Laik, J.@mdashIt has become a long and tall story in giving the reasons in support of our conclusion as the material is too copious even excluding the murky, small and unimportant little things. They should not be also told in judicial haste and it took little time for having difficulty in discussion between us because of the break up of the Bench, the intervention of the vacation and as many other matters were being assigned to us for early decision meantime.
2. Sri Sunil Kumar Banerjee, a member of the Indian Administrative Service (hereinafter referred to as Sri Banerjee), who stood on the uppermost echelon of the administration and on whose horison clouds were seen and who is facing serious charges, is the Appellant in this appeal. His wife Sm. Sumita Banerjee (hereinafter referred to as Sm. Banerjee) is an M.A. of the University of Calcutta. She was Hony. Special Officer in the Civil Defence Organisation of the Government. She started a poultry farm which began on a promising note but ultimately ran into a crisis for her husband, as would be seen later.
3. The appeal is directed against a judgment delivered by our learned brother Sabyasachi Mukharji J. dismissing the application of the Appellant under Article 226 of the Constitution of India (hereinafter referred to as the petition).
4. Sri Banerjee was holding the post of the Commissioner for Agriculture and Community Development in officiating capacity. His substantive post and rank was that of a Secretary under the Government of West Bengal. In December 1942 he was granted King''s Commission in the Indian Army during World War II. In 1946 he attained the rank of a Major. In April 1948 he joined the Indian Administrative Service. In 1950 he was the Sub-Divisional Officer, Barrack pore. In 1960 he was promoted from Joint Secretary, Labour Department, to Transport Commissioner & Ex-Officio Secretary, Home (Transport) Department. In 1962 he was appointed Development Commissioner for West Bengal and was placed in ex-officio charge of several departments, viz. Secretary, Development (Tourism); Secretary, Housing Department; Secretary, P.W.D.; Secretary, Home (Publicity) Department; and Director of Tourism.
5. In or about November 1966, on the basis of anonymous petition, confidential file was started by the Vigilance Commission against Sri Banerjee.
6. On October 9, 1969, All India Services (Discipline and Appeal) Rules, 1955, (hereinafter referred to as 1955 Rules) was repealed and All India Services (Discipline and Appeal) Rules, 1969, (hereinafter referred to as 1969 Rules) came into force.
7. On April 25, 1970, five charges were framed against the Appellant. On May 2, 1970, the Appellant received a memorandum from the Home Department containing the said charges and statements of imputations. The said memorandum dated April 25, 1970, which is annex. A(i) to the petition containing the five charges and the statements of imputations on which the charges are based is as follows:
On the allegations set out in the annexed statement of imputations, the Governor hereby charges you, Shri Sunil Kumar Banerjee, I.A.S., now emploved as Divisional Commissioner, Jalpaiguri, as follows:
That during your service as a Member of the Indian Administrative Service Cadre, you failed to maintain absolute integrity and devotion to duty inasmuch as -
(1) You did not mention in your Declaration of Assets for the years 1959, 1960 and 1963 to 1967 about your Bank Account, being a Current Account with the State Bank of India, Strand Road, Calcutta, standing in your name and about your car which you owned at the relevant period and thereby you deliberately contravened Rule 15(4) of the All India Services (Conduct) Rules, 1954;
(2) In the year 1950, when you were the Sub-Divisional Officer of Barrackpore you had purchased in the name of your wife, Sm. Sumita Banerjee, three acres of land at Maheshpota (Khardah P.S.) and thereafter in the year 1967 exercised your influence as Development Commissioner in securing a loan of Rs. 25,000 under the Bengal State Aid to Industries Act, 1931, to set up in the name of your wife, Sm. Sumita Banerjee, a poultry farm at Maheshpota and engaged yourself in the business and transactions of the farm as will appear from your own Current Account with the State Bank of India, Strand Road, Calcutta;
(3) You exercised your official influence in getting Fiat cars allotted to you from the Government quota out of more than once and you sold your Fiat car No. WBF-6262 which you purchased in May 1965 for Rs. 15,036 in the next year only about 8 months after your purchase at a price of Rs. 16,250 and thereafter you made an application for another allotment of a Fiat car which was rejected and you were allotted an Ambassador car in March/April 1967 and thus you managed to supersede the claims of many officers who had been waiting for more than a year for allotment of cars from the Government quota;
(4) You abused your official powers as Development Commissioner in making allotment and re-allotment of plots of land under different schemes of the Government of West Bengal in your own favour and in favour of your mother, Sm. Sailabala Banerjee, and brothers Shri Samir Kumar Banerjee and Shri Mridul Kumar Banerjee as described in the statement of imputations annexed herewith;
(5) You also abused your official powers as Development Commissioner in purchasing on credit about 40,000 bricks, for your own use, from Brick and Tile Board under the Government of West Bengal, Development and Planning Department, in 1966-67, although such purchase on credit was not permissible.
By order of the Governor
Sd.: S. Mullick,
Chief Secretary to the Govt. of
West Bengal
To
Shri Sunil Kumar Banerjee,
Commissioner,
Jalpaiguri Division
Statement of imputations on which the charges are based
Charge No. (i)
Shri Sunil Kumar Banerji I.A.S. is now the Divisional Commissioner, Jalpaiguri. Shri Banerji maintained a Current Account with the State Bank of India, Strand Road, Calcutta. It appears that he has been maintaining this Account since 1960. In his Declarations of Assets for the years 1959, 1960 and 1963 to 1967, he did not mention about this Current Account with the State Bank of India, Strand Road Branch. He also did not mention about his cars which he owned at different periods in his aforesaid Declarations of Assets. Rule 15(3) of the All India Services (Conduct) Rules, 1954, provides for mention of all movables in the Declaration of Assets. Therefore, Shri Banerji violated Rule 15(4) of All India Services (Conduct) Rules, 1954, and hence the first charge against him.
Charge No. (ii)
In the year 1950, Shri Sunil Kumar Banerji was Sub-Divisional Officer of Barrackpore. At that time he had purchased in the name of his wife, Sm. Sumita Banerji, three acres of land at Maheshpota, a village within the jurisdiction of Khardah Police Station and within the Sub-Division of Barrack pore in the district of 24-Parganas. In the year 1967, when he was the Development Commissioner he managed to secure a loan of Rs. 25,000 under the Bengal State Aid to Industries Act, 1931, to set up a poultry farm on the aforesaid land in the name of his wife. Shri Banerji withdrew money from his Bank Account in the year 1963, 1964, 1965, 1966 and 1967 for transactions in connexion with the poultry farming and thus engaged himself in the business although as a high Government official and as the Development Commissioner he ought not to have engaged himself in the poultry farming business carried on in the name of his wife. Hence the second charge against him.
Charge No. (iii)
Shri Sunil Kumar Banerji purchased one Fiat car on the 28th September, 1959, being Fiat car No. WBF-6955. He then purchased another Fiat car on the 28th March, 1962, being Fiat car No. WBF-1. Thereafter, he purchased the third Fiat car on the 21st May, 1965, being Fiat car No. WBF-6262 at a price of Rs. 15,036 and thereafter sold the same within 8 months at a bargain price of Rs. 16,250. Then he again applied for another allotment of a Fiat car which was, however, rejected and he got allotment of an Ambassador car in March/April 1967. It is thus apparent that Shri Sunil Kumar Banerji exercised his influence in repeatedly getting Fiat cars allotted to him from the Government quota thereby managing to supersede the claims of many other officers who had been waiting for more than a year for allotment of cars from the Government quota. Hence the third charge.
Charge No. (iv)
In the year 1963, plot No. 90 being a 4 kattah plot at Patipukur township, ''B'' Block, was provisionally allotted to Shri Sunil Kumar Banerji, but Shri Banerji surrendered the same and got refund on the 20th January, 1967, of a sum of Rs. 12,900 which was deposited as provisional price by him. Plot No. 90A was also allotted in the name of Shri Sunil Kumar Banerji''s brother which was subsequently exchanged with plot No. 25 of Regent Scheme which was originally allotted to Mr. P.K. Bardhan. Plot No. 40 of Regent Scheme belongs to Sm. Sailabala Banerji, mother of Shri S.K. Banerji. This plot measuring about 3 kattahs 14 Chapter and 14 sq. feet was allotted to Shri Mridul Kumar Banerji, brother of Shri Sunil Kumar Banerji, which was subsequently transferred to their mother Sm. Sailabala Banerji. The plot of Regent Park, particularly plot No. 40, was intended for persons belonging to Higher Income Group. There is nothing to show that Sm. Sailabala Banerji belonged to that group and there were no declarations of Sm. Banerji to that effect. Plot No. B/B-15/106 at Kalyani was allotted to Shri S.K. Banerji on application having been made by him. One plot of land under the Patipukur Development Scheme was also allotted to Shri Samir Kumar Banerji, brother of Shri Sunil Kumar Banerji, at a time when other applications were pending. It will thus appear that Shri Banerji exercised his official powers in making allotment and reallotment of plots of land under different schemes of the Government of West Bengal in his own favour and in favour of his mother, Sm. Sailabala Banerji, and brothers Shri Mridul Kumar Banerji and Shri Samir Kumar Banerji. Hence the fourth charge.
Charge No. (v)
Shri Sunil Kumar Banerji, when working as Development Commissioner, took supplies of bricks from the Brick and Tile Board on different dates in the year 1966 and also in 1967 on credit. He took supply of 1st class bricks about 40,000 in number on credit though such supply on credit was not permissible. It is apparent that Shri Banerji took supply of bricks manufactured by the Brick and Tile Board, Government of West Bengal, on credit by exercising his influence as Development Commissioner under whom the Brick and Tile Board was functioning at the relevant time. Hence the fifth charge against him.
Sd.: S.K. Mullick,
Chief Secretary to the Govt.
of West Bengal.
8. On the same date, that is, April 25, 1970, the Appellant was informed about the proposed enquiry. He was further informed that he could, if he so desired, inspect and take extracts from the documents mentioned in List No. 1, attached to the said memorandum, and the Appellant, if he so desired, would be given access to any official records other than those specified in List No. 1, if the Appellant submitted a list of additional documents within 10 days of completing the inspection of documents mentioned in the list. There are further directions in the said memorandum which is technically called the First Show Cause Notice (annex. A(ii) to the petition). It is set out below:
Memorandum
No. 144-G.A.C. (Vig.)
Calcutta, the 25th April, 1970
The Governor proposes to hold an enquiry against Shri Sunil Kumar Banerji, an Officer of the Indian Administrative Service, under Rule 8 of the All India Services (Discipline and Appeal) Rules, 1969. The allegations on which the enquiry is proposed to be held are set out in the enclosed statement of imputations and the charges framed on the basis of the said imputations, are specified in the enclosed statement of charges.
Shri Sunil Kumar Banerji is hereby informed that if he so desires he can inspect and take extracts from the documents mentioned in the enclosed list (List No. 7) at any time during office hours within 21 working days on receipt of this memorandum. If he desires to be given access to any official records other than those specified in the list referred to above, he should submit a list of all such additional documents within 10 days of completing the inspection of the documents mentioned in the list. Access will be given only to such of the additional records as are considered relevant. He will not be given access to any documents if it is considered that it is against public interest to give him such access. He should complete the inspection of the additional documents within 15 days of their being made available to him. He will be permitted to take extracts from such of the additional documents as he is permitted to inspect.
Shri Sunil Kumar Banerji is informed that the request for access to documents made at a later stage of the enquiry will not be entertained unless sufficient cause is shown for the delay in making the request and the circumstances show clearly that the request could not have been made at an earlier stage. No request for access to additional documents will be entertained after the completion of the enquiry unless sufficient cause is shown for not making the request before the completion of the enquiry.
A list of witnesses (List No. 2), who may be examined to substantiate the charges against him, is enclosed herewith.
Shri Sunil Kumar Banerji is hereby required to submit to the undersigned a written statement of defence not later than 14 days from the date of completion of inspection of documents and also
(1) to state whether he desires to be heard in person,
(2) to furnish the names and addresses of the witnesses, if any, whom he wishes to call in support of his defence; and
(3) to furnish a list of documents, if any, which he wishes to produce in support of his defence.
Shri Sunil Kumar Banerji is also informed that the enquiry will be held only in respect of charges and/or allegations as are not admitted. He should, therefore, specifically admit or deny each of the charges, each of the allegations annexed herewith. The charges and the allegations not specifically denied will be deemed to have been admitted by him.
Shri Sunil Kumar Banerjee is further informed that if his written statement of defence is not received on or before the date specified above, the enquiry is liable to be held ex parte.
The attention of Shri Sunil Kumar Banerjee is invited to Rule 18 of All India Services (Conduct) Rules, 1968, under which no Government servant will bring or attempt to bring in political or other outside influence to bear upon any superior authority to further his interest in respect of matters pertaining to his service under the Government. If any report is received on his behalf from any other person in respect of any matter dealt with in this proceeding, it will be presumed that Shri Sunil Kumar Banerjee is aware of such representation and that it has been made at his instance and action will be taken against him for violation of Rule 18 of the aforesaid rules.
The receipt of this memorandum may be acknowledged.
By order of the Governor,
Sd.: S. Mullick,
Chief Secretary to the Govt, of West
Bengal
To
Shri Sunil Kumar Banerjee, I.A.S.,
Commissioner, Jalpaiguri Division.
9. Names of the witnesses were cited in the List No. 2 to the above memorandum.
10. The Appellant received the said charge-sheet when he was posted at Jalpaiguri as Commissioner of the Jalpaiguri Division.
11. On June 9, 1970, the Appellant submitted his written statement of defence.
12. On August 12, 1970, Sri A.N. Mukherjee, Commissioner for Departmental Enquiries, Vigilance Commission, West Bengal, was appointed as Enquiry Officer to enquire into the charges. The first order recorded by the Enquiry Officer was on August 18, 1970.
13. On August 31, 1970, the Enquiry Officer fixed at the request of Sri Banerjee an early date of hearing of departmental enquiry from September 14-19, 1970. It was recorded by the Enquiry Officer that Sri Banerjee would have to satisfy him regarding the relevancy of any additional documents which he wanted to inspect before adducing his oral evidence.
14. On September 14, 1970, formal enquiry commenced. On that day the Enquiry Officer recorded a long order regarding the inspection of additional documents to be given to Sri Banerjee. Sri Banerjee was present and he was heard at length. He allowed certain documents to be given inspection of charge-wise, and he did not allow certain other documents and he had recorded his reasons for the same. On that very day, the hearing was started and the evidence commenced in presence of the parties. Four witnesses were examined by the Presenting Officer out of whom only P. Ws. 1 and 2 were cross-examined by Sri Banerjee himself but he declined to cross-examine P. Ws. 3 and 4. Evidence was resumed next day, i.e. on September 15, 1970, and P.W. 5 was examined and cross-examined by Sri Banerjee. The prosecution case was closed on that day.
15. Defence case began on the next day, i.e. on September 16, 1970. Two witnesses were cited on behalf of the defence. They were examined and cross-examined. On the next day, i.e. on September 17, D.W. 3 was similarly examined and cross-examined. The Enquiry Officer fixed September 23, 1970, for arguments. On that day the arguments of the Presenting Officer were heard at length. Sri Banerjee requested the Enquiry Officer that he was not prepared and a later date for his argument be fixed. Accordingly, October 17, 1970, was fixed for argument of Sri Banerjee.
16. On October 16, 1970, Sri Banerjee filed a peition for dropping the proceeding or allowing him to engage a professional lawyer for his defence. The Enquiry Officer by his order dated October 17, 1970, rejected the said petition on the ground of delay and recorded further reasons in support of the rejection of the said application. About engagement of the services of a professional lawyer it was recorded by the Enquiry Officer that Sri Banerjee was not seriously pressing the same. Sri Banerjee himself appeared before the Enquiry Officer and filed a written paper on the very day, i.e. October 17, 1970, containing points in defence arguments and argued his case. The said written arguments were placed by Sri Banerjee. His oral argument was also heard at length. The Enquiry Officer fixed November 16, 1970, for filing his report and filed his report on that day.
17. The Enquiry Officer, inter alia, found in his report that charges Nos. 1, 2 and 5 were proved in its entirety and charges Nos. (iii) and (iv) were partly proved against Sri Banerjee. It is further recorded that the report
may now he placed before the Vigilance Commissioner along with oral and documentary evidence for early dispatch to the Chief Secretary.
He also noted that some of Sri Banerjee''s personal books, namely, Maxwell on Interpretation of Statutes and Disciplinary Action against Government Servants by K.D. Srivastava might be returned to Sri Banerjee.
18. On November 25, 1970, the report of the Enquiry Officer was forwarded to the Disciplinary Authority by the Vigilance Commissioner along with a note.
19. On April 1, 1971, the Chief Secretary to the Government of West Bengal issued a notice informing the Appellant that the Government had carefully considered the report of the Enquiry Officer and had come to the conclusion that charges Nos. (i), (ii) and (v) had been fully proved against the Appellant. As regards charge No. (iii) the Government differed from the finding of the Enquiry Officer to the effect that the said charge had been partly proved but came to the conclusion that the said charge No. (iii) had also been fully proved against the Appellant. As regards charge No. (iv) the Government agreeing with the findings of the Enquiry Officer found that charge No. (iv) had been partly proved against the Appellant. Accordingly, Sri Banerjee was also intimated in the same notice as follows:
4. On the basis of the above findings, it has been provisionally decided, by order of the Governor, that under Rule 6(vi) of the All India Services (Discipline and Appeal) Rules, 1969, you should be reduced from your officiating rank of Commissioner to a post of Secretary to this Government.
This is technically called the Second Show Case Notice which is annex. E(i) to the petition.
20. The matter was referred to the Union Public Service Commission and the Commission gave its advice on March 30, 1972. It is annex. G to the petition. The Commission, inter alia, considered that charge No. (i) had been proved, but it was a technical irregularity; charge No. (ii) had been partly proved to the extent that Sri Banerjee exercised influence as Development Commissioner in obtaining a loan of Rs. 25,000 for his wife from the State Government but the second part of the charge that he engaged himself in the business and transactions on his wife''s farm has not been proved; charge No. (iii) had not been proved; charge No. (iv) has been partially proved in respect of the allotment of plot No. 40 in Regent Scheme to Sri Banerjee''s brother; and charge No. (v) has also been proved in respect of delayed payments for two purchases each of 4,000 bricks. In view of the findings given in the said report, the Commission advised that the requirements of the case would be met if the pay of Sri Banerjee is reduced from Rs. 2,750 per month to Rs. 2,500 per month from the date of issue of the order and from the stage of Rs. 2,500 per month he starts earning increments biennially according to the prescribed scale of pay.
