JUDGMENT Pyne J. This appeal came up for final disposal before this Bench under circumstances which may be stated. Biswanath Mukherjee made an application under Article 226 of the Constitution, challenging the order dated February 6, 1968 passed by the Collector of Customs whereby Biswanath Mukherjee was removed from service. In his said application Biswanath Mukherjee impleaded (1) Collector of Customs, Calcutta. (2) M. L. Khunger, (3) Deputy Inspector General of Police, Central Bureau of Investigation, Special Police Establishment and (4) Union of India as party respondents. In this petition Biswanath Mukherjee took a number of grounds and a rule nisi was issued by Ghose J. The said application of Biswanath came up for final disposal before T. K Basu, J. who decided only one point and on that ground alone, the learned Judge made the Rule absolute. The only point on which the learned Judge decided the whole application was whether the charge sheet was defective or not, leaving the other points undecided. T. K. Basu, J. has recorded in his judgment delivered on the 13th April, 1970- "Although several grounds have been taken challenging the order and elaborate arguments were advanced by Mr. Somnath Chatterjee in support of these contentions, this application in my view, ought to succeed on a short point". The learned Judge held that the charge sheet in the present case was defective and in that view of the matter the learned Judge allowed the petition of Biswanath Mukherjee, made the Rule absolute and quashed the order. The learned Judge has further observed in his judgment-"Mr. Chatterjee further contended that the petitioner bad been found guilty of the charge of benami which was not in the charge sheet. He also submitted that the findings of the Enquiring Officer were perverse as being based on no evidence and on mere conjectures and surmises. He also made a grievance of the fact that certain documents were considered by the Enquiring Officer behind the back of the petitioner. His further contention was that the onus of proof was misplaced by the disciplinary authority as a result of a confusion between the law regarding disciplinary proceedings and proceedings under section 178A of the Sea Customs Act. 1878. 2. His further contention was that the onus of proof was misplaced by the disciplinary authority as a result of a confusion between the law regarding disciplinary proceedings and proceedings under section 178A of the Sea Customs Act. 1878. 2. In view of my finding that the charge sheet is defective as being in violation of the principles of natural justice thereby vitiating the entire proceedings it is not necessary for me to express any opinion on the merits of these contentions. Against the judgment and order of the learned trial Judge, this appeal was preferred. The appeal came up for hearing before the Division Bench consisting of P. B. Mukharji, C.J. and B. C. Mitra, J. The Appellate Court in its judgment reported in AIR 1972 Calcutta 401 (The Collector of Customs and others v. Biswanath Mukherjee) has noted- "The learned Judge expressly mentions four other points which were argued before him but on which he expressed no opinion. These are: (1) The petitioner had been found guilty of a charge of 'benami' which was not in the charge sheet, (2) the findings of the Eenquiring Officer were perverse as being based on no evidence and on mere conjectures and surmises, (3) certain documents were considered by the Enquiring officer behind the back of the petitioner and (4) the onus of proof was misplaced by the disciplinary authority as a result of a confusion between the law regarding disciplinary proceedings and proceedings under section 178A of the Sea Customs Act, 1878." 3. The Appellate Court held that in the absence of any finding on certain other questions it was not possible to come to any conclusion whether the charge sheet was defective or not and the Appellate Court remanded tile case to the learned Judge for his finding and conclusion on four points set out in the judgment of the Appellate Court. The Appellate Court in its judgment observed-"The proper way in our view, of interpreting a charge sheet of this nature in disciplinary proceedings is not to be technically and legalistically strict as in the case of a charge sheet in criminal proceedings. This principle is well known. The Appellate Court in its judgment observed-"The proper way in our view, of interpreting a charge sheet of this nature in disciplinary proceedings is not to be technically and legalistically strict as in the case of a charge sheet in criminal proceedings. This principle is well known. 