JUDGMENT Heard Mr. Y.S. Mannan, learned counsel for the petitioner and Mr. B.D. Das, learned senior counsel assisted by Mr. D. Nath, learned counsel for the respondents. 2. Counsel for the petitioner submits that the present case relates to the impugned order dated 6.11.2007 issued by the Chairman, ASEB inflicting the penalty of reduction to lower time scale of pay for a period of three years upon the petitioner and also the Order dt. 13.3.2008 issued by the Appellate Authority. The case of the petitioner is with regard to certain amendments/ addendums made in the bid documents. It is the case of the respondents that their consultants had submitted a set of amendments/ addendums to the bid documents to the Chief Engineer (Distribution), who sent the same to the Director (PMU)’s office for obtaining approval of the ADB. The Director (PMU) was out of station during the said period and when he returned to the headquarters after a few days, he found the papers on his table. He sent the same to the ADB for approval without going through the same. The ADB conveyed approval of the amendments/ addendums made to the bid documents and sent a FAX message to the Chief Engineer (Distribution). The Chief Engineer (Distribution) thereafter sent an officer to the PMU to collect a copy of the approved bid document. However, the officer was given a CD by the charged officer instead of a hard copy. When the contents of the CD were compared with the draft sent by the consultants prior to the approval given by the ADB, it was found that the approved copy contained a lot of additions, alterations in the draft allegedly sent by the consultants. As neither the Chief Engineer (Distribution), nor the Director (PMU) had made any changes nor did they know that some additions/ alterations had been made in the draft prepared by the consultants, the changes made in the draft were unauthorized. A question, thus, arose as to why had made these changes. As neither the Chief Engineer (Distribution), nor the Director (PMU) had made any changes nor did they know that some additions/ alterations had been made in the draft prepared by the consultants, the changes made in the draft were unauthorized. A question, thus, arose as to why had made these changes. It was in respect of these unauthorized changed that had been made to the draft bid documents that the petitioner here had been found guilty in the disciplinary proceedings initiated against him and on conclusion of which the penalty of reduction to a lower time scale of pay for a period of three years had been imposed upon him vide order dated 6.11.2007 (Annexure-R of the petition). 3. Mr. Y.S. Mannan, counsel for the petitioner submits that the order dated 6.11.2007 cannot withstand judicial scrutiny in view of the fact that one Sri Reja Mahmud on whose statement the petitioner has been found guilty, has not been made a management witness in the disciplinary proceedings initiated against him, thereby depriving him the opportunity of cross-examining Sri Reja Mahmud. Counsel for the petitioner, thus, submits that the disciplinary proceedings, the enquiry report and the impugned order dated 6.11.2007 have prejudiced him as there has been violation of the principles of natural justice. He submits that the respondents could not have imposed upon the petitioner the punishment on the basis of an enquiry in which the petitioner has not been allowed to cross-examine maker of the statement, which is the basis for inflicting the penalty imposed upon him. 4. Mr. Y.S. Mannan also submits that the order dated 6.11.2007 by which penalty has been imposed upon the petitioner, has been issued by the Chairman of the ASEB. He submits that at that particular point of time the petitioner was an employee of the AEGC and not the ASEB and, as such, the impugned order dated 6.11.2007 could not have been passed as the Chairman of the ASEB was not the disciplinary authority. 5. Counsel for the petitioner also submits that after revamping the ASEB into five successor Government Companies of which AEGCL is one of the Company, the petitioner was posted in the said company at the relevant time. As all the personnel of ASEB have been placed at the disposal of the successor entities, the ASEB was left only as a Trading License for purchase and supply of power. As all the personnel of ASEB have been placed at the disposal of the successor entities, the ASEB was left only as a Trading License for purchase and supply of power. The Chairman of ASEB and the Chairman of AEGCL function separately and independently. Further, the Board of Directors of the AEGCL delegated the administrative powers to the Managing Director of AEGCL. Thereby, the Managing Director was vested with the power of appointing authority of the petitioner. The Managing Director was also vested with the power to initiate disciplinary action and the power of suspension of the petitioner. In the instant case, the Chairman, ASEB suspended the petitioner. Further, disciplinary action was taken against