JUDGMENT : The petitioner has instituted the writ petition under Article 226 of the Constitution of India challenging a speaking order dated 24.06.2019 passed by the respondent no. 2 as the disciplinary authority in connection with a disciplinary proceeding initiated against the petitioner. In the speaking order dated 24.06.2019, the disciplinary authority [the respondent no. 2] has recorded a finding that the petitioner had overstayed in service for a period of 6 [six] years w.e.f. 01.04.2012 to 31.03.2018. Accordingly, the petitioner was released from service due to retirement w.e.f. 31.03.2012 on superannuation and the pensionary benefits, etc. would be released to the petitioner immediately after recovery of salary already drawn during the period of overstay. Besides seeking setting aside of the speaking order dated 24.06.2019, the petitioner has also sought for a direction to the respondent authorities to release full retirement benefits to the petitioner by taking his date of superannuation as 31.03.2018 i.e. the date till which the petitioner had served as Ex-Roneo Operator in the Directorate of Agriculture, Assam. 2. The petitioner was appointed temporarily as a peon w.e.f. 27.03.1978 in the office of the Additional Director of Agriculture [Hills], Assam at Diphu [the respondent no. 3] by an order dated 24.05.1979 issued under the hand of the respondent no. 3. During the course of his service tenure, the petitioner was promoted from the post of peon and in the year 2018, he was serving as Ex-Roneo Operator in the Directorate of Agriculture, Assam in the office of the respondent no. 2. 3. The case of the petitioner can be stated as follows :- At the time of joining the service, the petitioner was asked to submit the testimonials/certificates regarding his education qualifications, age proof, etc. and accordingly, he submitted his High School Leaving Certificate [HSLC] Examination Admit Card in that regard before the concerned authority. Having noticed that his age was wrongly recorded in the HSLC Examination, 1971 Admit Card as 19 years as on 01.03.1971 instead of 13 years, the petitioner pointed out the said anomaly before the concerned authority at the time of joining his service. The concerned authority at that point of time, asked the petitioner to bring a certificate from the School he last attended, showing his actual date of birth for the purpose of incorporation in the service book. The concerned authority at that point of time, asked the petitioner to bring a certificate from the School he last attended, showing his actual date of birth for the purpose of incorporation in the service book. The petitioner thereafter, approached the Head Master of Karara Government Aided H.E. School, the School from which he appeared in the HSLC Examination in the year 1971 for issuing a certificate with regard to his age. On the basis of an affidavit submitted by the petitioner in that connection, the Head Master of Karara Government Aided H.E. School issued a certificate on 12.01.1978 certifying that the petitioner appeared in the HSLC Examination in the year 1971 as a regular candidate of the said School and according to the affidavit submitted by the petitioner, his age on 01.03.1978 was 20 years. Based on the said certificate issued by the Head Master, Karara Government Aided H.E. School, the date of birth of the petitioner came to be recorded as 01.03.1958 in the service book of the petitioner. If the said date of birth i.e. 01.03.1958 is taken as the actual date of birth of the petitioner then the petitioner’s date of retirement for reacting the age of superannuation of 60 years would be 31.03.2018. 3.1. It was on 31.03.2018, the respondent no. 4 by a letter of even date directed the petitioner to furnish his HSLC Examination Admit Card by 31.03.2018 itself for the purpose of ascertaining his date of birth. On 02.04.2018, the petitioner submitted an application before the respondent no. 4 stating interalia that due to theft occurred in his native home a few years earlier, he lost a number of important documents including the HSLC Examination Admit Card and asked for condonation for not being able to provide the HSLC Examination Admit Card. Another letter from the Principal, Karara H.S. School [erstwhile Karara Government Aided H.E. School] dated 03.04.2018 was submitted by the petitioner wherein it was stated that the then Head Master of the School issued a certificate to the petitioner that he appeared in the HSLC Examination, 1971. An affidavit was also submitted by the petitioner regarding his age which was mentioned in the Head Master’s certificate, but the said affidavit submitted by the petitioner to the School had been damaged by termites in course of time. Thereafter on 04.05.2018, the respondent no. An affidavit was also submitted by the petitioner regarding his age which was mentioned in the Head Master’s certificate, but the said affidavit submitted by the petitioner to the School had been damaged by termites in course of time. Thereafter on 04.05.2018, the respondent no. 5 by his letter of even date, asked the petitioner to furnish a duplicate copy of the Admit Card of the HSLC Examination, if the original was so lost, from the Board of Secondary Education, Assam [SEBA] at the earliest for taking further necessary action. It was on 20.06.2018, the petitioner submitted a photocopy of the HSLC Examination, 1971 Admit Card wherein it was recorded that the petitioner’s age on 01.03.1971 was 19 years. When even after 31.03.2018 the process for releasing the pensionary benefits was not finalised, the petitioner submitted an application before the respondent no. 2 on 27.08.2018 requesting the said authority to take steps to finalize the matter of pension at the earliest. 