JUDGMENT & ORDER : Ujjal Bhuyan, J. Heard Mr. A. K. Bhattacharjee, learned Senior counsel assisted by Mr. A. Choudhury, learned counsel for the petitioner; Mr. S.K. Medhi, learned Senior counsel assisted by Mr. A. Das, learned counsel for respondent Nos.1 and 2, i.e., Gauhati High Court and Mr. N. Goswami, learned Govt. Advocate, Assam for respondent Nos.3 and 4, i.e., State of Assam. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 14.06.2012 issued by the Legal Remembrancer and Secretary to the Govt. of Assam, Judicial Department removing the petitioner from Government service from the date of issuance of the said order as well as quashing of resolution of the Full Court of Gauhati High Court dated 08.06.2012, disagreement note of the Portfolio Judge dated 18.04.2012 and the enquiry report dated 15.03.2012. 3. Matter relates to imposition of the penalty of removal from service on the petitioner who was a Judicial Officer. 4. At the outset, it would be apposite to briefly narrate the relevant facts of the case which could be culled out from the writ petition as well as from the materials on record. 5. Petitioner was a member of the Assam Judicial Service. While he was serving as Counsellor, Family Court, Silchar, he was placed under suspension vide notification dated 10.05.2011 issued by the Registrar (Vigilance) of the Gauahti High Court. 6. Registrar (Vigilance) thereafter issued notice dated 22.07.2011 to the petitioner calling upon him to show-cause under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 (1964 Rules) read with Article 311 of the Constitution of India as to why any of the penalties prescribed under Rule 7 of the 1964 Rules should not be inflicted on him on the charges mentioned therein. There were five charges levelled against the petitioner which are as under:- “Charge No.I You, Shri Basab Bijoy Bhattacharjee, while working as Civil Judge and Assistant Sessions Judge, Kokrajhar, on 24.06.2010 examined 6 prosecution witnesses in your court chamber instead of court ejlash in Sessions Case No.73 of 2009 under Section 307/323 IPC and you compelled Md. Abu Sayeed Talukdar, the defence counsel for the accused Md. Mohiruddin Sheikh to cross-examine 5 prosecution witnesses out of the aforementioned 6 prosecution witnesses in your court chamber instead of court ejlash. Abu Sayeed Talukdar, the defence counsel for the accused Md. Mohiruddin Sheikh to cross-examine 5 prosecution witnesses out of the aforementioned 6 prosecution witnesses in your court chamber instead of court ejlash. The above acts on your part amounted to irresponsible and improper conduct. You, thus, acted in a manner unbecoming of a judicial officer violating the provisions of Rule 24A of the Assam Judicial Service Rules, 2003 read with appendix A of the said Rules and Rule 3 of the Central Services (Conduct) Rules, 1964. You are, therefore, charged accordingly. Charge No.II You, Shri Basab Bijoy Bhattacharjee, while working as Civil Judge and Assistant Sessions Judge, Kokrajhar, on 24.06.2010, asked Md. Abu Sayeed Talukdar, the defence counsel for the accused Md. Mohiruddin Sheikh in Sessions Case No.73/2009, under Section 307/323 IPC in your court chamber to pay rupees 2000/- and supply four Kg of Chitol fish to you for passing a judgment of acquittal of the accused Md. Mohiruddin Sheikh in the said case and further told him that on failure to meet your aforementioned illegal demand, you would convict the accused Md. Mohiruddin Sheikh. The alleged demand of bribe amounted to misconduct, lack of integrity and devotion to duty, failure to maintain professional competence in judicial administration. You thus acted in a manner unbecoming of a judicial officer violating the provisions of Rule 24A of the Assam Judicial Service Rules, 2003 read with appendix A of the said Rules and Rule 3 of the Central Civil Services (Conduct) Rules, 1964. You are, therefore, charged accordingly. Charge No.III You, Shri Basab Bijoy Bhattacharjee, while working as Civil Judge and Assistant Sessions Judge, Kokrajhar, and while hearing argument in Sessions Case No.73 of 2009 under Section 307/323 IPC, in your court chamber were found in intoxicated condition and you passed remark that you would convict the accused Md. Mohiruddin Sheikh for failure to fulfill your illegal demand of Rs.2000/- and four kg of Chitol fish and you asked Md. Abu Sayeed Talukdar, the defence counsel, to get out of your court chamber for no justifiable reason. The above acts on your part amounted to irresponsible and improper conduct, lack of integrity and devotion of duty, failure to maintain professional competence in judicial administration. Abu Sayeed Talukdar, the defence