Page No.# 1/14 GAHC010275902024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WA/102/2025 BHARAT KALITA S/O SRI LAKSHI RAM KALITA, R/O VILL- MAJ PATHORI, P.S.-SADAR, DIST- NAGAON (ASSAM), PIN-782003 VERSUS THE STATE OF ASSAM AND3 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY, JUDICIAL DEPARTMENT, GOVERNMENT OF ASSAM, DISPUR, GUWAHATI-781006 2:THE GAUHATI HIGH COURT REPRESENTED BY THE REGISTRAR GENERAL GAUHATI HIGH COURT MG ROAD GUWAHATI-781001 3:THE REGISTRAR GENERAL GAUHATI HIGH COURT MG ROAD GUWAHATI-781001 4:THE DISTRICT AND SESSIONS JUDGE KARBI ANGLONG DIPHU P.S. AND P.O.-DIPHU DIST- KARBI ANGLONG ASSAM PIN-78246 Advocate for the Petitioner : MR. A BHATTACHARYA, MS. K MALAKAR,MR. A BHATTACHARJEE,MS A MAJUMDER,MR S PAUL Page No.# 2/14 Advocate for the Respondent : , SC, GHC BEFORE HONOURABLE THE CHIEF JUSTICE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR Date of Hearing : 30.04.2025 Date of Judgment: 30.04.2025 JUDGMENT & ORDER (ORAL) (N. Unni Krishnan Nair. J) Heard Ms. K. Malakar, learned counsel appearing on behalf of the appellant. Also heard Mr. H. K. Das, learned Standing Counsel, Gauhati High Court, appearing for the respondent nos. 2, 3 & 4. 2. The present Intra Court appeal has been instituted, presenting a challenge to an order dated 24.09.2024, passed by the learned Single Judge in WP(C) No. 6758/2022, dismissing the same. 3. The facts in brief requisite for adjudication of the issue arising in the present proceeding is noticed as under: - The appellant herein, who, at the relevant point of time was working as a Jarikarak (Process Server) in the establishment of the Sub-Divisional Judicial Magistrate (M), Bokajan, Karbi Anglong, was detailed on 14.08.2021 for doing preparatory works for celebrating Independence Day the next day in the said establishment. On 14.08.2021, an altercation having occasioned between the appellant and one Himangshu Sarma, an L.D.A working in the same establishment, a complaint came to be lodged against the appellant before the District & Sessions Judge, Karbi Anglong by said Himangshu Sarma on 16.08.2021. The District & Sessions Judge, Karbi Anglong, on receipt of the said Page No.# 3/14 complaint and noticing the allegation leveled therein against the appellant, proceeded to seek an explanation in the matter from the appellant vide issuance of a show-cause notice dated 16.08.2021. The appellant, thereafter, on 21.08.2021, submitted his explanation to the said show-cause notice and therein, put forward his stand in the matter. Being not satisfied with the clarification given by the appellant in the matter, the District & Sessions Judge, Karbi Anglong, proceeded to institute a departmental proceeding against the appellant by issuing a show-cause notice dated 18.09.2021, invoking the provisions of Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964.The appellant herein, basing on the allegation leveled against him in the said show-cause notice was charged of having committed misconduct and failure to maintain discipline, proprietary and integrity in the office. He was also charged of acted in a manner unbecoming of a Government servant, violating the established norms and subverting the discipline in the office. The petitioner, on receipt of the said show-cause notice dated 18.09.2021, submitted his reply thereto on 04.10.2021. The appellant, in his reply set out his clarifications with regard to the act alleged of him in the show- cause notice and thereafter, sought apology for the altercation he had with said Himangshu Sarma and, had undertaken that he would control his anger and would not violate office decorum in future. The Disciplinary Authority of the appellant not being satisfied with the contentions raised by the appellant in his show-cause reply, proceeded to direct for holding of an enquiry against the appellant in the matter and appointed a Enquiry Officer along with a Presenting Officer for the purpose. The Enquiry Officer, on conclusion of the enquiry, proceeded to submit his enquiry report on 11.03.2022 and therein, concluded that the appellant was found to be guilty of the charges leveled against him. The said enquiry report, on being forwarded to Page No.# 4/14 the appellant herein, he had vide his representation dated 07.05.2022, responded to the same. Thereafter, the Disciplinary Authority of the appellant, on consideration of the materials coming on record was pleased vide order dated 20.05.2022 to accept the findings recorded by the Enquiry Officer in the said enquiry report and proceeded to impose a punishment upon the appellant of withholding of 3(three) annual increments w.e.f., the date of the order i.e., w.e.f., 20.05.2022. The petitioner, being aggrieved with the imposition of the said penalty upon him by the Disciplinary Authority, vide the order dated 20.05.2022, had approached the writ Court by way of instituting WP(C) No. 6758/2022. The learned Single Judge, upon consideration of the issues arising in the said writ petition and also hearing the parties to the proceeding was pleased vide order dated 24.09.2024 to dismiss the writ petition and thereby, upholding the order passed by the Disciplinary Authority imposing penalty upon the petitioner herein. Being aggrieved, the appellant has instituted the present proceeding. 