Arup Kumar Goswami, J.;— 1. This writ petition is directed against the order dated 18.11.2002 passed by the Commandant ASRF Bn-II, removing the petitioner from his service as a Constable of Assam Special Reserve Force Battalion-II, in short, ASRF Bn-II, pursuant to a departmental proceeding. The petitioner was suspended by an order dated 22.02.2001 pending drawl of departmental proceeding by the Commandant ASRF Bn-II. Thereafter, a show-cause notice dated 26.03.2001 was issued by the Commandant, ASRF Bn-II to the petitioner, requiring him to show-cause under Rule 9 of Assam Services (Discipline and Appeal) Rules, 1964, for short, Rules of 1964, read with Article 311 of the Constitution of India as to why any of the penalties prescribed under Rule 7 of the Rules of 1964 shall not be inflicted upon him. He was charged with gross negligence of duty and misconduct on the basic allegation that while he was on sentry duty in Gate No. 2 of Battalion Headquarters from 1800 Hrs to 2000 Hrs on 21.02.2001, a group of extremists entered the Battalion campus through the Gate No. 2 and they started indiscriminate firing resulting in the death of 3 persons and injury to 2 persons, besides looting of 2 rifles including one belonging to him. The written statement of defence was to be filed within 10 days of the date of receipt of the show-cause notice dated 26.03.2001 provided he did not intend to inspect the documents. If he intended to inspect the documents having relevance with the issue, he was to make a request within 7 days and thereafter to submit the written statement within 10 days from date of completion of the inspection. With the said show-cause notice dated 26.03.2001, statement of allegations, list of documents as well as list of witnesses were enclosed. The departmental proceeding was numbered as DP No. 6 of 2001. 2. The petitioner submitted his written statement on 09.04.2001 denying the charge and stating that the fateful incident had taken place on "Siva" puja day when the road was full of people and at around 06:30 p.m., some persons carrying sophisticated arms entered into the Battalion through the broken fence and over-powered him from his backside. 3. Not being satisfied with the written statement, an Enquiry Officer was appointed. The Enquiry Officer submitted his report on 19.10.2002, holding that charge was proved against the petitioner. 3. Not being satisfied with the written statement, an Enquiry Officer was appointed. The Enquiry Officer submitted his report on 19.10.2002, holding that charge was proved against the petitioner. Agreeing with the findings of the Enquiry Officer, a show-cause dated 25.10.2002 was issued by the Commandant, ASRF Bn-II enclosing the copy of the Enquiry Report and requiring the petitioner to show-cause within 10 days from the date of the aforesaid communication as to why proposed punishment of discharge from service be not imposed upon him. The petitioner had submitted his show-cause reply. Thereafter, by the impugned order, the petitioner was removed from service. The petitioner submitted a representation dated 10.11.2003 to the Director General of Civil Defence and Commandant General of Home Guards. But he did not receive any response. 4. No affidavit-in-opposition was filed by the respondents. However, Mr. S. Sarma, learned State Counsel has produced the relevant records. 5. Mr. S.K. Sinha, learned counsel for the petitioner submits that the Enquiry Officer conducted the enquiry in violation of the principles of natural justice. There was no Presenting Officer on behalf of the Department and the Enquiry Officer acted as the Presenting Officer. The petitioner was also not allowed to inspect the listed documents. The statement of defence of the petitioner was recorded first by the Enquiry Officer and then he was asked to go out from the room of the Enquiry Officer. Thereafter, statements of the departmental witnesses were recorded by the Enquiry Officer in absence of the petitioner and the petitioner was not allowed to cross-examine the departmental witnesses. The petitioner was denied defence assistance. No opportunity was granted to examine his witnesses. He has submitted that there is violation of mandatory provisions of Rule 9 of the Rules of 1964 and as such the enquiry is vitiated. It is also his contention that the finding recorded by the Enquiry Officer is perverse. Having regard to the charge framed, a perusal of the Enquiry Report would go to show that the Enquiry Officer had travelled beyond the charge. No opportunity was granted to the petitioner to show-cause against the Enquiry Report but he was asked to show-cause against the proposed penalty only, which has also vitiated the punishment imposed. Having regard to the charge framed, a perusal of the Enquiry Report would go to show that the Enquiry Officer had travelled beyond the charge. No opportunity was granted to the petitioner to show-cause against the Enquiry Report but he was asked to show-cause against the proposed penalty only, which has also vitiated the punishment imposed. The punishment imposed upon the petitioner is disproportionate and is also discriminatory inasmuch as minor punishment was awarded to four persons against whom disciplinary proceedings were initiated on the charge that extremists had snatched away their arms and ammunitions from their possession. He has concluded his argument by submitting that the disciplinary authority had taken into consideration alleged previous in-disciplined conduct which is not permissible in law. Accordingly, he submits that the impugned order of removal is liable to be set aside and the petitioner reinstated in service. He has relied on the following decisions: 1. 