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2014 DIGILAW 395 (GAU)

Anil Baishya v. State of Assam

2014-04-01

UJJAL BHUYAN

body2014
JUDGMENT Ujjal Bhuyan, J. 1. Heard Mr. N.C. Das, learned senior counsel for the petitioner and Mr. J. Handique, learned Government Advocate, Assam for the respondents. This petition has been filed by the petitioner under Article 226 of the Constitution of India challenging the legality and correctness of the order dated 26.10.2006 passed by the Presiding Officer, Labour Court, Guwahati dismissing the petitioner from service. 2. Case of the petitioner is that at the relevant point of time, he was serving as a driver of the Presiding Officer, Labour Court, Guwahati. On 15.2.2006, a show cause notice was issued to the petitioner by the Presiding Officer asking him to show-cause under Rule 9 of the Assam Services (Discipline & Appeal) Rules, 1964(Rules) as to why any of the penalties prescribed under the said Rules should not be imposed on him on the charges framed against the petitioner. The charges framed against the petitioner were as under:- 1) You have been serving as Driver, Labour Court, Assam, Guwahati by attending your duty from your native village Sualkuchi most irregularly disobeying Office Order to perform your duty as Driver by staying at Guwahati. This has caused great inconvenience to the Presiding Officer, Labour Court, causing disruption in normal Court works. You are therefore charged with willful disobedience of Office Order No. 127; dtd. 22.4.03 and No.111; dtd.4.3.98. 2) You have been abstaining from your duty demanding fulfillment of your demand for demotion to the post of peon since 10th January' 06 which amounts to gross misconduct and unsuitable for service under the Government as driver. 3) You have engaged yourself in private carrier business by purchasing an Auto Van in disregard to your official duty and thereby violated the code of conduct. 3. Though, petitioner had sought copies of certain documents, it appears that those were not furnished to him. Be that as it may, petitioner submitted his written statement of defence on 3.3.2006 denying the charges framed against him. 4. It further appears that the disciplinary authority did not accept the written statement of the petitioner and decided to hold an enquiry consequent upon which, Enquiry Officer was appointed. On behalf of the disciplinary authority, two witnesses adduced evidence. After completion of the enquiry, the Enquiry Officer submitted his report to the disciplinary authority on 9.10.2006 holding that the charges framed against the petitioner stood proved. 5. On behalf of the disciplinary authority, two witnesses adduced evidence. After completion of the enquiry, the Enquiry Officer submitted his report to the disciplinary authority on 9.10.2006 holding that the charges framed against the petitioner stood proved. 5. Presiding Officer, Labour Court acting as the disciplinary authority accepted the report submitted by the Enquiry Officer and imposed the penalty of dismissal from service on the petitioner. 6. Petitioner had moved the Assam Administrative Tribunal against the order of dismissal but the Tribunal by order dated 16.12.2008 dismissed the appeal on the ground that it was not maintainable. 7. Hence this writ petition. 8. Contention of the petitioner is that the disciplinary proceeding was conducted in gross violation of the principles of natural justice. Petitioner's request for furnishing documents was turned down by the disciplinary authority thereby preventing him from effectively defending himself. Findings of the Enquiry Officer were perverse based on misconception of law and facts. Copy of the enquiry report was not furnished to the petitioner and he was not given any opportunity to submit representation on the same. Without prejudice to the above contention, dismissal of the petitioner on the basis of the charges framed is grossly dis-proportionate and does not appear to be reasonable. 9. Respondent No. 3 has filed affidavit. He has stated that petitioner was negligent and irresponsible in performing duties as driver of the Presiding Officer of the Labour Court thereby hampering functioning of the Labour Court. Petitioner was absent from duty from 10.1.2006 without any intimation. Accordingly, he had to place the petitioner under suspension on 15.2.2006, on which date show cause notice was issued to the petitioner. Petitioner had been demanding demotion to the post of peon which would allow him to commute from his home at Sualkuchi to his office at Guwahati and since that was not being accepted, he refrained from discharging his duty as a driver on and from 10.1.2006. Adequate opportunity was given to the petitioner to defend himself in the enquiry. The two witnesses who had adduced evidence in the enquiry were cross-examined on behalf of the petitioner. Since misconduct of the petitioner was proved in the enquiry, punishment is justified. 