JUDGMENT :

1. The extraordinary jurisdiction conferred by Article 226 of the Constitution of India is being sought to be invoked by the petitioner who has put to challenge a Disciplinary Proceedings which has culminated in an order of dismissal from service. It is the case of the petitioner that such dismissal order was initially passed on 12.01.2022, which was the subject matter of challenge in a Departmental Appeal, in which the Appellate Authority had passed an order dated 27.04.2022 by remanding the matter back and had also directed that till such reconsideration, the impugned dismissal would remain stayed. Subsequently, vide an order dated 30.06.2022, a fresh order of penalty was passed by the Disciplinary Authority, whereby the earlier order of dismissal was upheld.

2. Before going to the issue which has arisen for adjudication, it would be convenient if the facts of the case is narrated in brief.

3. The petitioner was appointed as an Assistant Teacher (Graduate Level) on 20.08.1986 and was posted at the BDS Government HS School, Kahilipara which is mainly for students having hearing impairment. The petitioner claims to have been promoted as a Graduate Teacher on 09.04.1990. While serving as such, an order was passed on 20.01.2004, whereby the petitioner was transferred, on attachment to the School of Hearing Imparied, Jorhat. The petitioner claims to have joined the said post and continued with it, however there was some break due to serious ailment of his wife who had subsequently passed away. It is the case of the petitioner that from the year 2006, his wife was unwell.

4. Since the petitioner was found absent from his duties, on 11.03.2013, an order was passed, directing an enquiry which had culminated in a Report dated 12.04.2013, whereby the Enquiry Officer found the allegation to be factually correct. Consequently, a Show Cause Notice was formally served on the allegation of unauthorised absence on 19.03.2014, to which the petitioner has claimed to have submitted a reply on 01.04.2014. However, the petitioner has also annexed a communication dated 07.04.2014 whereby the petitioner had informed his inability to submit any statement of defence as he had asked for certain documents. In fact, there is a letter dated 31.03.2015, allowing the petitioner to inspect the document.

5. On 06.11.2019, the petitioner claims to have submitted a representation to consider his absence and documents were also sent by the Principal of Jorhat, School regarding his attendance. The petitioner also relied upon a communication dated 01.12.2020 by the Director of Social Welfare, Assam who had given a proposal with regard to the grant of extraordinary relief to the petitioner as he was suffering from tuberculosis.

6. However, on 22.07.2021, a fresh Show Cause Notice was served upon the petitioner. The said Notice was however replied to by the petitioner on 04.08.2021. At that stage, the petitioner had filed WP(C)/5913/2021 in this Court in which notice of motion was issued on 10.11.2021. It is the case of the petitioner that only after such filing, he could know about the Show Cause Notice. In fact, even before the order was passed by this Court on 03.11.2021, the date of enquiry was fixed. The enquiry was accordingly held and the second Show Cause Notice was served upon the petitioner on 06.12.2021 by enclosing Report of the Enquiry Officer dated 03.12.2021. The same was replied to by the petitioner on 09.12.2021. However, vide order dated 12.01.2022, the petitioner was dismissed from service under the provisions of FR 18. As indicated above, the petitioner had preferred a departmental appeal and in this connection had filed another writ petition being WP(C)1135/2022 with the grievance that the appeal was not being considered. This Court had disposed of the said writ petition vide order dated 21.02.2022 with a direction to dispose of the said appeal. In compliance with the said order, the Appellate Authority had passed an order on 27.04.2022 w