WA 10/2004 BEFORE THE HON’BLE MR JUSTICE AMITAVA ROY THE HON’BLE MR. JUSTICE MUTUM BK SINGH JUDGMENT AND ORDER AMITAVA ROY , J Feeling aggrieved by the judgment and order dated 27.06.2003, passed in C.R. No. 3292/1994, dismissing the challenge to the termination of his services as a dis ciplinary measure, the appellant is in appeal. 2. We have heard Mr. DC Mahanta, Senior Advocate for the appellant and Mr. N Singha, learned standing counsel, Assam State Electricity Board (herei nafter also referred to as the ’Board’). 3. The pleaded case of the petitioner in brief, is that while he wa s posted as Assistant Engineer at KANCH Electrical Circle, vide letter dated 16. 06.1992, the Addl. Chief Engineer (Com), ASEB, Guwahati, instructed the Superint ending Engineer (E), KANCH Electrical Circle to take necessary steps for early realization of an outstanding amount of Rs. 1.5 crores from the Board’s consumer M/s. Vinay Cements Ltd. As the said letter did not reach the Superintending En gineer KANCH Electrical Circle, the said authority entrusted the appellant/writ petitioner with the duty to collect a copy thereof, from the office of the Addl. Chief Engineer (Com) ASEB, Guwahati, as he was scheduled to visit the city in connection with other official duties. 4. According to the appellant/writ petitioner, after arriving at Gu wahati on 27.09.1992 at about 3.45 P.M, he visited the Superintending Engineer i n the office of the Addl. Chief Engineer (Com), whereafter, he was directed to a pproach the Executive Engineer of the same office. The executive Engineer of t he office of the Addl. Chief Engineer (Com) Guwahati, asked the appellant/writ p etitioner to copy the contents of the letter dated 16.06.1992 available in the r ecords, on being dictated by him (Executive Engineer). It has been pleaded that the Executive Engineer after dictating the letter in a hurry insisted upon the appellant/writ petitioner to acknowledge the receipt of the letter which in good faith he did. In due course, the petitioner handed over the copy of the said l etter to the Superintending Engineer KANCH Electrical Circle. Long thereafter, in the month of May 1993, he was placed under suspension and was thereafter, ser ved with a confidential letter dated 15.05.1993, charging him with fraud and dis honesty in connection with the business of the Board with the intention to cause wrongful gain to M/s. Vinay Cements Ltd. Thereby, the appellant/writ petitione r was asked to show cause under Regulation 10 of the ASEB (General Service) Regu lations, 1960 (hereinafter also referred to as the ’Regulations’), as to why he should not be penalized for the above misconduct. The memorandum of charge was accompanied by statement of allegations and lists of documents and witnesses. 5. The appellant/writ petitioner submitted his written reply denyin g the allegations. It would be appropriate to extract the relevant portions the reof, for ready reference: - The applicant after finishing his official duties went to Bijuli Bhawan, Paltan bazar, Guwahati on 27.07.1992, and met with the Superintending Engineer (Com), r egarding the letter dated 16.06.1992 as asked by the Superintending Engineer, KA NCH Electrical Circle. And the Superintending Engineer (Com) advised to meet wi th Mr. Chandi Medhi and handed over the letter given by the Superintending Engin eer, KANCH to the Additional Chief Engineer (Com), ASEB Paltan Bazar for supplyi ng a copy of the letter dated 16.06.1992 and forwarded the above letter to Sri C handi Medhi and accordingly I went to his table as directed by the Superintendin g Engineer (Com). Thereafter, Sri Chandi Medhi on 27.07.1992 allowed the applic ant/myself to copy the letter dated 16.06.1992 and accordingly the applicant cop ied the above letter on 27.07.1992 with his remark copied in toto’ and signed o n the body of the letter dated 16.06.1992 on 27.07.1992. Further I beg to state that, the S.E. (Com), directed Sri Chandi Medhi, Executiv e Engineer to supply a copy of letter dated 16.06.1992. But Sri Chandi Medhi di d not supply the same and asked me to copy the same from the file and under the compelling circumstances I copied the same. And the same copy has been submitte d in the office of the Superintending Engineer, KANCH, Diphu on 29.07.1992. 