High Court
Case Details
WP(C) 1228/2006 BEFORE THE HON’BLE MR. JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (ORAL) Challenge made in this writ petition is to the legality and validity of the order dated 18-03-2005 passed by the Chairman, Assam State Electricity Board (ASEB) imposing the penalty of stoppage of five increments with cumulative effe ct on the petitioner and also directing that the period of suspension shall be t reated as period absent from duty. Further prayer made is to consider the promot ion of the petitioner which was denied because of his suspension and punishment. 2. Case of the petitioner is that at the relevant point of time he was working as Assistant Manager (Accounts) in the office of the Superintending Engineer, Lower Assam Civil Circle, ASEB. Petitioner, who was placed under suspe nsion, was served with a show-cause notice dated 27-05-2004 under Regularization 10(1) of the ASEB (General Service) Regulations (for Officers), 1960 (Regulatio ns) to show-cause as to why he should not be penalized for the charges framed ag ainst him. The following were the charges framed against him:- (1) (2) (3) taking bribe or illegal gratification, dishonesty in connection with the business of ASEB, breach of ASEB Officers (Conduct) Regulations, 1982.
Legal Reasoning
The allegations based on which the above charges were framed will be referred to more in detail in the later part of the judgment. At this stage, suffice it to say that the gist of the allegation against the petitioner is that a complaint d ated 27-01-2004 was received from one Shri Lila Kanta Duari, LDA, Sivasagar Elec trical Sub-Division-1, ASEB alleging that petitioner had demanded payment of Rs. 10,000/- from him to correct his date of birth in the service book so that his s ervice could be extended. According to the complainant, he had paid Rs.6000/- as the first instalment. When the petitioner did not make the change in the servic e book, he complained before his uncle Shri K.N. Buragohain, who was the Member (Personnel) of ASEB. Petitioner was reprimanded by Shri Buragohain whereafter he returned the money to Shri Lila Kanta Duari. Similar complaints against the pet itioner were received from one retired employee Shri R.N. Dev and a few other re tired employees. The show-cause notice was accompanied by statement of allegatio n, list of documents and the list of witnesses. 3. Petitioner submitted his written statement dated 17-06-2004 cate gorically denying the allegation of bribe taking from any of the persons mention ed in the show-cause notice. He also stated that as an officer of ASEB, he had a lways maintained integrity and had done nothing which was unbecoming of an offic er of ASEB. He also stated that during his entire service career, he did not rec eive a single complaint from any quarter regarding lack of integrity. He, theref ore, prayed for dropping of the charges.
Legal Reasoning
4. It appears that the reply of the petitioner was not accepted by the disciplinary authority. Accordingly, enquiry was ordered to enquire into the charges framed against the petitioner. One Shri R.N. Bora, IAS (retired) was ap pointed as the Enquiry Officer. During the enquiry, eight witnesses were examine d on behalf of the management, who were cross-examined by the petitioner. Petiti oner did not examine any witness in his defence. However, petitioner’s statement was recorded. At the conclusion of the enquiry, the Enquiry Officer submitted h is report dated 13-10-2004 holding all the three charges against the petitioner to have been proved. A copy of the enquiry report was furnished to the petitioner wid 5. e the forwarding letter dated 27-11-2004. It was stated that since the charges a gainst the petitioner were proved, the disciplinary authority proposed to inflic t upon the petitioner the penalty of termination from service. Petitioner was, t herefore, asked to show-cause as to why such penalty should not be inflicted. Petitioner submitted a detailed reply dated 24-01-2005. It was c 6. ontended that the entire enquiry report was based on suspicion. There was no evi dence to hold that the charges against the petitioner were proved. He, therefore , prayed for dropping of the proceedings and to exonerate him from the charges. 