3.2. A notice to show-cause dated 04.09.2018 came to be served upon the petitioner under the hand of the respondent no. 2 under Rule 9 of the Assam Services [Discipline and Appeal] Rules, 1964 [‘the 1964 Rules’, for short] read with Article 311 of the Constitution of India asking him to show cause as to why any of the penalties specified in Rule 7 of the 1964 Rules should not be inflicted on the petitioner on the basis of the charges stated therein. The petitioner was asked to submit his written statement in defence within 10 [ten] days from the date of receipt of the notice to show cause. It was further informed that in case the petitioner intended to inspect the documents mentioned in the show cause notice, then the petitioner should write to the respondent no. 2 within 7 [seven] days from the date of receipt of the said notice to show cause and to submit explanation thereafter within 10 [ten] days from the date of completion of the inspection. 3.3. On receipt of the notice to show cause dated 04.09.2018, the petitioner submitted his reply to the show cause notice on 29.10.2018. It was mentioned therein that he intended to inspect the documents mentioned in the list of documents and an application to the effect was submitted on 26.09.2018 but he did not receive any response from the respondent no. On receipt of the notice to show cause dated 04.09.2018, the petitioner submitted his reply to the show cause notice on 29.10.2018. It was mentioned therein that he intended to inspect the documents mentioned in the list of documents and an application to the effect was submitted on 26.09.2018 but he did not receive any response from the respondent no. 2 in that connection till the date of submission of his reply to the show cause notice. In the reply to the show cause notice, the petitioner had presented his side of the case, almost in similar lines as narrated above, and stated that his actual date of birth was recorded in the service book and therefore, there was no occasion to serve him the notice to show cause dated 04.09.2018. 3.4. With a grievance that he was not permitted to inspect the documents to be relied in the course of disciplinary proceeding initiated against him, the petitioner approached this Court by a writ petition, W.P.[C] no. 8784/2018. The writ petition, W.P.[C] no. 8784/2018 was disposed of by an order dated 20.12.2018 observing interalia that the petitioner would be entitled to all rights including the right to seek necessary documents relating to the enquiry that might be initiated against him in accordance with rules. 4. I have heard Mr. P.K. Deka, learned counsel for the petitioner and Ms. R. Bora, learned Standing Counsel, Agriculture Department for all the respondents. 5. Mr. Deka, learned counsel for the petitioner has contended that after submission of the written statement in defence by the petitioner, the disciplinary authority had passed the speaking order dated 24.06.2019 without adhering to the procedure prescribed in Rule 9 of the 1964 Rules. The petitioner was never asked to appear before the Enquiry Officer and he was also not permitted to cross-examine the prosecution witness, if any. It is his submission that no Presenting Officer was appointed for the disciplinary proceeding initiated by the notice to show cause dated 04.09.2018. Had the proper opportunity been granted, the petitioner could have established his case to the effect that his actual date of birth is 01.03.1958 and not 01.03.1952 on the basis of which he had been made to retire on 31.03.2018. 6. Ms. Had the proper opportunity been granted, the petitioner could have established his case to the effect that his actual date of birth is 01.03.1958 and not 01.03.1952 on the basis of which he had been made to retire on 31.03.2018. 6. Ms. Bora, learned Standing Counsel appearing for all the respondents has submitted that the claim of the petitioner that his date of birth is 01.03.1958 cannot be taken to be true as the petitioner had, at first, concealed the fact by not submitting his HSLC Examination, 1971 Admit Card at the time of his joining in service as peon at the office of the respondent no. 3. The HSLC Examination, 1971 Admit Card, produced by the petitioner only after a direction was given to that effect on 31.03.2018, goes to show that his actual date of birth is 01.03.1952 and the petitioner by suppressing his actual date of birth, had continued to be in service for a prolonged period of 6 [six] years from 01.04.2012 to 2018, beyond his actual date of retirement, 31.03.2012. It is submitted by Ms. Bora that all mandatory procedure required to be followed in case of a disciplinary proceeding was followed before passing the impugned speaking order dated 24.06.2019 by the disciplinary authority and as such, no interference is called for with regard to the said impugned order. 