21. On April 21, 1972, the Disciplinary Authority passed the final order (annex. F to the petition) and, inter alia, found as follows:
3. After taking into account all connected materials and facts relevant to the case and in consultation with the Union Public Service Commission, the Governor has come to the conclusion that charge (i) has been proved against you but it was a technical irregularity; charge (ii) has been partially proved to the extent that you exercised influence as Development Commissioner in obtaining a loan of Rs. 25,000 for your wife from the State Government, but the second part of this charge that you engaged yourself in the business and transactions of your wife''s farm has not been proved; charge (iii) has not been proved; charge (iv) has been partially proved in respect of allotment of plot No. 40 in Regent Scheme to your brother; and charge (v) has also been proved in respect of delayed payments for two purchases each of 4,000 bricks.
4. In view of the above findings, the Governor has been pleased to decide that you should be reduced from the stage of Rs. 2,750 per.month. to the stage of Rs. 2,500 p.m. in the scale of Rs. 2,500-125/2--2,750 with effect from the date of issue of this order and that you should start earning increments from the stage of Rs. 2,500 biennially in the aforesaid scale of pay from the date of reduction to the lower stage and orders accordingly.
By order of the Governor,
Sd.: N.C. Sengupta
21.4.72
Chief Secretary to the Govt.
of West Bengal
To
Sri S.K. Banerjee, I.A.S.,
Commissioner for Agri. & Community Development
& Ex-Officio Secy., Agri. & C.D. Department
22. On April 24, 1972, the Appellant issued the demand notice on the Disciplinary Authority to cancel or rescind the said order of April 21, 1972.
23. On April 26, 1972, the Rule nisi was issued on the application moved by Sri Banerjee under Article 226 of the Constitution.
24. On September 22, 1972, Sabyasachi Mukharji J. dismissed the application and discharged the Rule nisi.
(a) As regards charge No. (i) his Lordship, inter alia, observed that
so far as the first charge is concerned the latest finding of the Public Service Commission which has been accepted by the Disciplinary Authority is that there had been only technical irregularity. Therefore, it can be presumed that the said technical irregularity is not the basis of imposition of any penalty. For the purpose of this application the said charge and the findings in respect thereof can be ignored.
(b) As regards charge No. (ii) his Lordship was of the view that it consisted of three parts and further observed that
in respect of the second charge the Petitioner had not been found guilty of the fact that the Petitioner purchased three acres of land in the name of his wife. The Petitioner had also not been found guilty of the charge of the fact that the Petitioner had himself engaged in the business and the transaction of the farm.
It was further observed that
the Petitioner was not charged of having exercised influence in respect of the business set up by his wife
and ultimately came to the finding that the charge against the Petitioner that as Government servant he had engaged himself in the benami business and had obtained a loan for himself through the guise of the benami name of his wife, in content and ambit, is entirely different from a charge of exercising influence for obtaining a loan for his relation. The trial Court was, therefore, of the opinion that this aspect of the charge ultimately sustained by the Disciplinary Authority was at variance with the charge originally made. Ultimately it was found by his Lordship that there was no evidence for the finding that Sri Banerjee exercised his influence in respect of a loan of Rs. 25,000 for starting a poultry farm for Sri Banerjee''s wife.
(c) As regards charge No. (iii) the learned Judge noted that the Public Service Commission recommended and the Disciplinary Authority accepted that the said charge had not been proved.
(d) As regards charge No. (iv) the learned Judge was of the opinion that the Public Service Commission were justified in coming to the conclusion on the evidence on record. It appeared to him that in respect of this charge, the Petitioner''s dealing with the file of his brother is a matter which can reasonably be said to interfere with absolute integrity and devotion to duty which is expected from any officer of such a high rank. He was, therefore, of the opinion that in respect of this charge the Petitioner''s contention could not be accepted.
(e) As regards charge No. (v), i.e. the last charge, his Lordship proceeded that the said charge was in respect of ''delayed payment for two purchases of 40,000 bricks''. His Lordship observed that the Public Service Commission agreed with the finding of the Enquiry Officer to the effect that Sri Banerjee was found guilty but the learned Judge was of the opinion that there was no evidence to substantiate this charge.
25. Ultimately the learned Judge concluded that except for the charge of allotment of land to his brother which is charge No. (iv) no other charge has been proved which can be the basis of punishment in this case. The said charge is independent of other charges. The learned Judge held that punishment inflicted was according to law and is not shockingly disproportionate to the offence proved. The learned Judge observed that the Government might review their order passed against the Petitioner in the light of the observation made, namely, that
if the Petitioner makes an application for review under Rule 24, and then the Government should in the light of the observations made in the judgment consider the order passed and pass such order in accordance with law as the Government thinks fit and proper.
We are not told that such an application for review has been filed by Sri Banerjee.
26. Instead, the instant appeal has been preferred by Sri Banerjee on November 27, 1972, which has come up before us on special assignment.
27. There was sharp difference of opinion between the learned Advocates as to whether there are evidences in support of the charges. To clear up the issue and to appreciate the arguments made on behalf of either party it would be better first to refer to the state of evidence in some detail, both oral and documentary, in respect of the different charges.
Thirteen paragraphs omitted
In summarising the evidence on charge No. (i) his Lordship proceeds to say:
28. Thus, it appears that Sri Banerjee got his first Fiat car on September 28, 1959, (WBE 6955) and the second Fiat car on March 28, 1962, (WBF 1) when he himself was the Transport Commissioner. He made an application for allotment of another Fiat car for the third time on April 24, 1964, for official duties. In November 1964, it appears that there were 90 applications pending for two years for the allotment of the Fiat cars including that of Amaresh Roy J. In spite of the office note against the allotment, the Transport Commissioner allotted the third Fiat car to Sri Banerjee in May 21, 1965, (WBF 6262) in supersession of the claims of many applicants and he took delivery of the same next month. It further appears that one of the best cars from the Government pool was placed with Sri Banerjee whole time for his exclusive use. Sri Banerjee even then said that he had to rush out at odd hours of day and night and, unless he got an allotment, the Government pool car would not serve the purpose. It was pointed out by the Department that there was no such emergency to rush out for Sri Banerjee and suggested the return of the pool car if an allotment was to be made in his favour. No response was received from Sri Banerjee about the return of the pool car. Instead Sri Banerjee rang up the Deputy Secretary to allot a Fiat car to him because the allotment should be according to the status of the applicant and the nature of the work though the status of at least one of the applicants was far superior to him. Barely 8 months passed after the delivery of the Fiat car when Sri Banerjee made an application on February 25, 1966, for permission to sell the same. One of the grounds shown was that he required a different type of vehicle for purposes other than his own. Sri Banerjee sold the third Fiat car at a bargain price of Rs. 16,250 which he purchased at Rs. 15,036, Sri Banerjee, thereafter, purchased a jeep which was admittedly pressed for use in the poultry farm of his wife.
29. On March 23, 1967, Sri Banerjee''s application for allotment of the Fiat car for the fourth time was, though rejected by the Hon''ble Chief Minister, it appears that on the very next day an Ambassador car was allotted to him from the Government quota again on top priority basis. This allotment was made when a number of applications (more than 300 for Fiat cars only) for such allotment were pending for years together.
30. Sri Banerjee had to admit that the cars owned by him had not been mentioned in the successive annual assets statements but that was done through oversight.
31. Regarding the non-mentioning of the Bank balance in the annual asset statements, Sri Banerjee also admitted them to be a pure mistake through oversight. He further stated that he did not notice the instructions in the form that he had to show the Bank balance in the annual asset statements though he rectified the mistake in his latest asset statement.
32. It appears that Sri Banerjee opened a Current Account about the year 1942/1943 in the State Bank of India at Strand Road, Calcutta. He produced only the counter-foils of the used cheque books and he admitted that he had no more Bank papers for a period of 9 years as asked for from him. He did not produce any statement of account and, when the Bank produced them at the instance of the Presenting Officer, he had to admit that all the deposits in the Bank account (Ex. 34) could not be explained by him. A locker in December 1967 in the said State Bank was taken by him in which he had kept the ornaments of his wife.
33. Though the scheme of the poultry farm was sought to be Banerjee put through in or about 1964, it appears that Sm. Banerjee opened a Savings Bank Account (Ex. 35 at p. 180) in the said State Bank not before April 25, 1967. It appears in the said Savings Bank Account an amount of Rs. 25,000 was deposited within 3 days. I can safely presume that the said amount represents the loan taken from the Government. In the said account up to April 2, 1968, it shows a deposit of Rs. 2,500 by a transfer cheque on June 9, 1967, and again by transfer on April 2, 1968, another sum of Rs. 10,000. It further appears that within a fortnight of the said deposit, i.e. on April 17, 1968, a cheque for the sum of Rs. 13,000 was issued on the Reserve Bank of India by Sm. Banerjee towards the part payment of the said loan of Rs. 25,000.
34. After all it is difficult to believe that through oversight and mistake Sri Banerjee did not disclose the cars and the Bank accounts in his Declaration of Assets all those years mentioned in charge No. (i) and that he had not noticed the Rules and the instructions.
Three paragraphs omitted
35. In my opinion, there is enough evidence in support of proof of charge No. (i). I may observe that the learned Judge in the trial Court is not correct in stating that the Disciplinary Authority or the Public Service Commission said to the effect that there had been ''only'' technical irregularity. On the other hand, the recommendation of the Public Service Commission was that the charge was proved, but it was a technical irregularity. There is a difference between the two. The learned trial Judge proceeded to presume that the said technical irregularity was not the basis of imposition of any penalty. With very great respect, his Lordship should not have drawn such a presumption as the same does not follow from the materials on record as noticed above. Charge No. (i) was ignored by the trial Court and certain findings were made. In my view, the said findings to the effect that they are mere irregularities should also be set aside and the said charge cannot be ignored.
His Lordship, then discussed the evidence on charge No. (ii) and inter alia observed:
Seven paragraphs omitted
36. The written answers to Qs. 6, 7 and 8 by Sri Banerjee in Ex. 32 at pp. 114-15 are to the following effect:
Question (vi): WERE YOU CONNECTED DIRECTLY OR INDIRECTLY WITH THE POULTRY BUSINESS UNDERTAKEN BY YOUR WIFE?
First of all, poultry farming was undertaken by my wife not as ''business''. Our intention was to utilise the land purchased by me for my wife in 1950, which was lying fallow for years. This was mentioned in the very first communication I addressed to the Chief Secretary (my D.O. No. 941/PA dt. 15th September 1964) requesting Government''s permission for my wife.
As for my connection with this farming I was no more or no less connected than any husband or wife has to be with each other''s activities.
37. Odd to say, the least Sri Banerjee answered the question with levity. It is a pathetic sidelight and a bombshell of its own. His ensnaring web of logic turns into a scholarly reglet that is itself notable.
Paragraphs Nos. 38 to 59 omitted 60.
The Enquiry Officer observed that a senior member of the Indian Administrative Service, as a Commissioner of the same Department, writing letters to his colleagues and subordinate officers for expediting the grant of the loan, is certainly not a very happy figure in the administration of the country. According to the Enquiry Officer, if the pivot of the administration behaves in this way, the norms or standard of integrity and devotion to duty has been lowered beyond recognition. I have dealt with the standard of integrity and devotion to duty towards the end of charge No. (iv).
61. On charge No. (ii), the learned trial Court was not correct in saying that there was no evidence in support of proof of the said charge and that the said charge had three parts. I have given the list of the documents and indicated the oral evidence in support of proof of charge No. (ii). It had only two parts and not three. The learned Judge was also not correct in stating that Sri Banerjee had not been found guilty of the fact that the Appellant purchased three acres of land in the name of his wife. That charge has been admitted by Sri Banerjee and it required no proof. I have already stated that Sri Banerjee himself admitted year after year in the Declaration of Assets about the purchase of the land in the benami name of his wife. The learned Judge was also wrong when his Lordship stated that Sri Banerjee was not charged of having exercised influence in respect of the business set up by his wife. The charge against Sri Banerjee is of exercising his influence in respect of his wife''s business. The learned Judge was, therefore, in error in concluding that charge No. (ii) in content and ambit was entirely different from a charge of exercising influence for obtaining a loan for his relation. The learned Judge proceeded that the charge ultimately sustained by the Disciplinary Authority is at variance with the charge originally made. In my opinion, it is not so. Accordingly, the finding of the learned Judge is set aside in respect of charge No. (ii) and it is held that the said charge is also partly proved on evidence as found by the Disciplinary Authority.
62. Coming to charge No. (iii), as already stated, that the U.P.S.C. did not recommend to the effect that the charge had been proved. The final order of the Disciplinary Authority recorded that charge No. (iii) had not been proved and, accordingly, the same was not gone into by the learned Judge in the trial Court. It has also not been gone into before us. Hence, we can skip over this charge.
Seven paragraphs omitted
His Lordship then pointed out the evidence on charge No. (iv) and summarised:
63. It might be recalled that charge No. (iv) states that Sri Banerjee abused his official powers as a Development Commissioner in making allotments and re-allotments of plots of lands under different schemes of the Government of West Bengal in his own favour and in favour of his mother Sm. Saila Bala Banerjee and brothers Sri Mridul Kumar Banerjee and Sri Samir Kumar Banerjee.
64. It is not disputed that Sri Banerjee took an allotment of a plot of land at Kalyani in favour of himself. It is also not disputed that another plot of land of the Patipukur scheme was allotted to Sri Banerjee, but he surrendered the said plot. It is also not disputed that another plot at Patipukur scheme was allotted by Sri Banerjee as Development Commissioner to his brother Sri Samir Kumar Banerjee.
65. Though the Enquiry Officer on evidence found that Sri Banerjee abused his powers in the matter of all the said allotments, we are concerned in this appeal only with plot No. 40 of the Regent Park scheme in favour of his another younger brother Sri Mridul Kumar Banerjee. I have mentioned above some of the documents filed in proof of the said charge on behalf of the Presenting Officer and some produced on behalf of Sri Banerjee.
66. The Enquiry Officer noted that Mridul''s application was dated May 14, 1964. Sri Banerjee as Development Commissioner himself received the said application on that very date. There is no official seal on it. The application does not show that it was processed through the office. It appears from Ex. 14, the note quoted earlier, that the said plot was for lower income group people, but it does not appear from the record as to whether Mridul, who was an executive in the mercantile firm belonged to that group, Sri Banerjee, however, did not stick to the said position and stated in Ex. 32 that the plot happens to be an upper income group plot. It further appeared that the said plot was surrendered by Sri Goswami, but does not show when. In this note it was not mentioned by Sri Banerjee that Mridul was his own brother, nor did he mention that there was no other applicant waiting in the list to whom the said plot No. 40 of the Regent Park scheme might be given. These two very relevant and important facts and circumstances were conspicuously absent which ought to have been mentioned in the note to enable the Chief Minister to exercise his discretion for final allotment which he did on the next day, i.e. on May 15.
67. Grievance has been made by Mr. Chowdhury that when these two circumstances were not specifically mentioned either in the charge and/or in the imputation, Sri Banerjee was not bound to meet the said facts, circumstances or allegations. In my view, it is not necessary to mention each and every item of evidence in the charge and imputations. Sri Banerjee got sufficient opportunities to lead contrary evidence if he intended to do so. Mr. Chowdhury, moreover, omitted to notice that the other documents and oral evidence on the record including those proved even on behalf of the defence are sufficient in proof of the charge in part. It would not be right to say in this connection that Rule 8(4) of the 1969 Rules has been violated which in my view has not been violated. It is dealt with along with other Rules of 1969 in details later.
68. If we scrutinise the stand of Sri Banerjee a little in this respect we find that he himself understood the allegations or circumstances when he said that he disclosed the relationship about his brother Mridul ''verbally'' to the Chief Minister. Mr. Chowdhury''s further argument is that the Enquiry Officer should have put questions to Sri Banerjee on those two circumstances and that non-examination of Sri Banerjee is the ground for holding that Rule 8(19) has also been violated and that the said cannot be cured it least in respect of charge No. (iv) I have also dealt with the violation of Rule 8(19) later in details.
69. Mr. Chowdhury omitted to notice in Ex. A that Sri Bafierjee himself said that about 500 applications had been received for allotment in Regent Park scheme and by his own note elated September 17, 1962, he recommended the advertisement in the newspaper to invite applications. Sri Banerjee further directed that it was cumbent for an applicant to submit his application with a challan of payment of Rs. 25 as was being insisted in respect of other schemes. But we do not find that these were followed in the case of Mridul''s application and allotment. Though the advertisement was not approved by the Minister-in-charge but his order was to consider the pending 700 applications for allotment. It does not appear in the case of Mridul whether any other application was considered. Rather just after the surrender by one allotted it was allotted to Mridul. Sri Banerjee cannot take advantage of the facts that Dr. B.C. Roy ordered for allotment in two or three individual applications and that certain plots were allotted to the Vice-admiral Chatterjee or to a relation of the Agricultural Commissioner (Sri R. Ghosh).and to the Asstt. Secretaries of Home (police) and Labour Departments by the Chief Minister Sri Sen between October 1963 and April 1964. Sri Banerjee''s stand that, therefore, Mridul''s allotment in May 1964 is in order, cannot be justified. Exhibits A/1 to E/1 do not also help Sri Banerjee in this regard.
70. Mr. Chowdhury omitted also to notice another fact that in Ex. 32 Sri Banerjee himself admitted that the resources from his family which also should include himself were utilized for the purchase of the said plot No. 40 and that bulk of the price was paid out of the savings of the father of Sri Banerjee. It was decided, say Sri Banerjee, that his mother should apply for transfer of the allotment to her from Mridul which again was also effected by of Sri Banerjee as Development Commissioner, I cannot accept the argument of Mr. Chowdhury that the allegations on Which the Enquiry Officer found Sri Banerjee guilty were different from the written imputation connected with the said charge.
71. Argument was also advanced on behalf of the Appellant that the document (Ex. 32) in which it is being mentioned that Sri Banerjee verbally informed the Chief Minister Sri P.C. Sen about the relationship of the applicant with Sri Banerjee has not been considered by the Enquiry Officer and, accordingly, the finding of the trial Court on charge No. (iv) should be set aside.
72. It should not be forgotten that this statement was recorded by P.W. 5 at the investigation stage on October 30, 1969, before the charge-sheet was issued. The said statement of oral intimation does not find place in the defence statement which was filed on June 9, 1970, before the Enquiry Officer. This statement does not find place in the oral evidence adduced on behalf of the defence. It is not in the defence argument though in para. 5 (p. 147) of the Paper Book he stated his duties as Development Commissioner vis-a-vis the position of the Minister-in-charge.
73. In my view, even if the Enquiry Officer has not mentioned in his report about this verbal mentioning by Sri Banerjee to the Minister-in-charge about the relationship which was said before the Investigating Officer, it would not affect the quality, and validity of the report.
