Amitava Roy, J:- In assailment is the order dated 13.03.2006 of the Registrar (Admn.), Gauhati High Court, Guwahati conveying the decision of dismissal of the writ petitioner from service as a disciplinary measure, as well as of the rejection of his departmental appeal preferred against the same. 01.We have heard Mr. A.K. Bhattacharjee, Senior Advocate for the petitioner and Mr. C.K. Sarma Baruah, Senior Advocate appearing for the respondents. 2. Briefly stated, the petitioner's pleaded version is that after having joining the services of this Court in the year 1972 as a Typist, he was promoted to the rank of Lower Division Assistant in the year 1988 and was at the relevant time posted in the Copying Section as the In-charge thereof.A departmental proceeding was initiated against him in the year 2000 under the Gauhati High Court Services (Appointment, Condition of Services and Conduct) Rules, 1967(hereinafter for short referred to as the Rules) leveling the following charge- "That while working as Lower Division Assistant in copying section you, made photocopy of judgment in Civil Rule No.4314/97 on 7.1.99 and after comparing the same you put up to Supdt. of the Copying Section for his signature putting your initial below the Seal as a token of correctness of the content. The Judgment of the said case was neither received from the Civil Rule (Disposal) Section through Movement Register as per procedure of the High Court nor requisite fees was realized in respect of the said certified copy.The Certified copy (which was a certified photo-copy) compared by you contained forged initial of the Hon'ble Judge and the contents of page No.9 was different from that of the original judgment as the operative portion of the judgment was changed in the said certified copy. The above acts of yours amounted to failure to maintain devotion to duty and absolute integrity.Further the said act amounted to negligence to duty and gross misconduct on your part." 3. The above acts of yours amounted to failure to maintain devotion to duty and absolute integrity.Further the said act amounted to negligence to duty and gross misconduct on your part." 3. The petitioner submitted his written statement denying the allegation in spite of the fact that for not having been supplied with the copies of relevant documents so as to enable him to effectively reply to the imputations made, he was handicapped.Though he made a written request with the Registrar General of this Court for allowing him to take the assistance of Shri B.K. Talukdar (retired Deputy Registrar of this Court) the same was turned down.The disciplinary authority appointed Shri C.R. Sarma, the then Registrar (I & E), Gauhati High Court, Guwahati as the Inquiry Officer and Mr. N.C. Baruah, Assistant Registrar as the Presenting Officer in the disciplinary proceeding that followed.Eventually, however, Shri Ajit Barthakur, Deputy Registrar replaced Shri N.C. Baruah as the Presenting Officer.After the conclusion of the departmental proceeding, the Inquiry Officer submitted a report to the effect that the charge levelled against the petitioner had been proved.A copy of the enquiry report having been forwarded to him, he submitted his reply against the proposed penalty of dismissal from service.While the matter was thus pending, the petitioner retired on superannuation with effect from 01.02.2006. The order of penalty of dismissal from service followed.His departmental appeal having also been rejected, he has turned to this Court for redress. 4. The challenge of the petitioner, is principally against the validity of the disciplinary proceeding inter alia on the ground of unfairness in action, he having been denied the facility of a defence assistant to his prejudice. 5. The respondents, in their affidavit, have in essence, insisted that the disciplinary proceeding had been conducted in rigorous compliance of the Rules and the mandate of procedural fairness and that the petitioner's request for permitting Shri B.K. Talukdar to act as his defence assistant was declined as by then he (Shri B.K. Talukdar) had enrolled himself as a practicing Advocate.According to the respondents, having regard o the gravity of the proved charge, the penalty of dismissal from service was rightly imposed after offering him due opportunity of representing against the same. 6. Mr. 6. Mr. Bhattacharjee, with reference to Rule 23 has argued that denial of a defence assistant to the petitioner as requested by him in the face of the appointment of legally trained officers by the disciplinary authority to act as the Inquiry Officer and the Presenting Officer being in gross violation in the letter and spirit of the said legal provision, the impugned disciplinary proceeding is incurably vitiated thereby and thus the penalty of dismissal from service is non est in law.The learned Senior counsel has argued that the restraint imposed