7. I have considered the submissions of the learned counsel for the parties and have also perused the materials brought on record by the parties through their pleadings. I have also gone through the records of the disciplinary proceeding in original, placed by Ms. Bora, learned Standing Counsel, Agriculture Department. 8. The dispute herein is with regard to the actual date of birth of the petitioner. The HSLC Examination, 1971 Admit Card goes to indicate that the petitioner was 19 years of age on 01.03.1971. According to the petitioner, his age in the HSLC Examination, 1971 Admit Card was recorded wrongly and his actual date of birth is 01.03.1958 and the same was recorded correctly in his service book. The HSLC Examination, 1971 Admit Card goes to indicate that the petitioner was 19 years of age on 01.03.1971. According to the petitioner, his age in the HSLC Examination, 1971 Admit Card was recorded wrongly and his actual date of birth is 01.03.1958 and the same was recorded correctly in his service book. While the petitioner has contended that he submitted his HSLC Examination, 1971 Admit Card and a certificate from the then Head Master of Karara Government Aided H.E. School [presently Karara H.S. School] providing an explanation that his date of birth was wrongly recorded in the HSLC Examination, 1971 Admit Card at the time of his joining the service itself, the respondent authorities accepted the said explanation and recorded the date of birth of the petitioner in the service book as 01.03.1958. On the other hand, it is the stand of the respondent authorities that the HSLC Examination, 1971 Admit Card was never submitted by the petitioner at the time of joining his service on 27.03.1978. In view of such contrary stands taken by the parties, it is clear that the disputed question of facts are involved in so far as the matters with regard to recording of the date of birth of the petitioner at the time of opening of the service book and the nature of documents submitted by the petitioner and received by the employer at the time of such recording of the date of birth. Disputed questions of facts are not ordinarily decided in a writ petition under Article 226 of the Constitution of India as the same are to be decided in a fact-finding enquiry. 9. By the notice to show cause dated 04.09.2018, the disciplinary authority had framed the following charge :- “That while you were serving as Roneo Operator at the Directorate of Agriculture, Assam it was observed that the date of birth in the Service Book has been recorded as 01.03.1958 and accordingly your date of superannuation was due on 31.03.2018. For ascertaining date of birth being as HSLC Examination candidate in the year 1971 and for processing superannuation benefits, etc. as per procedure you have been asked to submit HSLC Admit Card and accordingly submitted. From the records, it appears that your date of birth is 01.03.1952 and accordingly you were to retire on 31.03.2012 instead of 31.03.2018. For ascertaining date of birth being as HSLC Examination candidate in the year 1971 and for processing superannuation benefits, etc. as per procedure you have been asked to submit HSLC Admit Card and accordingly submitted. From the records, it appears that your date of birth is 01.03.1952 and accordingly you were to retire on 31.03.2012 instead of 31.03.2018. You have overstayed in service for a period of 6 [six] years which is against statutory rule and the fact has been concealed from your end. It indicates that being a Government Employee, you have violated the provision of Rule 3[1][i]&[ii] of “the Assam Civil Services [Conduct] Rules, 1965”. You are, therefore, charged with mischief, lack of responsibility and breach of trust.” 10. By the notice to show cause dated 04.09.2018, the petitioner was asked to show cause under Rule 9 of the 1964 Rules read with Article 311 of the Constitution of India as to why any of the penalties specified in Rule 7 of the 1964 Rules should not be inflicted on the petitioner on the afore-stated charges. 11. Rule 7 of the 1964 Rules has specified the penalties which can be imposed upon a Government servant for good and sufficient reasons. Rule 9 of the 1964 Rules has laid down the procedure for imposition of penalty. As per Rule 9[2] of the 1964 Rules, the disciplinary authority shall frame definite charges on the basis of the allegations on which the inquiry is proposed to be held. Such charges together with a Statement of the allegations on which they are based, shall be communicated in writing to the Government servant, and he shall be required to submit, within such time as may be specified by the disciplinary authority, a written statement of his defence and also to state whether he desires to be heard in person. At the time of delivery of charges, the disciplinary