74. This point again was never taken before nor even in the written application. No ground is taken on this head. Mr. Chowdhury is not entitled to raise this point for the first time at the appellate stage. Accordingly, this submission also has got no substance and the same should be rejected.
75. Mr. Chowdhury''s further submission that the Court is not entitled to substitute his own findings is based on a wrong premise and the same, should not be accepted. There are enough materials on record in support of the findings of the Disciplinary Authority in respect of this charge and Mr. Chowdhury''s argument that there are no materials, is unsustainable.
76. Let us not forget that all the charges including charge No. (iv) were prefaced by stating that during the service of Sri Banerjee he ''failed to maintain absolute integrity and devotion to duty''.
77. If we go to the dictionary meaning of ''integrity'' (absolute apart), we find that the term is synonymous with purity, uprightness, rectitude, sinless ness, honesty, sincerity, etc. In some cases it is equated with moral soundness and it refers to a character of uncorrupted virtue. One writer puts it as the ''sublimest thing in nature''. In quoting Bible one might refer to ''Better is the pore that walketh in his integrity''.
78. In my view that a person with integrity must be free from every biasing or corrupting influence or motive. Mankind in fact trust in a person known to be of thorough integrity, that he will always be upright.
79. The test of integrity when coupled with the adjective ''absolute'' in this case, the test becomes more rigorous.
80. The question is whether Sri Banerjee has passed this test in respect of this charge. Can he be said that he was upright and free from all bias or corrupting influence or motive? Could he be trusted. My answer is ''no''.
81. The next question is whether Sri Banerjee was ''devoted to duty''.
82. We all know the chief current sense of duty. It is the noble selfless word. Dictionary defines ''duty'' which is due from a person in the way of natural, moral or legal obligation. It should be remembered that it is a graver term than mere obligation and responsibility. It is the correlative of right. In practice, it is usually applied to a proper action which one''s position or status directly requires or binds him to do or refrains him from doing. He must function properly which his employment authorises. By virtue of his office held by him he is bound to do things as a trustee or as an executor. It applies to an implied duty and it must be loyal performance of his obligation when he is assigned to do a task. Has Sri Banerjee done that duty in the instant case?
83. If one wishes to be allegorical and travel a few hundred years back he might refer to Wordsworth''s Ode to Duty by quoting "Stern daughter of the voice of God--Oh Duty?" Another writer described it with the figure of a woman veiled that said, "My name is Duty--Turn and follow me". Nelson expected England that every man would do his duty, as the Government expected of Sri Banerjee.
84. One need not remind himself of the principles of ''public duty'' from the English decisions, but if one looks at the decision of the Bombay High Court in the case of S.D. Marathe v. Pandurang Narayan Joshi ILR (1938) Bom. 770 (779), he would find that in interpreting the expression ''duty'' in Section 270 of the Government of India Act, 1935, it was held inter alia that civil servants are bound to obey the Rules made for the guidance of the officers.
85. The question in the present case is whether Sri Banerjee as Development Commissioner obeyed the Rules and performed the duty in allotting a plot in the name of his brother, in the circumstances detailed above, in the name of development and in getting, allotments of new cars in succession in his own name when he himself; was in charge of Transport Department of the State at the particular time. Did he act as a trustee or as an executor? Is it the loyal performance of his obligation to the State? Again, my definite answer is ''no''.
86. The preamble of the charges did not rest with mere performance of duty but to see whether the officer was ''devoted'' to duty.
87. The expression ''devotion'' should, therefore, in the context not to be lost sight of. The dictionary meaning which should not be a: taboo tells us that devotion is solemn dedication, earnest application, enthusiastic loyalty and eager inclination.
88. in my view, Sri Banerjee did not come near to solemnity, earnestness, loyalty and eagerness to perform his duty as a Development Commissioner and that he was not devoted to the case with a strong attachment akin to religious devotion and with complete detachment from bias and from showing favour and giving advantage to a particular person, viz. his brother, in breach of the rules and in super session of the claims of many of the applicants.
89. I am not unmindful of the fact that it is difficult to lay down any general rule in respect of absolute integrity and devotion state of to duty. The rule though in a sense is elliptic but the circumstances can definitely tell us what is becoming or unbecoming for a Government servant to do or not to do.
90. Modern approach of life is attempting to change many sacred ideals, but even then the distinction between right and wrong has not been forgotten as yet and the difference between honesty and dishonesty, fidelity and unfaithfulness is still being maintained. The question was sometimes asked--is it possible to prescribe the outside limits of integrity in a complex system of modern administration and the answer is at once given that the public officer should keep himself within the bounds of administrative decency which goes by the name of civilized, decent and honest administration? The above view of an author was accepted by B.N. Banerjee J. in the case of
91. Civil Service is not an autonomous profession. It has its code of conduct and ethics--written and unwritten. The most effective sanction is the sound and healthy public opinion on which the value and efficiency of the service mainly depend. If the Government were, to sit back and permit its officials to commit any outrage on such a code and does not apply the whip hand in taking proceedings, a catastrophe in the administration can be safely predicated.
92. A public servant may reflect glory upon the administration or may make himself odious by the value he sets on his office or rank. In any event, the behaviour of a public servant must not be derogatory to the prestige of the Government and if any act of the Government servant has the tendency to injure the Government interest or reputation, that must be avoided by the officer.
93. The Secretaries, which substantive post and rank Sri Banerjee held, are the most important pillars on which rest the control and administration of the State and power of discipline over its servants, but it was admitted by the Government that the Appellant''s work was not what was expected of Sri Banerjee. In practice, a civil servant''s conduct seems more likely to cause the downfall of his master than of himself.
94. I think, the considerations I have discussed above are conclusive to show that the case has gone against Sri Banerjee. With respect I agree with the findings of the trial Court that charge No. (iv) has been partly proved against him.
95. Charge No. (v) related to the abuse of the official powers of Sri Banerjee as Development Commissioner in purchasing on credit bricks for his own use from Brick and Tile Board (which department was directly under his control) which purchase on credit was not permissible.
Portion of para. 95 and three paragraphs omitted
96. The learned trial Court misread this charge also. The learned Judge thought that the charge was in respect of delayed payment for the purchase of bricks. The charge and imputations have been quoted at the beginning of the judgment. It shows otherwise. The learned Judge was also in error in stating that the Public Service Commission agreed with the finding of the Enquiry Officer to the effect that Sri Banerjee was guilty of the charge. It is not so. The learned Judge ultimately came to the finding that there was no evidence to substantiate charge No. (v).
97. By making the said error in reading wrongly the charge itself the learned Judge came to that conclusion which it is difficult for me to accept. There is evidence in support of the proof of charge No. (v) and with the learned Judge''s finding that there is no evidence, I am unable to agree. The finding of the Disciplinary Authority is accepted.
98. Mr. Chowdhury argues that it is neither proper nor fair nor even legal on the part of the Respondent State to place all the exhibits before this Court to support the argument of the Respondent that there is evidence in support of the charges. I cannot accept the argument of Mr. Chowdhury. In my opinion, it is not the duty of the writ Court to re-assess the evidence as it is purported to have been done in dealing with some of the charges and then to come to a finding different from that of the Disciplinary Authority on the ground of insufficiency of evidence. In this appeal, I had to check up the evidence in detail in order to be satisfied whether there is really evidence in support of the proof of the charges but not for the purpose of re-assessment of evidence. All the exhibits are admittedly legal evidence in the enquiry proceeding and, if the trial Court has come to the conclusion on the wrong finding that there is no evidence in support of the proof of the charges, the Respondent is entitled to place the documents before the appellate Court to substantiate as to show that there is evidence in support of the proof of the charges as found by the Disciplinary Authority.
99. The main argument that was advanced by Mr. Chowdhury appearing on behalf of the Appellant is that the entire enquiry proceeding is invalid inasmuch as the All India Services (Discipline and Appeal) Rules, 1969, (hereinafter referred to as 1969 Rules or Rules 1969) under which the enquiry is admittedly required to be held, have not been followed. Instead, the Rules which were repealed on October 9, 1969, viz. the All India Services (Discipline and Appeal) Rules of 1955 (hereinafter referred to as 1955 Rules or Rules 1969) were followed. He argued that two sets of Rules are different. 1969 Rules are more advantageous to the applicant. He pointed out Rule by Rule from both the Rules of 1955 and 1969 and took much pains for which the relevant Rules are quoted in extenso hereafter. Sri Banerjee ought to have been given more facilities under Rule 8(4) of 1969 Rules, says Mr. Chowdhury, which is roughly comparable with Rule 5(2) of the 1955 Rules. He also submitted that the relevant facts as required under Rule 8(4)(ii)(a) of 1969 Rules were not stated. It was further submitted that there was a total non-compliance of Rule 8(19) and Rule 8(24) of 1969 Rules.
100. Mr. Chowdhury submits that if he succeeds on this point, his client is prepared to face a fresh enquiry again on all the charges if validly conducted. Mr. Chowdhury placed before us the Privy Council decision in the case of
All India Services (Discipline & Appeal) Rules, 1955, which govern the present case, lay down the procedure for holding an enquiry against a member of the All-India Service. It has been laid down in Rules 4 and 5 of the said Rules how a proceeding should be carried. It has been laid down in Rule 5(2) that the grounds on which it is proposed to take action, shall be reduced to the form of a definite charge or charges, which shall be communicated to the member of the Service charged together with a statement of allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. So, under All India Services (Discipline & Appeal) Rules, 1955, it is mandatory on the part of the Government to frame definite charge or charges and to supply a statement of allegations on which each charge is based.
On the next page the Enquiry Officer again stated:
All the paraphernalia of the concept of natural justice to which Shri Banerjee is entitled under the All India Services (Discipline & Appeal) Rules, 1955, and under Articles 310 and 311 of the Constitution of India were afforded to him during the proceeding.
101. These are the three places in the long report in which the 1955 Rules have undoubtedly been referred to by the Enquiry Officer. Mr. Chowdhury stated, Rule 5(2) of 1955 Rules was taken word for word by the Enquiry Officer in the said quoted portion. Mr. Chowdhury concluded his submission by saying that, accordingly, there was no enquiry in the eye of law. The said question is a basic question and goes to the very root of the enquiry proceeding.
102. Another branch on this point of the argument is that assuming that Rules analogous to 1969 Rules have sometime been followed, there is considerable departure by the Enquiry Officer in the application of 1969 Rules for which serious prejudice has been caused to the Appellant for non-compliance of 1969 Rules.
103. To understand the argument it would be better at this stage to quote below the extracts of the relevant Rules on which strong reliance was placed on either side:
1955 Rules:
Rule 3--Penalties. The following penalties may, for good and sufficient reasons, and as hereinafter provided, be imposed on a member of the Service, namely: (i) censure; (ii) withholding of increments or promotion; (iii) reduction in rank including reduction to a lower post or time scale, or to a lower stage in a time scale.
* * * *
Rule 5--Procedure for imposing penalties.
(1) Without prejudice to the provisions of the Public Servants Enquiry Act, 1950, no order shall be passed imposing any of the penalties specified in Rule 3 on a member of Service unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself.
(2) The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges which shall be communicated to the member of the Service charged, together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case.
(3) The member of the Service shall be required within such time as may be considered by the Government, reasonably adequate in the circumstances of the case, to put in a written statement of his defence and to state whether he desires to be heard in person.
(4) The; member of the Service concerned may request for an access to official records for the purpose of preparing his written statement provided that the Government may, for reasons to be recorded in writing, refuse him such access if in its opinion such records are not strictly relevant to the case or it is not desirable in the public interest to allow such access.
(5) After the written statement is received from the member of the Service in accordance with Sub-rule (3), or if no such written statement is received within the time all owed, Government may, if it considers it necessary, appoint a Board of Inquiry, or an Inquiry Officer to enquire into the charges framed against the member of the Service and shall have the charges enquired into as provided in Sub-rule (6). If the Government does not consider it necessary to appoint a Board of Inquiry or an Inquiry Officer, the Government shall enquire into the charges in such manner as it deems fit.
(6) If the member of the Service desires to be heard in person, he shall be so heard. If he desires that an oral inquiry be held or if the Government so directs, an oral inquiry shall be held by the Board of Inquiry or the Inquiry Officer, as the case may be. At such inquiry evidence shall be heard as to such of the allegations as are not admitted and the member of the Service charged shall be entitled to cross-examine the witnesses to give evidence in person and to have such witnesses called as he may wish:
Provided that the Board of Inquiry or the Inquiry Officer, as the case may be, may, for reasons to be recorded in writing, refuse to call a witness.
(7) Where a Board of Inquiry is appointed, it shall consist of not less than two senior officers, provided that at least one member of such Board shall be an officer of the Service to which the member of the Service belongs.
(8) The proceedings conducted against a member of the Service under the provisions of this Rule shall contain sufficient record of findings, the evidence and a report setting out the findings and the grounds on which they are based, but shall not contain any recommendation relating to the penalty to be imposed unless the Government has specifically called for such recommendation.
(9) After the inquiry against a member of the Service has been completed and after the punishing authority has arrived at any provisional conclusion in regard to the penalty to be imposed, if the penalty proposed is dismissal, removal, compulsory retirement or reduction in rank, the member of the Service charged shall be supplied with a copy of the report of inquiry and be given a further opportunity to show cause why the proposed penalty should not be imposed on him;
Provided that if the punishing authority disagrees with any part or whole of the findings of the Board of Inquiry or the Inquiry Officer, the point or points of such disagreement together with a brief statement of the grounds thereof, shall also be communicated to the member of the Service.
(10) Notwithstanding anything contained in this Rule--
(a) it shall not be necessary to follow the procedure laid down in Sub-rules (2) to (9) in cases where it appears to the authority competent to impose the penalty at the initial stage of the proceedings that the penalty of censure would be adequate, but if at any later stage it is proposed to impose any other penalty specified in Rule 3, the procedure laid down in the said Sub-rules (2) to (9) be followed;
(b) it shall be lawful for the authority competent to impose the penalty to waive, for good and sufficient reasons to be recorded in writing, any of the provisions of this Rule in any exceptional case where such authority is satisfied that there is difficulty in strictly complying with such provisions and that compliance with such provisions can be waived without any injustice to the member of the Service concerned (c) the provisions of this Rule shall not apply in relation to the imposition of any member of the Service of any of the penalties specified in Rule 3--
(i) where the penalty is imposed on the ground of conduct which has led to his conviction on a criminal charge;
(ii) where the authority empowered to impose a penalty is satisfied that, for some reason to be recorded in writing, it is not reasonably practicable to follow the provisions of this Rule; and
(iii) where the authority empowered to impose a penalty is satisfied that in the interest of the security of the State, it is not expedient to follow the provisions of this Rule.
Rules 1969--Part III--Penalties and Disciplinary Authorities:
Rule 6. Penalties.
(1) The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a member of the Service, namely, Minor Penalties;
(i) Censure; (ii) withholding of promotions; (iii) recovery from pay of the whole, or part, of any pecuniary loss caused to Government by negligence of breach of orders; (iv) withholding of increments of pay;
Major Penalties:
(v) reduction to a lower stage in the timescale of pay for a specified period with further directions as to whether or not the member of the Service will earn increments during the period of reduction and whether, on the expiry of such period, the reduction will or will not have the effect of postponing future increments of the pay;
(vi) reduction to a lower time-scale of pay, grade or post '' which shall ordinarily be a bar to promotion of the member of the Service to the time-scale of pay, grade or post from which he was reduced, with or without further directions regarding conditions of restoration to the grade or post from which the member of the Service was reduced and his seniority and pay on such restoration to that grade or post.
Part IV--Procedure for imposing penalty.
Rule 8--Procedure for imposing major penalties.
(1) No order imposing any of the major penalties specified in Rule 6 shall be made except after an inquiry is held, as far as may be, in the manner provided in this Rule and Rule 10, or provided by the Public Servants (Inquiries) Act, 1950 (37 of 1950), where such inquiry is held under that Act.
(2) Whenever the Disciplinary Authority is of the opinion that there are grounds for inquiring into the truth of any imputations of misconduct or misbehavior against a member of the Service, it may appoint under this Rule or under the provisions of the Public Servants (Inquiries) Act, 1950 (37 of 1950), as the case may be, an authority to inquire into the truth thereof.
(3) Where a board is appointed as the Inquiry Authority, it shall consist of not less than two senior officers provided that at least one member of such board shall be an officer of the Service to which the member of the Service belongs.
(4) Where it is proposed to hold an inquiry against a member of the Service under this Rule and/or Rule 10, the Disciplinary Authority shall draw up or cause to be drawn up--
(i) the substance of the imputations of misconduct or misbehavior into definite and distinct articles of charge;
(ii) a statement of the imputations of misconduct or misbehavior in support of each article or charge which shall contain (a) a statement of all relevant facts including any admission or confession made by the member of the Service, (b) a list documents by which, and a list of witnesses by whom the articles of charge are proposed to be sustained.
(5) The Disciplinary Authority shall deliver or cause to be delivered to the member of the Service a copy of the articles of charge, the statement of the imputations of misconduct or misbehavior and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the member of the Service to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person.
(6) (a) On receipt of the written statement of defence the Disciplinary Authority may appoint under Sub-rule (2) an inquiring authority for the purpose of inquiring into such of the articles of charge as are not admitted, and, where all the articles of charge have been admitted by the member of the Service in his written statement of defence, the Disciplinary Authority shall record its finding on each charge and shall act in the manner laid down in the Rules.
(b) If no written statement of defence is submitted by the member of the Service, the Disciplinary Authority may, if it considers it necessary to do so, appoint, under Sub-rule (2) an inquiring authority for the purpose.
(c) Where the Disciplinary Authority appoints an inquiring authority for holding an inquiry into such charge, it may, by an order, appoint a Government servant or a legal practitioner, to be known as the ''Presenting Officer'' to present on its behalf the case in support of the articles of charge.
(7) The Disciplinary Authority shall forward the Inquiring Authority--
(i) a copy of the articles of charge and the statement of imputations of misconduct or misbehavior;
(ii) a copy of the written statement of defence, if any, submitted by the member of the Service;
(iii) a copy of the statement of witness, if any, referred to in Sub-rule (4);
(iv) evidence providing the delivery of the documents referred to in Sub-rule (4) to the member of the Service; and (v) a copy of the order appointing the ''Presenting Officer''.
(8) The member of the Service shall be required to appear in person before the Inquiring Authority at any time prescribed after the expiry of ten working days from the date of receipt of the articles of charge and the statement of imputations of misconduct or misbehavior, or within such further time, not exceeding ten days as the Inquiring Authority may allow.
(9) The member of the Service may take the assistance of any other Government servant to present the case on his behalf, but may not engage a legal practitioner for the purpose unless the Presenting Officer appointed by the Disciplinary Authority is a legal practitioner, or the Disciplinary Authority, having regard to the circumstances of the case, so permits.
