This matter arises out an ego problem of the petitioner and the Acting Vice Chancellor of the Dibrugrah University at the relevant time. The fall out of it was a disciplinary enquiry against the petitioner and there was a resolution by the Executive Council and the punishment of compulsory retirement was imposed on the petitioner. That resolution is quoted below : “ This meeting of the Executive Council considers the finding of the Inquiry Officer on each charge and is also satisfied that all the constitutional safegards and reasonable opportunities as provided by Article 311 of the Constitution of India were given to Dr.DH Goswami at the inquiry. Agreeing with the findings of the Inquiry Officer the Executive Council finds Dr. DH Goswami guilty in respect of charge No.l, 2 and 10. As the offence are very serious in nature and call for imposition of major penalty for the maintenance of discipline and order in the University administration, the Executive Council consider that the punishment of compulsory retierment from the service shall meet the ends of justice. Therefore, the Executive Cornell has decided to compulsorily retire Dr. DH Goswami from the service of the Dibrugarh University with immediate effect.” This resolution is dated 4.9.91. 2. The petitioner is highly qualified and he was appointed as Registrar, Dibrugarh University and it is admitted by all that he is a competent officer. On 11.12.90 a charge sheet was issued against the petitioner drawing up as many as 10 charges against him. Though in the enquiry only 3 (three) charges (charge Nos.l, 2 and 10) were found to be established yet for the proper appreciation of the matter, the whole of the charge sheet is quoted below. I am doing this as a common thread runs through all the charges and the thrust of the charges is that the petitioner was charged with gross insubordination, indiscipline and misconduct. The charges are quoted below : “ You are hereby required to show cause under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 as to why any of the penalties prescribed under Rule 7 of the aforesaid Discipline and Appeal Rules should not be inflicted upon you on the following charges brought against you based on statement of allegations attached herewith. Charge No.l : That on 10.8.90 you suo-moto assumed the office of the Vice Chancellor of the Dibrugarh University without being appointed so by the Chancellor of the Dibrugarh University and continued to act as the self styled Vice Chancellor of the Dibrugarh University till 11.8.90. You passed orders contained in order No.DU/RG/90/2917 dated 10.8.90 and order No.DU/RG/90 dated 10th August, 1990 as the Registrar and Vice Chancellor In-charge and signed the aforesaid orders as the Registrar and the Vice Chancellor In-charge of the Dibrugarh University and circulated the same forwarding copy of the order No.DU/RG/90/2917 dated 10.8.90 to (1) Sri BC Saikia, Controller of Examinations, Dibrugarh University, (2) The Section Officer (Establishment) and the order No.DU/RG/90 to (1) Sri BC Saikia, Controller of Examinations, Dibrugarh University, (2) The Deputy Registrar (F&A) Dibrugarh University, (3) The Deputy Registrar (Academic), Dibrugarh University, (4) The Section Officer (Establishment Branch) Dibrugarh University. This transgression of yours is most reprehensible and for the commission of this illegality you are charged of gross misconduct and indiscipline. Charge No.2 : That vide order No.DU/RG/90/2917 dated 10th August, 1990 you sanctioned your leave without authority for unspecified period without any application for leave as the Registrar and Vice Chancellor In-charge and also challenged the authority of the Chancellor of the Dibrugarh University and defied his order appointing Dr. Kamal Chandra Barua as the Vice Chancellor In-charge. Vide order No.DU/RG/90 dated 10.8.90 you passed and circulated an illegal order directing Sri BC Saikia, Controller of Examination, Dibrugarh University to act as Registrar In-charge of the Dibrugarh University and order which you are not authorised to pass in the capacity of the Registrar and also as the Vice Chancellor In-charge since you are not appointed Vice Chancellor In-charge by the Chancellor, Dibrugarh University] You also caused this illegal order executed. For this act of illegality and high handedness beyond conception you are charged of gross insubordination, indiscipline and misconduct. Charge No.3 : That vide letter No.DU/RG/90/3127 dated 10th October, 1990 signed by you as Registrar of Dibrugarh University you not only addressed the Vice Chancellor In-charge as Dr. For this act of illegality and high handedness beyond conception you are charged of gross insubordination, indiscipline and misconduct. Charge No.3 : That vide letter No.DU/RG/90/3127 dated 10th October, 1990 signed by you as Registrar of Dibrugarh University you not only addressed the Vice Chancellor In-charge as Dr. KC Baruah, Professor, Department of Physics, Dibrugarh University knowing fully well that the Chancellor vide his order No.GSA.2/87 dated 9.8.90 has appointed Dr.KC Barua to act as the Vice Chancellor, but challenged and defied the authority of Vice Chancellor In-charge and outright rejected his order contained in office order No.DU/VC/1/90/280 dated 10.10.90 terming the order as illegal and uncalled for and returned the same. By this illegal act of yours you defied the lawful order passed by the Honourable Chancellor: If an officer holding as high position as that of the Registrar of the Dibrugarh University, a position of prestige, trust and responsibility who is expected to enforce law, order, discipline and good conduct amongst the staff and officers of Administration commits acts of misconduct, insubordination and indiscipline of such dimension the administrative atmosphere is sure to be vitiated casting reflections on the decency, decorum and efficiency in the administrative set up. Therefore, you are charged for committing acts of gross misconduct, insubordination and indiscipline on this count. Charge No.4 : That you issued a letter bearing No.DU/RG/90/3127 dated 10.10.90 in violation of official practice and procedure to the effect that Dr.KC Bama had been continuing as the Vice Chancellor In-charge without prior approval. This letter was widely circulated which betrays malice and a motive of dwarfing the Vice Chancellor In-charge in the estimation of officers, students and staffs of Dibrugarh University. This is an act of gross misconduct, indiscipline and insubordination. Charge No.S : That by verbal order you obstructed official correspondence between the office of the Vice Chancellor and office of the Registrar, Dibrugarh University on 10.10.90 and 11.10.90. At your behest all the official letters and files despatched from the office of the Vice Chancellor on 10.10.90 and 11.10.90 including office order of Vice Chancellor No.DU/VC/1/90/281-309 dated 10.10.90 were refused in the office of the Registrar and all correspondences and files due to be despatched from the office of the Vice Chancellor during this period were stopped. At your behest all the official letters and files despatched from the office of the Vice Chancellor on 10.10.90 and 11.10.90 including office order of Vice Chancellor No.DU/VC/1/90/281-309 dated 10.10.90 were refused in the office of the Registrar and all correspondences and files due to be despatched from the office of the Vice Chancellor during this period were stopped. This illegal and undue obstruction in the day to day official business of the University hampered administration causing deadlock and bringing the administration almost to standstill for two days with consequential set-backs. This act of yours tantamounts to gross misconduct and indiscipline and you are therefore charged of committing misconduct and indiscipline on this count. Charge No.6: That in utter violation of administrative procedure you conducted your official business during period of so called earned leave when you were not in the office, on 22.9.90 you pass an order on an application made by Sri HC Biswas; on 24.9.90 you passed an order on an application made by Sri HN Kakoty of Sibsagar dated 22.9.90; on 24.9.90 you passed order on application filed by Sri SS Sharma of Sibsagar and on the same day i.e. on 24.9.90 you passed yet another specific order on an application dated 14.9.90 made by one Colonel Jagjit Singh. This is an act of misconduct. You are, therefore, charged with committing the act of misconduct in this respect. Charge No.7 : That you have circulated official Notice No.DU/RG/90/3094-124 dated 6.10.90 and a copy of the same was forwarded to Sri K.Bora as Vice Chancellor, knowing fully well that Sri K.Barua was then the Vice Chancellor In-charge and Sri K. Bora had extended earned leave. This act of yours tantamounts to misconduct, indiscipline and insubordination. You, are therefore, charged of misconduct, indiscipline and insubordination. Charge No.S: That you intentionally refused to attend the PGSU meeting held on 10.10.90 in spite of information given to you vide Memo No. DU/SWS/PGSU/ 336-42 dated 10.10.90 where urgent 38 points demand of the PGSU were to be discussed. Knowing fully well that your presence was absolutely necessary. Your absence in the meeting cause difficulties and offended the student representatives of PGSU and created a situation which would have led to serious law and order problem but for the intervention of the Vice Chancellor In-charge. This was an act of wilful defiance, indiscipline and insubordination. Knowing fully well that your presence was absolutely necessary. Your absence in the meeting cause difficulties and offended the student representatives of PGSU and created a situation which would have led to serious law and order problem but for the intervention of the Vice Chancellor In-charge. This was an act of wilful defiance, indiscipline and insubordination. Therefore, you are charged of committing acts of indiscipline, insubordination. Charge No.9 : That during 9.10.90 to 11.10.90 you ignored the Vice Chancellor's (In-charge) order for the release of DA to the employees of the Diburugarh University, thereby causing discontentment among the employees of the University and tried to create chaos in University. Your action was directed towards creating unrest in the University which was an act of indiscipline and misconduct. Therefore, you are charged for committing act of indiscipline and misconduct. Charge No. 10 : That you defied Vice Chancellor In-charge and acting against the official procedure and by passing the Vice Chancellor In-charge you sent your earned leave application dated 10.10.90 directly to the Chancellor of Dibrugarh University for sanction. You deliberately resorted to this act knowing fully well that the Chancellor has nothing to do with leave application of the officer. Under the leave rules it is the Vice Chancellor who is to grant leave to its officers and employees. This act of yours is an act of indiscipline, misconduct and insubordination. Therefore, you are charged of committing acts of insubordination. As the Registrar of the Dibrugarh University you are suppose to enforce discipline amongst the officers and administrative staff. By your acts and deeds you have proved yourself most indiscipline and insubordinate. You are, therefore, charged with committing acts of gross misconduct, indiscipline and insubordination as specified above. You should submit your written statement within 15(fifteen) days from the receipt of this communication to be placed in the Executive Council. In case you intend to inspect the documents which have relevance with the issues mentioned above you can do so in presence of responsible officer of the University to nominated by the Vice Chancellor.” 