WP(C) 2801/2010 BEFORE HON’BLE MR JUSTICE T.VAIPHEI In this writ petition, the petitioner is questioning the legality of the order d ated 01.08.2009 issued by the respondent No.1 imposing a penalty of withholding of two increments without cumulative effect upon him, which, according to him, i s without any justifiable ground. The brief facts of the case are that the petitioner at the material t ime was working as Junior Engineer under the Water Resources Department, Governm ent of Assam and when he was working as Junior Engineer, he was served with a sh ow cause notice as to why he should not be punished for violation of the normal procedure and for misusing his official power in the execution of works. The cha rge leveled against him is found at Annexure 2 to the writ petition. The petitio ner filed his written statement denying the charge leveled against him and praye d for his exoneration from the charge. The department nevertheless proceeded to hold a departmental enquiry against him by appointing an enquiry officer and a presenting officer for the enquiry. It may be noted here that the suspension ord er issued against him in contemplation of the departmental enquiry was subsequen tly revoked without prejudice to the ongoing departmental enquiry held against h im whereupon he was reinstated to his post. The enquiry officer, after completion of the enquiry, submitted his report wh ich is found at Annexure 4 to the writ petition, wherein he found that the charg e leveled against the petitioner was not established beyond any reasonable doubt and recommended that he be exonerated from the charge. The disciplinary authori ty, however, disagreed with the findings of the enquiry officer and, without rec ording any reason for his disagreement with the findings of the enquiry officer, passed the impugned order the petitioner guilty of the charge and awarded him t he said penalty. He also held that the pay of the delinquent officer would be li mited to the subsistence allowance already drawn by him and the period of his su spension would be treated as on duty only for the purpose of pension. The contention of Mr. D.K.Das, the learned counsel for the petit ioner, is that the impugned order betrays non-application of mind by the discipl inary Authority, who has also overlooked the established procedure of law to be followed by him when he has disagreed with findings recorded by the enquiry offi cer and has illegally proceeded to impose the impugned order of penalty.. Accord ing to the learned counsel, had the petitioner been given due opportunity to mak e a representation against the decision of the Disciplinary Authority to disagre e with the enquiry report, he could have convinced the disciplinary authority th at this is not a fit case for holding him guilty of the charge. According to the learned counsel, the impugned order, therefore, suffers from the vice of non-ap plication of mind and material irregularity, which cannot be sustained in law. On the other hand, the learned Standing Counsel, Water Resources Department appearing for the respondents, submits that the impugned order does not suffer f rom any infirmity and that the petitioner was given only a minor penalty for whi ch there is no necessity for granting a reasonable opportunity of hearing nor is it necessary to give an opportunity to the petitioner to make representation ag ainst the decision of the Disciplinary Authority to disagree with the findings o f the enquiry officer. Contending that the impugned order does not suffer from a ny procedural impropriety or illegality, he, therefore, strenuously urges this C ourt to dismiss the writ petition. The law is now well settled that if the Disciplinary Authority, who is not himself the enquiry officer, disagrees with the finding of the enquiry of ficer, he is obliged to supply a copy of the enquiry report together with his ow n tentative reasons for disagreement with the findings of the enquiry officer on any article of charge, to the delinquent official, who shall then submit, if he so desires, his written representation or submission to the disciplinary author ity. This is a mandatory provision. Any violation of this rule will render the d ecision of the disciplinary authority giving penalty to the delinquent official illegal. In the instant case, there can be no dispute that neither the enquiry report nor the tentative reasons for his disagreement with the findings of the enquiry officer were ever furnished to the petitioner by the disciplinary author ity. The disciplinary authority has, therefore, committed material irregularity in issuing the impugned penalty. The fact that the penalty imposed upon the peti tioner is only a minor penalty cannot be a ground for denying the petitioner to make a representation against the enquiry report as well as the tentative reason for disagreement given by the Disciplinary Authority with respect to the findin g of the enquiry report. Had the petitioner been given an opportunity to make re presentation against the enquiry report and the tentative reasons given by the d isciplinary authority for his disagreement with the findings of the enquiry offi cer, the possibility of the petitioner persuading the Disciplinary Authority to take a different view thereby enabling him to exonerate the petitioner from char ge cannot not be ruled out. This is why observance of principles of natural just ice has always been insisted upon by the courts. In my opinion, this valuable ri ght conferred upon the petitioner by law has been violated by the Disciplinary A uthority. Under the circumstances, the impugned order of penalty cannot be susta ined in law and the same is liable to be set aside. For the foregoing reasons, the writ petition succeeds. The impugned order d ated 01.08.2009 (Annexure-6 to the writ petition) issued by the respondent No.1 is hereby quashed. The petitioner shall be reinstated forthwith to his post. The respondent No.1 is directed to forward a copy of the enquiry report with his te ntative reasons for his disagreement as well as the Vigilance report upon the pe titioner within a period of 2(two) weeks from the date of receipt of this order where after the petitioner shall file his representation within 2(two) weeks’ ti me against the enquiry report etc and on the representation made by the petition er, the respondent No.1 shall consider the case afresh and take a decision there on in accordance with law. The respondent No.1 shall pass final order within a m onth thereafter. The question of payment of back wages shall be considered by th e disciplinary authority. It shall also be open to the disciplinary authority to place the petitioner under suspension pending final decision taken by him. With the above observations and directions, this writ petition i s disposed of.