(10) If the member of the Service who has not admitted any of the articles of charge in his written statement of defence or has not submitted any written statement of defence, appears before the Inquiring Authority, such authority shall ask him whether he is guilty or has any defence to make and, if he pleads guilty to any of the articles of charge, the Inquiring Authority shall record the plea, sign the record and obtain the signature of the member of the Service thereon.
(11) The Inquiring Authority shall return a finding of guilt in respect of these articles of charge to which the member of the Service pleads guilty.
(12) The Inquiring Authority shall, if the member of the Service fails to appear within the specified time or omits to plead, require the Presenting Officer to produce the evidence by which he proposes to prove the articles of charge, and shall adjourn the case to a later date not exceeding thirty days after recording an order that the member of the Service may for the purpose of preparing his defence,
(i) inspect, within five days of the order or, within such further time not exceeding five days as the Inquiring Authority may allow, the documents specified in the list referred to in Sub-rule (4);
(ii) submit a list of witnesses to be examined on his behalf;
Note--If the member of the Service applies orally or in writing for the supply of copies of the statement of witness mentioned in the list referred to in Sub-rule (4), the Inquiring Authority shall furnish him with such copies as early as possible and in any case not later than three days before the commencement of the examination of the witness on behalf of the Disciplinary Authority.
(iii) give notice within ten days of the order or, within such further time not exceeding ten days as the Inquiring Authority may allow, for the discovery or production of any documents which are in possession of Government but not mentioned in the list referred to in Sub-rule (4).
Note--The member of the Service shall indicate the relevance of the documents required by him to be discovered or produced by the Government.
(13) The Inquiring Authority shall, on receipt of the notice, for the discovery or production of documents, forward the same or copies thereof to the Authority in whose custody or possession the documents are kept with a requisition for the production of the document by such date as may be specified in such requisition:
Provided that the Inquiring Authority may, for reasons to be recorded by it in writing, refuse to requisition such of the documents as are in its opinion not relevant to the case.
(14) On receipt of the requisition referred to in Sub-rule (13), every authority having the custody or possession of the requisitioned documents shall produce the same before the Inquiring Authority:
Provided that if the Authority having the custody or possession of the requisitioned documents is satisfied, for reasons to be recorded by it in writing, that the production of all or any of such documents would be against the public interest or security of the State, it shall inform the Inquiring Authority accordingly and the Inquiring Authority shall, on being so informed, communicate the information to the member of the Service and withdraw the requisition made by it for the production or discovery of such documents.
(15) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the Disciplinary Authority. The witnesses shall be examined by, or on behalf of, the Presenting Officer and may be cross-examined by, or on behalf of, the member of the Service. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter without the leave of the Inquiring Authority. The Inquiring Authority may also put such questions to the witness as it thinks fit.
(16) If it shall appear necessary before the close of the case on behalf of the Disciplinary Authority, the Inquiring Authority may in its discretion allow the Presenting Officer to produce evidence not included in the list given to the member of the Service or may itself call for new evidence or recall and re-examine any witness and, in such case, the member of the Service shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the inquiry for three clear days before the production of such new evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned. The Inquiring Authority shall give to the member of the Service an opportunity of inspecting such documents before they are taken on the record. The Inquiring Authority may also allow the member of the Service to produce new evidence if it is of opinion that the production of such evidence is necessary in the interest of justice.
Note--New evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence. Such evidence may be called for only when there is an inherent lacuna or defect in the evidence which has been produced originally.
(17) When the case for the Disciplinary Authority is closed, the member of the Service shall be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the member of the Service shall be required to sign the record. In either case, a copy of the statement of defence shall be given to the Presenting Officer, if any, appointed.
(18) The evidence on behalf of the member of the Service shall then be produced. The member of the Service may examine himself in his own behalf if he so prefers. The witnesses produced by the member of the Service shall then be examined and shall be liable to cross-examination, re-examination and examination by the Inquiring Authority according to the provisions applicable to the witness for the Disciplinary Authority.
(19) The Inquiring Authority may, after the member of the Service closes his case, and shall himself generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the member of the Service to explain any circumstances appearing in the evidence against him.
(20) The Inquiring Authority may, after the completion of the production of the evidence, hear the Presenting Officer, if any appointed, and the member of the Service or permit them to file written briefs of their respective cases if they so desire.
(21) If the member of the Service, to whom a copy of the articles of charge has been delivered, does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the Inquiring Authority or otherwise fails or refuses to comply with the provisions of this Rule, the Inquiring Authority may hold the inquiry ex parte.
(22) (a) Where a State Government which has caused to be inquired into the articles of any charge and, having regard to its decision on any of the findings of any Inquiring Authority appointed by it, is of the opinion that the penalties specified in Clauses (vii) to (ix) of Rule 6 should be imposed on the member of the Service, the State Government shall forward the records of the inquiry to the Central Government suggesting imposition of the penalties specified in Clause (vii) to (ix) of Rule 6.
(b) The Central Government may act on the evidence on the record or may, if it is of the opinion that further examination of any of the witnesses is necessary in the interest of justice, recall the witness and examine, cross-examine and re-examine such witnesses. If the Central Government do not find justification imposing one of the penalties specified in Clauses (vii) to (ix) of Rule 6 in a case referred to it by a State Government, then it shall refer it back to the State Government.
(23) Whenever an Inquiring Authority, after having heard and recorded the whole or any part of the evidence in an enquiry, ceases to exercise jurisdiction therein and is succeeded by another Inquiring Authority which has, and which exercises such jurisdiction, the Inquiring Authority so succeeding may act on the evidence so recorded by its predecessor, or partly recorded by its predecessor and partly recorded by itself.
Provided that if the succeeding Inquiring Authority is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice, it may re-call, examine, cross-examine and re-examine any such witness as hereinbefore provided.
(24) (i) After the conclusion of the inquiry, a report shall be prepared and it shall contain
(a) the articles of charge and the statement of imputations of misconduct or misbehavior;
(b) the defence of the member of the Service in respect of each article of charge;
(c) an assessment of the evidence in respect of each article of charge; and
(d) the findings on each article of charge and reasons therefore.
Explanation--If in the opinion of the Inquiring Authority the proceedings of the inquiry establish any article of charge different from the original article of charge, it may record its findings on such article of charge:
Provided that the findings on such article of charge shall not be recorded unless the member of the Service has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge.
(ii) The Inquiring Authority shall forward to the Disciplinary Authority the records of the inquiry which shall include
(a) the report prepared by it under Clause (i);
(b) the written statement of defence, if any, submitted by the member of the Service;
(c) the oral and documentary evidence produced in the course of the inquiry;
(d) written briefs, if any, filed by the Presenting Officer or the member of the Service or both during the course of the inquiry; and
(e) the orders, if any, made by the Disciplinary Authority and the Inquiring Authority in regard to the inquiry.
Rule 9. (4) (i)--If the Disciplinary Authority having regard to its findings on all or any of the articles of charge, is of the opinion that any of the penalties specified in Clause (vii) to (ix) of Rule 6 should be imposed on the member of the Service it shall
(a) furnish to the member of the Service a copy of the report of such authority and a statement of its findings on each article of charge together with brief reasons for its disagreement, if any, with the findings of the Inquiring Authority;
(b) give the member of the Service a notice stating the penalty proposed to be imposed on him and calling upon him to submit within fifteen days of the receipt of the notice or such further time not exceeding fifteen days as may be allowed, such representation as he may wish to make on the proposed penalty on the basis of the evidence adduced during the inquiry held under Rule 8.
(ii) (a) In every case, the record of the inquiry, together with a copy of the notice given under Clause (i) and the representation made in pursuance of such notice, if any, shall be forwarded by the Disciplinary Authority to the Commission for its advice.
(b) The Disciplinary Authority shall, after considering the representation, if any, made by the member of the Service, and the advice given by the Commissioner, determine what penalty, if any, should be imposed on the member of the Service and make such order as it may deem fit.
104. This objection about the non-compliance of the Rules of 1969 in conducting the enquiry by the Enquiry Officer was taken in the demand notice dated April 24, 1972, annex. K to the petition and in the writ petition itself (see p. 16 and ground No. 1). In the affidavit-in-opposition, the Chief Secretary on behalf of the State Government stated that the enquiry was conducted under the 1969 Rules and the aforesaid reference to 1955 Rules at the said three places was made by the Enquiry Officer through inadvertence.
105. The learned trial Judge concluded that having regard to the entire proceeding and the manner of the participation of the Petitioner in the said proceeding, no prejudice has been caused to the Petitioner by the procedure followed. According to the learned Judge, though there has been no strict compliance in the technical forms with the provision of Rule 8(19) of 1969 Rules which are significantly different from 1955 Rules, the procedure followed by the Enquiry Officer has not resulted in any illegality. The learned Judge further held that the procedure enjoined under Rule 8(19) had been substantially complied with in the facts and circumstances of the case and the Petitioner had suffered no prejudice thereby. The learned Judge no doubt observed that the Enquiry Officer should have been more careful in following the Rules which he did not, and there has been on this aspect some technical irregularity in the conduct of the enquiry.
106. It cannot be disputed for a moment that the enquiry against the Appellant must be conducted under the 1969 Rules. Now, let us examine what has been done in this enquiry.
107. In the first show-cause notice and in the charges dated April 25, 1970, there is a direct reference to the fact that the enquiry is proposed to be held under Rule 8 of 1969 Rules (see p. 21 of the Paper Book).
108. The Appellant himself by his letter addressed to the Chief Secretary on July 18, 1970, (annex. B(v) to the writ petition) mentions about the framing of the charge against him under the Rules of 1969. To this letter of Sri Banerjee the Chief Secretary wrote on August 12, 1970, that his letter was being sent to the Enquiry Officer for appropriate action in terms of Rule 8(12) of the 1969 Rules (see p. 813 of the Paper Book). The Enquiry Officer in the very first order of his order-sheet himself recorded on August 18, 1970, long before the date of the report where 1955 Rules were mentioned that he was to hold an enquiry under Rule 8 of 1969 Rules. In the beginning of the report of the Enquiry Officer (annex. 4 to the writ petition) dated November 16, 1970, and in which report reference to 1955 Rules is subsequently there and which have already been noticed, the Enquiry Officer himself mentions that he was appointed as an Enquiry Officer to hold an enquiry under Rule 8 of 1969 Rules. If the Enquiry Officer would have followed 1955 Rules he would have mentioned Rule 5(5) of 1955 Rules instead of Rule 8 of 1969 Rules. The second show-cause notice, that is, the finding of the Disciplinary Authority (annex. E(i) to the writ petition) dated April 1, 1971, refers to 1969 Rules by mentioning the first show-cause notice dated April 25, 1970. Moreover, there is a distinct reference at para. 4 of the said second show-cause notice in which it is recorded as follows:
(iv) On the basis of the above finding, it has been provisionally decided, by order of the Governor, that under Rule 6(vi) of the All India Services (Discipline and Appeal) Rules, 1969, you should be reduced from your officiating rank of Commissioner to a post of Secretary to this Government.
109. Sri Banerjee, the Appellant himself, again admits in his letter dated May 30, 1971, [annex. E(ii)] addressed to the Chief Secretary that the 1969 Rules have been followed. Paragraph 5 of the said letter is to the following effect:
5. The departmental proceedings have been drawn up against me on the bogus charges framed under the All India Services (Discipline and Appeal) Rules, 1969. The Enquiring Officer was appointed under Rule 8 of the above Rules. The Rules direct that the Enquiring Officer''s report will be placed before the Disciplinary Authority and it is for that authority alone in exercise of their own judgment and discretion to come to decisions on the Enquiring Officer''s report. I find no provision in these Statutory Rules for the Enquiring Officer''s report to be superimposed by comments from any such functionary as the Vigilance Commissioner whose existence is not recognised in the Statutory Rules.
110. It is significant that Sri Banerjee did not make any complaint anywhere before the demand notice, followed by the writ application, that the 1969 Rules had not been followed in the enquiry.
111. In the recommendation of the Public Service Commission dated March 30, 1972, (annex. G to the petition) 1969 Rules have been referred to. In the final order passed by the Disciplinary Authority dated April 21, 1972, (annex. F to the petition) the first two paragraphs thereof specifically refer to 1969 Rules.
112. In evidence, either oral or documentary, no objection was taken at any point of time by Sri Banerjee that 1969 Rules have not been followed. There was neither any objection by Sri Banerjee in the statement of defence and in his written argument to the said effect. No objection was taken to the second show-cause notice on the said point. Sri Banerjee understood and proceeded all along that the enquiry was being conducted under 1969 Rules. The reference Sunil 1955 Rules by the Enquiry Officer was also missed by him except at the time of demand notice.
113. In the aforesaid circumstances my view is that the enquiry was conducted under 1969 Rules and pot under 1955 Rules. Now, he wants to take advantage of the slips of the mention of 1955 Rules made by the Enquiry Officer. The Appellant himself understood the said position thoroughly. Sri Banerjee himself admitted of the enquiry under 1969 Rules in two of his letters of July 18, 1970, and May 30, 1971, as referred to already. If one turns to the statements made in para. 22 of his own writ petition, it appears that the Appellant admitted--
your Petitioner submitted written argument which under Sub-rule 24 of Rule 8 of the Rules of 1969 forms part of the enquiry. A copy of the said written brief is annexed hereto and marked ''J'' (p. 137).
It should not be forgotten that Sri Banerjee filed his written argument or brief or defence under Rule 8(20) of 1969 Rules for which there was no corresponding Rule in the 1955 Rules. The Enquiry Officer followed the proviso to Rule 8(13) and asked Sri Banerjee to prove the relevancy of the documents for which inspection and production of the same was sought for by him. List of document and witness supplied to Sri Banerjee are only under 1969 Rules. On the one hand, he takes advantage of 1969 Rules; on the other, he says that those Rules have not been followed.
114. After all these, it will not only be too late but ridiculous to say that the enquiry was conducted under the repealed Rules, i.e. 1955 Rules and not under the 1969 Rules and which also I would presently show that they have been followed. The reference to 1955 Rules by the Enquiry Officer at three places mentioned above must have been made through inadvertence, and that relates to charge No. (ii) only and not to other charges.
115. It is a well-recognised principle of law that a wrong reference to a statute or rule does not make the order bad or be treated as without jurisdiction if the right rule or the statute has been followed.
116. Reference has been made to the following decisions, namely,
118. I cannot also accept the argument of Mr. Chowdhury that the reference by the Enquiry Officer to the 1955 Rules in his report was not a casual reference but goes through the root of his jurisdiction. It would also not be right to state that the only procedure followed by the Enquiry Officer is under Rule 5(6) of the 1955 Rules.
119. There is no breach of Rule 8(4) of the 1969 Rules regarding plot No. 40 in charge No. (iv) or in respect of any other charge. The charge and the statement of imputations which are only elucidation of fact much be read together. They are not separate documents and one should not be hypercritical in reading the charges and the statement of imputations in that way. This principle gets support from the Supreme Court decision in the case of
120. Mr. Chowdhury for the first time in reply raised a point that the provisions of Rule 8(17) of the 1969 Rules have not been complied with. This objection again was not taken at the opening of his argument or at any time before but for the first time in reply. Even then we allowed him to argue the point. I am of opinion, however, though the order-sheet maintained by the Enquiry Officer does not specifically mention that Sri Banerjee was asked to state his defence, but in my view Rule 8(17) has been complied with. Sri Banerjee submitted his defence in writing, cross-examined the prosecution witnesses and argued the case himself. Therefore, the provisions of this Rule have also been substantially complied with if not fully. It does not arise in argument whether the said Rule is mandatory. It is not a pure question of law to be raised at any time. If this would have been raised at the initial stage the Respondent might have shown that this Rule has been fully complied with.
121. Mr. Chowdhury''s next grievance on this branch of the argument was that, even if the 1969 Rules have been substantially followed, the Appellant suffered a great prejudice inasmuch as the documents were not given inspection of and were not produced which were required to be produced under the 1969 Rules. If we examine the writ application of the applicant we find that only the specific grounds of non-compliance of Rules 8(13) and 8(19); of the 1969 Rules have been taken in ground No. 2. It was not stated what prejudice he had suffered. No ground has been taken that inspection of documents had not been given or Sub-rules (4) and (24) of Rule 8 have not been followed. The applicant''s grievance was summarised in paras. 7 to 9 and 17 and 18 to the writ application. The affidavit-in-opposition of the Chief Secretary in paras. 5, 6 and 13 give a full picture of the said matter. It was stated that full inspection of all the documents mentioned in the memorandum of April 20, 1970, was given to the Appellant who had full opportunity to consider and deal with the same for the purpose of his defence. As a matter of fact, on May 22, 1970, Sri Banerjee acknowledged the facts of inspection in writing and he filed his written statement of defence on June 9, 1970. He reserved his right of submitting additional statement after inspection, but he did not think it necessary to submit any such additional statement subsequently. Accordingly, the cry of prejudice seems to me a far cry and as an after-thought and in my opinion, agreeing with the view of the trial Court, no prejudice has been caused to the Appellant in the matter of inspection of the documents also whether in respect of charge No. (iv) or in respect of any other charge.
122. In the affidavit-in-reply of the Appellant in para. 14 (p. 186 of the Paper Book) he stated that Rule 8(19) was a mandatory provision and the question of prejudice was immaterial. Mr. Chowdhury, the learned Counsel, said so. Further details as to how the Appellant has taken inspection of all the documents have been clearly stated in para. 10 of the second affidavit-in-opposition of the Chief Secretary affirmed on July 7, 1972.
123. The learned trial Judge, inter alia, negatived the contention of the Appellant with which I respectfully agree that there has been any violation of principles of natural justice and denial of reasonable opportunity by the fact that the Petitioner had to file his defence without explanation of all the relevant and necessary documents.
124. The list of documents with the first show-cause notice appears at pp. 23 and 24 of the Paper Book. On May 27, 1970, Sri Banerjee wrote to the Chief Secretary mentioning the documents which could not be produced before him on May 22, 1970. Regarding the file mentioned in items (a) and (b) of the said letter it refers to Patipukur Development Scheme with which Sri Banerjee is not concerned in the present case. The inspection of the complete files in items (b) and (c) was subsequently given. Thereafter the written statement was filed on June 9, 1970. On July 2 and 17, 1970, he requested the Chief Secretary for production of the document listed in support of the charges. On July 18, 1970, Sri Banerjee requested the Chief Secretary that the additional documents enclosed along with the said letter should be made available to him. The Government in its reply on July 20, 1970, mentioned that the documents would be available for inspection of Sri Banerjee very shortly except the said Patipukur Development Scheme papers. Sri Banerjee was also intimated that another file was lying ready for his inspection. Therefore, the inspection of all documents at the first tage was offered and given.