3. It will be evident from the charges quoted above that a common thread runs through all the charges though the factual matrix of the charges are different. It will be evident from the charges quoted above that a common thread runs through all the charges though the factual matrix of the charges are different. In charge No. 1 which was held to be established, the factual basis is that on 10.8.90, the petitioner suo-moto assumed the office of the Vice Chancellor of the Dibrugarh University and continued and acted as the self styled Vice Chancellor of the Diburgarh University till 11.8.90 and passed certain orders as Registrar and Vice Chancellor In-charge. In charge No.2, it is stated that the petitioner sanctioned his own leave and challenged the validity of the order of Chancellor of the Dibrugarh University and defied his order appointing Dr. Kamal Chandra Barua as the Vice Chancellor In-charge. It is also stated that he directed one Shri BC Saikia, Controller of Examination, Dibrugarh University to act as the Registrar In-charge of the Dibrugarh University. Charge No. 10 is that the petitioner defied the Vice Chancellor In-charge and bypassing the Vice Chancellor In-charge sent his application for earned leave directly to the Chancellor bypassing the Vice Chancellor. Alongwith the charge sheet, the statement of allegations were sent to the petitioner asking him to file written statement within 15 days from the date of receipt of the said communication. 4. It may be stated herein that the Dibrugarh University has no separate set of disciplinary rules and the Executive Council of the Dibrugarh University in its 73rd Meeting held on July, 1974 resolved that the University would follow the State Government Rules in matters not covered by the rules of the University, as such the Assam Sercices (Discipline and Appeal) Rules, 1964 (hereinafter called the Rules) shall apply to this case as admitted by both the sides. Rule 9 of the aforesaid Rules provides for procedure for imposing penalties. Rule 9 (2) inter alia provides as follows : “ At the time of delivering the charges the Disciplinary Authority shall invariably furnish to the Government servant a list of documents and witnesses by which each article of charge is proposed to be sustain.” 5. Rule 9 of the aforesaid Rules provides for procedure for imposing penalties. Rule 9 (2) inter alia provides as follows : “ At the time of delivering the charges the Disciplinary Authority shall invariably furnish to the Government servant a list of documents and witnesses by which each article of charge is proposed to be sustain.” 5. In para 3 of the writ application, it is stated as follows : “ The list of witnesses and the list of documents which is mandatorily required to be furnished allong with the charge sheet and the statement of allegations were not served on the petitioner along with the charge sheet dated 11.12.90 or at any point thereafter till date. The charge sheet dated 11.12.90 was, therefore, in violation of the mandatory provision of Rule 9 of the said Rules and was therefore ultra vires the said Rules.” 6. In paragraph 5 of the affidavit-in-opposition its is stated as follows : “ That the statement made in para 3 of the writ petition are not correct and are denied. It is denied that the list of the witnesses and the documents relied were not furnished along with the charge sheet. The petitioner at no point of time informed or complained that this were not furnished to him. Instead he filed the written statement and not a whisper was there as to the non-fumishing the documents nor the names of the witnesses. This allegation is an after thought. The Rule 9 (2) provides that it is the petitioner who is required to intimate the authority that he desires to be heard in person. Under the Rule he is required to asked for inspection of documents and under Rule 9 (5) the delinquent officer is required to specify as to whether he desires to be assisted by any other officer. The question of reminding the petitioner of his rights under the Rules does not arise at all. He submitted his written statement and he did not mention therein that he submitted the written statement without prejudice to his right and additional written statement in case the documents relied on by the management were made available to him after sometime. All those allegation are baseless and denied.” 7. He submitted his written statement and he did not mention therein that he submitted the written statement without prejudice to his right and additional written statement in case the documents relied on by the management were made available to him after sometime. All those allegation are baseless and denied.” 7. At the time of hearing a Dak Despatch Register was produced before the Court which shows that on 27th April, 1991 a letter was said to be sent to the petitioner wherein it was stated that the list of documents and witnesses as required under the Rules are sent to him. There is a report by someone on the back of this letter which reads as follows : “ I sent this letter two times to his residence. Registrar refuses to sign. Hence, the letter is filed for needful.” 8. So, what emerges from this is that, in compliance with the Rule 9 (2) of the aforesaid Rules the disciplinary authority shall invariably furnish to the Govt. servant a list of documents and witnesses by which each article of charge is proposed to be sustained. So, there was violation of this Rules inasmuch as at the time of sending the charge, the disciplinary authority did not furnish to the Govt. servant the list of documents and witnesses and an attempt was made to serve it at subsequent point of time. At that point of time nothing was said how these documents and witnesses will be utilised to sustain each of the article of charges. Only a bare list of the documents and witnesses were sought to be served on 27th April, 1991 long after delivering the charges to the petitioner. What will be the consequence of it will be discussed later on but this is the factual aspect of the matter. The list of documents mentioned in letter dated 27th April, 1991 are as follows : “List of documents: 1. Governor's order received in the office of the Vice Chancellor on 9.8.90 allowing Dr.K.Bora to remain In-charge of office of the Vice Chancellor. 2. Telegram from Bangalore dated 3.10.90 by Sri K.Bora, Vice-Chancellor, Dibrugarh University to Dr. KC Bora Vice Chancellor lie to remain in-charge of Vice Chancellor till 21.10.90. 3. Copy of letter from Sri K.Bora, Vice Chancellor to the Chancellor on 7.9.90, requesting Dr.K.Borua to remain In-charge of VC's office. 4.Governor's order of extension Memo No.GSA/2/87/78-A dated 10.10.90. 2. Telegram from Bangalore dated 3.10.90 by Sri K.Bora, Vice-Chancellor, Dibrugarh University to Dr. KC Bora Vice Chancellor lie to remain in-charge of Vice Chancellor till 21.10.90. 3. Copy of letter from Sri K.Bora, Vice Chancellor to the Chancellor on 7.9.90, requesting Dr.K.Borua to remain In-charge of VC's office. 4.Governor's order of extension Memo No.GSA/2/87/78-A dated 10.10.90. 5. Order No.DU/RG/90/2917 dated 10.8.90 (signed by Dr.DH Goswami, as Registrar and Vice Chancellor In-charge). 6. Order No.DU/RG/90/2921-24 dated 10.8.90 (signed by Dr. DH Goswami, as Registrar & Vice-Chancellor In-charge). 7. Letter No.DU/RG/90/3127 dated 10.10.90 (letter written by Dr. DH Goswami, to Dr. K.Borua). 8. Office order No.DU/VC/1/90/280 dated 10.10.90. 9. Application for late admission into TDC course by (a) Sri HC Biswas (Army personnel) dated 6.9.90 (b) Sri HN Kakoty (ONGC, Sibsagar) dated 22.9.90 (c) Sri SS Sharma (ONGC, Sibsagar) dated 22.9.90 (d) Sri Jagjit Singh (Army personnel) dated 14.9.90. 10. Notice DU/RG/90/3094-124 dated 6.10.90 (Resumption of duty by Dr.DH Goswami). 1 LMemoNo.DU/SWS/PGSU/336-42datedl0.10.90 (PGSU demand discussion on 38 point demand). 12. Application for earned leave to the Chancellor by Dr.DH Goswami dated 10.10.90. List of witnesses : 1. Dr.KD Gogoi, General Secretary DUTA. 2. Sri S.Konwar, General Secretary DUPGSU. 3. Sri Sukheswar Gogoi and Sri Horen Gogoi. 4. Sri TN Chakraborty, PS to Vice Chancellor 5. Dr. MR Sarma, Deputy Registrar (Academic) 6. Sri Ganesh Chandra Kalita, Peon VC's office. 7. Sri T.Das, PS to the Registrar.” 9. That on 26.12.90, the petitioner submitted his written statement and that is Annexure B to the writ application. He denied all the charges levelled against him. The defence with regard to the charge No.l, 2 and 10 are quoted below : “Charge No.l : The charge is totally denied. The Vice Chancellor vide his directions as contained in the order No.DU/VC/1/90/116 dated 28.7.90 authorised me to attend to all important papers during his absence from 1st August, 1990 to 14th August, 1990 and also ordered that Dr.SM Dubey will officiate as Vice Chancellor In-charge during the period of his earned leave with effect from 14th August, 1990 for one month. Incidentally his order was given by the Vice Chancellor and not by the Chancellor. As I was authorised to dispose of urgent matters which is usually done by the Vice Chancellor I wrote as VC I/c. If it is urged that I could not be VC I/c without order from the Chancellor, the Prof. Incidentally his order was given by the Vice Chancellor and not by the Chancellor. As I was authorised to dispose of urgent matters which is usually done by the Vice Chancellor I wrote as VC I/c. If it is urged that I could not be VC I/c without order from the Chancellor, the Prof. Dubey also could not be allowed by the Vice Chancellor to officiate as VC. There are many instances when Vice Chancellor issued order as to who would officiate as VC in his absence. I assumed that when I was authorised to dispose of all important papers etc. I could write VC I/c. As stated above, the aforesaid order was passed on 10th August, 1990. At that time there was no officiating VC. I was the only person who was authorised to dispose of important papers. That is why I myself had to record that I was going no leave with effect from 15th August, 1990. I went on leave with effect from 13th August, 1990 when Dr.KC Baruah, Junior to me in age and service was put in charge of the office of Vice Chancellor beacuse that has been my stand ever since Dr.SD Gogoi, the then Vice Chancellor entrusted duties of the Vice Chancellor to Dr. Baruah, ignoring my claim of seniority in age and service. As I was authorised by VC vide his aforesaid order, I went on earned leave by issuing the order DU/RG/90/2917 dated 10.8.90 and informed the Chancellor vide my letter to him dated 10th August, 1990 that I had no option left other than to go on leave. I contracted Chancellor's Secretary over the phone and also convened my decision to go on leave which he noted. In his letter dated 31st August, 1990 to the Hon'ble Chancellor did not give me direction that my contentions as contained in my representation to him were not correct. Prior to this, I placed before the Vice Chancellor in his office chamber on 25.7.90 that I shall have to avail leave if any professor, junior to me in age and service, is given charge of VC's office in his absent as the post of Registrar is equated by the Executive Council with that of a Professor. Prior to this, I placed before the Vice Chancellor in his office chamber on 25.7.90 that I shall have to avail leave if any professor, junior to me in age and service, is given charge of VC's office in his absent as the post of Registrar is equated by the Executive Council with that of a Professor. The Vice Chancellor then told me that the earlier Governor, Shri BN Singh left a standing order that in the event of allowing Dr.KC Baruah to perform VC's duties