Page No.# 1/9 GAHC010036652020 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/1190/2020 RAJA RAI @ RAJNARAYAN RAI S/O- LATE RAMASISH RAI, R/O- MLA HOSTEL BACKSIDE, NABAMILAN PATH, LAST GATE, P.O AND P.S- DISPUR, GUWAHATI- 06, DIST- KAMRUP(M), ASSAM VERSUS THE STATE OF ASSAM AND 2 ORS REP. BY THE SECRETARY TO THE GOVT OF ASSAM, FINANCE DEPTT, DISPUR, GUWAHATI- 781006 2:THE DIRECTOR OF ACCOUNTS AND TREASURIES ASSAM DISPUR GUWAHATI- 781006 DIST- KAMRUP(M) ASSAM 3:THE TREASURY OFFICER DISPUR TREASURY GUWAHATI- 781006 DIST- KAMRUP (M) ASSA Advocate for the Petitioner : MR. B KUMAR, MR. S UPADHAY Advocate for the Respondent : SC, FINANCE, SC, TREASURY Page No.# 2/9 BEFORE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA ORDER 10.03 .2026 Heard Mr. S. Upadhay, learned counsel for the petitioner, also heard Mr. R. Borpujari, learned Standing Counesl for the respondents. 2. The writ petition has been filed by the petitioner putting a challenge to the order of termination dated 14.02.2018, whereby the petitioner was dismissed from Government service in exercise of powers conferred under Rule 7(vii) of the Assam Services (Discipline and Appeal) Rule 1964 with immediate effect. 3. The petitioner was appointed on compassionate ground as a Grade-IV employee in the office of Director of Accounts and Treasuries in the pay band of Rs. 4,560/- to Rs. 15,000/- plus Grade Pay of Rs. 1,300/- plus other allowances as admissible under the Rules and orders issued by the Government from time to time against the vacant post with effect from the date of joining. According to the petitioner, he joined his services on 08.07.2010 and since then he has been discharging his duties sincerely. 4. The petitioner claims to had been suffering from Tuberculosis (T.B.), for which he required constant medical treatment in the District T.B. Centre at Kamrup(M) at Guwahati. The case projected by the petitioner is that in view of the disease suffered by him, he was forced to the absent from his duties with a sole purpose of getting himself cured of the said disease, and at the same time resulted his default in attending the office. According to the petitioner, because Page No.# 3/9 of his ill health he was on medical treatment and he had not been able to join his duties. After being cured of his ailments the petitioner reported back to join his office and he was served with a letter dated 23.03.2019 and from the said letter he came to be informed that he was terminated from service with effect from 14.02.2018 by the impugned order. The petitioner was shocked upon being served with the termination order. As to the best of his knowledge there was no notice issued by the employer initiating proceedings without giving him an opportunity or participating in the proceeding. The petitioner submits that there was no notice served nor was given any enquiry report in respect of the enquiry conducted pursuant to which the impugned order was served dismissing the petitioner from service. Under such circumstances the present writ petition has been filed and the petitioner has approached this court seeking a direction to set aside the impugned dismissal order and to restore the petitioner back into service. 5. The writ petitioner also preferred a representation before the director of Accounts and Treasuries dated 28.03.2019 and 07.01.2020 requesting for modification/recall of order of dismissal citing his ill health and hardship caused because of lose of employment. 6. The learned counsel for the respondents disputed the case of the petitioner projected before the Court and has contested the matter by filing an affidavit by the Director of Account & Treasuries. The learned counsel for the respondents strongly dispute the contentions of the writ petitioner that no notice was served. In the affidavit copies of this notice which was served on the petitioner warning him of stringent action if he did not report back to his office and copies of said notices dated 30.03.2011, 02.05.2011, 18.04.2012, 01.06.2012, 12.12.2014, 16.06.2015, 24.10.2017 and 10.11.2017 are enclosed. Because of the Page No.# 4/9 unauthorized absence of the writ petitioner, entry was also made in the Dispur Police Station vide letter No. DA.55/2010/89, dated 14.11.2017. However in spite of all these communication and warning letters, the petitioner remains absent with effect from 18.09.2017 and he never returned to the office to attend his duty. The respondent’s department also published in the newspapers the notices issued to the petitioner as the copy of the same could not be served in last known address of the writ petitioner. 7. From the affidavit, on behalf of the department it is stated that in view of the unauthorized absence, the departmental proceedings were initiated against the writ petitioner by appointment of a proper enquiry officer. The notices issued by the enquiry officer were sent to both of his permanent and temporary address which are available in the records of the office and calling upon the petitioner for personal hearing. However, these notices had been returned undelivered and as the petitioner was not found available in the address which was earlier given. Subsequent notices were issued by the enquiry officer which also did not avail any response from the writ petitioner. 8. Under such circumstances the enquiry proceeded on the materials available and the enquiry officer submitted the enquiry report. The Disciplinary authority namely, the Director of Accounts & Treasuries accepted the findings and the conclusion arrived at by the enquiry officer and proceeded to impose punishment under Rule 7 of the Assam Services (Discipline and Appeal) Rule 1964. By Disciplinary Authority by the impugned order dated 14.02.2018 imposed a punishment from dismissal of service. 9. The learned counsel representing the department submits that there is no default on the part of the Respondents in attempting to intimate the petitioner about his absence from duties as also the notices in response to the Page No.# 5/9 proceedings which were initiated due to his unauthorized absence. The newspaper publications were also made. However, the petitioner was not available in the address available in the records of the office, and therefore notice served have been returned unserved and no response was received by the Department in spite of newspaper publication. 10. Under such circumstances it is submitted that there was no option with the Department, but to proceed with the enquiry proceeding ex parte, and therefore it is too belated in a day today for the writ petitioner to challenge the conclusions in the disciplinary proceedings on the ground that he was not served with the notices. 