JUDGMENT AND ORDER : Ujjal Bhuyan, J. By filing this petition under Article 226 of the Constitution of India petitioner seeks quashing of order dated 23.08.2006 passed by the Commissioner and Secretary to the Government of Assam, Personnel (A) Department upholding discharge of the petitioner from service and further seeks a direction to the respondents to re-instate him in service with all consequential benefits. 2. Facts of the case may be briefly noted. 3. According to the petitioner, he belongs to the Scheduled Caste community and in this regard, caste certificate dated 03.03.1994 was issued by the competent authority i.e. President, Barpeta Zilla Anusuchit Jati Parishad and countersigned by the Sub-Divisional Officer (Civil), Bajali 4. Petitioner had participated in the combined competitive examinations, 1996 conducted by the Assam Public Service Commission (APSC) as a Scheduled Caste candidate. Petitioner was selected where after he was appointed to the Assam Civil Service Class I (Junior Grade) on probation vide Government order dated 06.05.1997. On such appointment, petitioner was posted as Extra Assistant Commissioner, Lakhipur in the district of Cachar on 10.07.1997 following which he joined his new place of posting. 5. On 14.09.1998 petitioner was served with a notice issued by the Commissioner and Secretary to the Government of Assam, Personnel (A) Department alleging that upon inquiry conducted into the genuineness of his caste it revealed that petitioner belonged to the "general Kalita caste" and not to Scheduled Caste "Jal Keot" as per his caste certificate. It was thus alleged that petitioner got appointment with the help of false caste certificate which would warrant his discharge from service as per Rule 17(C) of the Assam Civil Services (Class I) Rules, 1960. Petitioner was asked to explain as to why he should not be discharged from service under the aforesaid provision for submission of false caste certificate and concealment of facts regarding his actual caste. 6. Petitioner submitted reply dated 22.2.1999 not only denying the allegation but also requesting the authority to consider whether invocation of Rule 17(C) of the Assam Civil Services (Class I) Rules, 1960 was justified. It was also stated that on the basis of same allegation Patacharkuchi Police Station Case No. 197/1997 was registered under sections 419/420 IPC. However, upon investigation police submitted final report stating that at legation against the petitioner was false which was accepted by the Sub-Divisional Judicial Magistrate, Bajali. It was also stated that on the basis of same allegation Patacharkuchi Police Station Case No. 197/1997 was registered under sections 419/420 IPC. However, upon investigation police submitted final report stating that at legation against the petitioner was false which was accepted by the Sub-Divisional Judicial Magistrate, Bajali. Therefore, the authority was requested to take a judicious view of the matter and to close the proceeding. 7. However, Joint Secretary to the Government of Assam. Personnel (A) Department passed order dated 06.08.1999 stating that Government had come to the conclusion that petitioner did not belong to Scheduled Caste. Therefore, exercising power conferred by Rule 20(c) read with Rule 20(e) of the Assam Civil Services Rules, 1998, petitioner, who was on probation, was discharged from service with immediate effect. 8. At that stage petitioner filed WP(C) No. 5402/1999 before this Court challenging the legality and validity of the aforesaid order dated 06.08.1999. The writ petition was contested by the State by filing counter. By the judgment and order dated 20.06.2002, the challenge made was partly allowed. The order dated 06.08.1999 was set-aside. It was held that petitioner was not afforded with a reasonable opportunity to defend himself. It was stated that petitioner would be entitled to a reasonable opportunity to defend himself against the charges levelled. Liberty was granted to the disciplinary authority to start proper departmental proceeding against the petitioner from the stage of submission of reply by the petitioner to the show cause notice dated 14.09.1998. However re-instatement of the petitioner in service was declined. 9. In terms of the aforesaid judgment, Government of Assam decided to hold an enquiry and in this connection Enquiry Officer was appointed on 30.10.2002. The enquiry commenced on 15.11.2002. Seven witnesses gave evidence in support of the disciplinary authority. On behalf of the petitioner, four witnesses were examined besides the petitioner himself. Petitioner also submitted written argument on 06.06.2003. At the end of the enquiry. Enquiry Officer submitted his report to the disciplinary authority on 29.04.04 holding that the charge against the petitioner stood proved. 10. Thereafter, Commissioner and Secretary to the Government of Assam, Personnel (A) Department passed order dated 23.08.2006 accepting the enquiry report and upholding the earlier "dismissal" (sic) order dated 06.08.1999. 11. Appeal filed against the order dated 23.08.2006 was dismissed by the appellate authority on 07-01.2007. 10. Thereafter, Commissioner and Secretary to the Government of Assam, Personnel (A) Department passed order dated 23.08.2006 accepting the enquiry report and upholding the earlier "dismissal" (sic) order dated 06.08.1999. 11. Appeal filed against the order dated 23.08.2006 was dismissed by the appellate authority on 07-01.2007. Further appeal fried by the petitioner before the Assam Administrative Tribunal was dismissed by the Tribunal vide order dated 03.04.2010. 12. Aggrieved, present writ petition has been fried. 13. Respondent No. 1 in his affidavit has stated that while the petitioner was posted as Extra Assistant Commissioner, Lakhipur in the district of Cachar, a complaint was received from the President and Secretary of Assam Scheduled Caste Workers Council regarding caste status of the petitioner and four others. Complaint was forwarded to the concerned Deputy Commissioner for verification. Since petitioner and another Shri Bhaskar Das, ACS belonged to Barpeta district, the complaint against them was referred to the Deputy Commissioner, Barpeta on 20.9.1997 to cause a thorough enquiry and to submit report. Deputy Commissioner, Barpeta submitted report on 24.03.1998 and as per his report petitioner did not belong to Scheduled Caste "Jal Keot" community whereas Shri Bhaskar Das was reported to be a member of the Scheduled Caste Kaibarta community. As per report of the Deputy Commissioner, Barpeta, petitioner could not produce any document in support of his caste status. Thereafter explanation was called for from the petitioner on 14.09.1998. Petitioner submitted his explanation on 22.02.1999. As the explanation submitted by the petitioner was not found to be acceptable, petitioner was discharged from service vide order dated 06.08.1999. 