in his absence, only academic charge be given to Dr.Baruah and administration charge to Registrar. Charge No. 2 : The charge is totally denied. The first part of the charge is fully examined in the answer to charge No. 1. The question of defying or challenging the authority of the Hon'ble Chancellor does not arise at all. When Registrar goes on leave, it is customary to allow the next senior officer to work as Registrar I/c in his absence. There are instances of such order over the passed two decades and a half. There are instances when VC himself passed order as to who would officiate as VC in his temporary absence from duties. Moreover I went on leave with effect from 13.8.90 only by bringing this fact to the notice of the Chancellor vide my letter dated 10.8.90. In view of the past practice, I put the next senior officer i.e. Sri BC Saikia, the Controller of Examination to act as Registrar 1/c. (Some example of VC issuing order as to who would remain in charge of VC's office in his absence are: Memo No.DU/VC/95/74/10810, dated 10.8.74, No.DU/ VC/l/78/982dated23.8.78,No.DU/VC/l/87/1076datedl4mMarch,1987,No.DU/ C/1/87/273 dated 22.12.87 and No.DU/VC/2/89/2316 dated 22.8.89). Charge No. 10 : The charge is totally denied. It is true I sent an application to the Chancellor dated 10.1.90 and a copy endorsed to Vice Chancellor and received by his office on 12.10.90 and therefore no impropriety was committed in applying for the leave. When I applied for leave, there was no Vice Chancellor I/c as the order of extension of leave to Sri K.Bora, VC was not received there. In such circumstances, there cannot be any objection to sending the leave application to the highest authority i.e. the Chancellor with a copy forwarded to the Vice Chancellor. When I applied for leave, there was no Vice Chancellor I/c as the order of extension of leave to Sri K.Bora, VC was not received there. In such circumstances, there cannot be any objection to sending the leave application to the highest authority i.e. the Chancellor with a copy forwarded to the Vice Chancellor. In conclusion, I submit that if the Registrar who is the Head of the University Secretariat and the Chief Adviser of the Vice Chancellor and the academic staff and who heads the entire administrative machinery is treated unfairly and emergency power is used by a Vice Chancellor I/c, although there was no emergency, places the Registrar under suspension on flimsy grounds then the whole reputation of the University goes down. The suspension by the VC I/c was, prima facie, illegal and the suspension of a Registrar by Vice Chancellor I/c on such frivolous grounds is unheard. If any thing is vitiating the administrative atmosphere, it is such action. I may further submit that as recently as in the Executive Council presided over by the present Vice Chancellor was pleased to grant me a special increment by recording its “deep appreciation of the meritorious and sincere service “ put by me over the last twenty five years.” 10. Thereafter, one Shri Ramananda Baruah, IAS (retired) was appointed Enquiry Officer to enquire into the charges and the case on behalf of the University was presented by the Presenting Officer and 4 (four) witnesses were examined on behalf of the University. The petitioner defended the case himself. The four witnesses are examined as follows : 1. Shri Badan Chandra Saikia - Registrar I/c 2. Dr. Kamal Chandra Barua, VC I/c at the relevent period of time. 3. Shri Khetradhar Gogoi. 4. Sri Sukheswar Gogoi. 11. As many as 20 documents were produced. Sri Badan Chandra Saikia who examined himself on 10.5.91 exhibited the following documents : “Exhibit I: Letter dated 28.7.90 by which the VC Sri K.Bora informed the Registrar about his departure to Guwahati and by which it was further directed that the Registrar was to attend important papers during his absence from 1.8.90 to 14.8.90, and it was further stated in that letter that one Sri SM Dubey would officiate as VC. Exhibit 2 : Order of the Registrar Dr.DH Goswami, the present petitioner informing about his going for EL with effect from 13th August, 1990 till the VC resumes his duties. This letter was signed by the petitioner as Registrar and VCI/c. Exhibit 3 : The order of the Registrar and VC I/c dated 10.8.90 stating that during the period of his EL from 13th August, 1990 till he resumes duty, Shri BC Saikia will act as Registrar and in terms of this letter Shri BC Saikia to charge as Registrar I/c. 12. Sri Kamal Chandra Baruah, who deposed as witness No.2 exhibited certain documents, and Exhibit No.22 is the message from Governor Secretariat dated 10.10.90 granting extention of leave of Sri K.Bora upto 21.10.90 and continuation of officiating arrangement of Sri K.Bora as VC I/c as before. This was received in the office of the VC at Dibrugarh on 11.10.90 at 2 PM. This witness further deposed as follows : “ It is a fact that on 10.10.90 I did not receive any formal written order of the Chancellor about my continuation as VC I/c but I have received phone call on that date from Governor's Secretariat i.e. continuation of the existing arrangement...... I did not convey to Dr. DH Goswami, about this as I did not consider it necessary.” 13. In the list of witnesses which was furnished by letter dated 27.4.91 there is no mention that Sri Badan Saikia, Sri KC Baruah shall be examined as witnesses. So, this two persons were not named witnesses in the list of witnesses furnished by letter dated 27.4.91. No order sheet on this of the Enquiry Officer is available in the record and it is not known how they were examined as witnesses, even though they were not listed witnesses. Documents not in the list were also produced at the enquiry. 14. In the case before Special Bench in this Court in AIR 1972 Assam 2 (TS Srivastava vs. State of Assam) this Court held that the procedure provided by Rule 9 is mandatory. Documents not in the list were also produced at the enquiry. 14. In the case before Special Bench in this Court in AIR 1972 Assam 2 (TS Srivastava vs. State of Assam) this Court held that the procedure provided by Rule 9 is mandatory. The relevant portion of the Rule 9 (2) quoted above was inserted by the amendment Rules of 1978 and this came up for consideration before a Division Bench of this Court in (1987) 2 GLR 210 (Madhab Chandra Das vs. The State of Assam & others) wherein a Division Bench of this Court held that this Rules have been made in order to ensure the security of the service and cannot be allowed to be by-passed or observed in a casual and mechanical way. The Division Bench further held that the entire provision as made in Rule 9 of the Rules is mandatory and any violation thereof shall amount to violation of principle of natural justice violating the entire disciplinary proceeding. The purpose behind furnishing the list of witnesses is to give notice to the other side. No doubt it may be possible for the disciplinary authority to examine any witnesses not named in the list to be examined after recording reasons but for that the authority has to show sufficient reasons/cause. In the instant case as already indicated above from the record we do not find that a proper order sheet was maintained by the departmental authority and in the absence of that it is not known how Sri Badan Chandra Saikia and Kamal Chandra Bora were allowed to be examined as witnesses. If witnesses are allowed to be examined according wish of disciplinary authority, the vary purpose of furnishing a list shall be otiose. This cannot be al lowed to be done. Additional documents were also produced and exhibited. In that view, the whole disciplinary proceeding appears to be a violative of Rule 9 of the aforesaid Rules, regarding examination of witnesses and production of documents. 15. Under the amended provision of Rule 9 (2) inserted in 1978 it is the duty of the disciplinary authority to furnish to Govt. servant a list of documents and witnesses by which each article of charges is proposed to be sustain. The admitted position in this case is that the same was not done at the proper time. 16. 15. Under the amended provision of Rule 9 (2) inserted in 1978 it is the duty of the disciplinary authority to furnish to Govt. servant a list of documents and witnesses by which each article of charges is proposed to be sustain. The admitted position in this case is that the same was not done at the proper time. 16. As will be evident from the record and the pleadings, a curious procedure was adopted by the authority before the enquiry was conducted. After the charge sheet was drawn up, the matter was placed before two person one Dr.Lahakar and Sri Nani Kalita to make enquiry and this was an exparte enquiry and this Committee submitted a report of 16.2.91 and the Committee examined the various relevent documents including the charges, statement of allegations and written statements received from Dr.DH Goswami the petitioner those were made available by the office of the VC Registrar, Dibrugarh University from 13.2.91 to 16.2.91 and this Committee after examining the matters found as follows: Charge No.l: Dr.DH Goswami, Registrar DU has committed an act of misconduct by assuming discretion as VC I/c without any authority. Charge No.2 : This charge has already been covered against charge No. 1 above. ChargeNo.3: TheCommittee therefore consideredthatthe charge No.3 isnotcorrect. Charge No.4 : Found not to be correct. Charge No.5 : There is no validity of this particular charge. Charge No.6: The Committee do not consider that an officer dealing with official works in the interest of the organisation while on leave constitute an act of misconduct. Charge No.7 : The Committee feels that forwarding a copy of the notice praying his reasons vide letter dated 6.10.90 to Sri K. Bora VC does not constitute any misconduct. Charge No.8 : Since the statement of Dr.Goswami cannot be verified without personal hearing of Deputy Registrar, the Committee is not in a position to comment against this charge. Charge No.9 : Not established. It is further mentioned that till the receipt of Chancellor's orders allowing Dr.KC Baruah to continue as VC 1/c, the order issued by Dr.KC Baruah as VC I/c could not have been correct. Charge No.10 : The Committee considered this act of Dr.DH Goswami as misconduct and in paragraph 53 of this report, the Committee held as follows : “(a) Dr.DH Goswami, Registrar designated himself as VC In-charge without any proper authority. Charge No.10 : The Committee considered this act of Dr.DH Goswami as misconduct and in paragraph 53 of this report, the Committee held as follows : “(a) Dr.DH Goswami, Registrar designated himself as VC In-charge without any proper authority. (b) Dr.DH Goswami, Registrar by sanctioning his own leave wef 13.8.90 till VC rejoins his duties is against the DU Leave Rules under section 16(1) (b). (c) Dr.DH Goswami, Registrar, DU sent his application dated 10.10.90 (signed on 11.10.90) to the Chancellor requesting to grant earned leave from 12.10.90 to 22.10.90 knowing fully well that his leave is to be sanctioned by the VC, Dibrugarh University and not by the Chancellor.” 17. This report runs into 21 pages and all the charges along with the documents were considered by the Committee and the Committee found the petitioner guilty of charge Nos.l, 2 and 10. This report of the Committee was considered by the Enquiry Officer and in paragraph 14 it is stated as follows : “ The Executive Council initially constituted a small committee of the two persons of the Council namely, Sri TB Lahakar and Sri N.Kalita and they considered all relevant papers and submitted a report to the Executive Council.” 