JUDGMENT AND ORDER : 1. Heard Mr. SK Barkataki, learned counsel for the petitioner and Mr. M Choudhury, learned counsel for the respondents. 2. The case of the writ petitioner in brief is that he was serving as Senior Field Assistant under the Assam Mineral Development Corporation and after rendering about 23 years of service, he was dismissed from service on 12.3.2010 after departmental proceeding was drawn against him. 3. The facts leading to his termination is that a show cause notice vide Memo No. AMDC/ET/93/2267 dated 24.1.2008 was issued to the petitioner and thereafter another show cause notice vide Memo No.AMDC/ET/93/949 dated 10.7.2008 (Annexure-1) was issued to him under Rule 9 of the Assam Services (Disciplines and Appeals) Rules 1964 read with Section 311 of the Constitution of India asking him to show cause as to why the penalty prescribed in Rule 7 of the aforesaid Rules should not be inflicted upon him on the following charges- “That on 12th June, 2008 you entered into the office chamber of the Managing Director, Assam Mineral Development Corporation at about 11 a.m. without permission and charged MD why your application for CPF advance had not been forwarded to the office of the RCPF till date and misbehaved the MD in presence of the Office Superintendent and a Senior Assistant who were present in the MD’s chamber for a discussion on certain official matters during that time. You also threatened the MD that in case the application is not forwarded within that day the MD will have to face serious consequence. While going out from the MD’s chamber you involved in altercation with some other employees of the corporation and left the office premises. Then after few minutes you again entered into the office campus with an iron rod in you hand and created a panicky situation in the office premises. However, one of the Security personnel of the office along with one other senior employee of the Corporation snatched away the iron rod from your hands. Thos acts of yours amounts to major misconduct, indiscipline, and lack of integrity on your part. You are, therefore, charged with misconduct, indiscipline and lack of integrity. “The petitioner was thus asked to submit his written statement in defence within 10 days from the date of receipt of the communication. 4. Thos acts of yours amounts to major misconduct, indiscipline, and lack of integrity on your part. You are, therefore, charged with misconduct, indiscipline and lack of integrity. “The petitioner was thus asked to submit his written statement in defence within 10 days from the date of receipt of the communication. 4. Against the show cause notice dated 10.7.2008, petitioner filed his reply on 25.7.2008 explaining and justifying the charge made against him. The respondent authorities having not accepted his reply constituted an Enquiry Committee vide office order dated 27.1.2009 (Annexure-IV) comprising of two members to conduct enquiry on the allegations made out against the writ petitioner. 5. Consequently, the enquiry committee upon concluding the enquiry submitted their report and the petitioner was given a copy of the report vide communication dated 4.2.2010 (Annexure-V) asking him to submit his representation against the enquiry report within a period of 10 days from the date of receipt of the same. The petitioner upon receipt of the same on 8.2.2010 requested respondent No. 3 to furnish him the statements of the 13 witnesses who were examined during the enquiry proceeding and accordingly on 9.2.2010 (Annexure-VI), the petitioner was furnished with the same. 6. The petitioner then submitted his reply against the enquiry report on 15.2.2010 (Annexure-VII) to the respondent No.3 stating that the charge against the first show cause notice that he did not join the Garampani Coal Extraction Project despite being directed was already clarified by him before the enquiry Committee who admitted the same to be true at paragraph No.2 of page 3 of the enquiry report and therefore he had nothing to say any further. As for the charges made out against him in the second show cause notice, the petitioner stated that he was compelled to take such action in the given situation and therefore begged that he be excused and requested that he be allowed to continue with his service. 7. However, respondent No. 3 not being satisfied with his reply served the petitioner a notice on 02.03.2010 (Annexure-IX) under Rule 10(i) (b) of the Assam Services (Discipline and Appeal) Rules, 1964, asking him to make a representation within 7 days on the proposed penalty of termination from service to which he submitted his representation on 9.3.2010. However, vide order dated 12.3.2010 (Annexure-X), the petitioner was dismissed from service with immediate effect. 8. However, vide order dated 12.3.2010 (Annexure-X), the petitioner was dismissed from service with immediate effect. 