6. In the disciplinary proceeding that followed, the appellant-peti tioner participated therein. The disciplinary authority examined witnesses and introduced documents in support of the charge. The appellant also offered a sta tement of defence in which he inter alia, admitted to have copied the typed lett er in his own handwriting ad verbatum asserting that the copy made by him of the letter dated 16.06.1992, was a replica thereof, as produced by the Executive En gineer C.R. Medhi. 7. The inquiry officer found the charge to be proved. On a conside ration of the materials on record, a copy thereof, was forwarded to the appellan t-petitioner along with the record of evidence and by the show cause notice date d 11.07.1994. He was asked to rerepresent against the proposed penalty of dismi ssal from Board’s service. Though, he did so, the disciplinary authority by the order dated 10.08.1994 terminated his services. 8. The Board in its counter has averred that the appellant-writ pet itioner was directed to attend the office of the Addl. Chief Engineer (Com) Guwa hati on 27.07.1992, for collecting the copy of the letter dated 16.06.1992, whic h was supplied to him by the Executive Engineer, Shri C.R. Medhi. However, he, after returning to his office delivered a handwritten copy of the said letter to the Superintending Engineer KANCH, Electrical Circle Diphu, without the instruc tion issued by the Addl. Chief Engineer (Com) Guwahati, to effect disconnection of the M/s. Vinay Cement Ltd. for non-payment of the revenue in arrear of an amo unt of Rs. 1.5 crore. The omission as above, on the part of the appellant havin g been construed to be deliberate and fraudulent for causing wrongful gain to M/ s. Vinay Cement Ltd., it was treated to be a gross misconduct on his part for wh ich he was placed under suspension by order dated 30.04.1993 and he was thereaft er served with a memorandum of charge initiating a disciplinary proceeding again st him under the Regulations. The reply submitted by the appellant-writ petitio ner not being satisfactory, the Board pursued the proceedings in course of which it examined four witnesses. The appellant-writ petitioner was afforded all rea sonable opportunities to defend himself in the proceeding and eventually the enq uiry officer submitted his report on 20.05.1999 holding the charge to be proved. A second show cause notice was thereafter issued to the petitioner, furnishing therewith a copy of the inquiry officer’s report to which the appellant-petitio ner responded. The disciplinary authority not being convinced thereby, the prop osed penalty of termination of service was imposed on him. According to the Boa rd, though, a copy of letter dated 16.06.1992 had been handed over to the appell ant-writ petitioner by Shri C.R. Medhi, he (petitioner) submitted a copy thereof , in his handwriting to the Superintending Engineer KANCH, Diphu, intentionally excluding the second paragraph thereof. On enquired by the Superintending Engin eer KANCH, Diphu, Electrical Circle about the correctness of the hand written co py, the appellant made the following endorsement thereon: - This has been collected from the Addl. Chief Engineer (Com) in toto (Signature of) J. Barua, AE 15.11.92 KANCH Circle, Diphu. 9. The respondents have maintained that as the action of omitting t he operative direction contained in the letter dated 16.06.1992, was fraudulent and dishonest, his services were terminated in the interest of the Board. The l earned Single Judge noticing that the disciplinary proceeding had not been quest ioned on the ground of denial of procedural safeguards, held the view on the bas is of the materials on record that the present was not a case of no evidence a nd considering the limited scope of scrutiny under Article 226 of the Constituti on of India, declined to interfere. The appellant-writ petitioner’s conduct was held to be prejudicial to the Board. 10. The only argument advanced by Mr. Mahanta is that the proved imp utation could not in any view of the matter be construed to be a fraud or dishon esty to the Board’s services and, therefore, the penalty imposed, is shockingly disproportionate requiring the interference of this Court. The learned Single J udge having left out of consideration the above aspect of the matter, he urged t hat in the interest of justice, the impugned judgment and order needs to be set aside. 