18. This report submitted by the Lahakar and Kalita was a part of the enquiry record. So these documents have been produced before the Enquiry Officer and it is not known how this report influenced the Enquiry Officer inasmuch as Enquiry Officer also found the petitioner guilty of charge Nos. 1,2 and 10 as was found by the Enquiry Committee of Lahakar and Kalita. This report submitted by the earlier Committee cannot be by itself a part of the record of the enquiry inasmuch as the record of the enquiry is provided by the Rules. Rule 9 (8) of the aforesaid Rules provides as follows : “(8) The record of the inquiry shall include- (i) the charges framed against the Government servant and the statement of allegations furnished to him under sub-rule (2) (ii) his written statement of defence, if any; (iii) the oral evidence taken in the course of the enquiry; (iv) the documentary evidence considered in the course of the enquiry; (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 findings on each charge and the reasons therefore.” 19. So, as this report forms part of the record of the enquiry, it must have been produced and considered in the course of the enquiry and that is evident from paragraph 14 quoted above. 20. In the writ application in paragraph 36 it is stated as follows : “ Moreover, it appears from the Enquiry Report that a report prepared by Col. TDB Lahakar and Sri N.Kalita was submitted to the Executive Council behind the back of the petitioner and the contents of the said report was made available to and relied upon by the Enquiry Officer. The petitioner was not given access to the said report and as such could not make any representation as regards the contents of the I said report for which clearly the petitioner has been prejudiced. The petitioner has been denied his rights available to him under the principles of natural justice.” 21. This para 36 has been dealt with in paragraph 34 of the affidavit-in-opposition wherein it is stated as follows : “ That with regard to the submissions made in para 33 to 39 of the writ petition these answering dependents beg to make out any prima facie case for this Hon'ble Court to invoke its writ jurisdiction whatsoever. The reality is that the petitioner has done acts of gross misconduct and indiscipline and has knowingly and wilfully violated the relevant rules and procedures for which the disciplinary proceeding against him was instituted and after giving the petitioner every opportunity to defend himself and carefully considering the enquiry report the petitioner has been compulsorily retired as a step to protect the very sanctity of the University. In passing the said order of compulsory retirement no rights whatsoever of the petitioner has been violated. The punishment imposed upon the petitioner is just, fair and reasonable compared to the acts of the man of his status and responsibility and so the instant writ petition is to be dismissed outright.” 22. So, a bare perusal of this denial will show that it is nowhere denied that this enquiry was conducted behind the back of the petitioner and that this enquiry report was relied upon by the Enquiry Authority. So, a bare perusal of this denial will show that it is nowhere denied that this enquiry was conducted behind the back of the petitioner and that this enquiry report was relied upon by the Enquiry Authority. No doubt the authority is competent to conduct a preliminary enquiry in order to find out where the disciplinary is to be initiated against an employee but at the same time under the Rules of 1964 once a disciplinary proceeding is initiated as provided under Rule 9, the authority is not competent to initiate again a preliminary enquiry on the basis of the charges and that also behind the back of the employee. If such a long handle is given, this will mean duplication of the enquiry but that is what was done in the instant case and an exparte enquiry was conducted after the charges were drawn as provided under Rule 9 and in that exparte enquiry, the petitioner was found to be guilty on charge Nos.l, 2 and 10 and thereafter the formal enquiry was conducted. This amounts to violation of the principles of natural justice and the method and procedure adopted by the authority which is not envisaged by the Rules for the conduct of enquiry. In AIR 1987 SC 2386 (Ranjit Thakur vs. Union of India & others) the Supreme Court has pointed out as follows : “The procedural safeguards should be commensurate with the sweep of the powers. The wider the power, the greater the need for the restraint in its exercise and correspondingly, more liberal the construction of the procedural safeguards envisaged by the statute. The oft quoted words of Frankfurter, J. in Vitarelli vs. Seaton, 359 US 535 are again worth recalling: “.......if dismissals from employment is based on a defined procedure, even though generous beyond the requirement that bind such agency, that procedure must be scrupulously observed...... This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword.” ' The history of liberty' said the same learned Judge “has largely been the history of observance of procedural safeguards.”' 23. This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword.” ' The history of liberty' said the same learned Judge “has largely been the history of observance of procedural safeguards.”' 23. So, I find that the enquiry which was conducted against the petitioner was in violation of the principles of natural justice inasmuch as there was no compliance with Rule 9 and that a preliminary enquiry conducted after framing of the charges was relied upon by the Enquiry Officer behind of the back of the petitioner. Once charges are framed the procedure provided by Rules must be followed and any deviation from it will be fatal. 24. Rule 9 (9) requires as follows : “ The Disciplinary Authority shall, if it is not the Inquiry Authority, consider the record of the inquiry and record its findings on each charge.” 24A. From the record even it appears that the charge sheet alongwith the report of the inquiry conducted by Shri Lahakar and Kalita was sent to the Legal Adviser of the University Shri AK Handique, Senior Advocate, Dibrugarh and he submitted a report as is available in record and in that report also the petitioner was found to be prima facie guilty. To the Legal' Adviser, the charge sheet alongwith the written statement of the petitioner and the report of the Committee were sent and the legal advise was given running into 12 pages. All these actions show that the authority made up its mind to punish the petitioner even before the enquiry was conducted. Rules of 1964 do not provide that this way the matter can be referred to Legal Adviser for his opinion alongwith charge sheet, written statement and the report of the Committee and this report of the Legal Adviser also forms a part of the record of the departmental proceeding. This is violative of canons of natural justice. 25. The Executive Council in its meeting, held on 4.9.91 considered the report and accepted the same. So, it must be held that there was compliance with Rule 9 (9). 26. Next let us have a look at the report of the Enquiry Officer. This is violative of canons of natural justice. 25. The Executive Council in its meeting, held on 4.9.91 considered the report and accepted the same. So, it must be held that there was compliance with Rule 9 (9). 26. Next let us have a look at the report of the Enquiry Officer. The validity of the enquiry is challenged by the petitioner inter alia on the following grounds: (i) Throughout the disciplinary proceeding, the petitioner was not given any opportunity to inspect the documents relevant to the enquiry and therefore, the petitioner was highly prejudiced. (ii) The enquiry conducted against the petitioner was farce where the Enquiry Officer functioned like a Presenting Officer. The Enquiry Officer took a leading role in examining all the witnesses of the authority and in fact asked the witnesses leading question. The findings of the Enquiry Officer are perverse as well contradictory and he did not even discuss the defence of the petitioner. (iii) The petitioner signed only two papers on 10.8.90 as VC I/c and only for this it is inconceivable that the petitioner be thrown out of service. The punishment imposed is absolutely not commensurate/proportionate to gravity of the offence and is in fact indicates victimisation. No such action was however, taken in the past for charges of similar gravity in the University. 27. Before we proceed further with the matter, it will be necessary to set out some detail facts in this case. The petitioner was put under suspension on 12.10.90 by the VC I/c Shri K. Baruah by exercising the power under clause 11(4) of the Dibrugarh University Act, 1965. The admitted position is that the Registrar, the present petitioner is covered by the Rules of 1964. After the suspension order was passed by the Acting VC, the Acting VC disconnected the residential telephone line of the petitioner, withdrew the newspapers and journals as well as the Night Chowkidar from the residence of the petitioner. It appears that the order of suspension was passed in hot haste and that also by Acting VC but this matter does not detain me for long as I am not deciding the legality and validity of the order of suspension. 28. A disciplinary proceeding before a domestic Tribunal is of a quasi judicial character. It appears that the order of suspension was passed in hot haste and that also by Acting VC but this matter does not detain me for long as I am not deciding the legality and validity of the order of suspension. 28. A disciplinary proceeding before a domestic Tribunal is of a quasi judicial character. Therefore, the minimum requirement of the rules of natural justice is that the Tribunal should arrive at its conclusion on the basis of some evidence that is based on materials which will show some degree of defmiteness which points to the guilt of the delinquent in respect of the charge against him. Suspicion cannot be allowed to take place of proof even in domestic enquiry. The Supreme Court in the case of Union of India vs. HC Goyal in AIR 1964 SC 364 and in AIR 1978 SC 1277 (Nandakishore Prasad vs. State of Bihar) pointed out that the principle in punishing the guilty, scrupulous care must be taken to see that the innocents are not punished and that applies to regular criminal trials as to disciplinary enquiry held under the statuory rules. The second principle which is the corrollary from the first is that if the disciplinary enquiry has been conducted fairly without bias or predeliction, in accordance with the relevant disciplinary rules and constitutional provisions, the order passed by such authority cannot be touched in proceedings under Article 226 of the Constitution merely on the ground that it was passed on evidence which would not be sufficient for conviction of the delinquent on the same charge at criminal trial. It is also the law that any minor irregularity in the matter of condutcing enquiry cannot vitiate the enquiry which is so obviously correct on the basis of records. It is highly improper for an Enquiry Officer during the conduct of enquiry to attempt to collect any materials from outside source not making that information so collected available to delinquent officer and further make use of the same in the enquiry proceeding. There may also be cases were a very cleaver and a statute Enquiry Officer may collect an outside information behind the back of the delinquent officer and without any apparent reference to the information as quoted may have been influenced in the conclusion recorded by him against the delinquent officer concerned. There may also be cases were a very cleaver and a statute Enquiry Officer may collect an outside information behind the back of the delinquent officer and without any apparent reference to the information as quoted may have been influenced in the conclusion recorded by him against the delinquent officer concerned. It is established that if the materials are collected behind the back of the delinquent officer during the enquiry and if each materials have been relied on by the Enquiry Officer, without its foundation disclosed to delinquent officer, it can be stated that the enquiry proceeding are vitiated (see AIR 1970 SC 1255 (State of Assam vs. MK Das). If an Enquiry Officer adopts a procedure which is contrary to the Rules of the natural justice, the ultimate decision based on report of enquiry is liable to be quashed. The order sheet of this case dated 9.5.91, 10.5.91 and 25.5.91 are quoted below : “9.5.91 : The records of the proceedings submitted to me by Sri K.Gogoi, Administrative Officer, DU, who is representing the University in this proceedings. Sri DH Goswami, the Registrar (under suspension) of DU is not present. A copy of his letter dated 8.5.91 addressed to the Vice Chancellor was also submitted on his behalf. The process of hearing of the departmental proceedings by the 'Inquiry Officer is independent of the matter of the 'suspension' or 'reinstatement' of the officer concerned. In fact, this has no bearing on the proceedings which will be on the basis of the charges and materials or records only. As such Sri Goswami may be informed to appear tomorrow, before the Inquiry Officer in connection with the proceeding. In case, he does not appear, the hearing will be commenced exparte. 