Kandarpa Das vs The Chancellor Gauhati University And 5 Ors.

GAHC010171082021

2026:GAU-AS:7227


IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)

PRINCIPAL SEAT AT GUWAHATI

WP(C) No. 5498/2021



Dr. Kandarpa Das,
S/o Late Golak Chandra Das,
Resident of Shantidan Path, Khanamukh,
Lankeswar, Jalukbari, Guwahati,
PS-Jalukbari, Dist.-Kamrup(M),
Assam, Pin-781014.
Petitioner
…… .
-Versus-
1. The Chancellor,
Gauhati University,
Gopinath Bordoloi Nagar,
Guwahati, Pin-781014.
2. The Vice Chancellor,
Gauhati University, Gopinath Bordoloi Nagar,
Guwahati, Pin-781014.

3. The Gauhati University,
Represented by its Registrar,
Gopinath Bordoloi Nagar,
Guwahati, Pin-781014.

4. The Executive Council,
Gauhati University, Gopinath Bordoloi, Nagar,
Guwahati, Pin-781014,
Represented by its Secretary.

5. The Registrar,
Gauhati University, Gopinath Bordoloi Nagar,
Guwahati, Pin-781014.
WP(C) 5498/2021 Page 1 of 88

6. The Inquiry Officer,
In the Departmental Proceeding drawn up against
Dr. Kandarpa Das.
…… Respondents .

For the Petitioner : Mr. M.K. Choudhury, Sr. Adv.,
Mr. T. Chakraborty.
……Advocates.

For the Respondents : Mr. D. Saikia, AG, Assam,
Mr. K. Gogoi,
Mr. P.J. Phukan.
……Advocates.



BEFORE

HON’BLE MR. JUSTICE ROBIN PHUKAN

Date(s) of Hearing :- 03.02.2026 & 12.02.2026

Date on which judgment is reserved :- 12.02.2026

Date of pronouncement of judgment :- 25.05.2026

Whether the pronouncement is of the
operative part of the judgment?
:- N/A

Whether the full judgment has been
pronounced?
:- Yes



WP(C) 5498/2021 Page 2 of 88

JUDGMENT AND ORDER

Heard Mr. M.K. Choudhury, learned Sr. Counsel, assisted by Mr. T.
Chakraborty, learned counsel for the petitioner and also heard Mr. D.
Saikia, learned Advocate General, Assam - cum- Sr. Counsel, assisted by
Mr. K. Gogoi and Mr. P.J. Phukan, learned counsel for the respondents.
2. In this petition, under Article 226 of the Constitution of India, the
petitioner, namely, Dr. Kandarpa Das, has challenged the order dated
06.10.2021, issued by the Registrar & Secretary, Executive Council,
Gauhati University and also prayed for issuing direction to the respondent
authorities, to allow him to continue his service as Professor, Department
of Foreign Languages, Gauhati University.
Background Facts:-
3. The background facts leading to filing of the present petition are
briefly stated as under:-
“The petitioner was serving as Professor in the Department of
Foreign Languages, Gauhati University, in Russian language and
Literature. Then he was appointed as Director of Gauhati University
Institute of Distance and Open Learning (GUIDOL), which was
started in the month of May, 1998 and it was re-designated as
GUIDOL in the month of April, 2008. He was released from the
post of Director, GUIDOL on 31.01.2016, and thereafter, he
continued to serve in the University as Professor in the Department
of Foreign Languages. Thereafter, in the year 2018, the
Comptroller and Auditor General of India (CAG) had submitted it
report on Social, General and Economic (Non-PSUs) Sectors for the
WP(C) 5498/2021 Page 3 of 88

st
year ended on 31 of March, 2018 before the State Assembly. The
report was forwarded to the Gauhati University by the State
Government. Then on receipt of the report of the CAG, the
Executive Council of the Gauhati University on 04.12.2019, decided
to constitute an Inquiry Commission, headed by Dr. Justice Aftab
Hussain Saikia, to inquire into the anomalies indicated in the report
of CAG. Thereafter, the Commission has submitted its report to the
Gauhati University, containing various recommendations on
28.09.2020. Thereafter, the University had decided to conduct an
inquiry on 08.06.2021, on various charges, for running unapproved
courses on his own, while he was working as Director of GUIDOL,
and issued show cause notice to him. The petitioner had submitted
his reply to the Disciplinary Authority, denying all the charges
leveled against him.
Then the University had appointed one Shri Pallab
Bhattacharyya, Retd. IPC and former Chairman Assam Public
Service Commission (APSC), as Inquiry Officer on 08.06.2021, and
the Inquiry Officer had accepted the offer on 17.06.2021, and a
charge-sheet was served upon the petitioner on 22.06.2021, under
Rule 11 of the Gauhati University Teachers‟ Conduct Rules, 1984
read with Rule 7 and 9 of the Assam Services (Discipline and
Appeal) Rules, 1964. The petitioner had submitted his written
statement denying all the charges leveled against him. Then after
the inquiry, the Inquiry Officer had submitted its report.
It is the contention of the petitioner that none of the
witnesses could prove the charges leveled against the petitioner.
But, without considering the said evidence as well as exhibit on
WP(C) 5498/2021 Page 4 of 88

record, the Inquiry Officer on 10.09.2021, had submitted his report
to the Gauhati University authority, declaring therein the petitioner
as guilty of misconduct. Thereafter, the Executive Council of the
Gauhati University has accepted the report on 20.09.2021, and the
petitioner was directed to submit his comments on the Inquiry
Report, on 21.09.2021. Though the petitioner has sought for time
to submit his written reply to the Inquiry Report on 30.09.2021, the
same was rejected by the Gauhati University authority on
01.10.2021. The petitioner then submitted his reply to the Gauhati
University authority on 02.10.2021. Thereafter, vide impugned
order dated 06.10.2021, the Gauhati University authority has
removed the petitioner from service, with immediate effect.
4. Being aggrieved, the petitioner has approached this court by filing
the present petition, seeking the reliefs, as aforesaid, on the following
grounds:-
(i) The Inquiry Officer was appointed by the
University authority much prior to the date of
issuance of the charge-sheet to the petitioner
and the same goes to show that the principle of
natural justice and Rule 9 of the Assam Services
(Discipline and Appeal) Rules, 1964 are violated.
(ii) The Disciplinary Authority is the Executive
Council of the Gauhati University and the
memorandum of charge dated 22.06.2021 was not
placed before the Disciplinary Authority for
approval and as such, the same is non-est in the
eye of law and thereby rendering the
consequential proceeding stands vitiated.

(iii) Though there was allegation of violation of Rule
4 of the Gauhati University Teachers’ Conduct
WP(C) 5498/2021 Page 5 of 88

Rules, 1984, the charge-sheet is silent on the
specific ground on which the petitioner has been
charged for misconduct and that the word
‘misconduct’ has to be construed strictly.
(iv) While conducting the inquiry, the Inquiry Officer
did not even consider the stand taken by the
Gauhati University in the matter of running the
unapproved courses. The stand taken by the
Gauhati University regarding running of those
unapproved courses by GUIDOL has already been
clarified by the University vide communication
dated 18.01.2019 under Memo No.Gu/Regr(SF)/2019
/2(A) and in the said communication the matter
relating to running of unapproved courses, was
said to be bona-fide error of judgment on the
part of the authorities of GUIDOL and that there
was no ill motive on anybody’s part in running
those unapproved courses.
(v) The Inquiry Report, submitted by the Inquiry
Officer, is contrary to the record and the said
report therefore, is perverse, as while deciding
the article of charges, the Inquiry Officer made
extraneous allegations against the petitioner
which were not part of the statement of
imputation served upon the petitioner on
22.06.2021.
(vi) The communication dated 06.10.2021, issued by the
Registrar & Secretary, Executive Council of the
Gauhati University, who is the Disciplinary
Authority, decided to impose a major penalty of
removal from service as per Rule 7(vi) of the
Assam Services (Discipline and Appeal) Rules,
1964. But before imposing such a major penalty,
it was incumbent upon the Disciplinary Authority
to issue a show-cause notice to the petitioner,
as to why such penalty should not be imposed.
WP(C) 5498/2021 Page 6 of 88

But, in the instant case, before issuing the
impugned order dated 06.10.2021, no such show-
cause notice was issued.

(vii) The penalty, so imposed upon the petitioner, is
disproportionate to the allegations leveled
against the petitioner, in view of the fact that
the finding recorded by the Inquiry Officer in
the report submitted by him is absolutely
perverse and on such count, it is contended to
allow this writ petition.
5. The respondent Nos. 2, 3, 4, 5 and 6 have filed their affidavit-in-
opposition, wherein a stand has been taken that Dr. Justice Aftab Hussain
Saikia Commission was constituted as per the Gauhati University
Executive Council‟s Resolution, adopted in its meeting held on
04.12.2019, and the said Commission submitted its report on 28.09.2020,
and the same was accepted by the Gauhati University Executive Council,
in its meeting held on 05.10.2020, and consequent upon acceptance of
the report, dated 28.09.2020, the same was sent to the Chancellor of the
University, as well as to the Higher Education Department of Govt. of
Assam and to the University Grants Commission, vide letter, dated
06.10.2020, and also the same was forwarded to the writ petitioner, for
submitting his comment on the findings and recommendations, within 30
days. Thereafter, in the meeting of the Executive Council held on
08.06.2021, it was resolved to initiate disciplinary proceedings against the
petitioner and also resolved to request and one Pallab Bhattacharyya, IPS
(Retd.), former Chairman of the APSC, to take up the responsibility to act
as an Inquiry Officer, and the same was communicated to him on
10.06.2021, and requesting to accept the offer. He was informed that his
name had been suggested to conduct Departmental Proceedings, as
WP(C) 5498/2021 Page 7 of 88

follow up action, consequent upon the submission of the Dr. Justice Aftab
Hussain Saikia Commission‟s Report against the petitioner.
5.1. Then on receipt of the response of Shri Bhattacharyya, he was
duly appointed as the Inquiry Officer by a subsequent official
communication dated 01.07.2021 and that the charge memo dated
22.06.2021, was issued much prior to the aforesaid communication,
dated 01.07.2021, as regards formal appointment of the Inquiry Officer
concerned and that the charge-sheet was not approved by the
Disciplinary Authority is incorrect in view of the contents of the
proceeding along with Resolution of the Executive Council meeting held
on 08.06.2021, and that the petitioner was duly communicated to make
his submission upon the report dated 28.09.2020, and on submission of
report, the same were placed before the Executive Council in its meeting
held on 26.02.2021, wherein a Committee of 4(four) Executive Council
members was constituted to examine the recommendation of the
Commission and thereafter to make necessary recommendation to be
executed in this regard. The said EC Committee had submitted its report
on 31.03.2021. Then the Principal Secretary to the Govt. of Assam in
Higher Education Department had also written one urgent letter on
31.05.2021, urging the Vice Chancellor to start disciplinary action as per
provision of the Assam Services (Discipline and Appeal) Rules, Gauhati
University Act, Rules and Regulation as applicable to them without any
further delay and the same was placed before the EC meeting held on
08.06.2021, to discuss the matter and the EC had decided to initiate
disciplinary proceedings against the petitioner, primarily based on the
findings and 8 nos. of recommendations, of the report of Dr. Justice
Saikia Commission, as regards the following 12(twelve) nos. of issues,
which are as under:-
WP(C) 5498/2021 Page 8 of 88

1. Whether GUIDOL had run exactly 21 unapproved courses
during the period 2010-17 as observed in CAG Report?
2. Whether the continuation of the alleged 21 unapproved
courses was within the knowledge of the then Director(s) of
GUIDOL and other Authorities of Gauhati University during
the period 2010-17?
3. Whether the approval from DEC/UGC was necessary to run
those unapproved courses and if yes, whether any
appropriate step(s) was/were taken by the then Director(s)
of GUIDOL?
4. Whether any of the students enrolled and passed out on
completion of alleged unapproved courses during the period
2010-11 to 2016-2017, did file any complaints/written
statements/grievances before the Commission in pursuance
of the “Public Notices” published in local daily newspapers
both in English or Vernacular on 05.01.2020 and 11.01.2020?
5. Whether DEC/UGC were aware of running such alleged 21
unapproved courses by GUIDOL during those long periods of
7 years, i.e. 2010-2017? If yes, whether they did take any
necessary steps whatsoever in this period?
6. Whether any procedure was prescribed or in existence for
getting approval of courses offered by GUIDOL from
DEC/UGC?
WP(C) 5498/2021 Page 9 of 88

7. Whether proper procedure was followed by GUIDOL
Authority(ies) for seeking required approval for running the
courses?
8. Whether the steps taken by the then Director, GUIDOL in
obtaining approval of the left-out courses from DEC/UGC,
justified his action of continuing the unapproved courses in
GUIDOL?
9. Whether the decision to run the unapproved courses by
GUIDOL Authority(ies) pending approval of the UGC was
justifiable?
10. Whether the irregularities committed by GUIDOL Authority
(ies) by running the unapproved courses resulted in personal
gain of any individual(s)/official(s) associated with GUIDOL
and/or GU?
11. Whether the then Director(s) of GUIDOL and/or any other
responsible officer(s) was/were liable for running of such
alleged 21 unapproved courses?
12. Whether the matters pertaining to fictitious payment, extra
avoidable expenditure etc. made by the then Director(s),
GUIDOL as observed in CAG Report shall come within the
purview of this Commission?
5.2. It is also stated that subsequent to the resolution of the Executive
Council, dated 08.06.2021, charge memo was issued and the Registrar &
Secretary, Ex-officio member of the Executive Council, Gauhati University
had issued the relevant memorandum, on 22.06.2021, in the name of the
WP(C) 5498/2021 Page 10 of 88

Executive Council (as per Annexure-8 of the writ petition) and thereafter,
the said memorandum, dated 22.06.2021, was issued after legal
consultation, as per the decision of the Executive Council and which is in
tune with the provisions of the Gauhati University Act, 1947 and the same
was duly informed to the Executive Council and by the said
memorandum, dated 22.06.2021, the petitioner was informed that an
inquiry will be held in respect of those article of charges, as are not
admitted and therefore, he was asked to specifically admit or deny each
article of charges. And in the Inquiry Report of Shri Pallab Bhattacharyya
dated 10.09.2021, it was stated that while having discussed these
aspects with the Charged Officer(CO) i.e. the petitioner, it is inter alia
stated that the CO was specifically asked if he has any objection against
the Inquiry Officer, where he clearly mentioned about his full confidence
upon the Inquiry Officer and the DOS 3 is an eloquent testimony to this
contention” (para No.11 of the Inquiry Report) and as such, the
proceeding of the said inquiry got concluded with the petitioner‟s consent
and no prejudice was caused to the petitioner as alleged.
It is also stated that the Inquiry Report, dated 10.09.2021,
indicates that charges leveled against the petitioner, were found to have
been proved and the said Report was accepted by the Executive Council
of the Gauhati University, in its meeting held on 20.09.2021 and
thereafter, the petitioner was removed from the post of Professor,
Department of Foreign Languages, Gauhati University, with immediate
effect, in view of the resolution of the Executive Council, dated
05.10.2021, in connection with the Inquiry Report dated 10.09.2021. It is
also stated that the petitioner was given ample opportunity to defend
himself in every stage, including that of the proceeding before Dr. Justice
Saikia Commission as well as before the Inquiry Officer, Shri Pallab
WP(C) 5498/2021 Page 11 of 88

Bhattacharyya, maintaining the provisions of relevant laws and the
principle of natural justice in this regard.
It is also stated that the provision, enshrined in the Rule 4 of the
Gauhati University Teachers‟ Conduct Rules, 1984 is precise, accurate and
clear enough as regards the aspect of specific allegation of misconduct,
committed by the writ petitioner and that the penalty imposed upon the
petitioner is not disproportionate and that he has not been selectively
picked by the respondent authorities, making him a scapegoat, as alleged
and that the petitioner admitted that though an appeal lies against the
impugned order dated 06.10.2021, before the Chancellor of Gauhati
University, but he chooses not to prefer the appeal, since filing of any
appeal will not be an efficacious remedy, in purported view of his recent
suspension from the post of Vice-Chancellor of K.K. Handique State Open
University by the order of the Chancellor, though offices of both the
Chancellors are totally different, governed by two distinct Acts of the
State Legislature, and the contention made by the petitioner is erroneous
in view of the factual and legal matrix, and under such circumstances, it
is contended to dismiss the petition.
6. The petitioner has filed reply to the affidavit-in-opposition filed by
the respondent authorities denying the statement and averment made in
the affidavit-in-opposition.
Submission of Learned Counsel for the Petitioner:-
7. Mr. Choudhury, learned Sr. Counsel for the petitioner, referring to
the grounds taken in the petition, submits that the petitioner is basically
aggrieved by the action of the respondent authorities, on the following
grounds:-
WP(C) 5498/2021 Page 12 of 88

(a) The charge-sheet, which was served upon the
petitioner, was not placed before the Executive
Council for its approval and in that view of the
matter, the charge-sheet is non-est in the eye of
law and all subsequent proceeding, initiated
thereafter stands vitiated.
(b) The finding, so recorded by the Inquiry Officer
in respect of the charges being proved against
the petitioner, are perverse and not based on the
legally admissible evidence.
(c) The respondent authorities have adopted pick and
choose policy and picked up the petitioner and
made him scapegoat, though Dr. Justice Saikia
Commission had recommended for taking action
against the Vice-Chancellor, Registrar and other
persons also.
(d) Rule 9(2) of the Assam Services (Discipline and
Appeal) Rules, 1964 has not been followed in case
of the petitioner and the Inquiry Officer was
appointed prior to filing charge sheet against
the petitioner and as such, removal of the
petitioner from the service is without any basis.

