Sinha, J.@mdashThe petitioner was employed as a clerk in the office of the Divisional Engineer. Posts & Telegraphs Department. He is a
prominent member of the Posts & Telegraphs Workers'' Union and is now the General Secretary of the West Bengal Branch of the said Union. In
March, 1949 he was arrested under the West Bengal Security Act, but was released in May following. On or about 10th July, 1950 he was
served with a show cause notice asking him to show cause why he should not be absolutely retired under the provisions of the Civil Services
(Safeguarding of National Security) Rules, 1949. He showed cause, but no further steps have been taken therein. On or about the 15th
November, 1951 the petitioner received a charge-sheet signed by the Divisional Engineer, Telegraphs, Calcutta West Division. A copy of this is
annexed to the petition and marked ''B''. The charge-sheet commences by stating that the Deputy Inspector-General of Police, I.B., C.I.D., West
Bengal, Calcutta, reported in a letter certain activities on the part of the petitioner, before he was arrested, and placed in detention in jail with effect
from 18th of May, 1951. The activities were reported by the D.I.G., I.B., C.I.D., West Bengal, as a result of a watch being kept on the
petitioner''s movements. Then follows a list of activities so reported, grouped under twelve heads. It is not necessary to refer to all these headings
in detail except the following: --
(1) On 10. 6. 49 Shri Krishna Gopal Basu led about 50 to 60 men to the office of the P.M.G., Calcutta, made a demonstration there and abused
the P.M.G.
(7) Shri Krishna Gopal Basu spoke at a meeting held on 29.7.49 at the foot of Ochterlony Monument under the auspices of the C.P.I, controlled
by the B.P.T.U.C. calling upon the workers to unite for revolution and throwing over the present regime and also participated in the procession
that was formed after the meeting.
(10) Shri Krishna Gopal Basu along with others was responsible for staging a demonstration on 23.9.49. in front of the P.M.G''s room ever the
advance payment of pay for the month of September, 1949.
(11) Shri Krishna Gopal Basu is an active member and a capable organiser of the C.P.I, working on its postal front and indulges in activity to
prove his disloyalty to the State.
(12) Shri Krishna Gopal Basu had been advocating violence and lawlessness and inciting loyal P. & T. employees to resort to indiscipline.
After having summarised the contents of his report made by the D.I.G., I.B., the charge-sheet then proceeds to formulate the charges. There are
four charges. The first is for commission of a serious breach of discipline, of which six instances have been given. The second is for having violated
Rule 20 of the Government Servants'' Conduct Rules, of which four instances have been set out. The third charge is for having violated Rule 23 of
the Government Servants'' Conduct Rules for attending a meeting at Hazra Park on the 2nd of August, 1949 held under the auspices of the C.P.I.
controlled by B.P.T.U.C, and having been a member and a capable organiser of the C.P.I, on the postal front. The fourth charge is for having
incited the loyal P. & T. employees to resort to indiscipline, violence and lawlessness.
2. It must be carefully borne in mind that the enumeration of the facts contained in the I.B. Report collected under twelve headings, does not
constitute the charges. In fact, I have set out above some of the facts said to be contained in the I.B. Report, which are not identical with the
charges as framed. For example, let us take Heading No. 7 in the summary of the I.B. Report. That contains two separate incidents. The first
refers to a speech said to have been delivered by the petitioner on 29.7.49 at the foot of the Ochterlony Monument under the auspices of C.P.I,
controlled B.P.T.U.C. calling upon the workers to unite for revolution and throwing over the present regime. The second part of it alleges that the
petitioner participated; in a procession that was formed after the meeting. The corresponding charge is contained in Charge (ii) (c). This is confined
to the delivery of the speech at the meeting held at the foot of the Ochterlony Monument on 29.7.49. So far as the procession is concerned, there
is no charge. This fact will be of importance, when we proceed to examine the order of the Appellate Authority.
3. The charge sheet after enumerating the charges proceeds to state as follows :--
He should also state whether he desires to be heard in person and whether he will examine any witnesses of file any documentary evidence. If he
desires to do so, he will furnish the name and designation or occupation of each of the witnesses to examine and also a list of documents to be
produced and will state what facts shall be proved by each such witness and from each of the documents to be produced.