13.1. Petitioner challenged the discharge order dated 06.08.1999 before this Court by filing WP(C) No.5402/1999. This Court by the judgment and order dated 20.06.2002 while directing re-commencement of the departmental proceeding from the stage of submission of reply by the petitioner, set aside the discharge order dated 06.08.1999 but declined to pass any order for re-instatement of the petitioner. 13.2. Pursuant to aforesaid order of this Court, enquiry was ordered by appointing Shri Laxmi Nath Tamuly, IAS as the Enquiry Officer and also appointing Shri N.C. Misra as the Presenting Officer. Enquiry Officer held that the charge against the petitioner stood proved. Based on the enquiry report, Government passed order dated 23.08.2006 upholding the earlier order dated 06.08.1999. Appeal filed the petitioner was rejected. 13.3. Enquiry Officer held that the charge against the petitioner stood proved. Based on the enquiry report, Government passed order dated 23.08.2006 upholding the earlier order dated 06.08.1999. Appeal filed the petitioner was rejected. 13.3. All documents and materials before the enquiring authority clearly showed that petitioner did not belong to Scheduled Caste. Report of the enquiring authority was based on oral as well as documentary evidence which was accepted by the Government. 14. Respondent No.5 has filed affidavit. In his short affidavit it is stated that caste certificate of the petitioner was issued by Shri Anil Kumar Das, who was then the President of Barpeta Zilla Anusuchit Jati Parishad, as per procedure which was prevalent at that point of time. The certificate was countersigned by the Sub-Divisional Officer (Civil), Bajali Sub-Division which has been verified from the record. Shri Anil Kumar Das has since expired. It is further stated that the certificate issued to the petitioner on 12.02.1997 certifying him to be a member of the “Jal Keot” Scheduled Caste community is still in force as it has not been withdrawn since it was issued as per procedure. The next President of the Barpeta Zilla Anusuchit Jati Parishad had sworn an affidavit stating that petitioner belonged to the Scheduled Caste community. Finally it is stated that as per record of the Barpeta Zilla Anusuchit Jati Parishad petitioner belongs to the Scheduled Caste. 15. Respondent No.6 in his affidavit has stated that sister of the petitioner Smti. Dimpal Das was issued with a Scheduled Caste certificate dated 29.01.2007 which was issued by following the proper procedure and officially countersigned by the Sub-Divisional Officer (Civil), Bajali Sub-Division. It is stated that Smti. Dimpal Das is a Scheduled Caste community person. 16. Heard Mr. U.K. Nair and Ms. N. Shyamal, learned counsel for the petitioner, Mr. J.U. Laskar, learned Government Advocate, Assam and Mr. N. Sarma, learned Counsel for respondent Nos. 5 and 6. 17. Mr. Nair, learned Counsel for the petitioner has launched a two pronged challenge to the impugned order. First limb of attack is regarding violation of principles of natural justice and violation of Assam Services (Discipline and Appeal) Rules. 1964 which has vitiated the departmental proceeding and the resultant order of discharge. Elaborating on his submissions, Mr. Nair submits that initial show-cause notice itself was defective as no specific charge was framed against the petitioner. First limb of attack is regarding violation of principles of natural justice and violation of Assam Services (Discipline and Appeal) Rules. 1964 which has vitiated the departmental proceeding and the resultant order of discharge. Elaborating on his submissions, Mr. Nair submits that initial show-cause notice itself was defective as no specific charge was framed against the petitioner. Besides, neither any list of witnesses nor any list of documents were furnished to the petitioner. Enquiry report on the basis of which impugned order was passed was not furnished to the petitioner thereby denying him the opportunity to make his submission on the enquiry report. Second limb of challenge of the learned Counsel for the petitioner is that the Schedule Caste certificate issued in favour of the petitioner has not been cancelled till date. He submits that the Supreme Court in Kumari Madhuri Patil Vs. Commissioner, Tribal Development reported in (1994) 6 SCC 241 has prescribed the procedure to examine genuineness of Schedule Caste certificate in case of doubt or when objection is raised but without following the said procedure and without cancelling the caste certificate the petitioner has been discharged from service on the ground of producing fake caste certificate. Further submission is that police case filed against the petitioner for allegedly furnishing fake caste certificate resulted in filing of final report by the police which was accepted by the Magistrate. Petitioner's own sister Smti. Dimpal Das has obtained a similar caste certificate like the petitioner but no one has questioned it. He therefore submits that there is no justification for discharge of the petitioner from service which order should be interfered with. 18. Per contra Mr. J.U. Laskar, learned Government Advocate supports the impugned order of penalty. He submits that the authority has passed the impugned order following the order of this Court dated 20.06.2002. Even in that order this Court did not direct re-instatement of the petitioner. Contending that impugned order has been passed by following the due procedure, he seeks dismissal of the writ petition. 19. Mr. N. Sarma, learned Counsel appearing for respondent Nos.5 and 6, referring to the affidavits filed by the said respondents submits that caste certificate of the petitioner was issued by following the due procedure and that the same is still valid. Record of Barpeta Zilla Anusuchit Jati Parishad reflects issuance of such certificate. 19. Mr. N. Sarma, learned Counsel appearing for respondent Nos.5 and 6, referring to the affidavits filed by the said respondents submits that caste certificate of the petitioner was issued by following the due procedure and that the same is still valid. Record of Barpeta Zilla Anusuchit Jati Parishad reflects issuance of such certificate. Since petitioner belongs to the Scheduled Caste dismissing him from service by holding that he is not a Schedule Caste candidate is not justified. 