7.1 Mr. Choudhury also submits that though the Assam Services
(Discipline and Appeal) Rules, 1964 provides for appeal, yet, the
petitioner chooses not to prefer the appeal on the ground that while he
was serving as Vice-Chancellor of the K.K. Handique State Open
University, he was suspended and removed from the said post by the
Chancellor of the University who is the same Chancellor of Gauhati
University also, and on such count, he found the remedy of appeal not
efficacious and not effective, and the same would have been a futile
exercise as the Chancellor had already formed an opinion.
WP(C) 5498/2021 Page 13 of 88

7.2 Mr. Choudhury further submits that no show-cause notice was
served upon the petitioner before imposing the punishment; however, he
is not willing to pursue this ground. In respect of running unapproved
courses, Mr. Chancellor submits that the UGC has not issued any
direction, and some of the courses were approved by the UGC and some
were not approved, but the same does not mean that there was refusal
or rejection. Mr. Choudhury also pointed out that the petitioner was
appointed as the Director of GUIDOL on 19.08.2006, and he was relieved
on 31.01.2016, and the courses were being run prior to his joining and
after his release in the year 2016. Mr. Choudhury also pointed out that
the petitioner was targeted by the University authority, and that the
petitioner was not the authority to run the unapproved courses and the
same was in the knowledge of the Executive Council, Academic Council
and also the Vice-Chancellor, but no proceeding was initiated against
them.
7.3 He also pointed out that the principle of estoppel cannot override
the law and though during the course of inquiry, he had imposed faith
upon the Inquiry Officer, yet, the Inquiry Report is perverse and as such,
the same would not operate as estoppel.
7.4 Mr. Choudhury has also pointed out that the Inquiry Officer was
appointed prior to filing of the charge-sheet, which contravenes Rules
9(2) and 4 of the Assam Services (Discipline and Appeal) Rules, 1964,
which are pari-materia provision of the Rule 14(3) of the CCS (CCA) Rules
and only after appointment of the Inquiry Officer, the charge-sheet was
filed after 12 days, which indicates that the respondent authorities were
predetermined to remove the petitioner from service.
WP(C) 5498/2021 Page 14 of 88

7.5 To substantiate his submission Mr. Choudhury has also drawn
attention of this court to Annexure II of the reply affidavit of the
petitioner, which is an order dated 23.06.2021, passed by a division
bench of this court in PIL No. 35 of 2021, filed by one Gopal Das in
respect of anomalies committed in Gauhati University during the period of
2010-2017, wherein it has been noted by the division bench that the EC
has resolved – (iv) To appoint one Shri Pallab Bhattacharya,
IPS(Retd.) former Chairman Assam Public Service Commission
to draw the Departmental proceeding against said Professor
Kandarpa Das with the present Registrar as the Presenting
Mr. Choudhury also pointed out that this observation
Officer thereof.
of the court was based upon a document supplied to the court by the
learned standing counsel for the Gauhati University, Mr. P.J. Phukan.
Referring to Annexure III and IV, the daily order sheet of the disciplinary
proceeding, Mr. Choudhury also submits that the petitioner has raised
objection to the Inquiry Officer in respect of appointment of Inquiry
Officer in violation of the principle of natural justice and the same has
been recorded in the said order sheets.
7.6 Mr. Choudhury also pointed out that the written statement filed by
the petitioner was not placed before EC and considered by the EC and
that one of the members of the EC had recorded a dissenting note and
the same is placed on record at Page No.104(D) and in the said
dissenting note also, it is stated that the charge sheet was never placed
before the Executing Council for approval.
7.7 It is also being pointed out by Mr. Choudhury that the Gauhati
University had taken a plea in the letter dated 18.01.2019, that there was
error of judgment in continuing the unapproved courses and that the
WP(C) 5498/2021 Page 15 of 88

error of judgment cannot be a ‘misconduct’ on the part of the
petitioner, and the entire act of removal of the petitioner, smacks mala-
fide and bias and the charge memo is also vague and the entire
proceeding is farce and under such circumstances, Mr. Choudhury has
contended to allow this writ petition by setting aside the order, dated
06.10.2021.
Submission of learned Counsel for the Respondent:-
8. Per contra, Mr. Saikia, learned Advocate General, Assam- cum-Sr.
Counsel, submits that the Inquiry Officer was appointed under Rule 9 of
the Assam Services (Discipline and Appeal) Rules, 1964 and that
Annexure-„D‟ of the petition is an offer letter and Annexure-„E‟ is an
appointment letter, and the offer letter was issued on 28.06.2021, and
the appointment letter was issued on 01.07.2021, and the offer letter is
not an appointment letter and it is incorrect that the appointment of the
Inquiry Officer was made prior to filing of charge-sheet.
8.1. He also submits that the allegation of charge sheet not being
placed before the Executive Council is also incorrect and that the charge-
sheet was placed before the Executive Council on 08.06.2021 and the
same was approved vide Resolution No.4. He also submits that the
running of courses without approval of the UGC is certainly misconduct,
as 78,960 students were granted degrees in 19 unapproved courses,
while the UGC has approved only 6/7 courses and the gullible students
were exploited and the same has been explained in paragraph No.9 of
the additional affidavit at page No.289.
8.2. Referring to another decision of Hon‟ble Supreme Court in the case
of M.M. Malhotra v. Union of India and others , reported in
WP(C) 5498/2021 Page 16 of 88

(2005) 8 SCC 351 , he submits that what constitute misconduct is dealt
with the said case and applying the law laid down in the said case it can
definitely be said that granting degrees to 78,960 students in 19
unapproved courses by the petitioner is a misconduct herein this case
and that the Inquiry Officer had rightly held the petitioner guilty of the
same.
8.3. Referring to the decision of
Prof. Yaspal Singh & Anr. State
of Chhattishgarh and Ors. reported in (2005) 5 SCC 420 , Mr.
Saikia submits that the degree not approved is not a degree in the eye of
law. He further submits that in every stage of the inquiry, against the
petitioner the principle of natural justice has been complied with and
show-cause notice was issued to the petitioner and he has submitted his
reply also.
8.4. Referring to another decision of Hon‟ble Supreme Court in the case
of
Deputy General Manager (Appellate Authority) and others
, reported in , Mr.
vs. Ajai Kumar Srivastava (2021) 2 SCC 612
Saikia submits that in disciplinary proceeding, the scope of judicial review
is very limited and that there is no averment in the petition in respect of
violation of any rule and that there was no procedural lapse and there are
sufficient materials to support the charges. He has also referred to
another decision in the case of
Union of India and others v. P.
, reported in (para 12), in support of
Gunasekaran (2015) 2 SCC 610
his submission and also referred another decision of the Hon‟ble Supreme
Court in the case of
Lucknow Kshetriya Gramin Bank (Now
Allahabad, Uttar Pradesh Gramin Bank) and another v.
Rajendra Singh , reported in (2013) 12 SCC 372 (para nos.13, 14, 15
and 19)
WP(C) 5498/2021 Page 17 of 88

8.5. Further submission of Mr. Saikia is that notice was not issued before
imposing punishment as the same was not required in view of the
decision of Hon‟ble Supreme Court in the case of Competition
Commission of India v. Kerala Film Exhibitors Federation
and others , reported in 2025 SCC OnLine SC 2092 (para 52 and 61)
and no prejudice was shown to have been caused to the petitioner. And
established and in view of the decision of Hon‟ble Supreme Court in the
case of State Bank of Patiala and others v. S.K. Sharma ,
reported in , the same has to be established.
(1996) 3 SCC 364
8.6. Referring to Rule 15 of the Assam Services (Discipline and Appeal)
Rules, 1964 Mr. Saikia submits that said Rule provides for an appeal and
that in view of availability of the alternative remedy by way of an appeal
and without exhausting the same, the petitioner ought not to have
approached this court directly and on such count also the present petition
is not maintainable.
8.7. Mr. Saikia also pointed it out that the petitioner, during the course
of enquiry stated that he has full confidence upon the Inquiry Officer.
And this fact is apparent from the finding of the Inquiry Officer in point
No.10 of the Inquiry Report, Annexure 14 of the petition. And now he
cannot turn around to contend that Inquiry Officer is bias and he is
barred from raising such issue because of the principle of estoppels.
8.8. Under the abovementioned facts and circumstances, Mr. Saikia has
contended to dismiss the petition.
9. In reply, Mr. Choudhury learned counsel for the petitioner, submits
that the petitioner has not chosen to file an appeal under Rule 15, as the
same has to be preferred before the Chancellor, who has suspended and
WP(C) 5498/2021 Page 18 of 88

removed him from the post of Vice Chancellor of K.K. Handique State
Open University(KKHSOU) vide order dated 13.08.2021, and nowhere in
the said order it is reflected that the order was issued pending drawal of
departmental proceeding and Subsequently he was also removed from
that post and on such count, the petitioner has found that the appeal
would not be an efficacious remedy as the Chancellor had already formed
an opinion.
9.1. It is further submitted that the principle of estoppels cannot
override the law. In support of his submission Mr. Choudhury has
referred to decision of Hon‟ble Supreme Court in
Krishna Rai vs.
Banars Hindu University, Through Registrars and Ors.,
reported in 2022 LiveLaw(SC) 553.
10. Having heard the submission of learned counsel for both the
parties, this Court has carefully gone through the petition and the
documents placed on record and also perused the decisions relied upon
by learned counsel for both the parties and also the report submitted by
Dr. Justice Aftab Hussain Saikia Commission, and the report of the
Inquiry Officer.
Issues, to be addressed by this court:-
11. In view of the pleadings of the parties and the submissions so
advanced the issues to be addressed by this court is formulated as
under:-
(i) Whether the Inquiry Officer was appointed
prior to filing of charge sheet, in
contravention of the provision of Rules 9(1)
(2) and (4) of the Assam Services (Discipline
and Appeal) Rules, 1964.
WP(C) 5498/2021 Page 19 of 88

(ii) Whether the charge-sheet served upon the
petitioner, was non-est in the eye of law for
not being placed before the disciplinary
authority and also on account of non approval
of the same by the Disciplinary Authority?
(iii) Whether the findings, so recorded by the
Inquiry Officer in respect of the charges
being proved against the petitioner, are
perverse on account of the same being not
based upon legally admissible evidence.
(iv) Whether the petitioner was made scapegoat, by
adopting pick and choose policy even though
there was recommendation of Dr. Justice
Saikia Commission for taking action against
the Vice-Chancellor and other persons also.

(v) Whether in view availability of alternate
remedy, i.e. appeal under the Rule 15 of the
Assam Services( Discipline and Appeals) Rules
1964, stands in the way of the petitioner in
availing the extra-ordinary remedy?
(vi) Whether the petitioner has succeeded in
demonstrating a case for interference of this
court in exercising the power of judicial
review, while the scope of judicial review in
service matters is very limited?
(vii) Whether running of the unapproved courses in
GUIDOL amounts to misconduct or not?
Discussion and analysis:-
12. Before a discussion is directed to the issues, formulated herein
above, this court deems it appropriate to extract the chronology of
events, which are discernible from the pleadings of the parties and to
WP(C) 5498/2021 Page 20 of 88

which Mr. M.K. Choudhury, the learned counsel for the petitioner has
drawn the attention of this court, herein below:-
19.08.2006: The petitioner, who was holding the post of
Reader, joined as Director at Post Graduate
Correspondence School.

Year 2008: The Post Graduate Correspondence School was
renamed as Institute of Distance and Open
Learning, Gauhati University (GUIDOL).

18.11.2011: On completion of term, Petitioner was
repatriated to his earlier position as
Professor, Deptt. of Foreign Languages, but
was given additional charge of Director
GUIDOL.

Year 2013: The petitioner was again appointed as
Director, GUIDOL.

31.01.2016: The petitioner was released from the post
of Director, GUIDOL and thereafter, the
petitioner continued his service as
Professor in Department of Foreign
Languages.

Year 2019: The Comptroller and Auditor General of India
submitted a report on Social, General and
Economic (Non-PSus) Sectors for the year
ended on 31.03.2018 before the State
Assembly. Thereafter, the said report was
forwarded to the Gauhati University by the
State Government.

18.01.2019: Reply of the University to the State
Government regarding CAG observation
concerning unapproved courses.
WP(C) 5498/2021 Page 21 of 88

04.12.2019: On receipt of the CAG report, the Executive
Council of the Gauhati University decided
to constitute an Inquiry Commission headed
by Dr. Justice Aftab Hussain Saikia to
inquire into the anomalies indicated in the
report of Comptroller and Auditor General
of India.

06.12.2019: The Term of Reference to the Inquiry
Commission was notified by Gauhati
University.

06.03.2020: The petitioner was appointed as Vice
Chancellor of K.K Handique State Open
University.

28.09.2020: The Commission submitted its report before
the Gauhati University containing various
recommendations.

31.03.2021: Report submitted by the Committee
constituted by the Executive Council, on
recommendation of the Saikia Commission.

08.06.2021: The Executive Council decided to appoint
Pallab Bhattacharyya as Inquiry Officer and
the Registrar of Gauhati University as
Presenting Officer.

17.06.2021: The Inquiry Officer had accepted the offer
of the University Authority.

22.06.2021: The Executive Council of Gauhati University
served a Charge-sheet upon the petitioner
under Rule 11 of the Gauhati University
Teachers' Conduct Rules, 1984 read with
WP(C) 5498/2021 Page 22 of 88

Rule 7 and 9 of the Assam Services
(Discipline and Appeal) Rules, 1964. The
charge memo was not approved by the
Disciplinary Authority.

23.06.2021: Order on PIL 35/2021, was passed and the
same was closed.

28.06.2021:The petitioner submitted his written
statement of defense before the
Disciplinary Authority.

13.08.2021: The petitioner was placed under suspension
from the post of Vice Chancellor, K.K.
Handique State Open University.

10.09.2021: The Inquiry Officer submitted its report to
the GU authorities.

20.09.2021: The report of the Inquiry Officer was
accepted by the Executive Council.

21.09.2021: The petitioner was directed to submit his
comment on the Inquiry Report.

30.09.2021: The petitioner sought for time to submit
his written reply to the inquiry report.

01.10.2021: Prayer of the petitioner was rejected by
the GU authorities.

02.10.2021: The petitioner submitted his reply to the
GU authorities.
06.10.2021: The impugned order of removal was issued to
the petitioner.

