A. N. Grover ( 1 ) THIS is a petition under Article 226 of the Constitution. The facts which are almost undisputed are that in the year 1956 the petitioner was employed as a Section Officer in the Ministry of Commerce and Industry in the Steel and Cement Section b Shri P. S. Sundaram was the Deputy Secretary in that Ministry at that time. Sometimes in the early part of the year 1956 applications were invited for grant of licences to set up Steel Re-rolling Mills. These applications were received by what is known as the Industries Act Branch of the Ministry of Commerce and Industry. Shri P. S. Sandaram was overall incharge of such licensing matters. A cheque dated 25th June, 1956 was issued on the Punjab Co-operative Bank Ltd. for Rs. 2,500. 00 in favour of Shri P. S. Sundaram by one Nand Kumar. That cheque was certified by the Bank as good for payment up to 24th September, 1956. At the back of the cheque there were the signatures purporting to be of P. S. Sundaram. The petitioner wrote an endorsement on top of those signatures to the effect - "please pay to Shri Sardar Bahadur". Lower down the signatures it was written by him as follows : - "please collect and credit the amount into my current account First payee s endorsement may kindly be guaranteed on my behalf and risk". This cheque was duly sent to the account of the petitioner and the amount of Rs. 2,500. 00 was credited to his account with the State Bank of India, New Delhi. In the year 1359 a criminal prosecution was started against the petitioner in which four charges were preferred against him. All these related to the receipt of this amount by means of the cheque, the gravamen of the charges being the aforesaid amount was taken by the petitioner as gratification and for the purpose of using his position illegally and in a corrupt manner in order to procure a licence in favour of Messrs Ram Sarup Mam Chand of Calcutta who had filed applications in that behalf and that the signatures of Shri P. S. Sundaram had been forged as also the endorsements on the cheque had been forged by the petitioner in order to receive the proceeds of the cheque. He was, therefore, charged with offences punishable under section 5 (2), read with section 5 (1) (d), of the Prevention of Corruption Act, 1947 and sections 161, 467 and 471 of the Indian Penal Code. On 20th June, 1960 the petitioner was acquitted of all the charges on the ground that the same. had not been established. ( 2 ) THE petitioner was suspended on 21st May, 1959 and on or about 2 rd January, 1961 he received a memorandum from the Deputy Secretary, Government of India, Ministry of External Affairs, informing him that it was proposed to hold an enquiry against him under rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957. The charges on which the enquiry was to be held are contained in the statement appearing in Annexure d and they were as follows. The petitioner- " (I) failed to inform Shri P. S. Sundaram, Deputy Secretary, Ministry of Commerce and Industry, New Delhi, that a cheque for Rs. 2,500 in the name of Shri Sundaram had been issued by Shri Nand Kurnar, representative of Messrs Ram Sarup Mam Chand and Messrs Mam Chand and Company of Calcutta, whose applications for the grant of licence for establishing steel Rerolling Mills were pending in the Ministry of Commerce and Industry, as security in connection with the said applications when he knew that no such deposit was to be made; (ii) failed to inform Shri P. S. Sundaram that the said Shri Nand Kumar had given him a cheque bearing Shri Sundaram s signature and had asked him to deposit in his account which he had done after asking the bank (instead of showing the cheque first to Shri Sundaram himself) to guarantee the said signatures of Shri Sundaram; and (iii) borrowed a sum of Rs. 2,500. 00 (the amount covered by the cheque REFERRED TO above) from the said Shri Nand Kumar, without obtaining a previous sanction of the Government, and placed himself under pecuniary obligition to the extent of Rs. 2,500. 00 and thereby also contravened rule 13 (5) of the Central Civil Services (Conduct) Rules, 1955". The Enquiry Officer, Shri V. R. Antani, submitted a report dated 9th April, 1962 (Annexure "v" ). Belore the Enquiry Officer 5 prosecution witnesses and 2 defence witnesses were examined. 2,500. 