JUDGMENT AND ORDER : Ujjal Bhuyan, J. Heard Mr. A.B. Choudhury, learned Senior counsel, assisted by Mr. M.K. Sharma, learned counsel for the petitioner and Mr. N. Sharma, learned counsel for the Secondary Education Department, Govt. of Assam, for respondent Nos. 1 to 4. Also heard Mr. B. Ullah, respondent No. 6 in person. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 28.05.2013 passed by the Director of Secondary Education, Assam imposing penalty of recovery of Rs. 1.76 lakhs from the petitioner @ Rs. 3000 per month and after his superannuation, the balance amount from his gratuity. 3. Substantive post of the petitioner was Assistant Teacher in Barni Adhiarpara Saniadi Madrassa Higher Secondary School (School hereinafter). Subsequently, he was made in-charge Principal of the School. The School, in question, is a provincialised school. 4. By order dated 27.09.2012 issued by the Director of Secondary Education, Assam, petitioner was placed under suspension with immediate effect. It was mentioned that a report was received from respondent No.6 as President of the School Management and Development Committee alleging misappropriation of Government grant to the School amounting to Rs. 7 lakhs for the purpose of infrastructure development. 5. On 20.11.2012, show-cause notice was issued by the Director of Secondary Education, Assam as the disciplinary authority to the petitioner under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 (1964 Rules) as to why any of the penalties prescribed in Rule 7(i) to 7(iii) of the 1964 Rules should not be imposed on him on the following charge: "That while you were Principal, you misappropriated of Govt. money sanctioned amounting to Rs. 2,00,000/- (Two Lakhs) from Minority Development Corporation and Rs. 5,00,000/- (Five Lakhs) construction of class room/school building grant under 12th Finance Commission." 6. Petitioner was called upon to submit written statement and also given liberty for inspection of documents. The show-cause notice was accompanied by a statement of allegation. 7. Petitioner submitted his written statement on 22.11.2012 denying the allegation levelled against him and explaining utilisation of the Government grant in the construction of girls' common room and class-room building. 8. Thereafter, petitioner received notices of hearing on 05.12.2012, 21.12.2012 and 08.05.2013 from the office of the Director of Secondary Education, Assam. According to the petitioner, he attended the hearings on all the three dates. 9. 8. Thereafter, petitioner received notices of hearing on 05.12.2012, 21.12.2012 and 08.05.2013 from the office of the Director of Secondary Education, Assam. According to the petitioner, he attended the hearings on all the three dates. 9. By order dated 06.05.2013 issued by the Director of Secondary Education, Assam, suspension of the petitioner was revoked and he was reinstated in his substantive post of Assistant Teacher in the School. 10. Finally, impugned order dated 28.05.2013 was issued by the Director of Secondary Education, Assam imposing the penalty as above. 11. Aggrieved, present writ petition has been filed. 12. An affidavit has been filed on behalf of the Secondary Education Department, Govt. of Assam. It is stated that while petitioner was serving as in-charge Principal of the School, a report was received from the respondent No.6 alleging misappropriation of two Government grants amounting to Rs.2 lakhs and 5 lakhs respectively meant for construction of girls common room, additional office room and major repairing works of class-rooms. Report of enquiry conducted by Smt. Manisha Cheleng, ACS, Extra-Assistant Commissioner, Karmrup (Rural) was also received. On the basis of such enquiry report, petitioner was placed under suspension on 27.09.2012 where after show-cause notice was issued to the petitioner. Petitioner was also heard by the Director of Secondary Education, Assam on 14.12.2012. Petitioner had spent the entire money provided to the School without approval of the School Management and Development Committee. As per report of the Technical Member of the School Management and Development Committee, there was total variation in the utilisation of Government grants to the tune of Rs.1.76 lakhs. Departmental proceeding was conducted as per Rule where after impugned penalty was imposed. The delinquent Government servant, i.e., the petitioner, was heard and he was given adequate opportunity of hearing. Therefore, prayer of the petitioner is untenable and the writ petition should be dismissed. 13. Respondent No.6 has also filed affidavit. He has stated in detail regarding alleged misappropriation of Government grants by the petitioner and that from various reports it was proved that petitioner had misappropriated Rs. 1.76 lakhs of Government grants meant for the School. As such, initiation of departmental proceeding against the petitioner was justified, so also the imposition of penalty. Petitioner had misutilized the funds granted to the School without getting the plan and estimate approved by the Construction Committee of the School Management and Development Committee. 