authority is invariably required to furnish to the charge-sheeted employee a list of documents and a list of witnesses by which each article of charges is proposed of be sustained. At the time of delivery of charges, the disciplinary authority is invariably required to furnish to the charge-sheeted employee a list of documents and a list of witnesses by which each article of charges is proposed of be sustained. Rule 9[3] has cast an obligation on the part of the disciplinary authority to accord permission to the employee, for the purpose of preparing his defence, to inspect and take extracts from such official records as he may specify, provided that such permission may be refused if, for reasons to be recorded in writing, in the opinion of the disciplinary authority such records are not relevant for the purpose or it is against the public interest to allow him access hereto. Rule 9[4] of the 1964 Rules has provided that after receipt of the written statement of defence or if no such statement is received within the stipulated time period, the disciplinary authority may itself inquire into such of the charges as are not admitted or, if it considers it necessary so to do, appoint for the purpose a Board of Inquiry or an Inquiring Officer [‘the Inquiring Authority’, for short]. The disciplinary authority may nominate, under Rule 9[5], a person as the Presenting Officer to present the case in support of the charges before the Inquiring Authority. Rule 9[6] has laid down that the Inquiring Authority shall, in the course of the inquiry, consider such documentary evidence and take such oral evidence as may be relevant or material in regard to the charges. The charge-sheeted employee is entitled to cross examine witnesses examined in support of the charges and to give evidence in person, and to adduce documentary and oral evidence in his defence. The Presenting Officer in support of the charges is entitled to cross-examine the charge-sheeted employee and the witnesses examined in his defence. If the Inquiring Authority declines to examine any witness or to admit any document in evidence on the ground that his evidence or such document is not relevant or material, it shall record its reasons in writing. Rule 9[7] has provided that at the conclusion of the disciplinary proceeding, the Inquiring Authority shall prepare a report of the inquiry, recording its findings on each of the charges together with reasons therefor. 11.1. Rule 9[7] has provided that at the conclusion of the disciplinary proceeding, the Inquiring Authority shall prepare a report of the inquiry, recording its findings on each of the charges together with reasons therefor. 11.1. It has been held in a catena of decisions of this Court including in Samaresh Chandra Bhattacharjee vs. State of Assam and others, [1992] 2 GLR 48 and Renu Barman vs. State of Assam, 2010[3] GLT 552 that the procedure laid down in Rule 9 of the 1964 Rules are mandatory in character. The note to S.R. 8[c] has provided that the Head of the Office should record the date of birth in the service book of a non-Gazetted Government servant on his initial appointment with reference to the Matriculation or equivalent certificate and shall also record a remark to that effect in the service book. In cases where these are not available, the Head of the Office should verify the date with reference to the birth certificate to be produced by the Government servant and record a note to that effect in the service book. 12. Subsidiary Rule 8[c] has provided that the employer may alter the recorded date of birth in case of a non-gazetted Government servant provided the employer is satisfied after an enquiry that the previous date was incorrect. In order to do the same, the employer has to enquire by giving full opportunity to the employee to show as to why the same should not be changed. 12.1. In State of Orissa vs. Dr. [Miss] Binapani Dei and others, reported in AIR 1967 SC 1269 , the respondent therein at the time of her appointment by the Orissa Government, declared her date of birth as 10.04.1910 and the same was entered into in the service register. By a letter dated 27.06.1963, the Government of Orissa determined the date of birth of the respondent as 16.04.1907 and declared that she should be deemed to have retired on 16.04.1962 on attaining the superannuation age of 55 years. In Dr. [Miss] Binapani Dei [supra], the Hon’ble Supreme Court of India has held that the State undoubtedly is not precluded, merely because of the acceptance of the date of birth of the employee in the service register, from holding an enquiry if there exists sufficient grounds for holding such enquiry and for re-fixing the date of birth. In Dr. [Miss] Binapani Dei [supra], the Hon’ble Supreme Court of India has held that the State undoubtedly is not precluded, merely because of the acceptance of the date of birth of the employee in the service register, from holding an enquiry if there exists sufficient grounds for holding such enquiry and for re-fixing the date of birth. But the decision of the State must be based upon the result of an enquiry conducted in manner consonant with the basic concept of justice. An order by the State to the prejudice of a person in derogation of his rights may be made only in accordance with the basic rules of justice and fairplay. The deciding authority is under a duty to give the person against whom an enquiry is held an opportunity to set up his version of defence and an opportunity to correct or to controvert any evidence in the possession of the authority which is sought to be relied upon to his prejudice. For that purpose the person against whom enquiry is held must be informed of the case he is called upon to meet and the evidence in support thereof. The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing as the same involves civil consequences. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of that power. If the essentials of justice are ignored and an order to the prejudice is passed, the order is a nullity. 12.2. The decision in R.S. Kallolimath vs. State of Mysore and another, reported in [1977] 3 SCC 425, referring to the decision in Dr. [Miss] Binapani Dei [supra], has reiterated that it can no longer be disputed that the State is not precluded merely because of the acceptance of the date of birth of its employee in the service register, from holding an enquiry if there exists sufficient reasons for holding such enquiry and re-fixing his date of birth. 13. [Miss] Binapani Dei [supra], has reiterated that it can no longer be disputed that the State is not precluded merely because of the acceptance of the date of birth of its employee in the service register, from holding an enquiry if there exists sufficient reasons for holding such enquiry and re-fixing his date of birth. 13. Thus, from Subsidiary Rule 8[c] and from the above decisions, it is found settled that the State has the authority and the power to re-fix the date of birth of a Government employee even though a different date of birth was accepted by the Government at the time of appointment but such a decision can be taken only after an enquiry undertaken in conformity with the principles of natural justice and fair play. In the enquiry, the employee must have to be given a fair opportunity of meeting the case and the principles of natural justice must have to be followed strictly, as the decision sought to be passed is likely to visit the employee with civil consequences. It is settled that a disciplinary proceeding is to be conducted against any person with strict adherence to the statutory provisions and principles of natural justice. In a disciplinary proceeding, the employer should take steps at first to lead evidence against the charge-sheeted employee and give an opportunity to him to examine the witnesses of the employer. Only thereafter, the charge-sheeted employee is to be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him. On receipt of the Enquiry Report, before proceeding further, it is incumbent on the part of the disciplinary authority to supply a copy of the Enquiry Report and all connected materials relied on by the Enquiry Officer to enable the charge-sheeted employee to offer his views, if any. It has been held by the Constitution Bench in Managing Director ECIL vs. B. Karunakar, reported in [1993] 4 SCC 727, that the supply of the Enquiry Report submitted by the Enquiry Officer is mandatory. 14. In the case in hand, it is noticed that the notice to show cause included a Statement of allegations, a list of documents and a list of witness in compliance of Rule 9[2] of the 1964 Rules. 14. In the case in hand, it is noticed that the notice to show cause included a Statement of allegations, a list of documents and a list of witness in compliance of Rule 9[2] of the 1964 Rules. The petitioner was given opportunity to inspect the documents indicated in the list of documents served with the notice to show cause by the respondent authorities on 26.12.2018 and he had accordingly inspected the same. The petitioner had made an endorsement to that effect acknowledging the fact of inspection of the listed documents by him. 14.1. The records of the disciplinary proceeding go to indicate that by an order dated 02.03.2019, the disciplinary authority appointed an Enquiry Officer to cause enquiry into the matter of overstay in service as per the HSLC Examination Admit Card in connection with the petitioner, Ex-Roneo Operator. By the order dated 02.03.2019, the Enquiry Officer was requested to submit the Enquiry Report along with his findings to the disciplinary authority within a period of 15 [fifteen] days for further necessary action. The disciplinary authority had forwarded 6 [six] nos. of documents to the Enquiry Officer for ready reference. It is further noticed from the records of the disciplinary proceeding, in original, that the Enquiry Officer in the course of the preceeding, neither called any witness nor recorded any oral evidence of any witnesses nor any documentary evidence was presented through any witness. The petitioner had never got the opportunity to cross-examine any witness or to controvert any documentary evidence. From the Enquiry Report submitted by the Enquiry Officer on 03.04.2019, it is