JUDGMENT AND ORDER (Oral) Heard Mr. M. Bhuyan, learned counsel for the petitioner as well as Mr. P.J. Phukan, learned Standing Counsel for Pollution Control Board, Assam. 2. By filing this application under Article 226 of the Constitution of India, the petitioner, namely, Syed Mahmud Ali, has challenged the office order dated 22.07.2013 imposing penalty of withholding 2 (two) Annual increments and debarring him from promotion for 3 (three) years under Rule 7 of the Assam Services ( Discipline and Appeal) Rules, 1964. The petitioner is an Assistant Engineer in the Regional Office of the Pollution Control Board, Assam, at Nagan. On 05.12.2012 the Regional Executive Engineer being the in-charge of the aforesaid regional office received an application from one Dilmonjoy Bathori of M/s D. & J. Enterprise, Dima Hasao, for obtaining consent to establish an industry. According to the petitioner, upon receipt of the application dated 05.12.2012 the Regional Executive Engineer forwarded the application to him on same date with endorsement “Check and put up PL with I/R”. On the basis of the aforesaid direction by his immediate superior, the petitioner held enquiry and submitted a report. Application dated 05.12.2012 with endorsement thereto and the inspection report held pursuant thereto are annexed to the writ petition as Annexure-1 & 2. The writ petitioner has stated that thereafter on 16.01.2013 a show-cause notice was served on him on a sole charge, namely, Encroachment of Jurisdiction of Other Regional Office in his aforesaid act of inspection and submission of report. The letter dated 16.01.2013, though titled as show-cause notice, really was a charge sheet containing only a singular charge. The said charge numbered as Charge No.1 is quoted below: “Charge No.1: Encroachment of Jurisdiction of Other Regional Office: While you were posted in the Nagaon Regional Office as Assistant Engineer, you illegally and without authority inspected the proposed site of M/s. D & J Enterprise at Maibong under the district of Dima Hasao and submitted inspection report for grant of Consent to establish to M/s, D & J. Enterprise, Maibong violating existing procedure and encroaching the jurisdiction of Silchar, Regional Laboratory-cum-Office for extraneous considerations casting doubt on your integrity and acting in the capacity of Board Official for your personal gain” 3. The petitioner was asked to explain by this letter as to why appropriate action should not be taken against him on the basis of the charge leveled against him. The petitioner was asked to explain by this letter as to why appropriate action should not be taken against him on the basis of the charge leveled against him. Along with the charge-sheet there was a statement of allegations, list of witnesses and list of documents. List of witnesses included 2 witnesses, namely, one Sri Kamal Kalyan Dutta, Chief Environmental Engineer at the Head Office and one Md. Anowar Hussain, Assistant Engineer, Head Office. List of documents contains only one document, namely inspection report of the said petitioner. 4. On 25.01.2013 by a written statement the petitioner replied to the charge-sheet and denied the allegations. According to the petitioner no misconduct within the meaning of Rule 7 of the Assam Services (Discipline and Appeal) Rules, 1964 (here in after referred to as Rules) was made out on the basis of the statement of allegations, that on 05.12.2012 the Regional Executive Officer of the Pollution Control Board having directed him to check and put up the application of Dilmonjoy Bathori with inspection report, he was duty bout to comply. He further stated in the written statement that he merely complied with the order of the Superior Authority, made inspection and submitted a report. He added that after creation of Dima Hasao district, it’s territorial jurisdiction was not well defined and specified either by the Board or by the Government and as such there was confusion at all levels. The petitioner, therefore, prayed for dropping of the charge. 5. The Member Secretary of the Board upon receipt of the written statement was not satisfied and decided to go for holding on disciplinary proceeding against the petitioner. So, by order dated 13.02.2013, one Dipak Kumar Bora, Additional Chief Environmental Scientist and Sri Rajen Sarma, Executive Engineer, Head Office, Pollution Control Board, Assam, were appointed as Enquiry Officer and Presenting Officer respectively for holding separate Disciplinary proceedings against the present petitioner and the Regional Executive Engineer, Ngaon. In course of the proceeding, the Inquiry Officer asked the petitioner to appear before him on 05.03.2013 vide his letter dated 27.02.2013. The petitioner appeared but neither any witness was examined nor was he given an opportunity to lead evidence from his side. In course of