Gauhati High Court
Tarun Gogoi vs The State Of Assam And 3 Ors on 29 April, 2026
Page No.# 1/11
GAHC010256102024
2026:GAU-AS:6228
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6751/2024
TARUN GOGOI
S/O SUNIL KUMAR GOGOI,
RESIDENT OF VILLAGE JAMUGURIGAON, PS AND DIST JORHAT, ASSAM
VERSUS
THE STATE OF ASSAM AND 3 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM HOME DEPARTMENT, DISPUR GUWAHATI 06
2:THE DIRECTOR GENERAL OF POLICE
ULUBARI GUWAHATI 07
3:THE INSPECTOR GENERAL OF POLICE (ADMIN)
ASSAM GUWAHATI 07
4:THE SUPERINTENDENT OF POLICE
BONGAIGAON ASSAM 78338
Advocate for the Petitioner : MR. M KHAN, MS J AKTAR,MR A K DAS
Advocate for the Respondent : GA, ASSAM,
Page No.# 2/11 BEFORE HON'BLE MR. JUSTICE N. UNNI KRISHNAN NAIR For the Petitioner : Mr. M Khan For the Respondent : Mr. P Nayak Ms. M Bhattacharjee Date of Hearing : 30.01.2026 Date of Judgment : 29.04.2026 JUDGMENT AND ORDER (CAV) Heard Mr. M Khan, learned counsel for the petitioner. Also heard Mr. P Nayak, learned Additional Advocate General, Assam and Ms. M Bhattacharjee, learned Additional Senior Government Advocate appearing for the respondents.
2. The petitioner by way of instituting the present writ petition has assailed an order dated 14.10.2024, issued by the Superintendent of Police, Bongaigaon, Assam, towards imposing the penalty of dismissal from service upon the petitioner, by invoking the provisions of Clause-(b) of the Second Proviso to Article 311(2) of the Constitution of India, read with Rule 10(ii) of the Assam Services (Discipline and Appeal) Rules, 1964 (hereinafter, referred to as the Rules of 1964).
3. The petitioner, herein, was appointed as Armed Branch Constable, w.e.f.
23.02.2009 and was initially posted with the 16 th A.P. (IR) Battalion Bormonipur, Page No.# 3/11 Morigaon. Thereafter, the petitioner was transferred to the 25 th Assam Police (ONGC) Battalion, Ligiripukhuri, Nazira and subsequently, was transferred and posted to the District Police Establishment, Bongaigaon in the month of June, 2022. While serving in such capacity, the petitioner came to be arrested on 15.09.2024, in connection with Bongaigaon P.S. Case No. 318/2024 under Sections 331(3)/75(2)/127(2) BNS, 2023, read with Section 10 of the POCSO Act.
The Disciplinary Authority of the petitioner, on his arrest in connection with the above noted criminal case, proceeded to issue an order dated 19.09.2024, placing the petitioner under suspension, w.e.f. 16.09.2024. The petitioner was enlarged on bail, vide order dated 16.11.2024, passed by the learned Special Judge, Bongaigaon. On being enlarged on bail, the petitioner was served with a copy of the impugned order dated 14.10.2024, whereby, in connection with the allegations involved in the criminal case instituted against the petitioner, the Disciplinary Authority drew satisfaction that it was impracticable to hold an enquiry against the petitioner and proceeded to dismiss him from service by invoking the provisions of Clause-(b) of the Second Proviso to Article 311(2) of the Constitution of India read with Rule 10(ii) of the Assam Services (Discipline and Appeal) Rules, 1964.
Being aggrieved, the petitioner, herein, has instituted the present proceedings.