4. The petitioner showed cause and desired to be heard in person. He then proceeded to state as follows :--
(6) The names and designations of the witnesses and list of documents which I desire to examine during personal interview are given below :-
(1) I.B. Report dated 19-9-51 in original.
(2) P.M.G., C.A''s No. P.M.G.-- 566 TB dated 20-7-50.
(3) Documentary exidence in support of the last two sentences of paragraph 2 of your Memo No. E 177 Plan 154 dated 12-3-52.
(4) Reports in person and reports in original in respect of activities (1) to (12) of the I. B. Report, stated in your Memo No. E. 177 Plan 124,
dated 15.11.51.
(5) Mr. C.A. Cornelius,
the then Director of Telegraphs, West Bengal Circle.
(6) Shri N.N. Banerjee, P.M.G., West Bengal Circle.
(7) Shri N. C. Das, Director of Postal Services.
By examining the above documents and witnesses, all the items of charges will be disproved by me.
(7) The names and addresses of witnesses to be produced by me are given below:--
(1) Shri Kalika Prosad Banerjee, No. 2, Aftab Mosque Lane, Gopalnagore, Alipore, (Late boy peon C.T.O., Calcutta.)
The above witness will prove my non-association with activities at SLS (1), (4) and (10) of your Memo No. E 177|Plan|124, dated 15.11.51.
(2) Shri Kali Roy Chowdhury, 4/92, Jotindas Neogy, Belghoria, (24-Parganas), (Ex-Sorter, Calcutta R. M. S. Division).
The above witness will prove my non-association with activities at Serials (1), (4), (5), (9) and (10) of your Memo No. E|177|Plan|124, dated
15.11.51.
5. On the 7th of April, 1952, this, written statement of defence was filed. As the petitioner had asked for an oral enquiry, such an enquiry was held
on the 7th and 8th of November, 1952. At this oral hearing, however, the petitioner''s prayer for production and| or examination of witnesses and
documents was rejected save and except that he was given a copy of the I.E. Report, dated 19. 9. 51. The reasons, which were not
communicated to the petitioner, but were recorded in: writing, have been produced at the trial and must be set out here.
The defending official, Shri K. G. Bose, has furnished in para. 6 of his defence statement dated 7th April, 1952 a list of documents and also the
names of some of the officers of the department and demanded their production for examination by him, at the time of oral hearing. Despite clear
directive in the memo, of charges dated 15. 11. 51., the defending official has not stated what facts he will prove in his favour from the documents
or witnesses named. With the exception of the document mentioned in item 1 of the list in para. 6 of his defence statement, none of the documents
or witnesses mentioned were referred to in the memo of charges. They are not, therefore, relevant to the charges. In item (4) of the list referred to
above, the defending official has requested the presence of all the Police reporters on whose reports the I.B. Report was based. No mention was
made in the memo of charges that the I.B. Report was based on reports furnished by the Police reporters. In the circumstances, the witnesses
mentioned by the defending official cannot be allowed to be examined at the time of his personal hearing. In regard to the two persons named in
para. 7 of the statement of defence, I understand on enquiries that both the persons are ex-employees of the department and were removed from
the service of the department as undesirable hands. They cannot be allowed to be called in by the defending official as witnesses, as they were
dismissed for misconduct and any evidence given by them will be unreliable.
6. By his letter dated the 4th of November, 1952, the petitioner protested against the decision of the enquiring officer declining to permit any of the
witnesses named or referred to by him or as regards documents other than the I.B. Report. He pointed out that without the examination of
witnesses'' and | or documents it was not possible for him to defend himself adequately against the charges framed. He also asked for the reasons
which had been recorded in accordance with the provisions of Rules 55 and 55A of the C.S. (C.C.A.) Rules. Finally, he pointed out that if he was
not permitted to examine witnesses or documents, he was being denied the fundamental rights of a person charged with an offence and, therefore,
the oral hearing would have little or no value. The enquiring authority, however, refused to change his order and refused to communicate to the
petitioner the reasons which were recorded. It was pointed out that under the Rules it was not incumbent upon the enquiring authority to
communicate the reasons to the delinquent. As a result of this enquiry, the Enquiring Officer,--the Divisional Engineer. Telegraphs, Calcutta, West
Division,--who is also the punishing authority, came to a provisional finding and the results were communicated to the petitioner and he was asked
to show cause why he should not be dismissed from service. The petitioner thereupon submitted a further statement of defence on the 3rd of
March, 1953. On the 5th of October, 1953, the final finding was arrived at and a copy of this is annexed to the petition and marked ''D''. By this
finding the petitioner was dismissed from Government service with effect from the 5th of October, 1953. From this order the petitioner preferred
an appeal to the Director of Telegraphs, West Bengal Circle on the 31st of December, 1953. The Director of Telegraphs, West Bengal Circle,
heard the appeal and the result of his appeal may be summarised as follows:--
Charge (i) :
(a) -- Benefit of doubt.