by Rule 23 in the matter of appointment of Barrister, Advocate etc. being equally stringent for the disciplinary authority, as well as the delinquent officer, the refusal to allow the petitioner to avail the assistance of the person of his choice has been grossly arbitrary, thus invalidating the disciplinary proceeding.As both the Inquiry Officer as well as the Presenting Officer were not only instructed in law, but were also much superior in rank to the petitioner, he was highly prejudiced in pursuing his defence in the disciplinary proceeding and as the exercise conducted had been apparently unfair, unjust and unreasonable, the order of penalty ought to be adjudged in operative null and void. 7. Without prejudice to the above, the learned Senior counsel has contended that as the petitioner has, meanwhile retired from service, if, in case, having regard to the charge, this Court is not inclined to absolve him therefrom, his penalty may be converted from one of dismissal to that of compulsory retirement. In support of his contentions, Mr. Bhattacharyya has placed reliance on the decisions of the Apex Court in AIR 1972 SCC 2178 (C.L. Subramaniam, Appellant v. The Collector of Customs, Cochin), 1982 (1) SCC 271 (A.K. Roy Versus Union of India and Others), 1983 (1) SCC 124 (Board of Trustees of the Port of Bombay Versus Dilipkumar Raghavendranath Nadkarni and others) and 1991 (2) SCC 483 (J.K. Aggarwal Versus.Haryana Seeds Development Corporation Ltd. And Others) 8. In reply, and with reference to the records relating to the disciplinary proceeding, Mr. Baruah has urged that though the petitioner on 29.11.2000 had submitted an application for being permitted to be represented by Mr. In reply, and with reference to the records relating to the disciplinary proceeding, Mr. Baruah has urged that though the petitioner on 29.11.2000 had submitted an application for being permitted to be represented by Mr. B.K. Talukdar, (retired Deputy Registrar of this Court) the said request was declined as meanwhile, he had taken to the legal profession.The learned Senior counsel, however refuted the plea of prejudice contending that the petitioner not only participated in the departmental proceedings without any demur in absence of defence assistant, he effectively cross-examined all the witnesses.Mr. Baruah, has further urged that in absence of any proven prejudice to him, the challenge to the disciplinary proceedings being violative of Rule 23 or the tenets of fairness in action is per se unsustainable. 09.We have extended our due attention to the pleadings available and the submissions advanced.Noticeably, the petitioner's impeachment qua the disciplinary proceeding centers around his perceived denial of a defence assistant of his choice.That the petitioner's request for availing the services of Shri B.K. Talukdar (retired Deputy Register of this Court) had been declined on the ground that he, by then, had joined the legal profession is a matter of record.The disciplinary proceedings do not reveal any further request by him electing for anybody else in the alternative to be his defence assistant thereafter.The records also do not disclose that the disciplinary authority had apprised the petitioner that he had an option to seek the assistance of someone else instead.The petitioner, as a matter of fact, participated in the disciplinary proceedings without a defence assistant.Out of the seven witnesses of the disciplinary authority, only one namely, Shri Dilip Das was cross-examined by him.He declined to do so vis--vis the other witnesses.The Inquiry Officer held the charge to be proved against him and the disciplinary authority after furnishing him a copy of the enquiry report and on a consideration of his reply thereto, awarded the penalty of dismissal.His departmental appeal against the same also stood dismissed. 10. The memorandum of charges whereby the disciplinary proceedings was initiated against the petitioner reveal that the same was professed to be conducted in terms of Rule 23 of the Rules read with Article 311 of the Constitution of India. 11. 10. The memorandum of charges whereby the disciplinary proceedings was initiated against the petitioner reveal that the same was professed to be conducted in terms of Rule 23 of the Rules read with Article 311 of the Constitution of India. 