125. The second stage as to the inspection of the additional documents, the Chief Secretary wrote to Sri Banerjee on July 22, 1970, (p. 207 of the Paper Book) that steps had been taken to collect them as early as possible and that he would be informed as soon those were ready for inspection. The position of the inspection of documents at the second stage by Sri Banerjee will be clear from the note sent by the Deputy Secretary, Vigilance Commission, to the Deputy Secretary, Home Department. As regards items (a) and (b) it has been recorded that all the files mentioned there have already been shown to Sri S.K. Banerjee. There is nothing further to be done in the matter. Item (c)--the relevant particulars have been supplied by the Brick and Tile Board and Sri Banerjee might see them at the office of the Commissioner; item (d)--regarding allotment of plot in Patipukur scheme--even the said file was also shown to Sri Banerjee on July 10, 1970, when he called at the office of the Commissioner; item (e)--the file had been obtained from the Department and Sri Banerjee, if he liked, might inspect the same. Regarding the documents mentioned in items II and III (p. 212 of the Paper Book) the note records that they were ready for inspection except one file of the Development Department regarding Kalyani with which Sri Banerjee is not charged in the present case.
126. If we now examine the order-sheet of the Enquiry Officer we find that he refers to the additional documents in his very first order dated August 18, 1970, and in pursuance of the proviso to Rule 8(13) of the 1969 Rules Sri Banerjee was asked by the officer to intimate as to how each of the documents mentioned by him in the list was relevant in connection with different charges against him. In the next order dated August 31, 1970, it is again recorded by the Enquiry Officer that Sri Banerjee would have to satisfy the officer regarding the relevancy of any additional document which he wants to inspect before adducing his oral evidence. The statement of relevancy appears at pp. 129 to 131 of the Paper Book.
127. It should be remembered in this connection that the proviso to Rule 8(13) of the 1969 Rules regarding the discovery and production of documents clearly states that the Enquiry Authority may, for reasons to be recorded in writing, refuse to requisition such of the documents as they are in its opinion not relevant to the case. In other words, the discretion is with the Enquiry Authority.
128. On September 14, 1970, an elaborate order was passed by the Enquiry Officer regarding the relevancy of the additional documents. After hearing Sri Banerjee also at length, he allowed certain documents to be given inspection of and he disallowed others on cogent grounds. If we examine the defence argument filed by Sri Banerjee at p. 137 of the Paper Book, we do not find any complaint by him about not giving to him inspection and production of documents. Sri Banerjee was also silent as to how he had suffered prejudice for not being able to inspect the documents. The written argument in defence was filed on October 7, 1970.
129. In the second show-cause notice or in the finding of the Disciplinary Authority dated April 1, 1971, it was definitely recorded in the last Sub-para. (1) of para. 2--
the documentary evidence was fully inspected by you before the enquiry and was also produced at the time of enquiry. However, the evidence will be made available for inspection by you again if you require such inspection (p. 96 of the Paper Book).
130. Mr. Basak asks us to scrutinise the sequence of the Rules from Rule 8(4) upto Rule 8(12)(i) and to see that the right of inspection comes at a much later stage. Under Rule 8(6), the written statement is to be filed before the appointment by the authority of the Enquiry Officer.
131. Mr. Chowdhury contends that there has been total noncompliance of Rule 8(19) of the 1969 Rules. The same provides that the Enquiry Authority shall, if the member of the Service has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the member of the Service to explain any circumstance appearing in the evidence against him. It is like a statement u/s 342 of the Code of Criminal Procedure. This provision was not in the old Rules of 1955. According to Mr. Chowdhury this provision is mandatory and it has not been complied with. Consequently, the whole enquiry has become bad.
132. It is true that it does not appear from the record that formal questions have been put by the Enquiry Authority as provided in the said Rule. But it should not be forgotten that (i) departmental enquiry is not a criminal proceeding and (ii) the analogy of Section 342, code Criminal Procedure, is not strictly applicable to such a proceeding. Moreover, Sri Banerjee himself argued his case, cross-examined the prosecution witnesses and filed his own points in his written defence. He conducted the whole enquiry himself and argued his case personally in the trial Court. He even relied on various decisions mentioned in the said note including Supreme Court decisions. He cited in the argument the provisions of the Indian Evidence Act and the provisions contained in the Rules of Business. He referred to the well-known book. Maxwell on Interpretation of Statutes, and he handed over other books to the Enquiry Officer which were ordered to be returned to him after the report. In any view, Sri Banerjee is more than an astute lawyer. He knows well what are the circumstances against him. To put to him again questions formally on the circumstances against him would be an empty formality in the facts of this case. Last of all, he had not thereby suffered any prejudice and he could not mention any. It is not possible to follow as to what sort of prejudice has been caused to him by not putting questions to him about the circumstances against him in the evidence when he himself cross-examined the prosecution witnesses. It would appear from the order dated September 23, 1970, that Sri Banerjee requested for time for his arguments but did not offer himself for examination or did not ask the officer to put question to him. After the close of his case on September 17, 1970, time was granted at his request. On October 17, 1970, he filed a written brief showing points in defence arguments on the basis of which he argued the case himself. On July 14, in his affidavit-in-reply, at p. 186 of the Paper Book, he did not say that he suffered prejudice. According to him, the question of prejudice rather was immaterial.
133. A large number of decisions were cited by Mr. Basak as to the effect of non-compliance of the provisions of Section 342 of the Code of Criminal Procedure. According to him, if there is no prejudice, non-examination u/s 342 of the Code of Criminal Procedure does not vitiate the trial. The matter also should have been looked at from another aspect, viz., as to whether there has been a substantial compliance of the same and whether the non-compliance of it is a mere irregularity. The question of actual prejudice is to be looked into. The Supreme Court decisions are
134. The basis of almost all the aforesaid judgments is whether any prejudice has been caused. In the case in hand, no prejudice has been caused to the Appellant which I have held at more than one place. Two cases, i.e. Hamid Ali v. Sri Kissen Gosain and Anr. (1922) 28 C.W.N. 118 and Haro Nath Malo v. Sonai Mia Chowdhury (1922) 28 C.W.N. 119, cited by Mr. Chowdhury, are no longer good law in view of the above Supreme Court decisions.
135. Mr. Chowdhury tried to contend that the list of documents annexed to the charge should have been given charge-wise separately, but from the plain reading of the several documents referred to in the list it clearly indicates to which charge they relate and refer to. Moreover, there is no rule that the list of documents should be given charge by charge. Sub-rules (4) and (5) of Rule 8 should be read together. It was not argued before the trial Court that Rule 8(4) has not been complied with. Only reference was made to Rule 8(19) of the 1919 Rules by Sri Banerjee who argued the case himself before the trial Court. There is a considerable improvement in the argument of Mr. Chowdhury regarding the non-compliance of other provisions of the 1969 Rules noticed above and hereafter.
136. There is no substance in the argument that Rule 8(24) has been violated. I tried to find out from clause by clause of the said Rule as to whether there is any non-compliance. I found none 137. It should not be forgotten that the enquiry report should not be looked at or judged from the viewpoint or standard of a judgment to be delivered under the Code of Civil Procedure. The Assam High Court even went to the length of holding that if the order or the report of the Enquiry Officer touched the standard of a speaking order that would be sufficient. See the case of Dhananjoy Das v. The Chairman, Appellate Board AIR 1961 Ass. 56 (64). It is not necessary for me to go to that length in the instant case.
138. I, therefore, hold that none of the Sub-rules of the 1969 Rules has been violated and the enquiry was not invalid on this score. Even assuming for arguments sake that all the Rules of 1969 had not been strictly followed, Mr. Chowdhury in spite of his best efforts could not substantiate as to how his client had suffered prejudice. It is well established that mere non-compliance of the Rule would not be enough to get relief in a writ application.
139. The next question that fell to be considered as to when an order of punishment is based on several charges and if some of the charges are not proved (here charge No. (iii) has not been proved), the order of punishment would not be a good order and it should be set aside. Reliance was placed, on the other hand, by Mr. Basak, the learned Counsel appearing on behalf of the Respondent on the Supreme Court decision in the case of
If the order may be supported on any finding as to substantial misdemeanor for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would be weighed with the authority in dismissing the public servant. The Court has no jurisdiction if the findings of the Enquiry Officer or the Tribunal prima facie make out a case of misdemeanor, to direct the authority to reconsider that order because in respect of some of the findings but not all, it appears that there had been violation of the rules of natural justice. The High Court was, in our judgment, in error in directing the Governor of Orissa to reconsider the question.
140. The said decision was subsequently followed by the Supreme Court in the case of Union of India v. Sardar Bahadur (1972) S.L.R. 355 (S.C.) (paras. 17 and 18).
141. Mr. Chowdhury, the learned Counsel appearing for the Appellant, answers by saying that the case of State of Orissa Supra is not an authority for the proposition that the High Court cannot interfere in proper cases. Mr. Basak did not say that. In our view, the principles laid down by the Supreme Court in the aforesaid two decisions are fully applicable to the facts of this case. Therefore, when the enquiry in the instant case is valid and some of the charges are proved, the order of punishment would be a good order and cannot be interfered with.
142. The next question that falls to be considered is whether the trial Court went beyond the scope of Article 226 of the Constitution or, in other words, whether the trial Court had assumed the jurisdiction of an appellate Court against the final order passed by the Disciplinary Authority. This was really the point of Mr. Basak so far as charges Nos. (i), (ii) and (v) are concerned.
143. Mr. Basak cites the following Supreme Court decisions in support of his contention that the writ Court being not an appellate Court over the Disciplinary Authority has got no jurisdiction to appraise or weigh the evidence adduced in the enquiry proceedings. The cases are:
144. The following principles of law amongst others flow from the aforesaid decisions which are relevant for the purpose of deciding the instant case. In exercising writ jurisdiction (i) the High Court is not a Court of Appeal over the Tribunal or the Disciplinary Authority; (ii) the High Court is not there to correct all errors unless the same appears on the face of the record; (iii) the Court has no power to correct the error of the Tribunal in appreciating the evidence or in drawing inference therefrom; (iv) the Court has no power to re-examine, re-appraise to review the evidence; (v) the drawing of inference from the facts is the exclusive jurisdiction of the Tribunal; (vi) some legal evidence in support of the charge would be enough; (vii) the reliability of the evidence cannot be weighed; (viii) the inference might be drawn from the probability of the case and substantial evidence.
145. Mr. Chowdhury, the learned Advocate, does not and cannot dispute any of the propositions laid down in the aforesaid Supreme Court decisions and he had no handy answer but deals with only two of those cases, namely, the cases of Veerappa Supra and the State of Madras Supra. He submitted that the trial Court in the case in hand has dealt with a case of no evidence and corrected the error, apparent on the face of the record. I am unable to accept the contentions of Mr. Chowdhury. There is enough evidence in the case which has been already dealt with in detail.
146. Next question that falls to be considered is what is the standard of proof in such proceedings. Is it the same as that of a criminal proceeding? In my opinion, the standard of proof is not the same. The said view gets support from the Supreme Court decision already referred to in the case of State of Andhra Pradesh v. Sri Rama Rao Supra. The said case was applied in the case of
147. The next question that has been argued at length before us by Mr. Basak that as Sri Banerjee did not show any cause after the second show-cause notice he should not be allowed to challenge the findings of the Disciplinary Authority or the punishment awarded in the application under Article 226 of the Constitution. Strong reliance was placed by Mr. Basak on the Supreme Court decisions in the cases of
148. Mr. Basak particularly relied on paras. 7 and 11 of the said case of P. Joseph John and laid emphasis on the observation of Mahajan C.J. presiding over the Bench to the effect that when no cause was shown on the second show-cause notice the Petitioner would not be heard to say that he was not given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.
149. It is my considered opinion that the Supreme Court in the aforesaid two judgments had not intended to lay down a proposition that the Petitioner would be debarred from challenging either the findings on the charges by the Enquiry Officer as well as the order of the punishment proposed to be given in the second show-cause notice. In my opinion, the challenge on the validity of the enquiry if it is supported on good grounds or the challenge that the Enquiry Officer had no jurisdiction to conduct the enquiry or that the challenge that the enquiry proceeding is illegal and void would not be barred though it is true that the Petitioner would not be allowed to challenge the quantum of punishment if no cause was shown to the second show-cause notice. I make it clear that at the stage of second show-cause notice an employee can also show cause against the findings of guilt. I am supported by the Supreme Court decision in the case of
150. In the instant case the explanation sought to be given by Sri Banerjee as to why he did not show cause to the second show-cause notice as stated in para. 13 of the writ application is a laughable explanation. It is a noteworthy non-event and a belated awareness. In the absence of the copy of the Vigilance Commissioner''s report he thought it is to be worthless to show cause to the second notice. It displays a fine eye for absurdity.
151. Next point that falls for consideration is whether the Respondent State in not filing the appeal can support the order of the trial Court on any other ground and/or attack some of the adverse findings of the learned trial Judge on other points going against the Respondent from the papers on the record on the analogous principle of the provisions of Order 41, Rules 22 and 33 of the Code of Civil Procedure.
152. Reliance was placed by Mr. Basak on the Supreme Court decision in the case of
153. The Division Bench decision in the case of Brojendra Chandra Sharma v. Prasanna Kumar Dhar (1920) 24 C.W.N. 1016 : AIR 1920 Cal. 776, cited by Mr. Chowdhury, is no longer a good law in view of the decision of the Judicial Committee of the Privy Council in the case of Sabitri Thakurain v. Savi (1921) 48 I.A. 76: AIR 1921 P.C. 80. The said view was also noticed in a recent Bench decision of this Court in the case of
154. There is also another ground which can be taken note of that the learned Judge in the case of Brojendra Chandra Sharma (1920) 24 C.W.N 1016 : AIR 1920 Cal. 776 followed by the decision in the case Kausalia v. Gulab Kuar ILR (1899) All 297 which decision was based on the CPC of 1899. There was change in the law in the Code of 1908 which the member of the judicial Committee noticed in the aforesaid decision of Sabitri Thakurain v. Savi (1921) 48 I.A. 76 : 1921 P.C. 80.
155. In my view, the State could not have preferred an appeal against the order dismissing the Appellant''s application under Article 226 of the Constitution after affirming the findings on one or two charges but if the learned trial Judge makes certain erroneous findings and absolves the Petitioner from certain other charges, the Respondent State in order to support the ultimate order would be entitled to show from the record that the findings are erroneous and to show that there are evidence to support the other charges for which the trial Court absolved the Petitioner. On the principles analogous to the provisions of Order41, Rule 22 of the Code of Civil Procedure.
156. The next point that Mr. Chowdhury argues is that the Disciplinary Authority passed the final order only relying on the report of the Vigilance Commissioner. The order is, therefore, bad. The second submission on this head of Mr. Chowdhury was that a copy of the said report should have been given to Sri Banerjee. The said ground of objection appears in paras. 12 and 20 of the writ petition and in ground No. 3. In the affidavit-in opposition, the Chief Secretary stated in the Paper Book (para. 9 at p. 166) a portion which is set out below:
And I say that the present case in issuing the said memorandum dated the 1st April, 1971, the Disciplinary Authority did in fact apply his own mind and come to his own findings and conclusion in the matter. It is denied that the said memorandum dated 1st April, 1971, was prepared by the Respondent No. 6. I respectfully submit that the Petitioner was not entitled to be supplied with the advice which the Vigilance Commission may have given to the Disciplinary Authority as to further action to be taken. The reasons given by the Petitioner for not making representation against the said memorandum dated 1st April, 1971, if any, are untenable and without justification. It is denied that the advice of the Vigilance Commission can be called its findings or that the Government memorandum was in compliance with any note as alleged or at all. It is denied that it was the Vigilance Commissioner and not the Disciplinary Authority who dealt with the report of the Inquiry Officer or that any rule has been contravened or that the Government memorandum was drafted by the Vigilance Commission and merely signed by the Disciplinary Authority as alleged or at all.
It is repeated in para. 10 of the affidavit-in-opposition that the Disciplinary Authority finally came to the conclusion in consultation with the Union Public Service Commission. In the affidavit-in-reply the Appellant again stated that the extraneous matter (viz., the report of the Vigilance Commissioner) had admittedly influenced the decision of the Disciplinary Authority. The Appellant also filed a copy of the transcript of the tape-recorded conversation between himself and the Chief Secretary. The said submission in the affidavit-in-opposition was denied in the supplementary affidavit of the Chief Secretary in the Paper Book (para. 5 at p. 199). I shall deal with this tape-recording affair when I deal with the Appellant''s conduct.
157. If we turn to the second show-cause notice of the finding of the Disciplinary Authority, we find no reference to the Vigilance Commissioner''s report. Paragraph 4 of the said document refers to the findings of the Enquiry Officer only. We do not find also reference of the said report of the Vigilance Commissioner in the final order of the Disciplinary Authority dated April 21, 1970. On the other hand, the Government did not accept the recommendation of the Vigilance Commissioner on charge No. (iii). It should be remembered that the only difference between the report of the Enquiry Officer and the Vigilance Commissioner''s note is with regard to charge No. (iii) with which we are not troubled in the instant appeal.
158. In the report of the Union Public Service Commission, there is again no reference to the Vigilance Commissioner''s report. The Union Public Service Commission independently considered the entire matter and gave its recommendations. As already quoted above, the Disciplinary Authority, viz. the Chief Secretary himself, stated in his affidavit-in-opposition that he considered the matter and, applying his mind to the same, came to his own independent findings and conclusion. He himself signed the second show-cause notice.
159. The learned Judge, inter alia, found with which I respectfully agree that there was no violation of the statutory rules or of the constitution in the act of the Disciplinary Authority considering the views of the Vigilance Commissioner before issuing the second show-cause notice.
160. In my opinion, there is no bar for the Government to take the comments in the report of the Vigilance Commissioner as a legal advice and to consider the same provided, however, the Disciplinary Authority must apply its mind independently of the said advice and issue the second show-cause notice and thereafter pass the final order, even if the statutory rules do not sanction that the comments of the Vigilance Commissioner on the enquiry report should be considered by the Disciplinary Authority. In my view, there is no bar in doing so. In the instant case, the entire record including the comments of the Vigilance Commissioner were sent to the Union Public Service Commissioner. Accordingly, I hold, firstly, that the Disciplinary Authority has not relied on the Vigilance Commissioner''s report and, secondly, even if there be consideration of the comments of the Vigilance Commissioner by the Disciplinary Authority as an advice, it would be pattering with the language to say that it would make the second show-cause notice and/or the final order bad for the said reasons. We may remind ourselves that the Vigilance Commissioner was none other than Sri S.C. Lahiri, former Chief Justice of this Court, of course without wig and robes, but the personnel did not weigh with me in coming to the above findings.