00 and thereby also contravened rule 13 (5) of the Central Civil Services (Conduct) Rules, 1955". The Enquiry Officer, Shri V. R. Antani, submitted a report dated 9th April, 1962 (Annexure "v" ). Belore the Enquiry Officer 5 prosecution witnesses and 2 defence witnesses were examined. The presenting officer, Shri Bishnoi, sought to produce the copies of the statements of the witnesses examined by ". he Special Judge in the criminal case. Nand Kumar, who was the main prosecution witness, was not produced at the departmental enquiry. The Enquiry Officer ignored all the copies of the statements made by the witnesses in Court on the ground that these witnesses could have been produced before him and there was no justification for admitting their statements made in a Court of Law as substantive evidence. He found that there was no evidence whatsoever regarding the first two charges. It was stated by the Enquiry Officer that in fact it had not been proved that at the time the petitioner was in the Ministry of Commerce and Industry the licensing matter with which Nand Kumar was concerned was pending before him or passed through his hands nor had it been proved that the cheque which had been drawn in the name of P. S. Sundaram was drawn in favour of the gentleman of that name who was the Deputy Secretary. As regards the third charge, the Enquiry Officer considered the defence which had been set up by the petitioner but did not accept it and came to the conclusion. that the petitioner had entered into a transaction of Rs. 2,500. 00 with a private party without obtaining the prior permission of the competent authority and to use his own language "one cannot escape having a lurking suspicion (because of the most unrealistic story put up in defence) that there was something fishy about this transaction". According to the Enquiry Officer since the prior permission of the competent authority had not been taken by the petitioner, the third charge stood proved. The President whose powers were exercised by Shir Jagat Singh, Deputy Secretary, did not agree with the report of the Enquiry Officer. With regard to charges (i) and (ii) this is what the Deputy Secretary said: " (I) The cheque was admitted and proved before the Enquiry Officer and the application of Messrs Ram Sarup Mam Chand was also proved. Shrip. With regard to charges (i) and (ii) this is what the Deputy Secretary said: " (I) The cheque was admitted and proved before the Enquiry Officer and the application of Messrs Ram Sarup Mam Chand was also proved. Shrip. S. Sundaram was examined and cross-examined and he has proved that Shri Sardar Bahadur was working as a Section Officer under him in 1956 ; that he was in charge of the Industries Act, Industrial Policy, etc. He has also deposed that he had not seen the cheque before the police investigated the case and that the signature on the cheque was not his and that he did not receive any amount from Shri Sardar Bahadur. This is sufficient to prove that Sardar Bahadur did notinform Shri P. S. Sundaram about the receipt of the cheque. Therefore, the President finds Shri Sardar Bahadur guilty of charge No. 1. (ii) The cheque bearing the signature purporting to be that of Shri Sundaram has been proved before the Enquiry Officer. The endorsements on the back of the cheque have also been proved and Shri Sardar Bahadur has also admitted in the statement before the Enquiry Officer that the endorsements were made by him. He has also admitted that he collected this cheque through his account in the State Bank of India, New Delhi. The endorsement of Shri Sundaram has also been guaranteed as is seen from the reverse of the cheque by Shri Sardar Bahadur. Shri Sundaram in his deposition before the Enquiry Officer has stated that he was not informed of any of these things and that lie had not seen the cheque until the police investigated the case. This is sufficient to prove that Shri Sardar Bahadur failed to inform Shri Sundaram that Nand Kumar had given him a cheque bearing Shri Sundaram s signature, etc. The President, therefore , finds that charge No. 2 is also proved". an order made on 23rd April, 1963, the President, after consultation with the Union Public Service Commission, came to the conclusion that the charge of gross misconduct and failure to maintain absouhe integrity and devotion to duty as a Government servant has been substantially roved against the petitioner and the penalty of compulsory retirement was imposed upon him. He was directed to be retired compulsorily with amediate effect. ( 3 ) MR. He was directed to be retired compulsorily with amediate effect. ( 3 ) MR. Keshav Dayal, who appears for the petitioner, has sought assail the older of the President en a number of grounds which are as follows :- (1) There was no evidence on which charges (i) and (ii) could I have been sustained against the petitioner nor was there any evidence on which charge (iii) could be held proved. (2) Even if with regard to one of the charges it be held that here was no evidence to establish it, the order of the President