JUDGMENT : Heard Mr. H. Das, counsel for the petitioner. Also heard Mr. D. Nath, counsel for the respondents. 2. The petitioner has made a challenge to his dismissal from service vide Order dated 12.10.2007, made in pursuance to a departmental proceeding held against him for unauthorized absence w.e.f. 22.12.2005 to 21.02.2006. 3. The petitioner’s case is that he was appointed on 07.12.1992, as a Constable in the Assam Special Reserve Force Battalion. However, due to the serious illness of his wife, the petitioner had to leave for his home on 22.12.2005. Though the petitioner had orally requested his Superior Officers for leave, the same not having been given, the petitioner left his post in Nalbalri on the night of 22.12.2005 along with his weapon and 50 rounds of ammunition. The petitioner thereafter, deposited the rifle and the 50 rounds of ammunition on 23.12.2005 morning in Sadar Police Station, Kokrajhar, though he was posted at Nalbari. The petitioner rejoined his post in Nalbari on 21.02.2006. The petitioner was suspended from service w.e.f. 23.12.2005 and Show Cause Notice was issued to the petitioner. The petitioner replied to the same. Thereafter, Departmental Proceeding No. 13/2005 was drawn up against the petitioner, wherein 4 charges were framed against the petitioner. 4. The 4 charges framed against the petitioner are as follows:- “Charge No. 1: That, while C/666 Kumud Choudhury was attached with Section No. 3 of Pln. No. 5 of ‘B’ Coy at BTAD Kokrajhar, on 22.12.05 he was detailed for 24 Hrs. duty. After completion of his allotted duty from 6 P.M. to 8 P.M. on that day, he altercated with his Section Commandar, LNK. Bipul Baruah as well as with his Platoon Commander Kankan Bhattacharyee in connection with his leave matter, Ultimately, disobeying his Superior Officer, at around 11 P.M. on the same day he deserved from the place of duty with his Service Rifle and 50 Rds. Of ammunitions. And thereby charged with indisciplined conduct , negligence to duty, insubordination and gross misconduct. Charge No. 2:- That while on 22.12.05 at 1 A.M. C/666 Kumud Choudhry after desertion with his Service Rifle and ammunitions from his place of duty at his own will, he had reported Subedar Major at Bn. H. Qr. On 23.12.05 in the early morning with Arms and ammunitions. Charge No. 2:- That while on 22.12.05 at 1 A.M. C/666 Kumud Choudhry after desertion with his Service Rifle and ammunitions from his place of duty at his own will, he had reported Subedar Major at Bn. H. Qr. On 23.12.05 in the early morning with Arms and ammunitions. And thereby he showed his most indiscipline conduct being a trained force personnel and thereby he charged with most indiscipline conduct, doubtful into gritty and misconduct. Charge No. 3:- That, on 23.12.05, C/666 Kumud Choudhury after reporting S.M. at Bn. H. Qr. he also deserted from Bn. H. Qr. on the same day without authority. And thereby charged with habitual indiscipline conduct, insubordination and gross misconduct. Charge-No. 4:- That from the Service Sheet records C/666 Kumud Choudhury was awarded the following punishment. 1. 10 days P.D @ 1 Hr. daily vide BO No. 584 dated 26.3.97 2. 42 days LWP vide BO No. 584 dtd. 26.3.97 3. 3 days LWP vide BO No. 1087 dtd. 6.6.98 4. 7 days LWP vide BO No. 865 dtd. 13.5.98 5. 7 days PD 2 Hrs. daily vide BO No. 448 dtd. 2.3.95 6. 20 days Quarter Guard with P.D. 2 Hrs. daily vide BO No. 485 dtd. 6.3.95 7. 5 days Quarter Guard vide BO No. 1994 dtd. 3.12.96.” 5. The enquiry report was submitted by the Enquiry Officer on 18.06.2007, wherein the Enquiry Officer found that the Charge Nos. 1 to 3 were found to be proved. The 4th charge was however not proved. With regard to the 4th Charge, the enquiry report states that:- “The Charge No. 4 is only the description of past conduct of the delinquent C/666 Kumud Choudhury, which has been admitted by him in his defence witness. This charge has been made only to include the previous bad conduct as a part of the charge sheet required under the provision of law. But it is revealed from the past and present circumstantial evidence that he could not show any symptoms of his ratification though he was earlier warned and he obeyed the recorded punishment for his earlier offences. Therefore, the charge No. 4 is not proved.” 6. A 2nd show cause notice along with a copy of the enquiry report was furnished to the petitioner to enable him to make a representation to the same. The petitioner submitted a reply to the second Show Cause Notice. Therefore, the charge No. 4 is not proved.” 6. A 2nd show cause notice along with a copy of the enquiry report was furnished to the petitioner to enable him to make a representation to the same. The petitioner submitted a reply to the second Show Cause Notice. Thereafter, the disciplinary authority, having agreed with the findings of the Enquiry Officer, vide Order dated 12.10.2007, imposed the penalty of dismissal from service upon the petitioner. 