IMPORTANT POINT
A major penalty cannot be imposed without following procedural requirements, including providing an opportunity for defense, as per the Assam Services (Discipline and Appeal) Rules.

JUDGMENT :

SUMAN SHYAM, J

1. Heard Mr. D.N. Bhattacharyya, learned counsel for the writ petitioner. I have also heard Mr. D. Gogoi, learned Standing Counsel, Public Health Engineering (PHE) Department, Assam, appearing for the respondent nos. 1, 2 & 3 and Ms. P. Sarma, learned Standing Counsel, APSC, appearing for the respondent no. 4.

2. In the present writ petition, the order of penalty dated 14/12/2023, dismissing the petitioner from service with disqualification in future employment, purportedly issued under Rule 9(10) and 7 (vii) of the Assam Services (Discipline and Appeal) Rules, 1964 (herein after referred to as the Rules of 1964 ) has been put under challenge on several grounds. However, the primary ground urged by the petitioner’s counsel is that the order of penalty has been issued without following the prescribed procedure laid down in Rule 9 of the Rules of 1964 or after giving proper opportunity to the petitioner to defend his interest.

3. It appears that the writ petitioner was posted as Executive Engineer, PHE Department, Nalbari Division in the year 2022 when, an enquiry was conducted by the Deputy Commissioner (now District Commissioner), Nalbari into the allegation of misappropriation of Government fund by the petitioner. On conclusion of such enquiry, conducted through the Superintending Engineer, PHE, Nalbari Circle, a report was submitted on 04/04/2022. Copy of the Enquiry Report dated 04/04/2022 was also forwarded to the Government. Taking note of the report dated 04/04/2022, on 13/06/2022, the Commissioner and Secretary to the Government of Assam, PHE Department, Assam, had initiated Departmental Proceeding against the writ petitioner by issuing show cause notice, framing the following charge:-

“(1) That while you were serving as Executive Engineer (PHE), O/o. the EE (PHE), Nalbari Division, it is alleged that major misappropriation of Govt. money under SBM-G under Nalbari District took place due to which objective of Swachh Bharat Mission (Gramin) has suffered which violates Rule 3 of Assam Civil Service (Conduct) Rules 1965. You are therefore charged with misappropriation of Govt. money.”

4. The show cause notice dated 13/06/2022 was accompanied by the following statement of allegations :-

“That while you were serving as Executive Engineer (PHE), O/o the EE (PHE), Nalbari Division, Nalbari, it is alleged that a major misappropriation of Govt. money under SBM-G under Nalbari District took place by making payment of 6 nos. of false bills for an amount of Rs. 34.20 lakh in two occasions on dtd. 05.02.2021 for an amount of Rs. 6,00,000.00 and on dtd 21/03/2021 for an amount of Rs. 28,20,000.00 in favour of Hames Society due to which objective of Swachh Bharat Mission (Gramin) has suffered which violates Rule 3 of Assam Civil Service (conduct) Rule 1965. You are therefore charged with misappropriation of Govt. money.”

5. It is the case of the petitioner that he was not afforded any opportunity to present his case or to produce evidence in his defence. On the contrary, on 27/04/2022, the Deputy Commissioner, Nalbari, had furnished copy of the enquiry report dated 04/04/2022 to the Additional Chief Secretary to the Government of Assam, PHE Department, Assam, holding that the petitioner was guilty of misconduct of embezzlement of public money. Based on such report, the impugned order dated 14/12/2023 was issued, thereby, dismissing the petitioner from service, without holding any Disciplinary Proceeding as per law.

6. It is the specifically pleaded case of the petitioner that before the impugned order dated 14/12/2023 imposing the major penalty of dismissal from service was issued, no enquiry, within the meaning of Rule 9 of the Rules of 1964, was conducted nor was the petitioner given any opportunity of being heard in the matter. The learned counsel for the petitioner has also argued that even the ch