counsel, to get out of your court chamber for no justifiable reason. The above acts on your part amounted to irresponsible and improper conduct, lack of integrity and devotion of duty, failure to maintain professional competence in judicial administration. You thus acted in a manner unbecoming of a judicial officer violating the provisions of Rule 24A of the Assam Judicial Service Rules, 2003 read with appendix A of the said Rules and Rule 3 of the Central Civil Services (Conduct) Rules, 1964. You are, therefore, charged accordingly. Charge No.IV You, Shri Basab Bijoy Bhattacharjee, while working as Civil Judge and Assistant Sessions Judge, Kokrajhar, caused obtaining of name, address and signature of Md. Mohuriddin Sheikh, the accused in Sessions Case No.73 of 2009 on the prescribed format for recording statement under Section 313 Cr.PC through your Bench Assistant Shri Keshab Chandra Paul and you, instead of filling up the answers instantly in the open court in presence of the accused, you prepared the same on or about 01.01.2010 that is after pronouncement of the judgment of conviction of the accused aforenamed passed on 20.09.2010 showing the same to have been recorded on 06.09.2010 on the filled up prescribed format and you reflected in the order dated 05.09.2010 that you recorded the said statement under Section 313 Cr.PC on that day i.e., on 05.09.2010 instead of 06.09.2010 as shown in the filled in prescribed format under Section 313 Cr.PC. The above acts on your part amounted to irresponsible and improper conduct, lack of integrity and devotion of duty, failure to maintain professional competence in judicial administration. You thus acted in a manner unbecoming of a judicial officer violating the provisions of Rule 24A of the Assam Judicial Service Rules, 2003 read with appendix A of the said Rules and Rule 3 of the Central Civil Services (Conduct) Rules, 1964. You are, therefore, charged accordingly. Charge No.V You, Shri Basab Bijoy Bhattacharjee, while working as Civil Judge and Assistant Sessions Judge, Kokrajhar, on 16.11.2010 evening, visited the residence of Advocate Prasenjit Dutta and requested him to convince Advocate Abu Sayeed Talukdar the complainant herein to withdraw the complaint dated 04.10.2010 which he lodged with the Hon’ble Gauhati High Court. The above acts on your part amounted to irresponsible and improper conduct. The above acts on your part amounted to irresponsible and improper conduct. You thus acted in a manner unbecoming of a judicial officer violating the provisions of Rule 24A of the Assam Judicial Service Rules, 2003 read with appendix A of the said Rules and Rule 3 of the Central Civil Services (Conduct) Rules, 1964. You are, therefore, charged accordingly.” 7. The charge-memo was accompanied by a statement of allegation, list of witnesses and list of documents. 8. Petitioner submitted his written statement on 26.08.2011 denying all the allegations made and requested the authority to accept his written statement. 9. It appears that written statement submitted by the petitioner was not accepted by the High Court and it was decided to hold disciplinary proceeding against the petitioner. On 01.12.2011, Enquiry Officer as well as Presenting Officer were appointed. 10. After holding the enquiry, Enquiry Officer submitted his report dated 15.03.2012. As per report of the Enquiry Officer, Charge Nos. II, III, IV and V were found to be not established but Charge No.I was found to be partially established. The portion of Charge No.I, which was found to be partially established, related to recording of evidence by the petitioner of six prosecution witnesses in his chamber instead of in the open Court. 11. It appears that High Court was not satisfied with the enquiry report submitted by the Enquiry Officer and the matter was referred to the Portfolio Judge. Portfolio Judge in his note dated 18.04.2012 took the view that Enquiry Officer had applied a wrong standard of proof. According to the Portfolio Judge, finding of the Enquiry Officer in respect of Charge Nos. II to V should be rejected and those should be held to be proved. He suggested that notice be issued to the officer concerned, i.e., the petitioner to show-cause in this regard. 12. Registrar (Vigilance) by his letter dated 26.04.2012 forwarded to the petitioner a copy of the enquiry report dated 15.03.2012 and the note of the Portfolio Judge dated 18.04.2012 for his response. 