Page No.# 1/11 GAHC010183172024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/4599/2024 DHANJIT DAS SON OF LATE KAMALA KANTA DAS, RESIDENT OF VILLAGE- GALIAHATI, POLICE STATION- BARPETA, POLICE STATION- BARPETA, DISTRICT- BARPETA, ASSAM, PIN- 781301. VERSUS THE STATE OF ASSAM AND 3 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM, PUBLIC WORKS DEPARTMENT, DISPUR, GUWAHATI- 781006. 2:THE COMMISSIONER AND SPECIAL SECRETARY TO THE GOVERNMENT OF ASSAM PUBLIC WORKS DEPARTMENT DISPUR GUWAHATI- 781006. 3:THE CHIEF ENGINEER PUBLIC WORKS DEPARTMENT (ROADS) ASSAM CHANDMARI GUWAHATI- 781003. 4:THE EXECUTIVE ENGINEER PUBLIC WORKS DEPARTMENT BARPETA RURAL ROADS DIVISION DISTRICT- BARPETA ASSAM Page No.# 2/11 PIN- 781301 Advocate for the Petitioner : MR. M MAHANTA, DIPTI CHAKRAVARTY,MR. T K MISRA,MS. S MAHANTA Advocate for the Respondent : SC, PWD, BEFORE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA ORDER 11.12.2025 1. Heard Mr. M. Mahanta, learned counsel for the petitioner. Also heard Mr. R. Dhar, learned Standing Counsel PWD Department. 2. The petitioner before this Court at the relevant point in time was serving as a Lower Division Assistant under the Executive Engineer, PWD, Barpeta Rural Road Division. 3. By an order dated 19.05.2010, the petitioner was transferred at the Office of the Assistant Executive Engineer, PWD, Pathsala Rural Roads Sub- Division. The petitioner claims to have preferred a representation dated 24.05.2010 before the Authority for re-consideration of his transfer order, which, however, was not considered by the Authorities. It is the case of the petitioner that when he was anticipating consideration and reply on his representation from the Authorities concerned, by an Order dated 01.09.2012, the Chief Engineer appointed the Enquiry Officer and the Presenting Officer to enquire into the matter of the transfer of the petitioner. The petitioner was subsequently issued a show cause notice dated 04.09.2012, asking him to show cause on the charges of misconduct and violation of official integrity. 4. It is the contention of the petitioner that the documents and the list of Page No.# 3/11 witnesses, which are required to be furnished along with the show cause notice, were not supplied to the petitioner. The petitioner, thereafter, represented before the Authority seeking extension of time to furnish his reply. However, the Enquiry Authorities did not grant him further time to submit his reply. The Enquiry Officer proceeded to conduct the enquiry and thereafter, concluded the enquiry ex-parte the writ petitioner holding the charges to be proved against the writ petitioner. The Enquiry Officer in his inquiry report also recommended imposition of penalty by the competent Authority under Rule 7(vi) or 7 (vii) of the Assam Services Discipline and Appeal Rules, 1964. 5. Pursuant to the submission of the enquiry report by an order dated 28.12.2012, the petitioner was dismissed from service under Rule 7(vii) of the Assam Services Discipline and Appeal Rules, 1964.The petitioner thereafter preferred an appeal before Appellate Authority, which also came to be dismissed and therefore, being aggrieved, the writ petition has been filed. 6. The respondents have contested the case of the writ petitioner and have consistently maintained the stand that pursuant to the order of transfer dated 19.05.2010 issued to the writ petitioner, he deliberately refused to comply with the order and abstained from joining in his place of posting. In spite of notices issued, he declined to participate in the enquiry proceedings and left with no alternative, the respondent Authorities had attempted to serve notice by way of substituted service by publication of notice in local newspaper. The notices were also affixed in the Office as well as last post of posting as well as the place of residence of the petitioner, the address of which is available with the Department. 7. Nevertheless, the petitioner did not participate and therefore, the Enquiry Officer proceeded ex-parte and concluded the enquiry, which was Page No.# 4/11 thereafter submitted to the Disciplinary Authority. The Disciplinary Authority on the basis of the enquiry report imposed punishments under Rule 7(vi) or 7 (vii) of the Assam Services Discipline and Appeal Rules, 1964.The Appeal dated 20.01.2021 preferred by the writ petitioner also came to be dismissed. Learned Standing Counsel, PWD submits that the contention of the petitioner that the procedure prescribed under the Rules of 1964, have been flouted and that the petitioner was not given opportunity to participate is completely false, inasmuch as, in spite of notices being issued to the petitioner, the petitioner refrained from attending the enquiry and did not participate in the enquiry by filing any written statement or producing any witnesses. It is, therefore, submitted that there is no merit in the petition and the same should be dismissed. 