9911796707
TMI Blog1987 (6) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... rector (Jute Scheme), Export Inspection Agency, Jute Scheme in the Cal. Office, Export Inspection Council of India (hereinafter referred to as Council) the officers of which are the respondents in the writ petition and the appellants before us. On 15th of October, 1970 the petitioner was appointed to the post of Junior Technical Officer in the Export Inspection Agency Calcutta (Jute Scheme). On 1st of November, 1974 the petitioner was promoted to the post of Assistant Director. In September, 1975 the petitioner visited Jammu and Kashmir along with the members of his family and other colleagues on obtaining Leave Travel Concession (hereinafter referred to as LTC). Apart from the petitioner, another Assistant Director, namely, Sri A. Dastidar of this office and one office Assistant namely, Samar Dey of the Calcutta Office also visited Kashmir. This was done under a package tour organised by one Maharaja Travels. In this connection the petitioner submitted a tour programme stating that on 1st of October, 1975 he along with the members of his family would be travelling to Kashmir and back. Under the heading Means and Class it was specified Trains 1st Class . This was submitted to ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r alleged offence under sections 420, 468 and 471, IPC. By an order dated 12th of November, 1976 issued by Additional Director of the Council, New Delhi, the petitioner was put under suspension on the ground that a criminal offence is under investigation against him. On 22nd of December, 1976 the petitioner preferred an appeal to the Director (C.C.) in the Ministry of Commerce Government of India against the order of suspension assessed against him. On completion of the investigation against the petitioner, C.B.I. forwarded the Report to Dy. Inspector General of Police, C.B.I., New Delhi. On or about 2nd of May, 1977 the D.I.G. of Police, C.B.I., New Delhi, advised the Ministry of Commerce, Govt. of India for initiating regular departmental action against the petitioner and also to recover a sum of ₹ 1,381.90 from the petitioner which he was alleged to have drawn in excess. 2. By a memorandum dated 12th of May, 1977 Sri D.C. Majumdar, the Disciplinary Authority of the petitioner (hereinafter referred to as D.A.) informed the petitioner that it was proposed to hold an enquiry against him under Rule 11 of the Export Inspection Agency Employees (Clarification, Control and App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... class both ways and obtained payment of ₹ 1,618.70 as against entitlement of ₹ 226.80 by submitting false money receipt and certificate of journey procured from M/s. Maharaja Travels, Shri Mitra thus failed to maintain absolute integrity acted in the manner unbecoming of an Officer and thereby contravened Rule 3(1)(i) (iii) of C.C.S. (Conduct) Rules, 1955 applicable to the employees of the Export Inspection Agency. 4. The Statement of Imputation of misconduct , being Annexure II, stated as follows: The said Sri Kalyan Kumar Mitra, was functioning as Asstt. Director (Jute Scheme) Export Inspection Agency, under Export Inspection Council, Calcutta, during the months of September to December, 1975. That the said Sri Kalyan Kumar Mitra, applied for L.T.C. advance for going to Pahelgaon (Kashmir) with his mother, wife and one son, aged 5 years and on his application accompanied by tour programme an amount of ₹ 1,540/- was sanctioned to him on 1.9.75. In this tour programme Sri Mitra mentioned that he would travel in the 1st class from Sealdah to Jammu and back. After performing the journey, the said Sri Mitra submitted his tour diary indicating the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ta for his journey to Kashmir. In the said money receipt, 1st class rail fare from Sealdah to Jammu and back is stated to have been realised, although no journey was performed in the 1st class. It was further found that M/s. Maharaja Travels, Calcutta charged/realised a total amount of ₹ 2,495/- from the said Sri Mitra. This charge included (i) 2nd Class Railway fare from Sealdah to Jammu and back for 3 adults and 1 child, (ii) Bus fare from Jammu and Srinagar and back for 3 adults and 1 child (iii) Sightseeing expenses at Kashmir, (iv) Expenses on food during rail and bus journeys for 3 adults and 1 child, and (v) Boarding and lodging expenses at Srinagar for 12 days for 3 adults and 1 child. As per L.T.C. Rule, an employee is entitled to get only rail/bus fare from his Hd. Quarters to any place in India after deducting the fare of first 400 KM. on each side. The employee would get the railway fare in the class as per his entitlement, if actually travelled by him in the said class or would get the fare of the class in which the journeys have been performed. The said Sri Mitra was entitled to L.T.C. claim of ₹ 226.80 only from the department, because, he has tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ta. 7. In reply thereto by a letter dated 28th of May, 1977 the petitioner denied the charges levelled against him and asked for a personal hearing. By his letter dated 17th of June, 1977 the Director of the Council appointed one Sri S.N. Razvi, a Joint Director of the Council, the Inquiring Officer to inquire into the charges framed against the petitioner. Upon objection raised on behalf of the petitioner, by an order dated 4th of August, 1977, the D.A. appointed one Sri D.P. Bhattacharya, who was the Joint Director of the Council at Calcutta as the Inquiry Officer to enquire into the charges framed against the petitioner in place and stead of the said Sri Razvi (hereinafter referred to as I.O.). By an order dated 2nd of September, 1978 D.A. appointed one Sri B.D. Roy who was then the Deputy Director of the Agency as the presenting Officer to present the case on behalf of the Disciplinary Authority (hereinafter referred to as P.O.). By an order dated 7th of October, 1977 Sri Lakshmikanthan, who was the Disciplinary Authority of Sri Samar Dey, who travelled along with the petitioner and who claimed L.T.C. similarly, passed an order of punishment withholding the increment of Sama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arkar, Senior Accounts Officer and T.N. Biswas, Accounts Officer both of Export Inspection Council of India, Calcutta (Jute Scheme) in the presence of the petitioner with a liberty to the petitioner to produce defence witnesses. On 3rd of September, 1979 the petitioner made a representation to D.A. in reply to above requesting therein to supply to him a copy of the report of the Inquiry Officer and wanted to know under what provision of the Rules the Director wanted to reexamine the two witnesses who had already been examined and cross examined by I.O. In reply thereto by a letter dated 14th of September, 1979 the Director informed the petitioner that he had decided to examine Sri Sarkar and Sri Biswas to ascertain as to why the factual information referred to therein was not incorporated in the relevant records. By a letter dated 27th of September, 1979 the petitioner informed the Director, inter alia, that there was no justification in examining Shri Sarkar and Biswas without examining Sri P. Roy Chowdhury, the Controlling Officer who actually sanctioned the leave travel concession claim of the petitioner. On 11th of November the petitioner made an application under Article 226 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held as follows: (1) The Charge sheet shows that the mind of the Disciplinary Authority was made up before it was issued; (2) The finding was at variance with the Charge sheet. Neither there was any finding on the charge framed nor the findings were in respect of the charge framed; (3) The argument of Mr. Ginwalla that the petitioner had admitted his guilt was rejected. It was held that the petitioner had placed before the Senior Accounts Officer the actual state of affairs. The sanctioning officer did not refuse to sanction because of the prevalent practice in other organisations as regards admissibility of L.T.C. in package tour; (4) There has been violation of the principles of natural justice on the following grounds; (a) Refusal of a Lawyer; (b) The petitioner was not furnished with the material documents and defence witnesses. In this respect it has been held by the learned Judge that (i) Documents in connection with the proceedings in respect of Samar Dey would have helped the petitioner in his defence but the same were deliberately withheld by the authority concerned; (ii) Regarding the records of I.J.I.R.A., the I.O. had prejudged the issue. These documents were relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same this appeal has been preferred by the respondents in the writ petition. SUBMISSION--On behalf of the appellant 11. Mr. Ginwalla appearing for the appellant has firstly made submission regarding the finding of the learned Judge that the Charge sheet shows that the Authority concerned was biased. In this connection he has placed before us the relevant charge sheet which we have quoted hereinabove. He has submitted that just as in the charge by the Magistrate under the Code of Criminal Procedure, a specific charge has to be made out, similar is the position here. It all depends on the facts and circumstances of the case as to whether the disciplinary authority is biased in initiating a disciplinary enquiry. In this case the Disciplinary Authority viz. Mr. Mazumdar, who was issued the charge sheet, was not biased. This will be borne out by following actions. At the request of the writ petitioner, the Inquiry Officer was charged by Mr. Mazumdar Subsequently the suspension order passed against the petitioner was revoked at the instance of Mr. Mazumdar. In this connection he had produced before the Court the relevant records and notings the copies of which were supplied to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the Agency employee 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. Rule 11(17)--The evidence on behalf of the Agency employee shall then be produced. The Agency employee may examine himself in his own behalf if he so prefers. The witnesses produced by the Agency employee 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 witnesses for the disciplinary authority. Rule 11(18)--The inquiring authority may, after the Agency employee closes his case, and shall, if the Agency employee has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Agency employee to explain any circumstances appearing in the