7. The petitioner filed an appeal under Rule 15 of the Assam Services (Discipline & Appeal) Rules, 1964. The same was rejected vide Order dated 17.12.2011. 8. The petitioner’s counsel submits that the impugned dismissal order of the petitioner dated 12.10.2007 and the rejection of his appeal should be set aside in view of the fact that the petitioner was not informed that he could take the assistance of a Defence Assistant during the departmental proceeding. He submits that the failure of the respondents to inform him of the same vitiated the entire departmental proceedings, as he could not cross examine the witnesses. He submits that the above is a violation of Rule 9(5) of the Assam Services (Discipline & Appeal) Rules, 1964 (hereinafter referred to as ‘the 1964 Rules’). 9. The other challenge made by the petitioner in this writ petition is with regard to the rejection of his appeal vide Order dated 16.04.2008. He submits that the order rejecting his appeal being cryptic and being devoid of any reasons, the same has to be dismissed. He submits that the Appellate Authority should have given reasons for rejecting each of the issues raised by the petitioner in his appeal. 10. The petitioner’s counsel relies upon the Judgment of this Court in Rajen Bhuyan Vs. State of Arunachal Pradesh, reported in 1994 1 GLR 364 and S.K. Mazumdar Vs. Union of India & Ors., reported in 1982 1 GLR 664 in support of his submissions. 11. Mr. D. Nath, counsel for the respondents, on the other hand, submits that there is no requirement for the Enquiry Officer to inform the petitioner of his right that he can avail the services of a Defence Assistance. Union of India & Ors., reported in 1982 1 GLR 664 in support of his submissions. 11. Mr. D. Nath, counsel for the respondents, on the other hand, submits that there is no requirement for the Enquiry Officer to inform the petitioner of his right that he can avail the services of a Defence Assistance. He further submits that even if this Court were to hold that the petitioner was required to be informed that he could avail the services of a Defence Assistant, the failure to inform the petitioner would then have to be tested upon the touch stone of, whether any prejudice was caused to the petitioner in the departmental proceeding sans the Defence Assistant. 12. Mr. D. Nath, the counsel for the respondents also submits that a reading of Rule 9(5) of the 1964 Rules would go to show that there is no requirement for the Enquiry Officer to inform the petitioner that he can avail the services of a Defence Assistant. Instead the provision requires that the petitioner himself should make a request for a Defence Assistant before the Disciplinary Authority. He submits that the proceedings of the departmental proceeding, as reflected in the enquiry report, shows that no prejudice was caused to the petitioner, as he had been given the opportunity to cross examine the witnesses, which he failed to do. He also submits that the rejection of the petitioner’s appeal is not cryptic but has been done after the Appellate Authority had taken pains to read the enquiry report and all other documents. In support of his submissions, the respondent’s counsel has relied upon the Judgments of this Court in the case of Pradip Kumar Sarmah Vs. State of Assam & Ors., reported in 2011 4 GLR 260, Motilal Cheran Vs. State of Meghalaya & Ors., reported in 2006 3 GLR 17 and in the case of Saroj Kumar Bhattacharayya Vs. Union of India & Ors., reported in 2003 3 GLR 77. 13. I have heard the learned counsels for the parties. 14. The fact that the petitioner was absent on unauthorized leave w.e.f. 22.12.2005 to 21.02.2006 is not in dispute. It is also not disputed by the petitioner that he had left the camp in Nalbari, in which he was performing his duty, on 22.12.2005 with his arms and 50 rounds of ammunition. 14. The fact that the petitioner was absent on unauthorized leave w.e.f. 22.12.2005 to 21.02.2006 is not in dispute. It is also not disputed by the petitioner that he had left the camp in Nalbari, in which he was performing his duty, on 22.12.2005 with his arms and 50 rounds of ammunition. The same was deposited by the petitioner on the next day in a Police Station in Kokrajhar, while the petitioner’s camp was in Nalbari. The reason given by the petitioner for his unauthorized absence was on the ground that his wife was having a serious illness, which required his immediate presence, as his 2nd Commander did not give permission to the petitioner to leave the camp. The enquiry report shows that the petitioner had been given opportunity to cross-examine the witnesses, which he did not do. Further, the petitioner stated that there was no witness or documentary evidence in his defence. 15. In the case of B.C. Chaturvedi Vs. Union of India, reported in 1995 6 SCC 749 , the Apex Court has held that the court cannot re-appreciate evidence and that the disciplinary authority is the sole judge of facts. 