4. The order dated 24.09.2024, passed by the learned Single Judge in WP(C) No. 6758/2022 being under challenge, the operative portion thereof is extracted herein below: - “12. It is not disputed by the parties that there was no procedural lapse conducting the disciplinary proceedings. With regard to the finding of guilt against the charge framed against the petitioner by the Enquiry Officer and the Disciplinary Authority, it would be profitable to refer to the decision of the Hon’ble Supreme Court in the case of B.C. Chaturvedi Vs. Union of India and Ors., reported in (1995) 6 SCC 749, where the Supreme Court has held that the Disciplinary Authority is the sole Judge of facts. In the present case, it is not in dispute that the petitioner had misbehaved with the complainant. As such, this Court is of the view that there is no reason for this Court to Page No.# 5/14 come to any finding that there was any infirmity with the decision of the Enquiry Officer and the Disciplinary Authority, on coming to a finding that the petitioner was guilty of misconduct. 13. In the case of State Bank of India Vs. A.G.D. Reddy, reported in 2023 SCC OnLine SC 1064, the Supreme Court has held in para 42 as follows:- ` “42. It is now well settled that the scope of judicial review against a departmental enquiry proceeding is very limited. It is not in the nature of an appeal and a review on merits of the decision is not permissible. The scope of the enquiry is to examine whether the decision-making process is legitimate and to ensure that the findings are not bereft of any evidence. If the records reveal that the findings are based on some evidence, it is not the function of the court in a judicial review to re- appreciate the same and arrive at an independent finding on the evidence. This lakshman rekha has been recognized and reiterated in a long line of judgments of this Court.“ 14. With regard to the submission made by the petitioner’s counsel that the punishment/penalty imposed upon the petitioner was disproportionate to the offence, it would be profitable to refer to the decision of the Hon’ble Supreme Court in the case of State of Uttar Pradesh and Ors. Vs. J.P. Saraswat, reported in (2011) 4 SCC 545, wherein the Supreme Court has held that judicial review is permissible in very rare cases where the punishment is so disproportionate to the established charge that it would appear unconscionable and actuated by malice. In the present case, there is no averment to the effect that the penalty was actuated by malice. The penalty imposed upon the petitioner is a minor penalty and keeping in view the fact that the petitioner has been found to be guilty of misconduct, this Court is unable to come to a finding that the penalty imposed is unconscionable or shocks the conscience of the Court. 15. Before closing with the present case, it is clarified that the penalty imposed upon Page No.# 6/14 the petitioner, i.e., withholding of 3 annual increments, is not with cumulative effect. 16. In view of the reasons stated above, this Court is not inclined to exercise it’s discretion in the present case.” 5. The learned counsel for the appellant, assailing the said Judgment & Order dated 24.09.2024, has submitted that the Enquiry Officer in his report had not considered the materials coming on record in its proper perspective and had basing on a superficial examination of the materials proceeded to conclude that the appellant herein, was guilty of the allegations leveled against him. The learned counsel for the appellant has submitted that it was the specific stand of the appellant in the enquiry that the altercation with said Himangshu Sarma had so occasioned on account of provocation made in the matter by said Himangshu Sarma and accordingly, it is contended that the same being a mitigating circumstance, the same was required to be considered by the Enquiry Officer, while drawing his conclusions in the enquiry report. 6. The learned counsel for the appellant has further submitted that the Enquiry Officer in his enquiry report had noticed that there was no specific allocation of the work or duty to the appellant on 14.08.2021 and that he was called to the Court premises for doing preparatory works for the celebration of Independence Day scheduled on the next day. She further submits that the Enquiry Officer had also noticed that the complainant in his complaint,as well as in his deposition in the enquiry, had not highlighted as to the nature of works allocated to the appellant on 14.08.2021. She had further highlighted the conclusions drawn by the Enquiry Officer in the report to the effect that there was no cogent material or evidence on record to show that the appellant herein had willfully disobeyed the directions of the complainant in the matter or any other authority. Accordingly, she submits that the conclusion drawn by the Enquiry Officer that the charges leveled against the appellant stood established, would not mandate acceptance. Page No.