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". After referring to the observations contained in the decision in the case of (1) In Federal Trade Commission v. Gratz 253 U. S. 421 the Appellate Court proceeded to observe "Now a question of fair interpretation of a charge sheet in a disciplinary proceeding depends on the context of facts in which the charge is laid. The two words 'found' and 'giving rise to the presumption' are not, in our judgment, 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. The word 'found' is a general word and it will depend on the context of the situation whether that expression means a bias or conclusion of the mind when the charge sheet shows that the Officer is found to be in possession of assets disproportionate to his known source of income'. Secondly, the words 'giving rise to the presumption' cannot also be conclusive in this particular context of facts because we find on examination of the records that no presumption in fact was drawn and that it was the employing authorities who led the evidence and there was no misplacing of onus of proof and there was cross-examination by the petitioner of the evidence led by the Customs authority. It was only after the Customs Authorities bad led their evidence and there was such cross-examination that the petitioner led his evidence. Therefore, in fact there was no misplacement of onus and nothing was presumed against the petitioner. This aspect of the problem was not considered by the learned Judge in his decision but these considerations reflect on the question of bow the charge should be read in the context. 4. Therefore, in fact there was no misplacement of onus and nothing was presumed against the petitioner. This aspect of the problem was not considered by the learned Judge in his decision but these considerations reflect on the question of bow the charge should be read in the context. 4. Besides, if principles of natural justice are said to be violated by the use of the two expressions above-named then there are also the other questions of principles of natural justice on which the learned Judge has not come to a finding, namely, (1) no evidence, and (2) documents considered by the Enquiring Officer behind the back of the. petitioner. It is difficult, therefore, to judge piecemeal even this question of the principles of natural justice in the present context of facts. One of the four points noticed above includes the question of benami. 5. Now, the question of benami does not appear to us to vitiate the proceedings because the whole point was whether the petitioner was in possession of assets disproportionate to his known sources of income. The enquiry is implicit as to whether the assets though may be standing in the name of his mother were in reality his assets. By itself such a consideration would not in our view vitiate the enquiry. It is therefore, necessary to come to certain findings on those four questions. 6. The Appellate Court held-"With a view to enable us to come to an appropriate conclusion whether on a total view of the present context the charge-sheet was defective on the grounds mentioned above we feel that on the present materials it is difficult to draw that conclusion which the learned Judge has drawn without having before us the findings on the four questions mentioned above. 7. We, therefore, remand the case to the learned Judge for his findings and conclusions on the four points set out above. After the learned Judge comes to a finding on those four points, then his findings may be placed before us or the appropriate Bench dealing with these appeals when we or the appropriate Bench dealing with these appears will finally dispose of the appeal". 8. T. K. Basu, J. to whom the matter was remanded heard the parties on the said four points and in the judgment delivered on September 17, 1971 recorded his findings on the said four points. 8. T. K. Basu, J. to whom the matter was remanded heard the parties on the said four points and in the judgment delivered on September 17, 1971 recorded his findings on the said four points. On the first point namely, the petitioner has been found guilty of a charge of 'benami' which was not in the charge sheet the learned Judge held-"From this it is obvious that the petitioner understood the charge-sheet to include a charge of acquisition of assets to the benami name of his mother and dealt with that charge in elaborate details. Consequently, it must be held that the principles of natural justice have not been violated by not including an express reference to the acquisition of assets in 'Benami' by the petitioner in the charge sheet and the petitioner bas not suffered any prejudice and had not been handicapped in his defence in any manner. This contention all behalf of the petitioner, therefore fails". On the second point, namely, 'the findings of the Enquiring Officer were perverse as being based on no evidence and on mere conjecture and surmises, the learned Judge has held. 'In the instant case, acting on the basis of the evidence of the surrounding circumstances and the probabilities, the Enquiring Officer has come to the conclusion that the petitioner is the owner of the property in the 'Benami' of his mother. The authorities have also come to the conclusion that such ownership cannot be accounted for on the basis of the known sources of income of the petitioner. That being the position, it cannot be said, in my view, that there was no evidence of any kinds whatsoever justifying the conclusion arrived at. In other words, the finding or conclusion cannot be said to be perverse as being based on no evidence at all. 9. Whether on an assessment of the evidence of the surrounding circumstances and the probabilities the authorities were justified in coming to the conclusion that it did is a different question. That