WP(C) 5498/2021 Page 23 of 88

13. It is not disputed that the Disciplinary Proceeding against the
present petitioner was drawn up on the basis of the recommendation
made by Dr. Justice Saikia Commission. Said Commission was appointed
by the respondent authorities in Gauhati University, in view of the report
of the CAG of the year 2018, which was placed before the State
Assembly, Assam and was forwarded to the Gauhati University by the
State Government and thereafter, the Executive Council of the Gauhati
University has decided to constitute an Inquiry Commission headed by Dr.
Justice Aftab Hussain Saikia to inquire into anomalies mentioned in the
report of the CAG, on 04.12.2019. Further, it appears that the Inquiry
Commission has framed altogether 12 issues in terms of reference. It is
also to be noted here that the term of reference was to inquire into
alleged irregularities as regard continuation of 21 number of unapproved
courses in GUIDOL, during the period 2010-2017, as reflected in the CAG
report and recommendation of appropriate measures as deem fit.
14. The 12(twelve) issues, that were framed by the Dr. Justice Saikia
Commission, has already been indicated in the foregoing para, and after
conducting the inquiry, the Inquiry Commission has made as many as 8
recommendations. In order to deal with the issues in present petition, a
reference to the said recommendations are found to be necessary and
therefore the same are extracted herein below:-

I. GU authorities may approach the State Government
for initiating appropriate action against the
then VC of GU serving during the period 2010-17,
being found responsible in terms of the issue
wise findings recorded in the report.
II. GU authorities may initiate appropriate action
itself and/or approach the State Government for
WP(C) 5498/2021 Page 24 of 88

initiating appropriate action against the then
Director(s) of GUIDOL serving during the period
2010-17, being responsible in terms of the issue
wise findings recorded in the report.
III. GU authorities may initiate appropriate action
itself and/or approach the appropriate
authorities for initiating appropriate actions
against the then Registrars serving during the
period 2010-17, being responsible in terms of the
issue wise findings recorded in the report.
IV. GU authorities may approach the State Government
for directing investigation to be conducted by
independent investigating agencies with
professional expertise to enquire and ascertain
as to whether there were any fictitious payments,
misappropriation of funds of GUIDOL etc. by any
person(s) during the period 2010-17 as reflected
in the CAG report.
V. GU authorities may initiate the process of a
detailed investigation itself, if so desired, to
find out the actual loss caused by the then
Director(s) of GUIDOL, during the period 2010-17
pertaining to excess payment of printing
materials, payments made as honorarium and for
purchase of study materials as indicated in the
CAG report.
VI. GU authorities may approach the Central
Government for a policy decision to accept the
Degree/Diploma/Certificate granted by GUIDOL in
respect of the unapproved courses during the
period 2010-17, keeping in view the requirement
of approval/recognition of DEC/UGC for the
courses offered by GUIDOL through ODL mode is for
Government employment.
WP(C) 5498/2021 Page 25 of 88

VII. GU authorities may approach the State Government
for a policy decision to accept the
Degree/Diploma/Certificate granted by GUIDOL in
respect of the unapproved courses during the
period 2010-17, keeping in view the requirement
of approval/recognition of DEC/UGC for the
courses offered by GUIDOL through ODL mode is for
Government employment.
VIII. GU authorities may approach UGC to grant
approval/recognition of all those unapproved
courses run by GUIDOL during the period 2010-17
with retrospective effect keeping in view the
career of those students who obtained
Degree/Diploma/Certificate on completion of their
study in the courses not being
approved/recognized by DEC/UGC during the period
2010-17 as required, keeping in mind the accepted
maxim ‘quod fiere non debet, factum valet’ (fact
cannot be altered though it should not have been
done).
15. Further, it appears that upon the aforementioned recommendations
of Dr. Justice Saikia Commission, the respondent authorities have picked
up the present petitioner only and initiated disciplinary proceeding
against him, though there was recommendation to initiate appropriate
action against the Vice Chancellor, Directors, Registrars of the Gauhati
University who were serving during the period of 2010-2017. Further, it
appears that the disciplinary proceeding was initiated against the present
petitioner only by appointing Pallab Bhattacharyya, Retd. IPS, as the
Inquiry Officer and charge-sheet was submitted against the petitioner
and the petitioner has submitted its reply.
WP(C) 5498/2021 Page 26 of 88

15.1. It appears that the respondent authorities had filed charge sheet
against the petitioner, with as many as 7 Articles of Charges, which are
extracted herein below:-
Article-1. That the said Dr. Kanderpa Das while
functioning as Director GUIDOL (Tenure 2006
31.1.2014) he voted and run 21 unapproved
courses and which continued during the period
2016-17 as observed in CAG Report which
constitutes violation of Rule 4 of Gauhati
University Teachers Conduct Rules, 1984
Article 2. That Shri Dr. Kandarpa Das, while functioning
as Director GUIDOL (Tenure: 2006 in 11.1.2016
during 2010-2017, continued the above
unapproved courses in spite of his having
knowledge of the mandatory requirement of
approval of the courses by the DEC/UOC. This
constitutes violation of Rule 4 of Gauhati
University Teachers' Conduct Rules, 1984
Article 3. Though the approval from DEC/UGC was necessary
to run courses in GUIDOL appropriate step(s)
was/were not taken by Dr. Kandarpa Das when
he was the then Director of GUIDOL (Tenure:
2006 to 31.1.2016) for 2010-2017. This
constitutes violation of Rule 4 of Gauhati
University Teachers Conduct Rules, 1984
Article 4. As many as 73,912 students were enrolled and
passed out on completion of alleged
unapproved courses during the period 2010-11
to 2016-17, making them ineligible for
Central Government services, thereby
threatening their future employability.
Inspite of being well aware of this
deficiency. Dr. Kandarpa Das who was Director
IDOL (Tenure: 2006 to 31.1.2016) during this
WP(C) 5498/2021 Page 27 of 88

period allowed the courses to run. This
constitutes violation of Rule 4 of Gauhati
University Teachers Conduct Rules, 1984
Article 5. DEC/UGC were unaware of running such alleged
21 unapproved courses by GUIDOL during those
long periods of 7 years, i. e, 2010-2017. Dr.
Kandarpa Das as head of IDOL (Tenure: 2006 to
31.1.2016) during this period failed to
intimate DEC/UGC appropriately which
constitutes violation of Rule 4 of Gauhati
University Teachers' Conduct Rules, 1984
Article 6. Though well laid down procedures were
prescribed or in existence for getting
approval of courses offered by GUIDOL from
DEC/UGC, the same was not followed properly
by Dr. Kandarpa Das and his decision of
continuing the unapproved courses is not
justified. This constitutes violation of Rule
4 of Gauhati University Teachers' Conduct
Rules, 1984
Article 7. The irregularities committed by GUIDOL
Authority under Dr. Kandarpa Das by running
the unapproved courses resulted in avoidable
expenditure. This constitutes violation of
Rule 4 of Gauhati University Teachers'
Conduct Rules, 1984.
15.2. Thereafter, the inquiry was conducted and the Inquiry Officer had
submitted his report by holding that all the articles of charges stand
proved against the petitioner. Thereafter, the disciplinary authority, i.e.
the Executive Council, had removed the petitioner from service by the
impugned order, dated 06.10.2021.
WP(C) 5498/2021 Page 28 of 88

16. Now, in the following para, an endeavor will be made to discuss the
issues formulated herein above.
Issue No.I.
17. This issue relates to appointment of Inquiry Officer by the
disciplinary authority prior to filing of the charge-sheet.
17.1. It is the categorical contention of Mr. Choudhury, learned Sr.
counsel for the petitioner that the charge-sheet against the petitioner was
submitted on 22.06.2021, but prior to the submission of the charge-
rd
sheet, on 08.06.2021, in the 3 meeting of the Executive Council, vide
Resolution No. R/EC-03/2021/14, the Executive Council, who is the
disciplinary authority, had resolved to initiate departmental proceeding
against the petitioner and thereafter, and also resolved to appoint Shri
Pallab Bhattacharyee, Retd. IPS, Former Chairman, APSC as an Inquiry
Officer and the Registrar as Presenting Officer and this shows that the
settled principle of natural justice, granting fair opportunity of being
heard to the petitioner, was denied.
17.2. There appears to be substance in the submission of Mr.
Choudhury, learned Sr. Counsel for the petitioner, as it appears that
charge-sheet was furnished to the petitioner on 22.06.2021 while the
Executive Council had decided to appoint Shri Pallab Bhattacharyya as
Inquiry Officer in its resolution dated 08.06.2021. It also appears from
the record that on 10.06.2021, the relevant documents were issued to
Pallab Bhattacharyya to act as Inquiry Officer and requested him to
conclude the proceeding within one month and Shri Pallab Bhattacharyya
had accepted the offer on 17.06.2021. It also appears that in connection
with a PIL No.35/2021, filed by one Gunajit Das regarding anomalies
WP(C) 5498/2021 Page 29 of 88

committed in Gauhati University during 2010-2017, the learned counsel
for the respondent University, Mr. P.J. Phukan had produced some
documents before division bench of this court on 23.06.2021, apprising
the court about the appointment of Inquiry Officer and also initiation of
the departmental proceeding. It also appears that the Registrar, Gauhati
University had issued public notice regarding the issue on 24.06.2021.
Thereafter, the petitioner was served with the charge sheet on
22.06.2021, and the petitioner had replied to the charge sheet, denying
the charges, on 28.06.2021. Further, it appears that though the formal
letter of appointment was issued to the Inquiry Officer on 01.07.2021,
yet, according to Mr. Choudhury, the same is a mere formality and that
the petitioner had raised objection regarding the manner of appointment
of the Inquiry Officer and this fact is apparent from the Annexure III of
the reply affidavit filed by the petitioner, and that the disciplinary
authority had acted in most arbitrary and predetermined manner by
appointing the Inquiry Officer much prior to the issuance of charge-sheet
and submission of reply by the petitioner.
17.3. Notably, the petitioner, in his affidavit-in-reply, dated 11.01.2022,
has brought on record the concerned resolution, dated 08.06.2021,
concerning Agenda Item No. 2, i.e. (Matter regarding Report of
the Committee constituted to examine and recommend on the
submission made by the Directors of GUIDOL (2010-17)
constituted vide E.C. Resolution No. R/EC- 02/2021/12(i)
dated 26.02.2021 and regarding the letter from the Govt. of
Assam on the matter. (The copy of the Report was circulated
as Annexure-I which is extracted herein below:-
among the members),
Resolution No. R/EC-03/2021/13;
WP(C) 5498/2021 Page 30 of 88

‚Resolved that Disciplinary Proceedings be
initiated against Professor Kandarpa Das,
Professor. Dept. of Foreign Languages (On Lien),
Former Director of GUIDOL after legal consultation.
Also resolved that Sri Pallab Bhattacharyya, IPS
(Retd.), former Chairman, Assam Public Service
Commission (APSC) be requested to take up the
responsibility to act as the Inquiry Officer to
start the Disciplinary Proceedings. The Registrar,
Gauhati University will be the Presenting Officer
for the purpose……….‛

17.4. Further, from the order dated 23.06.2021, Annexure II of the
reply affidavit of the petitioner it appears that a Division Bench of this
court, in PIL No. 35 of 2021, while closing the PIL filed by one Gopal Das,
in respect of the anomalies committed in Gauhati University during the
year 2010-2017, it has been observed that the EC has resolved – (iv)
To appoint one Shri Pallab Bhattacharya, IPS(Retd.) former
Chairman Assam Public Service Commission to draw the
Departmental proceeding against said Professor Kandarpa Das
with the present Registrar as the Presenting Officer
Notably, this observation was made by the Division Bench
thereof.
based upon a document supplied to the court by the learned standing
counsel for the Gauhati University on 23.06.2021. Thus, the contention of
Mr. Choudhury, learned counsel for the petitioner also stands fortified
from the order dated 23.06.2021, of a division bench of this court in PIL
No. 35 of 2021.
17.5. It is also to be noted here that the manner of conducting an
inquiry is provided in Rule 9 of the Assam Services (Discipline and
Appeal) Rules, 1964. Relevant Rules are extracted herein below:-
WP(C) 5498/2021 Page 31 of 88

Rule 9(1):- Without prejudice to the provision of the
Public Servant (Inquiry) Act, 1850, no
order imposing on a Government servant any
of the penalties specified in Rule 7 shall
be passed except after an inquiry, held as
far as may be in the manner hereinafter
provided.

Rule 9(2):-The disciplinary authority shall frame
definite charges on the basis of the
allegations on which the inquiry is
proposed to be held. Such charges together
with a statement of allegation on which
they are based, shall be communicated in
writing to the Government servant, and he
shall be required to submit, within such
time as may be specified by the
disciplinary authority, a written statement
of his defense and also to state whether he
desires to be heard in person.

Rule 9(4):-On receipt of the written statement of
defense, or if no such statement is
received within the time specified, the
disciplinary authority may itself inquire
into such charge as are not admitted or, if
it considers it necessary so to do, appoint
for the purpose a Board of Inquiry or an
Inquiring Officer.

17.6. In this context observation made by Hon‟ble Supreme Court in
the case of South Bengal State Transport Corpn. vs. Ashok
Kumar Ghosh and others, reported in (2010) 11 SCC 71, is found
to be relevant, wherein it has been held as under:-
WP(C) 5498/2021 Page 32 of 88

‚13. In our opinion, it may be open for a
disciplinary authority to initiate the
departmental proceedings on consideration of the
reply of an employee, but as an absolute
proposition of law, it cannot be said that before
initiating the departmental enquiry or appointing
an enquiry officer, reply of the delinquent
employee is required to be obtained and considered
unless it is the requirement of the rules. There
may be cases where the charges are of such a
nature that the disciplinary authority may not
require any reply from the delinquent employee but
straightaway initiate the departmental enquiry and
appoint an enquiry officer.‛

17.7. In the instant case, there is such requirement in view of Rule 9
of the Assam Services (Discipline and Appeal) Rules, 1964 more
particularly Rule 9(4). Thus, there appears to be considerable force in the
submission of Mr. Choudhury, the learned counsel for the petitioner.
Indisputably, the charge-sheet was furnished to the petitioner on
22.06.2021. But, the Executive Council, the disciplinary authority herein,
had decided to appoint Shri Pallab Bhattacharyya as Inquiry Officer and
the Registrar as Presenting Officer, in its resolution dated 08.06.2021.
The relevant documents were issued to Shri Pallab Bhattacharyya to act
as Inquiry Officer on 10.06.2021, with a request to conclude the
proceeding within one month. And Shri Pallab Bhattacharyya had
accepted the offer on 17.06.2021.
17.8. Thus, it becomes apparent from the aforesaid discussion that Shri
Pallab Bhattacharyya appears to be appointed as the Inquiry Officer and
the Registrar of Gauhati University as Presenting Officer, prior to issuance
of charge sheet to the petitioner, though formal letter was issued later
WP(C) 5498/2021 Page 33 of 88

on. And as such the procedure so adopted by the disciplinary authority,
in case of the petitioner, appears to be contrary to what is provided by
Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964,
specially Rule 9(4) which provides that on receipt of the written
statement of defence, or if no such statement is received within the time
specified, the disciplinary authority may itself inquire into such charges as
are not admitted or, if it considers it necessary so to do, appoint for the
purpose a Board of Inquiry or an Inquiring Officer. Thereby, the
disciplinary authority has put the cart before the horse. Now, it is to be
seen what would be the consequence of such action of the disciplinary
authority.
17.9. This issue came before a Division Bench of Rajasthan High Court
for consideration in the case of Seema Jain v. The Rajasthan High
Court, through its Registrar General , reported in 2023 0
Supreme(Raj) 558. While dealing with the issue, Rajasthan High Court
has held that the Disciplinary Authority at the time of issuing charge
sheet cannot appoint Enquiry Officer simultaneously. It can make up its
mind of appointing Enquiry Officer only in the event of charges not being
admitted.
17.10. Relevant para in the said case is extracted herein below:-
‚59. This Court finds that a bare perusal of Rule
16(4) provides that the written statement/reply of
a delinquent officer, is sought by the disciplinary
authority and after receipt of such reply/written
statement, the disciplinary authority has to
proceed either by conducting the enquiry himself or
to entrust it to some other Authority.
The Disciplinary Authority finds that if
charge has been admitted, then there is no need to
WP(C) 5498/2021 Page 34 of 88

appoint any other Authority and he himself can
record finding on each charge.
60. The very purpose of providing an opportunity to
a delinquent after receipt of charge-sheet,
necessarily gives him a right to defend himself
i.e. either to deny the charge or to admit the
charge. The Disciplinary Authority can make up its
mind of appointing Enquiry Officer only in the
eventuality of charges not being admitted and as a
necessarily corollary, the Disciplinary Authority
at the time of issuing charge-sheet, cannot appoint
the Enquiry Officer simultaneously, otherwise there
would be no purpose of seeking written
statement/reply of the delinquent and it would
reflect the predetermination of the Disciplinary
Authority to conduct the disciplinary proceedings.
61. The principles of natural justice also require
that the delinquent has to be given a fair
opportunity to defend himself and if charges are
not admitted and regular departmental enquiry is
conducted, then on the basis of findings recording
against the Delinquent Officer, the Disciplinary
Authority has ample power to punish a guilty
officer.
62. The facts of the case at hand show that at the
time of issuing charge-sheet to the petitioner, the
decision was also taken to appoint an Enquiry
Officer i.e. the Registrar (Vigilance) at the
relevant time and later on, the Enquiry Judge and
as such, the procedure adopted by the respondent-
High Court, cannot be considered valid according to
the Rule of law.‛
17.11. As already discussed and held, in the instant case, the applicable
Rule is the Assam Services Disciplinary and Appeals Rules 1964, and Rule
9(4) of the said Rules provides that only on receipt of written statement
of defence, the Disciplinary Authority may inquire itself or appoint an
Inquiry Officer.
WP(C) 5498/2021 Page 35 of 88

17.12. But, it appears from the record as well as from the submissions
of Mr. Choudhury, the learned counsel for the petitioner, that the Inquiry
Officer was appointed before serving the charge-sheet upon the
petitioner and without considering the reply submitted by the petitioner,
which seems to be in violation of the provision of Rule 9(4) of the Assam
Services (Disciplinary and Appeals) Rules, 1964. This fact is also apparent
from the dissenting note given by Professor H.K. Sharma, one of the
members of the Executive Council, dated 22.09.2021, which was
enclosed with the reply affidavit filed by the petitioner, at page
No.242,(Annexure-V). Relevant paragraph of the letter dated 22.09.2021,
(Annexure-V) is extracted herein below:-
‚9. We are investigating a 'procedural lapse' as
confirmed by the EC committee and I feel, in the
process, we ourselves should not create other
procedural lapses during the course of taking our
final decision.