the proceeding, the Inquiry Officer asked the petitioner to appear before him on 05.03.2013 vide his letter dated 27.02.2013. The petitioner appeared but neither any witness was examined nor was he given an opportunity to lead evidence from his side. All of a sudden by order dated 22.07.2013 punishment was imposed on him under Rule 7 of the Rules debarring him from further promotion for 3 (three) years and stopping 2 (two) Annual increments with effect from 01.07.2013 to 01.07.2014 with cumulative effect. According to the petitioner no show-cause notice was given to him and he was not provided with a copy of enquiry report. Under such circumstances, he submitted an appeal against the order dated 22.07.2013 before the Pollution Control Board, Assam, through its Member Secretary on 06.08.2013 and prayed for setting aside the impugned order of penalty. On 27.09.2013 Member Secretary of the Board informed the petitioner that his appeal was rejected and the penalty imposed was upheld. At this stage for the first time a copy of the enquiry report was furnished to the petitioner and thereupon, the petitioner came to know that the Enquiry Officer had decided to dissolve charge against him on the basis of same purported deposition of two witnesses. 6. Aforesaid order of punishment as well as the order rejecting his appeal and validity of the enquiry report have been called in question in the present writ petition. In course of his argument Mr. M. Bhuyan, learned counsel for the petitioner, has made following submissions :- i) that the enquiry proceeding has been conducted in gross violation of the substantive provisions of Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964. ii) that although at Pragraph-8 of the Enquiry report it has been observed by the Enquiry Officer that 2 (two) witnesses were examined and their statements were recorded but in fact there was no such examination of witnesses at least to the knowledge of the petitioner. ii) that although at Pragraph-8 of the Enquiry report it has been observed by the Enquiry Officer that 2 (two) witnesses were examined and their statements were recorded but in fact there was no such examination of witnesses at least to the knowledge of the petitioner. iii) that even if such examination of witnesses was there, the same must have been done behind his back without affording any opportunity to him for cross-examining the witnesses and more over had he been given an opportunity he would have been able to place on record the order dated 05.12.2012 on the body of the application itself authorizing by his immediate superior to hold inspection which itself would have been sufficient to absolve him of all accusations. Mr. Bhuyan submits that not only the disciplinary proceeding was vitiated for non-compliance of the substantive procedure prescribed under Rule 9 of the Rules but even on fact the petitioner did not commit any misconduct whatsoever. For apparent non compliance of the principles of natural justice, the whole proceeding has been vitiated, Mr. Bhuyan argued. 7. Mr. P.J. Phukan, learned Standing Counsel, per contra, would argue that not only the present petitioner but also his superior, namely, the Regional Executive Engineer was punished by holding disciplinary proceeding for encroachment of the territorial jurisdiction of Silchar Regional Office. He submits that as per record available to him there is no evidence to show that the Enquiry Officer recorded statement of the witnesses. But even if it is true the same was merely procedural irregularity and such procedural irregularity did not result in any prejudice to the delinquent employee. Compliance of Rule 9 of the Rules, therefore, is inconsequential and under such circumstances, the punishment imposed on the petitioner cannot be faulted. 8. Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 lays down detailed procedure by which penalty is to be imposed on the delinquent employee. Rule 9 requires that the charges accompanied by a list of witnesses and documents is to be served on a delinquent employee asking for his reply and upon receipt of the written statement enquiry is to be held by recording evidences. Rule 9 of the Rule is quoted below: “9. Rule 9 requires that the charges accompanied by a list of witnesses and documents is to be served on a delinquent employee asking for his reply and upon receipt of the written statement enquiry is to be held by recording evidences. Rule 9 of the Rule is quoted below: “9. Procedure for imposing penalties – (1) Without prejudice to the provisions of the Public Servant (Inquiry) Act, 1850, no order imposing on a Government servant any of the penalties specified in rule 7 shall be passed except after an inquiry, held as far as may be in the manner hereinafter provided. (2) The Disciplinary Authority shall frame definite charges on the basis of the