4. Mr. M Khan, learned counsel for the petitioner, by drawing the attention of this Court to the order dated 14.10.2024, has submitted that the Disciplinary Authority had only considered the nature of the misconduct committed by the petitioner in the said order for the purpose of imposing the penalty of dismissal Page No.# 4/11 from service, by dispensing the enquiry mandated to be carried out. He submits that the provisions of Clause-(b) of the Second Proviso to Article 311(2) of the Constitution of India, empowers a Disciplinary Authority to dismiss, remove or reduce in rank an employee, without holding an enquiry, by recording reasons as to why it was not reasonably practicable to hold such enquiry. He submits that provisions similar to the above exists in the provisions of Rule-10(ii) of the Rules of 1964. He submits that the Disciplinary Authority in the impugned order dated 14.10.2024, has not adduced any reason to highlight as to why it was not reasonably practicable to hold an enquiry against the petitioner, herein. He submits that it is sine-qua-non that for the purpose of invoking the provisions of Clause (b) to the second proviso to Article 311(2) of the Constitution of India, adequate reasons have to be assigned by the Disciplinary Authority, preferably before issuance of the impugned order of dismissal, removal or reduction in rank and/or atleast incorporate such reasons in the order, itself.
4.1 Mr. Khan, learned counsel for the petitioner, submits that although, a notice in the matter is not called for, to be issued before exercising of power under Clause (b) to the second proviso to Article 311(2), the assignment of reason with regard to the impracticability to hold an enquiry must find mention at least in the impugned order. He submits that the respondent authorities by selectively reading an order passed by the Co-ordinate Bench of this Court in the case of Madhab Gogoi Vs. State of Assam & Ors. (judgment dated 15.10.2020 in WP(C) No. 4212/2020), had proceeded to pass the impugned order dated 14.10.2024. He submits that the order dated 14.10.2024, having not satisfied the requirements of Clause (b) to the second proviso to Article 311(2) of the Constitution of India, as well as Rule 10(ii) of the Rules of 1964, the satisfaction required to be drawn by the Disciplinary Authority before Page No.# 5/11 arriving at a conclusion that it was not reasonably practicable to hold an enquiry, being absent, in the order dated 14.10.2024, the said order would mandate an interference. He submits that the criminal proceedings basing on the same charge instituted against the petitioner, is pending at the stage of trial. He submits that the petitioner would be required to be reinstated in his service.
5. Per contra, Ms. M Bhattacharjee, learned Additional Senior Government Advocate, has submitted that considering the nature of the allegations leveled against the petitioner as well as from the enquiry report submitted by the Additional Superintendent of Police, Head Quarter, Bongaigaon, it being evident that the petitioner had committed a serious offence, appropriate action in the matter was deemed necessary to be taken against him, to maintain the image of the force and accordingly, the respondent authorities had proceeded to issue the impugned order dated 14.10.2024, imposing the penalty of dismissal from service upon the petitioner, by invoking the provisions of Clause-(b) of the Second Proviso to Sub Article (2) of Article 311 of the Constitution of India. She submits that given the background leading to the issuance of the said order dated 14.10.2024, the same would not mandate an interference from this Court.
5.1 Ms. Bhattacharjee, learned Additional Senior Government Advocate has submitted that she has not been furnished with any other records, wherein, any reason in addition to the grounds taken in the order dated 14.10.2024, was recorded by the Superintendent of Police, Bongaigaon.
6. I have heard the learned counsels for the parties and also perused the materials available on record.
Page No.# 6/11
7. The petitioner, on being arrested in connection with Bongaigaon P.S. Case No. 318/2024 registered under Sections 331(3)/75(2)/127(2) of BNS, 2023 read with Section 10 of the POCSO Act, 2012, was placed under suspension, w.e.f. 16.09.2024, vide issuance of an order dated 19.09.2024. Therefore, the Disciplinary Authority of the petitioner, considering the preliminary enquiry report, submitted by the Additional Superintendent of Police on 15.09.2024, proceeded to conclude that the petitioner had committed a gross misconduct and the same had brought embarrassment to the force and affected the morale of the members of the force. It was further concluded that the continuance of the petitioner in the force, even after commission of such gross misconduct was unacceptable and against the ethos of the force. Accordingly, by invoking the provisions of Clause (b) of the second proviso to Article 311(2) of the Constitution of India, as well as Rule 10(ii) of the Rules of 1964, proceeded to impose upon the petitioner the penalty of dismissal from service, by dispensing the enquiry required to be held in the matter.