11. Rule 23, in clear terms, provide against dismissal, removal or reduction in rank of any person of the staff attached to this Court unless the process as envisaged therein is undertaken. In terms thereof, the person concerned has to be informed in writing of the grounds on which action is proposed to be taken and is to be afforded an opportunity of defending himself.The provision mandates that the grounds on which the action is proposed have to be reduced in the form of a definite charge or charges to be communicated to him together with a statement of allegation on which each charge based on any other circumstance which is proposed to be taken into consideration in passing the order as contemplated thereunder.The delinquent is to be allowed a reasonable time to file a written statement of his defence and to state whether he desires to be heard in person. In case he so desires or if the disciplinary authority concerned so directs, an inquiry would be held wherein evidence would be recorded and the charged officer would be entitled to cross- examine the witnesses of the disciplinary authority and to adduce evidence in person and also produce witnesses of his defence.The provision, further predicates that except under special circumstances, no Barrister, Advocate, Attorney, Pleader or Agent would be allowed to appear on behalf of either party before the officer who would conduct the enquiry or any officer to whom appeal may be made. 12. This provision of the Rules apparently, thus, outlines the procedural safeguards as a necessary adjunct of the process on the culmination of which a penalty of dismissal, removal or reduction of rank may be imposed on a member of the staff attached to this Court depending on the gravity of the charge proved.Needless to say, the safeguards so comprehended need to be real and not illusory, so much so, that any deviation from the precepts of Rule 23 would be at the pain of invalidation of consequential action prejudicial to the person concerned. That the prescriptions of Rule 23 are mandatory can be deduced by drawing an analogy from the consistent interpretation of Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1965 which is substantially in pari materia therewith. 13. The segment of Rule 23, which deals with the scope of representation of the parties in the disciplinary proceeding being of decisive significance, is extracted hereinbelow: "Except under special circumstances, no Barrister, Advocate, Attorney, Pleader or Agent shall be allowed to appear on behalf of either party before the Officer who conducts the enquiry or any Officer to whom the appeal may be made." 14. A bare perusal of the above extract would unmistakably demonstrate that the regulation or restraint on the representation is uniformly on both the parties in a disciplinary proceeding- namely, the disciplinary authority and the delinquent/charged officer, the relaxation being only under special circumstances.The word "Agent" in the setting in which it appears has to be comprehended to be a representative on behalf of either of the participants in the disciplinary proceeding in a broad sense. 15. A perusal of the official records pertaining to the disciplinary proceedings reveal that on 29.11.2000 the petitioner had submitted an application before the Registrar General of this Court seeking time to submit his written statement to his charge and also requesting for the permission to avail the assistance of Shri B.K. Talukdar (retired Deputy Register of this Court) in the inquiry.This request was turn down 02.12.2000 on the ground that Shri B.K. Talukdar, by then had been enrolled as a practicing Advocate of the High Court Bar.It was thereafter, that the then Registrar (I & E) was appointed as the Inquiry Officer on 19.05.2001 and a gazetted officer was suggested to be drafted in as the Presenting Officer on 28.05.2001.On the submission of the written statement of the petitioner, the proceedings progressed.As the Presenting Officer so appointed had to be on medical leave, he was replaced by Shri Ajit Barthakur Deputy Registrar (J) on 15.02.2002. In none of the administrative orders vis--vis the appointment of the Presenting Officer any special circumstance as envisaged in Rule 23 had either been referred to or approved.There is no dissension at the Bar that both the Inquiry Officer and the Presenting Officer who conducted the disciplinary proceeding were superior in rank to the petitioner and more importantly were adequately instructed in law and were the serving members of the Assam Judicial Service. 16. Having regard to the unequivocal language applied in Rule 23 vis--vis the facet of representation of the parties in a disciplinary proceeding thereunder, no unequal treatment appears to be permissible and the rigour of the restriction contemplated has to be of uniform application.Judged in the context of the disclosures from the official records as alluded hereinabove, we are constrained to hold that the same demonstrate a breach of this mandate of the Rules by the disciplinary authority.As want of representation of a charged officer in a disciplinary proceeding has a vital bearing on the imperative enjoinment of the inviolable compliance of the procedural safeguards, we are of the unhesitant opinion that the challenge laid by the petitioner merits acceptance in the facts and circumstances of the case. In view of the mutual orientation of the parties involved, both in