2003 (2) GLT 157 (Thaneswar Kalita v. State of Assam & Ors.). 2. 1987 (2) GLR 210 (Madhab Chandra Das v. The State of Assam & Ors.). 3. 2011 (1) GLT 287 (Salam Kesho Singh v. State of Manipur & Ors.). 4. (2008) 8 SCC 236 (State of Uttaranchal and Ors. v. Kharak Singh). 5. (2008) 8 SCC 469 (State of Punjab v. Dr. P.L. Singla). 6. 2012 (5) GLT 264 (Paban Chandra Das v. Indian Oil Corporation Ltd. & Ors.). 7. (2001) 1 SCC 182 (Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant & Ors.). 8. (2006) 4 SCC 348 (A Sudhakar v. Postmaster General, Hyderabad & Anr.). 6. Mr. Sarma has submitted that the list of documents and the witnesses were furnished alongwith the show-cause notice dated 26.03.2001. In the said notice, it was also indicated that he may inspect the documents. However, he did not make any request for inspection of the documents and submitted the written statement. It is also submitted that outcome of the proceeding does not depend on documents having regard to the charge framed against the petitioner. He was notified that recording of evidence of the witnesses was fixed on 12.10.2001 at 11:00 a.m. and he was requested to be present. The said letter also advised him that if he so desired, he could take the assistance of any departmental employee for the purpose of the disciplinary proceedings by taking approval of the Commandant. He was notified that recording of evidence of the witnesses was fixed on 12.10.2001 at 11:00 a.m. and he was requested to be present. The said letter also advised him that if he so desired, he could take the assistance of any departmental employee for the purpose of the disciplinary proceedings by taking approval of the Commandant. However, he did not ask for any defence assistance. The allegation of denial of opportunity of cross-examination is also not borne out of record and he had actually declined cross-examination. Therefore, no credence can be placed on his allegation that listed witnesses were examined in his absence. The learned State Counsel submits that gross negligence of duty is well established from the evidence of witnesses examined by the department. Abdul Gafar Shekh, who was an eye-witness, had deposed that the petitioner was moving around with his son during duty hours, his rifle slung on his shoulders and one of the extremists, after entering the campus, snatched away his rifle. As the son of the petitioner grabbed him, the extremist demanded that the child be taken away and accordingly, the petitioner went away from that place with the child and immediately thereafter, they started firing. It is submitted by him that though no Presenting Officer was appointed, the same will not vitiate the enquiry. Charge having been established, it cannot be said that punishment is disproportionate to the magnitude of negligence, which resulted in death of three persons. The submission of Mr. Sinha that the petitioner was meted out discriminatory treatment in respect of imposition of punishment is wholly not tenable, Mr. Sarma submits. The learned State counsel has submitted that all procedural safeguards were scrupulously observed during the enquiry. Even if the 2nd show-cause notice did not require the petitioner to show-cause against the report of the Enquiry Officer, in absence of any prejudice pleaded, no case is made out for interference with the penalty imposed. In respect of misconduct of grave nature, past conduct can also be taken into consideration and at any rate, on the basis of the charge established, the punishment of removal of a member of a disciplined force cannot be said to be disproportionate or unwarranted, he submits. He places reliance on the following judgments: 1. 2003 (3) GLR 657 (Tage Habung v. State of Arunachal Pradesh & Ors.). 2. He places reliance on the following judgments: 1. 2003 (3) GLR 657 (Tage Habung v. State of Arunachal Pradesh & Ors.). 2. (2009) 13 SCC 102 (Union of India & Ors. v. Bishamber Das Dogra). 3. (2010) 3 SCC 556 (Sarva U.P. Gramin Bank v. Manoj Kr. Sinha). 4. (2011) 2 SCC 316 (State Bank of India & Ors. v. Bidyut Kr. Mitra & Ors.). 5. (2011) 14 SCC 692 (Sanjay Kr. Singh v. Union of India & Ors.). 7. I have heard the learned counsel for the parties and have perused the materials on record. I have also perused the record produced by Mr. Sarma. 