Judgement GOSWAMI, C. J.:- This application under Article 226 of the Constitution is directed against an order of the Governor, of 29th September, 1966, withholding three increments to the petitioner with cumulative effect. 2. The petitioner, at the material time, was the Assistant Director of Cottage Industries under the Government of Assam. Certain departmental proceeding was instituted against him and on 15th May, 1964, he was called upon to show cause under five heads as follows:- "1. Disobedience of Government Orders- That you failed to hand over charge of the office of the Assistant Director of Cottage Industries, Dibrugarh promptly, completely and properly to Shri Pramatha Kumar Nath who was ordered in Government Notification inasmuch as in (Sic) you failed to hand over the cash balance in hand, the keys of the cash box and the cash book of the office of the Assistant Director of Cottage Industries, Dibrugarh to Shri Pramatha Kumar Nath when he reported at Dibrugarh on 24-1-64 to take over charge from you, which is against the rules and procedure of handing over charge." "2. Guilty of Misconduct:- That yon used your official position to obtain pecuniary advantage for your wife Shrimati Annapurna Srivastava by requesting officially the Assistant Coal Controller, Gauhati, to issue 500 (five hundred) Metric Tonnes of run of mine coal to the same Shrimati Annapurna Srivastava. You, therefore, misused your official position and are guilty of gross misconduct." "3. Guilty of gross misconduct:- That though you had no authority either to requisition Coal or to allot it you obtained, by using your official position and influence, four wagons of hard coke from M/s. New Assam Trading Company of 12, Lower Chitpore Road, Calcutta allotted them to some parties to Dibrugarh, realised the value from those parties, but failed to pay the value realised to M/s. New Assam Trading Company and are therefore guilty of gross misconduct." "4. Temporary misappropriation of Govt. money:- That you had received Rs.1,615.12 (Rupees one thousand six hundred fifteen and twelve naya paise) from the lady Instructor of the peripatetic Knitting and Embroidery Institute, Chowkidingi, Dibrugarh, but failed to enter it in the cash book or deposit it into the Treasury and are therefore, guilty of temporary misappropriation of Government money." "5. Non-compliance with Govt. money:- That you had received Rs.1,615.12 (Rupees one thousand six hundred fifteen and twelve naya paise) from the lady Instructor of the peripatetic Knitting and Embroidery Institute, Chowkidingi, Dibrugarh, but failed to enter it in the cash book or deposit it into the Treasury and are therefore, guilty of temporary misappropriation of Government money." "5. Non-compliance with Govt. Orders: That you failed to deposit a Cash Security of Rs.250.00 (Rupees two hundred fifty) in accordance with the terms and conditions of opening the personal ledger Account in respect of the Training-Cum-Production Centre Chabua, as instructed in Annexure A to Government letter No.CI 202/60/86 dated 17-2-61." The charge sheet was accompanied by statement of allegations. The petitioner submitted his explanation and appeared before the officer appointed to hold the enquiry. The enquiry officer submitted his report containing the following findings with regard to each of the charges: Charge No.1. "As such, regarding the Charge No.1, I hold that though the defendant officer did not disobey the Government orders of his transfer, he acted in an irresponsible manner and committed serious irregularities in process of handing over charge to his relieving officer." Charge No.2. "As such, Shri Shrivastavas permitting his wife to do business in coal which is likely to embarrass or influence him in the discharge of his official duties was not proper. Consequently, the recommending of his wifes name by himself can be taken as misconduct committed by him, though of a minor nature." Charge No.3. "From this I find that the allegation against the defendant officer that he using his official position and influence obtained 4 wagons of hard coke and allotted to some parties, falls through." The enquiry officer however, also adds after discussing the evidence: "From the above I find that the defendant officer being a responsible officer of the Government has by his act of retaining the Companys Money in his hand until now without any authority, committed temporary misappropriation of private fund which is a misconduct on his part." Charge No.4. "In view of the above it cannot be held beyond reasonable doubt that Shri Shrivastava personally received the full amount of Rs.2090.54 Np. on account of the sale proceeds of the Centre, or Rs.1615.12 Np. "In view of the above it cannot be held beyond reasonable doubt that Shri Shrivastava personally received the full amount of Rs.2090.54 Np. on account of the sale proceeds of the Centre, or Rs.1615.12 Np. as stated in the charge." The officer then also observed: "In view of what has been discussed above, I find Shri Shrivastava acted in a most irresponsible manner and is guilty of negligence of duties. He besides being guilty of temporary misappropriation of Rs.41.61 Np. is responsible for the loss to Government of the balance amount of Rs.871.69 Np. as the head of the Office. Besides this, I find that he committed an irregularity in