1.76 lakhs of Government grants meant for the School. As such, initiation of departmental proceeding against the petitioner was justified, so also the imposition of penalty. Petitioner had misutilized the funds granted to the School without getting the plan and estimate approved by the Construction Committee of the School Management and Development Committee. Students of the School through the General Secretary had lodged complaint before the Deputy Commissioner, Kamrup (Rural) regarding misuse of office and misappropriation of Government funds by the petitioner. Deputy Commissioner ordered enquiry through Smti. Manisha Cheleng, ACS, who conducted enquiry. In her enquiry report, allegation against the petitioner stood proved. 14. Petitioner has filed reply affidavits to both the above counter-affidavits. 15. Mr. A.B. Choudhury, learned Senior counsel for the petitioner submits that impugned penalty is wholly unsustainable in law inasmuch as the procedure prescribed for imposition of penalty under Rule 9 of the 1964 Rules were not complied with. Neither any list of documents nor any list of witnesses were furnished to the petitioner. No Enquiry Officer was appointed. Not only that, no Presenting Officer was also appointed to represent the case of the Department. Petitioner was not informed about his right to be represented by a Government servant in the departmental proceeding. He was also not allowed to cross-examine respondent No.6 who had given evidence during the enquiry against the petitioner. On merit, learned Senior counsel submits that there is on record to even remotely suggest any wrong-doing by the petitioner. The finding recorded by the disciplinary authority that the petitioner had misappropriated Rs. 1.76 lakhs is not borne out by the record and is, therefore, vitiated by perversity. Contending that the departmental proceeding initiated against the petitioner suffered from gross violation of the principles of natural justice, learned Senior counsel seeks quashing of the impugned order of penalty. 16. Learned counsel appearing for the Secondary Education Department supports the impugned order passed by the Director and contends that due opportunity of hearing was provided to the petitioner. Only thereafter, impugned order was passed which cannot be said to be perverse to the materials on record. Penalty imposed is adequate having regard to the gravity of the misconduct and, therefore, no interference is called for. 17. Mr. Barkat Ullah, respondent No. 6 and appearing in person, firstly submits that the writ petition suffers from non-joinder of necessary party. Only thereafter, impugned order was passed which cannot be said to be perverse to the materials on record. Penalty imposed is adequate having regard to the gravity of the misconduct and, therefore, no interference is called for. 17. Mr. Barkat Ullah, respondent No. 6 and appearing in person, firstly submits that the writ petition suffers from non-joinder of necessary party. Without impleading the School Management and Development Committee as a respondent, he has been unnecessarily dragged into the litigation and made a respondent by virtue of his holding the office of the President of the School Management and Development Committee. In the absence of the School Management and Development Committee, he could not have been impleaded as a party respondent. Referring to several judgments of this Court, he submits that for non-joinder of necessary party, writ petition should be dismissed. Further submission of Mr. Ullah is that under the 1964 Rules, the impugned order is an appealable order. Without filing appeal as provided under the 1964 Rules, petitioner has straightaway approached the High Court and d the writ jurisdiction. In view of the settled legal position, instant writ petition should not be entertained as the petitioner has not been able to show justification for invoking writ jurisdiction without availing alternative statutory remedy which is adequate and efficacious. Therefore, on the ground of not availing alternative remedy too, writ petition should be dismissed. On merit, he submits that it is crystal clear from the record that without obtaining approval of the School Management and Development Committee, on his own petitioner recklessly spent the two Government grants totalling Rs. 7 lakhs and made unlawful gains. Such amount could have been better utilised for development of infrastructure of the School. Finally, he submits that if the impugned order suffers from any procedural lapse, Court may direct respondents to hold de novo enquiry since the matter relates to misappropriation of public money. 18. In his reply submission, Mr. Choudhury submits that this case is pending since the year 2013. After entertaining the writ petition and hearing it over a period of time, it would neither be just nor fair to relegate the petitioner to the appellate authority at this stage. 