7. Chairman, ASEB as the disciplinary authority passed the impugned order dated 08-03-2005 holding that petitioner was guilty of the charges broug ht against him. Accordingly, the punishment, as already noticed above, was impos ed on the petitioner. Petitioner was reinstated in the same post but it was clar ified that he would not be entitled to any pay and allowances for the period of suspension except the subsistence allowance already paid. 8. Against the aforesaid order of penalty, petitioner preferred an appeal before the appellate authority on 29-04-2005. Secretary, ASEB issued orde r dated 06-12-2005 stating that the Board of Directors (Board) in its meeting he ld on 05-10-2005 examined the appeal but did not find any reasonable ground to d isturb the order of penalty dated 08-03-2005. Board, therefore, rejected the app eal of the petitioner. 9. g the reliefs as indicated above. Aggrieved, petitioner has filed the present writ petition seekin 10. Contention of the petitioner is that Shri K.N. Buragohain, Membe r (Personnel) was present and had participated in the Board proceedings while co nsidering the appeal of the petitioner. Shri Buragohain was the uncle of the com plainant Shri Lila Kanta Duari and it was at his instance that the complaint was filed against the petitioner by Shri Duari. Shri Buragohain had also deposed in the enquiry as a management witness. Chairman, ASEB, who is the disciplinary au thority, also participated in the Board’s proceeding while deciding the petition er’s appeal. Therefore, their participation had vitiated the appellate order. Bo th the appellate order as well as the order of the disciplinary authority are no n-speaking orders. The enquiry was conducted by the Enquiry Officer in such a ma nner so as to suit the case of the disciplinary authority. The findings in the e nquiry report were entirely based on suspicion, surmises and conjectures. There was no credible evidence or proof against the petitioner. In such circumstances, impugned punishment cannot be justified and calls for appropriate interference by the Court. Respondents have filed a common affidavit. Stand taken in the sa 11. id affidavit is that petitioner was placed under suspension on 28-04-2004 and t hereafter show-cause notice was issued on 27-05-2004. After holding an enquiry, order dated 08-03-2005 was passed imposing the punishment of stoppage of five in crements with cumulative effect after confirming the suspension order. The perio d of suspension was directed to be treated as a period absent from duty. In the enquiry, Enquiry Officer duly examined all the evidence and the petitioner was g iven ample opportunity to defend his case. Disciplinary authority also gave per sonal hearing to the petitioner before passing the impugned order. Though initia lly termination from service was proposed, after considering all aspects, the di sciplinary authority decided to impose the lesser penalty of stoppage of five in crements with cumulative effect. Appeal of the petitioner was examined by the Bo ard on 05-10-2005 and after due consideration, the same was rejected. It was a c ombined decision of the Board and question of influencing the Board’s decision b y any individual member did not arise. The charges against the petitioner were g rave which were proved in a regular disciplinary proceeding. Therefore, his case was not considered by the DPC for promotion. No person junior to the petitioner was promoted. 12. Petitioner had filed an affidavit on 21-03-2013. It is stated th at petitioner retired from service on superannuation in the month of February, 2 013. He has stated that while visiting the ASEB office in connection with his re tiral benefits, he could see the resolution of the Board dated 05-10-2005 relati ng to his departmental appeal. He has placed on record the relevant extract of t he said resolution which he had noted down. As per the proceedings of the Board dated 05-10-2005, it was resolved that the appeal of the petitioner be rejected and a reasoned order be passed in the line of the parawise comments submitted by the management on the appeal. The proceedings further indicate that the Chairma n, ASEB, who is the disciplinary authority, and the Member (Personnel), ASEB wer e present in the meeting and had participated in the proceedings dated 05-10-200 5. 