10. An affidavit has been filed on behalf of respondent No. 2. She has stated that petitioner was insincere in his duty and did not stay at the headquarters. The two witnesses who had adduced evidence in the enquiry were cross-examined on behalf of the petitioner. Since misconduct of the petitioner was proved in the enquiry, punishment is justified. 10. An affidavit has been filed on behalf of respondent No. 2. She has stated that petitioner was insincere in his duty and did not stay at the headquarters. Enquiry against the petitioner was conducted in accordance with law giving adequate opportunity to the petitioner to defend himself. Enquiry Officer on the basis of the evidence adduced came to the conclusion that the charges framed against the petitioner stood proved. Since petitioner was found guilty of committing misconduct, he was dismissed from service vide order dated 26.10.2006. 11. Mr. Das, learned senior counsel for the petitioner has assailed the dismissal order oh the following grounds:- i) Petitioner was not furnished copies of the documents which were sought for by the petitioner thereby preventing him from making effective defence; ii) Enquiry was conducted with preconceived mind to hold the petitioner guilty so that petitioner could be punished; iii) Copy of the enquiry report was not furnished to the petitioner and he was not asked to make any representation against the findings of the Enquiry Officer; iv) Punishment of dismissal from service is grossly disproportionate and shocking to the judicial conscience even if the charges framed against the petitioner are taken to have been proved. He submits that petitioner was a lowly ranked employee and presence of the Presiding Officer, Labour Court (the disciplinary authority) as a witness in the enquiry was not only intimidating but also influenced the course of the enquiry since the Enquiry Officer was the Registrar of the Labour Court. He therefore submits that the impugned order of dismissal is wholly unsustainable and should be set aside and quashed with a direction to reinstate the petitioner in service forthwith with all consequential benefits. 12. Mr. J. Handique, learned Government Advocate submits that petitioner's conduct left much to be desired and therefore the disciplinary authority was justified in initiating the disciplinary proceeding against him. Enquiry Officer was appointed, pursuant to which a regular domestic enquiry was conducted in which the charges framed against the petitioner were held to be proved. Once the charges of misconduct were proved in the enquiry, the disciplinary authority was justified in imposing the punishment. Enquiry Officer was appointed, pursuant to which a regular domestic enquiry was conducted in which the charges framed against the petitioner were held to be proved. Once the charges of misconduct were proved in the enquiry, the disciplinary authority was justified in imposing the punishment. Having regard to the nature of misconduct, the disciplinary authority was justified in imposing the penalty of dismissal from service. He therefore submits that no case for reinstatement has been made out at this stage. 13. I have heard learned counsellor the parties and also perused the record requisitioned. 14. Charges framed against the petitioner have already been noticed. As per charge No. 1, petitioner was attending his duty at Guwahati from his native village Sualkuchi. Since he had to commute a long distance, he was irregular in his duty, thereby caused inconvenience to the disciplinary authority who was the Presiding Officer of the Labour Court. Charge No. 2 pertains to petitioner's claim for change of assignment from driver to peon whereas charge No. 3 relates to engagement of the petitioner in private carrier business by purchasing auto van. 15. As already noticed above, petitioner in his written statement denied the charges. Relevant portion of his written statement reads as under:- 4. About the first charge, I do not understand under what law/rule the order No. 127 dated 22.4.2003 was passed. The administration did not provide me housing accommodation in the City of Guwahati. My family resides at Sualkuchi. The administration did not consider whether with the HRA granted to me for own house accommodation, I could have the capacity or means to live in a hired house. The stay at Guwahati may be a fit order, if I were given Govt. accommodation at Guwahati. The order is state and has no sanction of law/rule. I deny, I willfully breached the order. In respect of order dated 111 dated 4.3.981 am afraid, it is not an order but a show cause for certain alleged acts of misconduct. The show cause was abandoned and the proceedings stopped. The show cause was still-born document 5. About the second charge, I say that my request for transfer from the post of Driver to that of a peon is under consideration of the Govt. How a request as such could be termed as a gross misconduct, I wonder. 