JUDGMENT 1. The petitioner used to serve as a Treasure Guard in the Eastern Railway. While the petitioner was posted at the Bandel Pay Office, a fact finding committee was constituted composed of (i) A.K. Roy Choudhuri, Divisional Accounts Officer, (ii) Mani Chakraborty, Divisional Personnel Officer, and (iii) H.N. Chatterjee, Divisional Engineer, to enquire into a suspected case of misappropriation of railway money in Bandel Pay Office. It is stated that the fact finding committee found a prima facie case against the petitioner. On the basis of the report made by the fact finding committee, the Chief Cashier, Eastern Railway, served a notice on the petitioner, dated August 3, 1959, charging him as here in below stated : - "you are an accomplice and helper of clerk under P.W.I, B. D. C. on spurious pay sheets prepared in the office of P.W.I, B.D.C. for which you received share of misappropriated money from Ramendu Chatterjee. II. You habitually handle Government cash independent of the pay clerk without authority. III. You misappropriated either the whole or a part of a sum of Rs. 2,842/- from the amount placed at the disposal of pay of Rs. 2,842/-from the amount placed at the disposal of pay clerk Bandel by the Divisional Cashier, Howrah, for making payment to the staff of P. W. I./ Bandel in the month of June, 1959. " Similar charge sheets were also issued against five other employees, but I am not concerned with that in the present Rule. The petitioner submitted a written explanation denying the charges preferred against him. 2. Thereafter, there was an Enquiry Committee constituted, composed of the self same persons with whom the fact finding committee had been constituted and A. K. Roy Choudhury, the Divisional Accounts Officer, was made the Chairman of the Enquiry Committee. After some witnesses had been examined by this enquiry committee. A. K. Roy Choudhury was transferred elsewhere and the vacancy thus caused in the Enquiry Committee was filled up by appointing R. N. Vakil, the successor in office to A. K. Roy Choudhury. The Enquiry Committee submitted a report, by which the petitioner was found guilty of all the three charges abovementioned. A. K. Roy Choudhury was transferred elsewhere and the vacancy thus caused in the Enquiry Committee was filled up by appointing R. N. Vakil, the successor in office to A. K. Roy Choudhury. The Enquiry Committee submitted a report, by which the petitioner was found guilty of all the three charges abovementioned. Thereupon, the Chief Accounts Officer, Eastern Railway, issued another notice, dated February 1, 1961 to the petitioner, inter alia stating that he was of the opinion that the charges had been proved against the petitioner and calling upon the petitioner to show cause why he should not be dismissed from service. The petitioner showed cause why he should not be dismissed from service. The petitioner showed cause against the proposed penalty and asked for a further personal hearing. No such hearing was given to the petitioner but by an order dated March 20,1961, the petitioner was dismissed from service. Aggrieved by the order of dismissal the petitioner preferred an appeal before the General Manager, Eastern Railway, but that appeal also failed. It is in these circumstances that the petitioner moved this Court, under Article 226 of the Constitution, praying for a writ in the nature of Certiorari for the quashing of the order of his dismissal, as affirmed in appeal and also for a writ in the nature of Mandamus on the respondents directing them to refrain from giving effect to the order and obtained this Rule. Mr. Anil Kumar Sinha, learned Advocate for the petitioner argued the following points in support of the Rule. He contended, in the first place, that the petitioner had been appointed by the Chief Accounts Officer, as such the Chief Cashier, who was subordinate in rank to the Chief Accounts Officer, could not issue the charge sheet, as done in this case. He contended, in the next place, that A. K. Roy Choudhury had taken an important part in the fact finding committee, which found the petitioner guilty of the charges and he should not have been made the Chairman of the Enquiry Committee on the ground that he was likely to have a. foresworn mind against the petitioner. The same contention was leveled against the other members of the committee. In the third place, Mr. The same contention was leveled against the other members of the committee. In the third place, Mr. Sinha contended that the petitioner had asked for production of one S. N. Chatterjee, a railway employee for proving his defence and although the said S. N. Choudhury was under the control of the railway authorities, he was not produced at the enquiry for being examined by the petitioner. Mr. Sinha also argued that so as to cover up the irregularities and illegalities committed during the enquiry, the petitioner was compelled to sign a certificate therein stating that he had been given proper facilities at the enquiry and had little to complain. It was lastly contended that the enquiry was vitiated by gross irregularity in that the committee was reconstituted during the enquiry and Mr. Vakil had no opportunity of hearing the evidence and observing the demeanor of the witnesses, who had been examined at a time when he was not a member of the committee. 3. The first point argued by Mr. Sinha is not a point of substance. Mr. Sinha frankly conceded that he had no material to show that the petitioner had been appointed by the Chief Accounts Officer. It appears from paragraph 3 of the affidavit-in-opposition that the petitioner had been appointed by the Treasurer of the then East Indian Railway and the post of Treasurer stood re-designated as the post of Chief Cashier under the Eastern Railway. I find no reason to emphasise upon the first grievance made on behalf of the petitioner. 4. The second branch of the argument advanced on behalf of the petitioner must also fail. The members of the fact finding committee and A. K. Roy Choudhury in particular might have reported a prima facie case against the petitioner. But from that only I cannot come to the conclusion that they had a closed mind so far as the petitioner was concerned and while sitting as members of the Enquiry Committee were determined not to be swayed by evidence but cling to their prima facie opinion as expressed in the fact finding report. The charge of bias must not be too readily assumed but must be proved by the person alleging the same. The charge of bias must not be too readily assumed but must be proved by the person alleging the same. On the allegations contained in the petition I am not prepared to hold that the members of the Enquiry committee and A. K. Roy Choudhuri in particular were either biased or prejudiced against the petitioner and for that reason their report must not be accepted. The grievance made by the petitioner that S. N. Chatterjee, a railway employee whom the petitioner had cited as a witness on his behalf, was not produced is also unsubstantial. In the affidavit-in-opposition it is stated that there was nothing to show that S. N. Chatterjee had at all been cited as a witness and Mr. Sinha, Learned Advocate for the petitioner, could not produce any material on which this grievance could possibly be founded. I am, therefore, unable to sustain this branch of the argument on behalf of the petitioner. 