18. In his reply submission, Mr. Choudhury submits that this case is pending since the year 2013. After entertaining the writ petition and hearing it over a period of time, it would neither be just nor fair to relegate the petitioner to the appellate authority at this stage. In any case, the departmental proceeding suffers from fundamental flaws and it is a settled proposition of law that when illegality is patent, there would be no bar for the writ Court to its jurisdiction. The other preliminary objections raised by respondent No.6 are without any substance and therefore should be ignored, submits Mr. Choudhury. Regarding submission of Mr. Barkat Ullah that there should be de novo enquiry, Mr. Choudhury submits that in the meanwhile petitioner has retired from service on attaining the age of superannuation in December, 2015. Therefore, it would be wholly inequitable to compel the petitioner to suffer a departmental proceeding once again post retirement. In any case, allegation against the petitioner being only subjective and speculative, a de novo enquiry would amount to a roving and fishing enquiry which the Court will not permit. 19. Submissions made by learned counsel for the parties have received the due consideration of the Court. 20. Since respondent No. 6 has raised certain preliminary objections as to the maintainability of the writ petition, Court is of the view that it would be appropriate to deal with the preliminary objections at the outset. 21. Regarding the objection as to non-joinder of necessary party, Court is of the view that subject-matter of the writ petition is the legality and validity of the penalty imposed on the petitioner following a departmental proceeding. In such a scenario, even presence of respondent No.6 is not necessary, not to speak of the School Management and Development Committee. Therefore, in the considered opinion of the Court and having regard to the relief sought for, presence of the School Management and Development Committee is not necessary for adjudication of the dispute raised. In any case, no relief is claimed against the School Management and Development Committee. Therefore, the said Committee cannot be construed to be a necessary party. 22. In so far the objection relating to petitioner not availing the alternative remedy, it is true that Rule 15 of the 1964 Rules provides for appeal against an order imposing penalty. In any case, no relief is claimed against the School Management and Development Committee. Therefore, the said Committee cannot be construed to be a necessary party. 22. In so far the objection relating to petitioner not availing the alternative remedy, it is true that Rule 15 of the 1964 Rules provides for appeal against an order imposing penalty. While ordinarily, Court would insist on the petitioner to avail the alternative remedy provided under the relevant statute before approaching the writ Court, the rule of exhaustion of alternative remedy is not an absolute rule or principle barring invocation of writ jurisdiction by the writ Court in all situations without any exception. It is a self-imposed limitation which the writ Court observes to maintain uniformity and judicial discipline. There are number of decisions of the Apex Court as well as of this Court from where the principle can be culled out that notwithstanding availability of alternative remedy, in an appropriate case, the writ Court may its jurisdiction if there is blatant violation of the principles of natural justice or if the action impugned is wholly without jurisdiction, so on and so forth. Even challenge to a notice may be upheld if it can be demonstrated to the Court that it has been issued without authority or jurisdiction or if the same is vitiated by malafides or issued for oblique purpose. 23. The order sheet of the present case discloses that notice in this case was issued as far back as on 02.09.2013 and an interim order was passed staying the recovery. Not only that, the case was heard and, in fact, was reserved for judgment at one point of time but ultimately it was released from CAV. In such circumstances, Court is of the view that declining to adjudicate the dispute raised by the petitioner by the writ Court at this stage on the ground of availability of alternative remedy in the form of appeal may not be just and appropriate. 24. Having addressed the preliminary objections as above, Court may now advert to the challenge on merit. 25. Since the order of penalty dated 28.05.2013 has been impugned, the same is extracted hereunder in its entirety: "Md. Chand Mahammad the then Principal-in-charge of BAS Madrassa Higher Secondary School was suspended on 27.09.2013 upon receipt of allegations from the President of the School Managing and Development Committee. 