13. Respondents had filed an affidavit on 10-04-2013 in response to the above affidavit filed by the petitioner. Though it is admitted that the Chai rman, ASEB and Member (Personnel), ASEB attended the meeting of the Board on 05- 10-2005 as there were other items in the agenda, at the time of consideration of the appeal of the petitioner, both of them did not take part. 14. In his reply affidavit filed on 10-04-2013, petitioner has quest ioned the competence of Shri Gobinda Deka, Deputy General Manager (HR), Assam Po wer Distribution Company Limited to swear the affidavit on behalf of the respond ents, which was filed on 10-04-2013. He has reiterated his contention that both Chairman and Member (Personnel) were present and had participated in the meeting of the Board held on 05-10-2005. 15. This Court by order dated 01-03-2006 had admitted the writ petit ion and had called for the record. Though the record was produced at the time of hearing, it did not contain the appellate proceedings of the Board. Consequentl y, learned Standing Counsel was directed to produce the record of the proceeding s of the Board. Learned Standing Counsel produced an extract copy of the proceed ings of the Board meeting No.9/2005 held on 05-10-2005. 16. . Bhattacharjee, learned Standing Counsel, ASEB for the respondents. Heard Mr. P.K. Roy, learned Counsel for the petitioner and Mr. D Mr. P.K. Roy, learned Counsel for the petitioner in his elaborat 17. e submission has argued that the findings recorded by the Enquiry Officer are no findings at all in the eye of law as those are not based on any evidence. Findi ngs have been recorded on the basis of suspicion, surmises and conjectures. On t he basis of such findings, no penalty could have been imposed on the petitioner. The penalty imposed is also not as per the Regulations in as much as while the Regulations provide for the penalty of stoppage of increments for a specified pe riod, in case of the petitioner the penalty imposed was stoppage of five increme nts with cumulative effect, which means the stoppage is not for a specified peri od but for an indeterminate and indefinite period. However, learned Counsel for the petitioner focussed more on the appellate proceedings which affirmed the pen alty order of the disciplinary authority. He has argued that participation of th e Chairman and the Member (Personnel) in the proceedings of the Board on 05-12-2 005 when the appeal of the petitioner was taken up for consideration, was in com plete violation of the principles of natural justice and fair play in action. Wh ile one cannot sit in appeal over his own decision, the main management witness who had deposed on behalf of the management in the enquiry cannot also sit in ap peal over the decision of the disciplinary authority which was based on the repo rt submitted by the Enquiry Officer, which in turn placed heavy reliance on his deposition. He, therefore, prays for quashing of the impugned order of penalty a s affirmed by the appellate authority. 18. Per-contra, Mr. D. Bhattarcharjee, learned Counsel for the respo ndents submits that the charges against the petitioner were quite grave which we re proved in a regular disciplinary proceeding where the petitioner was given fu ll opportunity to defend himself. The disciplinary authority, however, took a le nient view of the matter and imposed a lesser punishment on the petitioner. In s o far the appellate proceedings are concerned, learned Counsel for the responden ts fairly submits that he does not have the complete proceedings of the Board me eting No.9/2005 held on 05-10-2005, particularly that portion where the members present had put their signatures. 19. In his brief reply, Mr. Roy, learned Counsel for the petitioner submits that as the complete proceedings of the Board meeting No.9/2005 held on 05-10-2005 has not been produced before the Court by the respondents, the Court may draw adverse inference from such omission. 20. ecord produced. Submissions made have been considered. I have also perused the r 21. Before proceeding further, it would be apposite to briefly refer to the relevant provisions of the Regulations. Regulation 10 deals with discipl inary action and punishment. Certain acts and omissions are listed therein which are to be treated as misconduct. Taking or giving bribe or illegal gratificatio n is an act of misconduct. Stoppage of increment for a specified period is one o f the penalties prescribed which may be imposed on an officer found guilty of mi sconduct. Clause (5) of Regulation 10 lays down the procedure to be followed in a disciplinary proceeding. As per the procedure prescribed, ASEB may appoint an appropriate authority to hold the enquiry. Such authority may be from within ASE B or from outside. In the enquiry, the disciplinary authority may employ an offi cer of ASEB to be called Presenting Officer to present the case of the disciplin ary authority together with the evidence. The charged officer may also take the assistance of another officer of ASEB with the prior permission of the disciplin ary authority. In the enquiry, oral evidence shall be heard and the charged offi cer shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish, which may, however, be declin ed by the Enquiry Officer for special and sufficient reasons to be recorded in w riting. 