question pertains to the domain of appreciation of evidence which this Court is not competent to consider in this jurisdiction. This contention on behalf of the petitioner, therefore, fails". Whether on an assessment of the evidence of the surrounding circumstances and the probabilities the authorities were justified in coming to the conclusion that it did is a different question. That question pertains to the domain of appreciation of evidence which this Court is not competent to consider in this jurisdiction. This contention on behalf of the petitioner, therefore, fails". On the third point, namely certain documents were considered by the Enquiring Officer behind the back of the petitioner' the learned Judge, for reasons recorded in his judgment also held against the petitioner and the learned Judge after referring to the documents about the production of which before the Enquiring Officer grievance was made by the petitioner Biswanath Mukherjee observed-" Since these documents were being produced by third parties the respondents were under no obligation to give prior notice or offer prior inspection of these documents to the petitioner No doubt, if after these documents were produced from the custody of third party if the petitioner wanted reasonable time for inspection of the documents or wanted further opportunity for cross-examination on the basis thereof, the matter might have assumed a different complexion if such prayer was refused by the Enquiry Officer. Serious question might then have arisen with regard to the violation of natural justice in the enquiry. I do not, however, find any such complaint or prayer from the records Clearly the only obligation on the respondents is to produce such documents which they intend to rely upon and which are within their control and possession. In these circumstances, I am unable to accept the contention on behalf of the petitioner". On the last point i. e. point No.4, namely, the onus of proof was misplaced by the disciplinary authority as result of confusion between the law regarding disciplinary proceeding and proceedings under section 178A of the Sea Customs Act, 1878', the learned Judge observed-"This contention again does not appear to be of any substance. As I have already indicated, the respondents did call some evidence and produce a number of witnesses before the delinquent was called upon to make his defence. This itself shows that the onus was not shifted on the delinquent to prove his innocence before the departmental authorities had tried to prove the guilt of the petitioner. As I have already indicated, the respondents did call some evidence and produce a number of witnesses before the delinquent was called upon to make his defence. This itself shows that the onus was not shifted on the delinquent to prove his innocence before the departmental authorities had tried to prove the guilt of the petitioner. Hence, the question of confusion between the onus of proof in disciplinary proceedings and proceedings under section 178A of the Sea Customs Act, 1878 does not really arise". 10. It is to be noted that on all the four points which the learned trial Judge was directed to consider by the order of remand made by the Appellate Court, the learned Judge found against the petitioner Biswanath Mukherjee. After recording his findings the learned trial Judge gave the final direction-"Let the above findings which I have arrived at be sent to the Court of Appeal in terms of the order dated the 18th of February, 1971" The appeal has [hereafter been specially assigned to this Bench. 11. For a proper appreciation of the various contentions raised before us at the final hearing of the appeal, it is necessary to set out certain facts. Biswanath Mukherjee, the petitioner, in the writ application and the respondent in the present appeal joined Customs Preventive Service as Junior Preventive Officer, Grade lion the 20th day of December, 1955. On the 12th day of March, 1956 Biswanath Mukherjee was posted at Dum Dum upon completion of his training. 12. It appears that Biswanath Mukherjee, who will hereafter be referred to as "the respondent", is the only son of his parents; be has however three sisters, Haradhan Mukherjee, father of the respondent was an employee in the Indian Post and Telegraphs Department until the 12th day of March, 1959 when he retired after a period of service of 36 years. Haradban Mukherjee died on July 27, 1966. Haradhan Mukherjee joined the Indian Post and Telegraphs Department with a starting pay of Rs. 45/- (excluding the allowances) and retired as a Lower Selection Grade Clerk with a pay of Rs. 190/- per month (excluding the allowances) and on his retirement his pension was fixed at Rs. 82.50 per month. Haradban Mukherjee died on July 27, 1966. Haradhan Mukherjee joined the Indian Post and Telegraphs Department with a starting pay of Rs. 45/- (excluding the allowances) and retired as a Lower Selection Grade Clerk with a pay of Rs. 190/- per month (excluding the allowances) and on his retirement his pension was fixed at Rs. 82.50 per month. In 1946 while Haradhan Mukherjee was an employee under the Indian Post and Telegraphs Department, agency for sale of National Savings Certificate has been taken