20. Submissions made by learned Counsel for the parties have received the due consideration of the Court. Also perused the materials on record. 21. Before proceeding further it would be apposite to first refer to the show-cause notice issued to the petitioner by the Commissioner and Secretary to the Government of Assam, Personnel (A) Department on 14.9.1998 and the order of discharge dated 06.08.1999. The show-cause notice is extracted hereunder. "That you applied for Combined Competitive Examination (Main), 1996 conducted by the Assam Public Service Commission as a Scheduled Caste candidate vide your application dated 23.01.1996. In support of your caste, you furnished a copy of Caste Certificate dated 03.03.1994 bearing SI .No. 14953 of Book No. 150 obtained from the President, Barpeta Zilla Anusuchit Jati Parishad with your above mentioned application. By virtue of the said Scheduled Caste Certificate, you got yourself selected for appointment in Assam Civil Service (Junior Grade) under Roll No.5603 in Scheduled Caste Reserved category' and placed at SI. 57 of the Select list and accordingly you were appointed on probation to Assam Civil Service Class I (Junior Grade) vide order issued under Notification No. AAP.48/94/80 dated 06.05.1997 where you joined on 15.07.1997 (forenoon). But subsequent enquiry conducted about the genuineness of your caste, reveals that you actually belong to General "Kalita" Caste and not to Scheduled Caste (Jal Keot) community. Thus, you concealed the actual fact about your caste and got appointed on probation to Assam Civil Service Class I (Junior Grade) with the help of a false caste certificate. Such activities warrant discharge of a member of the service on probation as per rule 17(c) of the Assam Civil Service (Class I) Rules, 1960. Thus, you concealed the actual fact about your caste and got appointed on probation to Assam Civil Service Class I (Junior Grade) with the help of a false caste certificate. Such activities warrant discharge of a member of the service on probation as per rule 17(c) of the Assam Civil Service (Class I) Rules, 1960. Therefore, you are hereby asked to explain within 15 days from the date of receipt of this communication as to why you should not be discharged from service under the provision of rule 17(c) of the Assam Civil Service (Class I) Rules, 1960 for submission of false Caste Certificate and concealment of facts about your actual caste." 22. Sum and substance of the allegation against the petitioner is that he actually belongs to the general "Kalita" caste and not to Scheduled Caste "Jal Keot". This fact was concealed by the petitioner and with the help of a false caste certificate he got selection and appointment to Assam Civil Service Class I (Junior Grade) under the reserve category. Such activity therefore warranted discharge of the petitioner as he was on probation. 23. This fact was concealed by the petitioner and with the help of a false caste certificate he got selection and appointment to Assam Civil Service Class I (Junior Grade) under the reserve category. Such activity therefore warranted discharge of the petitioner as he was on probation. 23. Discharge order dated 06.08.1999 reads as under :- "Whereas Shri Pranjal Das, ACS, presently Extra Assistant Commissioner, Lakhipur, Cachar, applied for Combined Competitive Examination (Main), 1996 conducted by the Assam Public Service Commission as a Scheduled Caste candidate vide his application dated 23.01.1996 and in support of his caste, he furnished a copy of the Caste Certificate dated 03.03.1994 bearing serial No. 14953 of Book No. 150 obtained from the President, Barpeta Zilla Anusuchit Jati Parishad with his above mentioned application; and Whereas he was selected for appointment in Assam Civil Service Class I (Junior Grade) under Roll No.5603 as a Scheduled Caste Reserved category candidate and was placed at serial 57 of the select list and accordingly, he was appointed on probation to Assam Civil Service Class I (Junior Grade) vide order issued under Notification No. AAR48/94/80 dated 06.05.1997 and he joined in Assam Civil Service (Junior Grade) on 15.05.1997; and Whereas an enquiry conducted about genuineness of his caste reveals that he actually belongs to General "Kalita" caste and not to Scheduled Caste (Jal Keot) community as claimed by him in his application dated 23.01.1996 to the Assam Public Service Commission on the basis of which he was selected to Assam Civil Service Class I (Junior Grade); and Whereas he got his appointment to Assam Civil Service Class I (Junior Grade) by falsely claiming to be a Reserved Category candidate belonging to Scheduled Caste; and Whereas the Govt, gave him reasonable opportunity to show cause why he should not be discharged from service under the provision of Rule 17(c) of the Assam Civil Service (Class I) Rules, 1960 for submission of false Caste Certificate and concealment of facts about his actual caste; and Whereas the Govt, after perusal of enquiry report and on perusal of the replies to the show cause have come to the definite conclusion that Shri Pranjal Das does not belong to Scheduled Caste; and Therefore, in exercising of the powers conferred by Rule 20(c) read with Rule 20(e) of the Assam Civil Services Rules, 1998, the Governor of Assam is pleased to discharge Shri Pranjal Das, ACS (on probation), Extra Assistant Commissioner, Lakhipur, Cachar from service with immediate effect." 24. A perusal of the discharge order would go to show that the Government had perused the enquiry report based on an enquiry conducted about petitioner's caste as well as the reply submitted by the petitioner to the show-cause notice and thereafter came to the conclusion that petitioner did not belong to Scheduled Caste. Therefore exercising powers conferred by Rule 20(c) read with Rule 20(e) of the Assam Civil Services Rules, 1998, the petitioner, who was then on probation, was discharged from service with immediate effect. 