This Court by successive orders particularly the orders dated 1 st August, 1997 and 21.11.1997 required the learned Govt. Advocate to produce the related records and files pertaining to the enquiry/disciplinary proceeding as against the present writ petitioner, but the learned Govt. Advocate had failed to produce the related files till today. Today also Mr. Talukar, Govt. Advocate sought for time so as to enable him to produce the related records. In my considered view, the prayer is not reasonable and accordingly, it is rejected. Apart from it, no counter affidavit is filed on behalf of the State respondents till today since the year, 1995. Considering all these existing facts and circumstances of the case, I hereby propose to dispose of the writ petition on its own merit with the following judgment and order. 2. Supporting the case of the writ petitioner, Mr. SP Deka, learned counsel submitted that the petitioner was appointed as a Constable in Darrang District Executive Force of Assam Police bearing No.ABC/1059 on 5.5.1982 on regular basis and since then he had been serving under the respondents till the impugned order of discharge was issued by the competent authority, namely, the Superintendent of Police, Darrang, Mangaldoi on 25th October, 1991 as in Annexure II to the writ petition. It is also submitted by Mr. Deka that despite the appeal preferred by the petitioner to the Deputy Inspector General of Police, NR Tezpur, the said Deputy Inspector General of Police, Tezpur did not attend to the said appeal of the petitioner and no decision was made on it. Being aggrieved by the inaction of the appellate authority, the petitioner approached the Assam Administrative Tribunal, Gauhati by filing an appeal. The learned Assam Administrative Tribunal, Gauhati also rejected the appeal of the petitioner mainly on the grounds that the petitioner has not denied the charges and the allegations against him as clearly given in the related charge sheet dated 17th May; 1990. According to Mr. The learned Assam Administrative Tribunal, Gauhati also rejected the appeal of the petitioner mainly on the grounds that the petitioner has not denied the charges and the allegations against him as clearly given in the related charge sheet dated 17th May; 1990. According to Mr. Deka no question of admission of the charges by the petitioner arises in the instant case, as the petitioner left his place of duty in the evening of 28th April, 1990 with the consent and permission of Havildar In-charge, namely, Abdul Hamid so as to enable him to attend his ailing wife at his home after getting information about her serious illness and the petitioner immediately reported for his duty in the morning of 29th April, 1990, but on the same day the second respondent herein issued an order thus placing the petitioner under suspension with immediate effect, pending drawal of a disciplinary proceeding. It is also argued by Mr. Deka, that no enquiry report was ever furnished to the writ petitioner before the impugned penalty was imposed against him and apart from it, both the disciplinary authority as well as the learned Tribunal lost the sight of real nature of the case and did not consider the existing facts and circumstances of the case while passing the impugned order of 25th October, 1991 and 26th November, 1992. The learned Tribunal ought to have considered the issue as to whether the petitioner had been afforded reasonable opportunity particularly the opportunity to cross-examine the witnesses during the enquiry, but no finding so far was made by the learned Tribunal, despite a specific ground taken by the petitioner in his memo of appeal-It is also submitted by Mr. Deka that there is not even a whisper on this aspect in the impugned judgment of the learned Tribunal. It is also urged by the petitioner that even assuming but not admitting that the petitioner has admitted the charges, the penalty of the charge so far imposed upon the petitioner is disproportionate and atleast a minor penalty may be imposed upon the petitioner. In my considered view, the submission of Mr. Deka has impressed me with the following reasons: 3. No counter affidavit was filed by the State respondents till today even though the case has been pending since the year 1995. In my considered view, the submission of Mr. Deka has impressed me with the following reasons: 3. No counter affidavit was filed by the State respondents till today even though the case has been pending since the year 1995. Apart from it this Court required the related original files pertaining to the enquiry and disciplinary proceedings for which the learned Govt. Advocate was to produce the related records as per order and direction made by this Court on many occasions as discussed above. Law is well settled in this regard that the statements of the petitioner not controverted by the other parties, it shall be treated those statements are admitted and independent. In this regard a reference can be made to a decision of the Apex Court rendered in a case between Naseem Bano vs. State of Uttar Pradesh reported in AIR 1993 SC 2592 . Over and above this the Court required to go more into deep and to see as to whether the petitioner has enforceable legal rights or not in the instant case. 4. The main charge levelled against the petitioner is that 'while ABC/1059 Mahendra Nath DEF now posted at State Bank of India, Mangaldoi Branch for security guard duty he remained absent from duty un-authorisedly without any leave or permission from the competent authority wef 28.4.1990 night to 29.4.1990 morning. This refers round report of Mangaloi Police Reserve dated 29th April, 1990 submitted by APSI Nagen Dutta and from his service records it appears that he has been awarded total 93 days LWP in different occasions for his unauthorised absence from duties and overstaying leave as follows : 1. 