8. Learned counsel for the parties have been heard. Pleadings available on record are perused. 9. The challenge in the present writ petition is to the departmental proceedings initiated, the enquiry report submitted, the order of termination dated 28.12.2012 issued by the Disciplinary Authority as well as rejection of the appeal dated 20.01.2021 filed by the writ petitioner. 10. Per contra, the respondents have maintained their stand that, since the writ petitioner had abstained from attending to his duties at his place of posting, notices were served upon him at his last known place of service as well as at his residence, and also through publication in newspapers. 11. There is no dispute that the Department is subservient to the Assam Services Discipline and Appeal Rules, 1964. The Rules are elaborate and the procedures are prescribed under the Rules for imposition of major penalty like dismissal or termination under Rule 9 of the said Rule. Page No.# 5/11 12. The show cause notice dated 04.09.2012, which was served on the writ petitioner, copy of which is available in the pleadings before the Court reflects that the show cause is accompanied by the statement of allegation. There is no list of witnesses or documents enclosed to the show cause notice as is required to be done under the Rules of 1964. While the petitioner mentions that his application for extension for filing written statement was not reply to by the Authorities concerned, the categorical stand of the respondent Authorities, on the other hand, is that the due intimation was given when proper notice was issued to the petitioner for participating in the enquiry process, however, he abstained from filing his written statement as also participating in the enquiry process. As a consequence thereof, the notices were required to be served through substituted service. 13. Whether the petitioner deliberately abstained from joining in his place of posting and as a consequence whereof the respondents could not serve the notices as claimed are matters which will be relevant from the records which are available with the Department. 14. On 04.12.2025, the learned counsel for the respondent was given liberty to apprise the Court as to the availability of the attendance register and any other official documents to show that the petitioner was not available in his place of posting and service or whether the petitioner was required to sign attendance register in his earlier place of posting or present place of posting. 15. Mr. R Dhar, learned Standing Counsel, PWD on instructions submits that these are old records and because of Barpeta Division was affected by severe floods in the year 2022, due to which some old files and registers were damaged and were found missing and therefore, the requisite employees attendance register for the months of July, 2012 to October, 2012 is not Page No.# 6/11 currently accessible to the Division. Copy of the said communication is kept in the case record. 16. Under such circumstances, certain disputed questions of fact arise for consideration before this Court, particularly with regard to the specific particulars relating to the writ petitioner’s presence at his place of posting and/or his absence therefrom, as well as whether the notices claimed to have been issued by the Department were duly served upon or received by the writ petitioner, and whether the petitioner had altogether refused to report to his place of posting. 17. What is notice by the Court is that being aggrieved by the order of termination dated 28.12.2012 issued by the Disciplinary Authority, an Appeal was filed before the statutory Appellate Authority and the Appellate Authority by an order dated 23.04.2024 rejected said Appeal preferred by the writ petitioner. The Appeal memo, which is filed by the writ petitioner, a perusal of the same reveals that the specific grounds have been taken by the petitioner in respect of the case projected before this Court. It was specifically pleaded that official communications documents were not furnished, the charges made in the Charge-sheet were vague. No adequate opportunity was granted to defend the charges. List of witnesses and documents relied upon during the enquiry were not furnished. 