(b) _ Benefit of doubt.
(c) -- Not established.
(d) -- Benefit of doubt.
(e) -- Benefit of doubt.
(f) - Benefit of doubt.
Charge (ii) :
(a) -- Guilty.
(b) -Guilty.
(c) - Guilty.
(d) --Guilty.
Charge (iii):
With regard to the first part of this charge, namely, for having attended a meeting at the Hazra Park, on 2. 8. 49, -- Benefit of doubt. Latter part --
No finding.
Charge (iv) :
No finding.
In the result, the appeal was rejected.
7. This Rule was issued on the 1st September, 1954. upon the respondents to show cause why an order in the nature of a writ of mandamus
should not be made commanding the respondents to cancel and|or withdraw the Memo No. E177|Plan, dated the 5th October, 1953, dismissing
the petitioner from his post, and directing the respondents to forbear from giving effect to the said Memo and|or acting on the basis thereof and | or
why an order in the nature of a writ of certiorari should not be made and | or why such further order or orders should not be made as to the Court
seems fit and proper.
8. It will be necessary to deal with the two orders, namely, the order of the enquiring officer and the Appellate authority separately, since in my
opinion both these orders suffer from various infirmities. I shall first deal with the order of the Divisional Engineer, Telegraphs, Calcutta, West
Division, dated the 5th of October, 1953. This order really has to be taken with the provisional findings by that officer on the second of February,
1953. By these orders, the Divisional Engineer, Telegraphs, has found the petitioner guilty of all the charges and has inflicted the punishment of
dismissal. It is not disputed that under Article 311 (2) of the Constitution as also under the provisions of Rule 55 of the C.S. (C.C.A.) Rules, the
petitioner is entitled to a reasonable opportunity of establishing his defence to the charges. The first infirmity in the proceedings terminating in the
orders above mentioned, is the denial by the Divisional Engineer, of an opportunity of calling evidence and |or documents. I have set out above the
exact requisition made by the petitioner in that behalf. This requisition may be divided into three parts. The first part deals with the documents
which the petitioner desired to examine. Firstly comes the I.B. Report, dated 19. 9. 51. There can be no grievance on this heading because a copy
of this document was made available to the petitioner. With regard to the document No. 2, it is the show cause notice by the Postmaster General,
West Bengal Circle dated 10th July 1950 served on the petitioner under the Civil Services (Safeguarding of National Security) Rules 1949. This is
a document which is entirely irrelevant. One of the points taken by the petitioner in his defence was that he had already been asked to show cause
under the National Security Rules and, consequently, he could not be charged once more under the C.S. (CCA) Rules. This, of course, is on the
face of it, untenable. In my opinion, the enquiring authority was justified in refusing to entertain this document as evidence. The third heading is
equally untenable. The petitioner does not refer to any particular document, but in effect calls upon the enquiring authority to produce documentary
evidence in support of a portion of the charge-sheet and then give his inspection in advance. This is not permissible.