161. The Supreme Court in its two decisions, viz.
162. Mr. Basak also referred to the following decisions: a Division Bench decision of this Court in the case of
163. Mr. Basak further submits that though there is no mention of the advice of the Vigilance Commissioner, but the statutory rules can be supplemented by the instructions provided of course they must not be inconsistent with the rules. On the said point he cited the Supreme Court decision in the case of
164. It is a long step in the argument of Mr. Chowdhury to say that the principle of natural justice is violated for not supplying the copies of the comments of the Vigilance Commissioner. In my opinion, it has also no basis and the same should be rejected. The Disciplinary Authority, in the instant case, has not accepted the comments of the Vigilance Commissioner which are at variance with the enquiry report to the prejudice of the delinquent officer and, accordingly, the argument that opportunity should have been given in the form of supplying him with copies no longer arises.
165. By the way, I may observe that some people are sceptical of the expression ''natural justice'' and compare it with a tame pack on which the cowboy here rides in all directions. Others cling to it as a last resort when more substantial arguments fail. Lord Justice Scrutton once described as ''as well meaning sloppiness of thought'' ''a sentimental rather than a rational approach to legal issue''. In the opinion of P.B. Mukharji J.
Natural justice is fast becoming the most unnatural and artificial justice... and that natural justice is on the misleading road of sentimental potentialities.
166. In my view, though on this point the judicial climate is thickly clouded, too much emphasis on natural justice should not be put in on this case. When a certain procedure has been laid down in a certain case and this is not followed, challenge it by all means on the ground of procedural ultra vires and give a blow by blow account but the application of the principle of natural justice in this context is unwarranted, though I make it clear that the fallen or vanishing glory of natural justice must be restored to its pedestal where circumstances in a particular case call for the same.
167. The next ground of attack of Mr. Chowdhury was that the framing of charges by the Enquiry Officer was bad. He elaborated his argument by saying that the Disciplinary Authority had no power to delegate its own powers to any other officer. He, further, submitted that the Enquiry Officer, by this action of his has combined in himself the role of prosecutor and judge. Accordingly, Sri Mukherjee, the Enquiry Officer should not have conducted the enquiry. In the affidavit-in-opposition it was stated that Sri Mukherjee merely framed the draft statement of imputations and draft memorandum on the basis of the papers and the Enquiry Officer never gave any opinion and did not combine in himself the role of a prosecutor and a judge.
168. Mr. Chowdhury at one time argued that the services of the Enquiry Officer should not have been extended after his due date of retirement for completing this enquiry. To this also there is an answer in the second affidavit which I accept. Sri Mukherjee was the Enquiry Officer in respect of several enquiries pending before him which were not completed. At the request of the Vigilance Commission his services were extended by the Government till December 31, 1970. This extension order was made on July 21, 1970. After this Sri Mukherjee was appointed the Enquiry Officer in the instant case on August 12, 1970. Therefore, it would not be correct to say that the extension order of Sri Mukherjee was made only for the purpose of this case.
169. The learned trial Judge after a long discussion and citation of many cases, inter alia, came to the finding to which I respectfully agree that there was nothing inherently contrary to justice in asking an officer of the Vigilance Commission to frame the charges and conduct the enquiry himself. The conduct of the proceedings by Sri Mukherjee was not violative of the principles of natural justice simply because he had framed the charges. It was further held which I also approve of with respect that Sri Mukherjee was not biased in any manner against the Appellant or that he had been influenced by any extraneous consideration in coming to his conclusion.
170. There is an additional ground. Rule 8(4) of the 1969 Rules provides that the Disciplinary Authority can itself draw the charges or causes the same to be drawn up. In the instant case, the draft charges prepared by Sri Mukherjee, it cannot be disputed, was done with consent or approval of the Disciplinary Authority. In that case the framing of the charge would really be an act of the Disciplinary Authority. The said principle is supported by two decisions of this Court in the case of
171. I am further of opinion and I am in agreement with the finding of the trial Court that the principle of a prosecutor and a judge being the same person is not applicable to the departmental proceeding. Learned trial Court has referred to the decision of this Court in the case of
172. The same principle being a person both a prosecutor and judge, in the disciplinary proceeding along with the question of bias was decided by the two Division Benches of the Madhya Pradesh High Court in the cases of
173. This contention was not, however, raised by Sri Banerjee at any stage before the application for writ was moved.
174. By the way, I may refer to an English decision in the case of University of Ceylon v. Fernando (1960) 1 All E.R. 631 observing that even if a Judge asks witness questions in the absence of the accused, there is no breach of natural justice.
175. The question as to whether the delegation to Sri Mukherjee by the Disciplinary Authority for making the enquiry was bad or not is not again purely a question of law but also dependent on facts. Sri Banerjee was not right in instructing his counsel to argue this for the first time in the appeal before us. The said objection does not appear in the writ petition and the argument of the Appellant in the trial Court was different. The Supreme Court did not permit such questions to be raised at the appellate stage in the case of
176. Two other short questions were raised at the time of argument, viz. (1) that one document should not contain all the charges. This argument is to be rejected straightway. There was no confusion in the mind of the Petitioner-appellant on the said ground. In my view, one document containing all the charges would be sufficient and the Rules do not direct otherwise. Mr. Basak is ready with decisions on each and every point and he cites a Single Bench decision on this point also in the case of Dalmer Singh v. State of Pepsu AIR 1955 Pepsu 97 (104).
177. The second point was that the Enquiry Officer should not have sent his report to the Vigilance Commission. The Enquiry Officer at the conclusion of his report stated as follows:
this report may now be placed before the Vigilance Commissioner along with oral and documentary evidence for early despatch to the appointing authority.
178. In my opinion, by doing this the Enquiry Officer has not violated any provision of the Rules. He sent the report to the Disciplinary Authority of course not directly but through the Vigilance Commissioner. There is no direction otherwise in the Rules. If any decision is required, Mr. Basak is at once ready and he supplies the same. The Madhya Pradesh High Court in the case of
179. It should also not be forgotten that Sri Banerjee was holding the officiating post of the Commissioner. His post was that of a substantive post of a Secretary. The consequence of the final order of the Disciplinary Authority is not really reduction in rank but a reduction of pay which he was drawing in his officiating post and, accordingly, it is not an order entailing penal consequence as to be equated with reduction in rank. The punishment is only in the lower scale of pay and actually under Rule 6(v) and not under Rule 6(vi).
180. That it is not a penal consequence is amply made clear in the case of
181. Mere deprivation of emoluments attached to an officiating post is not sufficient to attract the provisions of Article 311 of the Constitution: see
182. Mr. Chowdhury at the end in reply had to admit that even though Article 311 does not apply in the instant case as there is no reduction in rank, advances, passionate pleas, viz. that there is violation of the statutory rules, viz. 1969 Rules, which I have already discussed and held that there is no such violation.
183. I am not unmindful that there are several decisions of the Supreme Court after
184. It is true that the unfortunate unwary traveller, namely the lawyer, might lose his way in the labyrinth of all such decisions and in the ethics and the intentions of the law-givers, but I cannot disregard or depart from the clear observations in
185. Lastly, it must also not to be forgotten that the Appellant in order to get relief in an application under Article 226 of the Constitution must come with clean hands. The discretion under Article 226 of the Constitution should not be exercised by a Court in favour of an applicant whose hands are unclean. The Supreme Court did not grant relief to such a Petitioner under Article 32 of the Constitution in the case of
186. The conduct of Sri Banerjee in this case is such that the Court should not exercise discretion in his favour: See also another decision of the Supreme Court in the case of
187. I am bountifully necessitated to endorse the views of the trial Court that the conduct of the Appellant was not at all proper to have tape-recorded a private conversation on telephone between him and the Chief Secretary without letting the Chief Secretary know that it was being tape-recorded and was used in this enquiry for his own purpose. Sri Banerjee permitted himself in extravagance of asserting somewhat more categorically than the circumstances warranted and monotonously mounting in hoarse whispers, the same old half truths that should deceive none. To emphasise the limited validity of the understanding, Sri Banerjee has not cared to conceal his bitterness against the Enquiry Officer. He is not too well-mannered to tell us to our faces that he does not see anything wrong in the supply of bricks on credit when some other officers are having such supplies.
188. We saw at times the ivory tower mentality and rough edge of the tongue of Sri Banerjee in the record. He should have weighed life and experience on the balancing scale of fairness.
189. Although the questions had obviously been decided on the terms of law and facts taken separately and together, it is a matter of congratulation that in-the shadowy world of unlimited imaginative possibilities, the result arrived at seems not only to be consonant with common sense and justice but avoided confusion and inefficiency on the part of the Government, though it is required to perform hybrid functions and it is difficult for it to achieve perfectly the logical results in each case.
190. There is no presumption that the Constitution has castigated the State or the Administrative Authority as a tyrant. The Government, in my opinion, has shown extreme leniency in this case. A sense of injured dignity or vanity should not be allowed to run by accepting a clouded shred of reasonings of the Appellant. To hold that the order of the Disciplinary Authority is bad, appears to me to be ill-conceived logic.
191. The stigma on Sri Banerjee had, of course, unfortunately become like the red spot on the finger of lady Macbeth which in spite of attempt cannot be wiped out unless the judgment is set aside. It is not a case of discovering stigma by inference on research but by delving into secretariat files and other materials all on the record and reasons which are plenty in this case to justify our conclusion dismissing the appeal. I can well see that it is not bidding a fond farewell just on the retirement of Sri Banerjee.
192. To summarise--(a) Absolute integrity and devotion to duty must have to be interpreted in the way, namely, that a person with integrity is free from every biasing or corrupting influence or motive. He should be upright and trustworthy. The test of integrity becomes more rigorous when coupled with the expression ''absolute''.
(b) Duty is a graver term than mere obligation and responsibility. It is the correlative of right. It is a proper action which one''s position or status directly requires or binds him to do or refrains him from doing. He is bound to do things as trustee or as an executor. It applies to unimplied duty. There must be devotion to such duty. Devotion is a strong attachment, akin to religious devotion with complete detachment from bias and from showing favour and giving advantage to a particular person or persons.
(c) Civil Service is not an autonomous profession. It has its code of conduct and ethics, written and unwritten. The Secretaries are the most important pillars on which rest the control and administration of the State and power of discipline over its servants. They should not be allowed to commit any outrage on such a code. They should keep themselves within the bounds of administrative decency which goes by the name of civilized, decent and honest administration.
(d) Charges and statement of imputations must be read together. One should not be hypercritical in reading them. It is not that documents annexed to the charges should be given chargewise. It is not necessary that each and every item of evidence need be stated in the charge and imputation.
(e) If there is no confusion in the mind of the delinquent officer one document may contain all the charges and one consolidated list of documents in support of proof of the charges would not be bad or contrary to rules.
(f) There is no bar for the Disciplinary Authority to ask on officer of the Vigilance Commission to draft the charge with its consent and approval and to conduct the enquiry thereafter. Delegation is permissible where the essential functions were not entrusted such as passing the final order and where the Disciplinary Authority retained its general and full control. The principle that the Enquiry Officer is both the prosecutor and the judge is not applicable to disciplinary proceedings.
(g) Departmental enquiry is not a criminal proceeding and the analogy of Section 342, Code of Criminal Procedure, is not strictly applicable to such a proceeding. If the person knew well what were the circumstances against him to put questions to him again about his adverse circumstances, would be an empty formality. The question of actual prejudice is to be looked into in each case. The standard of proof in a disciplinary proceeding is not the same as that of a criminal proceeding.
(h) Enquiry report should not be looked at or judged from the view-point or standard of a judgment under the Code of Civil Procedure.
(i) The dispatch of his report by the Enquiry Officer, being a member of the Vigilance Commission, to the Disciplinary Authority through the Vigilance Commission would be in order.
(j) The order of punishment would still be good and not justiciable even if one of the charges is found proved and supported on reliable evidence, and if the punishment can be lawfully imposed on any findings as to substantial misdemeanour.
(k) The High Court in exercising its writ jurisdiction is not an appellate Court over the Tribunal of the Disciplinary Authority. It cannot re-appraise or weigh or re-examine the evidence and draw the inference and correct the errors unless they are apparent on the face of the record. Some legal evidence in support of the charge would be enough.
(l) Even if no cause was shown to the second show-cause notice there would be no bar in challenging either the finding of the Enquiry Officer or the order of punishment or the finding of guilt proposed to be given in the said notice but the quantum of punishment could not be challenged. The validity and the legality of the enquiry and the jurisdiction of the Enquiry Officer would, however, be liable to be challenged if there are valid grounds.
(m) Where the Respondent is not entitled to prefer an appeal, he can still support the order on other grounds not accepted by the trial Court on the principles analogous to the provisions of Order 41, Rule 22 of the Code of Civil Procedure.
(n) The Disciplinary Authority, without solely relying on the comments of the Vigilance Commissioner, might consider them and take them as advice only but it must apply its mind independently before passing the final order. Though the statutory rule is silent in this regard, it can be supplemented by instructions not inconsistent with the rule. The officer is not entitled to get a copy of the Vigilance Commissioner''s report as a rule.
(o) There is no violation of the principle of natural justice in the instant case. Though the judicial climate is thickly clouded, too much emphasis should not be put on it in each case when a certain procedure has been laid down by the statute. Where, however, circumstances in a particular case call for it, the fallen or vanishing glory of natural justice must be restored to its pedestal.
(p) There is enough evidence in support of proof of charge No. (i). It was not a technical irregularity. The same cannot be ignored. The presumption of the trial Court that the said irregularity is the basis of the imposition of the penalty does not follow from the materials on record.
(q) There is evidence in support of proof of charge No. (ii) in part, which charge was misunderstood by the trial Court. The charge sustained by the Disciplinary Authority is not at variance with the original charge.
(r) There are enough materials in support of proof of charge No. (iv) in part. There is no defect in framing of this charge. There is evidence in support of proof of charge No. (v).
(s) All India Services (Discipline & Appeal) Rules, 1969, including Rules 8(4), 8(5), 8(6), 8(12), 8(13), 8(17), 8(19), 8(20), 8(24) have been followed in the instant case and not the repealed Rules of 1955. The Enquiry Officer''s reference to 1955 Rules at 3 places was through inadvertences. It is a casual reference and does not go to the root. Even wrong reference to the Rule would not make the report or order bad when the right procedure have been followed. No prejudice was caused to the Appellant by the procedure followed even if all the 1969 Rules have not been strictly complied with. Again mere non-compliance of the Rules would not be enough to get relief in a writ application.
(t) The final order being only reduction in pay from an officiating post to the pay of the substantive post is not reduction in rank. Deprivation of emoluments attached to an officiating post does not attract Article 311 of the Constitution.
(u) In spite of latest Supreme Court decisions after Dingra''s case Supra, the clear observations made therein having become almost a formula and oft-quoted affair cannot be departed from and the Court would be slow and cautious to observe that Dingra''s decision requires reconsideration by the Supreme Court.
(v) Where the hands of the applicant are unclean and his conduct improper, the Court should not exercise its discretion in his favour under Article 266 of the Constitution.
193. In the end if I give myself this extra-ordinary permission I should tell Sri Banerjee in a tone of stunning clarity that an officer in his rank and position should shine like a beacon amid the encircling gloom and he should not have made a fine hash of the job entrusted to him.
194. I must express my thanks both to Mr. Chowdhury and to Mr. Basak at they did not walk away from the problems.
195. As his Lordship Sabvasachi Mukharji in the Court below whose opinion I hold in respect and with whose conclusion I have already agreed in dismissing the writ application, I confess I have trespassed by not accepting some of his reasonings and by supplying a few additional reasons in support of the conclusion of the dismissal of the appeal. I am squeezed to arrive at this unhappy conclusion as the events conspired. The Appellant has conceded no part. I should vary the declaration of the Court below on the subject of costs. The Appellant sought for the Writ with costs and he should obtain the same equity in this appeal.
R. Bhattacharya J.: This appeal has been directed against the judgment and order dated September 22, 1972, passed by one of our learned brothers of this Court in the writ jurisdiction of the Original Side upon an application under Article 226 of the Constitution of India filed by Sunil Kumar Banerji now the Appellant before us, challenging the propriety and the validity of a penal order dated April 21, 1972, passed by the Chief Secretary to the Government of West Bengal by the order of the Governor on the basis of charges that were formulated against the Petitioner-appellant who was then the Commissioner for Agriculture and Community Development and Ex-Officio Secretary, Agriculture and Community Development of the State Government.
197. I am in agreement with my Lord Laik J. that the appeal must be dismissed and I set down below my grounds, in short, embodied in the judgment. My Lord has already narrated the facts of the case and, without repeating the same at great length, I recount the gist thereof. The Petitioner-appellant Sunil Kumar Banerji, hereinafter referred to as Banerji for the sake of convenience, was a member of the Indian Administrative Service. For a number of years he had been employed by the State of West Bengal in different offices. For a period he was also the Development Commissioner in the State Government. An enquiry was started against Banerji on some allegations by the Vigilance Commission as far back as in 1966 or thereabout. A memorandum dated April 25, 1970, containing five charges was served on Banerji. He was asked to submit a written statement of defence. He filed a written statement. Subsequently, an enquiry was started. The witnesses against Banerji were examined. Banerji, also, examined some witnesses on his behalf. Arguments of both sides were considered and the Enquiry Officer A.N. Mukherji, a retired District and Sessions Judge, submitted his report. By a memorandum dated April 1, 1971, the Chief Secretary informed Banerji that the State Government came to the conclusion that charges Nos. 1, 2, 3 and 5 had been fully proved against him and that the charge No. 4 had been partly proved. It was provisionally decided that Banerji should be reduced from his officiating rank of Commissioner to the post of a Secretary. Banerji was asked to show cause in this respect. Banerji came to learn in the meantime that the Vigilance Commission made some report on Banerji''s enquiry which was adverse to his case. He, therefore, wanted a copy of the said report, but, as he got no copy of the said report, he thought it useless to show any cause against the proposed action against him. Lastly, Banerji was informed by a memorandum dated April 21, 1972, that considering all materials including the advice of the Union Public Service Commission, the Governor was pleased to find that the first charge though proved was a technical irregularity, that the second charge had been partially proved, that the third charge had not been proved, that the fourth charge had been partially proved and that the fifth and last charge had been proved in respect of some delayed payment for two purchases of bricks. Banerji was further informed by the same memorandum that the Governor had decided to reduce Banerji''s salary from the stage of Rs. 2,750 per month to the stage of Rs. 2,500 per month with effect from the date of the issue of the order and it was further decided that Banerji should start earning increments from the stage of Rs. 2,500/125/2--2,550 from the date of the reduction to the lower stage.