As far my knowledge about the Disciplinary
Procedure of the Assam Govt. the charge sheet
should be framed and approved by the Disciplinary
Authority (In this case the EC of GU) and served
upon the Charged officer (in this case Prof.
Kandarpa Das). After getting reply from the Charged
officer within a specified time, the disciplinary
authority itself can investigate the same on the
basis of Charge sheet and the reply or can employ
some Inquiry officer and Presenting officer to the
same on the behalf of the Disciplinary Authority.
In the present case the Inquiry Officer was
employed on 10/6/2021 following the decision of the
EC on 8/6/2021 i.e. much before the charges were
framed and served on the Charged officer on
22/6/2021. Myself as EC member, I have not seen
WP(C) 5498/2021 Page 36 of 88

that either the charges were framed by the EC or
even it was approved by the EC.

The above 'procedural lapse' is a serious one and I
feel, it is a violation of "Principle of Natural
Justice and Rule 9 of Assam Services (Disciplinary
and Appeal) rules, 1964 under which the inquiry is
held.

17.13. Thus, from the aforesaid discussion, it becomes apparent that
the respondent authorities had not adhered to the procedure prescribed
under the law. And as such, the submission of Mr. Choudhury, learned
counsel for the petitioner that the principle of natural justice, as held in
the case of Seema Jain(supra) has been violated, has sufficient force.

17.14. It is also to be noted here that the requirement of following the
procedure prescribed by law has been emphasized by Hon‟ble Supreme
Court in the case of
D.K. Yadav v. J.M.A. Industries Ltd.,
reported in (1993) 3 SCC 259, wherein it has been held as under:-
‚11. The law must therefore be now taken to be well-
settled that procedure prescribed for depriving a
person of livelihood must meet the challenge of
Article 14 and such law would be liable to be
tested on the anvil of Article 14 and the procedure
prescribed by a statute or statutory rule or rules
or orders affecting the civil rights or result in
civil consequences would have to answer the
requirement of Article 14. So it must be right,
just and fair and not arbitrary, fanciful or
oppressive. There can be no distinction between a
quasi-judicial function and an administrative
function for the purpose of principles of natural
justice. The aim of both administrative inquiry as
well as the quasi-judicial inquiry is to arrive at
a just decision and if a rule of natural justice is
WP(C) 5498/2021 Page 37 of 88

calculated to secure justice or to put it
negatively, to prevent miscarriage of justice, it
is difficult to see why it should be applicable
only to quasi-judicial inquiry and not to
administrative inquiry. It must logically apply to
both.

12. Therefore, fair play in action requires that the
procedure adopted must be just, fair and
reasonable. The manner of exercise of the power and
its impact on the rights of the person affected
would be in conformity with the principles of
natural justice. Article 21 clubs life with
liberty, dignity of person with means of livelihood
without which the glorious content of dignity of
person would be reduced to animal existence. When
it is interpreted that the colour and content of
procedure established by law must be in conformity
with the minimum fairness and processual justice,
it would relieve legislative callousness despising
opportunity of being heard and fair opportunities
of defence. Article 14 has a pervasive processual
potency and versatile quality, equalitarian in its
soul and allergic to discriminatory dictates.
Equality is the antithesis of arbitrariness. It is,
thereby, conclusively held by this Court that the
principles of natural justice are part of Article
14 and the procedure prescribed by law must be
just, fair and reasonable.

13. In Delhi Transport Corpn. v. D.T.C. Mazdoor
Congress [1991 Supp (1) SCC 600 : 1991 SCC (L&S)
1213]this Court held that right to public
employment and its concomitant right to livelihood
received protective umbrella under the canopy of
Articles 14 and 21 etc. All matters relating to
employment include the right to continue in service
till the employee reaches superannuation or until
his service is duly terminated in accordance with
just, fair and reasonable procedure prescribed
under the provisions of the Constitution and the
rules made under proviso to Article 309 of the
Constitution or the statutory provisions or the
WP(C) 5498/2021 Page 38 of 88

rules, regulations or instructions having statutory
flavour. They must be conformable to the rights
guaranteed in Parts III and IV of the Constitution.
Article 21 guarantees right to life which includes
right to livelihood, the deprivation thereof must
be in accordance with just and fair procedure
prescribed by law conformable to Articles 14 and 21
so as to be just, fair and reasonable and not
fanciful, oppressive or at vagary. The principles
of natural justice are an integral part of the
guarantee of equality assured by Article 14. Any
law made or action taken by an employer must be
fair, just and reasonable. The power to terminate
the service of an employee/workman in accordance
with just, fair and reasonable procedure is an
essential inbuilt of natural justice. Article 14
strikes at arbitrary action. It is not the form of
the action but the substance of the order that is
to be looked into. It is open to the Court to lift
the veil and gauge the effect of the impugned
action to find whether it is the foundation to
impose punishment or is only a motive. Fair play is
to secure justice, procedural as well as
substantive. The substance of the order is the soul
and the effect thereof is the end result.

14. It is thus well-settled law that right to life
enshrined under Article 21 of the Constitution
would include right to livelihood. The order of
termination of the service of an employee/workman
visits with civil consequences of jeopardising not
only his/her livelihood but also career and
livelihood of dependents. Therefore, before taking
any action putting an end to the tenure of an
employee/workman fair play requires that a
reasonable opportunity to put forth his case is
given and domestic inquiry conducted complying with
the principles of natural justice.
In D.T.C. v. D.T.C. Mazdoor Congress [1991 Supp (1)
SCC 600 : 1991 SCC (L&S) 1213] the Constitution
Bench, per majority, held that termination of the
service of a workman giving one month's notice or
pay in lieu thereof without inquiry offended
WP(C) 5498/2021 Page 39 of 88

Article 14. The order terminating the service of
the employees was set aside.

17.15. Again in the case of
A.K. Kraipak v. Union of India,
reported in Hon‟ble Supreme Court has held as
(1969) 2 SCC 262,
under:-
‚20. The aim of the rules of natural justice is to
secure justice or to put it negatively to prevent
miscarriage of justice. These rules can operate
only in areas not covered by any law validly made.
In other words they do not supplant the law of the
land but supplement it. The concept of natural
justice has undergone a great deal of change in
recent years. In the past it was thought that it
included just two rules namely:

(1) no one shall be a judge in his own case ( Nemo
debet esse judex propria causa ) and

( 2 ) no decision shall be given against a party
without affording him a reasonable hearing
( audi alteram partem ).

Very soon thereafter a third rule was
envisaged and that is:- ‚that quasi-judicial
enquiries must be held in good faith, without bias
and not arbitrarily or unreasonably.

But, in the course of years many more
subsidiary rules came to be added to the rules of
natural justice. Till very recently it was the
opinion of the courts that unless the authority
concerned was required by the law under which it
functioned to act judicially there was no room for
the application of the rules of natural justice.
The validity of that limitation is now questioned.
If the purpose of the rules of natural justice is
to prevent miscarriage of justice one fails to see
why those rules should be made inapplicable to
administrative enquiries. Often times it is not
WP(C) 5498/2021 Page 40 of 88

easy to draw the line that demarcates
administrative enquiries from quasi-judicial
enquiries. Enquiries which were considered
administrative at one time are now being considered
as quasi-judicial in character. Arriving at a just
decision is the aim of both quasi-judicial
enquiries as well as administrative enquiries. An
unjust decision in an administrative enquiry may
have more far reaching effect than a decision in a
quasi-judicial enquiry. As observed by this Court
in Suresh Koshy George v. University of
Kerala [1968 SCC OnLine SC 9] the rules of natural
justice are not embodied rules. What particular
rule of natural justice should apply to a given
case must depend to a great extent on the facts and
circumstances of that case, the framework of the
law under which the enquiry is held and the
constitution of the Tribunal or body of persons
appointed for that purpose. Whenever a complaint is
made before a court that some principle of natural
justice had been contravened the court has to
decide whether the observance of that rule was
necessary for a just decision on the facts of that
case.‛
17.16. Further, in the case of
Hukam Chand ShyamLal vs. Union of
, reported in , the Constitution
India and Others AIR 1976 SC 789
Bench of Hon‟ble Supreme Court has held that it is well settled that
where a power is required to be exercised by a certain authority in a
certain way, it should be exercised in that manner or not at all and all
other modes of performance are necessarily forbidden and where the
power is of a drastic nature and is exercised in a mode other than the
one provided, will be violative of the fundamental right and natural
justice.
17.17. Thus, in the given factual backdrop and having perused the
documents so placed on record and having tested the impugned order,
WP(C) 5498/2021 Page 41 of 88

on the anvil of Article 14 and the procedure prescribed under Rule 9(2)
and Rule 9(4) of the Assam Services (Discipline and Appeal) Rules 1964,
that affecting the civil rights or result in civil consequences, this Court is
unable to derive satisfaction that the disciplinary authority had followed
the procedure prescribed in Rule 9 (2) and (4) of the Assam Services
(Discipline and Appeal) Rules 1964, in its letter and spirit.
17.18. Though Mr. Saikia, learned Advocate General submits that the
principles of natural justice were followed in every stage of the
proceeding, yet, the said submission left this Court unimpressed, in view
of the aforementioned discussion and finding. Violation of Rule 9(4) of
the Assam Services (Discipline and Appeal) Rules 1964, is apparent on
the face of the record and as such, the principles of natural justice is
violated herein. In the instant case violation of Rule 9(4) is apparent on
the face of the record and as such principle of natural justice stands
violated. As held in the case of before taking any
D.K. Yadav(supra)
action putting an end to the tenure of an employee, fair play requires
that a reasonable opportunity to put forth his case is given and domestic
inquiry is conducted complying with the principles of natural justice. In
the instant case the same has not been complied with.
17.19. In view of the aforesaid discussion and finding the Issue No. I
has to be answered in affirmative and accordingly the same stands
answered by holding that the Inquiry Officer was appointed prior to filing
of charge sheet, in contravention of the provision of Rule 9(1) (2) and (4)
of the Assam Services (Discipline and Appeal) 1964.
Issue No. II.
WP(C) 5498/2021 Page 42 of 88

18. Issue No. II relates to filing of charge sheet dated 22.06.2021,
without there being any approval of the disciplinary authority.
18.1. It is to be noted here that Rule 9(2) of the Assam Services
(Discipline and Appeal) Rules, 1964 provides that the disciplinary
authority shall frame definite charges on the basis of the allegations on
which the inquiry is proposed to be held and such charges, together with
a statement of the allegations on which they are based, shall be
communicated in writing to the Government servant and he shall be
required to submit within such time as may be specified by the
Disciplinary Authority, a written statement of his defence and also to
state whether he desires to be heard in person. It is not in dispute that
the Disciplinary Authority in the case of the petitioner, is the Executive
Council of Gauhati University and the same has been provided under
Section 13(f) and Section 8-B(6) of the Gauhati University Act, 1947 and
also in Rule 12 of the Gauhati University Teachers‟ Conduct Rules, 1984.
18.2 Indisputably, the charge-sheet, in the case of the petitioner, was
rd
filed on 22.06.2021. And from the resolution of the 3 meeting of the
th
Executive Council, dated 08.06.2021, and 4 meeting dated 12.07.2021,
clearly indicates that the charge sheet dated 22.06.2021 was neither
placed nor approved by the Disciplinary Authority. Notably, the petitioner
herein has made a specific averment in para No. 34 of the petition. But,
the affidavit-in-opposition filed by the respondent authorities are silent in
this regard, not to speak of specifically denying the said averment in the
paragraph No.8 of the affidavit in opposition.
18.3. Since the averment made in the para No.34 of the petition is not
specifically traversed, the same is deemed to have been admitted.
Reliance on the judgment to apply the doctrine of non-traverse is made
WP(C) 5498/2021 Page 43 of 88

to the case of (1) Collector and Controller of Court of Ward,
Kolhapur & Anr. V. G.N. Gharpade and others, reported in AIR
1973 SC 627 , and also on a decision passed by ( 2) Gobinda Chandra
Das v. State of West Bengal, reported in 1989 (2) CAL LT (HC)
63, and a co-ordinate bench of this court in Anil Ch. Rabha vs.
State of Assam, represented by the Commissioner and
reported in
Secretary to the Govt. of Assam & Ors., 2022 SCC
OnLineGau 198.
18.4. Though a contention is being made by the respondent authorities,
that the Executive Council was informed about the charge sheet and Mr.
Saikia, the learned Advocate General, Assam also submits that the charge
sheet was placed before the Executive Council of the University on
08.06.2021, and the same was approved vide resolution No. 4, yet, such
submission left this court unimpressed in view of the discussion made
herein above. Similarly, the contention of the respondent authorities that
the same was intimated to the Executive Council also left this Court
unimpressed.
18.5. Further, the factum of non approval of the charge sheet by the
Executive Council also finds support from the Dissenting Note; dated
22.09.2021, submitted by Prof. H.K. Sarmah, one of the members of the
Executive Council. The relevant pargraph of his dissenting note has
already been quoted in paragraph No.17.12, herein above. In the said
dissenting note, dated 22.09.2021, Mr. Sharma had categorically stated
that himself as EC member, he had neither seen the charges being
framed by the EC nor approved by it.
18.6. It is to be noted here that the aforementioned contention made by
the petitioner in his affidavit-in-reply has not been controverted by the
WP(C) 5498/2021 Page 44 of 88

respondent authorities. Thus, the dissenting note and also the facts and
circumstances on the record go a long way to show that the charge
memo dated 22.06.2021, was never placed before the Executive Council
for its approval.
18.7. Further, the reply of the petitioner dated 28.06.2021, also appears
to be not placed before the Executive Council for its approval. Mr.
Choudhury, the learned counsel for the petitioner has rightly pointed this
out at the time of hearing. And to supplement weight to his argument he
has relied upon following decisions:-
(i) Union of India and others v. B.V. Gopinath,
reported in (2014) 1 SCC 351;

(ii) State of Tamil Nadu, represented by
Secretary to Government (Home) v. Promod
Kumar, IPS and another, reported in (2018)
17 SCC 677;

(iii) Sunny Abraham v. Union of India and
another, reported in 2022 0 AIR(SC) 336;
(iv) Seema Jain (supra);

18.8. This Court has carefully gone through the decisions referred to by
Mr. Choudhury and it appears that the ratio laid down in the
aforementioned cases clearly supports the contention of Mr. Choudhury.
In the case of Hon‟ble Supreme Court has
B.V. Gopinath (supra),
emphasized about the requirement of approval of charge sheet by the
disciplinary authority. It was held that approval for initiation of
disciplinary proceeding and approval of the charge sheet are not the
same thing. After considering the Rule 14(2) of the CCS (CCA) Rules,
1965 it was held that when the Disciplinary Authority proposes to hold an
enquiry against a government servant under Rule 14 or 15, the
WP(C) 5498/2021 Page 45 of 88

Disciplinary Authority has to draw up or cause to be drawn up a charge-
sheet, and Rule 14(4) mandates that the Disciplinary Authority shall
deliver or cause to be delivered, the copy of the articles of charge. It has
specifically rejected the submission made on behalf of employer that once
the disciplinary authority approves the initiation of disciplinary
proceedings, the charge-sheet can be drawn up by an Authority other
than the Disciplinary Authority. It has been held that a charge- sheet can
only be issued by the Disciplinary Authority and no other person can
exercise this power.
18.9. The relevant paras 40, 41, 42, 48, 49, 51 & 52 of the said
judgment are quoted, as under:-
"40. Article 311(1) of the Constitution of India
ensures that no person who is a member of a civil
service of the Union or an all India service can be
dismissed or removed by an authority subordinate to
that by which he was appointed. The overwhelming
importance and value of Article 311(1) for the civil
administration as well as the public servant has been
considered stated and re-stated, by this Court in
numerous judgments, since the Constitution came into
effect on 19th January, 1950 (sic). Article
311(2) ensures that no civil servant is dismissed or
reduced in rank except after an inquiry held in
accordance with the rules of natural justice. To
effectuate the guarantee contained in Article
311(1) and to ensure compliance with the mandatory
requirements of Article 311(2), the [2023:RJ-JP:13575-
DB] (32 of 58) [CW-10126/2016] Government of India has
promulgated CCS (CCA) Rules, 1965.