# 7/14 7. The learned counsel for the appellant further submits that the utterances, held against the appellant by the Enquiry Officer, purportedly made by him during his altercation with the complainant Himangshu Sarma, was not disclosed by said Himangshu Sarma during his deposition in the enquiry. It is submitted that the said utterances purportedly made by the appellant was so disclosed by PW-3 Pallavi Saikia, who was present when the altercation had taken place between the appellant and said Himangshu Sarma. The learned counsel for the appellant has submitted that while the said utterances was given prominence by the Enquiry Officer, the other materials coming on record through the deposition of the PWs, which had highlighted that the appellant had no antecedent of having committed insubordination prior to the incident occasioning on 14.08.2021, was not factored in by the Enquiry Officer while drawing his conclusions in the matter. The learned counsel for the appellant has submitted that the Enquiry Officer only on the basis of the utterances made by the appellant during the altercation taking place between him and said Himanshu Sarma as projected by the PW-3, had proceeded to hold the charges leveled against the appellant to be so established, which she submits would require an interference. 8. The learned counsel for the appellant has submitted that the appellant in his representation against the enquiry report has highlighted the said aspect of the matter, however, the disciplinary authority without examining the mitigating circumstances arising in the matter, proceeded to issue the order dated 20.05.2022, imposing upon the appellant penalty of withholding of 3(three) annual increments w.e.f., the date of the order i.e., w.e.f., 20.05.2022. The learned counsel for the appellant has submitted that the appellant herein is a lowly placed employee and withholding of 3(three) annual increments had adversely affected him. The learned counsel for the appellant has submitted that even if it is to be presumed that the appellant had an altercation with said Himangshu Sarma on 14.08.2021, the penalty imposed upon the appellant by the Disciplinary Authority vide the order dated 20.05.2022 is clearly disproportionate and would call for an interference by this Court. Page No.# 8/14 9. Per contra, Mr. H. K. Das, learned Standing Counsel appearing for the respondent nos. 2 to 4 has submitted that the appellant has failed to bring on record any materials to demonstrate that he was in any manner prevented from advancing his defense during the enquiry. The learned Standing Counsel further submits that the appellant herein has also not brought on record of any prejudice being caused to him during the enquiry. 10. Mr. Das, learned Standing Counsel further submits that the conclusion drawn by the Enquiry Officer in his enquiry report being so based on the materials coming on record, such conclusion would not mandate an interference by this Court. Mr. Das has further submitted that the Disciplinary Authority, on examination of the records of the proceeding had accepted the findings arrived at by the Enquiry Officer, which findings being based on the materials available on record, imposition of the penalty of withholding of 3(three) annual increments upon the appellant, would not mandate any interference from this Court. 11. We have heard the learned counsels appearing for the parties and also perused the materials available on record. 12. The departmental proceeding instituted against the appellant was so instituted with the issuance of a show-cause notice dated 18.09.2021. The Article of Charge framed against the petitioner vide the said show-cause notice dated 18.09.2021 being relevant, is extracted herein below: - “ Article of Charge (1) That you while working as Jarikarak in the office of SDJM (M) Bokajan, Karbi Anglong disobeyed the order of the authority by refraining from doing allotted work on 14th August, 2021. That you stated to the complainant Shri Himanshu Sarmah that it was enough that you had come to office on a holiday. That you argued with the complainant Shri Himanshu Sarmah and misbehaved and humiliated him in presence of Smti. Pallabi Saikia and Shri Mridu Phukan. That you stated to complainant that who was he to order you to work and that you would not work in a holiday even if you were directed by District Judge and SDJM (M) Bokajan. Page No.# 9/14 That the above act on your part amounted to misconduct and failure to maintain discipline, propriety and integrity in the office. You acted in a manner unbecoming of a government servant violating the established norms and subverting the discipline in the office. You are hereby charged accordingly.” 13. A perusal of the allegations leveled against the appellant in the show-cause notice would go to reveal that he was alleged to have disobeyed the order of the authority by refraining from doing allotted work on 14.08.2021. Further, he was alleged to have stated before the complainant Himangshu Sarma that it was enough that he had come to the office on a holiday. It was further alleged that he had misbehaved and humiliated said Himangshu Sarma in presence of two other employees of the establishment. Further, the appellant was alleged to have questioned the authority of the complainant Himangshu Sarma, by asking as to who he was to order the appellant to work and that the appellant would not work on a holiday, even if it was directed by the District Judge and/or SDJM, Bokajan. 14. The appellant, in the show-cause reply had denied of commission of any act that would have the effect of disobeying the orders of his seniors i.e., the District Judge and the SDJM, Bokajan. He had further contended that the complainant Himangshu Sarma had alleged that he was driven out from the Headquarters at Diphu vide official order, for which he felt humiliated and got emotional, however, he submitted that he had done his duty properly and sincerely. The appellant had thereafter, sought apology for the altercation he had with the complainant Himangshu Sarma and had undertaken not to repeat such act in future. 