JUDGMENT AND ORDER(CAV) All the 3(three) writ petitions being laid on the same premises, the same are heard and disposed of by this common order. I have heard the learned counsels for the parties and have also perused the materials on record. 2. Challenge is directed against the order dated 20.08.2014 issued under the hand of the Secretary, Government of Assam, Irrigation Department, whereby the writ petitioners were dismissed from service under Rule 7 (vii) of the Assam Services (Discipline and Appeal) Rules, 1964 (for short, referred to as the Rules of 1964), meaning that their dismissal from service would operate as a disqualification for future employment. At the relevant time the petitioner in WP(C) 3723/2014 i.e. Shri Debabrata Shee was working as Senior Grade Junior Engineer at Hailakandi Sub-Division (Irrigation) and the petitioner in WP(C) 3788/2014 i.e. Deepak Goswami was serving as Assistant Executive Engineer in the same establishment. The petitioner in WP(C) 4499/2014 i.e. Utpal Kr. Choudhury worked as the Executive Engineer in the same Division. In view of the allegations of gross irregularities and misappropriation of Government fund in the Hailakandi Division, Irrigation towards construction of “Harish Nagar Nala FIS” under AIBP in 2009-2010, the petitioners were proceeded against and subjected to disciplinary proceedings. 3. The anomalies and involvement of officers and staff of Hailakandi Division (Irrigation) towards construction of the Nala was the subject-matter in WP(C) 2655/2012, which was converted to a Public Interest Litigation and re-numbered as PIL 37/2012. In course of time, each of the petitioners were served with Show-Cause Notices/Charge together with Statement of Allegations. Basically, the charges were in respect of committing irregularities, indulging in corrupt activities for vested interest, gross negligence in the discharge of duties and causing misappropriation of Government money. The petitioners made reply to the charges in seriatim. 4. For the purpose of conducting disciplinary proceedings, an Enquiry Committee was constituted by appointing the Chief Engineer (Irrigation) as the Enquiry Officer with the Executive Engineer, I & QC (Irrigation) as the Presenting Officer and the Assistant Executive Engineer I & QC (Irrigation) as the Assisting Officer. Consequent thereto, the petitioners were once again asked to give reply against queries raised on each charges in a Questionnaire form. Replies were made and thereafter Enquiry Report was submitted before the Disciplinary Authority. The findings of the Enquiry received consideration and the Disciplinary Authority held the charges as being proved. Consequent thereto, the petitioners were once again asked to give reply against queries raised on each charges in a Questionnaire form. Replies were made and thereafter Enquiry Report was submitted before the Disciplinary Authority. The findings of the Enquiry received consideration and the Disciplinary Authority held the charges as being proved. The Enquiry Report was made available to the petitioners and they were asked to make representation, if any against the Enquiry Report. Due representation was made denying the findings of the Enquiry Report where charges were found established against the petitioners. Categorical objections were made to the effect that the procedure adopted in conducting the disciplinary proceedings was wholly contrary to the provisions under Rule 9 of the Rules of 1964. Stand taken is that while issuing the Charge Memo, no list of documents and list of witnesses were furnished on which the charges were proposed to be sustained. Opportunity to inspect documents was also not afforded and no witnesses were examined. Also, neither any oral evidence was taken nor the petitioners were provided opportunity to cross-examine any witnesses or permitted to give evidence to adduce documentary and oral evidence in support of their case. 5. By common order dated 28.04.2014, which also records spot inspection of the executed work by the petitioners along with the Additional Chief Engineer, I & QC (Irrigation), Guwahati on 30.07.2013, the major penalty by way of dismissal from service with disqualification from future employment was imposed upon the petitioners. Appeals filed under Rule 13 and 15 of the Rules of 1964 remained pending for disposal on the date when the present proceedings were instituted. 6. The moot point for decision is as to whether or not the procedural safeguards enshrined under Rule 9 of the Rules of 1964 had been complied with while imposing penalty of dismissal on the petitioners. To begin with, relevant provisions of Rule 9, applicable in the instant case, are reproduced 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. (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 person. [“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”.] (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 tampering removal or destruction of records. (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. 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. (8) The record of the inquiry, shall include— (i) the charges framed 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. (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 any 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: 7. A perusal of Rule 9 makes it clear that no penalties specified in Rule 7 of the Rules of 1964 are to be passed except in consonance with an inquiry held in the manner prescribed therein. Definite charges are to be framed which is to be made over to the delinquent along with statement of allegations and affording opportunity to file written statement of defence. What is of utmost importance is that at the time of delivering the charges, the Government servant facing an inquiry must invariably be furnished with the list of documents and witnesses by which each article of charges is proposed to be sustained. Additional safeguards is also provided to the Government servant, in that, for the purpose of his defence, he must be permitted to inspect and take extracts from such official records unless, the Disciplinary Authority is of the opinion that the same are not relevant for the purpose or it is against public interest to allow such access to the Government servant. The Inquiry envisages consideration of documentary evidence and taking oral evidence by the Inquiring Authority as may be relevant or material in respect of the charges. Opportunity to cross-examine witnesses examined in support of the charges as well as to give evidence in person and to adduce documentary and oral evidence in his defence are the built-in procedural safeguards envisaged under Rule 9 of the Rules of 1964. Exception made is that if the Inquiring Authority declines to examine any witnesses or to admit any document in evidence on ground that such evidence or document is not relevant or material, reasons in writing will have to be recorded. An Inquiry stands concluded by preparation of an Enquiry Report, recording the findings on each of the charges together with reasons therefore. Rule 9 further contemplates that the record of Inquiry, amongst others, is to include the oral evidence taken and documentary evidence considered in the course of the Inquiry. Obligation is also cast upon the Disciplinary Authority, if it is not the Inquiring Authority, to consider the record of the Inquiry and to record its findings on each charge. 