JUDGEMENT AND ORDER : 1. Heard Mr. M.K. Choudhury, the learned senior counsel representing the petitioner. The Assam State Electricity Board (ASEB) [now the Assam Power Distribution Corporation Ltd. (APDCL)] and their officers (respondent Nos.2-5) are represented by the learned counsel Mr. S. Chakraborty. The respondent No.1 is represented by Mr. S.S. Roy, the learned Govt. Advocate. 2. The petitioner, while serving as the cashier in the Gohpur Electrical Sub-Division in Sonitpur District, was placed under suspension on 28.6.2007 (Annexure-A). The suspension was preceded by a special internal audit of the Gohpur Electrical Sub-Division, for the period 1.4.1999-31.5.2006, which found shortfall of around Rs.36 lakhs, in the office accounts. 3. This led to disciplinary proceeding against the cashier and four other officers, under Regulation 10 of the Assam State Electricity Board (General Service) Regulation, 1960 (hereinafter referred to as ‘the ASEB Regulation’), where the following charges were leveled against the employees:- “……………………….. 1. Theft, fraud or dishonesty in connection with the business of the Board/Company. 2. Negligence of duties. 3. Causing loss of Board’s/Company’s goods or property. …………………………”. 4. According to the errant cashier, proper inquiry was not held and findings were recorded on the basis of written question and the response of the delinquent, obtained by the inquiry officer on 27.9.2007 (Annexure-E). The inquiry officer on 5.5.2008 declared that the petitioner is guilty of all three charges and acting on these findings, the Dy. General Manager of the ASEB as the disciplinary authority, on 3.3.2010 (Annexure-K), observed that such misconduct deserves the maximum punishment as per the norms of the ASEB. But noticing that other persons are also involved in the huge loss caused to the ASEB, the lenient punishment of pay reduction by five stages was imposed on the cashier and he was ordered to be reinstated accordingly on 3.3.2010 (Annexure-K). 5. Following his reinstatement, the cashier resumed service on 8.3.2010 and as can be seen from the order No.471, dated 16.3.2010 (Annexure-O), the pay of the reinstated employee was fixed at a reduced stage, as per the imposed punishment. 6. However the Chairman cum Managing Director (CMD) of the APDCL re-visited the decision of the disciplinary authority. He noted that the Dy. General Manager Pratul Kr. 6. However the Chairman cum Managing Director (CMD) of the APDCL re-visited the decision of the disciplinary authority. He noted that the Dy. General Manager Pratul Kr. Baruah as the disciplinary authority, superannuated on 27.2.2010 and yet a lenient penalty was imposed in the name of disciplinary authority on 3.3.2010, a few days after the retirement of the concerned officer. Thus mala fide intention for the lenient penalty was suspected by the CMD and accordingly on 19.3.2010 (Annexure-P), he ordered for a fresh departmental proceeding by declaring that the petitioner will continue to be in suspension, till the disposal of the de novo proceeding. 7. After the de novo disciplinary proceeding was ordered by the CMD on 19.3.2010 (Annexure-P), the WP(C) No.2317/2010 was filed by the affected cashier to challenge the legality of the proceeding. The learned Judge considered the submission of the lawyers for both sides and on 4.6.2010 (Annexure-R), the Court directed the APDCL to conduct the de novo inquiry, strictly in accordance with the established law and the process was ordered to be completed within four months. 8. The 2nd departmental inquiry was then conducted and on 14.9.2010, all the three charges were found to be proved. The disciplinary authority then considered the inquiry report and also the gravity of the misconduct and on 1.10.2010 (Annexure-S), he imposed the penalty of dismissal, under Regulation 10 of the ASEB Regulation. 9.1. The legality of the disciplinary action is challenged by the petitioner by projecting that he is penalized twice under the same charges and this is legally impermissible. 9.2. The next contention is that four supervising officers of the cashier were also found guilty of the same charges and yet they were imposed the lenient penalty of pay reduction, unlike the petitioner, who was dismissed from service. 9.3. The learned senior counsel Mr. M.K. Choudhury further submits that when the lapses of the then disciplinary authority was noticed, the proceeding should have started from the stage of consideration of the inquiry report and not with a fresh enquiry, where the earlier lapses were rectified, by the disciplinary authority. 10.1. On the other hand, Mr. S. Chakraborty, the learned counsel for the ASEB submits that the de novo inquiry was conducted on account of the direction issued by the High Court, on 4.6.2010 (Annexure-R), in the WP(C) No.2317/2010. 10.1. On the other hand, Mr. S. Chakraborty, the learned counsel for the ASEB submits that the de novo inquiry was conducted on account of the direction issued by the High Court, on 4.6.2010 (Annexure-R), in the WP(C) No.2317/2010. Since the High Court passed such order at the instance of the errant officer, Mr. Chakraborty argues that the litigant cannot now question the legality of the fresh inquiry, which was self-invited by him. 10.2. The learned counsel for the respondents’ projects that the disciplinary authority, while specifying the penalty for the Dy. Accounts Officer Pramod Kr. Borah on 12.9.2009, had noted the mitigating circumstances for him and on that basis, the lenient penalty was inflicted on the officer. Therefore the counsel justifies the higher penalty for the cashier, who was principally responsible for the loss, caused to the ASEB. 10.3. The respondents contend that the appropriate penalty is to be decided by the disciplinary authority and unless it shocks the conscience of the Court, intervention of the Court is not justified. Therefore it is argued that Court should not interfere with the disciplinary action, as all due opportunity was provided to the errant officer, during the 2nd departmental inquiry. 11. Before proceeding any further, it must be noted that for the same set of charges, the departmental proceeding were initiated against two Dy. Accounts Officers Pramod Kr. Borah and Dilip Kr. Barua and two SDOs, namely, Dulal Sarma Rajkhowa and Bhaben Basumatary. The charges against all the five employees are same for all five delinquents and is related to cash shortfall in the Gohpur Electrical Sub-Division. But those four in the supervisory positions like Dy. Accounts Officers and the SDOs, were given the lenient penalty of reduction of pay by five stages, unlike the petitioner, who was dismissed from service. 