22. From a perusal of the record produced, it is quite evident that no Presenting Officer was appointed by the disciplinary authority to present its case before the Enquiry Officer. Though this issue was not argued by the learne d Counsel for the petitioner, Court is of the view that since this aspect is imp ortant and is apparent from the record, the same cannot be avoided. As already n oticed above, Regulation 10(5)(b) provides for appointment of Presenting Officer . Importance of the Presenting Officer in a disciplinary proceeding cannot be un der-estimated. 23. A departmental enquiry is a quasi-judicial proceeding. Principle s of natural justice, which includes a fair procedure, is inbuilt in such a proc eeding. The Enquiry Officer has to discharge his functions in a quasi-judicial m anner. He has to act fairly and impartially. He has to enquire into the charges by examining the evidence adduced and record a finding. On the other hand, the r ole of the Presenting Officer is to present the case of the disciplinary authori ty before the Enquiry Officer. He is the representative of the disciplinary auth ority. He has to assist the Enquiry Officer by presenting before him the case of the disciplinary authority. He has to marshal the facts and to examine and cros s-examine the witnesses produced during the enquiry. It is he who has to produce and prove the listed documents during the enquiry and lead the oral evidence in support of the charge. Therefore, in the absence of the Presenting Officer, it is the Enquiry Officer who will have to produce the documents and present the wi tnesses. In such a case, he will assume the role of the judge as well as that of the prosecutor, which will be a total negation of the avowed principles of natu ral justice and fair procedure. Absence of the Presenting Officer will certainly not be a fair procedure. 24. Though the disciplinary proceeding stood vitiated because of non -appointment of Presenting Officer, since substantial arguments have been advanc ed on the findings recorded by the Enquiry Officer as well as on the appellate p roceedings, those may also be attended to. The three charges framed against the petitioner have already bee 25. n noticed and noted in the earlier part of the judgment. Charge Nos. 2 and 3 are corollary to charge No.1, which is the main charge. Charge No.1 is taking bribe or illegal gratification. The statement of allegation leading to framing of the above charge indicates that the said Shri Lila Kanta Duari had submitted a comp laint dated 27-01-2004 alleging that petitioner had demanded Rs.10,000/- from hi m for correcting his date of birth in his service book so that his service could be extended. The complainant paid Rs.6000/- as first instalment and promised to pay the balance amount in another instalment. But the petitioner did not make t he necessary correction. On receipt on the complaint, Shri K.N. Buragohain, Memb er (Personnel) verbally reprimanded the petitioner on 08-04-2004 in his office c hamber in the presence of other officers. He was directed to refund the money ta ken by him from the complainant. Accordingly, petitioner proceeded to the native village of the complainant at Sivsagar and handed over Rs.6000/- to him at his residence on the previous day of Bohag Bihu. Likewise, one Shri R.N. Dev, a reti red employee had lodged a complaint that the petitioner had taken an amount of R s.500/- from him for checking his service book. Another complaint was received f rom the Unit Secretary of Power Workers Union, BTPS alleging that petitioner had taken illegal gratification from three other retired employees in addition to S hri R.N. Dev for checking their service books. Petitioner was, therefore, charge d with gross misconduct for taking bribe/illegal gratification. 