13. Petitioner submitted his response on 21.05.2012 wherein he stated that Enquiry Officer had rightly held that Charge Nos. II to V were not proved. In so far Charge No.I was concerned, though Enquiry Officer had held the said charge to be partially proved, it would be evident that it was in fact not proved against him. 13. Petitioner submitted his response on 21.05.2012 wherein he stated that Enquiry Officer had rightly held that Charge Nos. II to V were not proved. In so far Charge No.I was concerned, though Enquiry Officer had held the said charge to be partially proved, it would be evident that it was in fact not proved against him. He, therefore, requested that he should be absolved of all the charges. 14. Full Court in its meeting held on 08.06.2012 resolved to impose the punishment of removal from service on the petitioner. Thereafter, Legal Remembrancer and Secretary to the Govt. of Assam, Judicial Department issued the impugned order dated 14.06.2012 removing the petitioner from service. 15. Petitioner has stated that he had filed an appeal under Rule 15 of the 1964 Rules on 10.09.2012 but he was not informed about any decision taken in the appeal. 16. Aggrieved, present writ petition has been filed. 17. This Court by order dated 19.02.2014 had admitted the writ petition for hearing. 18. Respondent Nos.1 and 2 have filed a common affidavit contesting the case of the petitioner by justifying the penalty imposed on him. The penalty was imposed after due consideration of the materials on record. All rules and procedures were followed while imposing the penalty. However, the counter is silent regarding the fate of the petitioner’s appeal. 19. Petitioner has filed rejoinder affidavit contending that he has been deprived of his livelihood without following the due process. 20. Before we proceed further, it would be appropriate to deal with the record produced by Mr. Medhi which will supplement the narration of facts as above. We find from the record that in the Administrative Committee meeting held on 04.05.2011, resolution No.4 was adopted whereby petitioner was directed to be placed under suspension with immediate effect and to draw up disciplinary proceeding against him. This decision was taken in consideration of a report dated 17.02.2011 submitted by District and Sessions Judge, Kokrajhar on a complaint lodged by one Md. Abu Sayeed Talukdar, an Advocate of Kokrajhar Bar Association against the petitioner who was then serving as Civil Judge and Assistant Sessions Judge, Kokrajhar. 21. This decision was taken in consideration of a report dated 17.02.2011 submitted by District and Sessions Judge, Kokrajhar on a complaint lodged by one Md. Abu Sayeed Talukdar, an Advocate of Kokrajhar Bar Association against the petitioner who was then serving as Civil Judge and Assistant Sessions Judge, Kokrajhar. 21. After the written statement was submitted by the petitioner, the matter was once again placed before the Administrative Committee which in its meeting held on 24.11.2011 found the written statement of the petitioner to be not satisfactory and therefore decided to initiate disciplinary proceeding against the petitioner. By the said resolution, Enquiry Officer as well as Presenting Officer were appointed. 22. After enquiry report was submitted by the Enquiry Officer, Administrative Committee in its meeting held on 04.04.2012 resolved that Portfolio Judge be requested for his opinion in the matter. 23. We have already mentioned about the note of the Portfolio Judge. After the said note was submitted, matter was again placed before the Administrative Committee in its meeting held on 24.05.2012 wherein the Administrative Committee resolved that it was in agreement with the views of the Portfolio Judge that all the charges were held to be proved. Copy of the enquiry report and the note of the Portfolio Judge were directed to be furnished to the petitioner. 24. We will advert to this resolution of the Administrative Committee in the later portion of the judgment but for the moment, we may proceed to the next meeting of the Administrative Committee held on 05.06.2012. As per additional item No.I, response of the petitioner to the enquiry report and note of the Portfolio Judge was considered and was found to be not acceptable. It was resolved that the matter may be placed before the Full Court for taking a final decision on the penalty to be awarded. 25. We have already noticed that when the matter was placed before the Full Court on 08.06.2012, the Full Court resolved to impose the punishment of removal from service on the petitioner. 26. Mr. Bhattacharjee, learned Senior counsel for the petitioner, has taken us to various provisions of the Constitution as well as to the Gauhati High Court Rules, 2015 to contend that Portfolio Judge while giving his note, virtually acted like an appellate authority, which was not justified. 