evidence against him. Rule 11(19)--The inquiring authority may, after the completion of the production of evidence, here the Presenting Officer, if any, appointed and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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, where it is not itself the disciplinary authority shall forward to the disciplinary authority the records of enquiry which shall include: a) the report prepared by it under clause (i); b) the written statement of defence if any submitted by the Agency employee; c) the oral and documentary evidence produced in the course of the enquiry; d) written briefs, if any, filed by the presenting Officer or the Agency employee or both during the course of the inquiry; e) the orders, if any, made by the disciplinary authority and the inquiring authority in regard to the inquiry. Rule--12(1) The disciplinary authority if it is not itself the inquiring authority may for reasons to be recorded by it in writing remit the case to the inquiring authority for further inquiry and report and the enquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 11 as far as may be applicable, 12(1). (2) The disciplinary authority shall, if it disagrees with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regarding the finding of the learned Judge regarding violation of the principle of natural justice on several courts. He has submitted that there has been no such violation in the present case and in any event the petitioner has not suffered any prejudice. So far as the scope of principal of natural justice is concerned, he has relied on K.L. Tripathi v. State Bank of India, AIR 1984 SC 273 at 281 (paragraph 29); N.C. Sarin v. Union of India, AIR 1976 SC 1686 at 1695 (paragraph 25) and State of U.P. v. Om Prakash Gupta, AIR 1970 SC 679. On the question of not providing a lawyer, he submitted that in the present case, no complicated question of fact or law was involved. So far as the question of fact is concerned there is no lis in the sense that there is an admission by the writ petitioner. The dispute between the parties is limited within a very narrow area. The petitioner obtained loan on the basis of certain application. He did not travel by Railway 1st Class. What he says is that he availed of a package tour arranged by Maharaja Travel and this package tour was of 1st Class. Therefore, on this limited point the enquiry was being held and denial of lawyer cannot be a ground for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for preparation of the defence statement and not for cross-examination. So far as the preliminary Inquiry Report and the documents relating to the same, it was submitted that they were not relevant. So far as the I.J.I.R.I. records are concerned, it was submitted that all efforts were made to obtain the documents and the witnesses. So far as the documents from Maharaja Travels are concerned, he has submitted that all steps had been taken by the I.O. to obtain the document asked for and he has done everything within his power to (make such document available. In any view of the matter no prejudice was caused for non-availability of such documents and accordingly the enquiry was not vitiated. In this connection he has referred to the following decisions : State of U.P. v. Om Prakash Gupta, AIR 1970 SC 679 at 684 and State of Mysore v. Shivabasappa Shivoppa, AIR, 1963 SC 375. 19. It has been admitted by Mr. Ginwalla that the I.O. had given certain directions and taken certain steps which are not in accordance with the rules. However, it was submitted that no prejudice was caused thereby. The I.O. had hazy, collection of the rules which were not before him. It was admitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuments mentioned in the Annexure to the Charge sheet. b) If any other document was to be relied upon by the prosecution as stated in Item No. 22 of the charge sheet against Mr. Dastidar, copies thereof. c) All documents related to the criminal investigation by the CBI against the petitioners. d) Statements of all witnesses named in Annexure IV of the Charge sheet. e) Certified copies of all the documents relating to an enquiry on the same incident which had already been completed. f) Other L.T.C. bills settled by the office for certification. 23. After service of the charge sheet dated 12th May, 1977 the petitioner prayed for the following documents by a petition dated the 27th November, 1978:-- a) Full report of the Enquiry Officer. b) Statement of witnesses. c) Deposition of all witnesses. d) Correspondence between disciplinary authority and Enquiry Officer. 24. The documents asked for were not made available. In this connection he has drawn our attention to the minutes dated 10th of January, 1979 where from it would appear that the I.O. had directed that inspection of only the exhibited documents be allowed and it was specifically recorded that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Witness No. 1. He relied on and justified the findings accorded in the undisclosed Inspection Report. The persons who made statements before the C.B.I. inquiry, were all examined as prosecution witnesses and their statements were exhibited and relied on by the Prosecution. In the present case in fact the prosecution relied on the said report without disclosing it or making the same exhibit. The petitioner considered the same necessary for the preparation of his defence. 26. So far as the importance and relevance of the statements before the C.B.I. enquiry was concerned, he has submitted as follows. The witnesses, who gave statements before the C.B.I. were cited as Prosecution witnesses. The prosecution relied on the said statements. The prosecution ultimately made these statements foundation of the prosecution case. The C.B.I. Investigating Officer during his examination, inter alia, referred to his finding recorded in his undisclosed report on the basis of the statements obtained by him. The said statements were very much necessary for effective defence and cross-examination. 27. So far as the Records relating to the enquiry proceeding of Samar Dey it was submitted as follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner also the amount was sanctioned by the same Officer on the basis of the same Note sheet. If the records of proceeding against Dey were made available, the petitioners could have asked for a better finding in his favour. The said records of the enquiry proceeding against Dey were very vital and essential for the purpose of defence. 29. His next complaint was that the I.J.I.R.A. records were not produced and their officers were not summoned. In this context he relied on various facts, documents and correspondence in following facts, which we shall deal with in detail while dealing with this point. Regarding the importance and relevance of the Records of the I.J.I.R.A. Mr. Mukherjee submitted as follows : Firstly, the note sheet dated 25th of November, 1975 referred to I.J.I.R.A.'s settlement of L.T.C. claims. This is the basic document; sanction of L.T.C. was made on this basis. Secondly, Money receipt book of Maharaja Travels contained similar money receipts regarding staff of I.J.I.R.A. Thirdly, P. Roy Chowdhury in his evidence stated, inter alia, that Sri Sarkar ascertained from I.J.I.R.A. before preparing the note sheet. Fourthly, the prosecution witness T.N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules relating to disciplinary proceedings have to be strictly complied with. In this connection he has relied on the following decisions. In State of U.P. v. Baburam reported in AIR 1961 SC 751 (at P 763); Vitarelli v. Seaton, 1959 US 535 (at page 547); Sukdeb Singh v. Bhagat Ram, AIR 1975 SC 1331; Ramana v. T.A.A.I., AIR 1979 SC 1628, refund Vitarelli v. Seaton by Justice Frankfurter referred to in Service v. Dulles, 354 U.S. 1st Lawyer's Edition 1403, Head Note 3 at Page 1410; A.C. Hongkong v. N.G. Yuen Sheiu (PC) reported in 1983 (2) AER 346 (at page 351 bottom). 35. The next submission was that the enquiry was hastily concluded without providing the petitioner with a reasonable opportunity to defend himself by producing his evidence. In this connection it was submitted that on 7lh March, 1979 the I.O. requested the P.O. to submit his written brief in support of his prosecution so as to reach the Enquiry Officer by 20.3.79 since the hearing in the case was concluded . Before this the petitioner was called upon to state whether or not be admits his guilt in view of the evidence marshalled against him by the Disciplinary Authority . It was recorded by the I.O. that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Punjab v. Bhagat Ram, AIR 1971 SC 2335 (paras 7 and 8); Union of India v. Indra Nath, 1978 (I) SLR 1 (Cal) DB; State of U.P. v. Md. Sharif, AIR 1982 SC 937 (para 3); Bhagat Ram v. State of Himachal Pradesh reported in AIR 1983 SC 454; Union of India v. Tulsiram Patel, AIR 1985 SC 1416; Kashinath Dikshita v. Union of India, AIR 1986 SC 2118; General Medical Council v. Spackman, 1943 (2) AER 337 at 345 (HL); Annamunthodo v. Oil Fields Workers Trade Union, 1961 (3) AER 621 at 625 (PC); Ridge v. Baldwin, 1963 (2) AER 66 (HL). 38. Mr. Mukherjee has then submitted that whatever might have been the earlier view it seems to be settled now that violation of principle of natural justice renders the decision void. In this context he has relied on the following decisions Jagadish Pr. Saksena v. State of Madhya Pradesh, AIR 1961 SC 1070. Board of High School and Intermediate Edn. U.P. v. Kumari Citra Srivastava, AIR 1970 SC 1089; S.L. Kapoor v. Jagmohan, AIR 1981 SC 136. Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818, (paras 84-89); Mumtaz Ansari v. State of U.P. 1984 (3) SCC 295; Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180 (paras 47 and 48). 39. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... withdraw and proceed denovo through another officer. Petitioner objected to the same on the ground that this was an attempt to obliterate the evidence already given. The petitioner, however, pointed out it was open to remove the defect by proceeding under Rule 12(1). Further the order dated 10th July, 1980 D.K. Sen, J. granted liberty to D.A. to appoint another I.O. in accordance with rules and remit the proceedings back to him for further enquiry and report. There is nothing on record to show why inspite of his own earlier findings and the order of the Hon'ble Court he did not proceed to remit the case but imposed the punishment of removal immediately. It is true that there was no direction regarding the remand, but liberty was given to the disciplinary authority. He had the discretion either to remand the matter or not. Whatever might have been his decision, in any event, such discretion should have been properly and judicially exercised. In the present case there is no proper exercise of discretion and so proper ground has been given for the action taken. An order of punishment was passed summarily. In this context Mr. Mukherjee has relied on the following decisions: In Man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and have been deliberately made by the petitioners with a view to malign him before this Court and/or to mislead this Hon'ble Court. Identical allegations were made by the petitioner in the earlier writ application of November, 1979. Sri D.C. Mazumdar, however in his A/O. in the earlier writ dealt with the said allegations and alleged that the same are mala fide, baseless etc. It will appear from the statement of Sri Mazumdar that there were certain allegations and counter-allegations. Admittedly since in the first writ application, allegations were made against him, there was likelihood of bias by him. 44. The next ground of attack regarding bias of the Disciplinary Authority was that the case of the petitioner and that of Samar Dey was similar. This was confirmed even by the Disciplinary Authority by his letter dated 4th of July, 1978 addressed to Sri Dey. Where in Sri Dey was informed that his appeal will be considered after submission of the Report of enquiry against the petitioner. The petitioner by his letter dated 1st of September, 1978 asked for stay of the enquiry proceedings against him in order to provide him with the fullest opportunity to defend his case. The Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the petitioner in consequence thereof. Had there been a legal practitioner there could be a better cross-examination and the proceeding possible would have been in a different shape and take a different course. In this connection he has relied on the following decisions : Vaswani v. Union of India, 1983 (1) Cal LJ 8 para 59; The Board of Trustees of the Port of Bombay v. Dilip Kumar, AIR 1983 SC 109, para 10; Pett v. Greyhound Racing Association, 1968 (2) AER 545 (Lord Denning) at page 549 AIR 1983 SC 109. 46. The next contention of Mr. Mukherjee was that the charges found against him were different from the charges levelled against the petitioner. The charges were three fold. Firstly, that the petitioner falsely claimed an amount of ₹ 1,618.70 by showing the Railway journey.........in 1st class; secondly, that he never performed the journey in 1st class but travelled in 2nd class; and thirdly and finally, that he obtained payment of the said amount by submitting false money receipt and certificate of journey procured from M/s. Maharaja Travels. There was no finding regarding the third part of the charge. There was no reference to the Note sheet (Ex. 15) which was not ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Disciplinary Authority held that it was not proved that amount mentioned in Maharaja's money receipt included any other charge like sightseeing, food, boarding and lodging. 49. It was next submitted by Mr. Mukherjee that in imposing the punishment, the Director had not considered the propriety of the quantum of punishment in relation to the charges levelled and ultimately found. A stand was taken by the D.A. in the present case which was different from the stand taken by him as the appellate authority in the case of Samar Dey which was disposed of by him just a day before i.e. on 18th July, 1980. He has not also considered whether or not there was any evil or dishonest motive on the part of the petitioner. He has submitted that the Writ Court has jurisdiction to set aside the order of punishment if the same is, in its opinion, harsh and disproportionate. In this connection he has relied on the following decisions: R. v. Bareley, 1976 (3) All ER 452 at P 456, Bhagatram v. State of Himachal Pradesh, AIR 1983 SC 454 (para 15). 50. Next Mr. Mukherjee has submitted that misconduct as alleged depends upon the provisions of the Conduct Rules. It requires to be defined and/or s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules on his satisfaction. As Maharaja Travels had charged 1st class railway fare the claim may be restricted to such railway fare. The Controlling Officer expressly agreed. The note sheet does not find any reference either in the statement of allegation or in the list of documents. The charge sheet has been framed in deliberate disregard of the note sheet. Almost all the witnesses were called upon to prove the charges on the basis of their previous statements before the C.B.I. Officer who himself was called upon to depose on the basis of his report but neither the statement of the witnesses nor the report were included in the list of documents. Sri Samar Dey was the prosecution witness though he himself was an accused and he was called upon to dispose possibly with a prior arrangement. There could be no reason to make him a prosecution witness unless the design was to penalise the petitioner by any means. Sri S. Sarkar, Senior Accounts Officer, Sri T.N. Biswas, Accounts Officer and Sri P. Roychowdhury the then Joint Director were picked up as prosecution witnesses obviously on the basis of the note sheet and it was intended to make them depose only on the basis of the C.B.I. statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t petition. Regarding the question of punishment, he has submitted that this Court has no power to go into the question as to whether punishment was proportionate to the charges. Regarding I.J.I.R.A. he has stated that during the hearing of the Appeal, all the correspondence between the I.J.I.R.A. and the Director of the counsel has been disclosed. He has further submitted that it was no part of the duty of the I.O. to collect evidence in support of the defence. In any event, he has submitted that the documents, that had not been supplied were not relevant. He also referred to Sovachand Mulchand v. Collector of Central Exist Land Customs, 71 CWN 700 to which his attention was drawn by us. On the question of misconduct he has disputed the correctness of the contention of Mr. Mukherjee. DECISION Natural Justice--Scope and Meaning of 55. Before we go into the merits of the contentions raised before us, we shall firstly examine what is the meaning of the expression 'natural justice' particularly in the context of an enquiry which is quasi-judicial in nature like a disciplinary proceeding. What is meant by reasonable opportunity ? The next question is even if in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iples of natural justice were implied, there has been no violation of the principles of natural justice, in respect of the order passed in this case. In respect of an order involving adverse or penal consequences against an officer or an employee of Statutory Corporations like the State Bank of India there must be an investigation into the charge consistent with the requirements of the situation in accordance with the principles of natural justice as far as these were applicable to a particular situation. So whether a particular principle of natural justice has been violated or not has to be judged in the background of the nature of charges, the nature of the investigation conducted in the background of any statutory or relevant rules governing such enquiries. Here the infraction of the natural justice complained of was that he was not given an opportunity to rebut the materials gathered in his absence. As has been observed in on justice by JR. Lucas the principles of natural justice basically, if we may say so emanate from the actual phrase audi alteram partem which was first formulated by St. Augustine (De Duabus Animabus, XIV 22, J.P. Migne, PI. 42, 110) (para 29). 59. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... termediate Education U.P. v. Kumari China Srivastava, AIR 1970 SC 1039 it was observed as follows: Principles of natural justice are to some mind burdensome but this price--a small price indeed--has to be paid if we desire a society governed by the Rule of Law (para 9). 64. On the question as to whether it has to be shown that inspite of violation of principle of natural justice the officer charged has been prejudiced, the following decisions were cited by the parties. 65. In the case of Annamunthodo v. Oil Fields Worker's Trade Union, 1961 (3) AER 621 it was a decision of the Privy Council. Therein Lord Denning dealt with the suggestion of the counsel of the respondent Union that a man could not complain of a failure of natural justice unless he could show that he had been prejudiced by it. Lord Denning rejected this suggestion and held as follows: If a domestic tribunal fails to act in accordance with natural justice, the person affected by their decision can always seek redress in the Courts. It is prejudice to any man to be denied justice. He will not, of course, be entitled to damages if he suffered none. But he can always ask for the decision against him to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enowned case, Ridge v. Baldwin (ibid) it was contended before the House of Lords that since the appellant police officer had convicted himself out of his own mouth, a prior hearing to him by the Watch Committee could not have made any difference; but on the undeniable facts of that case, no reasonable body of men could have reinstated the appellant. This contention was rejected by the House of Lords for the reason that if the Watch Committee had given the police officer a prior hearing they would not have acted wrongly or unreasonable if they had in the exercise of their discretion decided to take a more lenient course than the one they had adopted (para 84). A similar argument was advanced in S.L. Kapoor v. Jagmohan (Civil Appeal No. 1516 of 1980) decided on 18-9-1980 (reported in AIR 1981 SC 136) to which decision two of us (Sarkaria and Chinnappa Reddy, JJ.) were parties. In negativing this argument, this Court, inter alia, quoted with approval the classical passage reproduced below, from the judgment of Megarry, J. in Johns Rees, (1970) 1 Ch. 345 at p. 402. As everybody who has anything to do with the law well-knows, the path of the law is strewn with examples of open ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prejudice to the employee facing the departmental enquiry depends on the facts of each case. The Supreme Court did not accept the submission urged on behalf of the respondent that there was no prejudice caused to the appellant in the facts and circumstances of that case. There the appellant had set out in his affidavit in detail as to how he has been prejudiced and the respondent had not been able to satisfy that no prejudice was occasioned to the appellant. 