8. The order dated 14.10.2024, issued by the Superintendent of Police, Bongaigaon, being relevant, is extracted hereinbelow:
"Whereas, complainant Pranati Mahato Sharma, W/O. Shri Kiran Kr. Sharma, resident of North Bongaigaon, under Bongaigaon PS, Dist:-
Bongaigaon, lodged an FIR on 15.09.2024 at Bongaigaon Police Station that on 15.09.2024 her 11 years old daughter was sexually assaulted by one LNK/AB 550 Tarun Gogoi posted at North Bongaigaon PP, while victim was alone at her home. The said LNK/AB 550 Tarun Gogoi allegedly put the complainant's daughter on his lap and hugged her with ill intent. When another person arrived at the complainant's house, the minor girl Page No.# 7/11 was able to free herself from his grip. In this regard, a GDE entry was made vide North Bongaigaon PP GDE No. 333 dated 15/09/2024, and a case has been registered vide Bongaigaon PS Case No. 318/2024 under Sections 331(3), 75(2), 127(2) BNS, 2023, R/Wsec10 of the POCSO Act, 2012. Accordingly, the I/O of the case WSI (P) Mayuri Sharma arrested LNK/AB 550 Tarun Gogoi and forwarded him to judicial custody. LNK/AB 550 Tarun Gogoi has been suspended from his duties as on 16/09/2024, vide memo no. BNGN/RO/2024/2314-15 dated 19/09/2024.
Whereas, from the enquiry so conducted and after going through the Enquiry Report supported by the statement of the victim girl recorded u/s 183 BNSS, prima facie, it appears that the allegations against LNK (AB)/550 Tarun Gogoi (U/S) which are serious in nature are substantiated, and Whereas, the Hon'ble Gauhati High Court in the case of Madhab Gogoi vs State of Assam (WP(C) No. 4212/2020) has observed that both the provisions of Article 311(2-b) and Rule 10(ii) of the Assam Service (Discipline and Appeal) Rules 1954 empowers the disciplinary authority to pass any such order as it deems fit, where the disciplinary authority is satisfied for reasons to be recorded in writing that it is not reasonably practical to follow the procedure of holding the disciplinary enquiry etc. A satisfaction has to be reached as to why it was not practicable to hold the enquiry etc, and Whereas, Section 47(a) of the Assam Police Act 2007, role and functions of police is prescribed as, "to uphold and enforce the law impartially, and to protect life, liberty, property, human rights and dignity Page No.# 8/11 of the members of the public," and Whereas, the act of LNK (AB)/550 Tarun Gogoi (U/S) tantamount to gross misconduct: such kind of act of moral turpitude has brought embarrassment to the force and has affected the morale of the ranks and file. His continuance in service, even after such gross misconduct involving a minor girl, is unacceptable and against the ethos of a disciplined uniformed service. It would send a wrong signal to society and public if such an individual is allowed to remain in service. Other members of the public instead of feeling protected will feel vulnerable. Public interest does not justify his continuance in service, and Whereas, as per provision of Article 311(2)(b) of the Constitution of India, Rule 10 (ii) of the Assam services (Discipline and Appeal) Rules, 1964 and Govt. Memo No. HMA.487/92/89-A Dated 13/12/1994 and with due application of mind, I being the Disciplinary Authority dismiss LNK (AB)/550 Tarun Gogoi from service w.e.f. 14.10.2024."
9. A perusal of the said order would reveal that while the Disciplinary Authority of the petitioner had appreciated the graveness of the allegations leveled against the petitioner, there is no material brought on record to highlight as to why in the considered view of the Disciplinary Authority of the petitioner, it was held that it is not reasonably practicable to hold a enquiry against the petitioner in the matter. This Court does not find any reason assigned for the said purpose in the said order dated 14.10.2024.
