Gauhati High Court
Page No.# 1/8 vs The Union Of India And Anr on 31 March, 2026
Page No.# 1/8
GAHC010125322022
2026:GAU-AS:4631
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4362/2022
SUNANDA DAS @ SUNENDRA DAS
S/O- KAMINI DAS , R/O- VILLAGE- CHAIBARI,
P.S- PATACHARKUCHI, DIST- BARPETA, ASSAM
VERSUS
THE UNION OF INDIA AND ANR
REP. BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF
HOME AFFAIRS, NEW DELHI, PIN-110001
2:THE DIRECTOR
OF CENSUS OPERATIONS
ASSAM
GUWAHAT
Advocate for the Petitioner : MR S BORTHAKUR, MS. P BORAH
Advocate for the Respondent : ASSTT.S.G.I., MR. S K MEDHI (r-1)
:::BEFORE:::
HON’BLE MR. JUSTICE KARDAK ETE
Date on which judgment is reserved : N/A
Date of pronouncement of judgment : 31.03.2026
Whether the pronouncement is of the
Operative part of the judgment : N/A
Whether the full judgment has been
Pronounced : Yes
Page No.# 2/8Judgment & Order (Oral)
Heard Mr. S. Borthakur, learned counsel for the petitioner. Also heard Mr. S.
K. Medhi, learned CGC for the respondents.
2. The challenge made in this petition is to the order dated 01.06.2011,
passed by the Director of Census Operations, Assam, by which the petitioner
has been dismissed from service on the ground of conviction under Sections
448/304 Part-I/325 of IPC under Clause (a) of second proviso to Article 311 (2)
of the Constitution of India and The Central Civil Service (Class, Control &
Appeal) Rules, 1965 [hereinafter referred to as the CCS (CCA) Rules, 1965] on
the basis of the judgment and order passed by the Sessions Court in Sessions
Case No. 57(K)/2007. The petitioner is also aggrieved by the non-consideration
of his appeal dated 01.06.2020 for reinstatement in the service by recalling the
impugned order dated 01.06.2011 on the ground that the High Court has set
aside the conviction and sentence of the petitioner under Sections 448/304 Part-
I IPC and affirmed the conviction under Section 325 IPC and after completion of
the sentence, he has been released.
3. The petitioner was appointed as Chowkidar in the Directorate of Census
Operations, Assam, in the year 2000 and his service was confirmed after
completion of 2 years of probation period.
4. Shorn of unnecessary details, the case of the petitioner is that on
08.07.2004, an FIR was lodged against the petitioner pursuant to which a case
was registered being Dispur P. S. Case No. 598/2004 and after completion of
investigation, a Charge Sheet was filed against the petitioner under Sections
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448/325/302 IPC. The petitioner was arrested on 16.06.2005 and subsequently,
granted bail on 13.09.2005. On his arrest, the petitioner was placed under
suspension.
5. On conclusion of the trial, the learned Trial Court convicted the petitioner in
Sessions Case No. 57(K)/2007 under Sections 448/304 Part-I/325 of IPC and to
undergo Simple Imprisonment for 2 (two) months and to pay a fine of Rs. 500/-
in default Simple Imprisonment for another 1 (one) month for the offence under
Section 448 IPC, to undergo Rigorous Imprisonment for 10 years and to pay a
fine of Rs. 5,000/- in default Rigorous Imprisonment for another 6 (six) months
for the offence under Section 304 Part-I of IPC, and to undergo Rigorous
Imprisonment for 3 years and to pay a fine of Rs. 2,000/- in default Rigorous
Imprisonment for another 3 (three) months for the offence under Section 325 of
IPC.
6. The petitioner filed a criminal appeal, being Criminal Appeal No. 114/2010,
before this Court. Initially, the Court stayed the operation of the judgment and
order passed by the learned Sessions Judge. However, the miscellaneous case in
which the stay was granted was subsequently dismissed.
7. The respondent authority, vide impugned order dated 01.06.2011,
dismissed the petitioner from service on the basis of the judgment and order
dated 26.05.2010 passed in Sessions Case No. 57(K)/2007, as the petitioner
was convicted and sentenced to undergo Rigorous Imprisonment under Sections
304 Part-I and 325 of the IPC and Simple Imprisonment for the offence under
Section 448 IPC, with default stipulation.