12. Even handed dispensation of penalty is expected from a disciplinary authority and here it appears that the delinquents were treated under different yard sticks for same charges. While certain mitigating circumstances, were mentioned in the order dated 12.9.2009, which may justify the lesser penalty for the Dy. Accounts Officer Pramod Kr. Borah, for the other Dy. Accounts Officer Dilip Kr. Barua, the lesser penalty is wholly inexplicable. In fact, the disciplinary authority in his order of 2.11.2009 (page-92), recorded the following, in respect of Dilip Kr. Barua, the Dy. Accounts Officer: “……………………. Accounts Officer Pramod Kr. Borah, for the other Dy. Accounts Officer Dilip Kr. Barua, the lesser penalty is wholly inexplicable. In fact, the disciplinary authority in his order of 2.11.2009 (page-92), recorded the following, in respect of Dilip Kr. Barua, the Dy. Accounts Officer: “……………………. All these above noted facts brought out in the enquiry made one to believe that the charged officer had failed miserably in maintaining proper accounts of revenue of the Sub-Division over a period of about five years. This is quite a long period, not to notice the irregularities/discrepancies by someone assigned with the job of proper maintenance of records and accounts of a revenue Sub-Division unless he had some ulterior motives. This indicates that the charged officer was directly and indirectly involved in these affairs. In the report it is found noted that the list of cheques furnished with the BRS appears to be nothing but fictitious. This was with intent to cover up/explain away/the shortage in cash misappropriated but shown deposited in Bank, may be in completely with others involved. …………………………”. 13. But despite the above finding, which suggests that the Dy. Accounts Officer Dilip Kr. Barua was directly involved in the misconduct, a lenient penalty was considered for him on the ground that other employees of the ASEB, are also involved in the irregularities. 14. The two SDOs of the Gohpur Electrical Sub-Division Dulal Sarma Rajkhowa and Bhaben Basumatary were also found guilty of the same charges of theft, fraud or dishonesty and Causing loss to the ASEB and yet, both the supervising officers were given the lesser penalty of reduction of pay by five stages. Therefore unequal dispensation of penalty is noticed for the errant cashier and his three supervisors Dilip Kr. Barua, Dulal Sarma Rajkhowa and Bhaben Basumatary and this is what shocks the judicial conscience of the Court. 15. That apart, it cannot also be overlooked that earlier, the cashier was imposed the penalty of reduction of pay on 3.3.2010 (Annexure-K) and when he was reinstated, the earlier penalty was in fact executed against him, by fixing his pay at a lower scale. Therefore one can reasonably question how for the same set of charges, the delinquent is being punished twice, as has happened in this case, for the errant cashier. 16. Therefore one can reasonably question how for the same set of charges, the delinquent is being punished twice, as has happened in this case, for the errant cashier. 16. The Court is informed that the petitioner had reached the age of superannuation on 23.1.2016 and therefore even if the penalty of dismissal is retracted, he cannot be put back in service. But at the same time, the appropriate penalty ought to be left to be decided by the disciplinary authority and the Court should not normally substitute its own views on the appropriate penalty. 17. The penalty that was dispensed for the four Supervising Officers who are found guilty of the same charges may be justified but in that event, the penalty of dismissal awarded against the delinquent, appears to be a clear case of unequal treatment. 18. It is important to note that the loss to the ASEB was not the result of one or two transactions but it was a fall out of series of transaction(s) between August, 2003 to April, 2005. Therefore the lack of supervision and negligence of the higher authorities, leading to substantial loss for the ASEB, was certainly an important aspect of the matter. But when five employees are found guilty of the same charges, to inflict the harshest penalty of dismissal for one at the lowest in the hierarchy and the lenient penalty of reduction of pay, for the supervisors appear to be clearly discriminatory. What is seen therefore is an attempt to make petitioner the scapegoat, for the loss of the ASEB. 19. Following the above discussion, the Court has no hesitation to declare that the disciplinary authority had failed to impose a fair penalty for the petitioner vis-à-vis his co-delinquents. Therefore the punishment of dismissal is ordered to be re-visited by the disciplinary authority. While deciding the appropriate penalty, the disciplinary authority should take into account the original penalty imposed on the delinquent on 3.3.2010 (Annexure-K) and the fact that the delinquent had already suffered the said penalty for some period. Moreover this will be a case of double punishment. The authority must also consider that there was no mitigating circumstance for the others (barring Pramod Kr. Borah), who were charged. Moreover, the misconduct was committed by several employees and it was not the act of one person. 20. Moreover this will be a case of double punishment. The authority must also consider that there was no mitigating circumstance for the others (barring Pramod Kr. Borah), who were charged. Moreover, the misconduct was committed by several employees and it was not the act of one person. 20. After weighing all relevant factors as stated above, the disciplinary authority should impose the appropriate penalty, which must co-relate to the penalty imposed on the other delinquents. This must be done within six weeks from receipt of this order. However it is made clear that since the petitioner has already reached the superannuation age on 23.1.2016, the retraction of penalty will not lead to any pay benefit but only notional service benefit, for enabling the former cashier, to receive the superannuation dues. It is ordered accordingly. 21. With the above order, the case stands allowed, in the manner indicated. No cost.