evident that the Enquiry Officer himself had examined the service book of the petitioner and the HSLC Examination, 1971 Admit Card and having noticed that the date of birth in the service book of the petitioner was recorded as 01.03.1958 and the age of the petitioner was recorded as 19 years as on 01.03.1971 in the HSLC Examination, 1971 Admit card, the Enquiry Officer had held the date of birth of the petitioner as 01.03.1952. It was on the basis of the said Enquiry Report, the disciplinary authority without first forwarding the Enquiry Report to the petitioner to offer his views, had passed the impugned speaking order dated 24.06.2019 along with the consequential direction that the pensionary benefit etc. It was on the basis of the said Enquiry Report, the disciplinary authority without first forwarding the Enquiry Report to the petitioner to offer his views, had passed the impugned speaking order dated 24.06.2019 along with the consequential direction that the pensionary benefit etc. to the petitioner would be released only after recovery of a salary already drawn during the period of overstay beyond 31.03.2012. 15. From the manner with which the disciplinary proceeding was proceeded with and concluded, as discussed above, it has clearly emerged that the disciplinary proceeding initiated against the petitioner by the notice to show cause dated 04.09.2018 was proceeded with and concluded in clear violation of principles of natural justice as the petitioner was never given any opportunity to present his side of the case. The petitioner was never asked by the Enquiry Officer to appear before him during the course of the disciplinary proceeding. The Enquiry Officer did not examine any witness. The case of the prosecution was never presented by any Presenting Officer and the documents were not identified and proved by any witness. The petitioner was also not supplied with a copy of the Enquiry Report submitted by the Enquiry Officer on 03.04.2019 to enable him to offer his views in respect of the findings recorded in the Enquiry Report. Without providing such opportunity to the traverse, the disciplinary authority had gone on to pass the speaking order dated 24.06.2018. The petitioner was clearly denied the opportunity to traverse the case of the prosecution in any manner whatsoever. In such obtaining fact situation, this Court is of the clear view that the speaking order dated 24.06.2019 has been passed in violation of the mandatory procedure prescribed in Rule 9 of the 1964 Rules and Subsidiary Rule 8[c] as well as in violation of the principles of natural justice and consequently, the speaking order is found not sustainable in law. Accordingly, the same is set aside. All other consequential directions are also accordingly set aside. 16. The case herein is that the employer of the employee i.e. the petitioner has sought to re-fix the date of birth of the petitioner by changing the same from 01.03.1958, already recorded in the service book of the petitioner a long years earlier, to 01.03.1952. All other consequential directions are also accordingly set aside. 16. The case herein is that the employer of the employee i.e. the petitioner has sought to re-fix the date of birth of the petitioner by changing the same from 01.03.1958, already recorded in the service book of the petitioner a long years earlier, to 01.03.1952. As has been observed above, the State has the authority and the power to re-fix the date of birth of a Government employee even though a different date was accepted by the Government at the time of appointment, but the same can be done only after an enquiry. It is, thus, upto the State respondents to decide about the further course of action in the matter. If a decision is taken to proceed with the enquiry, then the State respondents are at liberty to proceed with the enquiry from the stage where the infraction had occurred and complete the enquiry by following the mandatory procedure laid down under the Rules but the same must be completed, with full co-operation from the petitioner, within a period of 3 [three] months from today, considering the fact that the dispute is of the year 2018. Any decision in relation to recovery will abide by the findings and decision arrived at such enquiry with regard to the date of birth of the petitioner. It is provided further that in the event the State respondents take a decision that the there would be no further enquiry, then they should process the matter of pension and other retirement benefits of the petitioner by taking the petitioner’s date of birth as 01.03.1958 and thereafter upon finalisation, disburse the entire dues to the petitioner within a period of 2 [two] months from today. 17. It is also made clear that by this determination, this Court has not made any comment on the merits of the charge framed against the petitioner in the notice of show cause dated 04.09.2018. 18. With the observations made and the directions given above, the writ petition is allowed to the extent indicated above. The interim order, if any, passed earlier stands merged with this order. There shall, however, be no order as to cost.