5. Now take up for consideration the remaining two arguments advanced on behalf of the petitioner. It is an admitted position that after the enquiry against the petitioner had proceeded to some extent and after some witnesses had been examined, A. K. Roy Choudhury, Chairman of the Enquiry Committee, stood transferred and his successor Mr. Vakil was appointed to fill in the vacancy. The remaining part of the enquiry took place before the Enquiry Committee as re-constituted. The position, therefore, is that the new Chairman Mr. Vakil had not the opportunity of hearing the evidence given by some of the witnesses against the petitioner or observing their demeanour. When the Enquiry Committee submitted the report, at least one of the members formed his opinion on evidence which he only read but had no opportunity of hearing. When an Enquiring Committee has the duty to come to a conclusion as to the guilt of a delinquent upon an evaluation or assessment of evidence, then it is absolutely necessary that the members of the committee should hear the evidence of the witnesses. It is impossible for them to evaluate the evidence of the witnesses taken on proxy or in their absence, because the salient features in such proceeding is to observe the demeanour of the witnesses. This was the view which was expressed by this Court in (1) Controller of Insurance v. H. C. Das (A. I. R. 1957 Cal. It is impossible for them to evaluate the evidence of the witnesses taken on proxy or in their absence, because the salient features in such proceeding is to observe the demeanour of the witnesses. This was the view which was expressed by this Court in (1) Controller of Insurance v. H. C. Das (A. I. R. 1957 Cal. 387), (2) Amulya Kumar v. L. M. Bakshi (62 C. W. N. 690. The same view was also expressed by the Supreme Court in (3) Gullapalli Nageswara Rao and Ors. v. Andhra Pradesh State Road Transport Corporation and another (A. I. R. 1959 S. C. 308. 6. Mr. B. N. Bose, learned Advocate for the respondents Nos. 1 and 2, however, contended that the abovementioned cases were distinguishable. He emphasised upon rule 1707 (e) of the Indian Railway Establishment Code, Volume I, which reads as follows:- "the result of the departmental enquiry, with the recommendation of the officer or the committee holding the enquiry, shall be placed before the officer competent under the rules in this section to pass an order of dismissal, who shall thereupon pass such order as he may think fit. " Mr. Bose argued that the officer competent to pass the order of dismissal has to proceed on the basis of the recorded evidence in any event, and that it mattered little for him whether the evidence had been record by the same committee or a committee differently constituted at different stages of enquiry. In my opinion, this contention of Mr. Bose is not sound. The disciplinary authority has to proceed on the basis of the enquiry report and the records of the proceeding. He may or may not agree with the enquiry report. But when he agrees, he must have that faith in the enquiry report that the evidence relied upon or disbelieved by the enquiry committee had been heard by the members and they had the opportunity of observing the demeanour of witnesses and thus had the opportunity of making a correct appraisement of the evidence. If he does not have this faith on the members of the enquiry committee it may be difficult for him to rely upon the report itself. For the reasons stated above I do not feel that Rule 1707 (e) contains anything which makes the above mentioned decisions distinguishable. Faced with this difficulty Mr. If he does not have this faith on the members of the enquiry committee it may be difficult for him to rely upon the report itself. For the reasons stated above I do not feel that Rule 1707 (e) contains anything which makes the above mentioned decisions distinguishable. Faced with this difficulty Mr. Bose relied upon a certificate stated to have been given by the petitioner to the members of the enquiry committee after the closure of the enquiry, which is to the following effect:- "I do hereby give the certificate that i have been given all reasonable facilities in defending myself in the enquiry and also afforded the opportunities to consult records in connection with the case that involved in the enquiry. " Mr. Bose contended that the petitioner had waived all objections to the enquiry and must not be allowed not to fall back upon defects which he had waived. Unfortunately for Mr. Bose, he could not explain what was the occasion of taking the certificate from the petitioner or how or who composed the certificate for the petitioner, it being an admitted position that the petitioner has no knowledge of English. Be that as it may, the certificate does not waive objections to the res-composition of the enquiry committee. Further in the absence of an explanation how that certificate came to be given, I cannot shut my eyes to the grievance made by the petitioner that the said certificate had been extracted from the petitioner. Regard being had to the allegation, it may not be safe to proceed on the basis of the certificate alone. There is, of course the further point that even if I accept the certificate as a good certificate, even then the certificate does not waive any objection against the reconstitution of the enquiry committee. 7. In the result, I come to the opinion that the enquiry against the petitioner had not been properly conducted. That makes the enquiry report unworthy of acceptance. The punishment imposed on the petitioner on the basis of such enquiry report by the disciplinary authority, as ultimately affirmed in appeal, must be set aside. I, therefore, quash the order of the disciplinary authority as also the order affirming the same in appeal. Let a writ of certiorari accordingly issue. 8. The Rule is made absolute without any order as to costs. I, therefore, quash the order of the disciplinary authority as also the order affirming the same in appeal. Let a writ of certiorari accordingly issue. 8. The Rule is made absolute without any order as to costs. Nothing contained in this judgment shall, however, prevent the respondents from starting the enquiry against the petitioner afresh from the stage reached when the petitioner submitted his written explanation to the charges.