JUDGMENT Biplab Kumar Sharma, J. 1. This writ petition is directed against the Annexure-10 order dated 7.6.2005. Pursuant to a departmental proceeding the petitioner was demoted from the post of Marketing Officer to that of Senior Internal Auditor. By the said order an amount of Rs. 6,78,296.25 was directed to be recovered from the monthly salary of the petitioner. The order also provided that for the period of suspension the petitioner would not be entitled to any other benefit except the subsistence allowance, which he had already drawn. The order also provided that till the recovery of the amount, the petitioner would not be entitled to any promotion and that no job involving financial transaction would be provided to him with the further stipulation that he would not be posted at the Head Office/Central Store. The aforesaid order of penalty was passed pursuant to a departmental proceeding. The effective implementation of the order of penalty was notified by Annexure-11 order dated 4.7.2005. In the writ petition the petitioner has challenged the entire departmental proceeding including the said two orders dated 7.6.2005 and 4.7.2005 (Annexure-10 and Annexure-11 respectively). 2. From the materials on record it appears that the petitioner pursuant to his involvement in ACB P.S. Case No. 9(A)/94 was placed under suspension vide Annexure-4 order dated 3.11.98. It is submitted that the charge against the petitioner in the Criminal Case was the one leveled against him in the departmental proceeding. Be it stated here that the petitioner has been acquitted in the Criminal Case being Special Case No. 9(A)/94 vide judgment and order dated 2.9.2002 passed by the learned Special Judge, Assam, Guwahati. The said judgment and order has been affirmed by this Court in CRP Case No. 67/08 vide order dated 31.3.2009. 3. The charge against the petitioner as was leveled vide charge sheet dated 26.9.2000 (Annexure-1) was as follows:-- Charge No. 1 While Sri Sarbeswar Das, Marketing Officer (Discharged) was the Incharge of Silk Section of the Central Store of A.K.V.I. Board during the year 1989-90 has dishonestly misappropriated Govt. properties namely, Silk, Endi, Woolen and Muga amounting to Rs. 6,78,296.25 by manipulating figures in the official records for personal gain and thereby incurred loss to the Government. While you were the Sr. properties namely, Silk, Endi, Woolen and Muga amounting to Rs. 6,78,296.25 by manipulating figures in the official records for personal gain and thereby incurred loss to the Government. While you were the Sr. Auditor of the Board, men audited the accounts of Silk Section of the Central Store of the Board for the year 1989-1990 had willfully omitted to mention the misappropriated amount of s. 6,78,296.25 by accused Sri Sarbesware Das with malafide motive in the audit report and thereby helped accused Shri Sarbeswar Das to misappropriate to the tune of Rs. 6,78,296.25 and causing loss to the Board and concealed the act of misappropriation. You are, therefore, charged with defalcating the Board's money with malafide intention, negligence of duty and cheating the Board. 4. Although along with the Charge Memo a statement of allegation to the same effect was enclosed but the same did not contain any list of witnesses and documents as required under Rule-9 of the Assam Services (Discipline& Appeal) Rules, 1964. Under Rule-9(2), 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 charges is proposed to be substantiated. It is the case of the petitioner that in absence of any list of documents furnished to him he was not aware about the foundation of the charges. By Annexure-2 letter dated 30.9.2000 the petitioner had prayed for inspection of the following documents enabling him to prepare an effective written statement:-- 1. Stock Book of silk-section for the year of 1989-90 2. Sales Day Book " " " 3. Purchase Day Book " " " 4. Sales Invoice " " " 5. Purchase Invoice " " " 6. Processing Book " " " 7. P.V. list of " " " 5. Stock Book of silk-section for the year of 1989-90 2. Sales Day Book " " " 3. Purchase Day Book " " " 4. Sales Invoice " " " 5. Purchase Invoice " " " 6. Processing Book " " " 7. P.V. list of " " " 5. After more than 3 years of the said request made by the petitioner, the Chief Executive Officer of the respondent Board by his Annexure-3 communication dated 21.11.2003 directed the petitioner to apply to the Court of the learned Special Judge for verification of books of accounts of Central Store for the year 1989-90 in presence of the Enquiry Officer, Presiding Officer and the Auditors, who had conducted the audit Apart from the fact that it was incumbent on the part of the disciplinary authority to provide inspection of the documents to the petitioner by making necessary arrangement, the said order dated 21.11.2003 also did not say anything about the documents which the petitioner sought for inspection vide his Annexure-2 letter dated 30.9.2000. It was naturally difficult for the petitioner to go to the Court of the learned Special Judge, engaged an Advocate and then to pray for inspection of the documents in presence of the Enquiry Officer, Presiding Officer and the Auditors. The disciplinary authority itself ought to have arranged inspection of documents by the petitioner. 