Manash Kumar Sharmah Vs the State of Assam and 3 Ors.

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GAHC010215102019

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2025:GAU-AS:7609

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/6661/2019

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MANASH KUMAR SHARMAH

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S/O DIMBESWAR SHARMA, ASSTT. PROFESSOR, DEPTT. OF PHYSICS, GARGAON COLLEGE, P.O. SIMULUGURI, DIST SIBASAGAR, ASSAM, PERMANENT R/O ALOK NAGAR, BISHNU RABHA PATH, HOUSE NO. 30, P.S. BASISTHA, DIST. KAMRUP, ASSAM, PIN-781029

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VERSUS

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THE STATE OF ASSAM AND 3 ORS.

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REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, HIGHER EDUCATION DEPTT. DISPUR, GUWAHATI-6

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2:THE DIRECTOR OF HIGHER EDUCATION ASSAM KAHILIPARA GUWAHATI-19

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3:THE CHAIRMAN GOVERNING BODY OF GARGAON COLLEGE P.O. SIMALGURI DIST. SIBSAGAR ASSAM PIN-785686

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4:THE PRINCIPAL OF GARGAON COLLEGE P.O. SIMALGURI DIST. SIBSAGAR ASSAM, PIN-78568

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B E F O R E

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Hon’ble MR. JUSTICE SANJAY KUMAR MEDHI

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Advocate for the petitioner : Ms. S. B. Choudhury, Advocate. Advocates for respondents : Shri S. Das, SC, Higher Education.

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Date of hearing : 10.06.2025 Date of judgment : 10.06.2025

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JUDGMENT & ORDER

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The validity and legality of an order dated 26.12.2017 issued by the Director of Higher Education, Assam by which the petitioner has been removed from service is the subject matter of challenge. The said order was followed by an order dated 30.12.2017, issued by the Principal of the concerned College releasing the petitioner from service.

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2. As per the facts projected, the petitioner was serving as an Assistant Professor, Department of Physics, Gargaon College in the district of Sivasagar. While in service, the petitioner was served with a notice dated 16.01.2017 whereby he was informed about his suspension from service with immediate effect as per order passed by the Director of Higher Education. The petitioner was also directed to show-cause under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 (hereinafter 1964 Rules) read with Article 311 of the Constitution of India as to why the penalties prescribed in the said Rules should not be inflicted upon him. The notice contained 5 nos. of

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Charges and 9 nos. of Sources of Allegation. It appears that the petitioner had shown cause and thereafter an Enquiry Committee was constituted with 3 members amongst whom one was the Chairman. The Enquiry Committee had conducted proceedings and thereafter submitted a report. The said report was forwarded by the Director of Higher Education vide communication dated 21.10.2017 to the petitioner in order to seek his response.

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3. The petitioner had accordingly submitted his response vide communication dated 16.11.2017 wherein he had also hinted upon his ailment. However, vide the impugned order dated 26.12.2017, the petitioner has been removed from service with immediate effect which is the subject matter of challenge.

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4. I have heard Ms. S. B. Choudhury, learned counsel for the petitioner. I have also heard Shri S. Das, learned Standing Counsel, Higher Education Department, who has also produced certain records from the Department.

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5. The petitioner has structured the present challenge both on the ground of procedural illegality and proportionality of the punishment. Ms. Choudhury, the learned counsel has submitted that the disciplinary authority cannot be an officer subordinate to the appointing authority. In the instant case, the petitioner was holding the post of Assistant Professor and was appointed by the Director of Higher Education and therefore the initiation of the proceeding vide a Show-Cause Notice issued by the Principal is non est in law. She has submitted that though the suspension order was passed by the Director of Higher Education, the Show-Cause Notice could not have been issued by any authority subordinate to the disciplinary authority. She further submits that there was gross violation of the principles of nature justice in the disciplinary proceeding which was conducted by a 3 Member Committee, inasmuch as the

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petitioner was not afforded any defence representative. It is also contended that the response made by the petitioner was not given due consideration. The learned counsel for the petitioner has also assailed the penalty on the grounds of proportionalit y. It is submitted that the charges were of minor in nature whereas a major penalty of removal from service has been passed which is grossly disproportionate and therefore interference of this Court is called for.

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6. In support of her submissions, the learned counsel for the petitioner has relied upon the case of Girish Bhushan Goyal Vs Bhel and Anr. reported in (2014) 1 SCC 82 . In the said case, the Hon’ble Supreme Court has dealt with the aspect of proportionality/quantum of punishment vis-à-vis the nature of charges.