8. The scope and ambit of Rule 9 of the Rules of 1964 was considered by a three Judge Bench of this Court in the case of T.S. Srivastava v. State of Assam & Ors., reported in AIR 1972 Gauhati 2 and in no uncertain words it has been held that the procedure laid down under Rule 9 is a mandatory procedure and any violation of the rule will vitiate the Inquiry. It was also held that the Rules have been made in order to ensure security of the service and, as such, cannot be allowed to be by-passed or observed in a casual or mechanical way. To take a leaf out of the judgment, “These are not merely ceremonial adornment in print but are meant to be properly and positively observed”. It is also too well settled in law that if an Inquiry is to be conducted against any person, the same has to be done by giving strict adherence to the statutory provisions and the principles of natural justice. It is also too well settled in law that if an Inquiry is to be conducted against any person, the same has to be done by giving strict adherence to the statutory provisions and the principles of natural justice. Support can also be had from the case in Nazir Ahmad v. King Emperor, reported in AIR 1936 Privy Council 253 (2) which lays down the law that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all – other methods of performances being necessarily forbidden. 9. Tested against the provisions under Rule 9 and its mandatory nature as recognized by law, notice may now be had as to the manner in which the Inquiry had been conducted against the petitioners. First and foremost, the Charge Memo as served upon them was sans any list of documents and witnesses. The Disciplinary Inquiry proceeded only on the basis of the replies received from the petitioners as against the Questionnaires supplied to them. The report depicts the charges in seriatim and the reply received from the Charge Officer with findings thereon. Examination of witnesses in support of the charges, affording of opportunity to the petitioners to adduce documentary and oral evidence in their defence remains non-existent during the course of the Inquiry. There are also no reasons recorded in writing by the Inquiring Authority for declining examination of witnesses or to admit any document in evidence. The manner in which the Inquiry proceeded is a far cry from the statutory procedure prescribed under Rule 9 of the Rules of 1964. To reiterate, no oral evidence is laid by the Department nor the petitioners were given any opportunity to take steps to defend themselves in the Inquiry. In short, the Inquiry was conducted in a slip-shod manner divorced from the mandatory procedure provided under Rule 9 of the Rules of 1964. 10. The common order of dismissal dated 28.04.2014 do not at all demonstrate, even remotely, that the Disciplinary Authority had considered the record of the Inquiry by recording its findings on each charge. Surprisingly, the Disciplinary Authority took into consideration an Inspection Report dated 21.11.2012 submitted by the Additional Chief Engineer, I & QC, Irrigation, which report was never made available to the petitioners during the course of the Inquiry. Surprisingly, the Disciplinary Authority took into consideration an Inspection Report dated 21.11.2012 submitted by the Additional Chief Engineer, I & QC, Irrigation, which report was never made available to the petitioners during the course of the Inquiry. Reference is also made in the order of dismissal dated 28.04.2014 in respect of the findings of the Inquiring Authority dated 04.10.2013, which do not find any mention in the Enquiry Report. The impugned order of dismissal records careful examination of the said reports and findings and also arriving at a conclusion for imposing punishment upon the petitioners after a threadbare discussion without, however, recording any findings on each charge from the record of the Inquiry. 11. Reliance placed by the State counsel in the case of Union of India & Ors. v. P. Gunasekaran, reported in (2015) 2 SCC 610 do not come its aid, in as much as, there can be no second opinion that the Disciplinary Inquiry held against the petitioners was wholly contrary to the procedure engrafted under Rule 9 of the Rules of 1964. Indeed, in a proceeding under Article 226 of the Constitution of India, the High Court does not sit as a court of appeal over the decision of the authorities holding a Departmental Inquiry against a public servant. However, at the same time there can be no unfettered discretion on the part of the State respondents immune from judicial reviewability in a case where mandatory procedure is ignored and thrown to the winds. This is what prevailed in the disciplinary proceedings conducted against the petitioners. 12. The charges against the petitioners may appear to be serious but that itself cannot clothe the respondents to embark upon a procedure not recognized by law, particularly the statutory procedure manifest under Rule 9 of the Rules of 1964. In a case where the foundation is weak and crippled, the superstructure has to fall. In the instant case, the disciplinary inquiry was initiated and conducted in gross violation of the principles of natural justice and in total derogation to the procedure laid down under Rule 9 of the Rules of 1964. Having held thus, the common order dated 28.04.2014, imposing the penalty of dismissal on the petitioners, cannot stand the scrutiny of law and is liable to be set aside, which is accordingly done. Having held thus, the common order dated 28.04.2014, imposing the penalty of dismissal on the petitioners, cannot stand the scrutiny of law and is liable to be set aside, which is accordingly done. The petitioners shall now be taken back into service in the same status and rank which they held on the date they were dismissed from service with all consequential benefits. It will be open to the respondents to initiate fresh disciplinary proceedings against the petitioners but in doing so, the same has to be initiated by issuing fresh charge sheet and by concluding the proceedings, under all circumstances, within a period of 6(six) months from today. It is made clear that in the event fresh disciplinary proceedings are initiated and the petitioners does not participate or co-operate in the Inquiry, the Inquiry Officer so appointed may proceed ex parte by passing orders recording the reasons of non-participation or the unwillingness of the petitioners to co-operate with the Inquiry. 13. Mutilation of the mandatory procedural safeguards under Rule 9 of the Rules of 1964 being all-pervasive, this Court confines itself to the legal points involved without undertaking a labyrinthine exercise into the nitty-gritties and basic factual aspects of the case. 14. For all the discussions, findings and directions above, all the three writ petitions stands allowed accordingly. There shall be no order as to costs.