72. Next we shall examine some of the decisions regarding the object and scope of the disciplinary enquiry proceedings. In the case J of Jagadish Prasad Saxena v. State of Madhya Pradesh reported in AIR 1961 SC 1070 it was pointed out that it is of the utmost importance that in taking disciplinary action against a public servant a proper departmental enquiry must be held against him after supplying him with a charge sheet and he must be allowed a reasonable opportunity to meet the allegations contained in the charge sheet. The Supreme Court observed that High Court was in error in coming to the conclusion that no prejudice had been caused to the appellant as a result of the respondent's failure to hold an enquiry against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffered in the affidavit-in-opposition filed on behalf of the respondents, which was prepared upon legal advice and which are not corroborated or supported by, but in some cases contradict, such contemporaneous documents and records. We are recording the same in view of the fact that in respect of various matters, in the affidavits affirmed by the appellants herein, there are clear departures from what appears from such documents and records. In various cases, what is not in the records, is sought to be introduced by such affidavits for the first time. Affidavits on behalf of the Government or State must be on the basis of records. Natural Justice (Contd.) Non-supply of documents 76. One of the main grievances of the petitioner on the question of violation of the principles of natural justice is non-supply of documents to prepare his defence including cross-examination of the prosecution witnesses. The facts relating to the same has been set out by us in connection with the submissions made by Mr. Mukherjee in this context. To summarise, the petitioner at the first sitting of the enquiries wanted the following:-- (a) Certified copies of each document as per the list of docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which the respondent wanted were relevant and would have been of valuable assistance to him in making his defence and cross-examining the witnesses who gave evidence against him. The Supreme Court rejected the contention made on behalf of the appellant that as the enquiry officer was merely exercising his discretion it was not open to the Court to consider the propriety or the validity of his decision. The Supreme Court observed that it would be improper to contend that the infirmities on which the public officer relies, flows from the exercise of discretion vested in the enquiry officer. It was observe that the enquiry officer may have acted bona fide, but that does not mean that the discretionary orders passed by him are final and conclusive. In this context it was pointed out that the departmental enquiry should observe the rules of natural justice and that if it is fairly and properly conducted the decisions reached by the enquiry officer on the merits are not open to be challenged on the ground that the procedure followed was not exactly in accordance with that which is observed in the Courts of Law. 81. In the case of The State of West Bengal Ors. v. Sailendra Nath hos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced at the enquiry in support of the charges levelled against the Government servant. The synopsis does not satisfy the requirement of giving the Government servant a reasonable opportunity of showing cause, against the action proposed to be taken. 84. In the case of Union of India Ors. v. Indra Nath reported in 1978 (1) SLR 1 Cal certain documents which were not disclosed to the respondent at any stage and not even mentioned in the annexure to the charge sheet, were also proved through the witness. This was one of the grounds on which the Division Bench confirmed the judgment of the learned Single Judge whereby the Rule was made absolute. 85. In the case of The State of Uttar Pradesh v. Md. Sharif reported in AIR 1982 SC 937 after holding the departmental disciplinary enquiry against the Government servant, the department ultimately dismissed him from service. After the department's appeal and revision to the higher authority had failed, the plaintiff filed a suit challenging the dismissal order on the ground that it was illegal and void as no proper enquiry was held against him and no reasonable opportunity was given to him to defend himself against charges frame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that an appeal was preferred to Supreme Court by Special Leave. In this connection the Supreme Court held as follows:-- It is well-established that the delinquent has a right to cross-examine witnesses examined on behalf of the disciplinary authority and an opportunity to lead his own evidence and to present his side of the case. This is the minimum principle of natural justice which must inform the disciplinary proceeding. To be precise, the provisions contained in the 1965 Rules do make adequate provision for the same. The question is whether it has been substantially complied with. 87. In that case though the question of supply of documents did not directly come up but the right of cross-examination was confirmed and the object of supply of documents has already been spelled out by various decisions, inter alia, to enable the officer concerned to cross-examine the prosecution witness effectively. 88. In the case of Kashinath Dikshita v. Union of India reported in AIR 1986 SC 2118 the validity of the impugned order of dismissal was an issue. The question was whether the principle of natural justice was violated by the respondents by refusing to supply to the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for such refusal and not by merely stating that the same is irrelevant. It was held that the enquiry proceeding was vitiated in view of the refusal of the disciplinary authority and the Enquiry Officer to give access to the documents to the Officer concerned which were relevant to his defence. Natural justice (contd.)--Non supply of documents-Statements of the witnesses in C.B.I., enquiry. 90. So far as the statements of the witnesses in the preliminary C.B.I., enquiry against the petitioner are concerned, as already pointed out, these were not included in the list of documents which was sent along with the charge sheet. From time to time the petitioner has been asking for copies of the same giving reasons but that was being refused. Peculiarly enough in the enquiry proceedings not only that these statements were relied upon by the prosecution but they formed the basis of the prosecution case. These were practically the sole deposition in examination-in-chief of the witnesses concerned. In this case a peculiar procedure was followed. The charge sheet was submitted on 12th of May, 1977, the petitioner has been asking for these statements, the report of the C.B.I. Investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as held to be bad. The right of the charged officer to obtain such copies of statements was re-asserted by Supreme Court in State of U.P. v. Md. Shariff (ibid) and Kashinath Dikshita v. Union of India (ibid). In this connection reference may also be made to Union of India v. Tulsiram Patel (ibid). There is no question of any discretion of I.O. regarding production of such documents, State of Madhay Pradesh v. Chintamani (ibid). Further the charged officer is entitled to inspection of the evidence collected against him before the commencement of the examination of the witness, State of West Bengal v. Sailendra Nath Bose (ibid). Accordingly in our opinion non-supply of such document resulted in denial of reasonable opportunity to the petitioner to defend himself in the said enquiry. 91. In this connection Mr. Ginwaila relied on State of Mysore Ors. v. Shivabasappa Shivappa Makapur, AIR 1963 SC 375 where the Supreme Court held as follows: The sole point for determination in this appeal therefore is whether the procedure adopted by the Deputy Superintendent of Police in admitting the Statements of witnesses examined before Mr. Majumdar in evidence is opposed to the rules of na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer and be was given opportunity to cross-examine the witnesses in respect of the statements. In this connection Supreme Court followed the decision in State of Mysore v. Shivabasoppa (ibid). However-it is to be noticed that the Supreme Court pointed out that it was clear from the records of the case that the respondent had been permitted to go through the statements recorded from the witnesses by the Deputy Commissioner and prepare their ' notes; he was supplied with the English translation of those statements and that he was permitted to cross-examine the witnesses in respect of those statements. 93. The facts of the Aforesaid two decisions are different from the facts of the case before us. As a matter of fact in the last decision itself, the Supreme Court pointed out that what principles of natural justice should be applied in a particular case, depends on the facts and circumstances of that case. Natural Justice (Contd.)--Non-supply of documents--Investigation Report of C.B.I. 94. The petitioner also asked for preliminary investigation report of the C.B.I. in his case which was also refused. As already pointed out, in the case of the gentleman who conducted the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant with a copy of the report of the Vigilance Commissioner when the findings communicated to the appellant were those of the disciplinary authority and not of the Vigilance Commission. That the preliminary findings of the disciplinary authority happened to coincide with the views of the Vigilance Commission is neither here nor there (para 4). In our opinion the facts of this case are completely different from the facts of the case before us. Natural Justice (Contd)--Non-supply of documents (Contd.)--Records of proceedings Re:--Samar Dey: 96. The next question to be considered is whether the records of the enquiry proceedings against Samar Dey should have been made available to the petitioner. Such prayer for supply of the said documents was refused as we would be found, inter alia, from the minutes dated 10th January, 1979 by using a short sentence as follows:-- No other documents either copies or certified copies will be given. 