8. Against his dismissal, the petitioner preferred an appeal before the Principal Secretary, Mines and Mineral Department, Government of Assam as well as respondent No.2. On 6.4.2010 (Annexure-XI). But, however, his appeal not being considered, the petitioner has filed the instant writ petition. 9. Appearing for the writ petitioner, Mr. SK Barkataki, learned counsel for the petitioner submits that the petitioner has rendered more than 23 years of service under the respondent authorities and considering the charges levelled against him and said to have been proved, penalty of dismissal from service imposed upon him is highly excessive and disproportionate. He submits that the petitioner was in urgent need of money for the treatment of his ailing wife at the relevant time and for which he submitted an application on 13.5.2008 asking for advance from his own Contributory Provident Fund (CPF) from the respondent No.3. However, upon approaching the respondent No. 3 on 12.6.2008, he came to learn that his application for CPF advance was not yet processed and therefore the petitioner was deeply annoyed coupled with the fact that staffs of the respondent No.3 harassed him as well, he rebuked the respondent No.3 as well as the staffs present. He submits that even if the action of the petitioner was not found to be justified, dismissing him from service is too harsh a punishment and not commensurate to the charge. 10. Mr. SK Barkataki submits that since an FIR was lodged due to the incident, charge was framed against him by the criminal court under Section 448/353/290/506 IPC and after trial, the Court came to the conclusion that he was liable to be convicted only under Section 290 of the IPC while acquitting him from the charge under Section 448/353/506 IPC. Considering his non-involvement in any previous crime, a lenient view was taken and he was released after admonition under the Probation of the Offenders Act, 1958. He therefore submits when the criminal court had shown him leniency, the respondent authorities also ought not to have imposed upon him the ultimate punishment of dismissal from service for the same charge. Considering his non-involvement in any previous crime, a lenient view was taken and he was released after admonition under the Probation of the Offenders Act, 1958. He therefore submits when the criminal court had shown him leniency, the respondent authorities also ought not to have imposed upon him the ultimate punishment of dismissal from service for the same charge. He submits that in fact all the prosecution witnesses in the criminal trial were the staffs of the respondent No.3 and therefore, the trial itself cannot be said to have been conducted in a free and fair manner. He however admits that no appeal has been preferred against the order of the criminal court. Mr. SK Barkataki under such circumstances, submits that the petitioner should have been given another chance instead of dismissing him from service. 11. Mr. SK Barkataki in support of his submissions relies upon the decision of this Court rendered in the case of the Dilip Shah –vs- Union of India & Ors and 2 Ors which is registered as WP ( C) No. 5891 of 2016. He submits that by the said decision, this Court had remanded the case back to the respondent authorities for imposing a penalty other than dismissal or removal from service upon the petitioner therein who was removed from service on the charge of committing bigamy. 12. Mr. SK Barkataki further relies upon the case of Sukvinder Singh –vs- Union of India & Ors reported in 1999 (3) GLT 551 wherein this Court had directed re-instatement of the petitioner therein considering the petitioner had rendered about 11 years of service. The petitioner therein was dismissed from service for disorderly conduct and for being in an inebriated state. 50% of backwages was also given to him by the Court. The learned counsel therefore submits that considering the nature of the case, made out against the instant writ petitioner, he deserves to be considered for re-instatement while being given a lesser punishment. 13. The learned counsel Mr. M Choudhury appearing for the respondents submits that the petitioner although appointed as Field Assistant under the respondent corporation has hardly served in field areas since his appointment. The petitioner for one pretext or the other had always avoided his transfer. 