18. The enquiry report reveals that 40 numbers of exhibits were exhibited, 9 numbers of prosecution witnesses were examined, including 1 number of defence witness. The grounds taken by the petitioner in the Appeal is that no defence witness was ever produced by the petitioner before the enquiry Officer. The further ground urged is that prior to the issuance of the termination order dated 28.12.2012 by the Disciplinary Authority, no copy of the enquiry report Page No.# 7/11 was furnished on the writ petitioner, as is mandatorily required under the Rules. 19. A bare perusal of the order passed by the Appellate Authority reflects that these grounds were not specifically dealt with by the Appellate Authority. For convenience, the grounds urged before the Court are extracted below: i. That the show cause notice dated 04.09.2012 fails to state specifically as to what officials communications / documents were displayed /furnished by me and to which other agency. It is most respectfully stated that by bringing in such vague charges I have not been provided with an adequate opportunity to defend myself against the charge. It is no longer res-integra that the charges have to be specific so as to enable a delinquent employee for defending himself against any charge that is brought out against him. ii. That the show cause further falls to mention any list of witness or any documents which would be relied upon in the enquiry against me. In the humble submission, such non furnishing of the list of witnesses and documents would go to reveal that the principles of natural justice has been violated with all impunity. iii. That vide a letter dated 12.09.2012, the Inquiry Officer required me to appear before him on 20.09.2012 for personal hearing and oral statement of defense on the charges framed against me vide show cause notice dated 04.09.2012. iv. That vide my letter dated 14.09.2012, which was sent to the Inquiry Officer, I had prayed for time to file my written statement as I had received the show cause notice dated 04.09.2012 only on 11.09.2012 and as such on account of paucity of time I would not be able to submit my reply before the date fixed for submission of reply. I had further submitted that the show cause notice dated 04.09.2012 does not name any witnesses or the evidence which will be relied upon against me. v. That the Enquiry Officer vide his letter dated 01.10.2012 submitted an Enquiry Report to the Disciplinary Authority. Perusal of the letter dated 01.10.2012 would reveal that 40 Nos. of Exhibits, 9 Nos. of Prosecution Witnesses were examined. Further the letter dated 01.10.2012 would also reveal that 1 no. of Defence Witness Page No.# 8/11 was also examined. It will be pertinent to state herein that no defence witness was produced by me in the said proceedings. In fact, as I had sought time to file my written statement by my letter dated 14.09.2012 and the same was not disallowed by the concerned Disciplinary Authority, I nursed a legitimate expectation that the enquiry proceedings will not proceed till elther I was allowed to file my reply to the show cause or till my sald letter dated 14.09.2012 was disposed off. vi. That the Enquiry Officer submitted his enquiry report before the Disciplinary Authority and the same was not forwarded to me as mandated under the Rules, 1964. 20. These grounds, which were specifically urged, were required to be dealt with by the Appellate Authority as these are matter of fact, which are required to be decided by calling for appropriate records and examination of the necessary exhibits or the witnesses to come to a conclusion, whether the grounds were validly urged before the Appellate Authority. However, the impugned speaking order dated 23.04.2024 passed by the Appellate Authority does not reflect that the Appellate Authority had addressed his grounds specifically either by accepting or by rejecting the same. The Appellate Order does not contain any reference to this grounds urged. 21. The law in respect of service of the enquiry report of the writ petitioner has been elaborately explained by the Apex Court in Managing Director, ECIL, Hyderabad and Others vs. B. Karunakar and Others 1993 4SCC 727 the subsequent Judgments which have been rendered by the Apex Court of India. The law in this regard is crystal clear that non-service of enquiry report on the delinquent Officer prior to issuance of the order passed by the Disciplinary Authority would be fatal and would not withstand the scrutiny of law. 22. What is also noticed by the Court is that under service jurisprudence and also specified under the Rules of 1964, the Enquiry Officer is required to Page No.