26. Petitioner in his written statement denied that he had demanded Rs.10,000/- from Shri Lila Kanta Duari and that Shri Duari had paid him Rs.6000/ - as first instalment. Regarding correction of date of birth of Shri Duari in hi s service book, petitioner stated that his date of birth was originally recorded as 01-03-1947. Though it was subsequently changed to 01-03-1946, the same was w ithout the seal and signature of the competent authority and without any documen tary evidence. When the matter was put up before the higher authority, the date of birth was confirmed as 01-03-1947. Therefore, further correction of date of b irth and extension of service of Shri Lila Kanta Duari did not arise. He further submitted that on 08-04-2004, the Member (Personnel) called him to his office c hamber and in the presence of other senior officers severely reprimanded him wit hout giving him any opportunity to say anything. He also denied taking any money from Shri R.N. Dev or from the other three retired employees as alleged. He exp lained that there was no intentional delay in checking the service books which w as due to lack of adequate man power and because of time taken to receive audit report. 27. After examining the evidence adduced by the management witnesses , including that of Shri K.N. Buragohain, the Enquiry Officer discussed charge N o.1 in the following manner :- (cid:28)It is found that the Service Book of Shri Lila Kanta Duari was sent to the offi ce of the Dy. Chief Auditor, ASEB, Guwahati, for some verification/correction. T he date of birth of Shri Duari, according to his Matriculation certificate, was in 1947 and it was recorded accordingly in the Service Book. But, as stated, it was overwritten to make it 1946, in place of 1947. That would mean Shri Duari wo uld have to retire from service one year earlier than the date on which he shoul d retire according to his actual/official date of birth as per the Matriculation certificate. Shri Duari was naturally concerned when he came to know about it. As stated by Shri Duari, Shri Dhiren Das who works as a peon in the same office where Shri Duari works as LDA, and who is a brother of Shri Golap Das, A sstt. Manager (Accounts), Audit, ASEB, Guwahati, told Shri Duari that Shri Golap Das telephoned him to inform Shri Duari that the date of birth in the Service B ook, would be corrected; but for this Shri Duari would have to pay Rs.10,000/- f or Shri Golap Das. After this, Shri Duari met Shri Golap Das at his house near S ibsagar when Shri Das asked for Rs.10,000/- for correcting the date. Later somet ime in Nov/2003, Shri Duari paid Rs.6000/- to Shri Golap Das at his (Shri Das’s) house and promised to pay the balance Rs.4,000/- after wards. Even after paying Rs.6,000/- Shri Duari did not get back his Service Boo k and so, he contracted the Member (Personnel) of the ASEB (who is his relative) . Member (Personnel) informed Shri Duari that he had asked Shri Golap Das to ret urn the money. On the day before the last Bohag Bihu, Shri Golap Das came to his house and returned him the money (Rs.6000/-). Shri Duari gave one receipt also to Shri Das acknowledging the money. Shri Golap Das, of course, denied he took any money from Shri Duari. To refute the contention that Shri Das received the money from Shri Duari in Nov/20 03, Shri Das submitted some papers to show that he availed leave during Nov/2003 , to visit Puri. From these papers (i.e. copies of Railway tickets, Hotel bill o f a Puri hotel and a certificate about grant of leave i.e. 5 days of CL from 17- 11-2003 to 21-11-2003 with Station leave permission from 14-11-2003), it would b e found that Shri Das was away from Guwahati from 14-11-2003 upto 21-11-2003, to visit Puri. The point to note is that Shri Duari does not remember the exact da te on which he paid the money to Shri Das; all that he remembers is that it was in Nov/2003. Apart from the eight days in Nov/03, when Shri Das was away from Gu wahati to visit Puri as stated, there were 22 other days in the month when Shri Das was supposed to be in Guwahati. There were Sundays and other holidays during this period. Thus, the possibility of Shri Das visiting his home in Sibsagar on such Sundays and holidays cannot really be ruled out. What struck me most during the deposition by Shri Duari in this case, is his plain and simple manner. The way he wrote these personal letters to the Mem ber (Personnel and Admn.), Shri Buragohain, because he happened to be his relati ve, the language he used in writing the letter (in Assamese with plenty of wrong spellings also), the manner in which he deposed and replied to questions put to him, would unmistakably suggest