6. About the third charge, I deny it being absolutely vague. The show cause was still-born document 5. About the second charge, I say that my request for transfer from the post of Driver to that of a peon is under consideration of the Govt. How a request as such could be termed as a gross misconduct, I wonder. 6. About the third charge, I deny it being absolutely vague. When I engaged in the carrier business, when I procured the auto-van, what is its registration etc. etc. are absent in the charge to enable to furnish my written defence. 16. A perusal of the record shows that Sri Dilip Kumar Devasarma, Registrar of the Labour Court was appointed as Enquiry Officer. No Presenting Officer was appointed to present the case of the disciplinary authority. But more about this a bit later, Sri B.C. Das, who was the Presiding Officer, Labour Court, Guwahati (disciplinary authority) and Sri D.C. Choudhury, Judge, Special Court, Assam at Guwahati, who was earlier serving as Presiding Officer of Labour Court, Guwahati, had deposed as witnesses before the Enquiry Officer. After conducting the enquiry, the Enquiry Officer submitted his report dated 19.10.2006 to the disciplinary authority. The enquiry report reads as under:- Sri Anil Baishya-the Driver of the Office of the Presiding Officer, Labour Court, Guwahati-3 was suspended by the then Presiding Officer of the Labour Court, Sri B.C. Das on 15.2.2006. I had been appointed as Enquiry Officer of D.P. Case No. 01/2006 on 15.06.2006 by the Presiding Officer of this Court, and I took my charge on 26/6/2006. Accordingly, issued notice to Sri Baishya to appear and to submit evidence as his defence on 05.07.2006. Sri Baishya appeared on the said date and expressed willingness to appoint advocate for his defence and it was duly allowed. Later on, another 4(Four) days were fixed for hearing out of which only I (one) day Sri Baishya appeared before the enquiry officer with his advocate, and for other three days he filed petition for adjournment or for other reason. According to B.C. Das who put Sri Baishya in suspension, Sri Baishya was performing his duties staying at his native village Soalkuchi which is 40 Kilometers away from Guwahati. Sometimes, he remained absent from his duties as a result, it caused inconvenience to the Presiding Officer to attend the Court. Automatically it hampered the regular functioning of the Court. The Predecessors of Mr. Sometimes, he remained absent from his duties as a result, it caused inconvenience to the Presiding Officer to attend the Court. Automatically it hampered the regular functioning of the Court. The Predecessors of Mr. B.C. Das also faced the same problem. Mr. Das asked Sri Baishya to stay at Headquarter repeatedly but Sri Baishya ignored it. Sri Baishya requested the Presiding Officer-Mr. Das to demote him to peon as he had some physical problems. But Mr. Das did not execute Sri Baishya's request. On rejection of request for demotion, Sri Baishya stopped to perform his duties without any intimation and consequently Sri Baishya was suspended by the Presiding Officer, Mr. B.C. Das. According to Mr. D.C. Choudhury-the Govt. Witness as well as predecessor of Mr. B.C. Das, Sri Anil Baishya was working staying at Soalkuchi and asked not to remain outside the headquarter without his prior permission. Mr. Choudhury gave a note on Office File directing Sri Baishya to stay at Headquarter. From the deposition of both the Govt. witnesses, it is cleared that Sri Baishya was irregular in attending his duties as her used to attend his duty staying at his native village in place of Headquarter. From the personal File of Sri Baishya, it reveals that he is habituated in attending the duties irregularly. Once, show cause notice was issued for his irregularity on 4.3.1998. He did not reply the show-cause notice in time. After expiry of the stipulated date, the presiding officer was transferred, and the successor Presiding Officer dropped the show cause proceeding on 22.4.1998 with a warning to be careful in the discharge of his duties in future. From the file it is confirmed that Sri Baishya was irregular and unamendable. During the enquiry proceeding he used to avoid the proceeding by adopting dilatory tactics. The findings of this enquiry proceeding is that Mr. B.C. Das-the then Presiding Officer, who put Sri Anil Baishya in suspension was right in taking such stern action otherwise, it will be an example to other employees to avoid the official duties and ultimately the Court's functions will be disturbed. Hence, the report is submitted to the Presiding Officer, Labour Court, Guwahati-3 on this day of 19th October, 2006. Sd/- Dilip Kr. Devasarma, 19.10.2006 M.Sc. LL.B. PGDHRts. PGDRD Registrar-Cum-Enquiry Officer, Labour Court, Guwahati. 