in the name of the respondent and also in the name of Sudharani Debi, wife of Haradhan Mukherjee and mother of the respondent. In the name of Sudharani Debi a property had been acquired at No. 41/5B Russa Road, Calcutta. It is stated that the land on which the said premises is situate was purchased in 1940 and the ground floor was constructed shortly thereafter. A second story in the said premises at 41/5B Russa Road was built sometime in 1945. The ground floor of the said premises at 41/5B, Russa Road had been Jet out since 1946 and the said property had been fetching income. It appears that from August 1960 the ground floor of the said premises fetched rent at the rate of Rs. 120/- per month but from October 1951 the rent was fixed by the Rent Controller at Rs. 110/- per month. On August 7, 1957 a letter was addressed by Haradhan Mukherjee for Sudharani Debi, his wife, to the Zonal Manager, Life Insurance Corporation of India informing him about the selection of plot No. 827 in 'P' Block at New Alipore and requesting him to kindly allot the said plot to Sudharani Debi. In 1958 price for the said plot of land was paid in instalments and in 1959 one stoned building was constructed on the said plot. On the 14th December, 1959 an objection was filed against the valuation made of the said premises by the Corporation of Calcutta. 13. It appears that various correspondences were carried on between Sudharani Debi, the mother of the respondent and the National Savings Organisation between 30th August, 1960 and 11th May, 1961 with regard to commission earned since 1946 for her tax purposes. Sometime in 1962 a complaint is stated to have been received against the respondent in the Customs house. On the 16th day of March, 1963 the respondent was interrogated by Mr. Sometime in 1962 a complaint is stated to have been received against the respondent in the Customs house. On the 16th day of March, 1963 the respondent was interrogated by Mr. M. M. Sethi who was then the Assistant Collector, Special Intelligence Unit regarding properties alleged to be owned by the respondent. 14. On May 14, 1963 the case of the respondent was referred to the Special Police Establishment for investigation. In June, 1963 one M. A. Hamid, an Inspector of the Special Police Establishment. Government of India, Calcutta summoned the respondent to appear before him in connection with certain investigation against respondent and the respondent was interrogated by Hamid. The respondent's father Haradhan Mukherjee had also appeared before the said Inspector Hamid in pursuance of a notice dated 27th September, 1963 issued under section 94 of the Criminal Procedure Code in Crime No. P. E. 21 of 1963 and was made to produce various documents and papers and also to make a statement before the said Inspector. On the 20th June, 1963 the respondent submitted a statement regarding his properties and in the said statement the respondent stated that he had no immoveable property either in his name or in the name of his dependents. In the said statement the respondent mentioned two immoveable properties, (1) a double storied house being premises No. 41/5B Russa Road and (2) one storied house being premises No. 827 in Block 'P' New Alipore and stated that the said two immoveable properties belonged to his mother Sudharani Debi. It appears that the Special Police Establishment in course of its investigation obtained information from National Savings Organisation about the commission earned by the respondent and his mother in 1950 and 1951 and they also obtained the particulars of pay and allowances drawn by the respondent's father. It further appears that on the 9th day of December, 1963 the special Police Establishment sent the investigation report along with a draft charge-sheet with recommendation for regular departmental action against the respondent. On March 4, 1964 the respondent was placed under suspension and departmental proceedings under Central Civil Service (Classification, Control and Appeal) Rules 1957 were initiated against him by issue of a charge sheet on the 5th March, 1964. On March 4, 1964 the respondent was placed under suspension and departmental proceedings under Central Civil Service (Classification, Control and Appeal) Rules 1957 were initiated against him by issue of a charge sheet on the 5th March, 1964. The statement of charge reads as follows :- "CHARGE That Shri Biswanath Mukherjee, who had been functioning as a Preventive Officer, Grade T, during the period between 20-12-55 and 31-12-59, was found on 1-1-60 to be in possession of assets which are disproportionate to his known sources of income to the extent of about Rs. 61000/- giving rise to the presumption that the aforesaid Shri Biswanath Mukherjee acquired the said disproportionate assets by obtaining pecuniary advantage to himself by corrupt and illegal means and thereby he had failed to maintain absolute integrity and devotion to duty as a public servant". 15. The statement of allegations on the basis of which charge is framed may be set out.- "Statement of allegations on the basis of which charge is framed against Shri Biswanath Mukherjee, Preventive Officer, Grade-I, Customs House, Calcutta. 