8. The show-cause notice dated 26.03.2001 reads as follows: To, Ct. 760 Nabin Mohan, U/S, ASRF Bn - II, Karagaon, Karbi-Anglong, Assam. Sub: 1st show-cause notice You are hereby required to show cause under Rule - 9 of the Assam Service (Discipline & Appeal) Rules - 1964, read with Article - 311 of the Constitution of India why any of the penalties prescribed in Rule - 7 of the aforesaid rules, should not be inflicted on you on the following charges based on the statement of allegations attached herewith - Charge No. 1 - That from 1800 Hrs on 21.2.01 to 1800 on 22.2.01 you were detailed for security duty at Gate No. 2 of the Bn. HQ. and accordingly you were on sentry duty from 1800 Hrs to 2000 Hrs on 21.2.01 with one Rifle (No. 53080) and 50 Rds of ammunitions at the Gate. At about 1830 Hrs a group of extremists entered the Bn. Campus through the Gate and fired indiscriminately resulting the death of three persons and injury to the two persons and looting of two 303 Rifles and 205 Rds of 303 BDR Ammunitions. One of the two said Rifles bearing No. 53080 was charged with 05 Rds and it was issued to you. During the incident, as a sentry, you have been found to be negligent to your duty. You are, therefore, charged with gross negligence of duty and misconduct. In the past also, you were involved in various in-disciplined conducts for which the following punitive measures were taken against you. (A) Granted L.W.P. as detailed below: 1. 108 days w.e.f. 14.3.89 to 29.6.89 vide B.O. No. 1017 dtd. 6.7.89. 2. 4 days w.e.f. 27.7.89 to 31.7.89 vide B.O. No. 1157 dt. 3.8.89. 3. In the past also, you were involved in various in-disciplined conducts for which the following punitive measures were taken against you. (A) Granted L.W.P. as detailed below: 1. 108 days w.e.f. 14.3.89 to 29.6.89 vide B.O. No. 1017 dtd. 6.7.89. 2. 4 days w.e.f. 27.7.89 to 31.7.89 vide B.O. No. 1157 dt. 3.8.89. 3. 2 days w.e.f. 22.9.89 to 23.9.89 vide BO. No. 1471 dt. 25.9.89. 4. 64 days w.e.f. 6.1.90 to 21.3.90 vide BO. No. 489 dt. 22.5.90. 5. 540 days w.e.f. 11.9.92 to 5.4.94 vide Bo. No. 249 dt. 5.5.94. 6. 43 days w.e.f. 11.2.96 to 24.3.96 vide Bo. No. 645 dt. 18.4.96. 7. 134 days w.e.f. 9.4.96 to 21.8.96 vide Bo. No. 1469 dt. 30.8.96. 8. 76 days w.e.f. 28.11.2000 to 11.2.2001 vide Bo. No. 336 dt. 20.2.2001. (B) Placed under suspension, D.P. drawn up and subsequently disposed off with the following punitive measures. 1. Stoppage of 1(one) increment and the period w.e.f. 22.8.90 to 11.12.90 treated as L.W.P. vide Bo. No. 1902 dt. 15.12.90. 2. Stoppage of 5(five) Annual Increments and the period w.e.f. 11.10.96 to 15.9.97 treated as dies non vide Bo. No. 333 dt. 18.3.98. 3. Stoppage of 5(five) Annual Increments vide Bo. No. 1151 dt. 14.8.2000. You should submit your written statement in defence within 10 (ten) days from the date of receipt of this communication, provided you do not intend to inspect the documents which have relevance with the issue under enquiry. In case you intend to inspect these documents you should write to the undersigned for the same within 7 (seven) days from the date of receipt of this communication and submit your explanation thereafter within 10 (ten) days from the date of completion of the inspection. Your written statement whether you desire to be heard in person should be submitted to the undersigned within the period specified above. 9. The impugned order reads as follows: Seen the reply submitted by Ct.760 Nabin Mohan (U/S) against the 2nd show cause notice. In his reply he could not convince me to refrain from removing him from service as originally contemplated. In the past also Ct.760 Nabin Mohan was found involved in many in-disciplined conducts for which he ought to have been discharged from service. But on humanitarian ground and also to give him chance to improve his conduct, he was not discharged from service. In the past also Ct.760 Nabin Mohan was found involved in many in-disciplined conducts for which he ought to have been discharged from service. But on humanitarian ground and also to give him chance to improve his conduct, he was not discharged from service. But there has been no improvement in his conduct. This time for his negligence of duty there had been the loss of lives and properties which could have been averted had he not been negligent to duty. So, it is felt that Ct.760 Nabin Mohan is unfit to retain in force service any more and he should be discharged from the service. But in order to enable him to get a job elsewhere I remove him from services of ASRF Bn. II with immediate effect. During the period of suspension he will not be entitled to any benefit other than what had been paid to him as S/A. The D.P. is disposed of with the above order. 10. Rule 9 of the Rules of 1964 prescribes the procedure for imposing penalties. Rule 9(1) provides that without prejudice to the provisions of the Public Servant (Inquiry) Act, 1850, no order imposing penalty specified in Rule 7 shall be passed except after an inquiry, held as far as may be in the manner laid down in the subsequent Sub-Rules of Rule 9. 