41. Disciplinary proceedings against the Respondent
herein were initiated in terms of Rule 14 of the
aforesaid Rules. Rule 14(3) clearly lays down that
where it is proposed to hold an inquiry against a
WP(C) 5498/2021 Page 46 of 88

government servant under Rule 14 or Rule 15, the
disciplinary authority shall draw up or cause to be
drawn up the charge sheet. Rule 14(4) again mandates
that the disciplinary authority shall deliver or cause
to be delivered to the government servant, a copy of
the articles of charge, the statement of the
imputations of misconduct or misbehaviour and the
supporting documents including a list of witnesses by
which each article of charge is proposed to be proved.
We are unable to interpret this provision as suggested
by the Additional Solicitor General, that once the
disciplinary authority approves the initiation of the
disciplinary proceedings, the charge sheet can be drawn
up by an authority other than the disciplinary
authority. This would destroy the underlying protection
guaranteed under Article 311(1) of the Constitution of
India.
Such procedure would also do violence to the
protective provisions contained under Article
311(2) which ensures that no public servant is
dismissed, removed or suspended without following a
fair procedure in which he/she has been given a
reasonable opportunity to meet the allegations
contained in the charge sheet. Such a charge sheet can
only be issued upon approval by the appointing
authority i.e. Finance Minister.
42. In fact, issuance of the office order No. 205 dated
19th July, 2005 makes it evident that the Respondents
were aware of the legal position. The office order
clearly sets out the levels of the decision making
authorities depending on the gravity of the
consequences that would have to be faced by a
delinquent public servant in case the decision is taken
to proceed against the public servant. Clause (1) deals
with closure of complaints which are anonymous
/pseudonymous; if the decision is taken to close the
complaint it can be taken by [2023:RJ-JP:13575-DB] (33
of 58) [CW-10126/2016] the CVO. But in case of
verifiable facts, the complaints have to be referred to
WP(C) 5498/2021 Page 47 of 88

the next level of hierarchy CVB (Central Vigilance
Bureau). For placing an officer under suspension, the
decision has to be taken by the Finance Minister
himself. Even review of suspension at quarterly/half
yearly interval rests with the Finance Minister.
This is so, as suspension during
contemplation/pendency of enquiry, though may not be
penal in nature per se, still has very serious adverse
consequences on the professional as well as the
personal life of the officer suspended. The office
order recognizing the gravity of the consequences
ensures that the decision in relation to
suspension/review of suspension shall be taken by the
highest authority in the department i.e. the Finance
Minister. In matters related to reference to CVC for
first stage advice, the competent authority is the
Secretary (Revenue). Similarly, for reconsideration of
CVC's first stage advice, again the competent authority
is the Secretary (Revenue), but in case of disagreement
with CVC's first stage advice on approval for referring
the case to Department of Personnel and Training, the
competent authority is the Finance Minister.
48. Much was sought to be made by Ms. Indira Jaising
on Clause (10) of the order which provides that once
the Finance Minister has approved the initiation of
departmental proceedings, the ancillary action can be
initiated by the CVO. According to the learned Addl.
Solicitor General, the decision taken by the Finance
Minister would also include the decision for approval
of charge memo. She pointed out the procedure followed
for initiation of penalty proceedings/disciplinary
proceedings. She submitted that the decision to
initiate disciplinary proceedings is based on a
Satisfaction Memo prepared by the CVO. This
satisfaction memo is submitted to the Member (P&V),
Central Board of Direct Taxes, New Delhi who after
being satisfied that the memo is in order, forwards it
to the Chairman, CBDT who in turn, upon his own
satisfaction forwards it to Secretary (Revenue) and
WP(C) 5498/2021 Page 48 of 88

finally to the Finance Minister. Based on the
satisfaction memo, the [2023:RJ-JP:13575-DB] (34 of 58)
[CW-10126/2016] Finance Minister, who is the
disciplinary authority in this case, takes the decision
to initiate disciplinary proceedings. While taking the
said decision, the Finance Minister has before him, the
details of the alleged misconduct with the relevant
materials regarding the imputation of allegations based
on which the charge memo was issued. Therefore,
approval by the Finance Minister for initiation of the
departmental proceedings would also cover the approval
of the charge memo.
49. We are unable to accept the submission of the
learned Addl. Solicitor General. Initially, when the
file comes to the Finance Minister, it is only to take
a decision in principle as to whether departmental
proceedings ought to be initiated against the officer.
Clause (11) deals with reference to CVC for second
stage advice. In case of proposal for major penalties,
the decision is to be taken by the Finance Minister.
Similarly, under Clause (12) reconsideration of CVC's
second stage advice is to be taken by the Finance
Minister. All further proceedings including approval
for referring the case to DoP&T, issuance of show-cause
notice in case of disagreement with the enquiry
officer's report; tentative decision after CVC's second
stage advice on imposition of penalty; final decision
of penalty and revision/review/memorial have to be
taken by the Finance Minister.
51. Ms. Indira Jaising also submitted that the purpose
behind Article 311, Rule 14 and also the Office Order
of 2005 is to ensure that only an authority that is not
subordinate to the appointing authority takes
disciplinary action and that rules of natural justice
are complied with. According to the learned Addl.
Solicitor General, the Respondent is not claiming that
rules of natural justice have been violated as the
charge memo was not approved by the disciplinary
authority. Therefore, according to the Addl. Solicitor
WP(C) 5498/2021 Page 49 of 88

General, the CAT as well as the High Court erred in
quashing the charge sheet as no prejudice has been
caused to the Respondent.
52. In our opinion, the submission of the learned
Addl. Solicitor General is not factually correct. The
primary submission of the Respondent was that the
charge sheet not having been issued by the disciplinary
authority is without authority of law and, therefore,
non est in the eye of law. This plea of the Respondent
has been accepted by the CAT as also by the High Court.
The action has been taken against the Respondent in
Rule 14(3) of the CCS (CCA) Rules which enjoins the
disciplinary authority to draw up or cause to be drawn
up the substance of imputation of misconduct or
misbehaviour into definite and distinct articles of
charges. The term "cause to be drawn up" does not mean
that the definite and distinct articles of charges once
drawn up do not have to be approved by the disciplinary
authority. The term "cause to be drawn up" merely
refers to a delegation by the disciplinary authority to
a subordinate authority to perform the task of drawing
up substance of proposed "definite and distinct
articles of charge sheet". These proposed articles of
charge would only be finalized upon approval by the
disciplinary authority. Undoubtedly, this Court in the
case of P.V. Srinivasa Sastry and Ors. Vs. Comptroller
and Auditor General and Ors.; 1993 (1) SCC 419 has held
that Article 311(1) does not say that even the
departmental proceeding must be initiated only by the
appointing authority. However, at the same time it is
pointed out that: (SCC p.422, Para 4.
4."However, it is open to Union of India or a State
Government to make any rule prescribing that even the
proceeding against any delinquent officer shall be
initiated by an officer not subordinate to the
appointing authority." It is further held that "Any
such rule shall not be inconsistent with Article 311 of
the Constitution because it will amount to providing an
WP(C) 5498/2021 Page 50 of 88

additional safeguard or protection to the holders of a
civil post."
18.10. Again in the case of Promod Kumar IPS & Anr. (supra),
Hon‟ble Supreme Court has reiterated the principle laid down by the Apex
Court in the aforesaid case of B.V. Gopinath (supra) and held that
the charge memo has to be drawn up or cause to be drawn up by the
Disciplinary Authority. It has rejected the plea raised on behalf of the
employer that approval of the Disciplinary Authority for initiation of
disciplinary proceedings was sufficient and there was no need for another
approval for issuance of charge-memo. It has reiterated that if any
Authority other than the Disciplinary Authority is permitted to draw the
charge memo, the same results in destroying the protection under Article
311(2) of the Constitution of India. The relevant paras 18 to of the said
judgment, are quoted as under:-
"Validity of the Charge-Memo

18. Rule 8 of the All India Services (Discipline
and Appeal) Rules, 1969 prescribes a procedure for
imposing major penalties. A major penalty specified
in Rule 6 cannot be imposed except after holding an
enquiry in the manner prescribed in Rule 8. Where
it is proposed to hold an enquiry against a member
of the service under Rule 8, the disciplinary
authority shall "draw up or caused to be drawn up"
the substance of the imputation of misconduct or
misbehavior into definite and distinct article of
charge. The Rule further provides for an
opportunity to be given to the delinquent to submit
his explanation, the appointment of an inquiring
authority and the procedure to be followed for
imposition of a penalty with which we are not
concerned in this case. The disciplinary authority
as defined [2023:RJ-JP:13575-DB] (37 of 58) [CW-
10126/2016] in Rule 2(b) is the authority competent
WP(C) 5498/2021 Page 51 of 88

to impose on a member of the service any of the
penalties specified in Rule 6. Rule 7 provides that
the authority to institute proceedings and to
impose penalty on a member of All India Service is
the State Government, if he is serving in
connection with the affairs of the State. There is
no doubt that the Government of Tamil Nadu is the
disciplinary authority. The authority to act on
behalf of the State Government as per the Business
Rules is the Minister for Home Department. There is
no dispute that the Hon'ble Chief Minister was
holding the said department during the relevant
period (2011-2016).

19. Matters pertaining to disciplinary action
against IPS, IAS and IFS officers had to be dealt
with by the Chief Minister as per Standing Order
No.2 dated 09.01.1992 issued by the Chief Minister
of Tamil Nadu under Rule 35(4) of the Business
Rules which reads as follows:-

Paragraph 18. Disciplinary Action:

Files relating to disciplinary action against
IAS/IPS/IFS Officers in the senior-grade and above
at the stage of issue of charge memo/show cause
notice to the above officers alone should be
circulated to the Chief Minister.

In the case of Secretaries to Government where
action is contemplated under Rule 17(a) or 17(b) of
the Tamil Naidu Civil Services (CC & A) Rules such
files should be circulated to the Chief Minister.
In the case of Heads of Department files where
action is contemplated under Rule 17(b) of the
T.N.C.S. (CC & A) Rules, alone should be circulated
to the Chief Minister. In the case of District
Revenue Officers, the files should be circulated to
the Chief Minister only at the stage of imposition
of [2023:RJ-JP:13575-DB] (38 of 58) [CW-10126/2016]
penalty after obtaining the explanation of the
officers.

WP(C) 5498/2021 Page 52 of 88

In the case of Joint Secretary Deputy Secretary
where action is contemplated under Rule 17(b) of
the T.N.C.S. (CC & A) Rules such cases should be
circulated by the Chief Secretary to the Chief
Minister.

In respect of all other officers files should be
circulated to the Chief Minister as per Business
Rules."
20. By an order dated 19.04.2018, we directed the
Chief Secretary, State of Tamil Nadu to file an
affidavit explaining the position pertaining to the
Business Rules and the standing orders. The
affidavit filed by the Chief Secretary, Government
of Tamil Nadu dated 14.05.2018 discloses that the
first Respondent was arrested on 02.05.2012. He was
placed under suspension on 10.05.2012 under Rule
3(2) of the All India Services (Discipline and
Appeal) Rules, 1969 after obtaining the approval of
the Hon'ble Chief Minister on the note for
circulation dated 09.05.2012. It was further stated
in the affidavit that regular departmental action
for a major penalty was initiated against
Respondent No. 1 under the All India Services
(Discipline and Appeal) Rules, 1969 on 05.04.2013
after obtaining the approval of the Hon'ble Chief
Minister.
21. It is clear that the approval of the
disciplinary authority was taken for initiation of
the disciplinary proceedings. It is also clear from
the affidavit that no approval was sought from the
disciplinary authority at the time when the charge
memo was issued to the delinquent officer. The
submission made on behalf of the Appellant is that
approval of the disciplinary authority for
initiation of disciplinary proceedings was
sufficient and there was no need for another
approval for issuance of charge memo. The basis for
such submission is that initiation of disciplinary
proceedings and issuance of charge memo are at the
same stage. We are unable to agree [2023:RJ-
WP(C) 5498/2021 Page 53 of 88

JP:13575-DB] (39 of 58) [CW-10126/2016] with the
submission in view of the judgment of this Court
in B.V. Gopinath (supra). In that case the charge
memo issued to Mr. Gopinath under Rule 14(3) of the
Central Civil Service (Classification, Control and
Appeal) Rules, 1965 was quashed by the Central
Administrative Tribunal on the ground that the
Finance Minister did not approve it. The judgment
of the Tribunal was affirmed by the High Court. The
Union of India, the Appellant therein submitted
before this Court that the approval for initiation
of the departmental proceedings includes the
approval of the charge memo. Such submission was
not accepted by this Court on an interpretation of
Rule 14(3) which provides that the disciplinary
authority shall "draw up or cause to be drawn up"
the charge memo. It was held that if any authority
other than the disciplinary authority is permitted
to draw the charge memo, the same would result in
destroying the underlying protection guaranteed
under Article 311(2) of the Constitution of India.
22. Rule 8(4) of the All India Service (Discipline
and Appeal) Rules, 1969 also mandates that the
disciplinary authority shall "draw up or cause to
be drawn up" the charge memo. We see no reason to
take a view different from the one taken by this
Court in B.V. Gopinath (supra). We also see no
substance in the submission made by the Senior
Counsel for the State that the said judgment needs
reconsideration. Assuming that Mr. Giri is right in
his submission that the initiation of disciplinary
proceedings and issuance of charge memo are at the
same stage, the mandatory requirement of Rule 8
which provides for the charge memo to be drawn by
the disciplinary authority cannot be ignored. We
reject the submission on behalf of the Appellant
that Gopinath's case can be distinguished on
facts. We are not in agreement with the contention
of the Appellant that the business Rules and
standing orders of the State of Tamil Nadu are
quite different from the office orders and
circulars issued by the Union of India which formed
WP(C) 5498/2021 Page 54 of 88

