WP(C) 4598/2003 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA Heard Ms. M. Barman, learned counsel for the petitioner as well as Mr. D. Bhatta charjee, learned Standing Counsel, ASEB. The petitioner who has been reduced in rank (Sr. Meter Reader to Meter Reader) a s a measure of penalty pursuant to a departmental proceeding has filed this writ petition challenging the order of penalty dated 23.5.2003 (Annexure-14) passed by the Chief Engineer (D). Two fold grounds, on which the said order has been put to challenge are that the re was procedural irregularities in conducting the enquiry and that the appointm ent authority of the petitioner being the Member (T), the impugned order of pena lty could not have been passed by a subordinate authority i.e. Chief Engineer (D ). Dealing with the particular incident relating to which the departmental proce eding was drawn against the petitioner, the petitioner has contended that his ac tion in the matter being in bonafide exercise of his official duties and functio ns, the respondents ought not to have attributed any fault to the petitioner so as to draw up departmental proceeding against him. As per the impugned order of penalty, the petitioner was to remain under reducti on in rank for a period of 5 years. It is submitted by the learned counsel for t he petitioner that after the period of penalty was over, the petitioner had agai n been promoted to the rank of senior meter reader. Presently, he is at the verg e of retirement from service on attaining the age of superannuation. As regards the purported procedural irregularity in the enquiry proceeding, the petitioner has made some vague and general statements to the effect that he was not provided with defence assistance to defend himself in the enquiry proceeding and that the Enquiry Officer did not appreciate the evidence on record in its t rue perspective. Needless to say that in a department proceeding, prejudice will have to be shown towards raising a technicality in conducting the enquiry. Nothing has been brou ght on record to show that taking the plea of non-availability of the defence as sistant, the petitioner had raised any grievance in the enquiry proceeding. If h e wanted to engage any defence assistance, he could have very well asked for the same. However, he participated in the enquiry proceeding and availed of all rea sonable opportunity provided to him. For a ready reference, the charge against the petitioner as was leveled vide let ter dated 12.10.2001 is reproduced below: Sri Sashidhar Patowary, Sr. Meter Reader (under suspension) of Guwahati Elect. Division (Central), ASEB, Ulubari, Guwahati-7 has visited the preemies of a cons umer on 1.9.2001 and 4.9.2001 without authority, pretending himself as an Inspec tor of the ASEB with an ulterior motive. This amounts to misconduct of fraud an d dishonesty in connection with the business of the Board or its property on hi s part, under Regulation 10 of the ASEB (General Service) Regulations, 1960. Regulation 10 of the ASEB (General Service) Regulations, 1960 provides that ever y employee of the Board shall discharge the duties assigned to him with integrit y, loyalty and promptitude, and carry out all lawful orders of his superiors in respect of the work allotted to him. However, Sri Patowary has failed to dischar ge his duties in a befitting manner. Charge: Fraud and dishonesty in connection with the business of the Board or its property. Along with the aforesaid charge, the petitioner was also furnished with the stat ement of allegation detailing the incident for which he was charged as above. Th e petitioner was also provided with lists of documents and witnesses by which th e charge was sought to be established. In response to the charge, the petitioner by his Annexure-8 letter dated 19.10.2 001 requesting the disciplinary authority to furnish him with the required docum ents enabling him to submit his written statement of defence. The said letter wa s followed by another letter dated 22.11.2001 asking for furnishing of the requi red documents. It appears that the petitioner was supplied with the documents as is evident fro m Annexure-8 (b) letter dated 8.12.2001 addressed to the petitioner by the disci plinary authority. By the said letter, the petitioner was directed to submit his written statement as he had already inspected the documents. After the said let ter dated 8.12.2001, the petitioner submitted his written statement of defence d ealing with the charge elaborately and without raising any grievance regarding n on-furnishing of documents which he had applied for. After the aforesaid development, the Enquiry Officer appointed for the purpose, conducted the enquiry and the petitioner was provided with all reasonable opport unity of being heard. On