198. In the petition under Article 226 of the Constitution Banerji sought to get the said order dated April 21, 1972, declared void and illegal. The learned Judge while dealing with the application held that except the charge No. 4 relating to the allegation of allotment of land by Banerji to his brother in Regent Park, no other charge had been proved which could be the basis of punishment. It was found that the punishment inflicted was permissible under the rules for the offence proved. Against the order of dismissal of the application under Article 226 of the Constitution, the present appeal has been preferred.
199. Mr. D.P. Chowdhuri arguing on behalf of the Appellant has submitted the following grounds challenging the validity of the order dated April 21, 1972, meted out as punishment against the Appellant and the order of dismissal passed by the original Court as also the findings in respect of charge No. 4 and the connected matters upholding the order of punishment passed by the Government.
(1) The enquiry conducted against the Appellant was not under the All India Services (Discipline and Appeal) Rules, 1969, then in force but under the previous Rules of 1955 which were already repealed and, therefore, the entire enquiry was illegal and void.
(2) Even if it is assumed that the Enquiry Officer had in his mind that he was following the Rules of 1969, the enquiry is still bad as some vital and essential provisions of the All India Services (Discipline and Appeal) Rules, 1969, were not complied with causing serious prejudice to the defence of Banerji and resulting in gross injustice.
(3) The Court in the original writ jurisdiction was wrong in holding that the charge No. 4 had been proved as it misread the charge and came to a finding different from that of the Disciplinary Authority.
(4) The finding of the Disciplinary Authority is foreign to and unconnected with the charge No. 4.
(4)(a) The findings of the Disciplinary Authority and the Enquiry Officer in respect of charge No. 4 are based on no evidence.
(5) The Appellant was not given sufficient opportunity to make representation against the second show-cause notice dated April 1, 1971.
(6) The Disciplinary Authority had no jurisdiction to delegate power and authority to A.N. Mukherji, a retired District and Sessions Judge, attached to the Vigilance Commission, to frame charges against Banerji.
(7) The enquiry by A.N. Mukherji was bad, as he had framed the charges on the basis of the materials collected during a previous confidential enquiry.
200. Mr. Basak, appearing on behalf of the Respondents, has not only opposed the grounds of attack as indicated above but also submitted relying on the provision of Order XLI, Rule 22 of the CPC that the learned Judge below acted illegally and without jurisdiction in finding that all the charges except the charge No. 4 were not proved. Mr. Basak''s grievance is that there was no reason for the learned Judge to interfere with the findings of facts arrived at by the Enquiry Officer, the Union Public Service Commission and the Disciplinary Authority. In short, the case of the Respondents is that Banerji should be found guilty on all the charges and that the penalty imposed is quite legal and adequate. Against the submission of Mr. Basak, it has been contended by Mr. Chowdhuri that the findings of the Enquiry Officer, Union Public Service Commission and the Disciplinary Authority are all perverse and without evidence.
201. I shall first take up the fifth ground urged by Mr. Chowdhuri. Mr. Chowdhuri''s contention is that, in the present case, the Vigilance Commissioner had no part to play and to make any comment on the report of the Enquiry Officer to the prejudice of the charge-sheeted person. Again, when there was a report of the then Vigilance Commissioner against Banerji, the latter ought to have been given an opportunity to place his case before the former and a copy of the Vigilance Commissioner''s report should have been given to Banerji so that he could make proper representation against the second show-cause notice. Mr. Chowdhuri has submitted that these comments have caused prejudice to Banerji. It has been argued that, as no copy of the Vigilance Commissioner''s report was supplied, Banerji did not show cause on receipt of the second show- cause notice. In this connexion, my attention has been drawn to para. 13 of Banerji''s writ petition wherein it has been stated:
As your Petitioner was not supplied with the findings of the Vigilance Commissioner, your Petitioner thought that it would be useless to make any representation and refrained from doing so.
202. There is no dispute between the parties that the All India Services (Discipline and Appeal) Rules, 1969, were in force at the time of enquiry in the present case superseding the Rules of 1955. In the Rules there is no provision that the Vigilance Commissioner should have any part to play in connexion with the enquiry mentioned therein, not to speak of any comment by him on the report of the Enquiry Officer. Admittedly, the Vigilance Commissioner made an adverse comment against Banerji on the report of the Enquiry Officer. It will appear from the last paragraph of the enquiry report that the Enquiry Officer directed the report to be placed before the Vigilance Commissioner along with oral and documentary evidence for early despatch of the same to the proper authority. This direction was natural as the Enquiry Officer being attached to Vigilance Commission as Commissioner for departmental enquiries had to send back the records through the Vigilance Commissioner who was at the head of the Vigilance Commission. It may also be that the Vigilance Commissioner while forwarding the report to the Disciplinary Authority thought it fit to make his comment on the report of the Enquiry Officer.
203. Now, the memorandum dated April 1, 1971, appearing in annex. E(i) to the petition under Article 226 of the Constitution, shows that the Government considered only the report and the connected papers and the Government agreed with the Enquiry Officer that the charges Nos. 1, 2, 3 and 5 had been fully proved against Banerji and the charge No. 4 had been partly proved. There is no indication that the Government took any notice of or considered the comment of the Vigilance Commissioner. There again in the order dated April 21, 1972, copy whereof has been made in annex. F 40 the petition of Banerji, it has been clearly stated that, taking into account all connected materials and facts relevant to the case and in consultation with the Union Public Service Commission, the Governor has come to the conclusion that charge No. 1 has been proved against Banerji, but it was a technical irregularity; that charge No. 2 has been partially proved; that charge No. 3 has not been proved; that charge No. 4 has been partially proved and that charge No. 5 has been proved in respect of delayed payment for two purchases. Neither in the memorandum dated April 1, 1971, nor in the order dated April 21, 1972, has there been any indication or mention that the Government or the Governor did at any point of time take into consideration the comment of the Vigilance Commissioner as basis or otherwise to come to the finding of Banerji''s guilt to the charges. Clearly, therefore, the comment of the Vigilance Commissioner on the report of the Enquiry Officer had no importance and it did not in any way influence the mind or affect the decision of the Disciplinary Authority.
204. It has been argued from the side of the Appellant that the Union Public Service Commission considered the Vigilance Commissioner''s comment and was influenced to come to a finding against Banerji. The report or the recommendation of the Public Service Commission does not say that the Vigilance Commissioner''s report was relied upon or considered. Even if it is assumed that the Union Public Service Commission took notice of the Vigilance Commissioner''s comment, it is evident that they did not rely on the same. Paragraph 3 of the letter of the Secretary, Union Public Service Commission, dated March 30, 1972, (vide annex. G to the petition) says,
The Commission have examined the case carefully. Their findings in respect of each charge, in the light of the defence put forward by Sri Banerji at various stages, and the findings of the Enquiry Officer are given....
Moreover, there is no harm or illegality if either the Commission or the Disciplinary Authority takes the assistance of any legal opinion of any lawyer appointed by the Government or any person like the Vigilance Commissioner before coming to a final decision of their own and the delinquent cannot as a matter of right, claim to know what legal advice or information was obtained. He cannot also claim to be heard by the legal adviser of the Government. I have no doubt to hold the Union Public Service Commission made their report or recommendation on the basis of the materials collected at the enquiry using their own discretion and not depending on the report of the Enquiry Officer and the Vigilance Commissioner. Similarly, the Disciplinary Authority did not depend on the Vigilance Commissioner''s report but on the materials of enquiry when issuing the memorandum dated April 1, 1971, and using proper judicial and independent discretion passed the order dated April 21, 1972, on the basis of the evidence collected at the enquiry and the facts and circumstances of the case after considering the recommendation of the Union Public Service Commission as required under the Service Rules of 1969. There can even be no question of prejudice against Banerji for not supplying any copy of the Vigilance Commissioner''s report to him as asked for. Banerji could not claim the copy. It was rightly refused. Banerji could have easily made effective representation against the second show-cause notice challenging the findings of the Enquiry Officer. Non-supply of the copy of the Vigilance Commissioner''s comment is a flimsy ground for not making representation against the show-cause notice dated April 1, 1971. He had sufficient and proper opportunity to submit representation relating to the said notice. I find no substance in the contention raised by the Appellant.
205. The sixth ground taken by the Appellant before us is that the Enquiry Officer was illegally invested with delegated powers to frame charges against Banerji and the seventh point of attack is that A.N. Mukherji having framed the charges against Banerji acted illegally in conducting the enquiry causing prejudice to the latter. Those two points being connected, I take them up jointly for consideration.
206. There is no denying the fact that at the instance of the Vigilance Commissioner A.N. Mukherji, the Commissioner of the departmental enquiry, prepared the draft charges against Banerji on the materials found in the file of papers obtained during a confidential enquiry and the said draft charges and other papers were placed before the Vigilance Commissioner for consideration prior to their despatch to the Chief Secretary. It will appear from the memo No. 144-G.A.C. (Vig) and order No. 143 G.A.C. (Vig) both dated April 25, 1970, that the draft charges and imputation prepared by A.N. Mukherji reached the Chief Secretary to the Government of West Bengal and the Governor ultimately approved of the same and decided to hold departmental enquiry against Banerji upon the charges and imputations served upon the latter. It is quite evident that A.N. Mukherji did not frame the charges as alleged but simply prepared a draft for consideration of the Disciplinary Authority and that the Disciplinary Authority approved of the same implying due application of mind and discretion of the Disciplinary Authority. If it is assumed that A.N. Mukherji framed the charge, it is a case of ratification or acceptance of the framing of charges. Mr. Chowdhuri has argued that A.N. Mukherji framed the charges by virtue of delegation of powers by the Disciplinary Authority and that, as according to the Services (Discipline and Appeal) Rules, 1969, such power to frame charges cannot be delegated, the entire enquiry proceedings were without jurisdiction and void.
207. In Rule 8(4) of the All India Services (Discipline and Appeal) Rules, 1969, hereinafter referred to as Service Rules, 1969, it has been provided that for an enquiry against a member of the Service the Disciplinary Authority shall draw up or cause to be drawn up the charges and the statement of imputation of misconduct in support of each charge. It is clear, therefore, that the charges may be drawn up by the Disciplinary Authority or such authority may delegate the power of framing the charges and statement of imputation or, in other words, the said authority may ask some others to draw up the charges and the statement of imputation. Even in the absence of the power of delegation in respect of the authority to frame charges, the Disciplinary Authority can ask some other person to draw up charges against the delinquent if there is no statutory restriction to such power of delegation and unless such person authorised to frame charges has any interest adverse to the delinquent. In domestic enquiry entrustment of drawing up of charges by the Disciplinary Authority to any other authority is valid when there is no legal bar or reason for causing injustice to the delinquent. Whether there is scope for miscarriage of justice or offending the principles of natural justice depends upon the facts and circumstances of a particular case. In the present case, it cannot be held that the drafting of the charges and the statement of imputation by the Commissioner of the departmental enquiry was either illegal or without jurisdiction. In this connexion, I may quote below a sentence from the decision of the Supreme Court in the case of Union of India v. P.K. Roy Supra:
If, however, the administrative authority named in the Statute has and retain in its hands general control over the activities of the person to whom it has entrusted in part the exercise of its statutory power and the control exercised by the administrative authority is of a substantive degree, there is in the eye of law no ''delegation at all and the maxim ''delegates non potest delegara'' does not apply. See Fowler (John) and Co. (Leeds) v. Duncan, (1941) Chapter 450.
208. The next question arises if the holding of enquiry against Banerji by A.N. Mukherji, who drafted the charges, was illegal or prejudicial to the case of the Defendant. Mr. Chowdhuri has argued that A.N. Mukherji acted as both a prosecutor as he drafted the charges and a judge while he conducted the enquiry. It has been submitted that this action of A.N. Mukherji was against the principles of natural justice. There is no suggestion from the side of the Appellant nor is there any material to indicate that A.N. Mukherji had any personal interest in this case or any ill-will or malice against Banerji. The record shows that he simply drafted the charges and the statement of imputation connected therewith at the request of the Vigilance Commissioner on perusal of the file of papers sent to him and that the draft charges were sent to the Chief Secretary for consideration of the Disciplinary Authority and the Disciplinary Authority issued the charge-sheet. A.N. Moocher did not take any initiative in the matter of drafting the charges.
His drafting was not the final say in the matter. In fact, he was not the prosecutor. Again, he cannot be the judge in the proper sense. He was entrusted with the duty to hold the enquiry against Banner by the Disciplinary Authority as provided by the Service Rules, 1969, and to submit his report for final consideration and decision by the Disciplinary Authority upon merits of the case. Practically speaking, the Disciplinary Authority was the judge to decide if the delinquent was in fault and the said Authority had every right to reject the report of the Enquiry Officer if found unreasonable or unacceptable. Besides, in the instant case, A.N. Mukherji drafted the charge at request on materials collected during a confidential enquiry and later he conducted the departmental enquiry and on the materials placed at such enquiry he submitted his report. There was, therefore, no scope or question of his having any bias against Banerji. In view of the facts and circumstances of this case, the principle that a prosecutor should not be the judge is not applicable. The holding of enquiry by A.N. Mukherji, therefore, did not cause any prejudice to the defence of Banerji. There was no occasion for miscarriage of justice. The two connected points urged by Mr. Chowdhuri also fail.
209. Let me now consider the points Nos. 1 to 4(a) submitted by Mr. Chowdhuri as already mentioned. The first submission is that the Enquiry Officer conducted the enquiry against Banerji according to the Service Rules, 1955, which have been substituted by the Service Rules, 1969. It has been contended that the Service Rules, 1969, contain some provisions which are helpful, to the delinquent and, as these important Rules introduced in 1969 were not followed, the entire enquiry was void. In this connexion, the important provisions of Service Rules, 1969, referred to by Mr. Chowdhury as not being followed are particularly Rules 8(4), 8(19) and 8(24) the non-compliance of which caused prejudice to Banerji''s defence.
210. It will appear from the report of the Enquiry Officer, marked annex. D to the petition, that A.N. Mukherji stated in the very first line of his report that he was not appointed an Enquiry Officer under Rule 8 of the Service Rules of 1969, but in the matter of enquiry conducted he applied his mind to the Service Rules, 1955. At p. 72 of the Paper Book it appears that he says,
All India Services (Discipline and Appeal) Rules, 1955, which govern the present case, lay down the procedure for holding an enquiry against a member of the All India Service. It has been laid down in Rules 4 and 5 of the said Rules how a proceeding should be carried.
Rules 4 and 5 referred to by the Enquiry Officer, no doubt are of the Service Rules of 1955. After a few lines, A.N. Mukherji goes on to say,
So, under All India Services (Discipline and Appeal) Rules, 1955, it is mandatory on the part of the Government to frame definite charge or charges and to supply a statement of allegations on which each charge is based.
He has also mentioned Rule 5(2) of the Service Rules, 1955, regarding the taking of action. This Rule 5(2) does not mean Rule 5(2) of Service Rules, 1969, which speaks of a different matter. Again at p. 73 of the Paper Book the Enquiry Officer clearly mentions the Service Rules of 1955.
211. In addition to the admission of A.N. Mukherji, there are other indications which show that he followed Service Rules of 1955. Admittedly, in the Service Rules, 1969, we get that the provision incorporated in Rule 8(19) says that the Enquiry Authority shall, if the delinquent has not examined himself, generally question him on the circumstances appearing against him in evidence for the purpose of enabling the latter to explain any circumstance appearing against him. In the present case, Banerji did not examine himself at the enquiry, but the Enquiry Officer did not question him on any of the circumstances appearing against him in the enquiry. Although in the affidavit the Chief Secretary stated that A.N. Mukherji followed the Service Rules, 1969, in conducting the enquiry, no affidavit sworn by A.N. Mukherji himself has been filed to declare that, in fact, he followed the Service Rules, 1969, and not those of 1955. It may be that the Enquiry Officer thought that, as the matters of enquiry related to a period prior to 1969, he had to be guided by the Service Rules, 1955; but that ground, in my opinion, cannot be accepted as valid. It is not a case of accidental mistake of reference or inadvertence as suggested by Mr. Basak.
212. Now, the question arises, if the entire enquiry against Banerji would be void and illegal so as to render the penal order passed against him ineffective. Though it was necessary to follow the Service Rules, 1969, in conducting the enquiry in this case, yet mere non compliance of those Service Rules will not, I think, render the finding of the Disciplinary Authority, based on the materials collected at such enquiry, illegal specially when no such objection was taken at the enquiry unless it is shown that such non compliance with the Service Rules in force caused prejudice to the case of the delinquent and resulted in miscarriage of justice.
213. The main grievance of Mr. Chowdhuri is that due to the charyaj. non-compliance with Rules 8(4), 8(19) and the proviso to the explanation in Rule 8(24)(1) of the Service Rules, 1969, by the Enquiry Officer, serious prejudice was caused to Banerji and, in consequence, Banerji did not get proper opportunity to defend himself. Mr. Chowdhuri, further, pointed out that Banerji should have been allowed to be defended by a legal practitioner at the enquiry. This last point has no importance. Banerji was a member of the Indian Administrative Service. He was quite efficient to defend himself at the enquiry. It appears that he, without the assistance of any lawyer, argued his case when his petition under Article 226 of the Constitution was heard. Moreover, his written argument at the enquiry shows that he was quite competent to conduct his own case before the Enquiry Officer. However, there was no complicated question of law at the enquiry which called for any assistance of a lawyer.
214. I, now, propose to consider the Rules referred to above to see if Banerji''s case was prejudiced for non-compliance with the same. Rule 8(4) runs as follows:
(4) Where it is proposed to hold an enquiry against a member of the Service under this Rule and/or Rule 10, the Disciplinary Authority shall draw up or cause to be drawn up (i) the substance of the imputations of misconduct or misbehavior into definite and distinct articles of charge;
(ii) a statement of the imputations of misconduct or misbehavior in support of each article or charge, which shall contain
(a) a statement of all relevant facts including any admission or confession made by the member of the Service;
(b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained.
The grievance of Mr. Chowdhuri is that in his client''s case the statements of imputations of misconduct for which he was found guilty relating to charges Nos. 4 and 5 were not drawn up. The statement of imputations regarding the 4th charge is at p. 18 of the Paper Book. The imputations relate to three transactions. One of them is in respect of plot No. 40 of Regent Scheme and the charge has been found partially proved for the allotment of plot No. 40. The relevant portion is quoted below:
Plot No. 40 of Regent Scheme belongs to Sm. Sailabala Banerji, mother of Shri S.K. Banerji. This plot measuring about 3 kattahs 14 Chapter and 14 sq.ft. was allotted to Shri Mridul Kumar Banerji, brother of Shri Sunil Kumar Banerji, which was subsequently transferred to their mother Sm. Sailabala Banerji. The plots of Regent Park, particularly plot No. 40, was intended for persons belonging to Higher Income Group. There is nothing to show that Sm. Sailabala Banerji belonged to that group and there was no declaration of Sm. Banerji to that effect.