26. Mr. Bhattacharjee, learned Senior counsel for the petitioner, has taken us to various provisions of the Constitution as well as to the Gauhati High Court Rules, 2015 to contend that Portfolio Judge while giving his note, virtually acted like an appellate authority, which was not justified. He also submitted that in so far matters relating to imposition of penalty is concerned, Portfolio Judge has no role to play having regard to the scheme of the Gauhati High Court Rules, more particularly, Rule 3(b) thereof. His further submission is that having regard to the facts and circumstances of the case and the report of the Enquiry Officer, imposition of the penalty of removal from service was extremely harsh causing grave prejudice to the petitioner. 26.1. His further submission is that Rule 9 of the 1964 Rules is of mandatory character and the same cannot be observed in a casual and mechanical manner. In support of his submissions, learned Senior counsel has placed reliance on the following decisions:- (1999) 3 SCC 396 = Madan Mohan Choudhury Vs. State of Bihar; (1985) 3 SCC 398 = Union of India Vs. Tulsiram Patel; 1991 Supp (2) SCC 503 = A.V. Mohal Vs. Senior Superintendent of Post Office; AIR 1972 Gau 2 = T.S. Srivastava Vs. State of Assam; AIR 1962 SC 1334 = Devendra Pratap Narayan Rai Sharma Vs. State of Uttar Pradesh; (1974) 2 SCC 831 = Samsher Singh Vs. State of Punjab. 27. On the other hand, Mr. Medhi, learned Senior counsel, representing the Gauhati High Court, while submitting the record of the case contends that conduct of the petitioner as a Judicial Officer was highly inappropriate and in the context of the charges which stood proved, imposition of the penalty of removal from service cannot be said to be disproportionate or harsh. He has placed reliance on the decision of the Supreme Court in Regional Manager, UPSRTC Vs. Hoti Lal, (2003) 3 SCC 605 , to contend that in a case of misconduct of this nature, leniency cannot be shown. 28. Submissions made by learned counsel for the parties have received the due consideration of the Court. Also perused the materials on record. The judgments cited at the Bar have also been considered. 29. Hoti Lal, (2003) 3 SCC 605 , to contend that in a case of misconduct of this nature, leniency cannot be shown. 28. Submissions made by learned counsel for the parties have received the due consideration of the Court. Also perused the materials on record. The judgments cited at the Bar have also been considered. 29. Before we proceed further, it would be useful to remind ourselves about the duties of a Judge on the administrative side and on the judicial side and how the same is to be delineated. A decision taken on the administrative side is certainly open to be scrutinized on the judicial side by invoking the power of judicial review. In Madan Mohan Choudhury (supra), Supreme Court had aptly remarked that though on the administrative side, High Court Judges might have acted as bureaucrats, once they don the robes, they forget all their previous associations and connections. The transformation is so complete and real that even though they themselves were part of the decision-making process, they quash their own administrative decisions in exercise of their power of judicial review and thus maintain the majesty and independence of the Indian judiciary in which people have always reposed tremendous faith. 30. Keeping the above in mind, we shall now proceed to deal with the case on its merit. 31. From the show-cause notice itself, it is evident that the disciplinary proceeding against the petitioner was initiated under Rule 9 of the 1964 Rules read with Article 311 of the Constitution of India. 32. Before we advert to Rule 9 of the 1964 Rules, we may briefly notice the provisions of Article 311 of the Constitution of India. For the purpose of the present case, Sub-Article (2) is relevant. At this stage, we may note that Article 311 (2) of the Constitution had undergone substantial change following the Constitution (42nd Amendment) Act, 1976. Post the said amendment, Article 311(2) reads as under:- “311. For the purpose of the present case, Sub-Article (2) is relevant. At this stage, we may note that Article 311 (2) of the Constitution had undergone substantial change following the Constitution (42nd Amendment) Act, 1976. Post the said amendment, Article 311(2) reads as under:- “311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State – (1) *** *** *** (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after 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: Provided that where it is proposed, after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: *** *** *** ***” 33. Rule 9 of the 1964 Rules lays down the procedure for imposing penalties specified in Rule 7. Sub-Rule (9) is relevant for the purpose of the present case, which is extracted hereunder:- “(9). The Disciplinary Authority shall, if it is not the Inquiring Authority, consider the record of the inquiry and record its findings on each charge.” 