# 9/11 conduct the enquiry in respect of the charges levelled against the writ petitioner and submit it before the Disciplinary Authority along with the conclusions of the Enquiry Officer with regard to the charges framed against the writ petitioner. Enquiry Officer is not to recommend imposition of punishment under Rule 7 of the Rules of 1964. This is the ambit reserved for the Disciplinary Authority. The Disciplinary Authority may or may not agree and accept the conclusion arrived at by the Enquiry Officer. In the event, the Enquiry Officer of the Disciplinary Authority disagreed with the conclusion arrived at by the Enquiry Officer then the procedure to be followed as prescribed under the Rule 9(A) of the Rule of 1964. However, the Appellate Authority did not address this issue as well, which is on the face of it contrary to the Rules prescribed in the Rules of 1964. The purpose of the Enquiry instituted against the Delinquent Officer is to enable fair and unbiased enquiry proceedings to be initiated against the Delinquent Officer in respect of the allegation made against the writ petitioner and by way of the show cause notice. Whether these allegations are found to be proved or partially proved or not proved is to be decided on the basis of the conclusions arrived at by the Enquiry Officer.What consequential orders and actions are required to be under taken by the Disciplinary Authority is to be left to the discretion of the Disciplinary Authority. 23. The question, therefore, before this Court is whether the Appellate Authority is empowered to look into the entire gamut of the enquiry proceedings under taken and the extent of the orders that may be passed by the Appellate Authority. In Narinder Mohan Arya Vs. United India Insurance Co. Ltd. and Ors. reported in (2006) 4 SCC 713, it was held that the appellate authority must give reasons in the appellate order so as to enable the Writ Court to ascertain whether there was any application of mind to the points urged before Page No.# 10/11 the appellate authority. It was the duty of the appellate authority to give reasons and/or record reasons thereof. The appellate authority is required to examine the conclusions arrived at by the Inquiry Officer as well as by the disciplinary authority as to whether the evidence adduced before the Inquiry Officer had nexus to the charges levelled against the writ petitioner. The power vested on the disciplinary authority is equally available to the Appellate Authority. Whatever orders the Disciplinary Authority can pass under the Rules is also reserve for the Appellate Authority, if the Appellate Authority finds that the enquiry proceedings conducted were not as per the procedure prescribed under the Rules of 1964. This apparently was not done by the Appellate Authority as is evident from the bare reading of the speaking order date 23.04.2024. 24. Under such circumstances, this Court is inclined to allow the writ petition in part interfering the impugned speaking order date 23.04.2024, passed by the Appellate Authority. The said order is therefore set aside. 25. The matter is remanded back to the Appellate Authority to re-decide the Appeal preferred by the writ petitioner by taking into consideration all the grounds urged and by calling for all the relevant records witnesses and/or documents as may be considered necessary for passing any reasoned order. 26. Any such order that is passed, a copy thereof shall be served on the writ petitioner. Needless to say, the petitioner will also be given the right of hearing. 27. The Appellate Authority will proceed to re-hear the matter as directed within period of 30 (thirty) days from the date of receipt of the certified copy of this order and will expeditiously conclude the hearing within the outer limit of 90 (ninety) days from the date the Appellate Authority proceeds to hear the matter. 28. As it is submitted by the writ petitioner that he has already crossed the Page No.# 11/11 age of superannuation, no orders are necessary for reinstatement or keeping the petitioner under suspension. In the event the Appellate Authority interferes with or modifies the order of punishment passed by the Disciplinary Authority, all consequential service financial benefits shall be allowed to the writ petitioner. 29. With the above observation, the writ petition stands allowed in part and disposed of. 30. Records placed before the Court shall be returned to the learned Standing Counsel, PWD. JUDGE Comparing Assistant