25. As already noticed above, the aforesaid discharge order came to be challenged before this Court by the petitioner in WP(C) No.5402/1999. By the judgment and order dated 20.06.2002, the writ petition was partly allowed by holding as follows :- "4. The arguments and counter arguments advanced by the learned counsels for the rival parties, and the wide spectrum of issues covered by such arguments, have been duly noticed. For the purpose of deciding the case it would not be necessary for the Court to travel beyond the bare minimum of the issues involved. It is well settled that if on reading an order which purports to be an order of discharge of a probationer, it can be reasonably presumed that the discharge made is by way of penalty or punishment, the judicial verdict will import the requirement of reasonable opportunity making it mandatory for the employee to provide the affected employee a fair and reasonable opportunity of showing cause. The decision of the Government as an employer to invoke the power of discharge of a probationer by having regard to relevant provisions of the Service Rules would not obviate the necessity of affording the affected employee a fair opportunity, if the order of discharge, reasonably construed, has the effect of being penal in nature. 5. Applying the aforesaid formulations of law to the facts of the present case, what is clearly and apparently discernible is that the petitioner has been discharged from service on the ground that he had falsely claimed to be a Scheduled Caste candidate and had falsely procured a certificate to the above effect. This is apparent from a reading of the show cause notice dated 14th September, 1998, and the consequential communications thereto as well as the impugned order dated 6th August, 1999. This is apparent from a reading of the show cause notice dated 14th September, 1998, and the consequential communications thereto as well as the impugned order dated 6th August, 1999. This Court has searched in vain for even a semblance of evidence pointing act that a fair opportunity was afforded to the writ petitioner prior to the impugned order. The enquiry, which was conducted was before the issuance of the show cause and therefore, must be construed to be in the nature of a preliminary enquiry. The demands made by the writ petitioner for furnishing of the statements of the Gaonbura, Mouzadar and Circle Officer would go to show that the said persons were examined in the absence of the writ petitioner. It would not be necessary to add to the list of procedural improprieties that have been occasioned in the facts of the instant case. The inevitable conclusion is that the writ petitioner has not been afforded a reasonable opportunity to defend himself. 6. Having reached the aforesaid conclusions, the next question that has to be determined is what relief/reliefs the writ petitioner would be entitled to. Obviously, the writ petitioner would be entitled to a reasonable opportunity to defend him against the charges levelled against him. For that purpose, it will be open for the Disciplinary Authority to start a proper departmental proceeding against the petitioner from the stage of submission of reply by the writ petitioner to show cause dated 14.09.1998. Such enquiry, if the Disciplinary Authority so desires, may be commenced immediately but if so commenced, it must be brought to an end within a period of three months from the date of commencement. The petitioner is yet to exonerate himself from the charges levelled against him. This Court has been informed at the Bar that the petitioner is presently out of service. Consequently, while setting aside the impugned order dated 6th August, 1999, in exercising of the extra ordinary power vested in me under Article 226 of the Constitution, I am not inclined to make any order for the reinstatement of the writ petitioner in service until he exonerates himself from the charges levelled against him. 7. The writ application is allowed to the extent indicated above." 26. 7. The writ application is allowed to the extent indicated above." 26. From a careful analysis of the above judgment, it would be evident that this Court had held the discharge of the petitioner to be by way of penalty as he was discharged from service on the ground that he had falsely claimed to be a Scheduled Caste candidate and had falsely procured a certificate to the above effect in which case it was mandatory for the employer to provide the employee a fair and reasonable opportunity of hearing. On due consideration it was held that petitioner was not afforded with a reasonable opportunity to defend himself. Consequently, the discharge order dated 06.08.1999 was set aside and quashed. While directing recommencement of the departmental proceeding against the petitioner from the stage of submission of reply by the petitioner, the Court however declined to pass any order for reinstatement of the petitioner on the ground that he was yet to exonerate himself from the charges levelled against him. 27. From the above what transpires is that the discharge order dated 06.08.1999 was quashed with direction for restarting of the departmental proceeding from the stage of submission of reply by the petitioner. 28. From the documents placed on record it is seen that Shri LN Tamuly, IAS, Secretary to the Government of Assam, Education Department was appointed as the Enquiry Officer and Shri Naresh Ch. Misra, ACS, Deputy Secretary to the Government of Assam, Personnel (A) Department was appointed as the Presenting Officer on 20.10.02. Thereafter, an enquiry was held. Seven witnesses on behalf of the disciplinary authority were examined and they were cross examined by the petitioner. Four witnesses gave evidence in addition to the petitioner himself on behalf of the petitioner. At the end of the enquiry petitioner also submitted written argument. Though no specific finding was recorded by the Enquiry Officer, from the tone and tenor of the enquiry report submitted by the Enquiry Officer on 29.04.2004 to the disciplinary authority, it would appear that the Enquiry Officer had accepted the allegation against the petitioner to be true. 29. Thereafter the disciplinary authority i.e. Commissioner and Secretary to the Government of Assam, Personnel (A) Department accepted the enquiry report and passed the impugned order dated 23.08.2006 upholding the earlier "dismissal" (sic) order dated 06.08.1999. 