Non-compliance with mandatory procedural requirements can render disciplinary proceedings void ab initio if it causes prejudice to the person being proceeded against.

I have heard Mr. BK Sharma, learned counsel for the writ petitioner, as well as Mr. Das, learned Govt Advocate appearing for the State-respondents. I have also perused the records of the case.

2. By this application under Article 226 of the Constitution of India, the petitioner has challenged the legality and validity of the order dated 28.4.90 passed by the Deputy Commissioner, Kokrajhar dismissing him from service and also the order dated 24.7.91 passed by the Commissioner, Lower Assam Division vide Memo No. PAP.4/90/57 and also the order dated 28.10.91 passed by the Assam Administrative Tribunal rejecting the petitioner's appeal petition.

3. Petitioner's case in brief is that he was appointed as a Process Server in the Gosaigaon Tehsil Office in the Kokrajhar District wef 27.7.67. He was placed under suspension by the SDO (C), Kokrajhar by order dated 14.7.82 with immediate effect. He was also served with a show cause notice dated 20.3.84 by the Deputy Commissioner, Kokrajhar. Charges were framed against him issuing the statements of allegations and he was called upon to submit his written statement of defence within 10 days from the date of receipt of the show cause notice. The aforesaid show cause notice initiating departmental proceedings against him was issued after 20 months and 4 days of his suspension. The charges levelled against him were:

(i) Misappropriation of Govt money,

(ii) causing disappearance of CFR Book No. 679 with a view to escaping the guilt of receiving the amounts involved.

4. Petitioner submitted a written statement of defence denying the charges framed against him. An Inquiry Officer was appointed to inquire into the charges. In the departmental proceeding, witnesses in support of the charges were examined though in the show cause notice (Annexure B) served on him, no witnesses were cited. On conclusion of the disciplinary proceedings, the Deputy Commissioner passed the impugned order dated 28.4.90 dismissing the petitioner from service. The Commissioner, Lower Assam Division (appellate authority) dismissed his appeal by order dated 24.7.91. The petitioner then approached the Assam Administrative Tribunal in Appeal Case No. 1459 ATA/91; but the learned Tribunal vide its judgment and order dated 28.10.91 rejected the appeal petition, and hence this writ petition before this Court.

5. It is contended that the disciplinary proceedings was conducted in violation of the mandatory provisions laid down in Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 inasmuch as, the list of documents relied upon by the disciplinary authority and the list of witnesses were not furnished to the petitioner. Rule 9 (2) reads as under :

“(2) The Disciplinary Authority shall frame definite charges on the basis of the allegations on which the inquiry is proposed to be held. Such charges together with a statement of the allegations on which they are based, shall be communicated in writing to the Govt servant, and he shall be required to submit, within such time as may be specified by the Disciplinary Authority, a written statement of his defence and also to state whether he desires to be heard in person.

At the time of delivering the charges, the Disciplinary Authority shall

invariably furnish to die Govt servant a list of documents and witnesses by which each article of charges is proposed to be sustained.” (emphasis supplied).

6. Mr. BK Sharma, learned counsel for the petitioner submits that in the instant case, admittedly, the requirement under the above Rule to furnish the list of documents and the list of witnesses were not complied with and, as such, disciplinary proceedings were conducted in violation of requirement of the said Rule, and hence cannot be allowed to stand. In support of his contention, Mr. Sharma has referred to the decisions of the Single Bench of this Court in Civil Rule No. 577 of 1990 and of the Division Bench decision of this Court in Writ Appeal Nos. 162,164 and 165 of 1994. confirming the de

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