Ghanashyam Basumatary vs The State Of Assam And 5 Ors.

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GAHC010021062020

2026:GAU-AS:16266
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/889/2020
GHANASHYAM BASUMATARY
PROFESSOR OF CARDIOLOGY, S/O- LT. BHABANI CHARAN BASUMATARY,
HOUSE NO. 17, LAKHIMINAGAR, HATIGAON, BYELANE-6, KALPATARU
PATH, GHY.- 38, DIST. KAMRUP(M), ASSAM.
VERSUS
THE STATE OF ASSAM AND 5 ORS.
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, HEALTH AND
FAMILY WELFARE (B) DEPTT., DISPUR, GHY.-06, DIST.- KAMRUP(M),
ASSAM.
2:THE PRINCIPAL SECY. TO THE GOVT. OF ASSAM
HEALTH AND FAMILY WELFARE DEPTT.
DISPUR
GHY.-06
DIST.- KAMRUP(M)
ASSAM.
3:THE DY. SECY. TO THE GOVT. OF ASSAM
HEALTH AND FAMILY WELFARE DEPTT.
DISPUR
GHY.-06
DIST.- KAMRUP(M)
ASSAM.
4:THE DIRECTOR OF MEDICAL EDUCATION
ASSAM
SIX MILE
KHANAPARA
GHY.- 28
DIST. KAMRUP(M)

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ASSAM.
5:THE PRINCIPAL-CUM- CHIEF SUPERINTENDENT
JORHAT MEDICAL COLLEGE
DIST.- JORHAT
ASSAM.
6:THE DISCIPLINARY COMMITTEE HEALTH AND FAMILY WELFARE
DEPTT.
DISPUR
GHY.-06
DIST.- KAMRUP(M)
ASSAM
B E F O R E
Hon’ble MR. JUSTICE SANJAY KUMAR MEDHI

Advocate for the petitioner : Shri R. Sarmah, Advocate.
Advocate for the respondents : Shri D. Upamanyu,
SC, Health Department

Date of hearing : 05.11.2026
Date of Judgment : 05.11.2026

Judgment & Order
Considering the subject matter involved and also the fact that this writ
petition is pending since the year 2020, the same is taken up for disposal at the
admission stage.
2. The petitioner, by means of this petition filed under Article 226 of the
Constitution of India has put to challenge an order dated 17.09.2019, whereby
he has been dismissed from service.
3. Before going to the grounds urged in support of the challenge, it would be
convenient if the facts of the case are put down in brief.
4. The petitioner was appointed as a Resident Physician in the Cardiology
Department, Guwahati Medical College Hospital in the year 1992. He was

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promoted from time to time as Assistant Professor, Associate Professor and
lastly was posted as Professor of Cardiology. In the year 2000, the petitioner
was found to be absent from duties. However, the matter was closed vide an
order dated 18.09.2000, whereby the petitioner was given a warning. It is the
case of the petitioner that owing to certain personal inconvenience, he had
submitted an application on 12.03.2013 seeking voluntary retirement and the
same application was not attended to leading to filing of WP(C)/3920/2017. In
the meantime, the authorities had initiated a disciplinary proceeding on the
ground of unauthorized absence, which resulted in the impugned order dated
17.09.2019. Accordingly, the earlier writ petition i.e. WP(C)/3920/2017 was
dismissed as infructuous vide order dated 15.11.2019. It is the legality and
validity of the order of dismissal dated 17.09.2019, which is the subject matter
of challenge in the present writ petition.
5. I have heard Shri R. Sarmah, learned counsel for the petitioner. I have also
heard Shri D. Upamanyu, learned Standing Counsel, Health Department.
6. Shri Sarmah, the learned counsel has submitted that the impugned order
has been passed in gross violation of the principles of natural justice. He has
also submitted that there is no proper application of mind to the relevant factors
including consideration of the application for grant of voluntary retirement,
which he had submitted on 12.03.2013. He has submitted that the Enquiry
Report was not furnished to him causing grave prejudice. He has also submitted
that due to certain valid reasons, the petitioner was not in a position to attend
to his duties and accordingly, he had filed the application for grant of voluntary
retirement on 12.03.2013, which ought to have been considered and orders
passed. However, instead of doing that, the respondent authorities had
proceeded with the disciplinary proceeding, culminating in the impugned order