17. Rule 9 of the Rules deals with the procedure for imposing penalties. Hence, the report is submitted to the Presiding Officer, Labour Court, Guwahati-3 on this day of 19th October, 2006. Sd/- Dilip Kr. Devasarma, 19.10.2006 M.Sc. LL.B. PGDHRts. PGDRD Registrar-Cum-Enquiry Officer, Labour Court, Guwahati. 17. Rule 9 of the Rules deals with the procedure for imposing penalties. Sub-rule (1) states that no penalty shall be imposed on a Government servant except after an inquiry, held as far as may be, in the manner provided in Rule 9. As per sub-rule (2), the disciplinary authority is required to frame definite charges on the basis of the allegations on which the enquiry is proposed to be held. Such charges together with a statement of allegations on which the charges are based are required to be communicated in writing to the Government servant to enable him to submit a written statement of his defence. Disciplinary authority is also required to furnish to the Government servant a list of documents and witnesses by which each article of charge is proposed to be sustained. Under sub-rule (3), the Government servant for the purpose of preparing his defence shall be permitted to inspect and take extracts from such official records as he may specify. However, such permission may be refused if the disciplinary authority for reasons to be recorded in writing is of the opinion that such records are not relevant for the purpose or it would be against public interest to allow him access thereto. In the enquiry, the disciplinary authority may nominate any person to present the case in support of the charges before the Enquiry Officer. This is provided under sub-rule (5). Sub-rule (7) clearly provides that at the conclusion of the enquiry, the enquiring authority shall prepare a report of the enquiry recording its findings on each of the charges together with reasons therefor. After the record of enquiry is furnished to the disciplinary authority, he shall under sub-rule (9) consider the same and record his findings on each charge. 18. A reading of Rule 9 as a whole would show that an elaborate procedure has been laid down which the disciplinary authority has to follow before imposing a penalty as specified in Rule 7 on a Government servant. The language used in Rule 9 is clearly indicative of the mandatory character of the provisions contained therein. 18. A reading of Rule 9 as a whole would show that an elaborate procedure has been laid down which the disciplinary authority has to follow before imposing a penalty as specified in Rule 7 on a Government servant. The language used in Rule 9 is clearly indicative of the mandatory character of the provisions contained therein. This is so because the procedure engrafted in Rule 9 is a necessary requirement of the rules of natural justice and in the absence of the procedural safeguards as provided in Rule 9, it would not be a fair procedure to which the charged Government servant is legally entitled. 19. Having broadly noticed the scheme of Rule 9, the challenge to the disciplinary proceeding as well as to the enquiry conducted may now be examined. 20. Petitioner had submitted application dated 24.02.2006 before the disciplinary authority for supplying him copies of 3 documents to enable him to submit a satisfactory reply. It appears that those were not furnished to the petitioner. Notwithstanding the same, petitioner submitted his reply. Again, during the enquiry, petitioner requested production of certain documents including the 3 documents copies of which were sought for earlier. This was however rejected by the Enquiry Officer on the ground that petitioner wanted t6 harass the Labour Court as a whole and that the documents sought for by him were not relevant to the charges leveled against him. 21. It appears that the petitioner wrote to the Enquiry Officer on 05.07.2006 that he did not receive any copy of order of appointment of Presenting Officer which was required to be issued by me disciplinary authority. Petitioner stated that in the absence of the Presenting Officer, it could be presumed that the Enquiry Officer would discharge the functions of the Presenting Officer. To this the Enquiry Officer made an endorsement dated 05.07.2006 on the body of the petition that the petitioner would be advised to seek the guidance of an Advocate to defend himself. 