10.5.91: Dr. DH Goswami is present. The DU is duly represented by Sri K.Gogoi, End, crossed and discharged 4 witnesses on behalf of DU. Dr.DH Goswami declined to adduce witness but sought time to submit W/a. He is allowed one month's time to do so. 25.5.91: Received by Regd. A/D post additional written statement/argument from Dr.DH Goswami dated 17.5.91. Containing also a duplicate copy of his written statement submitted to the University Authorities. He has also submitted a letter dated 20.5.91 requesting that if VC DU is examined, it may be done in his presence. 25.5.91: Received by Regd. A/D post additional written statement/argument from Dr.DH Goswami dated 17.5.91. Containing also a duplicate copy of his written statement submitted to the University Authorities. He has also submitted a letter dated 20.5.91 requesting that if VC DU is examined, it may be done in his presence. Since the case was already closed by the Administrative Officer DU (who presented the case on behalf of DU), no question of examining any new witnesses arises at this stage. Both the documents filed with the case records.” 29.1 have heard Sri DN Chowdhury, learned Advocate for the petitioner and Sri SN Bhuyan, learned Advocate General, Assam for the respondents. 29A. The writ of Certiorari jurisdiction cannot be used as a cloak of and appeal in disguise. Judicial review generally speaking is not directed against the decision but is directed against the decision making process. The question of the choice and quantum of the punishment are within the jurisdiction and discretion of the authoriry but the sentence is to suit the offence and offender. It should not be vindictive or unduly harsh. It should not be disproportionate to the offence as to shock conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the authority, if the decision of the authority even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review. (See AIR 1987 SC 2386 , Ranjit Thakur vs. Union of India), in paragraph 9 the Supreme Court quoted a passage of Lord Deplock as follows : “ Judicial review has I think, developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time add further grounds. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community......” 30. That if the punishment is strickingly disproportionate it calls for a justified interference. It is also the law that if the finding of the Enquiry Officer is based on no evidence, the Court in exercise of its jurisdiction can interfere with it. 31. Here is a case as indicated above that a common thread runs through all the charges and the charge is gross misconduct, indiscipline and gross insubordination. A bare persual of the findings arrived at by the Enquiry Officer in charge Nos. 1,2 and 10 will show that the Enquiry Officer did not discuss any oral evidence in arriving at the findings. Shri Bhuyan, learned Advocate appearing for the University urged that this finding can be sustained on the basis of the documents. The finding of the Enquiry Officer in charge No.3 is as follows : “ The charge of insubordination is thus not established. The absence of due care established in this context does not by itself, in my view constitutes misconduct.” 32. Regarding charge No.4 also it was held that it was not established. Charge No.5 also was not established. Charge No.6 was also held to be not established. Regarding charge No.7 it is stated as follows : “ Under the circumstances for sending a copy of the joining report (on return from leave) to the permanent Vice Chancellor, Dr.DH Goswami cannot be roped in under the mischief of charges of misconduct, indiscipline and insubordination.” 33. Regarding charge No.8 it was held that the charge of insubordination has not been established. Regarding charge No.9 also it was held that there is no force in that charge. Charge No. 10 is regarding sending his leave application dated 10.10.90 to the Chancellor directly and it was urged that it was an act of indiscipline, insubordination and misconduct. Regarding this let us have a look at the DU Leave Rules, 1968. Regarding charge No.9 also it was held that there is no force in that charge. Charge No. 10 is regarding sending his leave application dated 10.10.90 to the Chancellor directly and it was urged that it was an act of indiscipline, insubordination and misconduct. Regarding this let us have a look at the DU Leave Rules, 1968. Rule 16(1) provides that VC is the authority to grant ordinary, special and casual leave to all senior grade officers and Heads of teaching departments. 34. In the instant case, the leave application was submitted directly to the Chancellor and not to the VC. The findings of the Enquiry Officer with regard to the charge No.3 is that the Chancel for passed an order regarding the continuation of VC I/c on 10.10.90 and this message was received by VC I/c on 11.10.90 at 2 PM. It was further found that as on 10.10.90 there was no order of Govt. regarding appointment of VC I/c. It was further found that on 10.10.90 there was no order from the Governor allowing Shri KC Baruah to continue as VC. So on 10.10.90 on which date the leave application was filed Shri KC Baruah did not have a formal order regarding his continuation as the VC I/c and in that view of the matter, the leave application was sent by the petitioner to the Chancellor. Further, sending an application of leave to the Chancellor and not to the Vice Chancellor whether can amount to an act of indiscipline, insubordination and misconduct ? What is indiscipline, insubordination and misconduct have not been defined in the Rules of 1964. So, we must go by the general meaning of the words. Indiscipline means absence of discipline. The dictionary meaning of the word insubordination is bilious or disobedient. Here is a case where on 10.10.90 there was no order from the competent authority allowing Shri KC Baruah to continue as VC I/c and in that view of the matter the person submitted the leave application to the Chancellor. The question of by passing the level with the authority does not arise inasmuch as on that date there was no VC I/c duly appointed by the competent authority. The finding of the Enquiry Officer on this charge that he was guilty of misconduct, insubordination and indiscipline by bypassing the level to the superior authority is absolutely a perverse one. The question of by passing the level with the authority does not arise inasmuch as on that date there was no VC I/c duly appointed by the competent authority. The finding of the Enquiry Officer on this charge that he was guilty of misconduct, insubordination and indiscipline by bypassing the level to the superior authority is absolutely a perverse one. Further, this finding of sending the leave application to superior is a hyper technical one to expose one to the charges levelled. The Enquiry Officer himself found that there was some confusion with regard to the matter of continuation of VC on 10.10.90 and 11.10.90 and the order was received only on 11.10.90 at 2 PM and in that view of the matter, the petitioner sent the leave application to the Chancellor. It cannot be deemed that there was violation of the Leave Rules or it cannot be said that this will amount to misconduct, insubordination and indiscipline on the part of the petitioner. So, finding of charge No. 10 must be quashed on the ground of perversity. 35. A bare perusal of Rule 4 of the Leave Rules show that the leave may be of the following kinds : (a) Ordinary or Special casual leave, (b) Earned leave, (c) Leave on half pay, (d) Extraordinary leave, (e) Maternity leave, (f) Quarantine leave, and (g) Study leave. The petitioner applied for Earned Leave under Rule 16 (1) (b). The Vice Chancellor is the authority to grant all kinds of leave except Study Leave to the extent of one month in case of Senior Grade Officer but the question still remains that on 10.10.90 and 11.10.90 it was not known to the petitioner that Shri KC Baruah was the Vice Chancellor I/c. In that view of the matter, the leave application was sent to the Chancellor. 36. Now let us take up charge No. 1 and 2. The gravemen of the charge No. 1 is that he signed two letters on 10.8.90 styling himself as VC I/c without being duly appointed by the authority and on the basis of it, it was found that the Registrar, DU, the petitioner intentionally committed an act of gross misconduct by assuming the office of the VC I/c without any authority from the Chancellor. What is misconduct has not been defined in the Rules, 1964. What is misconduct has not been defined in the Rules, 1964. If the Assam Civil Services (Conduct) Rules, 1965 is deemed to be applicable then, conduct is defined in Rule 3 which is as follows : “3. General - (1) Every Government servant shall at all times; (i) maintain absolute integrity, (ii) maintain devotion to duty; and (iii) do nothing which is unbecoming of a Government servant.” 37. Misconducts are enumerated in these Rules are as follows : “Accepting Gifts Rule 4; Public Administration in honour of Government servant Rule 5; Presentation of trowels, etc., at ceremonial functions-Rule 6; Criticism of Government Rule 7; Subscription Rule-8; Consumption of intoxicating drinks and drugs and vicious habits-Rule 9; Investment, lending and borrowing-Rule 10; Movable, immovable and valuable property-Rule 11; Private trade or employment Rule 12; Prosecution of studies by Government servant in educational institutions-Rulel3; Insolvency and habitual indebtedness-Rule 14; Unauthorised communication of information-Rule 15; Connection with press or radio-Rule 16; Taking part in politics and election-Rule 18; Employment of near relatives of Government servant in private undertakings enjoying Government patronage-Rule 19; Demonstration and strikes-Rule 20; Vindication of acts and character of Government servant-Rule 21; Canvassing of non-official and other influences-Rule 22; Membership of the Service Association and Recognition of the Association of non-industrial Government servant-Rule 23; Joining Association by Government servant-Rule 25; and Bigamous marriages.” 