JUDGMENT Amitava Roy, J. 1. The disciplinary action against the Petitioner taken by the Assam State Agricultural Marketing Board (for short, hereinafter referred to as the Board) and as embodied in the impugned letter dated 18.05.2009 (Annexure-10 to the writ petition) issued by its Chief Executive Officer forms the subject matter of challenge in the instant proceeding. 2. I have heard Mr. A.K. Goswami, Sr. Advocate assisted by Mr. M. Khan and Mr. K. Rahman, Advocates for the Petitioner and Mr. S. Chamaria, learned Standing Counsel for the Board. 3. The Petitioner's pleaded version, in short, is that he had joined the Board in the year 1978 as its Marketing Inspector and in course of his service was transferred and posted as Secretary of the Lanka Regulated Marketing Committee, Nilbagan, Nagaon in the year 1998. In that capacity he also served as a Drawing and Disbursing Officer of that Committee till 10.03.2002 whereafter, he was transferred to Hailakandi District Regulated Marketing Committee on 28.02.2002 and on his release in accordance therewith, he joined his new post on 19.03.2002. Soon thereafter, he was placed under suspension on the allegation of financial irregularities during his tenure as the Secretary, Lanka Regulated Marketing Committee. A show-cause notice dated 06.07.2002 initiating disciplinary proceeding against him under Rule-9 of the Assam Services (Discipline & Appeal) Rules, 1964 (for short, hereinafter referred to as the Rules) was served on him requiring him to submit an explanation to the charges contained in the statement of allegations accompanying the same. The Petitioner, accordingly submitted his written statement of defence against all the 9 (nine) charges, the essence were of was 'financial irregularities' by him, denying the same. While the matter rested at that, after the receipt of the Petitioner's written statement, he was without prejudice to the disciplinary proceeding, reinstated in service and was posted as Secretary, Karimganj District Regulated Marketing Committee. The disciplinary authority, thereafter, appointed the Inquiry Officer and the Presenting Officer. Though, initially one Sri Satchit Dutta, District Agricultural Officer, Hailakandi was appointed, the Inquiry Officer, eventually by order dated 28.06.2007 Shri D. Sharma, Deputy Chief Executive Officer of the Board was substituted in his place. The disciplinary authority, thereafter, appointed the Inquiry Officer and the Presenting Officer. Though, initially one Sri Satchit Dutta, District Agricultural Officer, Hailakandi was appointed, the Inquiry Officer, eventually by order dated 28.06.2007 Shri D. Sharma, Deputy Chief Executive Officer of the Board was substituted in his place. According to the Petitioner, he being apprehensive of unfairness in the disciplinary proceeding, on the induction of the new Inquiry Officer, submitted a representation on 10.07.2007 requesting his replacement pleading likelihood of bias of Shri D. Sharma, Deputy Chief Executive Officer. No action however, was taken thereon and the said Officer administered the disciplinary proceeding even thereafter. The Petitioner has averred that he subsequent thereto, in response to a letter dated 06.02.2008 issued by the Inquiry Officer, appeared before him on 12.02.2008, where after the charges and his written statement of defence were explained to him. Some questions relating to the alleged financial anomalies were also put to him. Thereafter, by 2/3 letters he was required to appear in the disciplinary proceeding on other dates which he did. On those days, he was similarly confronted with some questions by the Inquiry Officer to which he replied suitably. It was thereafter that the Petitioner received the impugned order dated 18.05.2009 holding that the charges against him had been proved and he was directed to repay Rs. 17,33,495/- in the manner as outlined therein. By a later order dated 01.06.2009 the manner of recovery of the aforementioned amount was reiterated and initiation of a legal proceeding against him was indicated. 4. According to the Petitioner, the disciplinary proceeding is invalid, as neither any witness was examined nor any document was exhibited or proved therein by the disciplinary authority in his presence. He also was not apprised 'of his right to adduce evidence and no opportunity of cross-examining the witnesses of the disciplinary authority was provided to him. The Petitioner has asserted in categorical terms that the copy of the Inquiry Report was not furnished to him at any point of time and that all these omissions have resulted in gross denial of reasonable opportunity to him as required under the Rules rendering the disciplinary proceeding void and non-est. 5. The Petitioner has asserted in categorical terms that the copy of the Inquiry Report was not furnished to him at any point of time and that all these omissions have resulted in gross denial of reasonable opportunity to him as required under the Rules rendering the disciplinary proceeding void and non-est. 5. The Board in its affidavit, while denying the allegation of bias and the illegalities in the disciplinary proceeding as alleged by the Petitioner has contended that the appointment of Shri D.C. Sharma, Deputy