16. In the present case, the admitted fact clearly shows that the petitioner had been on unauthorized leave. Only two issues need to be decided i.e., whether the alleged failure of the disciplinary authority/Enquiry Officer to inform the petitioner of his right to avail the services of a Defence Assistant under Rule 9 (5) of the 1964 Rules could be said to have vitiated the departmental proceeding. Secondly, whether the rejection of the petitioner’s appeal was a cryptic order and was liable to be set aside. 17. Rule 9 (5) of the 1964 Rules is reproduced below:- “9(5). The Disciplinary Authority may nominate any person to present the case in support of the charges before the authority inquiring into the charges (hereinafter referred to as the inquiring authority). The Government servant may present his case with the assistance of any other Government servant approved by the Disciplinary Authority, but may not engage a legal practitioner for the purpose unless the person nominated by the Disciplinary Authority as aforesaid is a legal practitioner or unless the Disciplinary Authority, having regard to the circumstances of the case so permits.” 18. In the case of Rajen Bhuyan Vs. In the case of Rajen Bhuyan Vs. State of Arunachal Pradesh, reported in 1994 1 GLR 364, the Single Bench of this Court, on applying the Judgment of the Apex Court in Bhagat Ram Vs. State of Himachal Pradesh & Ors., reported in AIR 1983 SC 454 , has held that the law is now well settled that if the delinquent officer is not informed of his right to be assisted by a Defence Assistant and if it is found that the delinquent Officer suffers as a result of that, it will vitiate the enquiry. 19. In the case of Saroj Kumar Bhattacharayya Vs. Union of India & Ors., reported in 2003 3 GLR 77, the Division Bench of this Court has, on considering the law laid down by the Apex Court in Bhagat Ram (Supra), has held that:- “the request on behalf of the charged officer for a defence assistant was made midway in the course of the enquiry. The same was allowed from the stage at which such request was made on the ground that no request was addressed by the charged officer at any earlier point of time. The Apex Court, on those facts, took the view that the approach of the disciplinary authority was too technical and what should have been allowed is reexamination of the witnesses already examined in course of the enquiry. In the aforesaid case, the Apex Court also laid down that the ultimate test would really be one of prejudice and if on a security of the materials, the Court is satisfied that prejudice has been caused to the charged officer due to absence of a defence assistant, the proceedings of the enquiry must be held to be vitiated. In view of the law laid down by the Apex Court in the case of Bhagat Ram-Vs-State of Himachal Pradesh (supra) that prejudice must be shown due to absence of a defence assistant, we fail to see how the above case can be understood to be an authority for the proposition that if the charged officer is not informed of his right to have the services of a defence assistant and if no defence assistant is appointed to assist the charged officer, the enquiry as a whole must necessarily fall through. It has also been held by this Court in the case of Amulya Ch. Das-Vs-The Assam Administrative Tribunal & Ors. It has also been held by this Court in the case of Amulya Ch. Das-Vs-The Assam Administrative Tribunal & Ors. (1989) 1 GLR 233 , reliance on which has been placed by the learned counsel for the appellant, that the ultimate test would be one of prejudice”. 20. Thus, by applying the law laid down by the Division Bench of this Court in Saroj Kumar Bhattacharayya (Supra), this Court holds that the alleged failure to inform the petitioner that he has a right to avail the services of a Defence Assistant cannot, by itself result in the departmental proceedings being vitiated. The petitioner would have to additionally show that prejudice was caused to him due to the above. In the case before me, the petitioner had at no point of time, asked for the services of a Defence Assistant. Assuming that there was an alleged failure on the part of the disciplinary authority/Enquiry Officer to intimate the petitioner about his right to have the services of a Defence Assistant, then also the petitioner would have to show that some prejudice has been caused to him, due to him not knowing that he could avail the services of a Defence Assistant. The documents on record clearly show that the petitioner has taken part in all aspects of the departmental proceeding. He was even been given the chance to cross-examine the witnesses, but he failed to do so. He has also stated that he had no witness or any documentary evidence in his defence. However, the fact of his unauthorized absence along with his arms and ammunition are not disputed facts. The petitioner has not made a challenge to any perceived procedural illegality in the departmental proceeding, except by stating that Rule 9(5) of the 1964 Rules had been violated. Accordingly, this Court does not find that any prejudice has been caused to the petitioner, due to the alleged failure of the disciplinary authority/Enquiry Officer to intimate the petitioner, of his right to avail the services of a Defence Assistant. 