not entering the sale proceeds of the Centre in the Cash Book and not depositing the same in the Treasury in violation of the instructions from the D.I.s office." Charge No.5. "As such I find that this is also an irregularity committed by the defendant officer, since February 1962, in violation, of Government instruction." The officer also then added: "In view of what has been discussed, I think it is essentially necessary that to bring out all irregularities committed and to find out the correctness of the accounts of the P.K. and E. Centre, Dibrugarh as well as of other accounts of the A.D.C.I.s office, Dibrugarh an immediate audit should be taken up by a special audit party of A.G. X X X X I think the Director of Industries should arrange inspection of these offices without delay" 3. The second show cause notice was given by the Governor on 20th of September, 1965, calling for his representation against proposed removal from service in the following terms: "Reference-Govt letter No.CT 51/64 X X X X X X X X On a careful consideration of the report and on perusal of the records and having regard to the evidence and circumstances appearing in this case, the Governor of Assam agrees with the findings of the Inquiry officer and holds that the charges Nos.1, 2, 8 and 4 of aforesaid letter are proved." The letter referred to is the show cause notice and the second show cause notice was accompanied by the enquiry officers report. 4. 4. The petitioner submitted his representation after which the impugned order was passed in the following terms: "Shri T.S. Srivastava, Assistant Director of Cottage Industries was charged with disobedience and non-compliance of Government orders, gross misconduct and temporary misappropriation of Government money and it was found that: (1) He did not conduct himself properly in handing over charge of his office in pursuance of Government orders. (2) He committed breach of R.21-A(2) of the Government Servants Conduct Rules. (3) He did not display sufficient sense of responsibility in the matter of proper maintenance of the accounts of the Peripatetic Knitting and Embroidery Institute. It is therefore ordered that three annual increments of Shri T.S. Srivastava, Assistant Director, of Cottage Industries be withheld with cumulative effect." This order was passed after first consulting the Vigilance Commissioner, whose recommendation of the penalty was accepted by the Government after the Assam Public Service Commission had agreed with the same. The petitioner lodged an appeal to the Governor against the order without success and hence this application. 5. The only question raised in this case is with reference to the order withholding increment of the petitioner and no argument was pressed with regard to the order of his suspension. 6. Mr. J.P. Bhattacharjee, the learned counsel for the petitioner, as well as the learned Junior Government Advocate Mr. A.M. Majumdar, stated that the Assam Service Discipline and Appeal Rules, 1964, govern the present case. These Rules are made under Article 309 of the Constitution of India and have statutory force. Part IV of the Rules deals with Discipline and it opens with rule 7 providing for septimal penalities and the present case fails under the second category therein namely, withholding of increments. The Governor in this case is the Disciplinary. Authority. Rule 9 prescribes the procedure for imposing penalities. By Rule 9(7). "At the conclusion of the inquiry, the Inquiring Authority shall prepare a report of the inquiry, recording its findings on each of the charges together with reasons therefor. This has been complied with by the Enquiry Officer in this case. Under sub-rule (8) of R.9. Authority. Rule 9 prescribes the procedure for imposing penalities. By Rule 9(7). "At the conclusion of the inquiry, the Inquiring Authority shall prepare a report of the inquiry, recording its findings on each of the charges together with reasons therefor. This has been complied with by the Enquiry Officer in this case. Under sub-rule (8) of R.9. The record of the inquiry shall include- (1) the charges framed against the Government servant and the statement of allegations furnished to him under sub-r.(2); (ii) his written statement of defence, if any; (iii) the oral evidence taken in the course of the inquiry; (iv) the documentary evidence considered in the course of the inquiry; (v) the orders, if any, made by the Disciplinary Authority and the Inquiring Authority in regard to the inquiry; and (vi) a report setting out the findings on each charge and the reasons therefor." By Sub-rule (9) "The Disciplinary Authority shall, if it is not the Inquiring Authority, consider the record of the inquiry and record its findings on each charge." Sub-rule (10) provides the procedure for dealing with major penalties specified in clauses (iv) to (vii) of Rule 7. Sub-rule (11) deals with minor penalties specified in clause (i) to (iii) of Rule 7. Even though it is a minor penalty being withholding of increments, still under Sub-rule (11) read with Sub-rule (12)(a), the procedure prescribed under Rule 9 has to be followed and was indeed sought to be followed in this case. The procedure laid down under Rule 9 is a mandatory procedure and any violation of the rule will vitiate the enquiry. These rules have been made in order to ensure security of the service and cannot be allowed to be by-passed or observed in a casual and mechanical way. These are not merely ceremonial adornment in print but are meant to be properly and positively observed. 