status as well as legal training, the contention of want of prejudice raised on behalf of the respondents does not appeal to us.Noticeably, the petitioner cross- examined only one of the seven witnesses of the disciplinary authority. In almost a like situation their Lordships of the Apex Court in Board of Trustees of the Port of Bombay (Supra) had observed thus- "We concern ourselves in this case with a narrow question whether where in such a disciplinary enquiry by a domestic tribunal, the employer appoints Presenting-cum-Prosecuting Officer to represent the employer by persons who are legally trained, the delinquent employee, if he seeks permission to appear and defend himself by a legal practitioner, a denial of such a request would vitiate the enquiry on the ground that the delinquent employee had not been afforded a reasonable opportunity to defend himself, thereby vitiating one of the essential principles of natural justice........... Even in a domestic enquiry there can be very serious charges, and an adverse verdict may completely destroy the future of the delinquent employee.The adverse verdict may so stigmatize him that his future would be bleak and his reputation and livelihood would be at stake.Such an enquiry is generally treated as a managerial function and the Enquiry Officer is more often a man of the establishment.Ordinarily he combines the role of a Presenting-cum-Prosecuting Officer and an Enquiry Officer a Judge and a prosecutor rolled into one. In the past it could be said that there was an informal atmosphere before such a domestic tribunal and that strict rules of evidence and pitfalls of procedural law did not hamstring the enquiry by such a domestic tribunal.We have moved far away from this stage.The situation is where the employer has on his pay- rolls labour officers, legal advisers - lawyers in the garb of employees - and they are appointed Presenting-cum- Prosecuting Officers and the delinquent employee pitted against such legally trained personnel has to defend himself...... Witnesses are generally employees of the employer who directs an enquiry into misconduct.This is sufficient to raise serious apprehensions.Add to these uneven scales, the weight of legally trained minds on behalf of employer simultaneously denying that opportunity to delinquent employee.The weighted scales and titled balance can only be partly restored if the delinquent is given the same legal assistance as the employer enjoys.Justice must not only be done but must seem to be done is not a euphemism for courts alone, it applies with equal vigour and rigour to all those who must be responsible for fair play in action.And a quasi-judicial tribunal cannot view the matter with equanimity on inequality or representation" 17. We are, thus of the view, that the disciplinary proceeding has been vitiated by the violation of an essential procedural safeguard contained in Rule 23 as referred to hereinabove. In this premise, we have no other alternative but to adjudge the same to be non est in law. Resultantly, the impugned order of dismissal and the rejection of the petitioner's departmental appeal are also interfered with. In this premise, we have no other alternative but to adjudge the same to be non est in law. Resultantly, the impugned order of dismissal and the rejection of the petitioner's departmental appeal are also interfered with. 18.Though, it had been suggested in the alternative, on behalf of the petitioner that in view of his retirement from service the penalty of compulsory retirement be awarded to him, we consider it inexpedient and inadvisable to accede to that proposition in the facts of the case.The charge assuredly is a very serious one and cannot in any view of the matter be left unexplored vis-a-vis the petitioner as the interference is not on the merit thereof. 19. In view of the determination made by us, the disciplinary proceeding from the stage beyond the submission of the written statement stands effaced. In the normal course, having regard to the factum of retirement of the petitioner on superannuation, the disciplinary proceeding at this distant point of time could have been directed to be abandoned. However, the nature of the charge impels us against such a course. In the interest of institutional credibility and efficacy of the rule of law, it is therefore, directed that the disciplinary proceeding be pursued again from the stage after the submission of the written statement by the petitioner, in accordance with the aforementioned Rules to be completed as expeditiously as possible.Ordered accordingly.As the petitioner has retired from service, the disciplinary proceedings, as directed, should be completed within a period of three months herefrom.The petitioner would await the result thereof for his resultant service entitlements. The petition is allowed to the extent as indicated hereinabove. No costs.