9. The second heading relates to witnesses. In the case of witnesses, the petitioner appears to have divided them in two headings. One consists of
witnesses whom he wishes to examine and the second consists of two witnesses whom he offers to produce. With regard to the first group, he
does not state whether he himself intended to produce them or he expected the authorities to produce such witnesses. The reason for rejecting
both these groups of witnesses is given by the enquiring officer and set out above. Rules 55 and 55A of the C.S. (CCA) Rules enjoin that the
delinquent should indicate the relevance of any evidence that he intends to produce and if it is not considered relevant, he may be disallowed from
producing it So far as witnesses are concened, I do not think that this rule by itself is bad. Delinquents in departmental proceedings have a habit of
citing officials in high position whose evidence would be entirely irrelevant, simply hoping that this may deter the Authorities from proceeding with
the enquiry. It is neither convenient nor in the ends of justice that this should he encouraged. The rules however enjoin that the reasons should be
recorded in writing so that there may not be an arbitrary-refusal. Where the evidence of a high official, is on the face of it relevant, there is no
power in the enquiring tribunal to exclude such evidence. Let me consider the items Nos. 4, 5, 6 and 7, in paragraph 6 of the requisition made by
the petitioner in his written statement dated the 7th of April, 1952, which has already been set out above. Item No. 4 is clearly to be rejected. The
petitioner asked for reporters in person and reports in original in respect of the I.B. Report. Nobody has ever said that there were any reporters
concerned with such reports or that there are original reports upon which the final report is based. Therefore, this requisition is untenable. With
regard to items 6 and 7, the petitioner has failed to establish how the evidence of these witnesses is relevant. Consequently, the enquiring tribunal
was entitled to reject the prayer proposing to examine them. Next I come to Item No. 6 (namely, Shri N.N. Banerjee, P.M.G., West Bengal
Circle). His evidence is relevant on the face of the charge. Charge (i) (b) consists of the use of disrespectful and abusive language towards the
P.M.G., West Bengal Circle. It appears to me that no explanation is required why the P.M.G. is a relevant witness in regard to this charge. Charge
(i) (a) refers to the petitioner having led 50 or 60 men to the office of the P.M.G. to hold a demonstration there on the 10th of June. 1949, and
Charge (i) (c) is for having organised a demonstration by about 100 P. & T. employees on 19. 7. 49 at the office of the P.M.G., West, Bengal
Circle, and Charge (i) (d) is for having led to the office of the P.M.G. on 26.7.49 one hundred sorters of the Calcutta R.M S. who held a
demonstration there. In Charge (i) (f) it is said that the petitioner staged a demonstration on 23.9.49 in front of the P.M.G''s room over the
advance payment of pay for the month of September, 1949. In all these charges, the P.M.G. might well be a relevant witness. While it may be said
that in respect of the latter group, it was the duty of the petitioner to point out how the P.M.G''s evidence became relevant, or what the petitioner
intended to prove. But I do not think there is any answer to Charge (i) (b), namely, using disrespectful and abusive language towards the P.M.G.
himself, for how can it be said that such evidence was not reasonably connected with the charge. In the reason given for refusal to allow evidence
to be given, it is stated that none of the witnesses mentioned were referred to in the Memo of Charges. This is not correct. The P.M.G. has been
definitely mentioned. With regard to the second group of witnesses, the petitioner has clearly indicated the reasons why he wishes to call them. The
reasons given for excluding them are wholly untenable. The enquiring officer says that he made enquiries and found that they were ex employees of
the department and had been removed from service as undesirable hands and, therefore, they could not be allowed to be called in by defending
officials as witnesses, ""as they were dismissed for misconduct and any evidence given by them will be unreliable."" It is not for the enquiring tribunal
to pick and choose witnesses on behalf of the delinquent. The fact that a certain witness had been dismissed for misconduct might go towards
diminishing the probative value of his evidence. But the delinquent cannot be prevented from calling such evidence. The enquiring officer could not
in advance; consider the evidence of the witnesses as unreliable simply because it so happened that they had a past record. The only reason for
which evidence which is proposed to be called by a delinquent can be excluded, is that it was irrelevant or not proved to be relevant. It will be
dangerous to allow the enquiring tribunal to exclude evidence arbitrarily, and to confine the evidence to witnesses who must be proved to he
persons without a blemish. The enquiring tribunal was plainly wrong in excluding such evidence. It is stated by the petitioner that these witnesses
were called to prove his non-association with certain activities like meetings, processions, etc. It may be that the petitioner knows no one else who
could prove it. It is certainly unjust to deprive him of the evidence of these witnesses. It might be said however that with regard to the specific
charges mentioned above, relating to the P.M.G., the petitioner has been either absolved from liability or given the benefit of doubt by the
Appellate Authority. I shall deal with this aspect when I deal with the appellate order. It will appear therefrom that although the Appellate Authority
has given the benefit of doubt, he seems to consider that this does not amount to acquittal, and this has affected his decision. Then, again, in my
opinion, the finding of the Appellate Authority is also bad for reasons that I shall give hereinafter. In the original finding the petitioner has been
found guilty of all the charges. Mr. Kar appearing on behalf of the respondents has raised a point, namely, that it was not the duty of the Authorities
to produce any witness on behalf of the petitioner. Strictly speaking, this is true. There is no rule whereby the Authorities are compelled to produce
witnesses. They have no power to issue subpoenas or summons for the compulsory attendance of witnesses. The petitioner in his written statement
has however not made a request for the production of witnesses by the Authorities. All he said was that he proposed to examine them. Although
the Authorities have no legal liability for producing witnesses, where such witnesses are their own employees, and within their power and control,
an effort must be made to assist the delinquent by extending all possible help for the production of such witnesses. Otherwise, I do not see how a
humble employee could ever succeed in calling as witness, high officials, if such evidence was relevant or even essential.