15. The perusal of the statements of the PWs deposing in the enquiry does not go to establish that the appellant herein had not done any work, rather, that the deposition of the PW-1 Mridul Phukan reveals that the appellant had done works like painting of the trees and preparing the flag hosting area etc. It was also brought on record by Page No.# 10/14 PW-1 that the appellant, after completion of his work had told her that he was going home as he has some household chores like washing clothes and other things to do. The deposition of PW-2 i.e., the complainant Himangshu Sarma also does not bring on record that the appellant had not done any work on 14.08.2021. However, from his deposition, the altercation taking place between him and the appellant is evident. 16. Pallavi Saikia, who has deposed as PW-3 in the enquiry, had contended that on being asked by the complainant Himangshu Sarma as to why he was leaving the place, the appellant has replied that he has some work at home as his wife was not with him. It was further brought on record that the appellant had stated that he had done his work and there is nothing more left to be done. It is the PW-3, who had deposed that the appellant had questioned the authority of the complainant Himangshu Sarma. It was also brought on record by the PW-3 that the behaviour of the appellant was aggressive during the altercation with Himangshu Sarma i.e., the complainant. Further, the evidences of the witnesses bring to the forefront that there was no complaint prior to the incident occasioning on 14.08.2021 against the appellant herein and his earlier conduct was stated to be good by all the PWs. Even the complainant Himangshu Sarma, in his deposition, had contended that he never had an altercation with the appellant prior to the alleged incident and had never received any complaint about commission of misbehavior by the appellant against anyone. 17. The Enquiry Officer, in his enquiry report, had drawn categorical conclusions to the effect that there was no mention of any specific work allotted to the appellant and others to be performed on 14.08.2021. It was further stated that the witnesses deposing in the enquiry had not brought on record any materials to demonstrate that any specific duty was assigned to the appellant which he had refrained to do and thereby, disobeyed the order of the authority. It was further brought on record by the Enquiry Officer that the appellant had come to the Court campus on 14.08.2021 at around 9.20 AM and had remained there till around 11.00 AM and thereafter, he Page No.# 11/14 wanted to leave for home and he being refused permission by the complainant Himangshu Sarma, the altercation had occasioned. The Enquiry Officer, thereafter, concluded that he was of the considered view that there was no cogent evident on record to show that the appellant willfully disobeyed the complainant or any authority. Further, that there was no cogent evidence to show that the delinquent refused to do any specific duty or task allotted to him on 14.08.2021. Thereafter, the Enquiry Officer, by noticing the utterances made by the appellant, which had the effect of questioning the authority of the complainant Himangshu Sarma, as brought on record by PW-3 Pallavi Saikia, proceeded to hold that the complainant Himangshu Sarma, who was the Officer In-charge of the office of the SDJM, Bokajan, holding a higher post than the appellant, had every right and authority to direct the delinquent to do the works related to the establishment. Further, the Enquiry Officer held that the addressing of the complainant Himangshu Sarma by the appellant as “TOI” was nothing but an uncouth behavior on the part of the appellant and it demonstrated showing of disrespect to a senior. Further, the utterance of the delinquent that he would not do any works on holidays even if ordered by the District Judge or the SDJM was held to be disrespectful words aimed towards the Heads of the Institution. Basing on the same, the appellant was held to have lacked in discipline and propriety. Accordingly, the Enquiry Officer proceeded to draw the following conclusions: - “18. The statement made by the delinquent that “who is he (complainant) ? He (complainant) is not the authority. That he (delinquent) has been noticing him since the day one and that he (delinquent) would not work on a holiday even if he is ordered by the District and Sessions Judge or SDJM”amounts to misconduct and failure on the part of the delinquent to maintain discipline and propriety in a government office. The delinquent, therefore, acted in a manner unbecoming of a government servant. Hence, the delinquent is found guilty of the charges drawn against him.” 18. A perusal of the final conclusions drawn by the Enquiry Officer would go to Page No.# 12/14 reveal that in the enquiry what was held to be established against the appellant was his misbehavior against the complainant Himangshu Sarma and the utterances made by him that he would not work on holidays even if ordered by the District Judge and SDJM Bokajan. The other allegation leveled against the appellant that he had disobeyed the order of the authority from doing allotted works on 14.08.2021, was not held to be established in the enquiry report. 