Page No.# 1/9 GAHC010029962023 2026:GAU-AS:9000 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/885/2023 DEBASHIS ACHARJEE S/O LT. . ANIL BANDHU ACHARJEE R/O FLAT NO. 5 A SARALA MOHAN RESIDENCY COMPLEX JATIA KAHILIPARA DIST. KAMRUP (M) ASSAM PIN 781019 VERSUS THE STATE OF ASSAM AND 2 ORS. REP. BY THE SECRETARY TO THE GOVT. OF ASSAM WATER RESOURCES DEPTT. DISPUR GHY-6 2:ADDITIONAL CHIEF SECRETARY TO THE GOVT. OF ASSAM WATER RESOURCES DEPTT. DISPUR GHY 6 3:THE CHIEF ENGINEER O/O THE CHIEF ENGINEER WATER RESOURCES DEPTT. CHANDMARI GUWAHATI 3 DIST. KAMRUP (M) ASSA Advocate for the Petitioner : MR. S K GOSWAMI, MR. N BARMAN,MR. B K GOSWAMI,MR. S K GOSWAMI Advocate for the Respondent : SC. WATER RESOURCE DEPTT., Page No.# 2/9 BEFORE HONOURABLE MR. JUSTICE RAJESH MAZUMDAR ORDER 22.06.2026 Heard Mr. S.K. Goswami, learned counsel for the petitioner. Also heard Ms. P. Chakraborty, learned counsel appearing for the respondents. 2. The petitioner had joined the Water Resources Department in the year 2010 as an Assistant Engineer. During the course of his service, the petitioner was transferred in 2018 as an Assistant Engineer (Civil) (Design). 3. By a letter dated 29.10.2018, issued by the Chief Engineer, Quality Control, Water Resources Department, the petitioner was directed to submit point wise reply to the allegations raised in the said letter. The petitioner replied to the same by his letter dated 31.10.2018. The petitioner was thereafter placed under suspension by Notification dated 06.12.2018 and by another Notification dated 12.02.2019, the petitioner was directed to submit his show cause reply/written statement against the two (2) charges levelled against the petitioner. The petitioner was also supplied the list of documents and list of witnesses along with the show cause notice under Rule 9 of the Assam Services (Discipline & Appeal) Rules, 1964. It was further informed that in the event the petitioner intended to inspect the documents, he should communicate the same within seven (7) days from the date of receipt of the communication and submit his explanation thereafter, within ten (10) days from the date of completion of the Page No.# 3/9 inspection of documents. The petitioner sought for certain documents through his application dated 30.04.2019. Thereafter, the petitioner submitted his reply to the show cause notice on 16.05.2019. The competent authority thereafter issued notification dated 04.06.2019 appointing an Enquiry Officer and a Presenting Officer respectively. 4. By the order dated 19.08.2020, the order placing the petitioner under suspension was revoked and he was directed to join as Assistant Engineer in the Office of the Executive Engineer, Silchar Water Resource Division, Silchar. The statements of the witnesses in the enquiry were recorded and by a communication dated 30.01.2021, the Deputy Secretary to the Govt. of Assam in the Water Resources Department forwarded the Enquiry Report to the petitioner requesting him to submit his representation on the Enquiry Report within 15 days from the date of receipt of the letter. Pertinent that the Enquiry Officer had found the charges against the petitioner to be partially established. The petitioner submitted his comments on the Enquiry Report through his letter signed on 05.02.2021. By the order dated 18.04.2022, the Disciplinary Authority, recording that it had considered all aspects of the matter and having secured the views of the Assam Public Service Commission, imposed the penalty of withholding of two (2) increments with cumulative effect under Rule 7(2) of the Assam Services (Discipline & Appeal) Rules, 1964. The period of suspension w.e.f. 06.12.2018 to 19.08.2020 was treated to be on duty for all purpose, while Page No.# 4/9 keeping the pay proportionate under the provision of Sub-Rule 8 of F.R. 54(B), which should be restricted to the subsistence allowance already paid to the petitioner during the period of suspension. 5. The petitioner thereafter preferred an appeal on 26.09.2022 along with the application for condonation of delay of 66 days in filing the appeal. By the order dated 09.12.2022, the appeal of the petitioner was disposed of recording that the competent authority was pleased not to change anything in the order dated 18.04.2022 and retained the punishment imposed on the petitioner. 6. The order of penalty and the order passed in the appeal are being challenged by the petitioner in this re-petition referred under Article 226 of the Constitution of India. The petitioner has prayed for setting aside of the impugned Enquiry Report, the order dated 18.04.2022 and the order dated 09.12.2022 and for grant of consequential relief. 7. Mr. S.K. Goswami, the learned counsel appearing for the petitioner, has referred to several discrepancies in the enquiry proceedings, some of which were the absence of an opportunity to the petitioner to cross-examine any of the witnesses and the unlawful act of the Enquiry Officer in calling in prosecution witnesses to depose after the petitioner had put in his statement in defence. The learned counsel for the petitioner had also submitted that the Enquiry Officer had acted in a biased manner by calling in documents and the witnesses on his own. Page No.