34. Having noticed the above, we may now proceed to the Gauhati High Court Rules, 1954, which have been framed in exercise of the powers conferred by Article 225 of the Constitution of India read with Article 6 of the Assam High Court Order, 1948. As per Rule 1 of Chapter-1, there shall be a Standing Committee consisting of the Chief Justice and such other Judge or Judges appointed from time to time by the Chief Justice which shall be called the Administrative Committee. As per Rule 2, the Administrative Committee shall be charged with the control and direction of the subordinate Courts so far as such control and direction are exercised otherwise than judicially. Rule 3 deals with the powers of the Administrative Committee. As per Rule 3(b), the Administrative Committee shall have the power to make recommendation for appointment of District and Sessions Judges, Assistant District and Sessions Judges, Munsiff and Judicial Magistrates and for their promotion, degradation, suspension or dismissal. Rule 3 deals with the powers of the Administrative Committee. As per Rule 3(b), the Administrative Committee shall have the power to make recommendation for appointment of District and Sessions Judges, Assistant District and Sessions Judges, Munsiff and Judicial Magistrates and for their promotion, degradation, suspension or dismissal. Rule 3A provides that for every district in all the States under the jurisdiction of the Gauhati High Court, there shall be a Judge-in-Charge to be nominated by the Chief Justice though the Chief Justice may nominate one Judge for more than one district or for the entire State. The duties and responsibilities of such Portfolio Judge as mentioned in Rule 3A centers around inspection of all Courts within his jurisdiction at least once in a calendar year; all administrative matters including transfer and posting of officers shall be routed through the Portfolio Judge of the concerned district; and all administrative problems of the district shall be attended to by the Portfolio Judge concerned. 35. Reverting back to Article 311(2) of the Constitution of India post 1976 amendment, it had received the attention of the Supreme Court in Union of India Vs. Md. Ramjan Khan, (1991) 1 SCC 588 and thereafter by a Constitution Bench of the Supreme Court in Managing Director, ECIL Vs. B. Karunakar, (1993) 4 SCC 727 . Supreme Court has explained that before arriving at a finding holding the delinquent guilty or otherwise, copy of the enquiry report has to be furnished to the delinquent and response of the delinquent on the enquiry report is required to be considered. However, once he is held guilty, thereafter no fresh notice is required to be issued to the delinquent on the question of imposition of penalty. In Managing Director, ECIL (supra), it was stated thus:- “26. The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the enquiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the enquiry officer along with the evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the enquiry officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the enquiry officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the enquiry officer's findings. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it.” 36. This aspect of the matter was gone into by this Bench in the recent case of Foyez Uddin Ahmed Laskar Vs. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it.” 36. This aspect of the matter was gone into by this Bench in the recent case of Foyez Uddin Ahmed Laskar Vs. Gauhati High Court, (2017) 3 GLR 262. After carefully considering various decisions on this issue including the two Supreme Court judgments as referred to above, it was held that before the disciplinary authority comes to its own conclusion whether to accept the enquiry report or not, the delinquent should have an opportunity to reply to the enquiry officer’s finding. Thereafter, the disciplinary authority is required to consider the evidence on record, report of the Enquiry Officer and representation of the delinquent. It was held that view of the Enquiry Officer is not final. Final decision has to be taken by the disciplinary authority. Report of the Enquiry Officer is one of the material documents to be taken into consideration by the disciplinary authority before accepting the guilt or otherwise of the delinquent. It was held as under:- “22. In