8. Vide an order dated 03.03.2020, this Court disposed of Criminal Appeal No.
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114/2010, whereby the conviction of the petitioner under Section 304 Part-I of
the IPC has been set aside, while confirming the conviction and sentence under
Section 325 of the IPC.
9. Thereafter, the petitioner filed an appeal on 01.06.2020 before the Director
of Census Operation, Assam, for modification or cancellation of the impugned
order dated 01.06.2011, as the petitioner was dismissed from service under
Article 311(2) of the Constitution of India and the CCS (CCA) Rules, 1965, on
the basis of the conviction and sentence of the petitioner vide judgment and
order dated 26.05.2010 passed by the Sessions Judge, Kamrup, Guwahati.
10. Mr. S. Borthakur, learned counsel for the petitioner, submits that the
respondent authorities have not applied their mind, as they have not followed
the provisions under Rule 19 of the CCS (CCA) Rules, 1965. He has relied on the
judgments of the Hon’ble Supreme Court in Union of India vs. Tulsiram
Patel, reported in (1985) 3 SCC 398 and Union of India vs. Sunil Kumar
Supra, reported in (2001) 3 SCC 414, to submit that the principles of law laid
down in the above judgments were not followed while dismissing the petitioner
from service. He further submits that the respondent authorities failed to
exercise the power conferred on them, by not considering the appeal filed by
the petitioner after his conviction and sentence was modified by the Appellate
Court.
11. I have considered the submissions of the learned counsel for the parties
and also perused the materials available on record.
12. Article 311 of the Constitution of India lays down certain conditions for the
dismissal, removal, or reduction in rank of persons employed in civil capacities
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under the Union or State Governments. It prescribes, among other things, that
no such person shall be dismissed, removed, or reduced in rank except after an
inquiry. However, there are exceptions to this requirement, one of which is when
a person is dismissed, removed, or reduced in rank on the ground of conduct
which has led to his conviction on a criminal charge.
13. Rule 19 of the CCS (CCA) Rules, 1965 provides a special provision in
certain cases, which lays down that where any penalty is imposed on a
government servant on the ground of conduct which has led to his conviction on
a criminal charge, or where the disciplinary authority is satisfied, for reasons to
be recorded in writing, that it is not reasonably practicable to hold an inquiry in
the manner provided in the Rules, the disciplinary authority may consider the
circumstances of the case and make such orders as it deems fit, provided that
the government servant may be given an opportunity to make a representation
on the penalty proposed to be imposed before any order is made in a case
where a penalty is imposed on the ground of conduct leading to a criminal
conviction.
14. In the case of Tulsiram Patel (supra), the Hon’ble Supreme Court, while
dealing with Article 311 of the Constitution, has held as under:
“127. Not much remains to be said about clause (a) of the second proviso to
Article 311(2). To recapitulate briefly, where a disciplinary authority comes to
know that a government servant has been convicted on a criminal charge, it
must consider whether his conduct which has led to his conviction was such as
warrants the imposition of a penalty and, if so, what that penalty should be. For
that purpose it will have to peruse the judgment of the criminal court and
consider all the facts and circumstances of the case and the various factors set
out in Challappan’s case. This, however, has to be done by it ex parte and by
itself. Once the disciplinary authority reaches the conclusion that the
government servant’s conduct was such as to require his dismissal or removal
Page No.# 6/8from service or reduction in rank he must decide which of these three penalties
should be imposed on him. This too it has to do by itself and without hearing the
concerned government servant by reason of the exclusionary effect of the
second proviso. The disciplinary authority must, however, bear in mind that a
conviction on a criminal charge does not automatically entail dismissal, removal
or reduction in rank of the concerned government servant. Having decided
which of these three penalties is required to be imposed, he has to pass the
requisite order. A government servant who is aggrieved by the penalty imposed
can agitate in appeal, revision or review, as the case may be, that the penalty
was too severe or excessive and not warranted by the facts and circumstances
of the case. If it is his case that he is not the government servant who has been
in fact convicted, he can also agitate this question in appeal, revision or review.