38. So, the conduct as alleged in this case does not come within any of the misconduct as enumerated therein. The word misconduct as understood in service jurisprudence came up for consideration before the Supreme Court in the following two cases: (i) (1979) 2 SCC 286 (Union of India & others vs. J.Ahmed) where in paragraph 11 and 12, the Supreme Court pointed out as follows : “11. Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that conduct which is blame worthy for the Government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pierce vs. Foster) A disregard of an essential condition of the contract of service may constitute misconduct (see Laws vs. London Chronicle Indicator Newspaper). If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pierce vs. Foster) A disregard of an essential condition of the contract of service may constitute misconduct (see Laws vs. London Chronicle Indicator Newspaper). This view was adopted in Shardaprasad Onkarprasad Tiwari vs. Divisional Superintendent, Central Railway, Nagpur Division, Nagpur, and Satubha K. Vaghela vs Moosa Raja). The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under : Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct. In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct but in Utkal Machinery Ltd. vs. Workmen, Miss Shanti Patnaik, in the absence of standing orders governing the employee's undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive. In S.Govinda Menon vs. Union of India, the manner in which a member of the service discharge his quasi judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings. A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission result in serious or atrocious consequences the same may amount to misconduct as was held by this Court in PN. Kalyani vs. Air France, Calcutta, wherein it was found that the two mistakes committed by the employee while checking the load-sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, the negligence in work in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar instances of which a Railway cabinman signals in a train on the same track where there is a stationery train causing had-on collision; a nurse giving intravenous injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashes causing heavy loss of life. Misplaced sympathy can be a great evil (see Nabin Chandra Shakerchand Shah vs. Manager, Ahemdabad Co-op. Department Stores Ltd) but in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty.” “12. The High Court was of the opinion that misconduct in the context of disciplinary proceedings means misbehaviour involving some form of guilty mind or mens rea. We find it difficult to subscribe to this view because gross or habitual negligence in performance of duty may not involve mens rea but may still constitute misconduct for disciplinary proceedings.” (ii) (1992) 4 SCC 54 (State of Punjab & others vs. Ram Singh Ex-Constable) wherein the Supreme Court in paragraph 5 and 6 has laid down as follows: “5. Misconduct has been defined in Blacks Law Dictionary, Sixth Edition at page 999 thus : “ A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour, its synonyms are misdemeanor, misdeed, misbehaviour, delinquency, impropriety mismanagement, offence, but not negligence or carelessness.” Misconduct in office has been defined as : “ Any unlawful behavior by a public officer in relation to the duties of his office, wilful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act.” P.Ramanatha Aiyar's Law Lexicon, Reprint Edition 1987 at 821 defines 'misconduct' thus: “ The term misconduct implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskilfulness are transgression of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and in necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the right of a party have been affected. 6. Thus it could be seen that the word 'Misconduct' though not capable of precise definition, on reflection receives its connotation from the context; the duty. It may involve moral turpitude, it must be improper or wrong behaviours' unlawful behaviour, wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline Laxity in this behalf erodes discipline in the service causing serious effect in the maintannce of law and order.” 39. The police service is a disciplined service and it requires to maintain strict discipline Laxity in this behalf erodes discipline in the service causing serious effect in the maintannce of law and order.” 39. As far back as on 31.7.87, the then VC, Dibrugarh University wrote to the Chancellor as follows : “ Temporary vacancy in the office of the Vice-Chancellor Section 10 (5) of the Dibrugarh University Act says that “whenever there is any temporary vacancy in the office of the Vice Chancellor by reason of leave, illness or other cause, the Chancellor shall make such other arrangement as he may think fit for exercising the powers and performing the duties of the Vice Chancellor during the absence. Whenever a vacancy occurs as aforesaid there is hardly any time for the Chancellor to be moved to make the appointment. Hence there should be a Standing Order by the Chancellor. Who should be appointed in the temporary vacancy ? In this connection the following points should be borne in mind. The Vice Chancellor is the “Principal Executive and Academic Officer” of the University, (vide section 11 of the Dibrugarh University Act). The “Officer of the University” have been defined in section 7 of the Act in the following order- (1) Chancellor (2) Vice Chancellor (3) Rector (4) Registrar (5) Any other person in the service of the University who is declared to be an officer of the University. To debar Rector or Registrar from being put in charge during the absence of the Vice Chancellor will be an arbitrary act and it will be unconstitutional being hit by Articles 14 and 16 of the Constitution. The usual practice in all Universities in India is to put the Registrar in charge when the Vice Chancellor is absent. When there is a Rector the question of putting somebody else in charge cannot arise. The Rector is next to the Vice Chancellor in status and his scale of pay his higher than that of a Professor. When there is a Rector, he is invariably put in charge during absence of the Vice Chancellor. There is provision for the appointment of a Rector in the DU Act. In fact there was a Rector at the Dibrugarh University for several years. Althoughno appointment has been made for many years now, provision is made in the budget every year for the post of Rector. There is provision for the appointment of a Rector in the DU Act. In fact there was a Rector at the Dibrugarh University for several years. Althoughno appointment has been made for many years now, provision is made in the budget every year for the post of Rector. Recently the Executive Council decided that the post should be filled up. When the Rector is there a peculiar situation will arise if instead of the Rector somebody else is put in charge. The Vice Chancellor is mainly and administrative officer and that is why most of the Vice Chancellor are retired or sitting I AS officers, retired judges etc. The former Vice Chancellor of the Vikram University was a retired IGP. It may be also noted that the pattern of the Unitary Universities in India like Benaras, Aligarh, Lucknow, Allahabad, Gorakhpur etc. is in accordance with the recommendations of the University Commission of 1919 (Sadler Commission). In this pattern the post of the Treasurer is provided and he is put next to the Vice Chancellor in status. During the absence of the Vice Chancellor he is to discharge the function of the Vice Chancellor. This post is not held by an academician but by a person with administrative experience. For example Sri Laljee Mehrotra, uncle of our former Governor Sri Prakash Mehrotra took over as Treasurer on his retirement as India's Ambassador in Japan. As most of the Universities put the Registrar in charge, the UGC issued instruction to the Universities to equate the post of the Registrar with that of a Professor. The Dibrugarh University has done it. Hence the Standing Order of the Chancellor should be as follows : “ Whenever there is any temporary vacancy in the office of the Vice Chancellor by reasons of leave, illness or other cause, the Rector and if there be no Rector, the senior-most person from among the Registrar and Professors of the University shall exercise the powers and perform the duties of the Vice Chancellor during his absence.” It may be noted that for the above provision to become operative there must be a vacancy. When the Vice Chancellor goes out of station on duty, there is no vacancy and no body should be put in charge. Sd- K.Bora, Vice-Chancellor, Dibrugarh University.” 40. When the Vice Chancellor goes out of station on duty, there is no vacancy and no body should be put in charge. Sd- K.Bora, Vice-Chancellor, Dibrugarh University.” 40. So, it is found from this letter that post of the Registrar was equated with that of a Professor but there was no reply to this letter. The two impugned order on the basis which the disciplinary proceeding was drawn up and proceeded are quoted below. The first is the order of the Vice Chancellor which is Annexure K dated 28.7.90 to the writ application. This is quoted below : “ I shall go to Guwahati on 1st of August, 1990 after the meeting of the Executive Council is over as I have received information that my wife and my youngest child are not well. I have intimated to Chancellor that I will avail station leave permission from 1.8.90 to 14.8.90. Please attend to important papers during my absence from 1st to 14th August, 1990. Dr. SM Dubey will officiate as Vice Chancellor In-charge during the period of my earned leave wef 14.8.90 for one month.” 41. Thereafter, on 10th August,1990 vide Annexure M, the following order was passed by the Registrar, the present petitioner and he has styled himself as Registrar and Vice Chancellor I/c. This is quoted below : “Order I am going on earned leave with effect from 13th August, 1990 till Vice Chancellor rejoins his duties. The reason as follows : At the time of leaving Dibrugarh, the Vice Chancellor told me that Professor SM Dubey will remain in-charge of the office of the Vice Chancellor wef 14.8.90 and till then I was authorised to dispose of all important papers on behalf of the Vice Chancellor vide Memo No.DU/VC/1/9/116 dated 28.7.90.1 am surprised to find that the Chancellor has appointed Dr.Kamal Baruah to act as the Vice Chancellor wef 14.8.90. I have no objection to the appointment of Professor to act as Vice Chancellor during the absence of Vice Chancellor provided the said Professor is senior to me. My claim to act as Vice-Chancellor cannot be superseded. Unfortunately this has been done by the appointment of Dr. Kamal Baruah, who is much junior to me in age and service. As I am to dispose of all important matters now, I have no alternative other than to pass this order although it relates to myself.” 42. My claim to act as Vice-Chancellor cannot be superseded. Unfortunately this has been done by the appointment of Dr. Kamal Baruah, who is much junior to me in age and service. As I am to dispose of all important matters now, I have no alternative other than to pass this order although it relates to myself.” 42. That the further order which was passed by the petitioner on 10th August, 1990 vide Annexure N and that is quoted below : “ORDER During the period of my earned leave with effect from 13th August, 1990 till I resume my duties, Sri BC Saikia, Controller of Examination, Dibrugarh University will act as Registrar In-charge.” 