11. Rule 9(10) requires prior consultation with the Public Service Commission where it is necessary and to take into consideration the advice rendered by the Commission before the Disciplinary Authority imposes penalty. In Madhab Chandra Das (Supra), order imposing minor penalty under Rule 7 (ii) withholding two increments without consultation with the Commission was quashed as provisions of Rule 9, which are mandatory, were not complied with. The Court followed the earlier Special Bench decision in the case of T.S. Srivastava v. State of Assam & Ors, reported in AIR 1972 Gau 2 wherein it was held that Rule 9 is mandatory. The Court followed the earlier Special Bench decision in the case of T.S. Srivastava v. State of Assam & Ors, reported in AIR 1972 Gau 2 wherein it was held that Rule 9 is mandatory. In Salam Kesho Singh (Supra), this Court noted that it is well settled that an Enquiry Officer cannot assume the role of a judge and also a prosecutor and that even if the relevant service rules is silent about the appointment of a Presenting Officer, absence of a Presenting Officer will make the inquiry totally vitiated as the Enquiry Officer cannot be allowed to assume the role of a judge as well as a prosecutor. In view of the above decisions, Mr. Sinha had submitted that when admittedly no Presenting Officer was appointed, provision contained in Rule 9(5) is violated and therefore, the order imposing penalty is liable to be quashed. 12. Rule 9(5) provides that the Disciplinary Authority may nominate any person to present the case in support of the charges before the authority inquiring into the charges. It also provides that the Government servant may present his case with the assistance of any other Government servant approved by the Disciplinary Authority other than a legal practitioner unless the person nominated by the Disciplinary Authority is a legal practitioner or unless the Disciplinary Authority, having regard to the circumstances of the case, so permits. The nominated person as appearing in Rule 9(5) is generally referred to as the Presenting Officer. In the context of provision of Rule 14(5)(c) of CCS (CCA) Rules, 1965, which provides that the Disciplinary Authority may, by an order, appoint a Government servant or a legal practitioner to be known as the Presenting Officer to present on its behalf the case in support of the articles of charge, this Court in Tage Habung (Supra) held that it is not mandatory on the part of the Disciplinary Authority to appoint Presenting Officer in every Disciplinary Proceeding and that such appointment of a Presenting Officer is at the option of the Disciplinary Authority and hence finding of a Disciplinary Proceeding cannot be interfered with merely on the ground that no Presenting Officer was appointed. Rule 14(5)(c) of CCS (CCA) Rules, 1965 and Rule 9(5) of the Rules of 1964 are more or less similar. Rule 14(5)(c) of CCS (CCA) Rules, 1965 and Rule 9(5) of the Rules of 1964 are more or less similar. Rule 9(5) also provides that the Disciplinary Authority may nominate any person to present the case in support of the charges and though "may" sometimes can be read as " shall", it does not appear that in each and every case appointment of a Presenting Officer is a must. The discretion to appoint or not to appoint the Presenting Officer is with the Disciplinary Authority and if in a given case, non-appointment of a Presenting Officer has caused prejudice to a delinquent, the same may be a factor in interfering with the enquiry proceeding or the penalty imposed. The decision in Madhab Chandra Das (Supra) has to be understood and applied in the above manner. In Salam Kesho Singh (Supra) it appears from a reading of paragraph 5, that Service Rule was silent about appointment of a Presenting Officer which is not the case here. 13. In Kumaon Mandal (Supra), on which also reliance was placed by Mr. Sinha, the Apex Court noted that the Enquiry Officer had on supposed examination of the records and admittedly without giving any notice and without fixation of any date or time or any venue for the enquiry or for examination or cross-examination of the witnesses and upon purported consideration of the so-called reply of the delinquent, proceeded to complete the enquiry. No doubt, the Apex Court had noted that no Presenting Officer was also appointed. In view of gross violation of the principles of natural justice as also bias on the part of the Managing Director of the appellant, the Apex Court had upheld the order of the High Court setting aside the order of dismissal. This Court is unable to accept the contention of Mr. Sinha that the Apex Court in Kumaon Mandal (Supra) had laid down as a proposition of law that in absence of a Presenting Officer, disciplinary proceeding must be held to be vitiated. 