1. Shri Biswanath Mukherjee was appointed as a Preventive Officer in the Customs House, Calcutta on 20.12.55 on a salary of Rs. 80/- p. m. which by gradual increament and promotion became Rs. 231/- by December, 1959. 2. During the period of his service from 20-12-55 to 31.12.59 he earned Rs. 19431/- as pay and allowances as mentioned in Schedule 'B' attached herewith. 3. His expenditure under different heads have been estimated at Rs. 10, 361/- as per particulars given in the Schedule 'B' annexed herewith. (4) The difference of income and expenditure leaves a balance of Rs. 9070/- which is likely the savings of Shri Biswanath Mukherjee. 5. During the aforesaid period Shri Biswanath Mukherjee acquired assets viz. land and building etc. of a total value of Rs. 70, 118/- as per details given in Schedule 'A' annexed herewith. 6. After deducting the amount of his likely savings of Rs. 9070/-from the total value of assets worth Rs. 70, 118/-, there remains a balance of Rs. 61,048/- which is disproportionate to his known sources of income as indicated above. 7. This raises a presumption that he acquired these assets by corrupt and illegal means as a public servant. 8. 6. After deducting the amount of his likely savings of Rs. 9070/-from the total value of assets worth Rs. 70, 118/-, there remains a balance of Rs. 61,048/- which is disproportionate to his known sources of income as indicated above. 7. This raises a presumption that he acquired these assets by corrupt and illegal means as a public servant. 8. The aforesaid facts indicate that Shri Biswanath Mukherjee failed to maintain absolute integrity in the discharge of his duties as a public servant, contravening Rule 3 of the Central Civil Service (Conduct) Rules, 1955". In the Schedule 'A' mentioning the assets of the respondent premises No. 23A/827 'P' Block, New Alipore is included and is valued at Rs. 59, 400/- 16. By his letter dated May 11, 1964 to the Collector of Customs the respondent elaborately dealt with the allegations and the charges made against him and denied the same. In his reply the respondent's contention was that his mother. who had independent sources of income since 1946, with her own money had acquired and built premises no. 23A/827 'P' Block, New Alipore of which he was in no sense the owner. The respondent has in the said letter referred to various facts and circumstances which, according to him established that his mother had independent sources for acquiring the said property at New Alipore and he could not possibly own the said property. He has also specifically dealt with the question of valuation of the said premises and has contended n1at the Corporation valuation has got nothing to do with the actual cost of acquiring the said asset and he has also stated that the Corporation valuation has not been finally settled and the protest has been lodged as to the valuation made by the Corporation. He has also stated that the total cost of the said asset namely, premises No. 23A/827 'p' Block New Alipore can in no case exceed Rs. 29, 765/-, the cost of the land being Rs. 12. 265/- and the cost of construction of the building not exceeding Rs. He has also stated that the total cost of the said asset namely, premises No. 23A/827 'p' Block New Alipore can in no case exceed Rs. 29, 765/-, the cost of the land being Rs. 12. 265/- and the cost of construction of the building not exceeding Rs. 17500/- The respondent's further contention was that the proceeding against him was being initiated at the instance of one Pabitra Kumar Sen who was a tenant in respect of the ground floor of premises No. 41/5B Russa Road owned by the respondent's mother who had obtained the decree against the said Pabitra Kumar Sen for not paying rent. The reply of the respondent to the charge sheet is mal ked as Annexure' D' to his petition in the writ application and is contained in pages 90 to 117 of the paper book. By an order made by Mr. M. G. Abrol the then Collector of Customs on the 16th May, 1964 Shri M. L. Khunger, Assistant Collector of Customs was appointed as Enquiring Officer to enquire into the charges framed against the respondent. By an order made by the said Collector of Customs on the 20th May, 1964 Shri M. A. Hamid, Inspector of Police, Special Police Establishment, Calcutta was appointed the Presenting Officer to present the case in support of the charges before the Enquiring Officer. By a subsequent order made by the said Collector of Customs on the 29th August, 1964 in partial modification of his earlier order appointing Hamid as the Presenting Officer, Shri S. G. Chowdhury, Inspector, Special Police Establishment, Calcutta was appointed the Presenting Officer to present the case in support of the charge against the respondent before the Enquiring Officer in the place of Hamid. It appears that by letter dated May 26, 1964 addressed by the respondent to the Collector of Customs the respondent asked for the names of witnesses who would be examined on behalf of the department, copies of statement., if any. made by them as well as copies of all the documents intended to be produced at the lime of enquiry. By his letter dated August 26, 1964 to the Collector of Customs the respondent referred to his said earlier letter dated May 26, 1964 and pointed out that no reply had been received by him to his said letter and asked for an early reply to his letter. By his letter dated August 26, 1964 to the Collector of Customs the respondent referred to his said earlier letter dated May 26, 1964 and pointed out that no reply had been received by him to his said letter and asked for an early reply to his letter. By his letter dated June 29. 