Page No.# 1/6 GAHC010144242025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/3723/2025 SMTI BARASHA BORAH BORDOLOI W/O-DHARANI BORDOLOI, R/O- AMAR ENCLAVE, FLAT NO-D-41, SURVEY , BELTOLA, GUWAHATI-28, P.O- BELTOLA, P.S BASISTHA, KAMRUP METRO, ASSAM VERSUS THE STATE OF ASSAM AND 5 OTHERS REP BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM, EXCISE DEPARTMENT, GUWAHATI, ASSAM 2:THE SECRETARY TO THE GOVT OF ASSAM EXCISE DEPARTMENT GUWAHATI ASSAM 3:THE ADDL CHIEF SECRETARY TO THE GOVT OF ASSAM EXCISE DEPARTMENT GUWAHATI ASSAM 4:THE JOINT SECRETARY TO THE GOVT OF ASSAM EXCISE DEPARTMENT GUWAHATI ASSAM 5:THE COMMISSIONER OF EXCISE HOUSEFED COMPLEX DISPUR Page No.# 2/6 GUWAHATI-06 6:THE DISTRICT COMMISSIONER BARPETA ASSA Advocate for the Petitioner : MR. J I BORBHUIYA, A HUSSAIN,MR. L MOHAN Advocate for the Respondent : SC, EXCISE DEPTT., GA, ASSAM BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER Date : 22.04.2026 Heard Mr. J. I. Borbhuiya, learned counsel, appearing for the petitioner. Also heard Mr. I. Borthakur, learned Standing Counsel, Excise Department. 2. The petitioner in the present writ petition has presented a challenge to an order dated 30.04.2025, issued by the Commissioner & Secretary to the Government of Assam, Excise Department, imposing upon the petitioner penalty of withholding 1 (one) increment with cumulative effect upon conclusion of a Departmental proceeding instituted against the petitioner vide issuance of a show-cause notice dated 09.11.2020. The petitioner has further prayed for consequential reliefs as would be available to her, upon this Court, interfering with the impugned order of penalty. 3. The petitioner, herein, while working as a Superintendent of Excise, Barpeta, was issued with a show-cause notice dated 09.11.2020 instituting a Departmental proceeding against her, basing on allegations which had surfaced against the petitioner during her tenure of service as a Deputy Superintendent of Excise, Barpeta. Vide the said show-cause notice charges came to be leveled against the petitioner basing on allegation of having permitted the shifting of a IMFL ‘OFF’ wine shop, in clear violation of the provisions of the Assam Excise Rules, 2016. The petitioner on receipt of the said show-cause notice had submitted an application seeking documents as set out, therein, for preferring an effective reply, however, Page No.# 3/6 the said application submitted by the petitioner came to be rejected holding that the documents as sought for by the petitioner had got no relevance to the allegations leveled against her. Thereafter, the petitioner had submitted her show-cause reply on 27.01.2021, denying the charges leveled against her. The said reply submitted by the petitioner not being found to be satisfactory, the Disciplinary authority of the petitioner vide order dated 08.01.2021, directed for holding of an enquiry into the charges framed against the petitioner vide the show-cause notice dated 09.11.2020 and for the purpose, a Enquiry Officer and a Presenting Officer came to be appointed. The petitioner is found to have participated in the enquiry proceedings. On conclusion of the enquiry, the Enquiry Officer submitted his enquiry report on 17.08.2021, and the same was forwarded to the petitioner by the Departmental authorities vide a communication dated 17.11.2021. The petitioner on receipt of the said enquiry report submitted her representation against the same on 02.12.2021. The said Departmental proceeding, thereafter, was not proceeded with. A development had taken place in the matter, the petitioner during the pendency of the said proceedings had retired from her services w.e.f. 31.07.2023, on reaching the age of superannuation. Till the date the petitioner had continued in her services, the Departmental authority had not passed any final order in the Disciplinary proceedings so instituted against the petitioner vide issuance of the said show-cause notice dated 09.11.2020. After lapse of around 03 (three) years from the date the petitioner had proceeded on superannuation, the Disciplinary authority vide order dated 30.04.2025, proceeded to dispose of the said Departmental proceedings instituted against her by imposing a penalty of withholding 01 (one) increment with cumulative effect on the petitioner. Being aggrieved the petitioner has instituted the present writ petition. 4. I have heard the learned counsel for the parties and perused the materials available on record. 5. The issue arising in the present writ petition for consideration by this Court as to whether the provision of Rule 7 of the Assam Services (Discipline & Appeal) Rules, 1964, can be invoked by the Disciplinary authority for imposing a penalty, after the delinquent had retired from his/her services, on reaching the age of superannuation. Rule 7 of the Rules of Page No.# 4/6 1964, mandates that the ‘penalties as prescribed, therein, may for good and sufficient reason and hereinafter, provided be imposed, on a Government servant’. The term Government servant has been defined in the provisions of Rule 2 (e) of the said Rules of 1964. The said definition being relevant is extracted, hereinbelow; “(e) "Government Servant" means a person who is a member of a service or who holds a civil post in connection with the affairs of the State of Assam and includes any person whose services are temporarily placed at the disposal of the Central Government or any State Government or a local or other authority and also any person in the service of a State Government or the Central Government or a local or other authority whose services are temporarily placed at the disposal of the Government of Assam.” 