JUDGMENT :

1. Heard Mr. M Sarma, learned counsel for the petitioner. Also heard Mr. R Dhar, learned Additional Senior Government Advocate for the respondents in the State of Assam.

2. The petitioner was serving as a Superintending Engineer in the respondent Public Works Department and while he was in service he was issued a show cause notice dated 04.07.2015, under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 (in short, Rules of 1964) read with Article 311 of the Constitution of India requiring him to show cause as to why penalty prescribed under Rule 7 of the Rules of 1964 shall not be imposed on the petitioner in respect of the two charges that are provided in the show cause notice itself. The petitioner submitted his reply dated 24.07.2015. The proceeding initiated against the petitioner resulted in the order dated 03.03.2017 of the Secretary to the Government of Assam in the Public Works Roads Department.

3. The relevant provisions of the order passed in the disciplinary proceeding against the petitioner dated 03.03.2017 is extracted as below:

“And whereas in the Meeting of the Public Accounts Committee, Assam Legislative Assembly held on 23 rd September, 2016, the Chairman on Para 2.2.3 (above mentioned C & AG’s report) has decided and directed to (1) re-instate the service of the Superintending Engineer (Sri Kader) immediately and recover the remaining amount during his service period and (2) to submit a report before the committee by March, 2017 regarding the other punishment taken against the Executive Engineer.

Now, after careful consideration of all the aspects and non-recovery of considerable amount of Govt. money from the contractor concerned, the Govt. in PWD decided to re-instate Sri Abdul Kader Superintending Engineer, PWRD revoking the suspension order issued vide No.CON.33/2015/101 dated-18-06-2015 in service with the following penalties.

1. The period of suspension is to be treated as on duty only for pensionary purpose and salary for the suspension period shall be limited to subsistence allowance received or to be received by him.

2. Whole of his DCRD is to be recovered and his pension is limited to 50% of his net pension.”

4. A reading of the aforesaid-extracted provisions of the order dated 03.03.2017 makes it discernable that as per the meeting of the Public Accounts Committee of the Assam Legislative Assembly held on 23.09.2016 there was a decision to reinstate the petitioner in his service as Superintending Engineer and to recover the remaining amount during his service tenure.

5. Accordingly, by the said order the petitioner was reinstated as Superintending Engineer, PWRD upon revocation of the order dated 18.06.2015 but certain penalties were imposed. One of the penalties imposed upon the petitioner by the order dated 03.03.2017 is that the period of suspension shall be treated to be on duty only for the pensionery purpose and the salary for the suspended period shall be limited to subsistence allowance already paid to the petitioner. A further penalty is imposed that the whole of his DCRG which is understood to be a pensionery benefit is to be recovered and his pension be limited to 50% of his net pension.

6. Being aggrieved by the order dated 03.03.2017 the present writ petition is instituted.

7. It is informed to the Court that the tenure of service of the petitioner upon superannuation came to an end on 31.03.2017. We have noticed that the order of punishment is dated 03.03.2017.

8. We have particularly noticed that the dominant penalty imposed upon the petitioner is that the whole of his DCRG is to be recovered and that his pension would be limited to 50% of his net pension. In other words the order of penalty is in the nature of a penalty by which the pensionery benefits which the petitioner otherwise would have been entitled had been interfered to a certain extent.

9. We have already noticed that as per the show cause notice dated 04.07.2015 the petitioner was asked to show c