Secretary as the Inquiry Officer was a compelling necessity as the officer earlier appointed failed to conduct the same. The answering Respondent has denied the receipt of any representation of the Petitioner objecting to the appointment of Shri D.C. Sharma as the Inquiry Officer. According to the Board, the disciplinary proceeding was conducted in accordance with the Rules and the Petitioner was offered all opportunities to effectively defending himself against the charges as an endorsement whereof he had duly signed the records thereof. The Board has averred that the Inquiry Officer on the completion of the disciplinary proceeding, submitted his report on 17.12.2008 concluding that all the charges against him (Petitioner) had been proved. The report having been scrutinised and approved by the Board, the letter dated 18.05.2009 proposing action thereon, was despatched by post to the Petitioner enclosing a copy of the Inquiry Report therewith. The Board admitted that meanwhile, by order dated 22.10.2008 Mr. D.C. Sharma, Deputy Secretary (Inquiry Officer) had been, on the transfer of the earlier incumbent, accorded the additional charge of the Office of the Chief Executive Officer temporarily. The answering Respondent, while denying the allegation of unfairness in action and consequential prejudice has pleaded that having regard to the nature of the charges proved, the impugned action cannot be faulted with. 6. The learned Counsel for the parties have reiterated the above pleas in course of their arguments. Mr. Goswami, learned Counsel, in particular, has urged that it being apparent on the face of the letter dated 18.05.2009 that no Inquiry Report had been forwarded therewith to the Petitioner, the impugned penalty is not sustainable in law. Even, otherwise as the letter dated 18.05.2009 demonstrates the decision of the disciplinary authority to impose the penalty as mentioned therein, it is per se illegal, as no prior opportunity to the Petitioner had been extended to represent against the same. Even, otherwise as the letter dated 18.05.2009 demonstrates the decision of the disciplinary authority to impose the penalty as mentioned therein, it is per se illegal, as no prior opportunity to the Petitioner had been extended to represent against the same. The learned Sr. Counsel contended that a bare perusal of the Inquiry Officer's Report would substantiate the Petitioner's plea of examination of the witnesses of the disciplinary authority in his absence. Mr. Goswami, has further pointed out that the Inquiry Officer against whom bias had been alleged, in fact had at the relevant point of time acted as the Disciplinary Authority he, by then, having assumed the office of the Chief Executive Officer of the Board. As in substance, the disciplinary authority and the Inquiry Officer, thus got rolled into one the disciplinary proceeding is vitiated with oodles of procedural infirmities rendering it in void he urged. 7. Mr. Chamaria, in reply, while reiterating the stand of the Board that the Inquiry Officer's Report had, in fact, been forwarded to the Petitioner alongwith the letter dated 18.05.2009 has urged that even otherwise he having failed to establish any prejudice for the alleged non-receipt thereof, no interference with the disciplinary proceeding on this count is warranted. According to him, the official records do not disclose that the Petitioner had represented against the appointment of Mr. D.C. Sharma as the Inquiry Officer alleging bias. While admitting that in administrative exigencies, Mr. D.C. Sharma, had to be appointed as the Inquiry Officer to be eventually entrusted with the responsibility of the office of the Chief Executive Officer of the Board, the learned Counsel has affirmed the validity of the disciplinary proceedings. He has asserted that the proved charges against the Petitioner being grave in nature, the impugned order of penalty ought not to be interfered with. Mr. Chamaria, sought to reinforce his arguments by placing reliance with the decision of the Apex Court in S.K. Singh v. Central Bank of India and Ors. (1996) 6 SCC 415 and State of U.P. v. Harendra Arora and Anr. (2001) 6 SCC 392 . 8. The competing pleadings and the contentious arguments have been assessed. Considering the conflicting stands of the parties qua the impugned disciplinary proceeding, reference to the original records pertaining thereto produced before this Court has been considered indispensably essential for a fair adjudication. (2001) 6 SCC 392 . 