of engagement, none of these appears to be sound, while neither national security nor public order, nor threat to the witnesses, as enunciated in the case of Satyavir Singh (supra), Jaswant Singh (supra), Reena Rani (supra), shown to have been existed by the respondent at the relevant time and on such count, the respondent authorities ought not to have lightly dispense with the requirement of Article 311(2) of the Constitution. Thus, to the considered opinion of this WP(C) 4393/2022 Page 79 of 87 Court, a clear case for interference of the impugned Notification, dated 25.09.2021, is made out.
17. Now, it has to be seen whether the impugned Notification dated 25.09.2021 is stigmatic. This issue came before the Hon‟ble Supreme Court for consideration in the case of Pavanendra Narayan Verma (supra), wherein it has been held that whether an order of termination is punitive or not can be determined by seeing whether prior to the termination there was:-
(a) a full scale formal enquiry;
(b) allegation involving moral turpitude of misconduct and
(c) the allegations culminated into a finding of guilt.
17.1 In the absence of any one of the three factors, termination order cannot be held to be punitive. Impugned order by its reading is neither punitive nor stigmatic. The relevant para are quoted herein below:-
‚20. As observed by Alagiriswami, J. in S.P. Vasudeva v. State of Haryana (1976) 1 SCC 236:
"After all no government servant, a probationer or temporary, will be discharged or reverted, arbitrarily, without any rhyme or reason. If the reason is to be fathomed in all cases of discharge or reversion, it will be difficult to distinguish as to which action is discharge or reversion simplicitor and which is by way of punishment. The whole position in law is rather confusing."WP(C) 4393/2022 Page 80 of 87
21. One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was
(a) a full-scale formal enquiry
(b) into allegations involving moral turpitude or misconduct which
(c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order.
Conversely if any one of the three factors is missing, the termination has been upheld.
xxx xxx xxx
25. In Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd. (1999) 2 SCC 21, a full- scale inquiry was held into the allegations of bribery against a temporary employee. The Court set aside the termination because it found that the report submitted was not a preliminary inquiry report but it was in fact a final one which gave findings as to the guilt of the employee.
26. In Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta (1999) 3 SCC 60, the termination order itself referred to three other letters. One of the letters explicitly referred to misconduct on the part of the employee and also referred to an Inquiry Committee's report, which report in its turn had found that the employee was guilty of misconduct. The termination was held to be stigmatic and set aside.
WP(C) 4393/2022 Page 81 of 87xxx xxx xxx
28. Therefore, whenever a probationer challenges his termination the court's first task will be to apply the test of stigma or the "form" test. If the order survives this examination the "substance" of the termination will have to be found out.‛ 17.2 In the case of U.P. State Road Transport Corporation & Ors. Vs. Brijesh Kumar & Anr., Civil Appeal No. of 2024 (arising out of S.L.P.(C) No.10546 of 2019) (Non- Reportable), Hon‟ble Supreme Court has held as under:-
‚19. The services of the respondent have been determined solely on the ground of misconduct as alleged but without holding any regular inquiry or affording any opportunity of hearing to him. The termination order has been passed on the basis of some report which probably was not even supplied to the respondent. No show cause notice appears to have been issued to the respondent. Therefore, the order of termination of his services, even if on contractual basis, has been passed on account of alleged misconduct without following the Principles of Natural Justice. The termination order is apparently stigmatic in nature which could not have been passed without following the Principles of Natural Justice.
20. In the light of the above facts and discussion, we are of the opinion that the order dated 30.01.2016 terminating the services of the respondent is bad in law and cannot be WP(C) 4393/2022 Page 82 of 87 sustained. It has rightly been set aside though on a different ground that the respondent is a permanent employee having been appointed on compassionate basis. The appointment of the respondent, in fact, is a contractual appointment entitling him to continue as such in service and to claim regularization if so advised in accordance with law.‛ 17.3 Thus, application of the above ratios to the given factual matrix of the case in hand, goes a long way to show that the impugned Notification dated 25.09.2021, is ex-facie stigmatic. Here in this case no show cause notice was issued to the petitioner and no enquiry was held and merely on the arrest of the petitioner, he was terminated from service, in violation of the principles of natural justice.
