JUDGMENT AND ORDER : Hrishikesh Roy, J. Heard Mr. B.D. Konwar, learned Senior counsel appearing for the appellant (writ petitioner). Life Insurance Corporation of India (hereinafter to be referred to as the LIC) and their Officers are represented by the learned Advocate, Mr. S Nath. 2. This matter pertains to a disciplinary proceeding against an Assistant in the Tinsukia Branch of the LIC. The disciplinary action was started under Regulations 39 of the LIC of India (Staff) Regulations 1960 (hereinafter referred to as “the LIC Regulation”) and the charge memorandum (Annexure-40) reflected that the Assistant had unauthorizedly absented himself from duty since 06.09.2004, without sanctioned leave and without any information to his Office. A preliminary enquiry into the charge was conducted on 28.10.2010 but in the said proceeding, the delinquent was absent. However, no conclusive finding on the charge was given in the preliminary enquiry and all that recorded was that the Presenting Officer was able to prove the documents, connected with the charge memo (Annexure-41). 3. Subsequently, enquiries were scheduled on 23.11.2010 and on 15.12.2010 but on those dates also, the delinquent remained absent and thus no conclusive finding could be given by the Enquiry Officer. 4. Following the above deliberations, the so called enquiry reports of 28.10.2010, 23.11.2010 and 15.12.2010 were forwarded to the delinquent for his comments on 28.01.2011 (Annexure-43). 5. The delinquent in his response dated 18.02.2011 (Annexure-44), firstly indicated the reasons for his inability to be present before the Enquiry Committee on 18.02.2011. He also claimed that he has not been furnished with the documents to enable him to defend the charge. Thus, request was made to the authorities for the relevant documents, in order to ensure that a fair proceeding is conducted against him. 6. Whether any enquiry was held thereafter is not very clear from the case papers but it will be appropriate to take note and extract the minutes of the enquiry proceeding held on 29.08.2011 since they have a bearing for the present discussion:- ‘Re: Minutes of Preliminary Hearing in the course of Enquiry Proceedings which was held on 29.08.2011 at LIC of India, Jorhat Divisional Office, in connection with the Disciplinary Proceeding against Sri BC Sarmah, Assistant Tinsukia BO, SR No.338233 vide Charge Sheet Cum Show Cause Notice dated 12.01.2008. (1) The Preliminary hearing in connection with the above was held today i.e. 29.08.2011 at the LIC of India, Jorhat Divisional Office Premises as scheduled from 11.00 A.M. At the outset the B.O. requested the P.O to present the case on behalf of the corporation. (2) Then the PO asked the CSF, whether he has received the Charge Sheet Cum Show Cause Notice dated 12.01.2008 and out letter JDO/DTC/2011-12 dated 12.08.2014. The CSE replied that he has received the same sent through the messengers from LICI but has not received any communications sent through Post Office. (3) Then the PO asked CSE whether he has received the following letters/communication regarding his auauthoised absence as per the above Charge Sheet Cum Show Cause Notice sent to him by LICI, Jorhat Division P & IR Deptt. on different occasions: (1) JDO/P&IR/UA letter dated 07.04.2007 (Exht.-1) (2) JDO/P&IR/UA letter dated 11.05.2007 (Exht.-2) (3) JDO/P&IR/UA letter dated 05.06.2007 (Exht.-3) (4) JDO/P&IR/UA letter (reminder-1) dated 27.07.2007 (Exht.-4) (5) JDO/P&IR/UA letter (reminder-3) dated 21.08.2007 (Exht.-5) (Redgt.No.3857 dated 23.08.2007) But the CSE replied that he has not received any of the above letters/communications. (4) Then the PO asked the CSE whether he has submitted any letter or correspondence regarding his alleged unauthorized absence to the concerned authority. The CSE replied that he had submitted one representation seeking permission to report in his duty on 06.09.2004 to the Br. Manager, Tinsukia BO personally through the then AAO Sri Anjan Majumdar but expressed his inability to produce a copy of the same during the time of the hearing. However he informed that he will send a copy of the same by FAX immediately. (5) Then the PO asked the CSE if he like to submit any other documents/papers in support of his defence. The CSE then produced a representation dated 29.08.2011 in reply to the Charge-Sheet cum Show Case Notice through the EO. (6) Then the PO handed over the letters noted at para no.3 above to the CSE under proper acknowledgement. (7) Then the EO asked the CSE whether he admits the charges leveled against him vide the Charge Sheet Cum Show Cause Notice dated 12.01.2008. To this the CSE declined to admit the charges. The EO then announced the proceedings to be over at 12-15 PM dated 29.08.2011. (7) Then the EO asked the CSE whether he admits the charges leveled against him vide the Charge Sheet Cum Show Cause Notice dated 12.01.2008. To this the CSE declined to admit the charges. The EO then announced the proceedings to be over at 12-15 PM dated 29.08.2011. Enquiry Officer Principal (DTC) SR No.325786 Presenting Officer AO, Zone, Cell, (J&HPF) SR No.330218 Charge Sheeted Employee (CSE) Sri Bharat Chandra Sarmah, Assistant, SR No. 338233 7. Thereafter comments of the delinquent on the enquiry report was sought, under the covering letter of 02.09.2011 (Annexure-48) and although the delinquent denied the charge of unauthorized absence in his response of 16.09.2011 (Annexure-49), the penalty of removal from service was imposed against him on 29.02.2012 (Annexure-50), by the disciplinary authority. The order reflects that the forwarding letter of 02.09.2011 was treated to be the enquiry report by the Divisional Manager, when he noted that the charges are established against the delinquent. 