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of dismissal dated 17.09.2019. He has submitted that though the petitioner has,
in the meantime surpassed the age of superannuation, due to the dismissal
order, he would be deprived of the post retirement benefits. The learned
counsel accordingly submits that the impugned decision be interfered with.
7. Per contra, Shri Upamanyu, the learned Standing Counsel, Health and
Family Welfare Department has strenuously resisted the writ petition. By
referring to the affidavit-in-opposition filed by respondent No. 1 on 25.06.2026.
He has submitted that it was not the first occasion when the petitioner was
found to be unauthorizedly absent. He has submitted that it is an admitted case
that in the year 2000 also, the petitioner was found to be unauthorizedly absent
which had resulted in an order dated 18.09.2000 whereby Warning was given.
In the present case, the petitioner had remained unauthorizedly absent from
22.07.2012 which had resulted in drawal of the departmental proceeding. He
has submitted that on 16.08.2014, the show cause notice was issued as the
petitioner had failed to report for his service. The said notice was followed by
reminder dated 17.10.2015. As the petitioner had failed to give any satisfactory
reply, an Enquiry Officer was appointed on 13.02.2017 and numerous notices
were issued by the Enquiry Officer directing the petitioner to attend the enquiry
proceeding.
8. In this connection, the learned Standing Counsel has drawn the attention of
this Court to the averments made in the paragraph 13 of the aforesaid affidavit-
in-opposition whereby the details of the notices issued by the Enquiry Officer
has been stated. It is disclosed that such notices were issued on 02.03.2017,
29.03.2017, 18.05.2017 on which date, the petitioner had prayed for further
accommodation of 15 days due to personal reasons. Though the aforesaid
period of 15 days was granted, even thereafter the petitioner did not appear.

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9. The learned Standing Counsel has also submitted that further notices were
issued on 29.08.2017, 13.10.2017 and 05.03.2018, even whereafter the
petitioner did not attend the proceedings and had neglected to defend himself.
Ultimately, the Enquiry Report was submitted on 21.05.2018 holding the charge
to be proved. He has submitted that though an argument has been made that
the Enquiry Report was not furnished, the impugned order of dismissal dated
17.09.2019 which is an elaborate one would itself reveal that not only the report
of the Enquiry Officer was submitted, the petitioner had also represented
against the same.
10 . He has submitted that all reasonable opportunities were granted to the
petitioner and thereafter the impugned decision has been arrived at which
would not require any interference by this Court.
11 . The rival submissions advanced in the Bar have been carefully examined
and the materials placed before this Court have been perused.
12 . The primary contention advanced on behalf of the petitioner is violation of
the principles of natural justice.
13 . At the outset before going to the issue to be adjudicated, this Court is
reminded of the fact that in exercise of the Certiorari jurisdiction under Article
226 of the Constitution of India, the examination is on the decision making
process and not on the decision as such. In other words, it is on the aspect of
legality of the impugned decision and not the soundness on which such
adjudication process would be made. The Hon'ble Supreme Court in the case of
Pravin Kumar Versus Union of India and Others reported in (2020) 9
SCC 471 has reiterated the aforesaid proposition. For ready reference, the
relevant paragraph of the said decision is extracted hereinbelow-
"25. Learned counsel for the appellant spent considerable time taking us through

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the various evidences-on-record with the intention of highlighting lacunas and
contradictions. We feel that such an exercise was in vain, as the threshold of
interference in the present proceedings is quite high. The power of judicial
review discharged by Constitutional Courts under Article 226 or 32, or when
sitting in appeal under Article 136, is distinct from the appellate power exercised
by a departmental appellate authority. It would be gainsaid that judicial review is
an evaluation of the decision-making process, and not the merits of the decision
itself. Judicial Review seeks to ensure fairness in treatment and not fairness of
conclusion. It ought to be used to correct manifest errors of law or procedure,
which might result in significant injustice; or in case of bias or gross
unreasonableness of outcome.[ Government of Andhra Pradesh vs. Mohd
Nasrullah Khan, (2006) 2 SCC 373, 11.]"
14 . To appreciate the contention that there has been violation of principles of
natural justice, this Court has looked into the materials available. The show
cause notice was issued on 16.08.2014 which was followed by a reminder dated
17.10.2015. As no satisfactory response could be made by the petitioner, the
respondent authorities had initiated an enquiry by appointment of an Enquiry
Officer vide order dated 13.02.2017. This Court has noted that several notices
had to be issued by the Enquiry Officer to the petitioner to attend the
proceeding which were ignored by him.
15 . The affidavit-in-opposition filed by the respondent no. 1 on 25.06.2026
further reveals that on 18.05.2017, the petitioner had prayed for
accommodation of 15 days owing to personal reasons which was granted and
even thereafter there was no response from the petitioner to be present in the
enquiry. The affidavit further reveals that notices were again served on
29.08.2017, 13.10.2017 and 05.03.2018. For ready reference, the averments
made in paragraph 13 of the affidavit-in-opposition are expected herein below:

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“ 13. That as regards to the statements made in paragraph No. 11 of the writ
petition, the deponent begs to state that it is vehemently denied that the
Disciplinary Authority recorded findings unsupported by evidence or that the
enquiry was vitiated by a violation of the principles of natural justice in the
instant case. It is further submitted that the official records demonstrate that
the Departmental Proceedings were conducted with due application of mind and
strict adherence to procedural fairness. The following were kept in mind while
recording the findings of the enquiry by the Disciplinary Authority:
1. Regarding Evidence: the finding of unauthorized absence was based on
substantial evidence, including reports from the Principal-cum-Chief
Superintendent, Jorhat Medical College & Hospital, confirming that the
petitioner remained absent from duties w.e.f. 22.07.2012 without submitting
any leave application.
2. Regarding Natural Justice: the petitioner was afforded ample opportunity to
defend himself Further, an Enquiry Officer was appointed vide Order dated
13.02.2017. Furthermore, notices for hearing on the following dates were
issued:
i) 02.03.2017 (Vide No. HLB.161/98/101, dated, Dispur the 24th
February, 2017);
ii) 29.03.2017 (Vide No. HLB.161/98/102, dated, Dispur the 21st
March, 2017); and
iii) 18.05.2017 (Vide No. HLB.161/98/103, dated, Dispur the 5th May,
2017)
3. Accommodation of Petitioner's Requests: when the petitioner prayed for 15
days' time vide letter dated 18.05.2017 due to his mother's illness, the Enquiry
Officer acceded to the request and rescheduled the hearing to 06.06.2017 (Vide
No. HLB.161/98/105, Dated, Dispur the 19th May, 2017). Despite this
accommodation, the petitioner failed to appear.
4. Repeated Opportunities: subsequent notices were issued for hearings on
29.08.2017 (Vide No.AX HLB.161/98/106, Dated, Dispur the 19th August,
2017), 13.10.2017 (Vide No. HLB.161/98/107,30 Dated, Dispur the 3rd October,
2017), and a final opportunity on 05.03.2018 (Vide No. HLB.161/98/108, Dated,
Dispur the 21st February, 2018). The Enquiry Officer recorded in the "Enquiry
report of the Departmental Proceeding, dated 21-05-2018" that the petitioner
failed to cooperate with the enquiry despite these multiple notices.
5. Recording of Reasons: the Disciplinary Authority applied its mind to the
Enquiry Report and the gravity of the misconduct (unauthorized absence for

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over 7 years). The Assam Public Service Commission (APSC) was consulted, and
they concurred with the proposed penalty vide their letter dated 29.08.2019.
The dismissal was made effective from the date of unauthorized absence, that
is, from 22.07.2012, in accordance with service jurisprudence regarding
abandonment of service. The final Order dated 17.09.2019 clearly records the
reasons for the penalty. Therefore, the contention that the enquiry was vitiated
or lacked evidence is wholly legally untenable and denied.”
16 . As the present adjudication is on the basis of the pleadings in the writ
petition and in the affidavit, it would be necessary to see the reply made by the
petitioner in his rejoinder affidavit. The reply to paragraph 13 is found in
paragraph 11 of the rejoinder affidavit which is as follows:
“ 11. That with regard to the statements made in paragraphs 13, 14 and 15 of
the affidavit-in-opposition, this deponent disputes the fairness of the same and
begs to state that the respondent authority arbitrarily dismissed the petitioner
which they cannot do. It ought to have acted on some guiding principle which
cannot affect the fundamental right of a citizen. The exercise of any action of
such instrumentality will have to be based in some definite guidelines for which
the power is being exercised in public interest.”
17 . This Court has noticed that there is no denial of the facts stated on
affidavit by the respondent no. 1, more particularly with regard to the issuance
of notices directing the petitioner to be present in the disciplinary proceeding.
The Enquiry Report was finally submitted on 21.05.2018.
18 . Though Shri Sarmah, the learned counsel for the petitioner had made an
argument that report of the Enquiry Officer was not furnished, a bare perusal of
the order of dismissal dated 17.09.2019 would show that not only the report
was submitted, the petitioner had also represented against the same. In the
opinion of this Court, the petitioner was afforded with a fair and reasonable
opportunity to defend himself which is the requirement of law.
19 . The impugned order has also dealt with the other aspects, namely, the
application for voluntary retirement. On perusal of the same, this Court is of the
opinion that such conclusion has been arrived at based on relevant factors

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which are germane to the issue involved.
20 . Considering the above, this Court is of the view that there is no apparent
violation of the principles of natural justice and the order of penalty imposed
also does not appear to be disproportionate to the seriousness of the charge
which is unauthorised absence for a long period starting from 2012 till the order
of dismissal has been passed in the year 2019.
21 . In the conspectus of the aforesaid discussion, this Court is of the view that
no case for interference is made out.
22 . The writ petition is accordingly dismissed.
JUDGE
Comparing Assistant