10. I next come to the finding of the Appellate Authority. In this finding dated the 26th May, 1954, there is a curious defect. As has been
mentioned above, the original charge-sheet consisted of two parts. In the first part was recited a summary of the I. B. Report, the incidents
reported being grouped under 12 headings. Then commences the enumeration of the actual charges. As I have already pointed out the actual
charges are not identical with the facts stated in the summary of the I.B. Report. The Appellate Authority wholly failed to notice this fact. The
Director of Telegraphs, the Appellate Authority, seemed to think that the 12 headings summarising the I.B. Report, were the charges and he
proceeds to deal with them in his Report, entirely ignoring the actual charges. The result naturally has been that the whole proceeding has become
defective. Let us take, what has been mentioned as Charge (vii) in the said order. This: is Item No. (7) in the summary of the I.B. Report and
consists of two parts, namely, a meeting at the foot of the Ochterlony Monument, on 29. 7. 49, and, secondly, a procession which took place after
the) meeting. The corresponding charge is Charge No. (ii) (c), and this is confined to the delivery of a speech at the foot of the Ochterlony
Monument, on 29.7.49. This charge is under the heading ""having violated Rule 20 of the Government Servants'' Conduct Rules."" The Appellate
Authority, however, proceeds to deal with, what he calls Charge No. (vii), after having set out Item No. (7) of the I. B. Report. The conclusion of
the Appellate Authority is that the charge on this count has been brought home. But it does not rest there. The Appellate Authority proceeds to
hold that the facts stated therein constitutes a violation of Rule 23 of the Government Servants Conduct Rules. This is not contained in the charge at
all, which charges the petitioner with having violated Rule 20 of the Government Servants Conduct Rules, as a result of attending the meeting at the
foot of the Ochterlony Monument, on 29.7.49. The result is that the Appellate Authority not only found the petitioner guilty of a charge as framed
but also guilty of a charge which was never framed. He considers the wrong set of facts and finds the petitioner guilty of it, and he finds the
petitioner guilty of the violation of a Rule for which he was never charged and, consequently, had no opportunity of showing cause. The findings of
the Appellate Officer with regard to Charges (xi) and (xii), are entirely inexplicable. The finding may be set out below:--
With regard to the above two charges and from the judgment given by me in respect of Charges (i) to (x), I have held that Charges Nos. (ii), (iii),
(vi) and (vii) pertaining to public utterances and publication of document under his own name by Shri K.G. Bose and which were capable of
embarrassing the relation between the Government and the people of India or any section thereof, have been brought home against Shri K.G.
Bose.