that Shri Duari is a very simple and unsophisti cated person, plain and straight in his conduct. It is certainly difficult to be lieve that such a person can invent this kind of a fake story to falsely implica te an officer of the Board, with the charge of bribery. The charge official, Shri Das thinks some people in the ASEB are jealous of him because he got quick promotions and as he also belongs to a S.C. According to Sh ri Das, these people might have engaged Shri Duari (and also the other person Sh ri Dev) to bring such false charges against him. This, however, is hardly convin cing, It is difficult to believe that a man like Shri Duari, working as a LDA, w ithout any reason and without any question of any gain for himself, would bring a false charge of bribery against Shri Das, at the behest or instigation of ’som e people’. Moreover, the statement of Shri Das that some people in the ASEB are jealous of him and that they might have engaged Shri Duari (and Shri Dev) to bri ng such false charges against him, is just a mere surmise, without any basis and is totally unacceptable. Another sticking aspect of the enquiry is the evidence of Shri K.N. Buragohain. Shri Buragohain is the Member (Personnel and Admn.) of the ASEB; and next only t o the Chairman, he is the topmost officer of the Board in matters relating to Pe rsonnel and Administration. Shri Duari is a relative of Shri Buragohain and as s tated by Shri Buragohain, he knows Shri Duari closely. There must have been enou gh ground for Shri Buragohain to believe Shri Duari when he told him that he pai d money to Shri Das for getting the work done. Shri Buragohain immediately calle d some concerned officers of the Board as well as Shri Das to his chamber and as ked Shri Das to return the money to Shri Duari. Subsequent to this, Shri Buragoh ain got another letter from Shri Duari informing him that Shri Das returned the money to him. Shri Buragohain confirmed it also from Shri Duari personally when he met him afterwards. Obviously, Shri Buragohain has nothing against Shri Das; he even did not know him earlier to this complaint (to Shri Duari). There is no plausible reason why Shri Buragohain will acquiesce to initiating of departmenta l action against Shri Das, without very strong and valid grounds. In the written statement submitted by Shri Das during the enquiry on 08-10-2004, he has drawn attention to the ’contradictory’ position of the date of the lette r written by Shri Duari to Shri Buragohain and the day when he advised him to gi ve the complaint in writing. It would be found that Shri Buragohain got the tele phonic call from Shri Duari in April/04 and advised him to give (complaint) in w riting. After this, Shri Buragohain received the letter from Shri Duari, but thi s letter shows it was written in January, 2004 (i.e. on 27-10-2004). The point r aised by Shri Das and with some apparent validity also, is that if Shri Buragoha in asked Shri Duari in April, 2004, to send the written complaint, how could Shr i Duari write the letter in January, 2004 ? The actual position seems to be that Shri Duari must have written the letter in January, 2004 (27-01-2004), but for some reason, it reached Shri Buragohain only in April, 2004 (6th or 7th April). Had Shri Duari written the letter in April, 04 after getting the advice from Shri Buragohain, he would certainly not put the date as 27-01-2004- there could be no earthly reason for him to do so. Shri Dua ri probably did not or could not state about the letter he had already written, to Shri Buragohain, when he (Shri Duari) talked to him on the telephone in April , 2004. As stated, there could be no reason for Shri Duari to write the letter i n April, 2004, by giving the date of the letter as 27-01-2004. It will be found therefore that there is no contradictory position of the date of the letter writ ten by Shri Duari and the day on which Shri Buragohain advised him to give the c omplaint in writing. From what has been discussed above, I find that the allegation against Shri Das that he received Rs.6,000/- from Shri Duari for correcting the date of birth in his Service Book, and that Shri Das later returned the money to Shri Duari, afte r he was asked to do so by the Member (Personnel), Shri Buragohain, has been mad e out. As regards the other allegation coming under this charge, the Retired UDA, Shri R.N. Dev very clearly states that he paid Rs.500/- to Shri Golap Das for expedit ing the work of his Service