29. Thereafter the disciplinary authority i.e. Commissioner and Secretary to the Government of Assam, Personnel (A) Department accepted the enquiry report and passed the impugned order dated 23.08.2006 upholding the earlier "dismissal" (sic) order dated 06.08.1999. Relevant portion of the impugned order dated 23.08.2006 reads as under "Whereas, in pursuance of the Judgment and Order (Oral) dated 20.06.2002 passed in WP (C)No.5402/1999, it was decided to hold an enquiry into the charges levelled against Shri Pranjal Das, ACS (discharged) by appointment of Shri Laxmi Nath Tamuly, IAS, the then Secretary to the Govt, of Assam, Transport Department as Inquiring Authority and Shri Naresh Chandra Mistra, ACS, Deputy Secretary to the Govt, of Assam, Personnel (A) Department as Presenting Officer and accordingly they were appointed vide Order No. AAP.81/98/86 dated 30.10.2002 with direction to the Inquiring Authority to submit enquiry report within 2 (two) months; and Whereas, the Inquiring Authority submitted enquiry report vide his letter No. TPT.DP. 2/2002/Dated 29.04.2004; and Whereas, perusal of the enquiry report reveals that Shri Pranjal Das, ACS (discharged) fails to produce such records and evidences in support of his Scheduled Caste status which can warrant review of the Govt. Order discharging him from service issued vide No. AAP. 81/98/71 Dated 06.08.1998; and Whereas, after careful examination of the enquiry report of the Inquiring Authority and the materials on record it has been decided to accept the enquiry report and dispose of the Departmental Proceeding started against the petitioner i.e. Shri Pranjal Das, ACS (discharged); Therefore, the Governor of Assam is pleased to accept the enquiry report submitted by the Inquiring Authority vide letter No TPT/DP.2/2002/Dated 29.04.2004 and also to uphold the earlier dismissal order issued vide No. AAP./81/98/71 Dated 06.08.1999 and thus the departmental proceeding started against Shri Pranjal Das, ACS, (discharged) in pursuance of the Judgment and Order (Oral) Dated 20.06.2002 passed in WP (C) No.5402/99 by the Hon'ble Gauhati High Court is finally disposed of." 30. From a perusal of the impugned order dated 23.08.2006 it is seen that the disciplinary authority had accepted the enquiry report dated 29.04.2004 submitted by the Enquiry Officer opining that petitioner had failed to produce any record and evidence in support of his Scheduled Caste status and therefore the earlier discharge order dated 06.08.1999 (wrongly mentioned as dismissal order) was upheld. 31. 31. Appeal filed by the petitioner was rejected by the appellate authority vide order dated 02.07.2007 by holding that there was no fresh ground to warrant review of the impugned order dated 23.08.2006. Likewise, the appeal filed before the Assam Administrative Tribunal also ended in failure by holding that petitioner had failed to dispel the allegation brought against him. 32. Though a number of pertinent issues have arisen for consideration, an endeavour would be made to attempt answers to those issues which have a material bearing on the his. 33. First thing first, This Court in the judgment and order dated 20.06.2002 had held the order of discharge dated 06.08.1999 to be in the nature of an order imposing penalty, which would require affording of fair and reasonable opportunity of hearing to the petitioner. Since no such fair and reasonable opportunity was afforded to the petitioner, the discharge order was set aside and quashed with liberty to the respondents to recommence the departmental proceeding from the stage of submission of reply by the petitioner. 34. Since the discharge order had partaken the character of penalty, provision of Article 311(2) would be attracted. As per the said provision, no person who is a member of the civil service of a State or holds a civil post shall be dismissed or removed or reduced in rank except after holding an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. As per the first proviso, in the event punishment is proposed, it shall not be necessary to give such person any opportunity of making a representation on the penalty proposed. 35. Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 (1964 Rules) provides that no order of penalty shall be passed against a Government servant except after holding an enquiry, as far as may be, in the manner provided in Rule 9. Penalty that may be a imposed on a Government servant are mentioned in Rule 7. Though discharge per-se is not a punishment as mentioned in Rule 7, when such discharge partakes the character of penalty as held by this Court in the judgment and order dated 20.06.2002 it would amount to either removal or dismissal from service which are major penalties under Rule 7. 36. Though discharge per-se is not a punishment as mentioned in Rule 7, when such discharge partakes the character of penalty as held by this Court in the judgment and order dated 20.06.2002 it would amount to either removal or dismissal from service which are major penalties under Rule 7. 36. Reverting back to Rule 9, it lays down the procedure for holding enquiry to impose penalty on a Government servant. Though it may not be necessary to delve into detail the entire procedural frame work laid down in Rule 9, suffice it to say that definite charges has to be framed against the Government servant and while delivering the charges, a list of documents and a list of witnesses by which each article of charges is proposed to be sustained shall invariably be furnished to the Government servant. The Government servant shell I have the right to submit written statement and for that purpose entitled to inspect and take extracts of relevant official documents. The disciplinary authority if he is not satisfied with the explanation of the Government servant, may enquire into the charges either by himself or by an Enquiry Officer, in which case a Presenting Officer is to be a appointed to present the case of the disciplinary authority. All documentary and oral evidence shall be considered with right of cross examination by either side. At the conclusion of the enquiry, the Enquiry Officer shall prepare a report of the enquiry recording his findings on each of the charges together with reasons therefor. The disciplinary authority, if not the Enquiry Officer, shall consider the record of the enquiry and record its findings on each charge. 37. Following the forty second constitution amendment where after Article 311(2) stands in the present form the Supreme Court in Managing Director, ECIL Vs. B. Karunakar, (1993) 4 SCC 127 held that non-furnishing of a copy of enquiry report to the Government servant before decision is taken by the disciplinary authority to hold the Government servant guilty would amount to violation of the principles of natural justice in as much as the enquiry report is a relevant material which the disciplinary authority considers before imposing penalty. Therefore, principles of natural justice would require that the Government servant should be given opportunity to controvert the contents of the enquiry report, manner of holding the enquiry etc. Therefore, principles of natural justice would require that the Government servant should be given opportunity to controvert the contents of the enquiry report, manner of holding the enquiry etc. and thereafter the disciplinary authority should consider both the enquiry report as well as the response of the Government servant before taking a decision on the guilt or otherwise of the Government servant. This provision has now been included in Rule 9 of the 1964 Rules. 