43. That regarding the Annexure N quoted above, the defence of the petitioner is that earlier also such an order was passed by him and that will be evident frdrn Annexure O, dated 23.10.82. That is quoted below : “VC I propose to leave for Guwahati tommorow i.e. 24.10.82 and shall be there till 30.10.82.1 shall also meet DPI, Education Secretary regarding our grants. I may please be allowed to travel to Guwahati by my own car. From there I propose to leave for Delhi by Air. This is for your approval. I may kindly be permitted to leave station wef 24.10.82 to 27.10.82 after which, of course, I shall be engaged in University's work regarding grants to be received from the State Government. For your perusal and order pl. Sd/-, 23.10.82 Rgs. This is approved. But you should make some arrangement to look after the essential duties of the Registrar (even though part of it will be holiday) during the period of your absence so that if may I can contact him. This should be done and I may be informed before you leave. SoV-23/10 Dr.SD Gogoi, VC, DU. Dr. RC Das, Inspector of Colleges, Dr. JN Baruah, Deputy Registrar(A) I shall be out of station wef 24.10.82 to the first week of November Deputy Registrar (F&A) will remain in charge of Registrar's duties wef 24.10.82. In case Dr.Das decides not to go to Delhi he will do the routine duties of Registrar wef 30.10.82 to the date of my return. If Dr. Das also leaves for Delhi Deputy Registrar (A) will be in charge on the dates aforementioned (in this para). Sd/-, 23.10.82” 44. In case Dr.Das decides not to go to Delhi he will do the routine duties of Registrar wef 30.10.82 to the date of my return. If Dr. Das also leaves for Delhi Deputy Registrar (A) will be in charge on the dates aforementioned (in this para). Sd/-, 23.10.82” 44. So, earlier also when the Registrar was on leave, the Registrar used to assign the duty to someone else as will be evident from Annexure O quoted above and no fault can be found with this order which was passed by the petitioner but only question is that he styled himself in his letter as VC I/c. Regarding Annexure M what can be said is that this order was passed by the petitioner in a foolish manner displaying his ego but the question is whether Annexure M and N shall constitute gross misconduct, insubordination and indiscipline as because certain acts may be done by a person in a foolish manner and by showing his ego. That shall not constitute misconduct or an act of gross insubordination and indiscipline. There are ways and means to take effective measures for corrections and throwing out a person from service may not be the panacea for all this. Be that as it may, on the basis of law as enunciated by the Apex Court of the land I find that finding of the disciplinary authority in charge No. 1 and 2 that the petitioner was guilty of gross-misconduct, insubordination and indiscipline are perverse findings and they are quashed. 45. As I have found above that the findings of the Enquiry Officer are perverse, the next question regarding the punishment is absoultely and academic one but yet I am deciding this point also as it was strenuously urged by both the parties. Sri Chowdhury, learned Advocate appearing for the petitioner, in support of his submission relies on the following decisions : (i) 1976 Vol-I WLR1052 (Regina vs. Barnsley Metropolitan Borough Council) wherein Lord Denning held as follows : “ But there is one further matter: and that is that the punishment was too severe. It appears that there had been other cases where men had urinated in a side street near the market and no such punishment had been inflicted. It appears that there had been other cases where men had urinated in a side street near the market and no such punishment had been inflicted. Now there are old cases which show that the Court can interfere by Certiorari if a punishment is altogether excessive and out of proportion to the occasion. In one case the Commissioner of Sewers imposed an excessive fine: and it was quashed by the Court of King's Bench on the ground that in law their fines ought to be reasonable: see Rex vs. Northumberland Compensation Appeal Tribunal, Exparte Shaw(1952)lKB338,350.SointhiscaseifMr.Hookdidmisbehave,Ishouldhave thought the right thing would have been to take him before the Magistrates under the bye law, when some small fine might have been inflicted. It is quite wrong that the Barnsley Corporation should inflict upon him the grave penalty of depriving him of his livelihood. That is a far more serious penalty than anything the Magistrates could inflict. He is a man of good character, and ought not to be penalised thus. On that ground alone, apart from the others, the decision of the Barnsley Corporation cannot stand. It is said to be an administrative decision: but even so, the Court has jurisdiction to quash it. Certiorari would lie to quash not only judicial decisions but also administrative decisions.” (ii) AIR 1987 SC 2386 (Ranjit Thakur vs. Union of India & others) to which reference has already been made. In para 9 of the judgment, the Court inter alia pointed out as follows : “ The point to note and emphasise is that all powers have legal limits. In the present case the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review.” 46. On the otherhand, Shri Bhuyan, learned Advocate General, Assam appearing for the University placed before me the following decisions and urged that the Court cannot substitute the punishment imposed by the competent disciplinary authority. (i) AIR 1989 SC1185 (Union of India vs. Paramananda). In that case, the Tribunal subsituted the punishment of dismissal awarded to the applicant and reduced it to that of stopping of his 5 (five) increments and the question which came for decision by the Supreme Court was whether the Tribunal has power to modify the penalty awarded to the respondent when the findings recorded as to his misdemeanour is supported by legal evidence. The Supreme Court after considering the various decisions in paragraph 26 and 27, laid down as follows : “26. So much is, we think, established law on the scope of jurisdiction and the amplitude of power of the Tribunal. However, of late we have been receiving a large number of appeals from the order of Tribunals - Central and States - complaining about the interference with the penalty awarded in the disciplinary proceedings. The Tribunals seem to take it within their discretion to interfere with the penalty on the ground that it is not commensurate with the delinquency of the official. The law already declared by this Court, which we reiterate makes it clear that the Tribunal have no such discretion or power. 27. We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry Officer or competent authority where they are not arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry constituent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty unless its malafide is certainly not a matter for the Tribunal to concern with. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty unless its malafide is certainly not a matter for the Tribunal to concern with. The Tribunal also cannot interfere with the penalty if the conclusion of the Inquiry Officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter.” (ii) AIR 1992 Orissa 261 (Full Bench) (Krishna Chandra Pallai vs. Union of India & others) where in paragraph 18, the law has been laid down as follows': “ Because of all that has been stated above, it has to be held, on the basis of state of law as prevailing today, that this Court has no jurisdiction to set aside the punishment awarded by the disciplinary authority even if it be of the view that the punishment awarded is arbitrary or grossly excessive or out of all proportion to the offence committed in those cases where the punishment had been imposed pursuant to a full fledged enquiry; and so it cannot substitute any other punishment in its place, which, in its opinion, be just and proper in the circumstances of the case.” 47. But in paragraph 21, the High Court observed as follows : “ So, merely because there is no express provision in the Constitution giving the High Courts power to pass such order as may be deemed necessary for doing 'complete justice' in any case or matter pending before it, the same should not be clinching. It is for consideration whether such a power should not be conceded to the High Court, because a very small segment of the Indian litigants can afford to Fight legal battle in the Supreme Court, inter alia, because of the expenditure involved. So, a common man would be deprived of getting 'complete justice' if the High Court are not empowered to do so. This apart, the life of a litigation may got prolonged, because it may be that in a particular case the only relief which can justly be granted to the petitioner relates to awarding of proper punishment for the charges established, and on the same being done, the parties may not agitate the matter before the Supreme Court. This apart, the life of a litigation may got prolonged, because it may be that in a particular case the only relief which can justly be granted to the petitioner relates to awarding of proper punishment for the charges established, and on the same being done, the parties may not agitate the matter before the Supreme Court. Further, if this jurisdiction is confined to the Supreme Court alone, its workload would get increased, which would not be conducive on the face of already heavy pendency at that level. Finally, the decision relating to proper punishment is not such a difficult task which High Court cannot perform to the satisfaction of all concerned. It may be stated that the Constitution makers had reposed so much confidence in the High Courts that they had conferred power on them to even decide the constitutionality of a Central enactment. We may also say that social justice, which is athrobbing component of the Direct Principles embodied in Part IV of the Constitution would require a liberal approach in this regard. Rendering of full justice to the millions is the perennial and emphatic need of modern India. We would closed this part of the judgment by stating that the Supreme Court itself has stated in some of its decisions that the High Court can pass such order as it deems fit to do complete justice. Rendering of full justice to the millions is the perennial and emphatic need of modern India. We would closed this part of the judgment by stating that the Supreme Court itself has stated in some of its decisions that the High Court can pass such order as it deems fit to do complete justice. It would be enough to refer to two such decision : Grindlay's Bank Ltd. vs. Income-tax Officer, AIR 1980 SC 656 , where in paragraph 10 it was stated by Pathak, J. (as he then was) that the “ order made by the High Court directing the Income-tax Officer to make a fresh assessment was necessary in order to do complete justice between the parties”, and Gujarat Steel Tubes Ltd. v s. Gujarat Steel Tubes Mazdoor Sabha, AIR 1980 SC 1896 , in which Krishna Iyer, J. observed as below in paragraph 146 : “ Article 226, however, restrictive in practice, is a power wide enough, in all conscience, to be a friend in need when the summons comes in a crisis from a victim of injustice; and more importantly, this extraordinary reserve power is unsheathed to grant final relief without necessary recourse to a remand.” These observations where made while holding that the power conferred on the Labour Court, Tribunal or National Tribunal under section 11 A of the Industrial Disputes Act, 1947, to substitute a punishment, can be exercised by the High Court also, though section 11 A in terms has not conferred such a power on the High Court.” 