would have to be set aside in view of the rule laid down by the Division Bench in Railway Board v. Niranjan Singh ). (3) No full and reasonable opportunity was afforded to the petitioner to show cause against the penalty proposed to be inflicted on him. (4) There was violation of the rule of natural justice inasmuch as the petitioner was not allowed to have the services of a lawyer and Shri Bishnoi. who appeared for the Department in the enquiry, had conducted the prosecution in the criminal case also. (5) Names and addresses of witnesses and particulars of documents were not supplied to the petitioner and Nand Kumar although desired to be examined was not allowed to be produced as a witness. ( 4 ) ALTHOUGH the petition can be disposed of on the first two grounds which were fully argued before me, it may be mentioned that there is hardly much force in the last two grounds. Shri Bishnoi was Inspector of Police, Special Police Establishment, who was nominated to support the charges before the Enquiry Officer vide Annexure "n". The petitioner protested against his appointment because according to him Shri Bishnoi had investigated the entire case against him which led to his prosecution in the Court of the Special Judge. It is not possible to see on what principle of natural justice the petitioner could object to Shri Bishnoi being appointed to conduct the case of the Department before the Enquiry Officer. As regards the request that the petitioner be allowed to engage a lawyer for his defence, that was disallowed by a letter dated 7th October 19pi (Annexure "q" ). As regards the request that the petitioner be allowed to engage a lawyer for his defence, that was disallowed by a letter dated 7th October 19pi (Annexure "q" ). Rule 15 (5) of the Central Civil Services Classification, Control and Appeal) Rules provides that the Disciplinary Authority may nominate any person to present the case in support of the charge before the authority inquiring into the charges and the Government servant may present his case with the assistance of any other Government servant approved by the Disciplinary Authority, hut may not engage a legal practitioner for the purpose unless the person nominated is a legal practitioner or unless the Disciplinary Authority, having regard to the circumstances of the case, so permits. Shri Bishnoi, who had been nominated to present the case in support of the charges, was not a legal practitioner and, therefore, it was purely within the discretion of the Disciplinary Authority to permit the petitioner to engage a lawyer. If such permission was not granted, it cannot be said that the enquiry was in any way vitiated. As regards the last ground, it has already been stated that there were hardly many witnesses who were sought to be examined by the Department in support of the charges preferred and I do not consider that the petitioner was prejudiced in any way in the matter of the giving of the list of witnessesetc. As regards Nand Kumar, it s proved on the record that steps were taken to serve him but he did not come. The petitioner, therefore,: could not have any grouse against the conduct of the enquiry in that respect. ( 5 ) MR. Keshav Dayal has mainly argued the first two points without abandoning the third point and since the petition can be disposed of by, determination of those points it is unnecessary to decide the third point. ; As regards the first charge, Mr. Keshav Dayal has relied on the report of the Enquiry Officer that there was no evidence on which it could be found proved against the petitioner. Now, the only evidence with regard: to this charge consists of the documents relating to the encashment of the cheque including the cheque itself and the statement of Shri P. S. Sundaram, Deputy Secretary, and of Shri N. S. Seturaman, Section Officer, Ministry of Commerce and Industry. The contention of Mr. Now, the only evidence with regard: to this charge consists of the documents relating to the encashment of the cheque including the cheque itself and the statement of Shri P. S. Sundaram, Deputy Secretary, and of Shri N. S. Seturaman, Section Officer, Ministry of Commerce and Industry. The contention of Mr. Keshav Dayal is that the cheque though drawn in favour of Shri P. S. Sundaram did not by itself establish that it was the same P. S. Sundaram who was the Deputy Secretary nor is there any evidence to show that this cheque had been drawn by Nand Kumar representative of Messrs Ram Sarup Mam Chand and Messrs Mam Chand and Company of Calcutta as security in connection with their applications for the grant of licences for establishing Re-rolling Mills. All that Shri P. S. Sundaram stated was that there was no other person of his name working as Deputy Secretary. According to him, the cheque was drawn in his favour or at least it was in his name but the cheque was not shown to him at any time untill the police started investigating the case. He further said that it was not necessary to receive any money from any party applying for licence on the basis of the Press Note dated 11th April, 1959 and according to the rules, the only money required was in the form of treasury challan of Rs. 50. 