21. With regard to the second ground taken by the petitioner that the rejection of his appeal was made in a very cryptic manner, this Court finds that in the case of S.K. Mazumdar Vs. 21. With regard to the second ground taken by the petitioner that the rejection of his appeal was made in a very cryptic manner, this Court finds that in the case of S.K. Mazumdar Vs. Union of India & Ors., reported in 1982 1 GLR 664 , the Division Bench of this Court has set aside the rejection of the appeal on the ground that the Appellate Authority had passed a very cryptic order. 22. In the present case, the Appellate Authority has clearly stated that he has read the enquiry report and other documents and made a careful examination of the appeal. Further, the fact that the petitioner had deserted his post with his service rifle and 50 rounds of ammunition and had been unauthorizely absent from 22.12.2005 to 21.02.2006 being an admitted fact, nothing much needed to be stated in the rejection of the petitioner’s appeal by the respondent authorities. Though the Enquiry Officer has stated that Charge No. 4 is not proved, the findings made by the Enquiry Officer is to the effect that the past conduct of the delinquent officer has been admitted by him. In the case of Union of India Vs. Bishamber Das Dogra, reported in 2009 13 SCC 102 , the Apex Court has held that past conduct/service record can be considered for adding weight to the decision for imposing punishment. 23. The facts of the case in S.K. Mazumdar (Supra) is different to the facts of this case, inasmuch as, the appeal in S.K. Mazumdar (Supra) was to be decided as per Rule 1721 of the Indian Railways Establishment Mode, Volume-I. However, there is no such provision in the 1964 Rules to show how the appeals made against orders imposing punishment are to be disposed. Accordingly, the case of S.K. Mazumdar (Supra) is not applicable to the present case. Further, the facts not being disputed and as the question of unauthorized absence is not disputed by either of the parties, no prejudice is caused to the petitioner by the manner in which his appeal has been rejected. 24. A perusal of the Medical Certificate annexed by the petitioner shows that the Medical Certificate has been made after the petitioner rejoined his service, i.e., on 22.02.2006. The same states that the petitioner’s wife had been under the care of the said Doctor. 24. A perusal of the Medical Certificate annexed by the petitioner shows that the Medical Certificate has been made after the petitioner rejoined his service, i.e., on 22.02.2006. The same states that the petitioner’s wife had been under the care of the said Doctor. The petitioner has however not annexed any other document issued by any Doctor prior to 22.02.2006, showing that the petitioner’s wife is under medical treatment, thereby giving rise to an inference that the petitioner’s wife may not have been suffering from any illness. 25. In the case of Central Industrial Security Force And Others v. Abrar Ali, reported in (2017) 4 SCC 507 , the Apex Court has held that indiscipline on the part of a member of an Armed Force has to be viewed seriously and that the respondent, who had intentionally disobeyed the orders of his superiors and deserted the Force for a period of 5 days deserves to be punished suitably, as desertion is an act of gross misconduct. The penalty of dismissal imposed upon the respondent in the above case was reduced to compulsory retirement. 26. In the case of Union of India And Others v. P. Gunasekaran, reported in (2015) 2 SCC 610 , the Apex Court has held that the High Court in exercise of its jurisdiction under Article 226 of the Constitution cannot go into the proportionality of the punishment so long as the punishment does not shock the conscience of the Court. In the present case, the charge of the petitioner leaving his duty post, despite not being allowed to do so by his superior authorities, along with his arms and ammunitions is an undisputed fact. The punishment of dismissal imposed upon the petitioner does not shock the conscience of this Court as indiscipline on the part of a member of an Armed Force has to be viewed seriously. Further, the petitioner has not made any challenge to the proportionality of the punishment imposed upon him. This Court also does not find the punishment imposed, to be outrageous or shocking to the conscience, to warrant interference with the punishment imposed. 27. In view of the reasons stated above, this Court does not find any merit in the writ petition. The same is accordingly dismissed.