38. The procedure prescribed under Rule 9 of the 1964 Rules certainly provides for a fair and reasonable opportunity of hearing and conforms to the principles of natural justice. This Court has held in a number of decisions that the procedure prescribed under Rule 9 is of mandatory character and non-adherence thereto would vitiate the departmental proceeding. 39. Having noticed the above, Court may now consider as to whether such procedure was followed by the disciplinary authority in the present case. 40. In the show-cause notice dated 14.09.1998, though the allegation was not placed in a precise format in the form of a definite charge, from a perusal of the same it would be evident that the basic allegation against the petitioner was that he did not belong to Scheduled Caste and had got appointment to the Assam Civil Service with the help of a false caste certificate. It has already been noticed that the show cause notice was not accompanied by a statement of allegation based on which the charge was made; neither any list of witnesses nor any list of documents were annexed to the show cause notice and served upon the petitioner. A careful examination of the enquiry report would go to show that the Enquiry Officer had considered the evidence of seven prosecution witnesses in addition to four witnesses on behalf of the Government servant including himself. It further appears that a number of documents were examined by the Enquiry Officer (the Enquiry Officer referred to the joint report of the Lat Mandal and the supervisory Kanungo dated 20.10.1997 as exhibit 18, meaning thereby that at least 18 documents were exhibited). 41. These documents included several reports including the one dated 20.10.1997 as referred to above. It further appears that a number of documents were examined by the Enquiry Officer (the Enquiry Officer referred to the joint report of the Lat Mandal and the supervisory Kanungo dated 20.10.1997 as exhibit 18, meaning thereby that at least 18 documents were exhibited). 41. These documents included several reports including the one dated 20.10.1997 as referred to above. Though no specific finding was recorded by the Enquiry Officer as to whether the charge framed against the petitioner stood proved, from the tone and tenor of the enquiry report it is evident that his opinion was against the petitioner. In this he had relied upon the oral as well as documentary evidence as above. 42. It is necessary that evidence, both documentary and oral, which are sought to be relied upon in a departmental enquiry against a Government servant should be made known to him in advance so that the Government servant, who is proceeded against, is not taken by surprise. This is a facet of fair procedure and by extension a part of the principles of natural justice. Therefore, furnishing of list of documents and list of witnesses to the Government servant along with the show-cause notice is not an empty formality. It is part of the fair procedure and by extension, a part of the rules of natural justice. 43. Moving ahead, the impugned order while saying that the disciplinary authority accepted the enquiry report, there is no finding recorded by the disciplinary authority that upon acceptance of the enquiry report, the charge against the petitioner stood proved. 44. From a reading of the impugned order dated 23.08.2006 and upon consideration of the materials on record, it is evident that copy of enquiry report was not furnished to the petitioner before the disciplinary authority decided to accept the same. The enquiry report is an opinion of the Enquiry Officer which is a relevant material to be taken into consideration by the disciplinary authority before taking a decision on the charge framed against the Government servant. Decision to hold the Government servant guilty of the charge framed or not is that of the disciplinary authority. Therefore, principles of natural justice would require that before taking such a decision, copy of the enquiry report should be furnished to the Government servant with right to respond to the enquiry report. Decision to hold the Government servant guilty of the charge framed or not is that of the disciplinary authority. Therefore, principles of natural justice would require that before taking such a decision, copy of the enquiry report should be furnished to the Government servant with right to respond to the enquiry report. The Government servant would thus have an opportunity to point out in his views the mistakes or flaws in the enquiry report. Idle disciplinary authority would then consider all the materials before him, including the enquiry report and the response of the Government servant where after he would take a decision on the guilt or otherwise of the Government servant. Therefore, non-furnishing of a copy of enquiry report to the Government servant before holding him guilty would be in violation of the principles of natural justice. This was elaborately explained by the Supreme Court in Managing Director, KCIL (supra). 45. While still at the impugned order dated 23.08.2006, it is seen that the disciplinary authority had taken the view that the petitioner had failed to produce record and evidence in support of his Scheduled Caste status to warrant review of the discharge order dated 6.8.1999 and therefore the disciplinary authority upheld the earlier discharge order dated 6.8.1999. 