If he fails in all the departmental remedies and still wants to pursue the matter,
he can invoke the court’s power of judicial review subject to the court permitting
it. If the court finds that he was not in fact the person convicted, it will strike
down the impugned order and order him to be reinstated in service. Where the
court finds that the penalty imposed by the impugned order is arbitrary or
grossly excessive or out of all proportion to the offence committed or not
warranted by the facts and circumstances of the case or the requirements of
that particular government service the court will also strike down the impugned
order. Thus, in Shankar Dass v. Union of India and another, [1985] 2 S.C.C. 358,
this Court set aside the impugned order of penalty on the ground that the
penalty of dismissal from service imposed upon the appellant was whimsical
and ordered his reinstatement in service with full back wages. It is, however, not
necessary that the Court should always order reinstatement. The Court can
instead substitute a penalty which in its opinion would be just and proper in the
circumstances of the case.”
15. In Sunil Kumar Sakar (supra), the Hon’ble Supreme Court, having
considered that the action in that case was taken under Rule 19 of the CCS
(CCA) Rules, 1965, observed that Rule 19 is in conformity with the disciplinary
procedure contemplated under Article 311(2)(a) of the Constitution, as it
provides a summary procedure to take disciplinary action against a government
servant who has already been convicted in criminal proceedings. The very
foundation of imposing punishment under Rule 19 is that there should be a prior
conviction on a criminal charge.
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16. The coordinate bench of this Court, vide judgment and order dated
15.03.2024 in the case of Ponaram Borah vs. The State of Assam & 5 Ors.,
WP(C) No. 5056 of 2015, after considering the judgment of the Hon’ble
Supreme Court in Tulsiram Patel (supra), has succinctly culled out the
following propositions as laid down by the Hon’ble Supreme Court, which are as
under:
“…I. The consideration to be made by the employer, while taking a decision to
remove, dismiss or to reduce in rank an employer is to apply its mind and
consider the entire circumstances of the case in order to decide the nature and
extent of penalty to be imposed on the delinquent employee on his conviction on
a criminal charge.
II. Such provision confers powers on disciplinary authority to decide whether in
the fact and circumstances of a particular case, what penalty, if at all, should be
imposed on the delinquent employee.
III. The conviction of the delinquent employee would be taken as sufficient proof
of misconduct and then the authority will have to embark upon and determine
the nature and extent of the penalty to be imposed on the delinquent and it is the
discretion of the disciplinary authority, in a given case when it may even refuse to
impose any penalty in spite of conviction.
IV. Where a situation envisages one of the three clauses of the Second proviso to
Article 311 (2) or an analogous service rule arises, it is not mandatory that major
penalty of dismissal, removal or reduction in rank should always be imposed
upon the concerned Government servant.
V. The penalty which can be imposed may be some other major penalty or even a
minor penalty, depending upon the fact and circumstances of the each case.”
17. In the present case, the petitioner was initially convicted under Sections
448, 304 Part-I, and 325 of the IPC. However, the appellate court has set aside
the convictions under Sections 448 and 304 Part-I, thereby reversing the
judgment and order of the learned Sessions Court. The conviction and sentence
under Section 325 of the IPC, however, has been upheld. The petitioner has
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already undergone the sentence under Section 325 IPC and has been released
from jail.
18. The impugned order was passed by the respondent authority prior to the
judgment of the appellate Court, whereby the petitioner was dismissed from
service in exercise of powers under Article 311(2)(a) of the Constitution and
Rule 19 of the CCS (CCA) Rules, 1965. The petitioner subsequently filed an
appeal on 01.06.2020, following the judgment of the appellate Court, due to the
changed circumstances, which is still pending consideration.
19. In such view of the matter, the respondent authorities are required to
consider the case of the petitioner and pass a reasoned and speaking order,
taking into account the principles of law laid down by the Hon’ble Supreme
Court.
20. Accordingly, this writ petition is disposed of with a direction to the
respondent authority, i.e., the Director of Census Operation, Assam, to dispose
of the appeal dated 01.06.2020 filed by the petitioner and to pass a reasoned
and speaking order in accordance with the principles of law laid down by the
Hon’ble Supreme Court. The exercise as directed herein shall be completed
within 3 (three) months from the date of receipt of the certified copy of this
order.
21. The writ petition stands disposed of in the terms above.
JUDGE
Comparing Assistant