14. Coming to the facts of this case, it is neither pleaded nor shown that because of non-appointment of the Presenting Officer itself, the petitioner has suffered any prejudice. In the instant case, record of the inquiry does not show that the Inquiry Officer had performed the dual role of a Presenting Officer as well as of an Inquiry Officer or a judge. In the instant case, record of the inquiry does not show that the Inquiry Officer had performed the dual role of a Presenting Officer as well as of an Inquiry Officer or a judge. Rule 9(6) provides that the Presenting Officer will be entitled to cross-examine the Government servant and the witnesses examined in his defence. In absence of a Presenting Officer, the department will not have the opportunity to cross-examine the Government servant and the witnesses examined in his defence and thereby run the risk of the consequences. In view of the above, I am unable to accept the contention of Mr. Sinha with regard to infirmity in the Disciplinary Proceeding on account of non-appointment of a Presenting Officer. It cannot be laid down as a proposition of law that non-appointment of a Presenting Officer will invariably vitiate the Disciplinary Proceeding. Each case has to be tested on the touch stone of the role played by the Inquiry Officer and the prejudice caused. In a given case, if the Inquiry Officer, in any manner, has undermined his position as an independent adjudicator by virtue of his acting in a quasi-judicial authority, the proceeding may be said to have been vitiated. 15. The show-cause notice dated 26.03.2001 has itself permitted the delinquent to inspect the documents before submitting written statement and for the said purpose; he was to write to the Commandant. The records of the inquiry do not reveal that any such request was made. In the written statement also, no plea of denial of opportunity to inspect documents was taken. Therefore, the decision in the case of Thaneswar Kalita (Supra) wherein this Court set aside the order imposing penalty on the ground of failure of the Disciplinary Authority to furnish documents or inspection thereof in terms of Rule 9(3) of the Rules of 1964, is not applicable in the facts of this case. In State Bank of India (Supra), the Apex Court laid down that the delinquent has to plead and prove prejudice caused due to non-supply of documents. The plea of the petitioner that the statements of the departmental witnesses were recorded by the Inquiry Officer in absence of the petitioner and that the petitioner was not allowed to cross-examine the said witnesses do not get support from the records produced. The petitioner had declined cross-examination and he had also put his signature in the depositions. The plea of the petitioner that the statements of the departmental witnesses were recorded by the Inquiry Officer in absence of the petitioner and that the petitioner was not allowed to cross-examine the said witnesses do not get support from the records produced. The petitioner had declined cross-examination and he had also put his signature in the depositions. The evidence was recorded on a number of dates spanning over more than 8 months, beginning from 12.10.2001. In the Inquiry Report, it is specifically stated that the petitioner was present at the time of recording the evidence and opportunity was granted to him to cross-examine all the witnesses. If the statements were indeed recorded in his absence, it will be reasonable to expect that some protest would definitely have been made by the delinquent during this long period. Record does not reveal any such protest, though after the imposition of penalty, in his representation dated 10.11.2003 and in the writ petition, such a plea is taken. In view of the above, submissions advanced are found to be without any merit. The Inquiry Officer vide his letter dated 08.10.2001, while fixing the date of examination of witnesses, had also communicated to the petitioner that he may take the assistance of a departmental employee during the proceeding subject to approval of the Commandant. However, the petitioner did not opt for one. In Sanjay Kr. Singh (Supra), though a Defence Assistant was to be provided by the authority to assist the delinquent in conducting the inquiry, the delinquent having declined the assistance, the Apex Court held that non-providing of Defence Assistant is inconsequential. 16. In State of Uttaranchal (Supra), the Apex Court broadly laid down the principles as to how an enquiry has to be conducted in the following words: 15. From the above decisions, the following principles would emerge: (i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities. (ii) If an officer is a witness to any of the incidents which is the subject-matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the enquiry officer. (ii) If an officer is a witness to any of the incidents which is the subject-matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the enquiry officer. If the said position becomes known after the appointment of the enquiry officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer. (iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him. (iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any. 17. In A. Sudhakar (Supra), it was held that in terms of Article 311(2) of the Constitution of India, amongst other, there is a procedural requirement to give an opportunity to the delinquent to examine himself or other witnesses on his behalf. 