22. As already noticed above, sub-rule (5) of Rule 9 mandates nomination of a Presenting Officer by the disciplinary authority to present the case in support of the charges before the Enquiry Officer. It has also been noticed that though the Registrar of the Labour Court Sri Dilip Kumar Devasarma was appointed as Enquiry Officer, no Presenting Officer was appointed. 23. As already noticed above, sub-rule (5) of Rule 9 mandates nomination of a Presenting Officer by the disciplinary authority to present the case in support of the charges before the Enquiry Officer. It has also been noticed that though the Registrar of the Labour Court Sri Dilip Kumar Devasarma was appointed as Enquiry Officer, no Presenting Officer was appointed. 23. A departmental enquiry is a quasi-judicial proceeding, Principles of natural justice, which includes a fair procedure, is inbuilt in such a proceeding. The Enquiry Officer has to discharge his functions in a quasi-judicial manner. He has to act fairly and impartially. The role of the Presenting Officer is to present the case of the disciplinary authority before the Enquiry Officer. He is the representative of the disciplinary authority. He has to assist the Enquiry Officer by presenting before him the case of the disciplinary authority. He has to marshal the facts and to examine and cross-examine the witnesses produced during the enquiry. It is he who has to produce and prove the listed documents during the enquiry and lead the oral evidence in support of the charge. Therefore, in the absence of the Presenting Officer, it is the Enquiry Officer who will have to produce the documents and present the witnesses. In such a case, he will assume the role of the judge as well as that of the prosecutor, which will be a total negation of the avowed principles of natural justice and fair procedure. Absence of the Presenting Officer will certainly not be a fair procedure. 24. Examining Rule 27 of the CRPF Rules, 1955, which deals with departmental proceeding in respect of CRPF personnel and which does not provide for appointment of Presenting Officer, this Court in a case of Mutum Shantikumar Singh Vs. Union of India & Ors. reported in 2005(1) GLT 413 held that Rule 27 does not bar the competent authority from appointing a Presenting Officer in the disciplinary proceeding for conducting the same in a fair manner in accordance with the principles of natural justice. Union of India & Ors. reported in 2005(1) GLT 413 held that Rule 27 does not bar the competent authority from appointing a Presenting Officer in the disciplinary proceeding for conducting the same in a fair manner in accordance with the principles of natural justice. After referring to various judicial pronouncements, it was held that in a departmental proceeding where no Presenting Officer is appointed, the Enquiry Officer assumes the role of the judge as well as that of the prosecutor in as much as in the absence of the Presenting Officer, the Enquiry Officer must examine the witnesses and exhibit the documents, which will be in total violation of the principles of natural justice. It was finally held that appointment of Presenting Officer is a must in a disciplinary proceeding against a CRPF constable. In that case, because of non-appointment of Presenting Officer, the disciplinary proceeding against the petitioner, who was a constable in the CRPF, leading to his dismissal, was declared as illegal and quashed. He was directed to be reinstated in service. 25. In Union of India & Ors. Vs. Ram Lakhan Sharma reported in 2011 (3) GLT 281, the issue before the Court was removal from service of a CRPF constable following a disciplinary proceeding, which was affirmed in appeal and revision. A Division Bench of this Court held that even when the statute does not prescribe for appointment of a Presenting Officer in a disciplinary proceeding, then also same is required to be made to comply with the principles of natural justice. In the facts of that case, it was held that the Enquiry Officer in the absence of the Presenting Officer had put all the questions to the delinquent. Thus, the Enquiry Officer acted beyond his jurisdiction. If an authority acts beyond his jurisdiction and submits his report, the disciplinary authority should not act on such report. The Court held as under:- (18) We are of the further opinion that in various disciplinary proceedings the statutory authority is working like an