allegations on which the inquiry is proposed to be held. Such charges, together with a statement of the allegations on which they are based, shall be communicated in writing to the Government servant, and he shall be required to submit, within such time as may be specified by the Disciplinary Authority, a written statement of his defence and also to state whether he desires to be heard in pension [“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 sustained] Explanation – In this sub-rule and sub-rule (3), the expression “the Disciplinary Authority” shall include the authority competent under these rules to impose upon the Government servant any of the penalties specified in rule 7. (3) The Government servant shall, for the purpose of preparing his defence, be permitted to inspect and take extracts from such official records as he may specify, provided that such permission may be refused if for reasons to be recorded in writing, in the opinion of the Disciplinary Authority such records are not relevant for the purpose or its against the public interest to allow him access thereto: Provided that when a Government servant is permitted to inspect and take extracts from official records due case shall be taken against tempering removal or destruction of records. (4) On receipt of the written statement of defence, or if no such statement is received within the time specified the Disciplinary Authority may itself inquire into such of the charge as are not admitted or, if it considers it necessary so to do, appoint for the purpose a Board of Inquiry or an Inquiring Officer. (5) The Disciplinary Authority may nominate any person to present the case in support of the charges before the authority inquiring into the charges (hereinafter referred to as the inquiring authority). The Government servant may present his case with the assistance of any other Government servant approved by the Disciplinary Authority, but may not engage a legal practitioner for the purpose unless the person nominated by the Disciplinary Authority as aforesaid is a legal practitioner or unless the Disciplinary Authority, having regard to the circumstances of the case so permits. (6) The Enquiring Authority shall, in the course of the enquiry consider such documentary evidence and take such oral evidence as may be relevant or material in regard to the charges. The Government servant shall be entitled to cross-examine witnesses examined in support of the charges and to give evidence in person and to adduce documentary and oral evidence in his defence. The person presenting the case in support of the charges shall be entitled to cross-examine the Government servant and the witnesses examined in his defence. If the Inquiring Authority declines to examine any witness or to admit any document in evidence on the ground that his evidence or such document is not relevant or material, it shall record its reasons in writing. (7) At the conclusion of the inquiry, the inquiring Authority shall prepare a report of the enquiry, recording its findings on each of the charges together with reasons therefore. (7) At the conclusion of the inquiry, the inquiring Authority shall prepare a report of the enquiry, recording its findings on each of the charges together with reasons therefore. [Explanations – If in the opinion of the Enquiring Authority the proceedings of the enquiry establish any article of charge different from the original article of the charge it may record its findings on such article of charge: Provided that the findings on such article of charge shall not be recorded unless the Government servant has either admitted the facts on which such article of charge is based or has a reasonable opportunity of defending himself against such article of charge.] (8) The record of the inquiry, shall include- i) the charges frame 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 inquiry; 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 the findings on each charge and the reasons therefor. (9) The Disciplinary Authority shall, if it is not the Inquiring Authority; consider the record of the inquiry and record its finding on each charge. (9) The Disciplinary Authority shall, if it is not the Inquiring Authority; consider the record of the inquiry and record its finding on each charge. [(10) Major Penalties – If the Disciplinary Authority having regard to its finding on the charges and on the basis of evidence adduced during the inquiry, is of the opinion that nay of the penalties specified in Clauses (iv) to (vii) of rule 7 should be imposed on the Government servant it shall make an order imposing such penalty and it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed: Provided that in every case where it is necessary to consult the Commission the record of the inquiry shall be forwarded by the Disciplinary Authority to the