# 5/9 8. It would be relevant to mention here that the learned counsel for the respondent authorities had produced the records relating to the enquiry proceedings on 19.05.2026, when the matter was heard, and it was noticed by this Court that the Presenting Officer appointed by the Competent Authority had recused himself from the proceedings and the records did not contain any order appointing a fresh Presenting Officer. This aspect of the matter is being taken note of, since the learned counsel for the petitioner had argued that, in the absence of a Presenting Officer, the Enquiry Officer had to play the role of the Presenting Officer also and as per the law laid down in Union of India v. Ram Lakhan Sharma and Others reported in (2018) 7 SCC 670, in the event prejudice is shown to have been caused to the petitioner due to the absence of a Presenting Officer, the enquiry proceedings would stand vitiated. It is also relevant to note here that as per the procedure laid down for conduct of disciplinary proceedings under the Assam Services (Discipline and Appeal) Rules and notifications thereunder, the appointment of a Presenting Officer for conducting disciplinary proceedings is a part of the procedure itself. In any event, in the present case, when the Competent Authority had appointed a Presenting Officer initially, and the total absence of a Presenting Officer later in the enquiry proceedings, in my considered opinion, would result in a defective enquiry proceeding. Be that as it may. 7. The learned counsel appearing for the respondent authorities, Ms. P. Chakraborty has submitted that there is no specific provision in law which would Page No.# 6/9 act as an impediment to the Enquiry Officer to call forth witnesses for clarification of the issues even after the delinquent officer had given his statement in defence. The learned counsel further submits that in the writ petition, the petitioner has not pleaded any prejudice being caused to him due to the absence of a Presenting Officer. This aspect of the matter has been countered by the learned counsel for the petitioner by submitting that the absence of a Presenting Officer had come to light only when the records of the proceedings were brought before this Court. The learned counsel for the petitioner submitted that since the evidence of the witnesses were taken without issuing notice to the petitioner, the petitioner was not present when the evidence on behalf of the Disciplinary Authority were being produced and recorded and therefore, the absence of a Presenting Officer has come to light only when the records were produced. 8. The learned counsel for the petitioner further submitted that due to absence of notice of the witnesses being called in for the enquiry, the petitioner was handicapped as he had lost the opportunity to cross-examine the witnesses produced by the department. On a pointed query by this Court, Ms. P. Chakaraborty, learned Standing Counsel for the Water Resources Department has fairly submitted that the records of the proceedings do not reveal the issuance of any notice to the petitioner herein to attend the proceedings before the Enquiry Officer when the statements of the witnesses produced by the Department were being recorded. Page No.# 7/9 9. At this juncture, this Court finds that it cannot be said that the enquiry proceedings had been conducted fairly, when the notices regarding the daily proceedings were not issued to the petitioner and therefore, he could not remain present when the evidence led by the department against him was being recorded. 10. The principles of natural justice require that a delinquent government servant is required to be given an opportunity of hearing before he is held guilty of committing misconduct. One of the vital aspects of the opportunity of hearing being granted to the delinquent officer is allowing him to be present when evidence against him is led and also affording him an opportunity to cross- examine the witnesses, to bolster his defence and to rebut the evidence led by the department against him. 11. In the present case, two aspects of the disciplinary of the enquiry proceedings disturbed this Court. The first is the absence of a Presenting Officer and the second is the absence of an opportunity to be present when statements of the witnesses were being recorded, leading to an absence of the opportunity to cross-examine. In the above view of the matter, I am of the considered opinion that the enquiry proceedings conducted by the Enquiry Officer against the petitioner cannot stand the scrutiny of law and deserves an interference in exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India by this Court. Accordingly, the enquiry proceedings conducted by the Page No.# 8/9 competent authority are set aside and quashed. Consequently, the penalty imposed by the Notification No. WR(CON) 7/2018/95 dated 18.04.2022 issued by order and in the name of the Governor, under the signature of the Addl Chief Secretary to the Govt. of Assam, Water Resources Department and the order dated 09.12.2022, rejecting the appeal of the petitioner are set aside and quashed. 12. Since the enquiry proceedings, the penalty imposed upon the petitioner and the order dated 09.12.2022 have been set aside due to procedural irregularities only and not on the merit of the defence sought to be put up by the petitioner, the respondents would now be at liberty to conduct the enquiry from the stage where the irregularities had crept in. The Disciplinary Authority would be at liberty to appoint new Enquiry Officer and Presenting Officer to conduct the enquiry proceeding in accordance with law, if it is so deemed necessary. In the event the Disciplinary Authority decides to conduct the fresh enquiry in accordance with the liberty granted by this Court, it is provided that the enquiry shall be conducted expeditiously and in any case be concluded within a period of six (6) months from today. The petitioner shall submit a certified copy of this order to the Secretary to the Govt. of Assam in the Water Resources Department within a period of 15 days from today. Page No.# 9/9 13. Writ petition is accordingly disposed of. JUDGE Comparing Assistant