6. In the aforesaid background the petitioner could not inspect the documents and resultantly could not submit his written statement. In the meantime, he was reinstated in service after long 5 years of suspension vide order dated 23.5.2003 (Annexure-6), pursuant to the order dated 23.4.2004 passed by this Court in WP(C) No. 149/99. 7. A departmental enquiry was conducted to enquire into the charges leveled against the petitioner and for that purpose an Enquiry Officer was appointed. The disciplinary authority was to be represented by its Presenting Officer. The petitioner once again by his Annexure-8 letter dated 12.12.2003 made a request to the disciplinary authority to allow him to inspect the documents. In the said letter he had indicated his difficulties in approaching the Court of the learned Special Judge with the conditions stipulated in the order dated 21.11.2003 (Annexure-3). 8. No opportunity was provided to the petitioner for inspection of the documents making a grievance against which the petitioner made further representations on 30.12.2003 and 20.2.2004. In the said letter he had indicated his difficulties in approaching the Court of the learned Special Judge with the conditions stipulated in the order dated 21.11.2003 (Annexure-3). 8. No opportunity was provided to the petitioner for inspection of the documents making a grievance against which the petitioner made further representations on 30.12.2003 and 20.2.2004. Without attending the request of the petitioner to provide him inspection of documents, the Enquiry Officer took up the enquiry proceeding and by his Annexure-9 report dated 24.3.2004 held that there was no room to relinquish the petitioner from the charge leveled against him. In the report there is no finding as such holding the petitioner guilty of the charge. 9. Mr. J. Deka, the learned counsel for the petitioner has submitted that the manner and method in which the enquiry was conducted, it was a foregone conclusion that the petitioner would be held guilty of the charge. Emphasizing the need for providing reasonable opportunity of being heard following principles of natural justice, he has submitted that great prejudice was caused to the defence of the petitioner by not providing him the opportunity of inspection of documents. He also submits that the findings recorded by the Enquiry Officer cannot be said to be finding in reference to the charge what was leveled against him. He has also submitted that the disciplinary authority passed the impugned order with total non-application of mind inflicting multiple penalties on the petitioner. 10. Countering to above argument Mr. S. Ali along with Mr. G.B. Bordoloi, the learned counsel appearing for the respondent Board has submitted that the petitioner himself having admitted his guilt, there was nothing wrong in imposing the penalty on the petitioner. He further submits that the prime accused namely, Shri Sarbeswar Das could not have misappropriated the amount without the active connivance of the petitioner. He also submits that the Enquiry Officer and the Disciplinary Authority having recorded their individual findings on the basis of the materials available on records, this Court exercising writ jurisdiction will not sit on appeal over those findings. 11. I have very carefully considered the submissions made by the learned counsel for the parties and have also perused the entire materials on record. 11. I have very carefully considered the submissions made by the learned counsel for the parties and have also perused the entire materials on record. My findings and conclusions are as follows:-- As noted above it is the mandatory requirement of invariably furnishing the list of documents and witnesses under Rule 9(2) of the Assam Services (Discipline and Appeal) Rules, 1964. In the instant case, the charge sheet was submitted to the petitioner without any such list. It was in such circumstances the petitioner applied for inspection of documents which was also denied to him. Instead of directing the petitioner to apply to the Court of the learned Special Judge for inspection of documents with the conditions stipulated in the order dated 21.11.2003 (Annexure-3), it was incumbent on the part of the disciplinary authority to arrange inspection of documents for the petitioner entitling him to make his effective written statement of defence. The same having not been done there is gross violation of principles of natural justice at the very threshold of initiation of the departmental proceeding. As to what is the charge against the petitioner has been noted above. The amount was misappropriated by one Shri Sarbeswar Das, Marketing Officer. The only charge against the petitioner is that he did not mention the misappropriated amount in his audit report and thereby helped said Shri Das to misappropriate the amount. The enquiry was to confine to the said charge only. However, on perusal of the enquiry report it is found that the petitioner has been held guilty of some other omission and