Commission for its advice and such advice shall be taken into consideration before making an order imposing and such penalty on the Government servant”] (11) Minor Penalties – If the Disciplinary Authority, having regard to its findings on the charges, is of the opinion that any of the penalties specified in clauses (i) to (iii) of Rule 7 should be imposed, it shall, pass appropriate order and in every case in which it s necessary to consult the Commission, shall do so, after consulting the Commission. (12) (a) Notwithstanding anything contained in this rule, it shall not be necessary to follow the procedure laid down in the proceeding sub-rules in cases where it appears to the authority competent to impose the penalty at the initial stage of the proceedings that the penalty of censure would be adequate, but if proceedings that the penalty of censure would be adequate, but if at any late stage it is proposed to impose any other penalty specified in Rule 7, the procedure laid down in the said rules hall be followed. (b) No order imposing the penalty of censure shall however be passed, except after – i) the Government servant is informed in writing of the proposal to take action against him and of the allegations on which it is proposed to be taken and given an opportunity to make any representation he may wish to make; and ii) Such representation, if any is taken into consideration by the Disciplinary Authority.” A Division Bench of this Court considered the nature of Rule 9 referred to above in the case of Madhab Chandra Das vs. State of Assam, reported in (1982) 2 GLR 201 and held that this rule is mandatory. This judgment was passed after considering various judgments including a Special Bench Judgment of this Court in the case of T.S. Srivastava vs. State ( Air 1972 Gau 2 ) 9. On the merit of allegations, Mr. Bhuyan submits that there was no examination of witnesses at all and the findings of the Enquiry Officer vide Paragraph-8 of the enquiry report is perverse. 10. This Court examined the original records produced by Mr. P.J. Phukan. The records produced by the learned Standing Counsel for the respondents do not contain any order sheet and/ or minutes of the proceeding. No copy of the deposition either of the witnesses claimed to have been examined vide Paragraph-8 of the enquiry report is available on record. There is no material anywhere in the original records so as to establish that any of such witnesses was really examined. Under the Rules it is required that there has to be consideration of both documents and oral evidence and thus, it is inherent in Rule 9 that principles of nature justice should be complied with by the enquiring authority in holding the disciplinary proceeding and oral evidence has to be led. Examination of the witnesses undoubtedly has to be taken in presence of the delinquent employee and he should be given a chance to cross-examine the witness. Once a witness makes such statement against a delinquent employee, the rules of natural justice demands that delinquent employee should be given an opportunity to cross examine such witness for the purpose of an effective defence. The records produced by the learned Standing Counsel appear to be insufficient to satisfy this pre-condition for a valid and regular trial. Once a witness makes such statement against a delinquent employee, the rules of natural justice demands that delinquent employee should be given an opportunity to cross examine such witness for the purpose of an effective defence. The records produced by the learned Standing Counsel appear to be insufficient to satisfy this pre-condition for a valid and regular trial. Recording of evidence is the substantive part of procedure touching jurisdiction of the authority and it has undoubtedly potential of causing prejudice to the petitioner. Unless there is an examination of witness, the delinquent employee does not get a chance to place his case and in the process he is deprived from adequately and fully defending himself. This amounts to denial of opportunity and consequently principles of natural justice get violated. It is settled law that anything done in violation of the principles of natural justice is non est in law. 11. The record keeping in this disciplinary proceeding has projected the standard of the authority in a conspicuously poor light. Needless to say that on disciplinary proceeding occasions civil consequence on an employee. It is a quasi judicial exercise of the executive involving fact finding and punishment. Such an exercise must indispensably be made by following all procedural safeguards as well as transparency. The manner and method adopted by the authority in this regard should not leave a scope for casting slightest doubt as to its neutrality and objectivity. A scrupulous compliance of Rule 9 may go a long way to serve such purpose. The