The relevant portion of the imputations on which the charge No. 5 is based, relates to the question of Banerji''s taking supplies of bricks manufactured by the Brick and Tile Board, Government of West Bengal, on credit, though such supply on credit was not permissible. It has been alleged that the Development Commissioner Banerji exercised his influence in getting the bricks on credit.
215. Regarding the 4th charge, the Enquiry Officer found Banerji guilty only in respect of the plot No. 40 of the Regent Park Scheme holding amongst other things that Banerji in obtaining the approval of the Chief Minister for granting the plot to Mridul Banerji concealed the fact that Mridul was his brother. This suppression of the fact was apparently due to the fact that in his note Banerji did not mention that Mridul, the applicant, was his brother and the Enquiry Officer found fault with Banerji as he omitted to say if there was any other waiting candidate for the plot in question. The finding of the Enquiry Officer relating to charge No. 5 is that Banerji lowered his position by asking a subordinate officer to supply bricks on credit and "thereby failing to abide by the high standard of duty which a member of the Indian Administrative Service is expected to follow." The Union Public Service Commission also made recommendation on similar consideration and the Disciplinary Authority accepted the findings of the Enquiry Officer and the recommendation of the Union Public Service Commission. It is quite evident that the findings of all which concurred about the guilt of Banerji on charge No. 4, were based on the allegations that he had concealed in his note to the Chief Minister about his Kumar relationship with Mridul and the non-disclosure if any other application had been pending for plot No. 40. These two allegations are, therefore, particulars of misconduct of Banerji on which the charge relating to plot No. 40 of the Regent Park Scheme rested. These were clearly the essential imputations concerning the charge No. 4 on which Banerji was found guilty. Before he could be found guilty on these grounds they ought to have intimated to Banerji so that he could show cause against them and for that purpose it was mandatory on the part of the Disciplinary Authority to include the allegations about the concealment by Banerji of his relationship with Mridul and the waiting applicants, if any, for plot No. 40. Though there is allegation about pending applications for the plot in Patipukur Scheme, yet there is no such imputation relating to plot No. 40 of the Regent Park Scheme. In the absence of allegations about the suppression of relationship with Mridul and the non-disclosure of pending applications regarding plot No. 40 in the statement of imputations on which charge No. 4 was based, Banerji did not know that he was to meet these allegations and his case was seriously prejudiced. These allegations cannot be stated to be pieces of evidence. Evidence is the material or the matter which proves the allegations of misconduct made against the person charged. The charge No. 4 regarding plot No. 4 was not legally framed against the delinquent and Rule 8(4) of the Service Rules of 1969 has been violated. There has been no proper imputation in relation to the findings of guilt relating to charge No. 4.
216. Regarding charge No. 5, Mr. Chowdhuri wanted to say that the Disciplinary Authority found Banerji guilty on ground of delayed payments in respect of two purchases whereas the allegation in the charge was that Banerji purchased bricks on credit though no credit purchase was permissible. In my view, there is no substantial difference between the charge and the findings. On evidence, the proper authority was satisfied that there was no credit system prevalent in the purchase of bricks from the Brick and Tile Board, Government of West Bengal, and that in two cases there was undue delay in payment. There is no doubt that delayed payment does not mean immediate payment and they imply credit transaction. In this case, there is evidence that Banerji was guilty of making payment after a long and unreasonable delay after two purchases which have been held to be on credit and this was done by his exercising undue influence as alleged. The statement of imputations is quite in order have also considered other charges and the statement of imputations concerned therewith, but I find no illegality.
217. Rule 8(19) of the Service Rules, 1969, says,
The Enquiry Authority may after the member of the Service closes his case and shall, if the member of the Service has not examined himself, generally questions him on the circumstances appearing against him in the evidence for the purpose of enabling the member of the Service to explain any circumstances appearing in the evidence against him.
218. There is no dispute that Banerji did not examine himself at the enquiry. There is no denying the fact that the Enquiry Officer did not examine Banerji or put any question to him after the defence case had been closed. The contention of Mr. Chowdhuri is that non-examination of Banerji by the Enquiry Officer under the above Rule has vitiated the entire enquiry proceedings.
219. It appears that Rule 8(19) has been introduced in the Service Rules, 1969, after the pattern of Section 342 of the Code of Criminal Procedure. Mr. Basak has tried to impress upon the Court that as in some cases non-compliance with Section 342 of the Code of Criminal Procedure does not vitiate trial, so also in the present case non- examination of Banerji by A.N. Mukherji did not matter and that there is no question of prejudice against him.
220. The crucial point for consideration is whether the effect of non-examination of Banerji by the Enquiry Officer is fatal. In the case of Ajmere Singh v. State of Punjab Supra it has been held by Mahajan J. on the object of Section 342, Code of Criminal Procedure, towards the end of the judgment;
The accused must be questioned separately about each material circumstance which is intended to be used against him. It was pointed out by this Court in Tara Singh v. The State that the whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the question must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand.
Further, in the concluding paragraph of the judgment it has been made clear by saying,
It is well-settled that every error or omission not in compliance with the provisions of Section 342 does not necessarily vitiate a trial. Errors of this type fall within the category of curable irregularities, and, as held in Tara Singh''s case, the question whether the trial is vitiated, in each case depends upon the degree of the error and upon whether prejudice has been or is likely to have been caused to the accused.
In
It is important therefore that an accused should be properly examined u/s 342 and, as their Lordships of the Privy Council indicated in Dwarkanath v. Emperor, if a point in the evidence is considered important against the accused and the conviction is intended to be based upon it, then it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it if he so desires. This is an important and salutary provision and I cannot permit it to be slurred over.
The same proposition of law has been reiterated by the Supreme Court in
The lacuna, however, is that there has been no questioning u/s 342 of the Code of Criminal Procedure of the two Appellants, Kedarnath Bajoria and Vaid on this part of the case, as regards any of these adverse circumstances which form the basis of the conclusion of the Courts below on this claim. There is a complete lack of any reference to these matters in the questions put to either of the Appellants u/s 342 Code of Criminal Procedure. This undoubtedly is a serious irregularity and cannot be lightly ignored.
If prejudice was thereby caused, such an irregularity would entail retrial in the circumstances of a case like this. But before a retrial can be ordered the Court must be clearly satisfied about prejudice having been caused.
221. However, the law, as it stands, is that in an enquiry under the Service Rules 1969 the Enquiry Officer''s duty is to bring to the notice of the delinquent under Rule 8(19), the adverse circumstances appearing against the latter before he finds the subject guilty relying on such adverse circumstance. If, in any case, such adverse circumstance is not brought to the notice of the delinquent giving him an opportunity to explain it away, then the question arises if in the absence of such questioning any prejudice has been caused to the defence of such delinquent.
222. I shall now proceed to consider the submission of Mr. Chowdhuri. His grievance is that in respect of charge No. 4 although there was no mention of the alleged misconduct of the nondisclosure of his relation with his brother Mridul to the Chief Minister before allotment of the Regent Park plot to his brother and the alleged non-disclosure of any pending application and although he was found guilty on such charge by the Governor on consideration of the report of the Enquiry Officer and the recommendation of the Union Public Service Commission, the Enquiry Officer acted illegally by not putting any questions regarding the alleged non-disclosure of Banerji''s relation with Mridul and of any pending application which could have given opportunity to Banerji for explaining the said allegations. In this case, there were no allegations in the written imputation supporting the 4th charge that Banerji did not disclose his relation with Mridul to the Chief Minister before the allotment of plot No. 40 in Regent Park and that he did not mention if any other application was pending for the plot in question. For the absence of these allegations of misconduct, Banerji did not get any fair or reasonable opportunity to meet the case against him as alleged to have been proved at the enquiry and as found by the Enquiry Officer. In the absence of such allegation especially, Banerji could not know that he was to meet such a case at the enquiry. In the present case, Banerji did not himself give evidence in defence. Besides, when the Enquiry Officer found Banerji guilty of charge No. 4 on the findings that Banerji did not mention that Mridul was his brother and that he was silent about other applicants for the plot ^ No. 40 of the Regent Park Scheme, it was his bounden duty to put question to Banerji on these two circumstances appearing against the latter so that he could know what the delinquent had to say about them. Non-examination of Banerji by the Enquiry Officer, in the facts and circumstances of the case, has caused serious prejudice to the case of Banerji and ultimately there has not been proper justice in my view. I have no doubt that Rule 8(19) has been violated and this breach of the bye-law is incurable in respect of charge No. 4. As regards other charges, I do not find any material to hold that the non-examination of Banerji has caused any prejudice to his case in view of the charges framed, imputation stated and evidence clearly laid and understood by him. The question of fresh enquiry relating to charge No. 4 does not arise as the material allegations of misconduct were not included in the statement of imputations.
223. As regards the allegation of non-compliance with the proviso to the explanation in Rule 8(24) of the Service Rules, 1969, it has been submitted by Mr. Chowdhuri that the Enquiry Officer found Banerji guilty of charges and imputations different from those served. Charges Nos. 4 and 5 have been specially referred to. I have already discussed those two charges in detail. I find that as regards charge No. 4 the Enquiry Officer held Banerji in fault on the allegations which, in my view, were different from the written imputations connected with that charge without affording any opportunity to the delinquent to defend himself and, therefore, such finding of guilt is quite illegal and without jurisdiction.
224. The findings relating to the 5th charge are not defective. They are reasonable and in order on the basis of the charge and the supporting imputations. It cannot be said, in my opinion, that there has been any non-compliance with Rule 8(24) in respect of other charges.
225. With regard to the point No. 3 urged by Mr. Chowdhuri, I think that the Court below misread the charge. In my view, the learned Judge ought to have held that the charge, as I have already held earlier, was not properly and legally proved as the findings were not based on the written imputations which are the basis of the charge, but from the reading of the judgment I do not think that he came to a finding different from that of the Disciplinary Authority. The learned Judge has accepted the finding of the Disciplinary Authority, the recommendations of the Union Public Service Commission in support of the finding of guilt of Banerji by the Enquiry Officer.
226. For the correct reading and proper appreciation of the charge to be proved against the delinquent, the formal charge and the imputations supporting the said charge should be considered together. In this case, I have already held that the findings of the Enquiry Officer, the Union Public Service Commission and the Disciplinary Authority are not connected with the imputations relating to charge No. 4 and, therefore, it cannot be said that charge No. 4, as directed against Banerji, has been proved. In this view of the matter, the fourth ground raised by Mr. Chowdhuri has succeeded and in the circumstances I think that the point No. 4(a) as to the question of the absence of evidence does not arise for decision.
227. Let me now consider the submissions of Mr. Basak on behalf of the contesting Respondents. He wants to support the order of the original Court maintaining the penalty imposed upon the applicant by the Disciplinary Authority by relying on the other grounds rejected by the Court below by virtue of the provisions of Order XLI, Rule 22 of the Code of Civil Procedure. Rule 22(1) of Order XLI provides that any Respondent without preferring an appeal may support the decree on any of the grounds decided against him in the Court below. Mr. Chowdhuri has referred to the decision of Brojendra Chandra Sharma v. Prasanna Kumar Dhar Supra to argue that Order XLI, Rule 22 does not apply in this case as this appeal does not arise out of any decree of the original Court but it is an appeal against a decision, under Article 226 of the Constitution, of a Court having writ jurisdiction. As against this decision of the said Division Bench decision of this Court, Mr. Basak relied on the decision of the Privy Council in the case of Sabitri Thakurain v. State Supra.
228. Suit has not been defined by the Code of Civil Procedure. Any civil dispute in a Court of law having a substantial question to be decided regarding a substantive right of a party may fall into the category of a suit and the final decision of the said dispute may be called a decree. It, however, depends upon the nature of dispute and the decision. Leaving aside the notion of the decree, the point before us may be considered if Order XLI, Rule 22 of the CPC is applicable in the present case.
229. Order XLIII, Rule 2 of the CPC says that Order XLI shall apply, so far as may be, to appeals from orders. There is no dispute that the present appeal is maintainable and arises out of an order passed under Article 226 of the Constitution by the Bench acting in the extraordinary original civil writ jurisdiction of this High Court. The appeal arising out of an application under Article 226 of the Constitution comes under the purview of Section 104 of the Code of Civil Procedure, being an appeal under the law for the time being in force. Order XLIX indicates that Order XLI is applicable except its Rule 35 in the matter of writ petitions in the High Court. In this connexion, our attention has been drawn to the Division Bench decision of this Court in the case of
230. The contention of Mr. Basak is that the learned Judge of the Court below acted illegally and without jurisdiction while considering an application under Article 226 of the Constitution in interfering with the findings of facts arrived at by the Disciplinary Authority, the Union Public Service Commission and the Enquiry Officer in respect of charges Nos. 2, 4 and 5 on which the Appellant was found guilty. Charge No. 2 has been partially proved to the extent that Banerji exercised influence as Development Commissioner in obtaining loan of Rs. 25,000 for his wife from the State Government, and regarding the 5th charge it was found that he made delayed payments for two purchases of 40,000 bricks. In this connexion, Mr. Basak has contended that the learned Judge below was wrong in drawing an inference that when charge No. 1 was found to be a technical irregularity, Banerji should be presumed to be not guilty as such irregularity could not have been any basis for penalty.
231. Taking the last point first, we get that the first charge relates to the non-disclosure of certain Bank accounts and car standing in the name of Banerji. It has been found by the Union Public charyaj. Service Commission that in the 1st charge there was no mala fides and that Banerji committed a technical irregularity in omitting to mention some items in the declaration of assets although the said charge was proved. There is nothing to indicate that this technical irregularity did not at all weigh in the mind of the Disciplinary Authority. It cannot, therefore, be stated that in the facts and circumstances this irregularity had no effect in the matter of imposition of penalty specially when some other charges were proved. The presumption that the technical irregularity could not be the basis of imposition of penalty cannot, therefore, be held to be correct in my view.
232. The question that arises for consideration at this stage is how far the Court can on an application under Article 226 of the Constitution interfere with the findings of fact arrived at by the punishing authority. The case of the Ruby General Insurance Co. Ltd. v. Pearylal Kumar and Anr. (1952) 7 D.L.R.S.C. 220 and also in G. Veerappa Pillai''s case Supra is relevant. Here the Supreme Court has held about the scope of writ application as follows:
Such writs are as referred to in Article 225 are obviously intended to enable the High Court to issue them in grave cases where the subordinate Tribunal or bodies or officers act wholly without jurisdiction or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error or excess has resulted in menifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decision impugned and decided what is the proper view to be taken or the order to be made.
233. In the case of the State of Orissa and Anr. v. Murlidhar Supra the Supreme Court has pointed out that in proceedings under Articles 226 and 227 the High Court does not sit in appeal over the findings of fact recorded in a departmental enquiry and the re-appreciation of the evidence by the High Court would be outside its jurisdiction. In Khirode Behari v. The Union of India Supra the Supreme Court dealt with the Court''s jurisdiction as to the domestic enquiry under Article 311 and it held,
The enquiry under Article 311 is a domestic enquiry, and the Court is not concerned with the question whether on the evidence before the officer or authority passing the order against the civil servant, there was sufficient evidence to justify the order. The guarantee under Article 131 is of the regularity of the enquiry. If the enquiry is not vitiated on the ground of any procedural irregularity the Court is not concerned to decide whether the evidence justified the order.
Keeping in view the accepted principles and those laid down by the Supreme Court, I have gone through the materials on record and I find that there is sufficient evidence to support the charges Nos. 2 and 5 as found proved by the Enquiry Officer, Union Public Service Commission, and ultimately by the Disciplinary Authority against Banerji. The findings are supported by circumstances as well. We have been taken through the findings of the Enquiry Officer, the Public Service Commission and the Disciplinary Authority and I have no doubt that the findings are reasonable and based on proper materials. There was no reason or occasion to interfere with those findings on an application under Article 226.
234. The learned Judge is of the opinion that the part of charge No. 2 alleged to have been proved is at variance with the charge originally made. He says,
The charge against the Petitioner was that as Government servant he had engaged himself in the benami business and had obtained a loan for himself through the guise of the benami name of his wife. That charge in content and ambit, in my opinion, is entirely different from a charge of exercising influence for obtaining a loan for a relation.
In my view, the original charge, as framed, has not been properly appreciated. The 2nd charge has three parts. First, Banerji purchased lands in the name of his wife. Secondly, he exercised his influence as Development Commissioner in securing a loan of Rs. 25,000 to set up in the name of his wife, a poultry farm and, thirdly, it has been alleged that Banerji engaged himself in the business and transaction of the farm. Banerji himself understood that there were allegations of his exercising influence in securing loan to set up the farm in the name of his wife and of engaging himself in the business and transaction of the farm. The allegations about benami business and obtaining loan for Banerji himself have not been mentioned in the charge. Besides, we should remember that the general principles of the criminal law cannot be applied in domestic enquiry. Domestic enquiries are not the proceedings before the criminal Court. In domestic enquiries it is to be seen that the allegations of misconduct are clearly made known to the delinquent through the charges and if any of the allegations of misconduct stated is proved after offering sufficient and proper opportunity to the delinquent for defence to which he is entitled. In my opinion, the 2nd charge partially proved is not different from the original charge.
235. Regarding the 5th charge in respect of delayed payment for purcharge of 40,000 bricks, the learned Judge has found that there was no evidence. Practically speaking, this is a case of re-appreciation of evidence. On perusal of the records and the findings of the Enquiry Officer, the Public Service Commission and the Disciplinary Authority, I am of the opinion that the said findings are reasonable and not perverse. The said findings are based on evidence, facts and circumstances and I cannot say that there is no evidence to support the findings.
236. In respect of charge No. 4 on the question of plot No. 40 of the Regent Park Scheme, I should hold that the charge, as framed considered in the light of imputations made, has not been proved, as the findings were based on allegations not included in imputations made.
237. In view of my findings above, I should hold that there is nothing to find fault with the findings of guilt against Banerji by the Disciplinary Authority relating to the 2nd and the 5th charges as found partially proved. The findings of the Court below that those two charges were not proved are liable to be set aside. Those two charges should stand proved. The 1st charge though a technical irregularity should be deemed to be proved as found by the Disciplinary Authority. Although the 4th charge has not been proved, sunil yet when other charges are found proved ultimately on proper materials and reasonably, the order of punishment meted out to the applicant, Sunil Kumar Banerji, complained against is justified and legal. The order passed by the Court below discharging the Rule nisi issued by it and the order vacating the interim order cannot be interfered with. The application under Article 226 of the Constitution was rightly rejected but on the grounds as indicated above.
238. In the result, the appeal fails.
