WP(C) 5237/2007 BEFORE THE HON’BLE MR JUSTICE RANJAN GOGOI THE HON’BLE MR JUSTICE B.P. KATAKEY Heard Mr. B Chetri, learned counsel for the petitioner, Mr. R Ad hikari, learned State counsel appearing for the respondent No. 1, Mr. BK Singha, learned counsel appearing for the respondent Nos. 2 and 3 and Mr. S Sarma, lear ned counsel appearing for the respondent No. 4. 2. The petitioner was appointed as a Peon in the office of the Chai rman, District Legal Service Authority, Darrang, Mongoldoi by an order dated 9.1 2.2005. The said appointment was made on the basis of due selection and after ap proval of the then State Level Empowered Committee. The petitioner joined servic e on 12.12.2005 pursuant to the appointment made. Thereafter, it appears that th e petitioner had been absent from duties. While according to the petitioner such absence was on the ground of ill health, in support of which elaborate medical certificates have been enclosed according to the respondent Nos. 2 and 3, the ab sence of the petitioner from duty was unauthorized. In the aforesaid circumstanc es, a notice dated 4.9.2066 was issued to the petitioner, which notice was also directed to be published in the local newspapers. By the said notice the petitio ner was informed that he was kept under suspension with effect from 31.8.2006 an d that a departmental proceeding is being initiated. The petitioner was asked to submit his reply as to why he should not be discharged/terminated from service. 3. The petitioner showed cause by submitting a reply in writing dat ed 18.9.2006 explaining the reasons, which had led to his absence from office. T hereafter, it appears that a regular departmental enquiry was held against the p etitioner on specific charges of unauthorized absence from duties for three peri ods: (a) 11.3.2006 to 9.7.2006 (b) 13.7.2006 to 14.7.2006 (c) 5.8.2006 to 18.9.2006. 4. The proceedings of enquiry were held ex parte at the conclusion of which the enquiry officer submitted his report holding the charge levelled ag ainst the petitioner to be proved. On the basis of the enquiry report the respon dent Nos. 2 and 3 by order dated 30.3.2007 imposed the punishment of removal of the petitioner from service on the ground of commission of gross misconduct i.e. unauthorized absence from duties. Being aggrieved, this writ petition has been filed. 5. The learned counsel for the petitioner has taken the Court throu gh the various averments made in the writ petition particularly in Para 9 and 10 wherein it is stated that no notice of the enquiry was served on the petitioner and that he was totally unaware of the enquiry held against him. In the aforesa id paragraphs of the writ petition, the petitioner had also stated that the copy of the enquiry report was not furnished to him and that he had obtained the sam e from the respondent Nos. 2 and 3 much after the order dated 30.3.2007 was pass ed. 6. In reply to the aforesaid contentions advanced on behalf of the writ petitioner, the attention of the Court has been drawn to the affidavit of t he respondent No. 2 whereby the averments of the writ petitioner with regard to Notice of enquiry has been sought to be explained by stating that from the enqui ry report it is evident that the notice of the enquiry was sent to the petitione r by registered post. 7. Though the law permits a presumption to be drawn with regard to service of notice sent by registered post, the said presumption can always be re butted by demonstrating that, though notice had been sent by registered post, th e same was not received by the noticee. The petitioner in para 9 and 10 of the w rit petition has categorically averred that the notice of the enquiry was not re ceived by him at any point of time and he was totally unaware of the enquiry hel d against him. 8. In view of the aforesaid categorical stand taken by the petition er it was incumbent on the respondents to prove and establish that the notice se nt by registered post was actually served on the petitioner. This has not been d one. Instead the affidavit of the respondent Nos. 2 and 3 indicates that the sta nd of the petitioner with regard to lack of notice has been sought to be denied by stating that the same was sent by registered post. 9. It is our considered view that the aforesaid stand taken by the respondent in the affidavit filed does not fully prove and establish that notice of the enquiry was received by the petitioner. In so far as service of a copy o f the enquiry report is concerned, the stand taken by the respondents is the sam e i.e. the report of enquiry was sent by registered post. 10. In the aforesaid circumstances, the conclusion that has to be re ached is obvious. The conduct of the enquiry against the petitioner and the find ings recorded there in, which has formed the basis of removal of the petitioner from service, have been without affording due opportunity to the petitioner and therefore in violation of the principles of natural justice. 11. We, therefore, set aside the order dated 30.3.2007 removing the petitioner from service as well as the findings of the enquiry officer on the ch arges brought against the petitioner. A denovo departmental proceeding will be n ow initiated against the petitioner wherein he will be afforded a reasonable opp ortunity to defend himself against the charges levelled. As much time has elapse d the denovo departmental proceeding against the petitioner will be completed wi thin a period of six months from the date of receipt of a copy of this order. 12. The writ petition consequently stands allowed to the extent indi cated above.