records of disciplinary proceeding must be self-explanatory and transparent. Judicial character as it carries with it, the usual judicial procedures are expected to be followed in such experience. What is conspicuously lacking in this proceeding is that the Inquiring Authority has not maintained an order-sheet so as to reflect the road map of the proceeding. An order-sheet in chronological seriatum with endorsements by both the delinquent employee or his defence assistant and the presenting officer would reflect as to whether the proceeding was pursued with participation of both side. If the documents relied on by the parties distinctly marked and the depositions are put in records in order, there would be no difficulty to ascertain as on what materials the report is based. Unfortunately, none of these safeguards has been followed in the present case. 12. If the documents relied on by the parties distinctly marked and the depositions are put in records in order, there would be no difficulty to ascertain as on what materials the report is based. Unfortunately, none of these safeguards has been followed in the present case. 12. The affidavit-in-opposition submitted by the respondents on the previous ground of litigation in WP(C) No. 5072 of 2013 challenging inaction of the respondents in disposal of the statutory appeal, it was stated in Paragraph-6 that the allegations are of such nature that the same being based on documentary evidence, there is no necessity of any witness during enquiry. While this was the stand of the Pollution Control Board before this Court in WP(C) No. 5072 of 2013 on the validity of the same disciplinary proceeding, the Paragraph-8 of the enquiry report of the same proceeding shows that 2 (two) witnesses were examined. The Enquiry Officer has further proceeded to record the deposition of the 2 (two) witnesses in the enquiry report. Thus there is a clear contradiction between the enquiry report and the stand of Pollution Control Board. In fact the records do not reveal as to whether there was at all any such examination of witnesses. If the deposition in the affidavit-in-opposition made by the Nodal Officer of the Board is taken into consideration there was no examination of witnesses. In that event finding of the Enquiry Officer at Paragraph-8 must be perverse. If there was no examination of witnesses there is no question of any deposition of the witnesses No. 1 & 2. On the face of it, the enquiry is based on the deposition of 2 (two) witnesses who were never examined and the depositions are really non-existent. The enquiry report, therefore, being perverse is not sustainable. 13. At this stage, the learned Standing Counsel of the Pollution Control Board submits that even if there was no examination of witnesses the procedure cannot be vitiated in view of the fact that such examination of witness is merely procedural in nature without causing any prejudice to the delinquent employee. Such argument of the learned Standing Counsel does not appear to be acceptable. The authority held a disciplinary proceeding to establish as to whether the delinquent employee encroached territorial jurisdiction of Regional Office of Silchar. The enquiry officer claimed to have recorded the deposition of the witnesses. Such argument of the learned Standing Counsel does not appear to be acceptable. The authority held a disciplinary proceeding to establish as to whether the delinquent employee encroached territorial jurisdiction of Regional Office of Silchar. The enquiry officer claimed to have recorded the deposition of the witnesses. If the aforesaid witnesses were cross-examined and if the delinquent employee was afforded opportunity to lead evidence, the letter dated 05.12.2012 which contains the evidence that the petitioner had made the inspection at the instance of his Superior Authority could have been indicated. Non-examination of witnesses has deprived delinquent employee from such scope. So there is no doubt that serious prejudice has been caused to the delinquent employee for non-examination of the witnesses in the present case. The disciplinary proceeding, therefore, is vitiated for violation of the principles of natural justice and accordingly, it is quashed. The enquiry report dated 09.07.2013 being perverse and contrary to the principle of natural justice is set aside. Consequently, the order dated 22.07.2013 imposing punishment and order dated 27.09.2013 rejecting the appeal preferred against the petitioner are set aside. 14. The writ petition is allowed. 15. Before pertaining with the records it is necessary to observe that setting aside of the enquiry report shall not be bar for the authority to proceed with a fresh enquiry by complying with the provisions of Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 and the principles of natural justice. 16. No order as to cost.