the petitioner by the Chairman, ASEB. As the petitioner at the relevant time was not employee of the ASEB but under the AEGCL, no action ought to have been taken by the Chairman, ASEB as the ASEB is a separate entity from the AEGCL. Actions, if any, against the petitioner ought to have been taken by the Managing Director of AEGCL, who is the authority empowered to do so. As such the whole process of suspension of the petitioner till the order of punishment inflicted upon the petitioner is non-est in the eye of law. 6. Mr. Y.S. Mannan also submits that the whole process from suspension of the petitioner till the order inflicting punishment on the petitioner is not as per the requirements as enshrined in the Assam State Electricity (General Service) Regulations (for Officers), 1960 as well as the Assam State Electricity Board Officers (Conduct) Regulations, 1982. Further, though the said Regulations should have been adopted by the AEGCL immediately on it being a separate entity, the same was not done. The applicability of the said Regulations became effective only from 5.12.2007 when the Board of Directors vide Resolution No. 15 of the 21st Meeting held on 5.12.2007 suggested to form a Committee to frame the Regulations in the present perspective and until then the Company may continue with the existing regulations. It is pertinent to mention herein that the said Company did not make any Resolution with regard to the applicability or the said Regulations for the period from 10.12.2004 to 5.12.2007. It is pertinent to mention herein that the said Company did not make any Resolution with regard to the applicability or the said Regulations for the period from 10.12.2004 to 5.12.2007. In the instant case, the petitioner was charged under the said two Regulations but in reality the said Regulations were not in force during that period in the AEGCL of which the petitioner was an employee. As such, the initiation of the Disciplinary Proceedings against the petitioner from the order of suspension till the order of infliction of penalty have no legal entity and therefore illegal. 7. Counsel for the petitioner has also submitted that the basic formalities have not been followed in the instant case while initiating and conduction the disciplinary proceedings against the petitioner. He submits that in the enquiry proceedings the Enquiry Officer directly started recording statements of the Management witnesses without observing the formality of starting the Enquiry Proceedings only if the charged officer denies the charges framed against him after hearing the charges in details read out by the Enquiry Officer. The deposition of Sri Upen Chandra Sarma, Management Witness No.1 on 20th June, 2007 proved that Md. Reza Mahmud has made modifications to the amendment and addendum to be incorporated to the Bid Document of the Contract Package of Communication System and has prepared the CD handed over to Sri Dipak Bhagawati by getting inside the office chamber of the Director (PMU) and as Md. Reza Mahmud was not available during the Enquiry Proceedings for authentication, Sri Upen Chandra Sarma could not prove that the petitioner either asked Md. Reza Mahmud to make the modification or called Md. Reza Mahmud to prepare the CD. Sri Upen Chandra Sarma in his deposition has hidden from the Enquiry Officer of the fact that he obtained written notes/ letters from the petitioner/ Md. Reza Mahmud/ Sri Pankaj Kishore Bhuyan/ Sri Dipak Bhagawati in the period spanning from 16th February, 2007 to 26th February, 2007 as Member (Technical). He also did not reveal the fact that Md. Reza Mahmud attended the pre-Bid meeting on 21.12.2006 as computer expert of the department. 8. Reza Mahmud/ Sri Pankaj Kishore Bhuyan/ Sri Dipak Bhagawati in the period spanning from 16th February, 2007 to 26th February, 2007 as Member (Technical). He also did not reveal the fact that Md. Reza Mahmud attended the pre-Bid meeting on 21.12.2006 as computer expert of the department. 8. Sri Pankaj Kishore Bhuyan while deposing on 3rd July, 2007 in the Enquiry Proceedings has admitted solely dealing with the papers related to amendment and addendum to be incorporated to the Bid Document of the Contract Package of Communication System keeping the papers under his safe custody under lock and key and Sri Dipak Bhagawati confirming the same while deposing on 3rd July, 2007 in the Enquiry Proceedings. Putting up the papers related to amendment and addendum to be incorporated to the Bid Document of the Contract Package of Communication System to Sri Upen Chandra Sarma on 30th January, 2007 and sending those papers to the Asian Development Bank as directed by Sri Upen Chanra Sarma under sole signature and seal of Sri Upen Chandra Sarma as the Director (PMU). When Sri Upen Chandra Sarma has deposed of consulting only Md. Reza Mahmud/ Sri Pankaj Kishore Bhuyan/ Sri Dipak Bhagawati and not the petitioner at all to inquire about the apprehended modifications made to the amendment and addendum to be incorporated to the Bid Document of the Contract Package of Communication System, the question does not arise of the petitioner being involved in any way with the matter. 