00 with the application. He admitted in cross-examination that the petitioner might have worked for about two months under him in the early part of 1956. Shri N. S. Seturaman said that the petitioner was working in he Steel and Cement Section and applications for licences were received in the Industries Act Section. He deposed to having seen the applications which had been received from Messrs Ram Sarup Mam Chand and which were accompanied with a treasury challan of Rs. 50. 00 each. He further admitted that the petitioner was not in the Industries Act Section where those applications were normally received. Copies of these applications started coming to the Steel and Cement Section in July 1956. It is pointed out by Mr. 50. 00 each. He further admitted that the petitioner was not in the Industries Act Section where those applications were normally received. Copies of these applications started coming to the Steel and Cement Section in July 1956. It is pointed out by Mr. Keshav Dayal that Shri Jagat Singh, Deputy Secretary, in his memorandum of disagreement with the findings of the Enquiry Officer did not proceed on any evidence and based his conclusion that the charges had been proved purely on assumptions, surmises and conjectures. According to Mr. Keshav Dayal, the mere fact that the cheque was admitted and proved did not establish that it had been given in connection with the application of Messrs Ram Sarup Mam Chand for which there was no evidence. Even if the cheque bore the name of Shri P. S. Sundaram, it did not follow that it was the same Shri Sundaram who was the Deputy Secretary and that the cheque had any connection with or relation to the application filed by Messrs Ram Sarup Mam Chand for the grant of a licence. This could be established only by any other evidence which could have been produced but which was not produced and in particular, the evidence of Nand Kumar. It is pointed out that no such duty or obligation existed on the part of the petitioner to inform Shri P. S. Sundaram, Deputy Secretary, about the receipt of the cheque unless it was meant for him. There was no evidence to show that the cheque was drawn in his favour with the exception of the resemblance of the name. It seems to me that although a good deal of suspicion would exist that the cheque was drawn in favour of Shri P. S. Sundaram who was the Deputy Secretary but suspicion cannot take the place of proof and I am satisfied that the Enquiry Officer was prefectly right in saying that there was no evidence to establish the main link constituting the charge. ( 6 ) THE second charge also proceeds on the assumption for which there was no evidence that the cheque had been issued in favour of Shri P. S. Sundaram, the Deputy Secretary. The Enquiry Officer, there fore, was right in saying that the second charge must fail owing to there being no evidence. ( 6 ) THE second charge also proceeds on the assumption for which there was no evidence that the cheque had been issued in favour of Shri P. S. Sundaram, the Deputy Secretary. The Enquiry Officer, there fore, was right in saying that the second charge must fail owing to there being no evidence. ( 7 ) AS regards the third charge, the enquiry Officer had undoubtedly found that the petitioner had entered into the aforesaid money-transaction with Nand Kumar without obtaining sanction of the competent authority. It would seem that this charge can not be sustained owing to the other essential ingredients being absent. It is common ground that this charge was framed on the basis of rule 13 (5) of the Central Civil Services (Conduct) Rules, 1955, which provides that no Government servant shall, save, in the ordinary course of business with a bank or a firm of standing, borrow money from or otherwise place himself under pecuniary obligation to any person within the local limits of his authority , or any other person with whom he is likely to have official dealings. Although it is proved that the money was borrowed and the petitioner placed himself under pecuniary obligation to Nand Kumar but there is no evidence nor has it been found either by the Enquiry Officer or by the President that Nand Kumar was a person with whom the