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7. Per contra, Shri Das, the learned Standing Counsel has submitted that the charges involved cannot be said to be minor in nature as the same is directly connected with the nature of the job entrusted to the petitioner. It is submitted that there were specific charges that the petitioner was very irregular in attending the classes and did not show enthusiasm. It is also the charge that he was not cooperative with the Departmental activities. He has refuted that there has been any violation of the principles of natural justice in conduct of the disciplinary proceeding, as due opportunity was granted to the petitioner which he fully availed. He has also submitted that all the relevant factors were taken into consideration and even the report of the Enquiry Committee was forwarded to the petitioner to solicit his response and only thereafter, the impugned order of penalty has been imposed. He submits that there being no substantial irregularity and the penalty inflicted being prescribed in the 1964 Rules, no interference would be called for. Shri Das, the learned Standing Counsel has

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however fairly submitted that though the suspension order was issued by the Director of Higher Education, it is not in dispute that the Show-Cause Notice was issued by the Principal of the College.

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8. In support of his submission, the learned Standing Counsel has relied upon the case of Inspector of Panchayats and District Collector, Salem Vs S. Arichandran & Ors. reported in AIR 2022 SC 4611 . He has relied upon the observations made by the Hon’ble Supreme Court in paragraph 7 of the judgment which reads as follows:-

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“7. In view of the above and for the reasons stated above, present appeal succeeds in part. The impugned judgment(s) and order(s) passed by the Division Bench as well as learned Single Judge of the High Court ordering reinstatement with back wages are hereby quashed and set aside. The case concerned is remitted to the Disciplinary Authority to conduct the inquiry from the point that it stood vitiated and to conclude the same after furnishing a copy of the Inquiry Officer's Report and after giving an opportunity to the delinquent to submit his comments on the Inquiry Officer's Report. The aforesaid exercise be completed within a period of six months from today. However, at the same time, considering the fact that earlier also the dismissal order was set aside on the ground that the same was found to be in breach of principles of Natural Justice and the matter was remitted back and thereafter again when the fresh order of dismissal has been passed, which is again found to be in violation of principles of Natural Justice and again the matter is to be remitted back, we allow the present appeal with costs to be paid by the appellant to the respondent-delinquent quantified at Rs. 50,000/, which shall be paid to the respondent - delinquent within a period of six weeks from today.”

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9 . The rival submissions have been duly considered and the materials placed before this Court, including the original records have been carefully perused.

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10. From the records, it appears that the initial order of suspension was indeed

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issued by the Director of Higher Education, who is the Appointing Authority. However, the Show-Cause Notice was issued by the Principal of the College. It is not in dispute that the Principal of the College is not the Appointing Authority of the petitioner and therefore, as per the Rules holding the field he could not have acted as the disciplinary authority. In fact the impugned order dated 26.12.2017 has not been issued by the Principal but by the Director of Higher Education, who is the disciplinary authority. Therefore, it is required to be examined as to the authority of the Principal to issue the Show-Cause Notice which is the foundation of the disciplinary proceeding.

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11 . The Rules holding the field having clearly laid down that it is only the Appointing Authority, who can be the disciplinary authority in a present proceeding, it clearly appears that there is a jurisdictional error and initiation of the present proceeding was done by an authority who has not been vested with such power by law. In view of the said finding, it would not be required for this Court to deal with the other submissions advanced by the learned counsel for the petitioner regarding other procedural irregularity and the aspect of proportionality.

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12 . Though the learned Standing Counsel of the Department has relied upon the case of S. Arichandran (supra), the facts of the said case is clearly distinguishable inasmuch as the procedural irregularity which was noted by the Hon’ble Apex Court was mainly on the breach of principles of natural justice whereas in the instant case, the illegality is at the foundation of the proceeding which has been noted above.

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13 . This Court is of the unambiguous opinion that the impugned order dated

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26.12.2017 is a culmination of a proceeding which was illegally initiated is not sustainable.

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14 . In view of the same, the impugned order dated 26.12.2017 is set aside and consequently, the petitioner is directed to be re-instated in service. It is, however, made clear that if the authorities so desire, a proceeding can be initiated, which however has to be done strictly in accordance with law.

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15 . The records are handed over back to Shri Das, learned Standing Counsel.

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Manash Kumar Sharmah v. the State of Assam and 3 Ors.

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Manash Kumar Sharmah v. the State of Assam and 3 Ors.

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