25. Since the order of penalty dated 28.05.2013 has been impugned, the same is extracted hereunder in its entirety: "Md. Chand Mahammad the then Principal-in-charge of BAS Madrassa Higher Secondary School was suspended on 27.09.2013 upon receipt of allegations from the President of the School Managing and Development Committee. Departmental Proceeding as per Rule was drawn against the Govt. servant and he was served a written Show Cause notice vide this letter No.GB-EST/Misc/17/2012/56 dated 20.11.2012. The charges were precisely drawn against him and were communicated to him. The charge was that while he was the Principal of the School he received grant of Rs.2.00 lakhs from the Minority Development Corporation and Rs.5.00 lakhs from Director of Secondary Education Office from Twelfth Finance Commission Award. Self conducted enquiry and called the delinquent Govt. servant and the President of the SMDC. They were heard. The delinquent Govt. servant admitted that he received 2.00 lakhs from Minority Development Corporation and 5.00 lakhs as Twelfth Finance Commission grant. He spent the amount of 5.00 lakhs in construction of flour Rooting etc. He did not form any construction Committee, neither drew the amount jointly with President of SMDC. Sri Borkotullah was also heard. His statement also taken on 05.01.2013. He informed that the vouchers of Rs. 5.00 lakhs have not been approved by the SMDC. As per the SMDC President, the delinquent Govt. servant did not incur expenditure properly hence the SMDC has not approved the vouchers. In this regard, Member, Technical of the SMDC conducted an enquiry and submitted a report to the Inspector of Schools, KDC, Kamrup wherein Rs. 1.76 lakhs was shown to have been misappropriated by the Principal (P-41/C of the file). Having regard to the statements of President, SMDC, the delinquent Govt. servant and the report of the Member Technical, SMDC, I am satisfied that the charges of misappropriation of money received from TFC grant and the Minority Development Corporation are proved. Rs. 1.76 lakhs has been misappropriated by the delinquent Govt. servant. Therefore, I order recovery of an amount of Rs. 1.76 lakhs from the pay of the Govt. servant @ Rs.3000.00 per month and after his retirement rest amount from his DCRG. With this, the Departmental Proceeding drawn against the Govt. servant is concluded and under FR 54B, the period spent on suspension shall not be treated as on duty. Sent copy of this order to the Govt. 1.76 lakhs from the pay of the Govt. servant @ Rs.3000.00 per month and after his retirement rest amount from his DCRG. With this, the Departmental Proceeding drawn against the Govt. servant is concluded and under FR 54B, the period spent on suspension shall not be treated as on duty. Sent copy of this order to the Govt. servant." 26. Before analysing the order of penalty, it would be apposite to first refer to the show-cause notice. As discussed above, the show-cause notice was issued on 20.11.2012 under Rule 9 of the 1964 Rules. It is the pleaded case of the petitioner which has not been specifically denied by the respondents, no list of documents and no list of witnesses were furnished to the petitioner along with the show-cause notice. In the show-cause notice, it was also not mentioned that the petitioner had a right to be represented by a Government servant in the departmental proceeding. 27. Rule 9 lays down the procedure for imposing penalty. As per the second part of Sub-Rule (2) of Rule 9, it is provided that at the time of delivering the charges, the disciplinary authority shall invariably furnish to the Government servant a list of documents and a list of witnesses by which each Article of Charge is proposed to be sustained. As per Sub-Rule (5), disciplinary authority may nominate any person to present the case in support of the charges before the enquiring 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 the Presenting Officer is a legal practitioner or if the disciplinary authority so permits. The fact that the charged Government servant has the liberty to avail the assistance of any other Government servant to present his case should be brought to the notice of the charged Government servant by the disciplinary authority while issuing show-cause notice and as per Sub-Rule (2), such show-cause notice should invariably be accompanied by a list of documents and a list of witnesses. Neither any list of documents nor any list of witnesses were furnished to the petitioner in the present case. Petitioner was also not informed of his right to be defended by any other Government servant. Neither any list of documents nor any list of witnesses were furnished to the petitioner in the present case. Petitioner was also not informed of his right to be defended by any other Government servant. There is thus violation of Rules 9(2) and (5) of the 1964 Rules. 