the basis of the judgment in Gopinath's case. A
close [2023:RJ-JP:13575-DB] (40 of 58) [CW-
10126/2016] reading of the said judgment would
disclose that reliance on the office note was only
in addition to the interpretation of the Rule.
23. It is also settled law that if the Rule
requires something to be done in a particular
manner it should be done either in the same manner
or not at all- Taylor Vs. Taylor [(1875) 1 Ch. D.
426, 431]. In view of the mandatory requirement of
Rule 8(4) and the charge memo being drawn up or
cause to be drawn up by the disciplinary authority
is not complied with, we are of the considered
opinion that there is no reason to interfere with
the judgment of the High Court on this issue. The
only addition we would like to make is to give
liberty to the disciplinary authority to issue a
charge memo afresh after taking approval from the
disciplinary authority."
18.11. Thereafter, in the case of Sunny Abraham (supra) Hon‟ble
Supreme Court, having dealt with an issue of ex-post facto approval by
the Disciplinary Authority and found that charge-sheet/charge memo if
not having approval of the Disciplinary Authority, would be non-est in the
eye of law. The relevant paras 10 to 12 of the said judgment are quoted,
as under:-
"10. As it has already been pointed out, the High
Court sought to distinguish the case of B.V.
Gopinath (supra) with the facts of the present case
on the ground that in the case of the Appellant,
the Disciplinary Authority had not granted approval
at any stage and in the present case, ex-post facto
sanction of the charge memorandum or chargesheet
was given when the departmental proceeding was
pending. The High Court found such approach to be
practical and pragmatic, having regard to the fact
that the departmental proceeding had remained
pending in the case of the Appellant and evidences
WP(C) 5498/2021 Page 55 of 88

had been recorded. The High Court thus
considered [2023:RJ-JP:13575-DB] (41 of 58) [CW-
10126/2016] the fact that in the case of B.V.
Gopinath (supra), the proceeding stood concluded
whereas in the Appellant's case, it was still
running when ex-post facto approval was given. That
was the point on which the ratio of B.V.
Gopinath (supra) was distinguished by the High
Court.
11. We do not think that the absence of the
expression "prior approval" in the aforesaid Rule
would have any impact so far as the present case is
concerned as the same Rule has been construed by
this Court in the case of B.V. Gopinath (supra) and
it has been held that chargesheet/charge memorandum
not having approval of the Disciplinary Authority
would be non est in the eye of the law. Same
interpretation has been given to a similar Rule,
All India Services (Discipline and Appeal) Rules,
1969 by another Coordinate Bench of this Court in
the case of State of Tamil Nadu v. Promod Kumar,
IPS and Anr. [(2018) 17 SCC 677] (authored by one
of us, L. Nageswara Rao, J). Now the question
arises as to whether concluded proceeding (as in
the case of B.V. Gopinath) and pending proceeding
against the Appellant is capable of giving
different interpretations to the said Rule. The
High Court's reasoning, referring to the notes on
which approval for initiation of proceeding was
granted, is that the Disciplinary Authority had
taken into consideration the specific charges. The
ratio of the judgments in the cases of Ashok Kumar
Das (supra) and Bajaj Hindustan Limited (supra), in
our opinion, do not apply in the facts of the
present case. We hold so because these authorities
primarily deal with the question as to whether the
legal requirement of granting approval could extend
to ex-post facto approval, particularly in a case
where the statutory instrument does not specify
taking of prior or previous approval. It is a fact
that in the Rules with which we are concerned,
there is no stipulation of taking "prior"
WP(C) 5498/2021 Page 56 of 88

approval. But since this very Rule has been
construed by a Coordinate Bench to the effect that
the approval of the Disciplinary Authority should
be there before issuing the charge memorandum, the
principles of law enunciated in the aforesaid two
cases, that is Ashok Kumar Das (supra) and
Bajaj [2023:RJ-JP:13575-DB] (42 of 58) [CW-
10126/2016] Hindustan Limited (supra) would not aid
the Respondents. The distinction between the prior
approval and approval simplicitor does not have
much impact so far as the status of the subject
charge memorandum is concerned.
12. The next question we shall address is as to
whether there would be any difference in the
position of law in this case vis-à-vis the case
of B.V. Gopinath (supra). In the latter authority,
the charge memorandum without approval of the
Disciplinary Authority was held to be non est in a
concluded proceeding. The High Court has referred
to the variants of the expression non est used in
two legal phrases in the judgment under appeal. In
the context of our jurisprudence, the term non est
conveys the meaning of something treated to be not
in existence because of some legal lacuna in the
process of creation of the subject-instrument. It
goes beyond a remediable irregularity. That is how
the Coordinate Bench has construed the impact of
not having approval of the Disciplinary Authority
in issuing the charge memorandum. In the event a
legal instrument is deemed to be not in existence,
because of certain fundamental defect in its
issuance, subsequent approval cannot revive its
existence and ratify acts done in pursuance of such
instrument, treating the same to be valid. The fact
that initiation of proceeding received approval of
the Disciplinary Authority could not lighten the
obligation on the part of the employer (in this
case the Union of India) in complying with the
requirement of Sub-clause (3) of Rule 14 of CCS
(CCA), 1965. We have quoted the two relevant sub-
clauses earlier in this judgment. Sub-clauses (2)
and (3) of Rule 14 contemplates independent
WP(C) 5498/2021 Page 57 of 88

approval of the Disciplinary Authority at both
stages-for initiation of enquiry and also for
drawing up or to cause to be drawn up the charge
memorandum. In the event the requirement of Sub-
clause (2) is complied with, not having the
approval at the time of issue of charge memorandum
under Sub-clause (3) would render the charge
memorandum fundamentally defective, not capable of
being validated retrospectively. What is non-
existent in the eye of the law cannot be revived
retrospectively. Life cannot be breathed into the
stillborn charge [2023:RJ-JP:13575-DB] (43 of 58)
[CW-10126/2016] memorandum. In our opinion, the
approval for initiating disciplinary proceeding and
approval to a charge memorandum are two divisible
acts, each one requiring independent application of
mind on the part of the Disciplinary Authority. If
there is any default in the process of application
of mind independently at the time of issue of
charge memorandum by the Disciplinary Authority,
the same would not get cured by the fact that such
approval was there at the initial stage. This was
the argument on behalf of the authorities in the
case of B.V. Gopinath (supra), as would be evident
from paragraph 8 of the report which we reproduce
below:
8. Ms. Jaising has elaborately explained the entire
procedure that is followed in each and every case
before the matter is put up before the Finance
Minister for seeking approval for initiation of the
disciplinary proceedings. According to the learned
Additional Solicitor General, the procedure
followed ensures that entire material is placed
before the Finance Minister before a decision is
taken to initiate the departmental proceedings. She
submits that approval for initiation of the
departmental proceedings would also amount to
approval of the charge memo. According to the
learned Additional Solicitor General, CAT as well
as the High Court had committed a grave error in
quashing the departmental proceedings against the
Respondents, as the procedure for taking approval
WP(C) 5498/2021 Page 58 of 88

of the disciplinary authority to initiate penalty
proceeding is comprehensive and involved decision
making at every level of the hierarchy."

18.12. Over and above, from the affidavit in opposition filed by the
respondent No. 2, 3, 4 and 5, on 04.01.2022, specially in paragraph No.5,
also it appears that the charge sheet was never placed and approved by
the E.C. The stand taken in the affidavit is extracted as under:-

‚Further, it would be pertinent to point out here
that subsequent to the aforementioned Executive
Council Resolution dated 08.06.2021, the Charge
memo was issued, since the Vice Chancellor being
the Chairman of the Executive Council, Gauhati
University proposed to hold an inquiry against
the Writ Petitioner and the Registrar & Secretary
ex-officio of the Executive Council, Gauhati
University issued the relevant Memorandum dated
22.06.2021, by order and in the name of the
Executive Council (ANNEXURE-8 of the Writ
petition may be referred to).
18.13. It is also stated that in the said paragraph as under:-

‚Moreover, the said Memorandum dated 22.06.2021
was issued after proper legal consultation as per
the decision of the Executive Council and in tune
with the provisions enshrined in the Gauhati
University Act, 1947 and it was also duly
intimated to the Executive Council of the
University on numerous occasion in different
stages of its discussions without any objection
in this regard. Furthermore, by the said
Memorandum dated 22.06.2021 the Writ Petitioner
was informed that "an inquiry will be held only
in respect of those articles of charges as are
WP(C) 5498/2021 Page 59 of 88

not admitted‛ and therefore he was asked
‚specifically admit or deny each articles of
charges.‛
18.14. From the aforesaid averment, it becomes clear that the charge
sheet was not approved by the disciplinary authority. Rather it appears
that the same was issued without approval of the E.C., since the Vice
Chancellor being the Chairman of the Executive Council, Gauhati
University proposed to hold an inquiry against the Writ Petitioner and the
Registrar & Secretary ex-officio of the Executive Council, Gauhati
University issued the relevant Memorandum dated 22.06.2021, by order
and in the name of the Executive Council and it was also duly intimated
to the Executive Council on numerous occasions in different stages of its
discussions without any objection in this regard.
18.15. Thus, it becomes crystal clear that the petitioner herein has
succeeded in demonstrating from the record that without approval of the
disciplinary authority, charge-sheet was furnished to the petitioner, in
view of the decision of Hon‟ble Supreme Court in Sunny Abraham
(supra), it can safely be concluded that the charge sheet, so furnished
to the petitioner is non-est in the eye of law, and fundamentally defective
and such defect cannot be cured by subsequent post facto approval or
ratification.
18.16. Under the given factual and legal matrix, the Issue No. II has to
be answered in affirmative, and accordingly, the same stands answered
by holding that the charge-sheet, so served upon the petitioner, was non-
est in the eye of law for not being placed before the disciplinary authority
and also on account of non approval of the same by the disciplinary
authority.
WP(C) 5498/2021 Page 60 of 88

Issue No. III
19. This relates to the findings, so recorded by the Inquiry Officer in
respect of the charges being proved against the petitioner. It is to be
looked into, if the said finding is based upon legally admissible evidence
or not.
The Argument of perversity in the Inquiry Report:-
19.1. It is the categorical contention of Mr. Choudhury that there is
perversity in the report of the Inquiry Officer. He has pointed out that the
Inquiry Officer had tried to cover up the illegal acts of the disciplinary
authority by providing fictitious information in page No.3 of the report to
the effect that the disciplinary authority i.e. the Executive Council, not
being satisfied with the explanation offered after perusal of the response
to the charge-sheet by the Charges Officer (CO), decided to initiate a
disciplinary proceeding against Dr. Kandarpa Das, in view of the fact that
it is an well established fact that neither the charge memo dated
22.06.2021, nor the reply of the petitioner dated 28.06.2021, was placed
before the Executive Council for its perusal/approval.
19.2. It is to be noted here that in point No.6 of the Inquiry Report, the
Inquiry Officer has noted as under:-
‚6. The Disciplinary Authority i.e. the Executive
Council, not being satisfied with the explanation
offered, after perusal of the response to the
Charge sheet by the CO, decided to institute a
Disciplinary Proceeding against Dr Kandarpa Das.
Accordingly, Registrar GU Dr. H.K. Nath sent a
letter to Pallab Bhattacharyya vide Letter Ref. No.
GU/Regr(SF)/2021/92 dated 01-07-2021 appointing him
as the Enquiry Officer(EO or 10) for conducting the
Departmental Proceeding (DP). Copy of the Charge
WP(C) 5498/2021 Page 61 of 88

sheet served to Prof Kandarpa Das and Written
Statement from Prof. Kandarpa Das were also
enclosed with the Appointment Letter.‛

19.3. But, in paragraph No.16.9, of this judgment this court has already
recorded a finding to the effect that -it appears from the record as well as
from the submission of Mr. Choudhury, the learned counsel for the
petitioner, that the Inquiry Officer was appointed before serving the
charge-sheet upon the petitioner and without considering the reply
submitted by the petitioner, which seems to be in violation of the
provision of Rule 9(4) of the Assam Services (Discipline and Appeal)
Rules, 1964.
19.4. In that view of the matter, the finding of the Inquiry Officer in
paragraph No. 6 of the Inquiry Report is not born out of the record and
on such count the same is perverse and thereby set the grounds for
interference of this court by invoking the power of judicial review by this
court.
19.5. Further, it appears that the Inquiry Officer has also ignored the
communication dated 18.01.2019, issued to the State Government by the
then Registrar I/C of Gauhati University, where running of unapproved
courses by the GUIDOL was said to be bona-fide error of judgment, while
it is well settled in the case of J. Ahmed (supra) that error of judgment
cannot be construed as misconduct, under the service jurisprudence. And
in that view of the matter, the Inquiry Officer seems to have conducted
roaming and fishing inquiry, as pointed out by Mr. Choudhury, the
learned counsel for the petitioner, and on such count the finding of the
Inquiry Officer not being supported by any material, is perverse.
WP(C) 5498/2021 Page 62 of 88

19.6. Mr. Choudhury has also pointed out several other perversities in
the inquiry report in respect of Articles of charge Nos. 1, 3, 4, 5, 6 and 7
by introducing some extraneous material that caused prejudice to the
petitioner in the inquiry.
19.7. Thus, having carefully gone through the same, this Court finds
force in the submission of Mr. Choudhury, learned counsel for the
petitioner, that it is well settled that it is not open to the authorities to
generate extraneous allegation, with which petitioner was not charged.
19.8. Notably, from page 101 of the writ petition, it appears that in
respect of Article 1 of the charge sheet, the Inquiry Officer has held that -
"The CO as head of IDOL immediately after joining in the
year 2006, seeing the unavailability of any statute or
ordinance should have proactively used these materials to
frame the guidelines and put it up in appropriate forum for
approval." This observation was made by the I.O. in acceptance of the
fact that there was no clear cut statute and Ordinance defining the duties
and responsibilities of Director, IDOL. But, nowhere in the charge sheet,
as discussed in the foregoing para, has this fact formed a part and on
such count the same is an extraneous material. In that view of the
matter, the petitioner herein was denied the opportunity to defend
himself in respect of this new allegation. Therefore, by production of
extraneous material, the enquiry proceeding has vitiated.
19.9. It also appears from page 114 of the writ petition that the Inquiry
Officer, with regards to Article No. 2 of the charge sheet arrived at the
conclusion that "If there is any omission and commission in
the working of VC, AC or EC there is appropriate forum to
deal with them departmentally. The purview of the instant
WP(C) 5498/2021 Page 63 of 88

DP is to limit itself to the charge sheet issued to the
CO." This finding appears to be an attempt to selectively victimize the
petitioner, though it involves commissions and omissions by several
authorities and not the Charged Officer alone.
19.10. In respect of the Article No. 3 & 4, page 123 of the writ petition
indicates that the I.O. had observed that
-"Had CO wished to ensure
recognition of the unapproved courses something more
proactive like visiting DEC/DEB could have been resorted
to. The visit of Expert Committee and its refusal to accord
recognition to other unapproved courses is a clear
testimony of the state of affairs in IDOL. When the Expert
team visited GU/IDOL the Director could have interacted
with the team regarding the shortcomings of the Institution
for the un-recognised courses and take effective steps for
taking corrective actions which was not discernible from
the evidence adduced". But, these facts are not related to the charge
sheet and thereby the I0 had imported his personal knowledge not
related to the Charge Memo and statement of allegations, which is a
glaring instance of violation of the principle of Natural Justice. The I.O.
also concluded that -"being the head of the organisation, it
was his responsibility to obtain necessary approvals" is a
instance of non-application of mind by the IO, despite the fact that the
responsibility of getting recognition/approval from DEC/UGC primarily lies
with the Registrar. Same is the position in respect of Article No.4 and is
an attempt to selectively implicate the petitioner.
19.11. From page 136 of the writ petition, it becomes apparent that in
respect of Article No.5, the I.O. concluded that
‚Though these
WP(C) 5498/2021 Page 64 of 88

affidavits were sworn by the concerned Registrar as the
nodal authority these were prepared by the Director and as
such he is squarely responsible for such
misrepresentation.‛ And in view of the evidence of Dr. S. K. Nath
(examined by the presenting officer) who had admitted that "All Affidavits
were approved by my competent authority (VC) before signing as were
done in other similar important cases" and also in view of the Affidavits
were sworn by the Registrar dated 18.03.2016 (two affidavits) and 14-
07-2016 i.e. after the tenure of the petitioner as Director, GUIDOL, the
finding so recorded appears to be perverse, who had selectively ignored
and misrepresented the facts above.
19.12. From the last paragraph of page 145 of the writ petition it
appears that in respect of Article No.6, the IO has observed that "The
absence of imputations relating to the charge as objected
But, what the Inquiry Officer had
by CO is not explained by PO."
ignored is that Rule 9 (2) of the Assam Services (Discipline and Appeal)
Rule, 1964 provides that the charge has to be based upon statement of
allegations. In absence of such statement of allegation the petitioner is
deprived of filing his reply, and on such count the charge in Article No. 6
becomes null and void. But, this aspect eschewed consideration of the
I.O. Instead he went on to observe as under:-
"The CO contends that
there was neither any laid down procedure for working of
Director, GUIDOL nor he had any decision making power (not
being member of AC & EC) and he as such followed the
instruction of his superiors like VC, AC and EC. This
argument does not hold water as being the head of an
institution, he could and should have influenced his
superiors based on the established guidelines of DEC/DEB
WP(C) 5498/2021 Page 65 of 88

and the GU practices in place." Thus, it appears that the I.O. had
tried to step into the shoes of the Disciplinary authority and attempted to
formulate statement of allegations and become a witness himself
effectively trying to become the Judge of his own case.
19.13. It appears from the page No. 152 of the petition that in respect
of Article No.7, the I.O. had observed that- "Now these funds
obtained from DEC/DEB were obviously spent to run the
courses some of which were not recognized by the DEC/DEB.
Though to find out the exact amount of fund spent on
unapproved courses require a detailed enquiry there can be
no denying the fact that the amount spent on the unapproved
courses could have been avoided. Hence the fund spent on
these courses can be considered as avoidable expenditure."
This observation, specially "Now these funds obtained from
DEC/DEB were obviously spent to run the courses some of
which were not recognized by the DEC/DEB‛, seems to be neither
based on the statement of allegation nor on the evidences adduced. Such
finding of the I.O., being not based upon any material, is perverse and
thereby causing serious prejudice to the petitioner and on such count the
disciplinary proceeding stands vitiated.
19.14. In view of aforesaid discussion and findings, Issue No. III has to
be answered in affirmative. This court is of the considered opinion that
the finding of the Inquiry Officer, in respect of the charges being proved
against the petitioner, are perverse on account of the same being not
based upon legally admissible evidence. And on such count the impugned
order of removal, dated 06.10.2021, is liable to be interfered with, being
based upon a perverse finding of the I.O. in the Inquiry Report.
WP(C) 5498/2021 Page 66 of 88