11. It is plain that the Appellate Authority has failed to consider this point as he should have done. These charges, although wrongly enumerated,
having been taken directly from the grouping in the I.B. Report, do find place in the actual charge-sheet. Charge (xi) is the latter part of Charge
(iii), and Charge (xii) is Charge (iv). The Appellate Authority holds that since he has held that Charges Nos. (iii), (vi) and (vii) pertaining to public
utterances and publication of document under his own name by the petitioner were capable of embarrassing the relation between the Government
and the people of India or any section thereof, therefore, these charges have been brought home. This is entirely devoid of logic. Because a person
makes public utterances or publishes documents which are capable of embarrassing the relationship between the Government and the people, it is
not automatically proved that he is an active member and capable organiser of the Communist Party of India. Nor does it automatically prove that
the petitioner was advocating violence and lawlessness and inciting loyal P. & T. employees to resort to indiscipline. Utterances and public
documents maybe embarrassing to the Government and yet not be an incitement to violence and lawlessness or indiscipline. Let us take Charge
No. (ii). This charge has been taken bodily from Item No. 2 in the summary of the I.B. Report. The summary speaks about the petitioner attending
and speaking at a meeting held at Wellington Square on 15.2.49, ""condemning the alleged capitalistic character of the Nehru Government and
urged all to get ready for the general strike on 9.3.49."" The charge as framed is charge 2(a). It speaks about having delivered a speech at a public
meeting held at the Wellington Square on 15.2.49, but says nothing about the nature of the speech. Assuming, however, that such was the nature
of the speech, it proves neither what has been called Charge No. (xi) or (xii). It certainly does not prove that the petitioner was a member of the
C.P.I., and I fail to see how it proves that the petitioner was advocating violence or lawlessness or indiscipline. There is nothing to show that the
proposed general strike was illegal or that there was any incitement to violence and lawlessness. Similarly in what has been called Charge (iii)
corresponding to Charge (ii) (b) in the charges framed, there is no reference to the nature of the speech. Assuming however, that the nature of the
speech is as stated, it is said that the petitioner explained at the meeting that he was compelled to take the decision to strike for better pay and
living cost, because he was hard hit by the price level. I fail to see how this proves that the petitioner was a member of the C.P.T. or that he was
advocating violence or lawlessness. The conclusion is inescapable that the Appellate Officer thought that the petitioner was an agitator and his
activities were very inconvenient to Government and, therefore he must be an active member and a capable organiser of the C.P.I, and was
advocating violence and lawlessness. This is a conclusion which is on the face of it illogical and erroneous. The report finally proceeds to say as
follows :--
In respect of Charges (i), (v), (viii), (ix) and (x) relating to acts of indiscipline and rowdyism by some staff and the association of Shri KG. Bose
thereto, it is not possible for me to absolve Shri KG. Bose entirely from the charges and he has only been given the benefit of doubt. The only
charge from which KG. Bose could be absolved was Charge No. (iv). In the circumstances I hold Shri K.G Bose responsible for violation of
Government Servants Conduct Rules Nos 20 and 23 thereby tending to inciting loyal P. & T. employees to resort to indiscipline.
12. It is clear that the Appellate Authority made a confusion between Ruled 20 and 23 of the Government Servants Conduct Rules. The confusion
lay not only as to the scope thereof but he has also failed to notice that the violation of the respective Rules forma specific charges, alleging specific
incidents and they could not be jumbled together. Secondly, he seems to consider that benefit of doubt does not amount to acquittal. It is as if the
granting of benefit of doubt makes the delinquent a shade more guilty than acquittal. This is clearly untenable) and has adversely affected his
decision. For all these reasons, the appellate order cannot be supported. The question is, therefore, what should be the proper order to make.
Normally, if the appellate order is bad, it might be sufficient to set. it aside and send it back for being dealt with according to law. Here, however,
the entire proceeding is bad because the petitioner did not have an adequate opportunity of calling evidence or meeting the evidence called, at the
original enquiry. It would be, therefore, of very little use to send it back to the Appellate Authority, who in view of my finding as to the defects in
the original enquiry, would either have to set it aside or take evidence himself de novo. It is not desirable to compel him to do so, nor is it fair to the
delinquent, who would lose his opportunity of appealing therefrom. Considering all the aspects of the matter, I think that the proper order will be to
set aside both the findings and orders of the Divisional Engineer, Telegraphs, Calcutta West Division, dated the 5th of October, 1953, and his
provisional findings, dated the 2nd of February, 1953, as well as the order and findings of the Appellate Authority, the Director of Telegraphs,
West Bengal Circle, dated the 26th May, 1954. The Rule is accordingly made absolute. There will be a writ in the nature of certiorari quashing
these orders and a writ in the nature of mandamus directing the respondents not to give effect thereto. The result is that the matter will now go
back, and if the authorities so wish, the departmental enquiry is to be held de novo. All interim orders are vacated. There will be no order as to
tosts.