administrative authority when they have to act independently and discharge their duty as the statute prescribed applying their judicial mind. It is a settled position of law that the disciplinary proceeding is a quasi-judicial proceeding and the Inquiry Officer while acting in a disciplinary proceeding is to act like a judicial authority. It is a settled position of law that the disciplinary proceeding is a quasi-judicial proceeding and the Inquiry Officer while acting in a disciplinary proceeding is to act like a judicial authority. We are of the further opinion that the Inquiry Officer should not act either for the Disciplinary Authority or for the delinquent officer. He is to act independently to take the inference of facts which is placed before him by the parties. He should not put questions like a Presenting Officer to the delinquent officer to prove the, charges levelled against the delinquent officer. From such action of the inquiring officer it can be easily said that the inquiring officer is to the extent biased to the delinquent officer, which is unwarranted in law. If the statutory authority acted beyond the power vested on him then where the delinquent officer will go except to the Court of law, which course really has been taken by the respondent-writ petitioner to prove the biasness of the inquiring officer in the writ petition and ultimately succeeded. 26. In W. Birbal Singh Vs. State of Manipur & Ors. reported in 2010 (5) GLT 371, a Division Bench of this Court held as under:- (15). This Court in the above cases held that the enquiry officer has assumed the role of the Judge as well as the prosecutor, inasmuch as, in absence of the presenting officer, the enquiry officer himself examined the witnesses and exhibited documents and it would be violative of the rules and the fundamental principles of natural justice. Admittedly, in the disciplinary proceeding against the appellant-writ petitioner for the said 2 articles of charges no presenting officer was appointed and the enquiry officer himself assumed the role of Judge as well as prosecution. Accordingly, we are of the considered view, that the disciplinary proceeding against the appellant-writ petitioner is liable to be quashed only on this score. That was a case of dismissal from service of a police constable following a disciplinary proceeding where no Presenting Officer was appointed. 27. Thus, following the above decisions, I am also of the considered view that failure to appoint a Presenting Officer had fundamentally affected the disciplinary proceeding drawn up against the petitioner and going by the finding recorded by the Enquiry Officer, petitioner was clearly prejudiced by such omission. The same has vitiated the enquiry and the consequential punishment imposed. 28. 27. Thus, following the above decisions, I am also of the considered view that failure to appoint a Presenting Officer had fundamentally affected the disciplinary proceeding drawn up against the petitioner and going by the finding recorded by the Enquiry Officer, petitioner was clearly prejudiced by such omission. The same has vitiated the enquiry and the consequential punishment imposed. 28. In his affidavit filed by respondent No. 2 it is stated in paragraph 10 that the enquiry report was sent to the petitioner alongwith the dismissal order by post, which means that copy of enquiry report was not furnished to the petitioner before passing of the order of penalty. The record also does not indicate that prior to issuance of dismissal order copy of the enquiry report was sent to the petitioner and that he was given opportunity to have his say on the report submitted by the Enquiry Officer or on the penalty proposed. The law relating to effect of non-furnishing of enquiry report on the order of penalty is well settled and requires no re-statement. It is settled law that before the disciplinary authority takes a decision on the basis of the report of enquiry, a copy of the same is required to be furnished to the delinquent Government servant and his response to the report should be considered. Though non-furnishing of the enquiry report by itself may not be a sufficient ground to interfere with an order of penalty because of the subsequent development of the law, the fact remains that in the absence of the enquiry report, petitioner was prevented from making his representation as to the contents of the enquiry report as well as against the proposed penalty. Therefore, he was clearly prejudiced by non-furnishing of the enquiry report. 