commission about which the petitioner was never apprised of by leveling any charge. For a ready reference, the finding recorded by the Enquiry Officer is given below:-- i) After completion of the Audit period sales day books and purchase day books were not signed by the Auditors. That is the gross lapse on the part of Shri Kirty Nath as team leader of the Audit party. ii) The Gross profit/sales ratio was only 1.26% which is much below of the normal profit ratio. As per norms the said ration must not fall below 4%. But in Re-audit report the Gross profit/Sales ration was raised to 6.06%. The causes of poor gross profit/sales ration was not reflected in the Audit Report prepared by Shri Kirty Nath nor he had taken any action into the matter. As per norms the said ration must not fall below 4%. But in Re-audit report the Gross profit/Sales ration was raised to 6.06%. The causes of poor gross profit/sales ration was not reflected in the Audit Report prepared by Shri Kirty Nath nor he had taken any action into the matter. From the above it is concluded that it is the Gross lapse in the part of Shri Kirty Nath, leader of the Audit party as he failed to bring it before the notice of higher authority for appropriate action in time. iii) Accused Shri Kirty Nath admitted that he had checked Sales Day book and Purchase Day book with invoices of silk section without stock ledger. Thus the shortage list of silk section was not incorporated in the Balance sheet (Exhibit-16). Thereby it can be assumed as to what sort of audit could be conducted by him, without checking stock ledger. The Audit conducted by him can be termed as prehension as the statement given by him is a visions move to disown his own obligatory liabilities. iv) In place of answering the show cause of the charge sheet he gave one requisition slip to produce the books of A/Cs before him. (Exhibit-3). Till today he did not submit the answer of the show cause. v) which is quite irreverent to the particular issue. As the auditors are supposed to maintain their working dairy at the time of audit. Further to the above the accused Shri Kirty Nath demanded to go through the original Stock book and P.V. list on which audit works of central store was conducted by him knowing it very well that those books were not furnished by accused Shri Sarbeswar Das the then I/C of silk section (Dismissed) before the audit parry who came for Re-audit of Central Store's A/C for the year 1989-90 and 90-91. The un-produced stock ledgers were prepared afterwards on the basis of relevant paper by Shri Mukunda Kalita I/C silk section and by Shri Khagen Kalita, Account ant of Central share vide office order No. KBE/40/93-94/4 dt. The un-produced stock ledgers were prepared afterwards on the basis of relevant paper by Shri Mukunda Kalita I/C silk section and by Shri Khagen Kalita, Account ant of Central share vide office order No. KBE/40/93-94/4 dt. 26.11.93 (Exhibit-12, page-28) which are at present lying under the custody of Hon'ble Special Judge Court which were seized by Shri S. Saikia, Inspector of Police (Vigilance) (Exhibit No. 14, Pages-40-44) Shri Kirty Nath was asked twice in writing (During the period of enquiry) to apply before Hon'ble Special Judge Court for proper inspection of seized books of A/Cs of Central Store in presence of connecting Boards officials. But he did not observe any formalities for the same rather he refused to do so in writing vide his letter dt. 24.12.03 (Exhibit-23). By doing this, if fact he tried to shift the burden on the shoulder of the Board to evade his bonded responsibility to prove him innocuous. In the light of the circumstances laid down above, I did not find any room to relinquish him from the charges framed by the appropriate authority under KBE-17/D.P./2000-2001/12-14 dt. 26.9.2000. 12. On a bare perusal of the aforesaid finding it is seen that the Enquiry Officer has attributed lapses on the part of the petitioner in not signing the audit report by the auditors. Fault is also attributed to the petitioner in respect of the gross profit/sales ratio and non-reflection of the same in the audit report. The Enquiry Officer also held the petitioner guilty for not bringing the said purported lapses in the audit report to the notice of the higher authorities. 13. The above elements/charges were never made known to the petitioner. In case of any enquiry being conducted in respect of the said purported lapses, the petitioner ought to have been apprised of the same by filming definite and distinct article of charges. As regards the prayer of inspection of documents, the Enquiry Officer has simply referred to the aforesaid letter of the disciplinary authority by which he was asked to apply to the Court of the learned Special Judge. As regards the inspection of documents, the Enquiry Officer has held that upon failure of the petitioner to do so, he was not entitled to inspection of documents. It has been held by the Enquiry Officer that by such conduct the petitioner wanted to shift the burden to the respondent Board. 