28. Coming back to the impugned order dated 28.05.2013, it is seen that the disciplinary authority himself conducted the enquiry. He had recorded statement of the petitioner and heard the President of the School Management and Development Committee, i.e., respondent No.6. It is also seen that the Technical Member of the School Management and Development Committee had submitted a report to the Inspector of Schools, Kamrup (Rural) showing misappropriation by the petitioner to the tune of Rs. 1.76 lakhs. The disciplinary authority specifically stated that having regard to the statement of respondent No.6, petitioner and the report of the Technical Member of the School Management and Development Committee, he was satisfied that the charge of misappropriation of money by the petitioner to the tune of Rs. 1.76 lakhs was proved. From the above, it is evident that respondent No.6 had given evidence in the enquiry against the petitioner. Not only that, report of the Technical Member of the School Management and Development Committee was taken into consideration by the disciplinary authority acting as the Enquiry Officer. In the absence of any list of documents and list of witnesses giving prior notice to the petitioner that respondent No. 6 would depose in the enquiry and that report of the Technical Member would be taken into consideration, such action of the disciplinary authority clearly amounted to violation of the principles of natural justice thereby vitiating the penalty imposed. 29. As per Rule 9(6) of the 1964 Rules, the charged Government servant has the right to cross-examine witnesses examined in support of the charges and to give evidence in person in addition to adducing documentary and oral evidence in his defence. Materials on record do not disclose that petitioner was allowed to cross-examine respondent No. 6 in the course of the enquiry or that copy of the report of the Technical Member was furnished to him. 30. In State of Assam Vs. Materials on record do not disclose that petitioner was allowed to cross-examine respondent No. 6 in the course of the enquiry or that copy of the report of the Technical Member was furnished to him. 30. In State of Assam Vs. Mahendra Kumar Das, reported in (1970) 1 SCC 709 , the Supreme Court has held that it is highly improper for an Enquiry Officer during the conduct of an enquiry to attempt to collect any material from outside sources and not make that information so collected available to the delinquent officer and to make further use of the same in the enquiry proceeding. The Supreme Court categorically held that if it is established that material behind the back of the delinquent officer was collected during the enquiry and such material was relied upon by the Enquiry Officer without being disclosed to the delinquent officer, it can be stated that enquiry proceedings were vitiated. 31. In Kashinath Dikshita Vs. Union of India, (1986) 3 SCC 229 , the Apex Court has held that if the documents relied upon by the disciplinary authority are not supplied to the delinquent officer, it would amount to denial of reasonable opportunity. This position has been reiterated in Narinder Mohan Arya Vs. United Insurance Co. Ltd., reported in (2006) 4 SCC 713 , where the Apex Court has categorically held that Enquiry Officer is not permitted to collect any material from outside sources during the conduct of the enquiry. 32. In State of Uttar Pradesh Vs. Saroj Kumar Sinha, reported in (2010) 2 SCC 772 , the Supreme Court observed that the proposition of law that a Government employee facing departmental enquiry is entitled to all the relevant statements, documents and other materials to enable him to have a reasonable opportunity to defend himself in the departmental enquiry against the charges is too well-established to need any further reiteration. 33. Reverting back to the impugned order, it is evident that petitioner had only admitted receipt of Rs. 2 lakhs from Minority Development Corporation and Rs.5 lakhs as grants from the 12th Finance Commission. Admission of receipt of the aforesaid amount by no stretch of imagination can be said to be admission of misappropriation. The charge framed against the petitioner was required to be proved by adducing evidence which was required to be tested by way of cross-examination. 2 lakhs from Minority Development Corporation and Rs.5 lakhs as grants from the 12th Finance Commission. Admission of receipt of the aforesaid amount by no stretch of imagination can be said to be admission of misappropriation. The charge framed against the petitioner was required to be proved by adducing evidence which was required to be tested by way of cross-examination. Suspicion or presumption cannot take the place of proof even in a domestic enquiry as held by the Apex Court in Narinder Mohan Arya (supra). 34. This Court in a catena of judgments has held that provisions of Rule 9 of the 1964 Rules have mandatory character and non-conformation to the laid down procedure would vitiate the departmental proceeding and the consequential order passed. 35. Thus having regard to the discussions made above, Court is of the unhesitant view that decision making process leading to the imposition of impugned penalty suffers from gross procedural impropriety and violation of the principles of the principles of natural justice striking at the root of the disciplinary proceeding. Consequently, impugned order dated 28.05.2013 cannot be legally sustained and is accordingly set aside and quashed. 36. Writ petition is allowed but without any order as to cost.