Book. Earlier, he submitted a written complaint also (dtd.20-03-2004) to the Member (Personnel) stating that he paid Rs.500/- to Shr i Golap Das to expedite the work of his Service Book. Nothing has come out in th e enquiry to disbelieve Shri Dev and accordingly, it is found that this allegati on that Shri Das took Rs.500/- from Shri Dev for expediting the work of his (Shr i Dev’s) Service Book, has also been made out. (cid:29) 28. A careful perusal of the aforesaid portion of the enquiry report will reveal that the Enquiry Officer had based his conclusion purely on surmise s and conjectures. There is no material on record to show that petitioner had d emanded money which was partly paid by the complainant. According to the version of the complainant, he had telephonically informed his uncle Shri Buragohain in April, 2004 regarding the illegal demand made by the petitioner. On advise of h is uncle, he submitted the written complaint. But the date of the written compla int is 27-01-2004. This apparent contradiction has not been explained. Enquiry O fficer says that the letter though written in January, may have reached Shri Bur agohain only in April! This is absurd to say the least. Enquiry Officer also be lieved in the simplicity of the complainant and observed that such a simple and unsophisticated person could not have falsely implicated an officer with the cha rge of bribe taking. Enquiry Officer did not say anything on changing of the dat e of birth of the complainant in his service book from 01.03.1947 to 01.03.1946 by way of over-writing or who would have benefitted from such change. On the exp lanation of the petitioner that he was on leave during November, 2003 to visit P uri as it was alleged that the bribe money was paid in November, 2003, the Enqui ry Officer observed that though the complainant did not remember the exact date when the money was paid to the petitioner, petitioner had taken leave for only e ight days and the money could have been paid during any of the remaining days. 29. It is true that the standard of proof in a disciplinary proceedi ng is not so strict as in a criminal trial or even in a civil proceeding. Even t hen, the charge in a disciplinary proceeding has to be proved and no finding can be arrived at only on the basis of suspicion, surmises and conjectures. On the available materials, I am of the considered opinion that the Enquiry Officer cou ld not have come to the conclusion that charge No.1 against the petitioner stood proved. 30. There is another aspect of the matter. Under Regulation 10, both taking or giving bribe is a misconduct. If the petitioner was charged with taki ng bribe from Shri Lila Kanta Duari, the latter was equally responsible for givi ng bribe. But he was not charged with giving bribe, thus committing misconduct. No disciplinary proceeding was drawn up against him. If the complainant’s versio n is to be believed, both petitioner and complainant were equally guilty of misc onduct. Disciplinary action cannot be taken selectively. Coming to the appellate proceedings, Regulation 10(8) provides t 31. hat in all disciplinary cases where punishments are imposed by the Board, the ap pellate authority will be the Board itself. In this case, it has already be noti ced above that the punishment was imposed by the disciplinary authority i.e. Cha irman, ASEB. In the enquiry, Shri K.N. Buragohain, Member (Personnel), had depos ed as a management witness, which was heavily relied upon by the Enquiry Officer . But in the proceedings of the Board meeting No.9/2005 held on 05-10-2005 which considered the appeal of the petitioner, both the Chairman and the Member (Pers onnel) were shown as present. Respondents have not placed anything on record to show that the said authorities had recused themselves when the appeal was taken up for consideration. On the contrary, in the counter affidavit filed by the res pondents, it is stated in paragraph 10 thereof that the decision of the Board da ted 05-10-2005 was a combined decision. It is thus clear that the above two auth orities had participated in the appellate proceedings, which was in complete vio lation of the principles of natural justice. 32. For all the aforesaid reasons, the impugned orders dated 08-03-2 005 and 06-12-2005 cannot be sustained. Those are accordingly set aside and quas hed. Petitioner will be entitled to all the consequential benefits. 33. 34. Writ petition is allowed. However, there shall be no order as to cost.