1964 addressed to the Enquiring Officer M. L. Khunger the respondent pointed out that there was a Police enquiry against him in connection with the charges and also asked him to furnish the respondent with a copy of the said Police report to enable him to prepare his defence. if the said report of the Police enquiry would be taken into consideration against the respondent by the department. By his letter dated July 29, 1964 addressed to the said M. L. Khunger with copy thereof to the Collector of Customs, the respondent asked for leave to be assisted by a lawyer in the enquiry against him stating that the enquiry against him involved difficult questions of law. By his letter dated August 7, 1964 the respondent asked for a copy of the first information report lodged by the department with Special Police Establishment and recorded by the Special Police Establishment under section 154 of the Criminal Procedure Code. By his letter dated August 14, 1964 to the Enquiring Officer the respondent made a request for obtaining information regarding commission paid for sale National Savings Certificate by himself and his mother on the basis of their agency which continued from National Savings Organisation and the Post Offices particularly, from the G.P.O. and the Dharmtolla Post Office. By his letter dated August 17, 1964 to the Collector of Customs the respondent renewed his prayer for permission to engage a lawyer to assist him in the enquiry. In this letter the respondent stated that the departmental enquiry involved intricate question of law as well as intricate question of evidence and the nature of evidence to be adduced and the nature of documents to be produced as well as to be proved were such which would require the assistance of a lawyer. In this letter the respondent stated that the departmental enquiry involved intricate question of law as well as intricate question of evidence and the nature of evidence to be adduced and the nature of documents to be produced as well as to be proved were such which would require the assistance of a lawyer. The respondent further mentioned that the department in the enquiry was being represented by a seasoned Police Officer as the Presenting Officer who was well conversant with the legal aspect of the case whereas he was not at all conversant with the legal position and as such it was desirable as well as it would be just and proper to allow the respondent to be represented by a lawyer otherwise there would be absolute denial of reasonable opportunity. On September 1, 1964 the respondent addressed a further letter to the Enquiring Officer and in this letter he drew the attention of the attention Officer to the respondent's earlier letter asking for the report of the Police enquiry, for a copy of the first information report lodged by the department with the Special Police Establishment and for the names of witnesses to be examined on behalf of the department as also of the copies of statements, if any, made by them. On November 6, 1964 the respondent sent a further reminder to the Enquiring Officer. 17. On March 18, 1965 Shri R. N. Sen on behalf of the Collector of Customs sent a notice to the respondent for inspection by an Engineer of premises No. 23A/827 P-Block New Alipore on March 22, 1965 for assessing its value and asked the respondent to be present at the time of the said inspection an also directed him to render necessary assistance in the matter. By his letter, dated March 20, 1965 addressed to the Collector of Customs in reply to the said letter the respondent informed him that be (the respondent) had no objection to any such inspection and requested the Collector to contract the respondent's mother Sm. Sudharani Debi who was the owner of the said premises for meeting the necessary requirements as he had no hand in the matter. Sudharani Debi who was the owner of the said premises for meeting the necessary requirements as he had no hand in the matter. By letter dated April 12, 1965 Shri R. N. Sen alleged that the respondent filed to comply with the direction given in his letter dated March 18, 1965 requiring him to remain present in premises No. 23A/827 'P'-Block, New Alipore on March 22, 1965 and to render necessary assistances in the matter of inspection of the said premises by an Engineer and by the said letter Shri R. N. Sen called upon the respondent to state in writing within three days of receipt of the letter as to why disciplinary action should not be taken against him for disobedience of orders. By this letter Shri R. N. Sen also informed the respondent that some other date would be fixed for such inspection and the respondent would be required to be present at the said premises at the time of inspection and to render necessary assistances in the matter of inspection. To this letter the respondent sent a reply on the 17th