Issue No. IV:-
20. This issue relates to making the petitioner scapegoat, by adopting a
pick and choose policy, even though there was recommendation of Dr.
Justice Saikia Commission for taking action against the Vice-Chancellor
and other persons also.
20.1. It is the contention of Mr. Choudhury, learned counsel for the
petitioner, that before joining of the petitioner as Director, GUIDOL on
19.08.2006, several unapproved courses were offered and the same
continued even after his tenure and the Academic Council (AC) of the
University, had taken the decision to run any course in GUIDOL, which
was approved by the Executive Council and that the Director of GUIDOL
was neither a member of the Academic Council nor Executive Council. Mr.
Choudhury, learned counsel for the petitioner, has also pointed out that
Justice Saikia Commission had nowhere stated that the petitioner was
solely responsible for running the unapproved courses in GUIDOL and it
had recorded a finding that the unapproved courses continued with full
knowledge and support of the Gauhati University authorities, including
the Vice Chancellors, Registrars, the Academic Council and the Executive
Council and as such, all of them appear to be responsible. Mr. Choudhury
also pointed it out that by adopting a pick and choose policy the
respondent authorities decided to proceed only against the petitioner and
thereby made him scapegoat and this is not permissible. To supplement
weight to his argument Mr. Choudhury has referred to a decision of
Hon‟ble Supreme Court in Bongaigaon Refinery & Petrochemicals
Ltd. and others v. Girish Chandra Sarma, reported in (2007) 7
SCC 206.

WP(C) 5498/2021 Page 67 of 88

20.2. As discussed in paragraph No.14 of this judgment, Dr. Justice
Saikia Commission had made 8 recommendations and out the 8
recommendations three recommendations related to initiate appropriate
action against the Vice Chancellors of Gauhati University, who served
during the period of 2010-2017, the then Director(s) of GUIDOL who
served during the period 2010-17, the then Registrars who served during

the period 2010-17.

20.3. But, it appears that the petitioner has been singled out in this
case. Notably, the petitioner being the Director, was neither a member of
the EC nor of AC, and as such, it is difficult to accept that without the
knowledge of the Vice-Chancellor, Registrars and members of the
Academic Council and the Executive Council, the decision to run the
unapproved courses, was taken by the petitioner herein alone. The
assertion made by the petitioner in paragraph No. 44 of the petition is
not specifically traversed by the respondents in para No.10 of the
affidavit in opposition filed by the respondent authorities. It is
conspicuously silent as to why no action was initiated against the then VC
and Registrars and other Directors of GUIDOL. Moreover, the dissenting
note of Professor H.K. Sharma, which is annexed to the affidavit-in-reply
of the petitioner, also indicates that -
‚6. Introduction of new courses, admission to any
of the courses of the IDOL, GU is regulated by the
statutory provisions of the Gauhati University Act.
The same has been substantiated by a written
statement of Dr. Mridul Hazarika, former Vice
Chancellor of GU to Mr. K. K. Sharma, Secretary in
the Department of Higher Education, Government of
India on 03/08/2017. Dr. Hazarika wrote "Prior to
and after obtaining Institutional Recognition,
WP(C) 5498/2021 Page 68 of 88

GUIDOL, introduced several Masters Degree courses
and Diploma Programmes by following the established
Gauhati University statutory procedure." A Core
Committee or an advisory Board was always there
since its inception in which VC was the Chairman
and Registrar, Controller, Academic Registrar,
Treasurer etc. were other members of this committee
or the Board. Every action was carried out
according to the resolutions taken in this
committee or Board.‛
20.4. Under the given factual matrix there appears to be sufficient force
in the submission of Mr. Choudhury that the petitioner was singled out
and made scapegoat. And the decision in Bongaigaon Refinery &
Petrochemicals Ltd.(supra), so relied upon by him, also
strengthened his submission. Notably in the aforesaid case it has been
held by Supreme Court in para No.17, 18 and 22 as under:-
‚17. All the three committees i.e. Tender
Committee (Technical) along with the respondent,
other four members were there and similarly in
Techno-commercial Committee along with the
respondent as member there were other four members
and likewise in the Price Negotiation Committee
Shri S.C. Goswami, General Manager (Marketing) was
Chairman, Shri P.K. Baruah, Deputy General Manager
(Project/GM) (HRD), Shri D.B. Das, Deputy General
Manager, Shri T.V. John, CM/DGM (Finance) and Shri
P.K. Gogoi, SM/CM (Project-Civil) were the members
along with the respondent. All these three
Committees have processed the deal and it is only
the respondent who has been made a scapegoat.

18. After going through the report and the finding
recorded by the Division Bench of the High Court,
we are of opinion that in fact the Division Bench
correctly assessed the situation that the
WP(C) 5498/2021 Page 69 of 88

respondent alone was made a scapegoat whereas the
decision by all three Committees was unanimous
decision by all these members participating in the
negotiations and the price was finalised
accordingly. It is not the respondent alone who can
be held responsible when the decision was taken by
the Committees. If the decision of the committee
stinks, it cannot be said that the respondent alone
stinks; it will be arbitrary. If all fish stink, to
pick one and say only it stinks is unfair in the
matter of unanimous decision of the Committee.

22. The learned Additional Solicitor General has
submitted that since learned counsel for the
respondent-writ petitioner has already abandoned
the plea of perversity i.e. that the finding is
perverse, the same is not open for learned counsel
for the respondent-writ petitioner to press again
before the Division Bench of the High Court. Since
the writ appeal is in continuation of the original
order passed in the writ jurisdiction by the
learned Single Judge, it cannot operate as an
estoppel against learned counsel for the respondent
to press the same. If the finding recorded by the
inquiring officer is not sound and it relates to
perversity then the appellate court in writ appeal
cannot estop the counsel from raising the same.
More so, the Division Bench after considering the
matter has found that the whole approach was
perverse because the respondent alone has been made
a scapegoat. When the decision of all the three
Committees was unanimous, then to take one and put
the entire blame on him is definitely perverse
approach and the court cannot stand to the
technicalities so as to defeat the ends of justice.
Thus, the submission of the learned Additional
Solicitor General has no merit.

WP(C) 5498/2021 Page 70 of 88

20.5. In view of above the Issue No. IV has to be decided in affirmative
and accordingly, the same stands answered. And in view of affirmative
finding of this issue, and as held in the case of Bongaigaon Refinery &
Petrochemicals Ltd.(supra), the approach of the respondent
authority in proceeding against the petitioner only, is a perverse
approach.
21. Moving forward to Issue No. V, this court finds that this issue
relates to the availability of alternate remedy, and the bar in availing
extra-ordinary remedy.
21.1. As states earlier, Mr. Saikia, learned Advocate General, submits
that there is a provision for filing appeal under Rule 15 of the Assam
Services( Discipline and Appeal) Rules, 1964, to challenge the impugned
removal order and in view of availability of the efficacious and alternative
remedy and without availing the same, the petitioner cannot approach
this court directly under Article 226 of the Constitution of India.
21.2. The counter argument of Mr. Choudhury, learned counsel for the
petitioner, is that though against the impugned removal order, an appeal
lies, yet the petitioner chooses not to avail the same in view of the fact
the Chancellor of Gauhati University to whom the appeal lies, is also the
Chancellor of the K.K. Handique State Open University, who had
suspended the petitioner from the post of Vice Chancellor of said
University, while he was serving there availing lien, on the same ground
and that the Chancellor had already formed an opinion for which the
petitioner has found the alternative remedy would not be efficacious. And
as such, and also on account of violation of the principle of natural
WP(C) 5498/2021 Page 71 of 88

justice, availability of alternative remedy and not availing the same would
not be a bar in availing the extraordinary remedy.
21.3. The submission of learned counsel for both the parties have
received due consideration of this court. Indisputably there is a provision
in Assam Services (Discipline and Appeal) Rules 1964 i.e. Rule 15, which
provides for appeal. And admittedly, the same has not been availed by
the petitioner. The reason assigned by the petitioner is that the
Chancellor is the appellate authority and the same Chancellor has
suspended him from the post of Vice Chancellor of K.K. Handique State
Open University (KKHSOU) vide order dated 13.08.2021, (Annexure-12 of
the writ petition) and nowhere in the said order it is reflected that the
order was issued pending drawal of departmental proceeding and
subsequently, he was removed from that posts. On such ground the
petitioner has found that the appeal would not be an efficacious remedy
as the Chancellor had already formed an opinion.
21.4. The reason so put forwarded, cannot be said to be irrelevant or
stale. In the case of Whirlpool Corpn. v. Registrar of Trade
Marks, Mumbai and others, reported in (1998) 8 SCC 1, Hon‟ble
Supreme Court has held that the alternative remedy shall not to operate
as a bar in at least three contingencies, namely:-
(i) where the writ petition has been filed for the
enforcement of any of the Fundamental Rights or
(ii) where there has been a violation of the principle
of natural justice or
(iii) where the order or proceedings are wholly without
jurisdiction or the vires of an Act is
challenged.

WP(C) 5498/2021 Page 72 of 88

21.5. The relevant paragraph is extracted herein below:-
‚15. Under Article 226 of the Constitution, the
High Court, having regard to the facts of the case,
has a discretion to entertain or not to entertain a
writ petition. But the High Court has imposed upon
itself certain restrictions one of which is that if
an effective and efficacious remedy is available,
the High Court would not normally exercise its
jurisdiction. But the alternative remedy has been
consistently held by this Court not to operate as a
bar in at least three contingencies, namely, where
the writ petition has been filed for the
enforcement of any of the Fundamental Rights or
where there has been a violation of the principle
of natural justice or where the order or
proceedings are wholly without jurisdiction or the
vires of an Act is challenged. There is a plethora
of case-law on this point but to cut down this
circle of forensic whirlpool, we would rely on some
old decisions of the evolutionary era of the
constitutional law as they still hold the field.‛

21.6. In the instant case, it has already been found and held that the
disciplinary proceeding was initiated and also conducted in contravention
of the procedure prescribed in that behalf i.e. in contravention of the
provision of Rule 9(2) and Rule 9(4) of the Assam Services(Discipline and
Appeal) Rules, 1964 for imposing a major penalty under Rule 7 of the
said Rules and also in contravention of the principles of natural justice. In
that view of the matter, this court has the authority to review the
disciplinary proceeding by exercising its power under Article 226 of the
Constitution of India. Therefore, this court is unable to agree with the
submission advanced by Mr. Saikia, learned Advocate General, Assam, in
this regard.
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21.7. Under the aforesaid factual and legal matrix, the Issue No. V,
stands answered by holding that the availability of alternative remedy
would not be a bar in approaching the court to invoke the jurisdiction
under Article 226 of the Constitution of India.
22. Moving forward to the Issue No. VI, i.e. whether the petitioner has
succeeded in demonstrating a case for interference of this court in
exercising the power of judicial review, while the scope of judicial review
in service matters is very limited, this court finds that- it is well settled
that the scope of judicial review in respect of disciplinary matter is very
limited. Mr. Saikia, the learned Advocate General, Assam has rightly
pointed this out. However, this is not the absolute proposition of law,
according to Mr. Choudhury, learned counsel for the petitioner.
22.1. It is also well settled that when the statutory provision and the
principles of natural justice are violated, the Court has the jurisdiction
under Article 226 of the Constitution of India to interfere with the same.
Reference in this context can be made to a decision of Hon‟ble Supreme
Court in the case of Union of India and others v. P.
Gunasekaran, reported in (2015) 2 SCC 610 , wherein it has been
held as under:-
‚12. Despite the well-settled position, it is
painfully disturbing to note that the High Court
has acted as an appellate authority in the
disciplinary proceedings, re-appreciating even the
evidence before the enquiry officer. The finding on
Charge I was accepted by the disciplinary authority
and was also endorsed by the Central Administrative
Tribunal. In disciplinary proceedings, the High
Court is not and cannot act as a second court of
first appeal. The High Court, in exercise of its
WP(C) 5498/2021 Page 74 of 88

powers under Articles 226/227 of the Constitution
of India, shall not venture into re-appreciation of
the evidence. The High Court can only see whether:-

( a ) the enquiry is held by a competent authority;
( b ) the enquiry is held according to the
procedure prescribed in that behalf;
( c ) there is violation of the principles of
natural justice in conducting the
proceedings;
( d ) the authorities have disabled themselves from
reaching a fair conclusion by some
considerations extraneous to the evidence
and merits of the case;
( e ) the authorities have allowed themselves to be
influenced by irrelevant or extraneous
considerations;
( f ) the conclusion, on the very face of it, is so
wholly arbitrary and capricious that no
reasonable person could ever have arrived at
such conclusion;
( g ) the disciplinary authority had erroneously
failed to admit the admissible and material
evidence;
( h ) the disciplinary authority had erroneously
admitted inadmissible evidence which
influenced the finding;
( i ) the finding of fact is based on no evidence.