6. A perusal of the provisions of Rule 7 read with definition of the term Government servant as occasioning in the provisions of Rule 2 (e) of the said Rules of 1964, would go to reveal that a penalty as contemplated under the provisions of Rule 7, can only be imposed upon the Government servant. A Government servant has been defined to be member of a service or who holds a civil post in connection with the affairs of the State of Assam. Considering the definition of the term Government servant as set out in the provisions of Rule 2 (e) of the said Rules of 1964, this Court is of the considered view that the penalty as contemplated under the provisions of Rule 7, would be permissible to be so imposed upon a Government servant holding a civil post under the Government of Assam. A delinquent who has superannuated from his/her services cannot be held to be holding a civil post in connection with the affairs of the Government of Assam, after he/she has so superannuated from his/her services. Accordingly, this Court holds that the penalty as prescribed under the provisions of Rule 7 would only be permissible to be so imposed upon a Government Servant who is holding a civil post under the Government of Assam. The petitioner in the present writ petition on the date, the order dated 30.04.2025, was so passed by the Disciplinary authority imposing upon the petitioner the penalty of withholding of 1 (one) increment with cumulative effect, having already been superannuated from her services cannot be held to be a Government servant any more, after the date of her superannuation from her services. Accordingly, it was not permissible for the Disciplinary authority to invoke the provisions of Rule 7 of the Rules of 1964, to impose any penalty upon the petitioner, herein. Page No.# 5/6 7. In view of the above discussion, this Court is of the considered view that the order dated 30.04.2025, imposing a penalty of withholding of 1 (one) increment with cumulative effect, which penalty is so prescribed under the provisions of Rule 7 of the said Rules of 1964, was so imposed without jurisdiction. 8. In view of the above conclusion drawn by this Court, the order dated 30.04.2025 stands set aside. Having interfered with the order dated 30.04.2025, this Court notices that the Disciplinary proceedings against the petitioner having been instituted prior to the date of her superannuation, the same after the superannuation of the petitioner would be covered by the provisions of Rule 21 of the Assam Services (Pension) Rules, 1969. 9. Provisions of Sub Rule (a) of Rule 21, of the Assam Services (Pension) Rules, 1969, mandates that Departmental proceeding, if instituted while the Officer was in service, whether before his retirement or during his re-employment, shall, after the final retirement of the Officer, be deemed to be a proceeding under the said Rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the Officer had continued in service. Rule 21 also mandates the penalty that would now be permissible to be so imposed upon a retired employee against whom a Disciplinary proceedings which was instituted prior to the date of his/her superannuation. The penalty that would now be permissible to be imposed upon the petitioner would be one of withholding or withdrawing a pension or any part of it, that the delinquent would be otherwise entitled to be authorized on his/her superannuation. 10. This Court having interfered with the order dated 30.04.2025, on a technicality and it being evident that the proceedings instituted against the petitioner was required to be so continued under the provisions of Rule 21 of the Rules of 1969, this Court provides that notwithstanding the interference made with the order dated 30.04.2025, it would be open for the respondent authorities to pass a fresh order invoking the provisions of Rule 21 of the Assam Services (Pension) Rules, 1969. 11. At this stage Mr. J. I. Borbhuiya, learned counsel, for the petitioner has submitted that in pursuance to separate Departmental proceedings instituted against the petitioner, the Page No.# 6/6 Disciplinary authority of the petitioner has vide order dated 12.03.2026, withheld the entire pension and pensionary benefits of the petitioner and the said order is stated to be holding the field as on date, although the same is presently under challenge before this Court. 12. In view of the above position, the pension of the petitioner already having been withheld, subject to the outcome of the proceedings in the order dated 12.03.2026, the respondents are at liberty to pass appropriate orders invoking the provisions of Rule 21 in the present proceedings if the occasion so arises pursuant to the conclusion of the proceedings instituted before this Court assailing the order dated 12.03.2026. 13. With the above observations and directions, the present writ petition stands disposed of. JUDGE Comparing Assistant