28 days LWP wef 24.5.1983 AN to 18.6.1983 FN for overstaying leave vide DO No. 2298 dated 16.6.1983. 2. 14 days LWP wef 21.1.1988 to 3.2.1988 for unathorised absence for duty vide DO No. 408 dated 8.2.1988. 3. 51 days LWP wef 11.2.1990 to 20.3.1990 for staying leave vie PO No. 1193 dated 6.4.1990. 5. Thus he is liable for gross negligence in discharge of duty and he is. therefore, charged accordingly. 6. 2. 14 days LWP wef 21.1.1988 to 3.2.1988 for unathorised absence for duty vide DO No. 408 dated 8.2.1988. 3. 51 days LWP wef 11.2.1990 to 20.3.1990 for staying leave vie PO No. 1193 dated 6.4.1990. 5. Thus he is liable for gross negligence in discharge of duty and he is. therefore, charged accordingly. 6. The petitioner submitted his show cause statement in response to the show cause notice of 17th May, 1990 by contending, inter alia, that he left his place of posting after informing and obtaining permission from Havildar Tn-charge Abdul so as to enable him to attend his ailing wife on that day and returned in the next day and reported to his duty in the morning of the day, ie, 29th April, 1990. This explanation has been given by the writ petitioner to the competent authority on his said charges levelled against him. But the Superintendent of Police, Darrang, Mangaldoi the disciplinary authority opined that this kind of indiscipline of the petitioner cannot be accepted and deserves punishment, thus discharging the petitioner from service with immediate effect under the impugned order of 25.10.1991. The appeal of the petitioner was. not attended by the appellate authority, namely, the Deputy Inspector General of Police, NR, Tezpur. Having no alternative, he preferred another appeal before the Assam Administrative Tribunal, Guwahati and that too was rejected under the impugned order of 25.11.1992 as in Annexure 7 to the writ petition. On perusal of the available materials on records, it has been revealed that the discipiinary authority considered the past service of the writ petitioner with regard to his absence for total 83 days in the year 1983, 1988 and 1990 which was awarded and treated as LWP, ie, the leave without pay, but relevant charge is with regard to his unauthorised absence for the period from 28th April, 1990 to 29th April, 1990 morning. In my considered view the penalty of discharge so far imposed by the competent authority is disproportionate. Apart from it, the petitioner was not served even a copy of the enquiry report and he was not allowed to cross-examine the witnesses. There is also no material on record for establishing the fact that the writ petitioner has been asked by the authority concerned as to whether he wanted to be represented by a Govt. servant of his choice. There is also no material on record for establishing the fact that the writ petitioner has been asked by the authority concerned as to whether he wanted to be represented by a Govt. servant of his choice. This opportunity is to be afforded by the competent authority to the delinquent official and it is a must under the law as laid down by the Apex Court in a case between Bhagat Ram vs. State of Himachal Pradesh, AIR 1982 SC 454. Considering all these existing facts and circumstances of the case. I am of the view that the order of discharge is harsh and disproportionate to the gravity if the charge imputed to the writ petitioner and in my considered view imposition of stoppage of 5 increments with cumulative effect would be an appropriate punishment, as he left his place of duty without written order/ permission even though he alleged that he took permission and consent from the concerned Havildar In-charge. While making this order of penalty of stoppage of 5 increments with cumulative effect to the petitioner under this order, I hereby refer to the decision of the Apex Court rendered in Ram Kishan vs. Union of India reported in (1995) 6 SCC 157 . 7. As discussed above, lam also of the view that the learned Tribunal did not consider about the quantum of penalty so far awarded and imposed upon the writ petitioner by the 2nd respondent while passing the impugned order of discharge on 25th October, 1991. In view of the above position, the impugned orders dated 25th October, 1991 and 25th November, 1992 as in Annexures land V are hereby quashed. In the result, the writ petition is allowed with a direction to the respondents to take back the petitioner in service and allow him to work as usual within a period of 3 weeks from the date of receipt of this judgment and order. However, it is made clear that the petitioner shall not be entitled for back salaries, but the period from the date of the order of discharge to the date of reinstatement shall be counted for the purpose of seniority and other pensionary benefits. No costs.