13. Under Articles 226/227 of the Constitution of
India, the High Court shall not:-

( i ) re-appreciate the evidence;
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( ii ) interfere with the conclusions in the
enquiry, in case the same has been
conducted in accordance with law;
( iii ) go into the adequacy of the evidence;
( iv ) go into the reliability of the evidence;
( v ) interfere, if there be some legal evidence
on which findings can be based.
( vi ) correct the error of fact however grave it
may appear to be;
( vii ) go into the proportionality of punishment
unless it shocks its conscience.
22.2. In the instant case there is clear and unambiguous averment that
the principles of natural justice have been violated in case of the
petitioner on several counts, such as, inquiry officer was appointed prior
to filing of charge sheet and due to non approval of the charge sheet by
the disciplinary authority and not placing and also non consideration of
the reply to show cause before the disciplinary authority, i.e. the
Executive Council. In that view of the matter, this court can interfere with
the conclusion so arrived at by the Inquiry Officer, by invoking the
jurisdiction under Article 226 of the Constitution of India.
22.3. Accordingly, Issue No. VI stands answered.
23. Now, in respect of the last issue, being Issue No.VII, i.e. whether
running of the unapproved courses in GUIDOL amounts to „misconduct‟ or
not under the service jurisprudence, that has to be looked into.
23.1. Mr. Choudhury, learned counsel for the petitioner, has drawn the
attention of this Court to the communication, dated 18.01.2019, issued
by the Registrar I/C of Gauhati University, who is presently serving as
Vice-Chancellor of the University, has stated that running of unapproved
WP(C) 5498/2021 Page 76 of 88

courses was a bona-fide error of judgment on the part of the authorities
of GUIDOL, Gauhati University and there was no ill intention on anybody‟s
part and the said communication was of dated 18.01.2019, issued on
behalf of the University to the Higher Education Department, Govt. of
Assam, on CAG‟s report of unapproved courses offered by the GUIDOL.
Mr. Choudhury also submits that it is well settled that error of judgment
is not misconduct in service jurisprudence. In support of his contention
he has relied upon a decision of Hon‟ble Supreme Court in Union of
India and others v. J. Ahmed , reported in (1979) 2 SCC 286, and
the petitioner has been awarded the major penalty for such error of
judgment on the part of the entire authorities of GUIDOL and on such
count the punishment imposed seems to be disproportionate.
23.2. The submission of Mr. Choudhury, while examined in the light of
the facts and circumstances on the record and also in the light of the
decision of Hon‟ble Supreme Court, in the case of J. Ahmed (supra) ,
this Court finds sufficient force in the same. The relevant para in the
decision in J. Ahmed is extracted herein below:-
‚11. Code of conduct as set out in the Conduct
Rules clearly indicates the conduct expected of a
member of the service. It would follow that conduct
which is blameworthy for the government servant in
the context of Conduct Rules would be misconduct.
If a servant conducts himself in a way inconsistent
with due and faithful discharge of his duty in
service, it is misconduct (see Pierce v. Foster [17
QB 536, 542]). A disregard of an essential
condition of the contract of service may constitute
misconduct [see Laws v. London Chronicle ( Indicator
Newspapers [(1959) 1 WLR 698])]. This view was
adopted in Shardaprasad Onkarprasad Tiwari vs.
WP(C) 5498/2021 Page 77 of 88

Divisional Superintendent, Central Railway, Nagpur
Division, Nagpur [61 Bom LR 1596] , and Satubha K.
Vaghela v. Moosa Raza [10 Guj LR 23] . The High
Court has noted the definition of misconduct
in Stroud's Judicial Dictionary which runs as
under:

‚Misconduct means, misconduct arising from ill
motive; acts of negligence, errors of judgment, or
innocent mistake, do not constitute such
misconduct.‛

In industrial jurisprudence amongst others,
habitual or gross negligence constitute misconduct
but in Utkal Machinery Ltd. v. Workmen, Miss Shanti
Patnaik [AIR 1966 SC 1051: (1966) 2 SCR 434: (1966)
1 LLJ 398: 28 FJR 131] in the absence of standing
orders governing the employee's undertaking,
unsatisfactory work was treated as misconduct in
the context of discharge being assailed as
punitive. In S. Govinda Menon v. Union of
India [(1967) 2 SCR 566: AIR 1967 SC 1274 : (1967)
2 LLJ 249] the manner in which a member of the
service discharged his quasi judicial function
disclosing abuse of power was treated as
constituting misconduct for initiating disciplinary
proceedings. A single act of omission or error of
judgment would ordinarily not constitute misconduct
though if such error or omission results in serious
or atrocious consequences the same may amount to
misconduct as was held by this Court in P.H.
Kalyani v. Air France, Calcutta [AIR 1963 SC 1756 :
(1964) 2 SCR 104 : (1963) 1 LLJ 679 : 24 FJR 464]
wherein it was found that the two mistakes
committed by the employee while checking the load-
sheets and balance charts would involve possible
accident to the aircraft and possible loss of human
WP(C) 5498/2021 Page 78 of 88

life and, therefore, the negligence in work in the
context of serious consequences was treated as
misconduct. It is, however, difficult to believe
that lack of efficiency or attainment of highest
standards in discharge of duty attached to public
office would ipso facto constitute misconduct.
There may be negligence in performance of duty and
a lapse in performance of duty or error of judgment
in evaluating the developing situation may be
negligence in discharge of duty but would not
constitute misconduct unless the consequences
directly attributable to negligence would be such
as to be irreparable or the resultant damage would
be so heavy that the degree of culpability would be
very high. An error can be indicative of negligence
and the degree of culpability may indicate the
grossness of the negligence. Carelessness can often
be productive of more harm than deliberate
wickedness or malevolence. Leaving aside the
classic example of the sentry who sleeps at his
post and allows the enemy to slip through, there
are other more familiar instances of which a
railway cabinman signals in a train on the same
track where there is a stationery train causing
head-on collision; a nurse giving intravenous
injection which ought to be given intramuscular
causing instantaneous death; a pilot overlooking an
instrument showing snag in engine and the aircraft
crashes causing heavy loss of life. Misplaced
sympathy can be a great evil (see Navinchandra
Shakerchand Shah v. Manager, Ahmedabad Coop.
Department Stores Ltd. [(1978) 19 Guj LR 108,
120]). But in any case, failure to attain the
highest standard of efficiency in performance of
duty permitting an inference of negligence would
not constitute misconduct nor for the purpose of
WP(C) 5498/2021 Page 79 of 88

Rule 3 of the Conduct Rules as would indicate lack
of devotion to duty.

12. The High Court was of the opinion that
misconduct in the context of disciplinary
proceeding means misbehaviour involving some form
of guilty mind or mens rea. We find it difficult to
subscribe to this view because gross or habitual
negligence in performance of duty may not involve
mens rea but may still constitute misconduct for
disciplinary proceedings.‛

23.3. This court has also carefully considered the submission of Mr.
Saikia, the learned Advocate General, Assam in this regard and also gone
through the decision referred by him in the case of
M.M. Malhotra
In the said decision, Hon‟ble Supreme Court has dealt with the
(supra).
issue of misconduct in the following para:-
‚16. The scheme of the disciplinary rules in general
is to identify the conduct which is made
punishable and then to provide for the various
punishments which may be imposed for the acts
which are inconsistent with such conduct. For
example, the Central Civil Services (Conduct)
Rules, 1964 contain provisions which pertain to
the standards of conduct which government
servants (within the meaning of those rules) are
to follow whereas the Central Civil Services
(Classification, Control and Appeal) Rules, 1965
provide the punishment or penalties which may be
imposed for misconduct. The Conduct Rules and the
Rules for punishment may be provided in separate
rules or combined into one. Moreover, there are a
host of departmental instructions which
elucidate, amplify and provide guidelines
regarding the conduct of the employees.
WP(C) 5498/2021 Page 80 of 88

17. The range of activities which may amount to acts
which are inconsistent with the interest of
public service and not befitting the status,
position and dignity of a public servant are so
varied that it would be impossible for the
employer to exhaustively enumerate such acts and
treat the categories of misconduct as closed. It
has, therefore, to be noted that the word
‚misconduct‛ is not capable of precise
definition. But at the same time though incapable
of precise definition, the word ‚misconduct‛ on
reflection receives its connotation from the
context, the delinquency in performance and its
effect on the discipline and the nature of the
duty. The act complained of must bear a forbidden
quality or character and its ambit has to be
construed with reference to the subject-matter
and the context wherein the term occurs, having
regard to the scope of the statute and the public

purpose it seeks to serve.
18. In Union of India v. Harjeet Singh Sandhu [(2001)
5 SCC 593 : 2001 SCC (L&S) 891] in the background
of Rule 14 of the Army Rules, it was held that
any wrongful act or any act of delinquency which
may or may not involve moral turpitude would be
‚misconduct‛ under Rule 14.
19. In Baldev Singh Gandhi v. State of Punjab [(2002)
3 SCC 667] it was held that the expression
‚misconduct‛ means unlawful behaviour,
misfeasance, wrong conduct, misdemeanour, etc.
20. Similarly, in State of Punjab v. Ram Singh Ex.
Constable [(1992) 4 SCC 54 : 1992 SCC (L&S) 793 :
AIR 1992 SC 2188] it was held that the term
‚misconduct‛ may involve moral turpitude. It must
be improper or wrong behaviour, unlawful
behaviour, wilful in character, forbidden act, a
transgression of established and definite rule of
WP(C) 5498/2021 Page 81 of 88

action or code of conduct but not mere error of
judgment, carelessness or negligence in
performance of the duty; the act complained of
bears forbidden quality or character.
21. ‚Misconduct‛ as stated in Batt's Law of Master
and Servant (4th Edn. at p. 63) ‚comprised
positive acts and not mere neglects or failures‛.
The definition of the word as given
in Ballentine's Law Dictionary (148th Edn.) is:‚A
transgression of some established and definite
rule of action, where no discretion is left
except what necessity may demand, it is a
violation of definite law, a forbidden act. It
differs from carelessness.‛
23.4. In the case in hand, a careful perusal of the Article of charges
indicates that what misconduct the petitioner has committed, is silent. It
was simply stated that as violation of Rule 4 of the Gauhati University
Teachers‟ Conduct Rules, 1984, nothing more and nothing less.
23.5. However, in view of the decision of Hon‟ble Supreme Court in the
case of A.L. Kalra v. Project and Equipment Corporation of
India Ltd. , reported in (1984) 3 SCC 316 , where misconduct, when
proved, entails penal consequences, it is obligatory on the part of the
employer, to specify and if necessary to define it with precision and
accuracy, so that any ex post facto interpretation of some incident, may
not be camouflaged as misconduct.
23.6. Indisputably, the alleged misconduct entailed penal consequence
in the case of the petitioner. However, misconduct has not been defined,
though an obligation is casted upon the respondent authority to specify
and if necessary to define the same with precision, in view of the decision
of Hon‟ble Supreme Court in the case of And as
A.L. Kalra (supra).
WP(C) 5498/2021 Page 82 of 88

discussed herein above, nothing is mentioned in the Articles of Charges,
except, however, mentioning about violation of Gauhati Universities
Teachers Conduct Rules, 1984, more particularly Rule 4. Notably Rule 4
of the Gauhati Universities Teachers Conduct Rules, 1984, read as
under:-
4. A teacher shall at all time-

(i) maintain absolute integrity,
(ii) maintain devotion to duty,
(iii) be present in the University and make himself available to
students and Head of the Department on each working
day. This will be applicable to a whole-time teacher only,
(iv) do nothing which is unbecoming of a University Teacher,
23.7. However, in Rule 10 of the said Rules, it is provided that following
lapses will shall constitute improper conduct on the part of the teachers:-
(i) Failure to perform his academic duties such as preparation
lectures, demonstrations, assessment, guidance, invigi19-
tion etc.
(ii) Gross partiality and deliberate over-marking or under
marking in the assessment of students.
(iii) Inciting students against other Students, teachers or the
administration. (This will not interfere with the right of a
teacher to express his difference on principles in seminars
or other academic discussions whore students are
present).
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(iv) Raising questions of caste, creed, religion race or sex in
matters relating to the affairs of the University or any of its
departments or colleges.
(v) Refusal to carry out the decisions and orders of appropriate
administrative/Academic bodies end or functionaries of the
University. This will not inhibit his right to express his
difference with their policies or decision.

23.8. However, in the case in hand there is no allegation of improper
conduct on the part of the petitioner herein. And in respect of Rule 4,
there is no allegation of not maintaining absolute integrity by the
petitioner. Also there is no allegation of not remaining present in the
University and make himself available to students and Head of the
Department on each working day. In respect of other two i.e. maintain
devotion to duty, do nothing which is unbecoming of a University
Teacher, this court is of the considered opinion that running of 21
unapproved courses in the GUIDOL in its own version of the respondent
University, as per the letter of the then Registrar I/C of the Gauhati
University dated 18.01.2019, is a bona-fide error of judgment, which in
view of decision of Hon‟ble Supreme Court in the case of
J. Ahmed
,
(supra) State of Punjab and others v. Ram Singh Ex.
reported in cannot be termed as
Constable (1992) 4 SCC 54,
misconduct.

23.9. However, neither the disciplinary authority nor the Inquiry Officer
had considered the letter of the then Registrar I/C of the Gauhati
University dated 18.01.2019, where running of unapproved courses by
GUIDOL was said to be of bona-fide error of judgment. And in that view
WP(C) 5498/2021 Page 84 of 88

of the matter the submission of Mr. Saikia cannot be concurred with. On
the other hand, this court finds sufficient force in the submission of Mr.
Choudhury, learned counsel for the petitioner and record concurrence to
the same.
The Issue of Estoppels vis-à-vis the law:-
24. It is being argued by Mr. Saikia, learned Advocate General, Assam
that during the course of enquiry stated that he has full confidence upon
the Inquiry Officer which is noted in the Inquiry Officer itself, and now he
cannot turn around to contend that Inquiry Officer is bias and he is
barred from raising such issue because of the principle of estoppels.
24.1. The counter submission is of Mr. Choudhury learned counsel for
the petitioner, is that the principle of estoppels cannot override the law.
Merely, because the petitioner has reposed faith the same cannot stands
in his way to challenge a perverse finding of the Inquiry Officer. In
support of his submission Mr. Choudhury has referred to decision of
Hon‟ble Supreme Court in Krishna Rai vs. Banars Hindu
University, Through Registrars and Ors., reported in 2022
LiveLaw(SC) 553.
24.2. This court has considered the submission of learned counsel for
both the parties and also gone through the decision of in Krishna Rai
(dead) Through LRS. & Ors. (supra) and find sufficient force in the
submission of Mr. Choudhury and the decision referred by him also
fortified his submission. It is well settled in the said case that the principle
of estoppels cannot override the law. When the Assam Services and
Discipline and Appeal) Rule 1964, provides for conducting the inquiry
against a government servant in a particular manner, then the same has
WP(C) 5498/2021 Page 85 of 88

to be conducted in that particular manner only. If it was not done in that
manner and thereby violates the principles of natural justice, it is always
open to the petitioner to challenge the same. The principle of estoppels
would not come into assistance of the respondent herein.
Conclusion:-
25. Thus, to recapitulate on the following counts, the impugned order
dated 06.10.2021, is liable to be interfered with:-
(i) The Inquiry Officer, and also the Presenting
Officer, both were appointed before the charge
sheet being served upon the petitioner, and
thereby Rule 9 (1), (2) and (4) of the Assam
Services (Discipline And Appeal) Rules 1964 are
violated.
(ii) The Charge Sheet, dated 22.06.2021, was not
placed before the disciplinary authority, and
also not approved by the Disciplinary Authority
and thereby Rule 9(2) of the 1964 Rule, is
violated and this rendered the consequential
proceeding vitiated.
(iii) The reply dated 28.06.2021, filed by the
petitioner, was not placed before the
disciplinary authority, before appointing the
Inquiry Officer, as required by Rule 9(4) of
1964 Rules, which is a pari-materia provision
with Rule 14(5)(a) of the CCS (CCA) Rule, 1965
and as held in the case of B.V. Gopinath
(supra), Rule 14(5)(a) of CCS(CCA) Rule, is
mandatory, and as a logical corollary, it can
be held that Rule 9(4) of the Assam Services
Discipline and Appeal Rules 1964 is also
mandatory.
WP(C) 5498/2021 Page 86 of 88

(iv) The petitioner was singled out, though the
Commission had recommended action against the
Vice Chancellors, Directors and Registrars and
as such the approach of the respondent
authorities is perverse.
(v) When there is contravention of the principle of
natural justice, the court has the authority to
review the disciplinary proceeding by
exercising its power under Article 226 of the
Constitution of India.
(vi) Error of judgment cannot be termed as
misconduct.
(vii) The principle of estoppels cannot override the
law.
(viii) Enquiry report is perverse, as the observation
made by the Inquiry Officer in the report, in
respect of Article of Charge No. VI, is not
supported by any statement of allegation, as
required under Rule 9(2) of the Rule 1964,
besides, some of the observation made by the
Inquiry Officer in respect of the Article of
Charges also not based upon statement of
allegation or upon evidence, and also in
respect of the observation, that having been
dissatisfied with the reply submitted by the
petitioner, the Executive Council has decided
to draw up disciplinary proceeding against the
petitioner, is not born out of the record.

26. In the result, this Court finds sufficient merit in this petition and
accordingly, the same stands allowed. The impugned order dated
06.10.2021, stands set aside and quashed as the same failed withstand
the legal scrutiny. Consequently, the petitioner shall be reinstated to his
WP(C) 5498/2021 Page 87 of 88

post, if in the meantime not superannuated from the service, with all
consequential service benefits, which the petitioner is legally entitled to.
27. The parties have to bear their own costs.





Comparing Assistant


Sd/-
Robin Phukan
JUDGE

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