46. Besides procedural flaws and violation of the principles of natural justice which have been discussed above, there is a fundamental error afflicting the impugned order dated 23.08.2006. The discharge order dated 06.08.1999 was set aside and quashed by this Court vide the judgment and order dated 20.06.2002. The effect of setting aside or quashing of an administrative order or a quasi-judicial order by a Court of law, in this case by a superior Court of record, would mean that such an order ceases to exist. Its existence is erased from the record book. When the High Court had set aside the discharge order, meaning thereby that it has been erased from the record book, question of upholding the same does not arise. After it was quashed, the order dated 06.08.1999 became non est; therefore there was no question of affirming or upholding the same. An order which is quashed by the superior Court of record cannot be revived by an administrative order or by a quasi-judicial order. After it was quashed, the order dated 06.08.1999 became non est; therefore there was no question of affirming or upholding the same. An order which is quashed by the superior Court of record cannot be revived by an administrative order or by a quasi-judicial order. That apart, in the judgment and order dated 20.06.2002, this Court after setting aside the discharge order gave liberty to the disciplinary authority to recommence the departmental proceeding from the stage of submission of reply by the petitioner. Therefore the view taken by the disciplinary authority that the petitioner failed to produce relevant materials to warrant review of the discharge order dated 06.08.1999 and the consequential decision to uphold the said discharge order is therefore absolutely untenable in law. 47. On the aforesaid ground itself impugned order dated 23.08.2006 cannot be sustained and is liable to be quashed. However, Court is of the view that the second limb of challenge also raises an important question for adjudication, which is required to be attended to. 48. A copy of the Scheduled Caste certificate of the petitioner has been annexed to the writ petition as annexure I. The certificate has been issued in the letter head of Assam Anusuchit Jati Parishad and is dated 3.3.94. As per the certificate, petitioner belongs to "Jal Keot" Sub-Caste which is recognised as Scheduled Caste under the Constitution of Scheduled Caste and Scheduled Tribe Order, 1950, as amended. The certificate carried the signature of Anil Kumar Das, President of Barpeta Zilla Anusuchit Jati Parishad and counter signed by the Sub-Divisional Officer (Civil), Bajali. Though Deputy Commissioner, Barpeta and Sub-Divisional Officer (Civil), Bajali are respondent Nos.2 and 3 in the writ petition, no affidavit has been filed by them though this case is pending for more than 6 years since June, 2010. On the other hand, respondent No.5 i.e. Barpeta Zilla Anusuchit Jati Parishad and respondent No.6 i.e. Chairman, Sub-Divisional Level Scheduled Caste Development Board have filed separate affidavits. In his affidavit, respondent No.5 admitted issuance of the said certificate to the petitioner after verifying the same from the record. He has categorically stated that the caste certificate of the petitioner was issued as per procedure and that the same is still in force having not been withdrawn. Subsequent President had stood by the certificate since as per record of respondent No.5, petitioner belongs to Scheduled Caste community. He has categorically stated that the caste certificate of the petitioner was issued as per procedure and that the same is still in force having not been withdrawn. Subsequent President had stood by the certificate since as per record of respondent No.5, petitioner belongs to Scheduled Caste community. Respondent No.6 in his affidavit has stated that sister of the petitioner Smti. Dimpal Das was issued Scheduled Caste certificate dated 29.01.2007 by following the proper procedure, counter signed by the Sub-Divisional Officer (Civil), Bajali. 49. Thus from the above it is seen that the Scheduled Caste certificate of the petitioner has not been withdrawn or cancelled by any authority. 50. It has also come on record that an FIR was lodged by one Shri Pradip Das, General Secretary of Barpeta Zilla Anusuchit Jati Parishad on 01.09.1997 alleging that petitioner had procured a false Scheduled Caste certificate from the above organization. On the basis of the said FIR, Patacharkuchi Police Station Case No. 197/1997 was registered u/s 419/420 IPC. Police investigated the case but found the allegation to be false as the investigating authority was convinced that petitioner belongs to Scheduled Caste "Jal Keot" community Therefore the investigating authority submitted final report dated 28.10.1998 which was accepted by the concerned Magistrate. 51. Thus from the above, it is evident that the caste certificate of the petitioner has still not been cancelled. In fact respondent Nos.5 and 6 have stated on oath that Scheduled Caste certificate was rightly issued to the petitioner who belongs to the "Jal Keot" community which is recognised as a Scheduled Caste in the State of Assam. Police investigation into the complaint against the petitioner ended in final report wherein also it was held that petitioner belongs to the Scheduled Caste. 52. Question for consideration is whether without cancellation of the Scheduled Caste certificate being held by the petitioner, is it open to the State to hold that petitioner does not belong to the Scheduled Caste ? 53. In the case of Kumari Madhuri Patil (supra), Supreme Court had laid down a detailed procedure to be followed in case of dispute relating to social status certificate like caste certificate. 53. In the case of Kumari Madhuri Patil (supra), Supreme Court had laid down a detailed procedure to be followed in case of dispute relating to social status certificate like caste certificate. In paragraph 13 of the said judgment the Supreme Court held that in case of dispute regarding genuineness of caste certificate or ineligibility of the person to hold the caste certificate, enquiry should be conducted by a scrutiny committee comprising of three officers after giving opportunity to the person concerned to show-cause. Upon such enquiry made and after considering the claims and objections, appropriate order should be passed with brief reasons in support thereof. The enquiry should be completed expeditiously and if after enquiry the scrutiny committee finds the claim of the beneficiary to be false or spurious, order should be passed cancelling the certificate. Direction was issued to all the State Governments to constitute such scrutiny committee comprising of three officers as under :- 1. An Additional or Joint Secretary or any officer higher in rank to the Director of the Department concerned; 2. Director of Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be; and 3. In the case of Scheduled Caste another officer who has intimate knowledge in the verification and issuance of social status certificates. In all, a total of 15 directions were issued by the Supreme Court in Kumari Madhuri Patil (supra). 