9. Mr. Y.S. Mannan further submits that as per the tripartite agreement, all disciplinary cases already pending before the Board shall be continued and concluded by the successor entities. The disciplinary proceedings in the instant case having been initiated by the Board, it should have been concluded by the AEGCL and not by the ASEB as per Condition No. 5 (n) of the Tripartite Agreement dt.9.12.2004 executed between the Government of Assam, ASEB and the Assignees of the Recognized Associations/Union of the ASEB which is as follows “All disciplinary cases already finalized and punishments awarded by the Board shall not be reopened, unless permitted by law. All disciplinary proceedings pending with the Board shall be continued and concluded by the successor entities”. Mr. All disciplinary proceedings pending with the Board shall be continued and concluded by the successor entities”. Mr. Mannan also submits that the power to take decision against any staff/ officer of the AEDCL lies in the Managing Director of the AEGCL in view of the Resolution No.5 of the Board of Directors adopted in the meeting held on 1.6.2005 as per the Memorandum and Article of Association of the AEGCL. He particularly relies upon Sl. No. 11, 55 and 56 which is as follows: “11. Appointment in conformity with rules and procedures in force and subject to availability of sanctioned post” Full power. 55. To take disciplinary action and remove any member of the staff/officers permanently or temporarily appointed in Grade-III/IV post subject to the condition that the removal of an employee should be ratified by the Board Full power in case of Grade-II/III/IV. MD is empowered to initiate action up to the rank of Additional Chief Engineer. 56. To suspend from service any of the staff/officers.” Full power. Mr. Mannan also submitted that the decision taken in the disciplinary proceedings with respect to cross-examination of the Management Witnesses has not been considered by the Enquiry Officer. He states that while the cross-examination of the Management witnesses does not show the involvement of the petitioner in the amendments/addendums made in the bid documents, the Enquiry Officer has not considered the same, but has only taken into consideration the evidence given by the Management witnesses during the examination-in-chief. Thus, the findings are not in consonance with the evidence given in the cross-examination and accordingly the findings cannot be made the basis for the order of penalty. 10. Mr. Mannan has also submitted that the statement made by Md. Reza Mahmud in the letter dated 24.3.2007 (Annexure-G) and in another letter when compared with the alleged statement recorded in the report of the Enquiry Officer is also not in sync. Mr. Mannan has also submitted that the appeal filed by the petitioner has been rejected in a very cryptic manner and without any reason. Reza Mahmud in the letter dated 24.3.2007 (Annexure-G) and in another letter when compared with the alleged statement recorded in the report of the Enquiry Officer is also not in sync. Mr. Mannan has also submitted that the appeal filed by the petitioner has been rejected in a very cryptic manner and without any reason. He submits that it is the mandate of law that a reasoned order should be passed by the appellate authority and in this connection, cites the decision of the Supreme Court in Roop Singh Negi VRS Punjab National Bank & Ors (2009) 2 SCC 570 (para 14, 15, 23) and G. Vallikumari VRS Andhra Education Society & Ors (2010) 2 SCC 497 (Para 19). Mr. Y.S. Mannan submits that he should have been allowed to cross-examine Reja Mahmud as a witness and cites the case of Union of India & Ors VRS Prakash Kumar Tandor (2009) 2 SCC 541 (Para 6, 15 and 16) to support this contention. He also submits that the documents should have been put to Reja Mahmud to prove the statements made by him against the petitioner and cites (2009) 2 SCC 570 . He also submits that the decision of the Supreme Court in Chairman-cum-Managing Director, Coal India Limited and Ors VRS Ananta Saha & Ors (2011) 5 SCC 142 (Para 45) supports his contention that the Managing Director, AEGCL is the competent authority to issue the order of penalty and not the Chairman, ASEB. He also cites Mohd. Yunus Khan VRS State of U.P & Ors (2010) 10 SCC 539 (Para 19 to 21) to show that the High Court can go into the evidence given in a disciplinary proceedings. He also submits that he was denied reasonable opportunity to defend the charges leveled against him and cited 2007 (1) GLT 579 (Kripesh Chandra Roy VRS Union of India & Ors). 11. Mr. Mannan submits that the petitioner retired from service on 30.11.2012. 