18. It is worth mentioning in this context that in the case of Dr. Vijayakumaran C.P.V. (S) v. Central University Of Kerala And Others (S), reported in 2020 INSC 93, a three Judges Bench of Hon‟ble Supreme Court has underscored the paramount importance of adhering to due process in employment termination, particularly when allegations of misconduct are involved. By distinguishing between termination simpliciter and ex facie stigmatic termination, the Court has fortified the legal safeguards surrounding employee rights and institutional responsibilities. This judgment not only mandates academic institutions to conduct thorough and formal inquiries before terminating an employee, but also serves as a precedent ensuring WP(C) 4393/2022 Page 83 of 87 that termination orders do not unjustly tarnish an individual's reputation.
18.1 In the instant case, by terminating the service of the petitioner by a stigmatic Notification, dated 25.09.2021, the respondents had violated not only the fundamental right of the petitioner guaranteed under Article 14, 16(1) and 21 of the Constitution of India, but also serious violation of the dignity of the petitioner. He has to carry the stigma, attributed in his termination Notification, throughout his life and it will haunt him wherever he goes.
19. Thus, on the following counts, the impugned Notification dated 25.09.2021, failed to withstand the legal scrutiny and is liable to be interfered with:-
(i) The impugned Notification, dated 25.09.2021, was issued terminating the service of the petitioner without issuing any show cause notice, informing him about the charges against him.
(ii) The impugned Notification, dated 25.09.2021, was issued terminating the service of the petitioner, without holding a departmental enquiry in terms of Article 311 (2) of the Constitution of India.
(iii) The petitioner was terminated from his service on the very same day of his arrest i.e. on 25.09.2021. Thus, the vindictiveness and hostile discrimination on the part of the respondents is writ large from its conduct, and the WP(C) 4393/2022 Page 84 of 87 same is violative of Articles 14, 16 (1), and 21 of the Constitution of India.
(iv) Even though the petitioner is a temporary/contractual employee, the basic principles of audi alteram partem cannot be violated under any circumstances, as temporary employee is also entitled to protection under Articles 14, 16, 21 and 311 (2) of the Constitution of India.
(v) The respondents had not even marked a copy of the impugned Notification, dated 25.09.2021, to the petitioner.
(vi) The impugned Notification, dated 25.09.2021, is stigmatic and the petitioner has to carry the same for his entire life.
(vii) Inspite of granting stay of the impugned Notification, dated 25.09.2021, by this Court, vide Order dated 30.06.2022, the petitioner was not allowed to resume his duties, which reflects the indifferent attitude of the respondents towards the petitioner.
(viii) Except mentioning about the arrest of the petitioner in the impugned Notification, dated 25.09.2021, no ground has been assigned therein for dispensing with the enquiry, as required under Article 311(2) of the Constitution of India.
WP(C) 4393/2022 Page 85 of 87(ix) Though, some grounds had been supplemented in the form of an additional affidavit by the respondents, the same cannot be taken into account to test the legality of impugned Notification, dated 25.09.2021, in view of the proposition laid down by Hon‟ble Supreme Court in the case of Mohinder Singh Gill (supra).
(x) Even, for the sake of argument, the grounds in the additional affidavit i.e. voluminous and inaccessible record, lengthy and time consuming DP and the petitioner in police custody and temporary engagement of the petitioner, if considered applying the test of a reasonable man, in the given factual and legal matrix, the same failed to withstand the legal scrutiny in as much as such grounds are not contemplated in Article 311(2) of the Constitution of India, as neither national security or public order are involved nor there is any threat to the witnesses, nor the petitioner was convicted in a criminal case, though, however, he was arrested.
20. In the result, this Court finds sufficient merit in this petition. And accordingly, the same stands allowed. The impugned Notification dated 25.09.2021, by which the petitioner was terminated from service, stands set aside and quashed.
21. By a mandamus of this Court the respondents are directed to re-instate the petitioner in service with all back wages. In holding so, this Court derived authority from a decision of Hon‟ble Supreme WP(C) 4393/2022 Page 86 of 87 Court in Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalay, reported in (2013) 10 SCC 342, wherein it has been held that in cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
22. And the said exercise mentioned in para 22 above, has to be carried out within a period of four weeks from the date of receipt of certified copy of this order. The petitioner shall obtain a certified copy of this order and place the same before the respondent authorities within a period of one week from today.
23. In terms of above, this petition stands disposed of leaving the parties to bear their own costs. Registry shall send down the original records forthwith.
Sd/- Robin Phukan JUDGE Comparing Assistant WP(C) 4393/2022 Page 87 of 87