11. The learned counsel for the parties have been heard. Pleading available on record have been carefully perused. Since the proceedings under the Rules of 1964 were initiated in reference to the relevant rules are required to be made at this stage. Under the Assam Services (Discipline and Appeal) Rule 1964 the nature of penalties are prescribed under Rule 7 and dismissal is prescribed under Rule 7(VII). Rule 9 of the Rules of 1964 lay down a detailed procedure for imposition of these penalties. Rule 9A prescribes communication of the orders along with a copy of the report of the enquiry is required to be furnished to the delinquent employee. 12. In the present proceedings, while the respondents have defended their actions for proceeding with the enquiry and imposition of the punishment by the dismissal order dated 14.02.2018 on the ground that the notices issued on the petitioner were returned unserved or undelivered and nor was there any response to the newspaper publication, the fact remains that the petitioner came to be served with the copy of the impugned order of dismissal by letter dated 23.03.2019 when he attempted to visit his office for reporting back his Page No.# 6/9 duties. 13. During the course of the enquiry on appointed query made by the Court to respondent counsel as to whether there is any record available with the department to show that copy of the enquiry report was furnished to the petitioner, the learned Standing Counsel Revenue fairly submits that there is no such record available which was possibly because the petitioner was never available with the address available with the department and any attempt to submit any documents or notices always came back undelivered. 14. Be that as it may, since the Rules of 1964 have been followed by the Department for imposition of the penalties, the rules will have to be followed in respect of the procedures prescribes also. Under Rule 9(10) where the disciplinary authority having regard to the finding on charges and on the basis of the evidence adduced in the enquiry is of the opinion that any of the penalties specified in Clauses- VI or Rule 7 should be imposed, then it shall make an order imposing such a punishment and it shall not be necessary to give the Government servant any opportunity of making representation on the penalty to be proposed. 15. Subsequently, Rule 9A was inserted, which mandates that the orders of the Disciplinary Committee shall be communicated to government servant/ the delinquent officer who shall be supplied with copy of the report of the enquiry, if any held by the disciplinary authority and a copy of findings on each charge and where the disciplinary authorities is not the enquiry authority the copy of the report of the enquiry authority and the statement of the findings of the disciplinary authority together with the brief reasons for disagreement if any with the findings of the enquiry and also the copy of the advise if any given by the Commission is required to be furnished. Page No.# 7/9 16. This rule also prescribes the forum for appeals against the orders of imposition of penalty under Rule 15. This court on a finding of fact from the pleadings available before the court and on the submission made before this Court that no copy of the enquiry report was submitted to the writ petitioner is of the view that besides the ragged cult out under Rule 9 A of the Rules to which is available to the petitioner, the right of appeal under Rule 15 also could not be availed of by the petitioner in the absence of the enquiry report. 17. In MD, ECIL v. B. Karunakar, reported in (1993) 4 SCC 727, the Apex Court by the authority had elaborately discussed on the law in respect of serving of the enquiry report as also the conclusions of the disciplinary authority on each of the charges. It has been held by the Apex Court that pursuant to the Constitutional Amendment brought in it is now mandatory for the concerned authorities to serve a copy of the enquiry report. This law laid down by the Apex Court has been subsequently referred to by several other judgments of the Apex Court as also of this Court. 18. Under such circumstances, it is clear that the copy of the enquiry report on the basis of which the disciplinary authority concurred with the findings of the enquiry and impose the order of dismissal, was served on the writ petition. Although it was a duty of the respondent department to ensure service of the enquiry report, perhaps on the peculiar facts of the matter and in view of the stand of the respondents, the petitioner was revading service on notice or appearing before the enquiry officer the copy of the enquiry report could perhaps was not served. However, that should not be a ground to barred the petitioner from availing his rights accrued under the Rules of 1964. 19. Under such circumstances, this Court is of the considered opinion that the matter should now be remanded back to the authorities who will ensure service Page No.# 8/9 of the copy of the enquiry report on the writ petitioner and thereafter the writ petitioner will have an opportunity of representing before the departmental authorities ventilating his grounds for the reasons as to why the conclusions in the enquiry, if the charges have been found to be prove ought not to be relied upon. In the event, the disciplinary authority rejects the representation of the writ petitioner and passes the order of punishment the writ petitioner will have a right of appeal as provided under Rule 15. 20. In view of the findings by the Court, it is necessary to interfere and set aside with the impugned order of dismissal dated 14.02.2018, which however not entailed the petitioner to be reinstated in service. Any representation filed by the petitioner pursuant to this order shall be considered and disposed of by the authorities within a period of 60 days from the date of receipt of such representation and the status of the service of the writ petitioner shall thereafter be determined in terms of such order as may be passed by the Disciplinary authority. 21. The petitioner will be treated to be under suspension for the period the service of the enquiry report and the consequential liberty granted by this Court are carried out. 22. Since the petitioner is represented by the counsel, no further notice is necessary to be issued by the Department, the learned counsel will encroach before the respondent department, namely the Director of Accounts and Treasuries within one week from the date of certified copy of this Order. It is made clear that in the event of the writ petitioner to appear before the concerned authorities as directed within one week, the impugned order of dismissal passed by the departmental authority will stand revive without reference to this Court. Page No.# 9/9 23. Accordingly, this writ petition stands disposed of. JUDGE Comparing Assistant