12. Mr. B.D. Das, senior counsel representing the respondents has submitted that the question of calling Md. Reza Mahmud as a Management Witness in the disciplinary proceedings initiated against the petitioner does not arise and was not feasible on account of the fact that the said Reza Mahmud was also a charged officer in another disciplinary proceedings initiated against him. The respondents’ counsel thus submits that if the petitioner wanted to examine Md. Reza Mahmud as a Management Witness in the disciplinary proceedings initiated against the petitioner does not arise and was not feasible on account of the fact that the said Reza Mahmud was also a charged officer in another disciplinary proceedings initiated against him. The respondents’ counsel thus submits that if the petitioner wanted to examine Md. Reza Mahmud, he should have cited the said person as a Defence Witness and brought him in the disciplinary proceedings on his own accord. Counsel for the respondents has relied upon the findings recoded in the report of the Enquiry Officer in the disciplinary proceedings drawn against the petitioner which is dated 16.8.2007. He submits that these findings which are based on the statements made by the Management Witnesses clearly go to show that the petitioner’s initial denial of ever having handled the relevant papers has been shattered by the subsequent statement made by the petitioner and in view of the statements made by the Management Witnesses. Thus, the guilt of the petitioner is proved on the doctrine of preponderance of probability. Counsel for the respondents has also submitted that the Chairman of the ASEB has been empowered to take disciplinary action against the petitioner, in as much as, he is the Chairman not only of the ASEB, but also of AEGCL. He, therefore, submits that the disciplinary proceedings initiated against the petitioner as per the ASEB (General Service) Regulations (for Officers), 1960 is as per the Rules and he is competent to award penalties as enumerated in Regulation 10 of the above Regulations. 13. In order to bring home the point that the Court should not re-appreciate the evidence and the findings of the Enquiry Officer and sit in judgment on the merit of the decision made and that judicial review should be confined only to the decision making process and not to the decision itself, the learned counsel for the respondents has relied upon the following decisions of the Supreme Court : (i) State of Uttar Pradesh & Anr. -vs- Man Mohan Nath Sinha & Anr., (2009) 8 SCC 310 ; (ii) Noharlal Verma -vs- District Cooperative Central Bank Limited, Jagdalpur, (2008) 14 SCC 445 ; (iii) V. Ramana -vs- A.P. SRTC & Ors., (2005) 7 SCC 338 ; (iv) Deputy Inspector General of Police & Anr. -vs- S. Samuthiram, (2013) 1 SCC 598 . 14. Mr. -vs- Man Mohan Nath Sinha & Anr., (2009) 8 SCC 310 ; (ii) Noharlal Verma -vs- District Cooperative Central Bank Limited, Jagdalpur, (2008) 14 SCC 445 ; (iii) V. Ramana -vs- A.P. SRTC & Ors., (2005) 7 SCC 338 ; (iv) Deputy Inspector General of Police & Anr. -vs- S. Samuthiram, (2013) 1 SCC 598 . 14. Mr. B.D. Das also submits that the Chairman, ASEB is the competent authority to award punishment as per Para 9 of the Transfer scheme. He submits that the penalty awarded to the petitioner is based on materials on record and there is sufficient evidence to indict the petitioner and no material was found to exonerate him. 15. I have heard the Counsel for the parties and have perused the documents. The appeal filed by the petitioner has been rejected by the Appellate Authority vide Order dt. 13.3.2008, which is reproduced below: - “Sir, I am directed to inform you that the ASEB in its meeting held on 29.2.2008 considered your appeal petition dated 13.11.2007 and after detail discussion the Board resolved vide Resolution 15 dated 29.2.2008, as follows: “The Board after carefully going through the appeal petition was of the view that there was no justification to exonerate the appellant from the penalty inflicted upon him by the authority considering the facts and circumstances and the gravity of misconduct.”. The appeal has been disposed of accordingly.”. I have found that the Appellate Authority has rejected the petitioner’s appeal without giving reasons and in a very cryptic manner. The Apex Court has in para 23 of Roop Singh (Supra) stated as follows: “Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding by the principles of natural justice are. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding by the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.” 16. As I have found the Order dt. 13.3.2008 passed by the Appellate Authority to be cryptic and not supported by reasons, the said Order dt. 13.3.2008 is hereby set aside and quashed. The Appellate Authority is hereby directed to dispose of the petitioner’s appeal dt. 13.11.2007 within a period of 3 months from receipt of a certified copy of this Order by a speaking order supported by reasons. The petitioner should also be given an opportunity of being heard by the Appellate Authority before the petitioner’s appeal is disposed off. 17. This writ petition is accordingly disposed of with the above observations and directions.