10. The Disciplinary Authority had for the purpose of passing the said order, relied upon a decision of the Co-ordinate Bench of this Court in the case of Page No.# 9/11 Madhab Gogoi-Vs-State of Assam [Judgment and order dated 15.10.2020, passed in WP(C) No. 4212/2020]. This Court has perused the decision of the Co-ordinate Bench of this Court in the case of Madhab Gogoi (supra) and does not find that therein, it was mandated that no reason has to be assigned as to why it was deemed by the Disciplinary Authority that it was not reasonably practicable to hold an enquiry, rather in the said decision, it is seen that the Co- ordinate Bench had found that the provisions of Clause (b) & (1) of the second proviso to Article 311(2) of the Constitution, as well as Rule 10(ii) of the Rules of 1964 to have been followed to the extent that no satisfaction was arrived at in writing as to why it is not practicable to hold the enquiry and/or as to why it is not expedient to hold the enquiry in the interest of security of the State. Accordingly, the Court was of the view that the order of dismissal from service against the petitioner would not be sustainable in law.
11. Accordingly, the interpretation placed by the Disciplinary Authority of the petitioner in the order dated 14.10.2024, on the decision of the Co-ordinate Bench of this Court in the case of Madhab Gogoi (supra), is clearly perverse. While, it is not mandated that a notice is called to be issued to the delinquent before holding, that it is not reasonably practical to hold an enquiry by invoking the provisions of Clause-(b) of the Second Proviso to Article 311(2) of the Constitution, the same is to be so substantiated by reasons assigned for the purpose. It would not satisfy the provisions of Sub Clause-(b) of the Second proviso to Article 311(2), to proceed to hold that it was not reasonably practicable to hold an enquiry as contemplated under Article 311(2) of the Constitution of India, only by noticing the seriousness of the allegations leveled against the petitioner. It has to be brought on record either in the order itself or in the contemporaneous records the reasons as to why such enquiry was not Page No.# 10/11 reasonably practicable to be so held.
12. This Court having not found any such reasons recorded and the projections made in the order dated 14.10.2024, being not germane for the purpose of invoking the provisions of Clause-(b) to the Second Proviso to Article 311(2) of the Constitution of India and/or invoking the provisions of Rule 10(ii) of the Rules of 1964, this Court finds that the order dated 14.10.2024, would not mandate an acceptance from this Court.
13. It is further noticed that in the affidavit filed by the respondent authorities also, there is no justification brought on record with regard to the conclusions reached by the Disciplinary Authority of the petitioner, that it was not reasonably practicable to hold an enquiry in the matter against the petitioner.
14. Having drawn the above conclusions, the order dated 14.10.2024 stands set aside.
15. Having interfered with the order dated 14.10.2024, the petitioner is directed to be reinstated in his services. However, considering the nature of the allegations leveled against the petitioner, he is deemed to have continued under suspension w.e.f., 14.10.2024. The petitioner would be entitled to be authorised subsistence allowance, w.e.f. 14.10.2024. Considering the nature of allegations leveled against the petitioner, it is provided that the disciplinary authority shall institute disciplinary proceedings against the petitioner in accordance with the provisions of Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 and conclude the same expeditiously. Alternatively, liberty is also provided to the disciplinary authority of the petitioner to invoke the provisions of Clause-(b) of Page No.# 11/11 the Second Proviso of Article 311(2) of the Constitution of India and/or the provisions of Rule 10(ii) of the Assam Services (Discipline and Appeal) Rules, 1964, however, due reasons be recorded with regard to the satisfaction drawn by the Disciplinary Authority as to why it is not practicable to hold an enquiry against the petitioner, basing on the allegation of misconduct existing against him in the matter.
16. The decision now required to be arrived at in the matter by the Disciplinary Authority of the petitioner, be so arrived at within a period of 1 (one) month from the date of receipt of a certified copy of this order.
17. With the above observations and directions, the present writ petition stands disposed of.
JUDGE Comparing Assistant Pratibha Digitally signed by Pratibha Baruah DN: c=IN, o=Personal, postalCode=781004, l=Kamrup Metro, st=Assam, street=FLAT NO 204 GAUHATI HIGH COURT PRIVATE SECRETARY COMPLEX, Kharguli, Guwahati Assam India 781004, title=3293, 2.5.4.20=71a530be2ea040bbb22c00931aced04f63e681f6c Baruah ae3635c78d478f02266cde4, serialNumber=cb2a7c22627f9ea771f18f3983e02b66130df 764108b79dd12f3a3e40cd1d082, [email protected], cn=Pratibha Baruah Date: 2026.05.07 15:30:58 +05'30'