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