other words, the requirement of law is that before a decision is taken by the disciplinary authority whether the enquiry report has to be accepted or not, the delinquent has to be given a chance to make a representation against the report submitted by the Enquiry Officer. After all, report of the Enquiry Officer is one of the material documents to be taken into consideration by the disciplinary authority before accepting the guilt or otherwise of the delinquent. Therefore, as explained in Utpal Rajkonwar (supra), principles of natural justice require that before such decision is taken the delinquent is required to be afforded an opportunity to make his statement by way of representation on such report. Thereafter, it is for the disciplinary authority on the basis of the materials on record, including the enquiry report and the response of the delinquent, to take a decision as to whether the delinquent is guilty or not. Once the disciplinary authority holds the delinquent to be guilty of misconduct and decides to impose penalty, no fresh show cause notice is required to be given to the delinquent on the point of penalty.” 37. Having noticed the above, we may now examine the decision making process firstly by the Administrative Committee and thereafter by the Full Court. 38. Once the disciplinary authority holds the delinquent to be guilty of misconduct and decides to impose penalty, no fresh show cause notice is required to be given to the delinquent on the point of penalty.” 37. Having noticed the above, we may now examine the decision making process firstly by the Administrative Committee and thereafter by the Full Court. 38. As per resolution No.4 of the meeting held on 04.05.2011, Administrative Committee in consideration of the report of the District and Sessions Judge, Kokrajhar on a complaint lodged by Shri Abu Sayeed Talukdar, Advocate of Kokrajhar Bar Association, resolved to place the petitioner under suspension and to draw up disciplinary proceeding against him. In its meeting held on 24.11.2011, the Administrative Committee found the written statement of the petitioner to be not satisfactory and decided to initiate disciplinary proceeding against him, appointing Enquiry Officer and Presenting Officer. After the Enquiry Officer submitted his report, it was placed before the Administrative Committee in its meeting held on 04.04.2012. Administrative Committee resolved that Portfolio Judge may be requested for his opinion in the matter. 39. After the Portfolio Judge submitted his note, Administrative Committee in its meeting held on 25.04.2012 resolved as under:- “The Administrative Committee is in agreement with the opinion of the Hon’ble Mr. Justice * * * * that all the charges are held to be proved. A copy of the Enquiry Report and the note of Hon’ble Mr. Justice * * * * be furnished to the officer for his response.” 39.1. In other words, Administrative Committee agreed with the views of the Portfolio Judge that all the charges were held to be proved. 40. When the petitioner submitted his response, Administrative Committee in its meeting held on 05.06.2012 adopted the following resolution:- “The reply submitted by the officer is found to be not acceptable. The matter may be placed before the Full Court for taking a final decision on the penalty to be awarded. 40.1. A careful analysis of the above resolution adopted would indicate that the Administrative Committee found the reply of the petitioner to be not acceptable and resolved that the matter should be placed before the Full Court for taking a final decision on the penalty to be awarded. 41. 40.1. A careful analysis of the above resolution adopted would indicate that the Administrative Committee found the reply of the petitioner to be not acceptable and resolved that the matter should be placed before the Full Court for taking a final decision on the penalty to be awarded. 41. The Full Court in its meeting held on 08.06.2012 adopted the following resolution:- “The Full Court resolves to impose punishment of removal from service of Shri B.B. Bhattacharjee, Counsellor (under suspension), Family Court, Cachar, Silchar.” 41.1. In other words, the Full Court resolved to impose the penalty of removal from service on the petitioner. 