petitioner was likely to have official dealings. The evidence of Shri N. S. Seturaman is quite clear that the applications for licence of Messrs Ram Sarup Mam Chand were received in the Industries Act Sectionwhich was called the 1. A. (1) Section whereas the petitioner was working in the Steel and Cement Section where the copies of these applications started coming only in July 1956. In June, 1956 when the cheque was issued it is not possible to see how in the absence of any other evidence the petitioner could be regarded as being in a position where Nand Kumar was likely to have any official dealings with him in the matter of the grant of the licences. Mr. In June, 1956 when the cheque was issued it is not possible to see how in the absence of any other evidence the petitioner could be regarded as being in a position where Nand Kumar was likely to have any official dealings with him in the matter of the grant of the licences. Mr. S. N. Shankar for the respondent has drawn my attention to a statement made by the petitioner in the criminal case under section 342, Criminal Procedure Code, in answer to questions put by the Court on 18th June 1961 in which he stated that in June 19f6 Nand Kumar along with Ghansham Dass met him at the petitioner s house and asked for help in the matter of applications submitted by the Calcutta firms which were being represented at Delhi by Nand Kumar for setting up Re-rolling Mills. The Enquiry Officer has stated in his report that he had ignored the aforesaid statement of the petitioner for the reasons given by him and, therefore, his finding was not based on a consideration of this piece of evidence at all. It is quite clear, therefore, that all the essential ingredients which are necessary for Establishing a charge preformed under rule 13 of the Central Civil Services (Conduct) Rules could not be said to have been established and the impugned order suffers from an error apparent in that respect. ( 8 ) MR. Keshav Dayal has next relied on two decisions of this Court in Railway Beard v. Niranjan and C. Damodar Reddy v. Union of India. In the first decision the counsel for the Railway authorities had argued that if the second charge against the petitioner in that case was being upheld, the order of Ins removal from service should not be set aside even if the finding was different with regard to the first charge. Falshaw C J. delivering the judgment of the Bench said- "i do not, however, consider that this argument can be accepted. It is by now a generally recognised principle that where an order such as an order of detention or removal from service is based on a number of grounds, and one or more of these grounds disappear, it becomes difficult to uphold the order when it is not clear to what extent it was based on the ground found to be bad. "in the presence of these observations even if it be held that the third charge stood proved, the impugned order will have to be set aside because the Government inflicted the penalty of compulsory retirement on the basis that all the three charges were proved which conclusion has been found to be unwarranted. In the second case, which is decision of S. K. Kapur I J. , it has been held that the question as to whether evidence of a witness should be accepted or not is a matter entirely within the jurisdiction of the Enquiry Officer. Similarly whether or not the prosecution story is probable also falls to be determined by the Enquiry Officer and is not a matter with which the Court will interfere. However, it is well established that this Court will interfere with the finding of a Enquiry Officer only if the conclusions are found to be- " (A) arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law; (b) contrary to constitutional right, power, privilege or immunity; (e) in excess of statutory jurisdiction, authority, or limitation or short of statutory right; (d) without observance of procedure required by law; (e) unsupported by any evidence. "mr. Keshav Dayal is right in finding support from this case for the proposition that the first two charges ware unsupported by any evidence and, therefore, the order which has been impugned must be struck down. ( 9 ) ALTHOUGH I cannot help observing that the entire circumstances relating to the cheque do leave a suspicion that the petitioner did not maintain the proper standard of conduct required of a Government officer but as previously stated suspicion alone cannot be a ground for finding the charges against the petitioner as proved. The petition, therefore. is allowed and the order made by the President retiring the petitioner compulsorily is hereby set aside. However, the parties would be left to bear their own costs.