18. In Dr. P.L. Singla (Supra), it was held that in case of unauthorised absence, if the employer is satisfied that there was sufficient cause, the employer may condone the act of indiscipline and sanction leave post facto. If leave is sanctioned and the unauthorized absence is condoned, it will not be open to the employer to thereafter initiate disciplinary proceedings in regard to the said misconduct unless it had, while sanctioning leave, reserved the right to take disciplinary action in regard to the act of indiscipline. In Bishamber Das Dogra (Supra), the Apex Court has held that in case of misconduct of grave nature or indiscipline, even in absence of statutory rules, the authority may take into consideration indisputable past conduct/service record of the employee for adding the weight to the decision of imposing the punishment if the facts of the case so required. In Paban Chandra Das (Supra), this court has held that the enquiry officer cannot travel beyond the charges leveled and cannot evolve a charge not laid out in the charge-sheet. 19. In Paban Chandra Das (Supra), this court has held that the enquiry officer cannot travel beyond the charges leveled and cannot evolve a charge not laid out in the charge-sheet. 19. Grievance is expressed by the petitioner that the Disciplinary Authority did not afford any opportunity to the petitioner to show-cause against the inquiry report: he was asked to show-cause only against the proposed penalty and as such the penalty imposed is liable to be interfered with. Article 311(2) of the Constitution had undergone some changes with the coming into force of Constitution (Fifteenth Amendment) Act of 1963 from 6th October, 1963. For the original expression "until he has been given reasonable opportunity of showing cause against the action proposed to be taken in regard to him", the provision "except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed, after such inquiry, to impose on him any such penalty, until he has been given reasonable opportunity of making representation on the penalty imposed, but only on the basis of the evidence adduced during such inquiry" was substituted. It was held by the Courts that the employee is also entitled to represent against the findings on charges at the time of grant of opportunity of showing cause against the penalty. Article 311(2) was further amended by the Constitution (Forty-second Amendment) Act of 1976, which came into force from 3rd January, 1977. The Forty-second Amendment retained the expanded scope of reasonable opportunity introduced by the Fifteenth Amendment during the inquiry, which may be called opportunity at the first stage, but omitted the opportunity of making representations against the penalty proposed after the inquiry. Before the Forty-second Amendment, the Courts had held that the employee was held to be entitled to a copy of the report at the stage at which penalty was proposed. After the Forty-second Amendment, the question as to whether the employee is entitled to a copy of the findings recorded by an Enquiry Officer before the disciplinary authority applies its mind to the findings and the evidence recorded, or whether the employee is entitled to the copy of the findings of the Enquiry Officer after the disciplinary authority had arrived at its conclusion and proposed the penalty, had arisen. In Union of India & Ors. In Union of India & Ors. v. Mohd. Ramzan Khan, reported in (1991) 1 SCC 588 , the Apex Court held that in a case where the Enquiry Officer is other than the disciplinary authority and the report of the Enquiry Officer holds the employee guilty of all or any of the charges, the delinquent is entitled to a copy of the report to enable him to make a representation to the disciplinary authority against it and non-furnishing of the report amounts to violation of the rules of natural justice. 20. In Managing Director, ECIL & Ors. v. B. Karunakar & Ors., reported in (1993) 4 SCC 727 , the Apex Court had observed that when the Enquiry Officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusion on the basis of the evidence, Enquiry Officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. Therefore, it was held that the employee's right to receive the report is a part of the reasonable opportunity of defending himself in the first stage of the enquiry. 21. Thus it is seen that before the Forty-second Amendment the right to receive the enquiry report was deferred to the stage of consideration of penalty. After the Forty-second Amendment, the right to receive the report is in the first stage of the enquiry and the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence of the charges. This right is part of the employee's right to defend himself against the charges levelled against him and a denial of the Enquiry Officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a violation of principles of natural justice. 22. In Managing Director, ECIL (Supra), the further question as to what would be the effect on the order of punishment when the report of the Enquiry Officer was not furnished to the employee and what relief should be granted to him in such a case was also considered. 