97. It was not even said by the I.O. that he considered them to be irrelevant. No reason was given for such refusal. In this connection it may be pointed out that the Inquiring Officer in his letter dated 23rd March, 1979 while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amar Dey dated Nth September, 1977 is quoted here in below. 2. Board features of the case under enquiry and the Articles of Charges. 2.1. Shri Samar Dey, Office Assistant, Export Inspection Agency--Cal. (Jute Scheme) approached to the Joint Director (Tax) Export Inspection Council, Calcutta on 19.8.1975 for L.T.C. advance indicating his desire to go to Pahalgaon, Kashmir with his family members viz. self, mother, wife, sister and daughter. Accordingly be J made an application for advance with a Tour programme in support thereof, duly sanctioned by Shri P. Roy Chowdhury, Joint Director (Tax) dated 6.9.75, Shri Dey has drawn an advance of ₹ 1,980.00 for undertaking the journey. 2.2. From the documents it transpires that Shri Dey along with his family members left Sealdah on 15.10.1975 by Ex-Sealdah--Jammu Express and left Jammu on 28.10.1975 Ex-Jammu --Sealdah Express and submitted his claim for the purpose of Leave Travel Concession on 21.11.1975. 2.3. Alongwith the application for L.T.C. claim Shri Dey submitted the certificate for Leave Travel Concession, the Tour Diary of self and family members, the money receipt in Original No. 120 for ₹ 3,185 of M/s. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diary. Since he has paid such amount to M/s. Maharaja Travel against a genuine money receipt he could seek sanctioned of Controlling Officer relaxing the normal rules with a view to getting reimbursement to the maximum admissible extent. 8.3. In view of what has been stated in the note sheet of Accounts Section dated 25.11.1975 that they had taken into consideration before admitting the claim, the fact that such type of claims were being approved by other Govt. Offices viz. D.G.C.I. S. Calcutta, and the point was also considered by the Controlling Officer, there is little scope to doubt the integrity of Shri Samar Dey. We cannot but allow a benefit of doubt to Shri Samar Dey in regard to his statement to that effect that he had disclosed all details of journey to Shri P. Roy Chowdhury before and after the journey. 8.4. After the hearing and on going through all the documents mentioned in the list of documents provided to the Delinquent Officer, the undersigned has the opinion that the charges against Shri Samar Dey to the extent that he has enjoyed undue economic advantages by misdeclaration cannot be proved beyond reasonable doubt. 101. From the documents disclosed dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the claim using his discretion relaxing the norms. Submitted please. Sd/- P.K. Chatterjee Inquiry Officer Deputy Chief Executive ETA-Cal. 105. In Samar Dey's case after the Report, it was remitted back to the I.O. by an order dated 30th of September, 1977 which is set out here in below:-- Findings of the Disciplinary Authority on the Inquiry against Shri Samar Dey Office Assistant, Export. Inspection Agency, Calcutta (Jute Scheme) 106. The undersigned has studied the report of the Inquiry Officer, Shri P.K. Chatterjee, Deputy Chief Executive Export Inspection Agency, Calcutta. The following are his findings:-- (i) The Inquiry Officer has come to the conclusion that Shri Samar Dey should not have mentioned first class in his tour diary. It is also clear from various other documents that Shri Samar Dey did not travel in 1st class. (ii) There are strong grounds for inferring that even though the money receipt of M/s. Maharaja Travels indicates only the train fare and bus fare, Shri Samar Dey was provided with food, lodging and sightseeing facilities at no extra cost. If this is established, it would mean that Shri Samar Dey drew an amount which wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Samar Dey should pay back the amount drawn by him in excess of the second class fare. S. Lakshmikanthan Additional Director 111. It is apparent from the above that if the petitioner had been given access to the records of the enquiry proceedings against Samar Dey, including the report, subsequent noting of the Inquiry Officer therein, the order of remand and the final order of the disciplinary enquiry, it would have greatly helped the petitioner in preparation of his defence. It would have been open for him to say that similar finding should be arrived at by the I.O. in this case also. In this context it may be pointed out that the charge against him was that his conduct as alleged therein amounts to misconduct . He could have relied on the finding of the I.O. in that case that such conduct does not ordinarily amount to misconduct involving moral turpitude. He was deprived of the same. In any event he could have contended that he should be treated similarly. Accordingly, in our opinion non-supply of such document resulted in denial of reasonable opportunity to the petitioner. In this connection reference may be made to the decisions referred to earlier. Natural ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h conversation. I.O. wanted the Jt. Director to enlighten him on this subject. On 9th March, 1979 the Jt. Director of I.J.I.R.A. wrote a letter to I.O. wherein it was stated, inter alia, that IJIRA settle L.T.C. claims of staff according to Government Rules and that this practice was being followed from the year 1975. The letter also dealt with TA/DA and entitlements of the staff. Admittedly this was not brought to the notice of the petitioner. It appears that the I.O. had another telephonic conversation with the Jt. Director of I.J.I.R.A. This is recorded in the letter dated 22nd March, 1979 written by I.O. to the Jt. Director of I.J.I.R.A. Similarly, what was the necessity of such telephonic conversation and what transpired during the same, is not disclosed in the said letter or any other contemporaneous document. Further, inspite of the earlier clarification on behalf of the I.J.I.R.A. the I.O. again pursued the matter. It was stated as follows: As a matter of fact, what we precisely would like to know is whether your organisation is required to be governed by the Government of India Rules in settling the L.T.C., T.A.,. D.A. etc. claims of your staff. In other words whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 that L.T.C. claims of their staff were settled according to Government Rules. By his letter dated 27th March, 1979 the petitioner protested against such decision of the I.O. and pointed out that in the note sheet dated 25th November, 1975 by which his and another L.T.C. claims were prepared by the Accounts Department and sanctioned by the Controlling Officer, it was mentioned that I.J.I.R.A. was an organisation similar to this office and certain clarifications were obtained by the Accounts Department from I.J.I.R.A. and D.G.C.I. S. to get the guideline of settling L.T.C. claims for package tours like the petitioners. It was pointed out that the purpose of examining a witness in a Departmental enquiry was to bring out the truth and hence it was not necessary that a witness should be a Government employee or employee of some Department which follow the Government Rules. It was asserted that anybody who can throw some light on the case can be a witness. It was further pointed out that in the said enquiry so many witnesses were called by the prosecution and were allowed by the I.O. who are employees of non-Government organisation and even private individuals presumably to support t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vince us of his actual class and mode of travel. In cases where we have not been convinced by the documents produced, either at the time of their production or subsequently the claims have not been entertained and actions taken to obtain refunds. This also includes the type of package tour conducted by travel agents to which you have referred in your letter. 117. By a letter dated 26th May, 1979 the I.O. informed the petitioners as follows: if you feel that the eight defence witnesses and the relevant records available in the office of the I.J.I.R.A. Calcutta as mentioned in your letter dated 19th February, 1979 is examined and/or cross-examined in the enquiry will support this statement i.e. you and your family members travelled by 1st class by Sealdah-Jammu Express and back, I have no objection to request those, defence witnesses to give evidence in the enquiry and also request the office of the I.J.I.R.A., Calcutta, to produce the relevant records available with them which you may like to produce in the enquiry. On hearing from you necessary arrangements will be made accordingly. You are requested kindly to confirm this at the earliest but not later than 1st June, 197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I.J.I.R.A. as requested by the petitioner in his letter dated 30th May, 1979. 120. Then comes an interesting stage. From the minutes of Enquiry held on 19th June, 1979 it appears as follows: Till 11.15 A.M. none of the witnesses requested from I.I.T.R.A. did present themselves for deposition. It is therefore decided that arrangements will be made to hold the proceedings again on 22.6.1979 at 11 A.M. In the meantime arrangements will be made to send one registered letter and one letter by messenger today itself to ensure that the letter reaches I.J.I.R.A. today itself officials requesting them to send the concerned for the hearing on Friday the 22.6.1979. The hearing is adjourned on 22.6.1979. 121. After the proceedings were over today a letter No. 1055/79-80 dated 19th June, 1979 addressed to Shri D.P. Bhattacharya Joint Director Enquiry Officer, Export Inspection Council has been received from I.J.I.R.A. Calcutta in this regard, which reads as follows: Sub : Departmental Enquiry at EIC, Calcutta. With reference to your letter Nos. EIC/TX/Vig./AD/1662 1665 dated 11th June, 1979 we have to inform you that the contents of both the letters have been carefully not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner. Even when the letter of 9th of March, 1979 was received by him from I J.I.R.A., which clearly stated that such L.T.C. claims were paid according to the Government Rules, this was not disclosed to the petitioner. This would have certainly helped the petitioner. The petitioner has pointed out from time to time the relevance of the same particularly having regard to the note sheet (Ext. 15) referred to above. He might have shown that similar procedure had been followed in other cases also and such sanction in his favour has been made following the practice of I.J.I.R.A. In any event he could have stated that in view of the same whatever he has done, it does not amount to misconduct or that there is no question of lack of absolute integrity or conduct unbecoming of a government servant . The I.O. had deliberately concealed these materials from the petitioner. Further the I.O. made the I.J.I.R.A. to charge their earlier stand. Though at one stage they were not unwilling to furnish informations but ultimately after final interview by the Investigating Officer, they took the final stand as stated above. In our opinion, the I.O. has acted improperly, unfairly and was biased. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Enquiring Officer directed one of the witnesses viz. Sri S. Sengupta of M/s. Maharaja Travel to furnish the following information and records:--(1) Whether he had any rate for package tour from Calcutta to Kashmir other than the two rates mentioned in his statement i.e. ₹ 700/- per adult and ₹ 600/- per adult, (2) Whether he received any amount from our party in addition to the total amount of the money receipts bearing Nos. 120, 121 and 122, (3) Whether he entered in his cash book as refund of the amount stated to have been refunded to Sri K. Mitra at Kashmir, (4) Current Money Receipt Book and relevant cash book of M/s. Maharaja Travels. This is also repeated in petitioner's letter to I.O. dated 27th of March, 1979. This is also not denied or disputed. By his letter dated 19th February, 1979 addressed to the Inquiry Officer, the petitioner requested him to furnish the documents specified therein including the relevant Cash Book and current Book of Maharaja Travels. It may be pointed out that earlier during the sitting held on 10th January, 1979 the petitioner had asked that various documents will be required for examination, for taking extract and making copies. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... others including Samar Dey. He had applied for L.T.C. on the basis of such package tour and particularly the money receipt of Maharaja Travels. One of the grievances of the petitioner was that he has been misled by Maharaja Travels. According to the petitioner, the substantial corroboration of the same in the enquiry regarding Samar Dey was that there was identical money receipts issued by Maharaja Travels to others. The charge against the petitioner is that he had procured the certificate from Maharaja Travels. If such receipt had been granted by Maharaja Travels in normal course as they had done in other cases, this would not amount to procurement or misconduct as alleged in the charge sheet. Under these circumstances, in our opinion, such information or document was necessary far the purpose of defence of the petitioner and the I.O. not having taken appropriate steps for the purpose of production of the same, has acted in violation of the principles of natural justice. No reasonable opportunity was afforded to the petitioner. Natural Justice (Contd.) -- Refusal to allow cross-examination/examination of P. Roy Choudhury: 126. The next aspect on the question of viola ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd cross-examined on 6th of February, 1979. On the very next day, such request was made by the petitioner on the ground that in reply to the question made by P.O. during re-examination (though objected to by the defence counsel) it was observed that the answer given by the witness was quite contradictory to the replies made by him during the cross-examination by the defence counsel on 6th of February, 1979. This prayer of petitioner was not acceded to by the Investigating Officer: In fact, no reply was even given to the same irrespective of the fact that such request was made on the very next date. Sarkar was an officer of the department itself. There is no question of his evidence not being necessary or he not being available. Under the circumstances we are of the opinion that not according the prayer of the petitioner prejudiced the defence case of the petitioner. In our opinion, such action and conduct on the part of the I.O. was in violation of principle of natural justice. Violation of Statutory Rules: 129. Another ground of attack against be conduct of enquiry by the I.O. was that by a letter dated 17th February, 1979 the petitioner was asked to furnish the name, of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9; examinations were over, the next step was that the charged officer shall be called upon to state his defence. A copy of the statement of defence if it is in writing is to be given to the Presenting Officer. Only thereafter, that the evidence on behalf of the charged officer was to be produced. Thereafter, the I.O. may, after the close of the case of the employee and shall, if the agency employee has not examined himself generally, question on the circumstances appearing against him in the evidence for the purpose of enabling the Agency employee to explain any circumstances appearing in the evidence against him. Sub-rule (19) of Rule 11 it provides that after the completion of the production of evidence, the inquiring authority may hear the Presenting Officer and the Agency employee concerned or permit them to file written briefs of their respective case. In this case without complying with the provisions of sub-rules (16), (17), (18) and (19) of Rule 11 the Presenting Officer was directed to submit his written brief on the 7th March 1979 wrongly declaring that the hearing of the case was concluded and without complying with the condition precedent to the exercise of proper under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... another aspect of this matter. In this case from time to time the Inquiry Officer has been contacting the disciplinary authority. We are unable to accept the contention of Mr. Ginwalla that because the Inquiring Officer has been appointed by the disciplinary authority, the disciplinary authority was entitled to give directions to the Inquiring Officer from, time to time as to the manner in which be will conduct the enquiry or that the I.O. is entitled to seek such 'guidance from the D.A. from time to time as to the manner in which he is to conduct the enquiry. We reject such contention an authority entrusted with a discretion, must not, in the purported exercise of its discretion, act under the dictation of another body or person. De Smith's Judicial Review of Administration Action, 4th Ed. page 309. This is also not supported by the Rules. At the best, the I.O. may keep the disciplinary authority aware of the proceeding before time e.g. by sending the minutes of the hearing before but whatever decision has to be taken regarding the manner of conducting the enquiry including giving any direction of taking any direction regarding any prayer of charged officer, has to be tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the D.A. He has referred to the question No. 4 in the said enquiry whereby the petitioner has asked for a number of documents as referred to above. He also referred to reply to 4(b) and 4(f). The Inquiring Officer sought for the guidance of the Director in this matter. By another letter dated 27th December, 1977 he informed the Disciplinary Authority that be had received a letter from the C.B.I. requesting him to intimate to their office about the development of the hearing of the case. He asked for clarification on the matter. By a letter dated 6th January, 1978 the Director informed the I.O. that it would not be proper to keep the office of C.B.I., posted with the development of the hearing of the case. He was informed that as Inquiry Officer he was under obligation the conduct enquiry independently and also to ensure that the rules of natural justice are duly complied with. It was further pointed out that all opportunities should be given to the officers concerned to defend their cases adequately. By another letter dated 30th January, 1978 Mr. Majumdar informed the I.O. to conduct enquiry in accordance with the rules independently. Reference was also made to another letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e acceded to since similar request for the delinquent officers had been accorded to. He also asked for advising him as to whether Shri Mitra and Shri Dastidar should be informed of granting permission to Shri B.D. Roy. He stated that he will be grateful for the permission of D.A. in this matter. It was further stated that necessary arrangements for the sitting of the hearing can be arranged only after they received the papers from the C.B.I. through Shri B.D. Roy Presenting Officer. On 6th of July, 1978 Mr. Majumdar replied to above stating that copies of documents may be supplied to those officers including showing the originals to them in the course of enquiry. He indicated that he had no objection to the suggestion of I.O. to nominate Shri A.K. Basu, Deputy Director EIA, Calcutta to assist Shri B.D. Roy Deputy Director EIA, Calcutta as requested by Shri Roy. He was directed to inform this to Shri Mitra and Shri Dastidar. The I.O. again wrote a letter dated 9th of August, 1978 to D.A. that in view of D.A.'s letter dated 6th July 1978 he was advising Shri B.D. Roy Deputy Director to obtain the relevant documents from the office of Central Bureau of Investigation, Calcutta I.O. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 27th of March, 1979 to the I.O. This was with reference to I.O.'s letter dated 23rd of March, 1979 written in reply to the D.A.'s letter dated 19th of February, 1979 which was delivered to the petitioner on the late afternoon of 23rd of March, 1979. The petitioner stated that he was very much surprised to note the decision of I.O. not to call the officials, of I.J.I.R.A. as defence witnesses on the presumption that I.J.I.R.A. was not a Government body and hence the documents of depositions of officers of a non-governmental organisation like I.J.I.R.A. will be of no use so far as this enquiry is concerned. In this context reference was made to the note sheet dated 25th of November, 1975 by which the L.T.C. claims of petitioner was prepared by the Accounts Department and sanctioned by the Controlling Officer wherein it was mentioned that I.J.I.R.A. was an organisation similar to petitioners and certain clarifications were obtained by Accounts Department from I.J.I.R.A. and D.G.C.I. S. to get the guidelines for settling L.T.C. claims for package tours like petitioners. It was stated that the purpose of examining a witness in a departmental enquiry is to bring out the trut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requested to supply the petitioner with those information so as to enable him to prepare written defence statement. It was further stated that the enquiry had not yet been concluded and after examination of the defence witnesses as mentioned earlier and receiving the above mentioned information's and documents the petitioner shall be in a position to prepare his written defence statement. In the aforesaid circumstances the petitioner prayed that the time for filing his written statement of defence may be extended. It was stated that he would submit written statement of defence after getting reply of the said letter. By a letter dated 17th April, 1979, in connection with records of I.J.I.R.A. and Maharaja Travels, Mr. Majumdar informed the I.O. that while it is on record that I.J.I.R.A. vide their letter dated 22nd of March, 1979 informed that they were not obligated to settle L.T.C., T.A.D.A. etc. claims of their staff exactly as per Government rules yet it is felt that it would be useful to ascertain from the offices of the I.J.I.R.A. as well as D G.O.I. S. the procedure adopted by these officers for settling L.T.C. claims for package tours in respect of their employees who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of proceedings before him. The objections raised have not been properly dealt with by him. It may be pointed out that after a cursory reference to the evidence before him, in an one line sentence he gave his finding. Only after coming to such finding he condescended to deal with the defence allegations . When already he had made up his mind then there is no use of dealing with the defence allegations . No actual bias need be proved in such a case. A real likelihood of bias is sufficient, Director Eastern Railway Ors. v. S.N. Chatterjee . Ors., 1981 (1) Cal LJ 305 (D.B.) In our opinion there was not only a likelihood but actual bias in the present case on the part of the Inquiry Officer. Accordingly in our opinion this was not a fair enquiry but a sham enquiry. Natural justice--Statutory Rules-violation of--effect. 138. We have considered each heading of complaints on the question of violation of principles of natural justice and the statutory Rules. We have considered the same in details individually and separately. Now let us consider the same as a whole. We do not intend to summarise the same but we shall just refer to some aspects of the same. Statement of witn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the same decision would be arrived at in the absence of the departure from the essential principles of natural justice. As Lord Denning pointed out in the Privy Council decision of Annamunthodo v. Oil Field, Workers' Trade Union, (1961) 3 All ER 621 if there is denial of natural justice that itself is prejudice. As so clearly pointed out by Supreme Court in the case of S.L. Kaput v. Jagmohan, AIR 1981 SC 136 the question is not whether any difference would have been met had there been no such violation. The non-observance itself is prejudice and there is no necessity of independent proof of prejudice if there is such violation. The principles laid down in Ridge v. Baldwin (ibid) and S.L. Kapoor v. Jagmohan (ibid) were specifically approved by the subsequent decisions of the Supreme Court in Swadeshi Cotton Mills v. Union of India (ibid) and Olga Tellis v. Bombay Municipal Corporation. The decision of Supreme Court in K.L. Tripathi v. State Bank of India (ibid) is the sole decision in support of the contention urged to the contrary. That decision was given in the fact of that case. It was held therein that absence of cross-examination did not cause any prejudice. No general l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is quite clear that there was no direction given by the learned trial Judge in the first writ petition, however a liberty was given to that effect, that is, it was left to the discretion of the D.A. However such a discretion was to be properly exercised. What he did will be borne out from the relevant note sheet of the Deputy Director dated 17th July, 1980 and his own note sheet dated 19th July, 1980 which are set out here in below: Submitted below (Flag A) is a letter dated 15th July, 1980 from the Joint Director (A A) E.I.C. Calcutta regarding the writ petitions filed by Shri Amalendu Dastidar and Kalyan Kr. Mitra in the Hon'ble Calcutta High Court. Calcutta Office has forwarded a copy of the judgment of the Hon'ble Calcutta High Court in the above two writ petitions as well as the advice of................in the above matter. According to............there is no direction upon the disciplinary authority that he shall have to remit the matter to the Inquiry Officer for further inquiry. The disciplinary authority if he so thinks may pass a final order on the basis of the enquiry proceedings already held and the report already submitted by way of awarding punishme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uiry be made by appointing another Inquiry officer under the rules was opposed by the petitioners in the Hon'ble High Court on the round that it would destroy the evidences on record in the inquiry which were in favour of these two Officers, the inquiry need not be remitted back to the Inquiry Officer for further inquiry and report. Accordingly, I have decided to pass a final order on the basis of the records of the inquiry, evidences on record witnesses examined, submissions of the Presenting Officer as well as the Charged Officers, inquiry report and other relevant factors. Orders to be conveyed to these two charged Officers have been been dictated separately for stenciling. (D.C. Majumdar) Director (Insp. QC) 19.7.1980 144. In our opinion, the reasons given by him for not remanding the matter are extraneous and it was not a proper ground for refusing to remand this matter. He has first taken into consideration the fact that his decision to examine Sarkar and Biswas was opposed by the petitioner on the allegation that it was being done for the purpose of filling up the gap. This he should not have taken into consideration because subsequently the first writ p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said Association incurred the displeasure of Sri D.C. Mazumdar, Respondent No. 4 herein, who was previously holding the post of Senior Additional Director as they pointed out certain illegality on the part of the said Officer in the in the matter of Drawing House Building advances; the said Sri D.C. Mazumdar, who was the Senior Officer of the Accounts Department took House Building Advance loan twice in violation of the Rules; it may be mentioned that after it was pointed out by the Association the said Sri D.C. Mazumdar had to refund the House Building Loan taken by him in violation of the Rules. Since then your petitioner and other office-bearers of the Association were not in good book of said Sri Mazumdar. Said Sri D.C. Mazumdar was very much annoyed with your petitioner and other office-bearers of the Association as he had to refund the House Building Advance loans which he drew in violation of the Rules. The petitioner further states that as Senior Additional Director the said Sri D.C. Mazumdar wanted to shift the Office of the Secretariat from Calcutta to Dalhi but that was opposed by the Association and such shifting was not done, said Sri D.C. Mazumdar became very much d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, has been recognised by the Export Inspection Council on 11th October, 1979. I further say that according to my information and knowledge, the allegations now levelled by the petitioner in paragraph 14 of his writ petition were never brought to my notice or the notice of my superior authorities. I came to know of the said allegations for the first time through the writ petition dated 6th November, 1979 filed by the petitioner before this Hon'ble Court I humbly before this Hon'ble Court that such reckless, indecent and sinister imputations levelled against me are smeared with bad faith and polluted by oblique ends. I further submit that the allegations levelled against me by the petitioner have been designed as an afterthought to malign me personally who is the disciplinary authority for the petitioner with a view to making out a case attracting alleged biasness and lack of bona fide only to mislead and prejudice this Hon'ble Court. I crave leave to refer to and rely on the records relating to drawal of my House Building Advance at the time of hearing, if necessary, I say that the very fact that the petitioner was promoted to the post of Assistant Director under my or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner and that of Samar Dey was similar. By this letter dated 4th July, 1979 the Director informed that the appeal would be considered after submission of the report of inquiry against the petitioner. However as pointed out hereinabove, he disposed of the appeal as the appellate authority of Samar Dey, one day before passing the order of punishment on the petitioner as his disciplinary authority. On 1st September, 1978, the petitioner asked for stay of the enquiry till the appeal of Samar Dey was disposed of. By his letter dated 25th October, 1978 the Disciplinary Authority turned down this prayer. In this context we may point out that in the order itself no reason has been given as to why such punishment has been imposed. A case is sought to be made out in the affidavit filed in the writ petition to the effect that the petitioner was a class 'A' officer whereas Samar Dey was a class 'C' officer. As no contemporaneous record or document could be produced before us to support the same such explanation is not acceptable to us. It is not genuine. It is merely an afterthought. The situation was similar. There is no reason why in the petitioner's case such a hars ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of punishment, his career with the Government has come to an end. This is one of the matter which should have been taken into consideration by the proper authority. Reference may be made in this connection to H.C. Sarin v. Union of India Ors., AIR 1976 SC 1686 where the enquiry was being conducted in accordance with Rule 1730 of the Indian Railway Establishment Code, Volume I. In the main body of the rule, where a procedure for holdings departmental enquiry has been provided for, three is nothing said in relation to the