13. The learned counsel Mr. M Choudhury appearing for the respondents submits that the petitioner although appointed as Field Assistant under the respondent corporation has hardly served in field areas since his appointment. The petitioner for one pretext or the other had always avoided his transfer. The petitioner was transferred and released from the Head Office of the Corporation at Guwahati Vide Office order dated 15.9.2007 to Garampani Coal Extraction Project with its Headquarter at North Cachar Hills District . However, the petitioner did not join and submitted application on 27.9.2007 praying for Earned Leave w.e.f. 16.9.2007 to 16.11.2007 on personal ground without indicating any specific reason. Although the petitioner was informed that he could not be granted leave, he again submitted an application on 29.9.2007 praying for two months leave due to the ongoing half yearly examination of his children and for the treatment of his wife. The petitioner was then informed vide communication dated 11.9.2007 that leave could not be granted to him and the same may however be considered once he joined the new place of posting. The petitioner having failed to join his posting place w.e.f. 16.9.2007, the respondent authorities decided to issue a show cause notice to him on 24.1.2008. Before the proceedings could be completed, another show cause notice was issued to him on 10.7.2008 due to his mis-conduct and mis- behaviour against the respondent No.3 and his staffs on 12.6.2008. The petitioner not only threatened and abused the respondent No.3 but also created a panicky situation by holding a piece of iron rod in the office premises of the respondent No.3 while shouting and abusing his staffs. The respondent authorities therefore decided to appoint a two member enquiry committee to look into the separate charges against the writ petitioner and after following due process, it was found that the petitioner was guilty of the charge, and the petitioner was therefore dismissed from service. He thus submits that the conduct of the petitioner coupled with the fact that the charges were proved, warranted his dismissal from service and the same cannot be termed to be disproportionate or excessive considering the misconduct and charge. 14. Mr. Choudhury in support of his submissions relies upon the decision of the Apex Court rendered in the case of Haryana Financial Corporation & anr. 14. Mr. Choudhury in support of his submissions relies upon the decision of the Apex Court rendered in the case of Haryana Financial Corporation & anr. –vs- Kailash Chandra Ahuja reported in (2008) 9 SCC 31 wherein it was held that in the absence of any prejudice caused to the delinquent employee, Court would not interfere in the quantum of punishment imposed upon such employee. He further relies upon the decision of the Apex Court in the case of State Bank of Patiala & Ors –vs- S.K. Sharma reported in (1996) 3 SCC 364 whereby it was held that when there are no expressed provision in the rules governing the employee, there is no question of giving an opportunity to the employee. Mr. M Choudhury further relies upon the decision of this Court in a case of Md. Rustom Ali –vs- State of Assam & Ors reported in 2004 ( 1 ) GLR 296 to contend that when no prejudice is even remotely pleaded, the question of violation of the principle of natural justice will not arise. He further submits that in the case of Deputy Commissioner Kendriya Vidyalaya Sangathan & Ors. –vs- J Hussain reported in (2013) 10 SCC 106 to contend that court would not interfere with the quantum of punishment imposed upon the employee unless such penalty shocks the judicial conscience of the Court and that even if it is found to be highly excessive, Court would refrain from passing any penalty of modification. He suggested that even if the Court found that the penalty imposed upon the employee is highly excessive, the same should be left to the authority concerned to consider as to what penalty should be imposed upon the delinquent employee. He therefore submits that considering the facts at hand, the interference of this Court is not called for. The learned counsel further relies upon the case of Ajit Singh Nag –vs- General Manager (PJ), Indian Oil Corpn. Ltd. Haldia & Ors. reported in (2005) 7 SCC 764 that acquittal of a criminal Court would not debar the employee from exercising its power departmentally in accordance with the rules and regulation in force. The criminal trial and departmental proceedings are two distinct proceedings wherein the Rule for appreciation of evidence are not similar. Ltd. Haldia & Ors. reported in (2005) 7 SCC 764 that acquittal of a criminal Court would not debar the employee from exercising its power departmentally in accordance with the rules and regulation in force. The criminal trial and departmental proceedings are two distinct proceedings wherein the Rule for appreciation of evidence are not similar. In a criminal proceeding, the accused has to be proven guilty beyond reasonable doubt whereas in a departmental proceeding a preponderance of probability would suffice to penalise the delinquent employee. The learned counsel by relying upon the case of State Bank of India –vs- Ram lal Bhaskar reported in (2011) 10 SCC 249 submits that so long as there are some evidence to arrive at a conclusion that the delinquent employee is guilty, the High Court in exercise of its powers under Article 226 of the Constitution of India would not interfere with the conclusion of the disciplinary authority. He submits