23. 22. In Managing Director, ECIL (Supra), the further question as to what would be the effect on the order of punishment when the report of the Enquiry Officer was not furnished to the employee and what relief should be granted to him in such a case was also considered. 23. The Apex Court observed that the theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just right and they are neither incantations to be invoked nor rites to be performed on all and sundry situations. It was further noted that in some cases non-furnishing of report may have prejudiced a delinquent gravely while in some cases it may have made no difference to the ultimate punishment imposed. The court/tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished. It is stated as follows: 31. Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the courts and tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. ...Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report.... 24. Same view was taken in Haryana Financial Corporation and Anr. v. Kailash Chandra Ahuja, reported in (2008) 9 SCC 31 as well as in Sarva Uttar Pradesh Gramin Bank (Supra). 25. 24. Same view was taken in Haryana Financial Corporation and Anr. v. Kailash Chandra Ahuja, reported in (2008) 9 SCC 31 as well as in Sarva Uttar Pradesh Gramin Bank (Supra). 25. Therefore, though in the instant case, the report was furnished to the delinquent requiring him to submit show cause only to the penalty proposed after the disciplinary authority had made up its mind, and not to the report of the enquiry, the same automatically does not lead to setting aside of the order imposing penalty. 26. For the purpose of this case, it is not necessary for this Court to determine whether the petitioner had suffered prejudice for not furnishing him the Enquiry Report for the purpose of showing cause against it because there is a fundamental flaw in the conduct of the proceeding. Perusal of the records reveals that statement of the petitioner was recorded on 12.10.2001. Evidence of the prosecution witnesses continued till 17.6.2002. Mr. Sinha had submitted that only after the statement of the petitioner was recorded, the evidence of prosecution witnesses was started. Though it is difficult to say whether it is factually correct from the proceedings of the enquiry, at least, one aspect is apparent that statement of the petitioner was recorded before evidence of the prosecution witnesses was closed. Further, record of the proceedings does not disclose that petitioner was asked as to whether he would like to examine any witness in his defence. The enquiry report is also silent on this score. Rule 9(6) of the Rules of 1964 provides that the Government servant is entitled to give evidence in person and to adduce documentary and oral evidence in his defence. This valuable right of the Government servant was denied by the Enquiry Officer by not providing him the opportunity to examine his witnesses. Therefore, mandatory provision of Rule 9(6) of the Rules of 1964 is violated. The decision of the Apex Court in State of Uttaranchal (Supra) and A. Sudhakar (Supra) also lay down that same is an in-dispensable requirement. If the Government servant had declined to examine his witnesses, it would have been a different matter. But to deny such right and the opportunity is a serious infraction of the Rules and principles of natural justice which strikes at the root of the disciplinary proceeding. If the Government servant had declined to examine his witnesses, it would have been a different matter. But to deny such right and the opportunity is a serious infraction of the Rules and principles of natural justice which strikes at the root of the disciplinary proceeding. Examination of the petitioner before evidence of prosecution was closed is also a serious infirmity. 27. In view of the above, enquiry must be held to have been vitiated and as a logical corollary, the penalty imposed is also liable to be interfered with. Accordingly, the impugned order of removal dated 18.11.2002 is set aside and quashed. 28. As a consequence of setting aside of the order dated 18.11.2002, the petitioner is reinstated in service. However, having regard to the nature of the charge leveled against the petitioner and considering the fact that the order imposing penalty is set aside only on the ground that during enquiry proceeding, opportunity was not granted to the petitioner to examine his witnesses, liberty is granted to the State respondents to continue with the enquiry from the stage of examination of the petitioner and his witnesses, if any, by placing the petitioner under suspension. Since, liberty is granted to the State respondents to proceed with the enquiry to determine the culpability or otherwise of the petitioner qua the charge, at this stage, no order is called for with regard to payment of back-wages. The writ petition is allowed as indicated above. No cost. Record produced by Mr. Sarma is returned to him. _____________