7. In the present case, as noticed earlier, the enquiry officer has not found the petitioner guilty of the first charge and with reference to the second charge he held that the misconduct committed by him was of a minor nature. He has held that the third charge "falls through", although he was found to have "committed temporary misappropriation of private fund, which was not at all the subject-matter of the charge. He also held the fourth charge to have not been proved. He has held that the third charge "falls through", although he was found to have "committed temporary misappropriation of private fund, which was not at all the subject-matter of the charge. He also held the fourth charge to have not been proved. Although he held mat the officer acted "in a most irresponsible manner and guilty of negligence of duties," that was again not the, subject-matter of the fourth charge. The fifth charge is held to be proved oh admission and it was held to be "an irregularity committed by the defendant officer." 8. The Disciplinary Authority, on a perusal or the report, is said to have agreed with the findings of the enquiry officer, in which case it would have normally held that charges Nos.1, 8 and 4 were not proved. But, it appears even though it has agreed with findings of the enquiry officer it has held that the charges Nos.1, 2, 3 and 4 are proved. It is not obligatory for the Disciplinary Authority, if it is not the Enquiring Authority, to agree with the findings or the enquiry officer, and it is open to it to come to its own independent conclusion on the evidence after perusal of the report of the Officer. Rule 9(10)(a) lays down that in case of the disagreement with the findings of the enquiring officer, the Disciplinary Authority has to record its brief reasons for its disagreement with those findings. In this case, although the enquiring officer has more or less and substantially absolved the petitioner from the charges specifically levelled against him, the Disciplinary Authority, in fact, disagreeing with these findings and without recording the reasons for this disagreement held him guilty of the four charges leaving out the fifth charge altogether. The impugned order again gives a different picture detailing three findings. With regard to the first finding that the officer "did not conduct himself properly in handing over charge of office in pursuance of Government orders", the enquiring officer having found this particular charge to be not proved, the Disciplinary Authority could not find the petitioner guilty of this charge without giving its reasons for disagreement and in the absence of its independent finding on the evidence. The second finding is with regard to breach of Rule 21-A(2). The second finding is with regard to breach of Rule 21-A(2). The learned Counsel for the Respondents could not produce the said rule and the officer was never given any opportunity to know or meet this charge. The third finding refers to the officer not displaying "sufficient sense of responsibility in the matter of proper maintenance of the accounts", there was no charge as such levelled against him. The officer had no reasonable opportunity of meeting this Charge. 9. There is another serious infirmity in the course of the enquiry against the petitioner. It appears and is admitted by the Respondents that before passing of the impugned order the Disciplinary Authority had consulted the Vigilance Commissioner and "that it was on the opinion of the Vigilance Commissioner that he was imposed only a lesser punishment" as clearly stated in the affidavit of the second Respondent. By R.9(10)(ii) the Disciplinary Authority "shall . . . . determine what penalty, if any, should be imposed on the Government servant." and by Rule 9(10)(iii) where it is necessary to consult the Assam Public Service Commission, inter alia, "the penalty determined by the Disciplinary Authority under Clause (ii) above shall be forwarded to the Commission for its advice." By Rule 9(10)(iv) on receipt of the advice of the Public Service Commission and taking such advice into consideration, the Disciplinary Authority shall pass appropriate orders on the case. Thus, the opinion of the Public Service Commission and not of the Vigilance Commissioner is alone relevant. Whatever may be the gravity of the administrative exigency, the Rules do not contemplate consultation with the Vigilance Commissioner whose advice should not have been sought in this matter. We repeat mat these Discipline Rules are to be honestly and faithfully observed and we regret to find that the authorities at various levels do not appear to have addressed to the Rules in disposing of the departmental enquiry in this case. The impugned order of withholding the three increments of the petitioner, therefore, dearly violates the provisions of R.9 and even violates the rules of natural justice and has to be struck down, which we hereby do under Article 226 of the Constitution. 10. The application is allowed. The Rule is made absolute. We will, however, make no order as to costs, 11. R. S. BINDRA, J.:- I agree. 12. BAHABUL ISLAM, J.: I agree. Rule made absolute.