42. A conjoint reading of the aforesaid resolutions of the Administrative Committee as well as of the Full Court would go to show that the Administrative Committee had agreed with the views of the Portfolio Judge that all the charges were held to be proved. It was thereafter decided to furnish copies of the enquiry report and the note of the Portfolio Judge to the petitioner. The implication of the above decision is subtle yet significant. It was one thing for the Administrative Committee to have said that it agreed with the views of the Portfolio Judge and thereafter furnishing copies of the enquiry report and the note of the Portfolio Judge to the petitioner but it was an altogether different thing for the Administrative Committee to have said that it agreed with the views of the Portfolio Judge that all the charges were held to be proved and thereafter furnishing copies to the petitioner. This is contrary to the law laid down by the Supreme Court in Ramjan Khan (supra), Managing Director, ECIL (supra) and by this Court in Foyez Uddin Ahmed Laskar (supra). Before considering the response of the petitioner to the enquiry report as well as to the note of the Portfolio Judge, the Administrative Committee had already taken the decision that the charges against the petitioner stood proved. This was in violation of the principles of natural justice as explained in the above decisions. 43. Proceeding to Rule 9(9) of the 1964 Rules, which has been extracted above, we find that it is couched in mandatory language. It says that the disciplinary authority shall, if it is not the inquiring authority, consider the record of enquiry and record its findings on each charge. 43. Proceeding to Rule 9(9) of the 1964 Rules, which has been extracted above, we find that it is couched in mandatory language. It says that the disciplinary authority shall, if it is not the inquiring authority, consider the record of enquiry and record its findings on each charge. The use of the word “shall” is indicative of the mandatory nature of the provision. Learned author Justice G.P. Singh in his seminal work Principles of Statutory Interpretation, 14th Edition, has explained that use of the word “shall” raises a presumption that the particular provision is imperative. Referring to various Supreme Court decisions, he has stated that the word “shall” is ordinarily mandatory but sometimes, taking into account the context or the intention, it can be held to be directory. However, this issue is no longer res-integra as imperativeness of the above provision has been judicially acknowledged. A Special Bench of this Court comprising three learned Judges in T.S. Srivastava (supra), had examined the provisions of Rule 9 of the 1964 Rules, including Sub-Rule (9), and thereafter held that the procedure laid down under Rule 9 is a mandatory procedure and any violation of the Rule will vitiate the enquiry. These Rules have been made in order to ensure security of service and cannot be allowed to be bypassed or observed in a casual and mechanical manner. These are not merely ceremonial adornment in print but are meant to be properly and positively observed. The legal position that Rule 9 of the 1964 Rules is of mandatory character have been consistently followed by this Court since then. In Renu Barman Vs. State of Assam, 2010 (3) GLT 552, a Division Bench of this Court has held that neither the penalty of removal nor that of dismissal can be imposed without adherence to the procedure obligated under Rule 9 of the 1964 Rules. Rule 9(9) of the 1964 Rules, which is of mandatory character, requires consideration of the record of enquiry and recording of finding on each charge by the disciplinary authority, if it is not the inquiring authority. In the instant case, there were altogether 5 charges against the petitioner and finding on each of the charges was required to be recorded by the disciplinary authority. In the instant case, there were altogether 5 charges against the petitioner and finding on each of the charges was required to be recorded by the disciplinary authority. Instead, what we notice is that initially the Administrative Committee held all the charges against the petitioner to be proved; thereafter copies of the enquiry report with the note of the Portfolio Judge were forwarded to the petitioner; after the response of the petitioner was received, it was found to be not acceptable and the matter was forwarded to the Full Court for taking a final decision on the penalty to be awarded. The Full Court then decided to impose the penalty of removal from service on the petitioner. Thus, no finding was recorded on any of the charges framed against the petitioner which is violative of Rule 9(9) of the 1964 Rules. 44. Before parting with the record, there is one more aspect which we would like to deal with. 45. We have already extracted the resolutions of the Administrative Committee and that of the Full Court. We may now advert to the impugned order passed by the Government on 14.06.2012 which is extracted hereunder:- “No.JDJ.181/2012/2: On the recommendation of the Hon’ble Gauhati High Court communicated by the Registrar (Vigilance), Gauhati High Court, Guwahati vide his letter No.HC.XV.05/2011/309/RV dated 13.06.2012, the Governor of Assam is pleased to remove Shri Basab Bijoy Bhattacharjee, Counsellor (under suspension), Family Court, Cachar, Silchar, from Government service with effect from the date of issuance of this order.” 