8. Consequently, the Disciplinary Authority (respondent No.4) upon finding the appellant guilty of the charges levelled against him removed him from service vide order dated 29.02.2012. The appellant then filed an appeal before the Appellate Authority (respondent No.2) on 21.06.2012 (Annexure-56), which however was not considered and disposed by the said authority for quite some time. Therefore, the appellant initiated the WP(C) No.3853/2012 before this Court challenging his removal as well as the non-disposal of his appeal. However during the pendency of the aforesaid writ petition, the Appellate Authority vide order dated 05.12.2012 (Annexure-61) rejected the appeal filed by the appellant and thus the WP(C) No.641/2013 challenging the order of removal and rejection of the departmental appeal was filed again by the appellant. It may also be noticed that the earlier writ petition i.e. WP(C) No.3853/2012 having become infructuous was dismissed as not pressed by the learned Single Judge in the order impugned by the appellant. 9. The appellant contends that no conclusive finding was reached on the charge of unauthorized absence but surprisingly the forwarding letter of 02.09.2011 was mistakenly treated to be the enquiry finding. If this error is overlooked for the moment and we examine the minutes of the enquiry proceeding recorded on 29.08.2011 (presumed to be the relevant material),it is clear enough from the quoted minutes that, no conclusion was reached on 29.08.2011 (Annexure-47), by the Enquiry Officer. 10. If this error is overlooked for the moment and we examine the minutes of the enquiry proceeding recorded on 29.08.2011 (presumed to be the relevant material),it is clear enough from the quoted minutes that, no conclusion was reached on 29.08.2011 (Annexure-47), by the Enquiry Officer. 10. The Court therefore desired to know whether any conclusion was reached in any other proceeding on the charges leveled against the delinquent. But the learned Advocate, Mr. S. Nath submits that apart from the forwarding letter of 02.09.2011, the enquiry minutes of 29.08.2011 and the preliminary report dated 28.10.2010, there is no other material on the basis of which, the disciplinary action can relate to. 11. However, the learned counsel submits that since the charge is abandonment of post by the employee, action can be taken by the disciplinary authority without taking recourse to the requirement of Regulation 39(2) of the LIC Regulations. 12. Under the Regulation 39(4)(III) of the LIC Regulations, when a LIC employee abandons his post or overstays his leave for a continuous period of 90 days without intimation to the employer, disciplinary action can be taken against him but even then, a fair conclusion on abandonment of post without authorization, must be reached with reference to relevant materials. But what is glaring here is that no conclusion was reached on the charges, in any of the proceedings, preliminary or otherwise. 13. Most surprisingly, the disciplinary authority refers to the forwarding letter of 02.09.2011 to justify his disciplinary action without being conscious that this was not the enquiry report. Therefore non-application of mind is clearly noticed. Thus the want of fairness in the proceeding in the disciplinary action can be logically concluded. 14. Nevertheless, the learned Single Judge declined to interfere with the disciplinary action by referring to the wide power of the employer under Regulation 39(4)(III) but in the process, it was overlooked that no conclusive finding on the charges, was ever recorded against the delinquent, by any of the Enquiry Officers. 15. When charges are leveled against an employee, it is the responsibility of the disciplinary authority to prove the charge but we find that the burden of proof was wrongly shifted to the delinquent in the impugned judgment. 15. When charges are leveled against an employee, it is the responsibility of the disciplinary authority to prove the charge but we find that the burden of proof was wrongly shifted to the delinquent in the impugned judgment. According to the learned Judge, the delinquent should have proved that he did not unauthorizedly absented himself from duty but this approach cannot be accepted since the burden to establish the charge, is surely on the authority who levels the charge. 16. No doubt maintenance of discipline is important in an organization and punishment for unauthorized absence is permitted by the Regulations, but it cannot be overlooked that the disciplinary action must be taken only through due process. When charges are leveled it must be proved through due process and in absence of any adverse findings, the disciplinary action cannot be supported, even for long unauthorized absence. 17. In view of the above discussion, we find merit in the challenge of the delinquent to the disciplinary action and accordingly the Writ Appeal is allowed. The impugned judgment of 06.01.2015 is thus set aside and quashed. Needless to say, the impugned order of removal dated 29.02.2012 (Annexure-50) as well as the order dated 05.12.2012 (Annexure-61) passed by the Appellate Authority affirming the order of removal, are also hereby set aside. The appellant is directed to be reinstated in service but without any back wages. Liberty however is given to the employer to conduct a proper enquiry into the charge with opportunity to the delinquent. Subject to the findings of the enquiry, further action may be taken. It is ordered accordingly. 18. With the above order, the case is disposed of. No costs.