29. Coming to the enquiry report itself, the finding of the Enquiry Officer is that the disciplinary authority who had placed the petitioner under suspension was right in taking such stern action otherwise it would have been an example to other employees to avoid official duties and ultimately the Court's Junctions would have suffered. As per requirement of sub-rule (8) of Rule 9, the Enquiry Officer has to record his findings on each of the charges together with reasons therefor. It is apparent that no findings have been recorded on each of the three charges leveled against the petitioner. As per requirement of sub-rule (8) of Rule 9, the Enquiry Officer has to record his findings on each of the charges together with reasons therefor. It is apparent that no findings have been recorded on each of the three charges leveled against the petitioner. Moreover, whether the disciplinary authority was justified in suspending the petitioner was neither the charge framed nor was it the issue before the Enquiry Officer. So this enquiry report is not a report at all in the eye of law. Had a copy of this report been furnished to the petitioner, perhaps he could have pointed out the legal infirmities in it before decision was taken by the disciplinary authority. 30. Thus it is evident that the procedure prescribed under Rule 9 was not adhered to at various stages vitiating the disciplinary proceeding against the petitioner. The disciplinary authority was perhaps aware of the shortcomings, particularly of the enquiry report, and tried to make up for it in his impugned order of dismissal. However, since fair procedure was not followed, the penalty order cannot be sustained on its own. It is the decision making process and not the decision per se with which the Court is concerned and it is clear that the decision making process stood vitiated for substantial violation of Rule 9 prescribing the procedure to be followed before imposing a penalty on a Government servant. 31. Lastly, the Court finds that the charges taken as a whole are not that serious as to warrant imposition of the severe penalty of dismissal from service. Perusal of the record and the way the departmental proceeding was conducted gives the impression that the then Presiding Officer, Labour Court, Guwahati was quite annoyed with the petitioner, may be for good reasons, and wanted to remove him from his engagement. His appearance in the enquiry alongwith another judicial officer is clearly a pointer to that. But for that the procedure prescribed has to be followed. It may also be noted that the presence of the disciplinary authority alongwith another judicial officer in the enquiry as witnesses was itself quite intimidating and perhaps influenced the mind of the Enquiry Officer. His appearance in the enquiry alongwith another judicial officer is clearly a pointer to that. But for that the procedure prescribed has to be followed. It may also be noted that the presence of the disciplinary authority alongwith another judicial officer in the enquiry as witnesses was itself quite intimidating and perhaps influenced the mind of the Enquiry Officer. Moreover, since the present disciplinary authority has filed affidavit, filing of affidavit by the then Presiding Officer, Labour Court, Guwahati justifying initiation of disciplinary proceeding against the petitioner and commenting on the conduct of the petitioner perhaps is uncalled for. It introduces an element of personal bias against the petitioner. 32. Having regard to the above and in the light of the discussions made, this Court is of the view that the impugned order of penalty dated 26.10.2006 cannot be sustained. The same is accordingly set aside and quashed. Petitioner shall be reinstated in service forthwith. Period of service since his suspension till reinstatement shall be regularized for the purpose of continuity in service and for other service benefits. He shall however be entitled to 50% of the arrear salary which in the opinion of the Court would be just and proper in the facts and circumstances of the case. 33. Before parting with the record, this Court would however like to observe that the Assam Administrative Tribunal while dismissing the appeal filed by the petitioner as not maintainable, had made certain comments and recorded certain findings which were really unnecessary and unwarranted. In paragraph 18 of the order of the Tribunal, it was stated that the appellant was a driver and that the contention of the respondents that the appellant wanted to defame the respondents who were in the rank of District Judges could not be ignored, was really uncalled for since the Tribunal had decided not to entertain the appeal on the ground of non-maintainability. 34. Writ petition is accordingly allowed. There, shall, however be no order as to cost. Registry to send down the record.