WP(C) 6383/2005 BEFORE HON’BLE MR JUSTICE H.N. SARMA Heard Mr. B. Sinha, learned counsel for the petitioner and Mrs. H. Phukan appe aring the state respondents. 2. The petitioner while serving as Head Constable in Assam Police Se rvice after posting at the Tezpur Police Station(Sadar) faced with a disciplinar y proceeding. A chargesheet under Memo No. RD/Proceeding/1515/2001 dated 22-3-20 01 was issued to him by the Superintendent of Police, Tezpur. The petitioner rec eived the said chargesheet on 14-7-2004 personally. The allegation levelled aga inst the petitioner is that while he was posted at the Tezpur Police Station(Sad ar) he went on casual leave for seven days w.e.f. 16-6-2000 to 26-6-2000. He was granted earned leave for twenty days(20) on his prayer and was asked to resume his duties on 8-7-2000, but he returned to service on 8-12-2000 and oversta yed his leave unauthorisedly for one hundred fifty four (154) days. Again vid e D.O. No. 1432 dated 13.6.2000 while the petitioner was posted at Tezpur the pe titioner collected the command certificate on 6-1-2002 and returned to service a fter seven(7) days of unauthorised absence. The aforesaid act, according to the authority tantamounts to gross negligence of duty and gross remissness on the p art of the petitioner that renders him unfit to remain in the police force and a ccordingly he was asked to submit his reply within 10 days from the date of rece ipt of the D.O. No. 251 dated 25.1.2001 on 8-4-2001 for his unauthorised absence . Alongwith the aforesaid charge, statements of allegations, list of d ocuments and list of witnesses were also furnished to him. In pursuance to the s aid show cause notice however the petitioner did not furnish any reply. The auth ority having decided to enquire into the allegations, appointed an Enquiry Offic er to hold departmental enquiry at the office chamber of the Enquiry Officer wh o was also the Superintendent of Police during the relevant time. The fixation o f date for holding the enquiry was intimated to the petitioner by W.T. Message d ated 11.2.2004 which was received by the petitioner on 13.2.2004. In the said Enquiry also the petitioner did not turn up. The Enquiry Officer recorded the st atements of Habildar Sri Ganesh Kalita, Arun Gogoi, Superintendent of Police An anta Das and Assistant Sub Inspector of Police A.S. Choudhury who were the witn esses. They supported the allegations made against the petitioner. Thereafter th e Enquiry Officer prepared his reply on 26-3-2004 wherein it was held that the petitioner was found unauthorizedly absent from duty w.e.f. 7-7-2000 to 8.12.200 0 for a period of 154 days and he remained absent unauthorisedly for another pe riod of seven days w.e.f 6.1.2001 to 13.1.2001. It was found that the delinquen t officer had left the Tezpur P.S. just after joining his duty on 13.1.2001 wit hout taking permission from the competent authority and accordingly the charges of gross negligence of duty and gross remissness was found to be proved against the petitioner. The petitioner was also issued show cause notice dated 29-6-2004 asking him to show cause, as to why, the penalty as per Rule 66 of Assam Police Manual, Part- III, should not be inflicted on him. A departmental enquiry was drawn up against the petitioner on the basis of findings arrived at by the Enqu iry Officer. In the said notice it is also stated that the report of the Enquiry Officer has been included therein. The said notice was also served upon the pe titioner on 14-7-2004 when the petitioner preferred not to submit any reply to t he said notice within the period of seven days as fixed therein. The letter date d 14.7.2004 is stated to be written by the petitioner himself wherein he alleges that the second show cause notice dated 26-6-2004 does not bear any enquiry rep ort and he was not in a position to know about the departmental enquiry initiate d against him. However the petitioner did not mention anything regarding the pro posed penalty in the said letter also. Consequently the disciplinary authority v ide impugned order dated 16-8-2004 discharged the p etitioner from service on the basis of the charges made against him. 3. Although a statutory departmental appeal lies against such order, the same being barred by limitation the authority did not accept his appeal and returned the same to the petitioner. 4. A copy of the said appeal has been annexed as Annexure- VII to the writ petition. 5. Although the petitioner has raised various points in this appeal, particularly the violation of the provisions of Rule 9 of the Assam Service Ru les, 1964 to the effect that in conducting the said enquiry the authority violat ed the procedural requirements contained under the said Rules, particularly Sub Rules 6, 7 and 8, resulting inapplicability of the findings arrived at by the En quiry Officer. It is also submitted that the provisions of natural justice was a lso violated by not furnishing the enquiry report to the petitioner and as a res ult the petitioner being an ordinary citizen the authority ought to have accepte d his appeal and disposed of the same on merit. The learned counsel also raised the issue of disproportionate punishment of the offence charged and submits tha t the gravity of the offence do not justify such legitimate punishment of discha rging him from service. The learned State Counsel, on the other hand, submits that the petit ioner is an habitual absentee and the proceedings drawn against him was conducte d by providing him necessary opportunities and accordingly he did not participat e in the proceeding that was drawn against him. Consequently, the petitioner has no legs to stand in this petition. 6. I have considered the rival submissions made by the learned counsel f or the parties. The learned State counsel has also produced the connected case re cords. 7. On perusal of the records, I find that no order sheet has been mainta ined by the Enquiry Officer in conducting the enquiry and it does not indicate t he procedural steps taken by the Enquiry Officer in holding the enquiry. The pro cedural correctness is the essence in a departmental proceeding. The provisions of Rule 9 of the Assam Service Rules are held to be mandatory by the Division Be nch of this Court reported in 1983 (1) GLR 71 ( Dr. R. Bujarbaruah -v- State of Assam). Even if the delinquent officer does not appear in a departmental enqu iry the enquiry officer is not absolved form complying with the mandatory requir ements of law. 8. In the instant case although a statutory appeal lies before the highe r authority such an appeal was not entertained as it was barred by limitation. 9. Mr. Sinha has strenuously urged that the punishment of discharge for m service inflicted upon the petitioner is not only stigmatic but also grossly d isproportionate to the offence charged with. However Mr. Sinha has agreed that e ven at this stage, if the court permits he is ready to approach the appellate au thority 10. In view of the above submissions of Mr. Sinha, this petition is dispos ed of with the direction that the petitioner shall, within a period of two weeks from today, file appropriate departmental appeal before the appellate authority who shall dispose of the same on merit taking note of the observations made her einabove. The State Counsel shall furnish a photocopy of the enquiry report to Mr. Sinha to facilitate the preparation and submission of the appeal. In the event of filing such appeal the appellate authority shall dispose of the same in accordance with the provisions of law and observations ma de hereinabove as expeditiously as possible and at any rate not late than 30 da ys from the date of receipt of a certified copy of the order. 12. With the aforesaid observations and directions and this writ petit ion stands finally closed.