54. The correctness of such directions was examined by a larger Bench of the Supreme Court in the subsequent case of Dayaram Vs. Sudhir Batham reported in (2012) 1 SCC 333 . Supreme Court held that all the directions barring the direction prohibiting filing of appeal to the Division Bench of a High Court against the decision of Single Bench were held not only to be valid but also laudable. 55. This Court in the case of Sushma Chetri Vs. State of Tripura, 2001 (2) GLT 215 had examined a decision of the Government of Tripura declaring the petitioner of that case to be a member of the Nepali Community and not belonging to the Lepcha community. which is a Scheduled Tribe community. Referring to the procedure laid down in Kumari Madhuri Patil (supra), it was held that the due procedure was not followed and that the declaration made by the State Government was contrary to the law laid down by the Supreme Court. which is a Scheduled Tribe community. Referring to the procedure laid down in Kumari Madhuri Patil (supra), it was held that the due procedure was not followed and that the declaration made by the State Government was contrary to the law laid down by the Supreme Court. Accordingly, the decision of the Government was set aside. 56. Again, in Bornali Deka Vs. State of Assam. WP(C) No. 6183/2012 disposed of on 28.02.2013, this Court had examined validity of termination of service of the petitioner on the ground that petitioner had secured appointment as Assistant Professor by claiming to be a Scheduled Caste candidate on the basis of fake caste certificate. On due consideration this Court held that the procedure prescribed in Kumari Madhuri Patil (supra) was not followed by the State while taking the view that the petitioner had obtained her Scheduled Caste certificate by producing misleading information. Similar view was taken by this Court in Bikash Chandra Nath Vs. Union of India, 2015(2) GLT 679: (2015) 3 GLR 657. 57. On a careful analysis of the enquiry report as well as the impugned order it is apparent that the procedure prescribed by the Supreme Court in Kumari Madhuri Patil (supra) has not been followed in the present caste. While it needs to be clarified that the Court is not entering into an examination of the genuineness or otherwise of the Scheduled Caste certificate of the petitioner or as to the entitlement of the petitioner to such certificate but at the same time without cancelling such certificate by following the procedure mandated by law, it was not open to the authorities to deny the benefit accrued on the basis of such certificate or withdraw the benefit already granted to the petitioner. If any of the authorities had any doubt about the veracity of petitioner's caste certificate, they could have scrutinised the same by following the procedure prescribed by the Supreme Court. Non-compliance to the prescribed procedure has vitiated the impugned decision. 58. Before parting with the record, there is one more aspect to which the attention of the Court has been drawn. This is regarding the manner in which the appeal of the petitioner was decided firstly by the appellate authority and thereafter by the Assam Administrative Tribunal. Non-compliance to the prescribed procedure has vitiated the impugned decision. 58. Before parting with the record, there is one more aspect to which the attention of the Court has been drawn. This is regarding the manner in which the appeal of the petitioner was decided firstly by the appellate authority and thereafter by the Assam Administrative Tribunal. Referring to the appellate order dated 02.07.2007 it is seen that the appellate authority after holding that on examination of all aspects and materials on record, no fresh ground was found to warrant a review of the Government order dated 23.8.06, rejected the appeal filed by the petitioner. A departmental proceeding against a Government servant is a quasi-judicial proceeding. Appellate stage is part of the departmental proceeding. Therefore it is all the more necessary for the appellate authority to consider all aspects of the matter judiciously which must be reflected in the appellate order. Mere saying that the appellate authority had examined all aspects of the matter and the materials on record is not adequate. The order must disclose application of mind by the appellate authority. Supreme Court has time and again reiterated in a catena of judgments the necessity and importance of giving reasons by the authority in support of its decision, which is applicable to appellate authorities with equal force if not more. It has been held that the face of an order passed by a quasi-judicial authority like the appellate authority in a departmental proceeding must speak. The affected party must know how his case or defence was considered before passing the prejudicial order. 59. Coming to the order passed by the Assam Administrative Tribunal, it was held that petitioner had failed to dispel the allegation that he had produced false caste certificate and therefore the authority was justified in discharging him from service. I am afraid the Assam Administrative Tribunal based its decision on a total misconception regarding burden of proof. Burden is on the disciplinary authority to prove the charge against the delinquent Government servant and not the other way round since the charge has been framed by the disciplinary authority. Of course the standard of proof in a departmental enquiry would not be as strict as in a criminal proceeding or in a civil proceeding. But nonetheless the charge has to be proved by the disciplinary authority. Of course the standard of proof in a departmental enquiry would not be as strict as in a criminal proceeding or in a civil proceeding. But nonetheless the charge has to be proved by the disciplinary authority. Burden is not on the delinquent Government servant to dispel the allegation or the charge. 60. However this aspect of the matter need not detain the Court as already the Court has come to the conclusion that the impugned order dated 23.08.2006 is wholly untenable and cannot be sustained in law. Accordingly the same is set aside and quashed. Petitioner shall be taken back into service at the stage which prevailed when he was discharged on 06.08.1999. However, looking to the facts and circumstances of the case Court refrains from passing any order as to back wages. 61. Writ petition is allowed but without any order as to cost.