8. The competing pleadings and the contentious arguments have been assessed. Considering the conflicting stands of the parties qua the impugned disciplinary proceeding, reference to the original records pertaining thereto produced before this Court has been considered indispensably essential for a fair adjudication. As, it transpires therefrom, the Petitioner was initially asked to appear in the disciplinary proceeding on 15.12.2007, which he did, whereafter, he further appeared on 26.12.2007 and 02.01.2008. His statement was recorded by the Inquiry Officer on 15.02.2008, i.e. on the same date on which that of Shri Prodip Bora Ex-Accountant, Lanka Regulated Marketing Board was recorded seeking his comments on the statement so made by the Petitioner. On 22.10.2008 the statement of Shri Abdul Khalif Chaudhury, Ex-Chairman, Lanka Regulated Marketing Committee was recorded by the Inquiry Officer similarly, to comment upon the statement made by the Petitioner on 15.02.2008 on the various aspects of the charges levelled against him. Though, on the same date i.e. on 22.10.2008 3 (Three) other persons are shown to have been present, the records do not disclose as to whether their statements were also recorded or not. The records disclose that the Petitioner was present in the disciplinary proceeding on 15.12.2007, 26.12.2007, 02.01.2008 and 15.02.2008. No witness was however examined on 26.12.2007. The statements of the witnesses of the disciplinary authority referred to hereinabove also do not disclose any cross-examination by the Petitioner. A bare reading of the statement of the Petitioner and those of the witnesses examined on 15.02.2008 and 22.10.2008 in clear terms proclaim that he was examined before them who were simply required to comment on his (Petitioner's) explanations and defence on the imputations made against him. A reading of the Inquiry Officer's Report also discloses in unambiguous terms that no endeavour had been made by him to analyse the statements of the witnesses of the disciplinary authority in support of the charges as required under the Rules and that he instead, shifted the burden on the Petitioner who denied the charges and relied on the comments of the Presenting Officer and the responses of the witnesses on his statements recorded earlier. 9. 9. These disclosures not only authenticate the grievances expressed by the Petitioner, vis-a-vis the irregularities in the conduct of the disciplinary proceeding in contravention of the Rules, it is also more than apparent that the witness Abdul Khalif Chaudhury had been examined in absence of Petitioner on 22.10.2008. The plea of the Board that the departmental proceeding was furthered in conformity with the provision of Rule 9, in the face of the above cannot be sustained. On this ground alone the disciplinary proceeding and the order of penalty are liable to be adjudged null and void. 10. It is no longer res integra that the essentials of Rule 9 are mandatory and that any departure therefrom would assuredly vitiate the departmental proceeding. Though, the letter dated 10.07.2007 of the Petitioner expressing reservation about the fairness of the Inquiry Officer is not available on record, the same in the above conspectus of facts is not of much significance. 11. The records reveal that though, in the note dated 16.05.2009 of the concerned authority of the Board, a decision had been taken to forward a copy of the Inquiry Officer's Report to the Petitioner, there is no other material therein to demonstrate persuasively that the same had been acted upon and that in fact, the said document had been dispatched to him. The Board in its affidavit, though had asserted that the letter dated 18.05.2009 alongwith the Inquiry Officer's Report had been transited to the Petitioner by post, the records also do not reveal any trace of any document or proof otherwise to the said effect. A plain reading of the letter dated 18.05.2009 disclosing the proposed action of the Board and in fact setting out the manner of recovering the amount mentioned therein from the Petitioner's entitlements does not proclaim as well that a copy of the Inquiry Officer's Report had been forwarded along therewith. This Court, therefore, does not feel convinced to return a finding that a copy of the Inquiry Officer's Report, in fact had been furnished to the Petitioner alongwith the letter dated 18.05.2009. In any view of the matter, this letter does not, as such provide an opportunity to the Petitioner to represent against the action decided to be taken against him. The order of penalty dated 01.06.2009 is only a reiteration of the decision conveyed by the letter dated 18.05.2009. In any view of the matter, this letter does not, as such provide an opportunity to the Petitioner to represent against the action decided to be taken against him. The order of penalty dated 01.06.2009 is only a reiteration of the decision conveyed by the letter dated 18.05.2009. The plea of want of prejudice taken by the Board, in the above backdrop of facts, therefore, does not commend for acceptance. The decisions of the Apex Court relied upon on behalf of the Board do not advance its case in this premise. 12. The impugned disciplinary proceeding on several counts stand vitiated by the violations of the imperative prescriptions of Rule 9 of the Rules. There being a contravention of the obligatory precepts of fairness in action by a statutory authority, the same, therefore, is adjudged to be illegal and non-est in law. Resultantly, the impugned orders are also interfered with. Ordered accordingly. 13. As the annulment of the disciplinary proceeding and the orders of penalty have been on the ground of infraction of the enjoinment of procedural fairness, it would be open for the Board, if so advised, to take further appropriate action against the Petitioner in this regard, however, strictly in accordance with law. The petition, thus is allowed in the above terms. No costs. Petition allowed