14. As regards the inspection of documents, the Enquiry Officer has held that upon failure of the petitioner to do so, he was not entitled to inspection of documents. It has been held by the Enquiry Officer that by such conduct the petitioner wanted to shift the burden to the respondent Board. 14. After the aforesaid discussions in the enquiry report without any reference to any evidence and depositions of witnesses the Enquiry Officer held that there was no room to relinquish the petitioner from the charge that was leveled against him. Non-relinquishment of the petitioner from the charge is one thing, but to establish the charge against him is another thing. There is nothing to show that the charge in fact was established against the petitioner. Even if it is said to have been established but the same being on the basis of matters extraneous to the charges, such finding is not sustainable in law. 15. Concurring with the purported finding of the Enquiry Officer the disciplinary authority by his impugned order dated 4.7.2005 imposed the aforesaid penalty on the petitioner. In the order the disciplinary authority has also referred to the prayer of the petitioner for inspection of documents. However, like that of the Enquiry Officer the disciplinary authority has also attributed fault on the part of the petitioner in not inspecting the documents by making request to the learned Special Judge, Assam. As to what were the conditions for such inspection of documents has been noted above. It was always incumbent on the part of the disciplinary authority to make available the documents to the delinquent for his inspection instead of directing the delinquent to get the documents inspected in a particular manner. 16. Like that of the Enquiry Officer the disciplinary authority also recorded in its order the purported fault on the part of the petitioner in not signing the audit report and also not reflecting the gross profit/sales ratio in the audit report. These lapses even if held to be correct having not formed part of the charge could not have been used against the petitioner to hold that the charge against him was established in the enquiry. 17. The disciplinary authority while passing the impugned order also took note of the fact that the criminal case against the petitioner was pending against the main accused Shri Sarbeswar Das. 17. The disciplinary authority while passing the impugned order also took note of the fact that the criminal case against the petitioner was pending against the main accused Shri Sarbeswar Das. It is submitted that he has been convicted in the criminal proceeding pursuant to which he has been dismissed from service. 18. Mr. Deka, the learned counsel for the petitioner has drawn my attention to the findings recorded by the learned Special Judge in the judgment and order dated 21.9.305 passed in Special Case No. 7(A)/99 (State Vs. Sarbeswar Das) along with some other cases. While convicting Shri Das, the learned Special Judge in his finding has recorded that it was Shri Das who was responsible for the misappropriation. Referring to the evidence of the internal auditor of the respondent Board and the inspected documents, the learned Special Judge has held that it was accused Sarbeswar Das, who was required to get the relevant entries entered in purchase Day Book and thereafter in the stock books. Detailing the procedure for preparing the documentation etc, the learned Special Judge has found that there was total failure on the part of the prime accused to make the necessary entries. No fault has been attributed to the auditors including the petitioner. 19. Leaving aside the above observations of the learned Special Judge, when the charge against the petitioner was that of helping said Shri Das in misappropriating the amount in question, it was incumbent to confine the enquiry to the said charge, instead of leveling some other allegations in the enquiry report. 20. For all the aforesaid reasons, I am inclined to accept the writ petition and consequently the impugned orders dated 7.6.2005 (Annexure-10) and 4.7.2011 (Annexure-11) are hereby set aside and quashed. Consequently the petitioner would be entitled to consequential benefits. 21. At this stage, Mr. Deka, the learned counsel for the petitioner has produced the copy of the office order dated 25.10.2010 by which the resignation tendered by the petitioner was accepted w.e.f. 20.10.2010. The order stipulates that payment of retirement benefits to the petitioner would be decided subject to the outcome of the writ petition. Consequent upon this judgment and order the petitioner shall be provided his retirement benefit as expeditiously as possible and preferably within (3) three months. Mr. Deka, the learned counsel for the petitioner submits that the petitioner has resigned from service out of frustration. Consequent upon this judgment and order the petitioner shall be provided his retirement benefit as expeditiously as possible and preferably within (3) three months. Mr. Deka, the learned counsel for the petitioner submits that the petitioner has resigned from service out of frustration. However, no opinion is expressed in this regard. The writ petition is allowed leaving the parties to bear their own costs. Petition allowed