that likewise the same ratio was laid down by the Apex Court in the case of State Bank of Bikaner and Jaipur –vs- Nemi Chand Nalwaya reported in 2011 (4) SCC 584 . Mr. M Choudury thus submits that by applying the ratio laid down by the above judicial pronouncements, the interference of this Hon’ble Court in the given facts and circumstances is not called for. 15. I have considered the rival submissions made by the counsels for the rival parties and I have perused the materials available on record. It may be noticed that although this Court had asked for production of departmental records, the learned counsel Mr. M Choudhury has filed an affidavit stating that the departments records cannot be traced out and has been misplaced. The respondent authorities for this reason have also lodged an FIR. The learned counsel for the petitioner has strenuously argued to present a picture that the departmental proceeding was conducted arbitrarily and was biased coupled with the fact that no reasonable opportunity was given to him to defend his case. However, from the materials available on record, I find that the petitioner was in fact afforded reasonable opportunity as well be clarified in the subsequent paragraph. There is no dispute with regard to the unauthorised absence of the petitioner when he was released for joining his new place of posting at Garam Pani on 15.9.2007. However, from the materials available on record, I find that the petitioner was in fact afforded reasonable opportunity as well be clarified in the subsequent paragraph. There is no dispute with regard to the unauthorised absence of the petitioner when he was released for joining his new place of posting at Garam Pani on 15.9.2007. He in fact, remained unauthorizedly absent since 16.9.2007 and for which, a show cause notice was issued to him on 24.1.2008. Besides taking the stand that he had availed for earned leave which was otherwise not permitted, the petitioner has no explanation to offer. Likewise against the second show cause notice dated 10.2.2008 for the incident that occurred on 12.6.2008, the petitioner does not have any convincing explanation besides contending that the criminal court took a lenient view of the matter and that he was acquitted from the charge under Section 448/353/506 of the IPC besides only convicting him under Section 290 of the IPC. 16. It is a well settled principle of law laid down by the Apex Court in the decisions relied upon by the learned counsel for the respondent that Court is restricted to the role of examining the decision making process and not the decision itself. It would therefore be necessary to examine as to whether there are substantive grounds to vitiate the conclusion that the petitioner’s dismissal from service is not justified. It is seen that the petitioner was given ample opportunity to participate in the enquiry proceeding as hearing was conducted on 7th, 14th and 20th October and 4th November, 2009. Upon conclusion of the enquiry proceeding, petitioner was furnished with the enquiry report along with the statements of the witnesses examined to enable him to submit his reply against the enquiry report. He was further given opportunity to submit a representation against the proposed penalty. In such circumstances, the petitioner apparently was given all due opportunity to present his case throughout the proceedings. In such circumstances, the question of denying reasonable and adequate opportunity to the petitioner does not arise. 17. However, considering the fact that the petitioner had submitted an appeal before the appellate authority on 6.4.2010 which admittedly has not been disposed of till date, the same in my considered opinion should be considered by the said authority in so far as the quantum of penalty imposed upon the petitioner is concerned. 17. However, considering the fact that the petitioner had submitted an appeal before the appellate authority on 6.4.2010 which admittedly has not been disposed of till date, the same in my considered opinion should be considered by the said authority in so far as the quantum of penalty imposed upon the petitioner is concerned. With regard to the charge being proved against the petitioner, I do not find any illegality, arbitrariness or otherwise for interfering with the same. However, the appellate authority can definitely consider and take a decision as to whether any other form of penalty can be imposed upon the petitioner besides dismissal or removal from service. 18. In that view of the matter, this writ petitioner is disposed of with a direction to the respondent authorities and appellate authority to consider and disposed of the appeal in so far as the quantum of penalty is concerned in the light of the observation made above within a period of 3 months from the date of receipt of a certified copy of this order. 19. With the observation and directions, this writ petition stands disposed of. No cost.