engagement of a lawyer. Certain notes were appended to the rule. They seem to have been appended not on the basis of the executive instructions but as part of the rule itself. One such note was appended as note 4. Which subsequently became note 3, on September 25, 1956 by the President of India who had framed Rule 1730. This note reads as follows: In a departmental enquiry the accused railway officer may if he so desires be accompanied by another railway officer provided that the officer so nominated as the defence counsel is approved by the competent authority to act as such, and provided also that the person so nominated shall not be a professional law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench of this Court to which one of us (Krishna Iyer, J.) is a party, in these terms:-- The notes are promulgated with the rules in exercise of legislative power. The notes are made contemporaneously with the rules. The function of the notes is to provide procedure and to control discretion. The real purpose of the notes is that when rules are silent the note will fill up gaps (para 23). The appellant was not entitled as a matter of right to have the services of any railway officer stationed in India to assist him in the conduct of his defence. He wanted an officer from India specially Shri Bhalla. It was not possible to make available the services of an officer from India. The appellant was given a wide field of choice either to choose any railway official stationed in London or in the continent or some other personnel of the Indian High Commission in London. The accusations made against the appellant were not such that required any expert or special skill. The question was a simple one whether he had taken money from Cottwald in discharge of his official duties. Having appreciated all the facts and circumstances of the case we have come to the conclusion that no principl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasonable opportunity to defend himself (para 17). 155. The other aspect of the matter is that this case proceeded on the basis of the report of the C.B.I. and as a result of the investigation by the C.B.I. Most of the persons who gave evidence before the C.B.I. were examined in the enquiry and the statements made in such investigation were produced before the persons concerned in the enquiry and practically this was the only examination-in-chief. These statements have been prepared by C.B.I. officers who are legally trained persons. Further we have discussed about the conduct of the Inquiry by the I.O. which was done in a manner which was highly improper and irregular resulting in violation of the principles of natural justice. Reference may be made in this connection to Board of Trustees, Port of Bombay v. Dilip Kumar, AIR 1983 SC 109. Charges different from the charges levelled 156. So far as the contentions of Mr. Mukherjee that the charges found are different from the charges levelled, we ought to point out that in the I.O.'s report there is no finding regarding the third part of the charge i.e. that the petitioner obtained payment of ₹ 1618.70 as against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority was prima facie satisfied that a case for enquiry had been made out against the charged officer. 158. The decision in K.L. Tripathi v. State Bank of India Ors., AIR 1984 SC 273 at page 278 was relied on by Mr. Ginwalla. The language used in the concerned charge sheet was very strong but as no argument was advanced and further there was no finding in respect of the same; we do not think it necessary to deal with the same in detail. 159. In the case of Nripendra Nath Tarafdar v. Union of India Ors. reported in (1981) Labour and Industrial cases 1268 there was an enquiry against the petitioner. Thereafter another show cause notice was issued by the punishing authority to the petitioner, inter alia, asking the petitioner to show cause as to why he should not be dismissed from service. The order of the punishing authority was annexed to the said memorandum asking the petitioner to show cause against the proposed dismissal from service. It appears from the order of the said punishing authority that the said authority after setting out the charges framed against the petitioner had observed to the following effect: The I.O. found him guilty of the charges. I also ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being in violation of principles of natural justice. On appeal the Division Bench held that the two words 'found' and 'giving rise to the presumption' were not enough by themselves to make the charge in this case in limine bad and void on the ground of violation of the principles of natural justice. In this context if was pointed out as follows:-- The proper way of the interpreting charge sheet in disciplinary proceedings is not to be technically and legalistically strict as in the case of a charge sheet in criminal proceedings. It should be fairly and reasonably interpreted in a common sense way to see that there is a plain statement of the thing complained of as wrong so that the party complained against, may be put on his defence to meet the allegation. 161. In the case of Sidheswar Banerjee v. Divisional Superintendent, South Eastern Railway Ors., 1976 Calcutta High Court Notes 9 (Notes) it was, Inter alia, contended that the form of the charges and the way they were expressed indicated formation of prior opinion that the appellant had committed the offence. The charges were under Rules 3(i) 3(ii) and (iii) of the Conduct Rules of 1966 (similar to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disproportionate to the known sources of his income to the extent of ₹ 10,061.02 in 1965, ₹ 2,203.46 in 1966 and ₹ 8,252.80 in 1967 and that his conduct as such is unbecoming of a Govt. servant. Charge II. : That the said Sunil Kumar Mukherjee, while functioning as above permitted his wife Sm. Bharati Mukherjee to purchase a car on 19.7.1965 and sell the same on 9.1.1967 without obtaining prior permission from his appointing authority and this violated Clause (b) of Sub-rule (2) of Rule 15 of the West Bengal Govt. servants Conduct Rules 1959. One of the contentions urged in that case was that the charge sheet shows that authority concerned had a close mind. It was held that the charges as levelled against the petitioner should not be taken as finding of the disciplinary authority regarding the guilt of the petitioner but those are mere imputation or allegation made against the petitioner which is required to be met. This case went on appeal (1977 CHN 1014 at 1020 paras 940) and it was held that it is clear that the officer concerned had a closed mind even at the stage of framing the charge. 163. In the case of Sudhir Chandra Chakraborty v. State of Wes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of you appointing authority. And where as for the aforesaid reasons you are prima facie unsuitable to be retained in service of the State Government. And whereas on the grounds set forth above it is proposed to impose upon you......... the penalty of dismissal from the Civil Service of the State Government. Now, therefore,......Governor is pleased to require you to put in within 15 days from the date of the receipt of this order or within such extended period as may be allowed before Sri C.C. Chakraborty, West Bengal, Higher Judicial Service (Retd.) Special Officer Chief Minister's Secretariat and Commissioner for Departmental Enquiries under the Vigilance Commission, West Bengal who have been appointed as the Enquiring Officer for holding enquiry into the aforesaid charges against you, a written statement of your defence and to make any representation that you may desire to make stating whether you desire to be heard in person or to call any witness or to produce any document in your defence, and showing cause why the penalty of dismissal from the Civil Services (Classification, Control and Appeal) Rules, as may be deem fit should not be imposed upon you. 164. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rises only after charges are established. The position however will be different when in the charge sheet the disciplinary authority purposes the penalty of dismissal or other major penalties which may indicate the closed mind of the disciplinary authority and his prejudice against the delinquent. Expressions of such proposals for punishments in the charge sheet before the start of the enquiry may cause reasonable apprehension in the mind of the delinquent that he can has been prejudged which will vitiate enquiry. The cases referred to therein were as follows. Sudhir Chandra Chakraborty v. State of West Bengal, 1976 (1) Cal LJ 485, Krishna Chandra Tandon v. Union of India, AIR 1974 SC 1489 : AIR 1970 AP 114 at 117, Sunil Kumar Mukherjee's case, 1976 (2) Cal LJ 529, Bimal Kanti Mukherji's case, 1980 (2) CHN 35. 166. In our opinion the mere use of certain expressions in the charge sheet in the present case, by itself, is not sufficient to enable us to come to the conclusion that it disclosed a closed mind and that the disciplinary authority issuing the charge sheet was biased. Whether the disciplinary authority is biased or not depends on the facts and circumstances of eac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Mere use of some expression in the charge sheet by itself is not sufficient to hold that the Authority directing such enquiry was biased. Use of the expression prima facie in our opinion cannot be held to be bad if it is not joined with any other expression which clearly shows a closed mind. We make it clear that it is not our opinion that in no case a charge sheet can disclose a closed mind but we are of the opinion that mere use of certain expressions e.g. prima facie particularly when there was such a preliminary enquiry cannot disclose a closed mind. We are of the opinion that from the charge sheet in the present it cannot be held that the disciplinary authority had a closed mind at that stage. We need not refer to the submission of Mr. Ginwalla regarding the subsequent conduct of the disciplinary authority bias cancellation of the order of suspension of the petitioner and the charge of the personnel of the Inquiring Officer because these were events subsequent to the issue of charge sheet and it has nothing to do with question of the state of mind of the Disciplinary Authority at the time of issuing of the charge sheet i.e. whether he had a closed mind in issuing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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