19. The Enquiry Officer while drawing his conclusions in the matter, had not considered the contention raised by the appellant before him that the altercation occasioning was on account of the provocation made in the matter by the complainant Himangshu Sarma and that there was no complaint against the appellant of misbehavior and/or insubordination before the incident occasioning on 14.08.2021. 20. Having noticed the above position, the order dated 20.05.2022, passed by the Disciplinary Authority is being examined. 21. The Disciplinary Authority, upon considering the materials brought on record, had proceeded to draw a conclusion that the Enquiry Officer had rightly and legally found the delinquent guilty for his insubordination, indiscipline, misconduct and behavior which amounted to misconduct and failure to maintain discipline, propriety and integrity in the office. Basing on the said conclusions, the Disciplinary Authority, proceeded to impose upon the appellant the penalty of withholding of 3(three) annual increments w.e.f., the date of the order i.e., w.e.f. 20.05.2022. 22. The Disciplinary Authority while proceeding to draw the above conclusions, failed to appreciate the findings recorded by the by the Enquiry Officer that there was no material brought on record in the enquiry to demonstrate that the appellant had refused to do any specific duty or task allotted to him on 14.08.2021. The Disciplinary Authority, further, failed to appreciate the fact that the appellant earlier did not have an allegation leveled against him of misbehaving with his seniors and/or subordination. The Disciplinary Authority while proceeding to impose upon the Page No.# 13/14 appellant, the penalty vide the order dated 20.05.2022, failed to appreciate the mitigating circumstances existing in his favour and coming on record in the enquiry. 23. Further, perusal of the deposition of the PWs would go to establish that all the 3 witnesses were very good friends as deposed by the complainant Himangshu Sarma in his deposition. Accordingly, the doubt arising with regard to the deposition so made by the witnesses in favour of the complainant Himangshu Sarma, was not considered and negated by the Disciplinary Authority. Accordingly, all the allegations leveled against the appellant vide the show-cause notice dated 18.09.2021 cannot be held to be established in the enquiry. The only allegation that can be said to have been established is the allegation pertaining to the altercation entered into by him with the complainant Himangshu Sarma and the utterances made by him then. Further, the utterances made by the appellant questioning the authority of Himangshu Sarma can also be held to have been established in view of the statements made in the enquiry by the PW-3. 24. In the above view of the matter, considering the appellant is a lowly placed employee in the service, the imposition of penalty of withholding of 3(three) annual increments w.e.f., the date of the order i.e., 20.05.2022, in our considered view is strikingly disproportionate to the allegation leveled against him and established in the enquiry. 25. In the above view of the matter, we are of the considered view that the penalty as imposed upon the appellant vide the order dated 20.05.2022 being strikingly disproportionate, would call for an interference. 26. Having considered the evidences coming on record in the enquiry along with the conclusions drawn therein by the Enquiry Officer and also noticing the fact that the appellant, prior to the incident occasioning on 14.08.2021 was never involved in commission of any act that can be deemed to be a misconduct, we are of the considered view that the penalty imposed upon the appellant would mandate a Page No.# 14/14 reconsideration. 27. In view of the above discussion, we are of the considered view that the learned Single Judge had not considered the mitigating circumstances existing in the matter in favour of the appellant and passing of the impugned order dated 24.08.2024, ignoring the same has rendered the same unsustainable. Accordingly, the order dated 24.08.2024, passed by the learned Single Judge in WP(C) No. 6758/2022 stand set aside. 28. In view of the conclusions drawn by us herein above, the impugned order dated 24.09.2024, passed by the Disciplinary Authority would mandate an interference. The order dated 20.05.2022, passed by the Disciplinary Authority is interfered to the extent of imposition of penalty therein and the penalty imposed upon the appellant of withholding of 3(three) increments is substituted with the penalty of “withholding of one increment w.e.f., 20.05.2022”. 29. The Appointing Authority of the appellant would now in view of the reduction in the penalty imposed upon the appellant, proceed to take consequential steps for recasting the pay and allowances of the petitioner and on reauthorization of the 2(two) penalties withheld from the appellant, release to the appellant his arrears so working out. 30. The said exercise be initiated and completed by the Appointing Authority of the appellant within a period of 2(two) months from the date of receipt of a certified copy of this order. 31. With the above directions and observations, the writ appeal stands disposed of. JUDGE CHIEF JUSTICE Comparing Assistant