48. The other decision relied on by Sri Bhuyan learned Advocate General is (1994) 2 SCC 37 (State Bank of India & others vs. Samarendra Kishore Endou & others) wherein also it was stated that imposition of appropriate punishment is within the discretion and judgment of the disciplinary authority. It may be open to the appellate authority to interfere with it but not to the High Court or to the Administrative Tribunal for the reason that the jurisdiction of the Tribunal is similar to the powers of the High Court under Article 226. The power under Article 226 is one of judicial review. It is not an appeal from a decision but a review of the manner in which the decision was made. The power under Article 226 is one of judicial review. It is not an appeal from a decision but a review of the manner in which the decision was made. The power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the authority after according a fair treatment, reaches on a matter which it is authorised by the law to decide for itself, a conclusion which is correct in the eyes of the Court. Bhagat Ram vs. State of Himalchal Pradesh is no authority for the proposition that the High Court or the Tribunal has jurisdiction to impose any punishment to meet the ends of justice. But in parapraph 14 it has been pointed out that if the Court gives to the finding that the punishment is harsh one, the matter may be remitted back to the disciplinary authority or the appellate authority to consider the case. The Supreme Court pointed out as follows : “ In our opinion, the proper course to be adopted in such situation would be to send the matter either to the disciplinary authority or the appellate authority to impose appropriate punishment.” 49. So, on the basis of the law laid down by the Apex Court I am not entitled to substitute the punishment imposed by the disciplinary authority but at the same time there is no bar to consider as to whether the punishment is a harsh one or not. As I have indicated above, the gravement of the charges in charge No .1,2 and 10 are on the side of hyper technicality and a man should not be deprived of his source of livelihood on hyper technicality. A man in the discharge of his duties may not always act in a prudent manner but such action does not call for action that he may be removed from service by taking away his source of livelihood. It is not expected that such a man should be exposed to harsh punishment in the manner as done in this case. 50. Here is a case where the service of the petitioner for a long period was ought to be wiped out for the alleged misconduct of the petitioner. That will not amount to justice inasmuch as justice always means justice tempered with mercy. 50. Here is a case where the service of the petitioner for a long period was ought to be wiped out for the alleged misconduct of the petitioner. That will not amount to justice inasmuch as justice always means justice tempered with mercy. The power must be exercised reasonably inasmuch as the powers are conferred subject to implied requirement that they be exercised reasonably. An authority failing to comply with this obligation acts unlawfully or ultra vires, for each and every misconduct, extreme punishment cannot be imposed. It is well settled that some of the most intelligent people are most unreasonable and some aspects may be sincerely believed, but yet they may act beyond the limited of reasons. But conduct that is shown to be unreasonable as to be arbitrary or capricious may be the some total or assimilation of acts done in good faith. No doubt, the standards of reasonableness are also variable the Court by adopting that standard cannot verge on de novo review of the merits of the decision. It may simply ask itself whether reasonable body of persons can possibly arrived at the impugned decision. If the answer to the question is in the negative the administrative decision will be invalid. An administrative decision regarding the quantum of punishment cannot be deemed to be untouchable by the Court of law. It is a different matter that the Court have no power to substitute any other punishment for the punishment imposed by the authority but the Court certainly is capable of declaring that the punishment so imposed is harsh and it does not appear proportionate to the alleged guilt. If that is not acceded to the Courts, it will lead to a chaotic condition in service jurisprudence and give a long handle to the administrative authority. Otherwise it will amount to object judicial surrender. Even when the administrative authority imposes a harsh and unjust sentence, should the Court be a silent spectator or should it sit limp and bemoan over the matter folding its hand. Is it not the duty and obligation of the Court to declare the sentence to be harsh and unjust and take necessary step to quash such a sentence/punishment remitting the matter to the authority to pass appropriate sentence which is reasonable, just and proper. Is it not the duty and obligation of the Court to declare the sentence to be harsh and unjust and take necessary step to quash such a sentence/punishment remitting the matter to the authority to pass appropriate sentence which is reasonable, just and proper. Maxim of law is to simplify its remedies, and without usurping the jurisdiction of others to apply its rule to the advancement of substantial justice. The Court must administer justice and give relief to a party who has established his right of redress by enlarging legal remedy if necessary in order to do justice. Right to get due justice is the mandate of law. It is the duty of the Court to avoid wrong and injury which by wrong application of rules might be thrust because of the action a party. If the punishment is disproportionate and the argument that it cannot be corrected in exercise of the power of judicial review is to be accepted, it will take away the whole some scope of judicial review giving a long rope to the authority to inflict the severe ! punishment even for a minor offence. It cannot be the object of law. In such a case, ; the Court can always quash the punishment remitting it to the proper authority i to impose the just punishment commensurate with the gravity of offence, otherwise even the most severe punishment shall stand uncorrected in judicial review. The power of the Court to make appropriate declaration regarding the . punishment has not been touch by the decision of the Apex Court. 51. Lord Dening in the Family Story (1981 Edition) at 174 pointed out as follows : “ My root belief is that the proper role of a Judge is to do justice between the parties before him. If there is any rule of law which impairs the doing of justice, then it is the province of the Judge to do all he legitimately can to avoid that rule or even to change it so as to do justice in the instant case before him.” 52. Lord Atking in the case United Australia Limited vs. Barclays Bank Ltd., 1941 AC 1 at 29 pointed out as follows : “ When these ghosts of past stand in the path of justise clanking their medieval chains, the proper course for the Judge is to pass through them undeterred.” 53. Lord Atking in the case United Australia Limited vs. Barclays Bank Ltd., 1941 AC 1 at 29 pointed out as follows : “ When these ghosts of past stand in the path of justise clanking their medieval chains, the proper course for the Judge is to pass through them undeterred.” 53. The validity of punishment may be looked into from another angle, Rule 9A of the Rules of 1964 provides inter alia as follows : “ 9-A. Communication of orders - Orders made by the Disciplinary Authority shall be communicated to the Government servant who shall also be supplied with a copy of the report of the enquiry, if any, held by the Disciplinary Authority and a copy of it findings on each charge, or where the Disciplinary Authority is not to the Inquiring Authority, a copy of the report of the Inquiring Authority and a statement of the findings of the Disciplinary Authority together with brief reasons for its disagreement, if with the findings of the Inquiring Authority (unless they have already been supplied to him) and also a copy of the advice, if any given by the Commission and, where the Disciplinary Authority has not accepted the advice of the Commission, a brief statement of the reasons for such none-acceptance.” 54. The proviso to Article 311 (2) of the Constitution has been deleted but deletion of proviso does not put any bar to serve second show cause notice where the rule specifically provides to afford such opportunity to the delinquent. The requirement for service of Enquiry Report was expressly provided in the rule, and it was never deleted. The proviso to Article 311 (2) of the Constitution has been deleted but deletion of proviso does not put any bar to serve second show cause notice where the rule specifically provides to afford such opportunity to the delinquent. The requirement for service of Enquiry Report was expressly provided in the rule, and it was never deleted. Now the second show cause is necessary though after 20.11.90 (Ramjan Khan's case) reported in AIR 1991SC 471 (Union of India vs Mohd.Ramzan Khan) wherein the Supreme Court in para 18 pointed out as follows: “We make it clear that wherever there has been an Inquiry Officer and he has furnished a report to the disciplinary authority at the conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires, and non-furnishing of the report would amount to violation of rules of natural justice and make the final order liable to challenge hereafter.” 55. The impugned order in the instant case was passed by the Executive Council on 4.9.91 and in that view of the matter also this order of punishment is bad in law. 56. By virtue of 42nd Amendment of the Constitution doing away with second show cause, this Rule 9A was not deleted from the Rules. So, this Rule shall hold the field in the process of enquiry. The admitted position is that the report of the enquiry was not furnished to the petitioner and the petitioner has made a grievance of it in the writ application. The order of punishment imposing compulsory retirement is bad for not complying with the Rule 9A and on this ground also, this order of punishment is liable to be quashed. 57. Justice OW Holmes, in his Book, the Common Law Wrote as follows : “The law embodies the story of a nation's development through many centuries, and it can not be dealt with as if it contained only the axioms and corolories of a book of mathematics. In order to know what it is we must know what it has been and what it tends to become.” 58. In order to know what it is we must know what it has been and what it tends to become.” 58. In that view of the matter, I hold as follows : (i) That the enquiry which was conducted against the petitioner was violative of Rule 9 of the Disciplinary Appeal Rules, 1964 and as such it is invalid in the eye of law and it caused prejudice to the petitioner. (ii) That the enquiry conducted against the petitioner was in violation of the principles of natural justice. (iii) That the findings arrived at in the enquiry are entirely perverse and based on no evidence and the authority failed to establish the charges of gross misconduct, indiscipline and insubordination. (iv) Even if it is assumed that for the sake of argument that the charges as against the petitioner were established, the punishment imposed on the petitioner is harsh and disproportionate to the gravity of the offence. 59. Accordingly, this writ application is allowed and the enquiry report dated 6.7.91 Annexure E and the impugned resolution of the Executive Council dated 4.9.91 Annexure D and the impugned order dated 4.9.91 Annexure C are all quashed and the petitioner shall be taken in service with all service benefits. I leave the parties to bear their own costs.