11. Mr. Singha, in reply has urged that it being apparent from the r ecorded facts that the appellant-writ petitioner was guilty of a misconduct of c ommitting fraud and dishonesty to the Board’s services, the penalty imposed is p roportionate to the proved charge and, therefore, this Court would not sit in ap peal thereon. 12. We have carefully weighed the rival contentions. Having regard to the arguments outlined hereinabove, we would confine the analysis of the mate rials on record bearing only on the same. Admittedly, the copy of the letter da ted 16.06.1992, produced by the appellant/writ petitioner before the Superintend ing Engineer, KANCH Electrical Circle, did not contain the following, though the same comprised the second paragraph of the original letter of the same date. You are further requested to serve disconnection notice as per this office lett er No. ACE (COM)/T-d10/92/2, dt. 02.06.1992 and effect disconnection in the even t the payment in delayed beyond the stipulated time. 13. It cannot be gainsaid that the above operative direction for dis connection of electric supply to M/s. Vinay Cement Ltd. being in arrears of Rs. 1.5 crores seeing from the view point of the Board was vital. Noticeably, the a ppellant-writ petitioner has been inconsistent with regard to the process of mak ing the handwritten copy of the said letter. Whereas, in the disciplinary proce edings as noticed, he was categorical in asserting that he had copied the conten ts from the letter dated 16.06.1992, produced from the official records by the E xecutive Engineer C.R. Medhi, his plea in the writ petition, is that the same ha d been taken down by him as dictated by Shri Medhi. The omission on the part of the appellant-petitioner to take down the contents of the letter dated 16.06.19 92 as a whole, is intriguing he being such a senior officer of the Board. Signi ficantly, Shri C.R. Medhi examined in the disciplinary proceeding, has testified that a copy of the letter dated 16.06.1992 from the official records had in fac t been handed over to the appellant-petitioner as instructed by the higher autho rity. The same stand is reiterated by the Board in its counter in the instant p roceeding. This assumes importance in view of the petitioner’s admission in the disciplinary proceeding that he had copied the contents of the letter dated 16. 06.1992, and his insistence that the copy furnished to the Superintending Engine er KANCH Electrical Circle, was an exact copy thereof. 14. Having regard to the attendant facts and circumstances and the w avering stand of the appellant-petitioner in the teeth of the categorical assert ion of the Board to have supplied to him a copy of the letter dated 16.06.1992, we cannot persuade ourselves to conclude that the view taken by the learned Sing le Judge pertaining to the charge of fraud and dishonesty is absurd and illogica l. The petitioner has failed to offer a consistent and convincing explanation t o the apparent dereliction of duties. Considering the wrongful advantage enjoye d by the defaulter consumer thereby, at the cost of the Board, the charge of fra ud and dishonesty is not misplaced. Not only according to us, the appellant-pet itioner had failed to discharge his duty with sincerity and devotion as was expe cted of him, his conduct in the background of the staggering arrears of revenue due to the Board and the obvious advantage availed by the consumer involved, cal led for the disciplinary action as taken. The Board being satisfied on the basi s of the materials available that the appellant-petitioner by his conduct has re ndered himself unsuitable for retention of its services in exercise of our writ jurisdiction, we do not intend to interfere therewith. As it is, the prerogativ e of selecting a penalty in a disciplinary proceeding normally rests in the auth ority concerned and interference by the Court is called for only if the same is shockingly disproportionate to the proved charge. In the facts and circumstance s of the case, we are unable to repudiate the decision of the Board on this coun t. 15. The Board has made an assessment of the recorded facts and has a rrived at a conclusion, which cannot be impeached as irrational or preposterous. We therefore, do not find merit in the appeal, which is accordingly dismissed. No costs.