46. This order simply says that on the recommendation of the Gauhati High Court, Governor of Assam was pleased to remove the petitioner from Government service. 47. Right through the decisions of the Administrative Committee, Full Court and the impugned order passed by the Government, no reasons are discernible as to why the penalty of removal from service was imposed on the petitioner. First of all, the decision to hold the delinquent guilty or not has to be that of the disciplinary authority. Enquiry report or disagreement note are relevant materials to be considered by the disciplinary authority along with the response of the delinquent and record of enquiry before arriving at a decision to hold the delinquent guilty or not. If the decision is arrived at to hold the delinquent guilty, the further requirement of law is that charge wise finding must be recorded by the disciplinary authority. If the decision is arrived at to hold the delinquent guilty, the further requirement of law is that charge wise finding must be recorded by the disciplinary authority. It is only thereafter that punishment would follow for which no further notice would be required. In the present case, there is no speaking order explaining or giving reasons as to why petitioner was found guilty and as to why the penalty of removal from service was imposed on the petitioner. 48. Supreme Court in a catena of decisions has reiterated time and again the necessity and importance of giving reasons by the authority in support of its decision. It has been held that the face of an order passed by a quasi-judicial authority or even by an administrative authority affecting the rights of parties must speak. The affected party must know how his case or defence was considered before passing the prejudicial order. This would be applicable with more vigour in the case of orders imposing penalty because such orders are appealable orders and in the absence of any reasons recorded, appellate authority would not be in a position to deal with the challenge made to the order of penalty in the appeal. It goes without saying that reasons are live links between the mind of the decision making authority to the controversy in question and the decision or conclusion arrived at. Failure to give reasons amounts to denial of justice. In East Coast Railway Vs. Mahadev Appa Rao, (2010) 7 SCC 678 , Supreme Court has said absence of reasons either in the order passed by the authority or in the record contemporaneously maintained is clearly suggestive of the order being arbitrary and hence legally unsustainable. Order of penalty should be a speaking order, whether it is in respect of a grade IV employee or a judicial officer. In other words, the order should speak for itself. 49. In the instant case, all that is discernible is that Administrative Committee had agreed with the views of the Portfolio Judge that all the charges were held to be proved; response of the petitioner was not satisfactory and referred the matter to the Full Court for a decision on penalty whereafter the Full Court awarded the penalty of removal from service. Is this enough? Certainly not. 50. Is this enough? Certainly not. 50. Having noticed the multiple legal lacunae afflicting the decision making process rendering the same legally unsustainable, we feel that it would meet the ends of justice if the matter is remanded back to the Administrative Committee for a fresh decision in accordance with law and having regard to the discussions made above. 51. Consequently, impugned order dated 14.06.2012; Administrative Committee decisions dated 25.04.2012 and 05.06.2012; and the Full Court decision dated 08.06.2012 are set aside. Upon setting aside of the order of removal of the petitioner from service, since petitioner was under order of suspension, his suspension would stand revived and he would be treated to be under suspension. Resultantly, he would be entitled to the subsistence allowance due to him as per law from 14.06.2012 till such decision is taken by the Administrative Committee. Subsistence allowance, both arrear and current, be released to the petitioner within 60 days of receipt of this order. 52. Writ petition is accordingly allowed to the extent indicated above but without any order as to cost. 53. Record produced by Mr. Medhi is returned back.