conclusion of the enquiry, report thereof was submitted and the same was forwarded to the petitioner for his reply thereto. The petitio ner was furnished with the copy of the enquiry report by Anexure-12 A letter dat ed 8.4.2003. In the enquiry report, the petitioner was held guilty of the charge leveled agai nst him, upon a threadbare discussion of the entire materials on record. The rel evant portion of the enquiry report is quoted below: (8). I have gone through the reasoning of the presenting officer repeatedly and I accepted his reasoning. (9) To visit any consumers premises by a Board’s employee alone with malafide in tension of holidays causing damage to the reputation of the Board, is a criminal offence. The officers of the Board namely the Addl. Chief Engineer Guwahati Zon e, the Executive Engineer, Guwahati Elect. Divn. (Central) or the A.E.E., Ulubar i Electrical Sub-Division could have lodged FIR to the police before 4th Sept/01 to trap the accused. Therefore, the charges brought against Sri Sashidhar Patowary, under Regulation 10 of the ASEB (General Service) Regulation, 1960, had been established. I found him guilty of the charges. In response to the enquiry report, the petitioner made his detailed representati on. Thereafter the disciplinary authority passed the impugned Annexure-14 order dated 23.5.2003 imposing the penalty of reduction in rank for a period of 5 year s. Be it stated here that at the time of the proceeding, the petitioner was unde r suspension and by the impugned order of penalty, he was reinstated in service as Meter Reader with the stipulation that the period of suspension would be trea ted as period of absence from duty and that the same would not be counted toward s pension. It was also provided that the petitioner would not get pay and allowa nces for the period of his suspension except the subsistence allowance already p aid. Being aggrieved by the aforesaid order of penalty, the provided preferred depart mental appeal dated 29.5.2003 addressed to the Chairman, ASEB. As disclosed in t he affidavit-in-opposition, the said appeal was rejected by a detailed order dat ed 15.12.2003, a copy of which has been annexed as Annexure-9 to the counter aff idavit. Be it stated here that there is no challenge to the appellate order. As regards the second round of attack to the impugned order of penalty i.e. the petitioner could not have been imposed with the penalty by an authority lower th an the appointing authority, the respondents in their counter affidavit have sta ted that the order of promotion by which the petitioner was promoted to the post of Senior Meter Reader from that of Meter Reader was to be passed by the Chief Engineer and that the same person used to hold both the posts of Chief Engineer and Member (T). That apart, the member (T) did not appoint the petitioner to the service, but the petitioner has placed reliance on the order of promotion, whic h was issued under the signature of Member (T). The ASEB being an instrumentalit y of the State and its employees not being pure and simple State Government empl oyees, the provision of Article 311 of the Constitution of India are also not ap plicable to them. If the power, authority and jurisdiction of the Chief Engineer was issued by the Member (T) towards promoting the petitioner to the rank of Se nior Meter Reader, that cannot be projected as a case of reduction in rank by an authority lower than the appointing authority. In absence of any procedural irregularity in conducting of departmental enquiry, needless to say, that the Writ Court exercising the power of judicial review un der Article 226 of the Constitution of India cannot sit on appeal over the findi ngs recorded by the authorities involved in a departmental proceeding. It also c annot be sit on appeal over the evidence on record so as to re-appreciate the sa me and arrive at a different findings. For all the aforesaid reasons, I do not find any infirmity in the impugned order . However, that part of the impugned order, which speaks discontinuation in serv ice stands interfered with. As per the impugned order dated 23.5.2003, the perio d of suspension of the petitioner shall be treated as a period of absence from d uty and shall not be counted towards pension. Since the petitioner was placed un der suspension, he was very much in the employment roll of the ASEB authority an d it cannot be said that he was absent from duty so as to disentitle him the ben efit of pension. Accordingly, it is hereby provided that continuation in service of the petitioner shall be maintained even for the period of suspension and the said period shall count towards pension. With the above direction, observation and modification of the impugned order of penalty, writ petition stands disposed of..