April, 1965 addressed to the Collector of Customs. In his reply the respondent referred to his earlier note informing the department to contact the owner of the premises as without permission he would not be in a position to render any assistance and the said communication of the respondent might have been misunder stood as disobedience on his part. The respondent further informed the Collector that as regards necessary assistance he would always be co-operative but he felt sorry to express his inability to enter into the premises, if necessary, without the permission of the owner of the premises Sm. Sudharani Debi and the respondent requested the Collector to contact her for the purpose. Tile respondent further informed the Collector in the said letter to expedite the matter and that he was endorsing a copy of the letter to Sm. Sudharani Debi, the owner of the premises for the permission in the matter and the respondent forwarded a copy of this letter to Sm. Sudharani Debi. Tile respondent further informed the Collector in the said letter to expedite the matter and that he was endorsing a copy of the letter to Sm. Sudharani Debi, the owner of the premises for the permission in the matter and the respondent forwarded a copy of this letter to Sm. Sudharani Debi. By Memo No. S-24-3/64 (Estt) dated April 29, 1965 signed by R. N. Sen, Assistant Collector of Customs for establishment and administration and addressed to the respondent, he was informed that an Assistant Engineer of the Central Public Works Department would inspect premises No. 23A/827 ‘p’ Block, New Alipore on 18-5-65 at 11-30 hours for assessing the valuation of the said building and the respondent was directed to remain present in the said premises on the said date at that time and to render necessary assistance in the matter. On May 3, 1965 the respondent for warded a copy of the said Memo to his mother Sm. Sudharani Debi for her in formation and for necessary assistance in the matter. On the 8th May, 1965 Sm. Sudharani Debi addressed a letter to Shri R. N. Sen, Assistant Collector of Custom for Establishment and Administration. In this letter. Sm. Sudharani Debi alleged that Shri R. N. Sen had directed her son Shri Biswanath Mukherjee to do something which was legally beyond his domain and intruded into her domain. Sm Sudharani Debi have in this letter, mentioned that she is the owner of the property and that all correspondence with regard to inspection of the said property should be addressed to her and not to her son Biswanath Mukherjee. She was further stated that Shri R. N. Sen had no jurisdiction to enter into her premises nor could he enter into her premises by other officials under his direction without her written permission and his any action to the contrary would he considered as an act of wilful trespass. She has also mentioned in this letter that her son Biswanath Mukherjee is an employee of the department. She further stated that she had once in the past the valuation certified by very renowned Chartered Engineer and Value in the list of the Hon'ble High Court, Cu1cutta and this she had done with a view to see an end to the sufferings of her son. She further stated that she had once in the past the valuation certified by very renowned Chartered Engineer and Value in the list of the Hon'ble High Court, Cu1cutta and this she had done with a view to see an end to the sufferings of her son. It appears that the respondent had made representations to the department for increase in his subsistence allowance and had sent reminders the department with regard to the same and Shri R. N. Sen by his letter dated the 10th of May, 1965 informed the respondent that his representations had been duly considered by the Collector but he was enable to accede to the same. On December 8, 1965 the respondent reiterated his request for documents, names of witnesses and other facilities for defending himself which was replied to by Khunger, the Enquiry Officer on June 6, 1966. This reply may be set out in its entirety and the said reply reads ;- "Memo No. S. 24-3/64(Estt)...Through Special messenger Custom., House, Calcutta, dated 6th June, 1966. To Biswanath Mukherjee, Preventive Officer (Customs) (Under Suspension), 41/5B. Russa Road, Calcutta-33 Subject-Oral enquiry against Shri Biswanath Mukherjee-File No. S.24-3/64 (Estt). With reference to your letter dated 8-12-65 requesting for documents I have to state as below:- Sl. No. Documents asked for Findings 1 2 3 1. Alleged records proving that it is the accused who required the premises No. 23A/827 ‘P’- Block, New Alipore, Calcutta 2. Oral Statement made by the accused and his father before the preliminary Enquiry Officer Shri M. M. Sethi and his comments thereon. 3. Request for permission to the accused to be defended through a lawyer. 4. Corporation Tax Bills both owner and occupiers. 5. Rent receipt form the tenants. 6. Corporation plan with names addresses and signatures of the person appearing on it. 7. Purchase deed for the land. 8. Information regarding the names of the witnesses to be examined on behalf of the department. 9. Copies of statements made by the prosecution witnesses. 10. Copies of all documents intended to be produced at the time of enquiry. 11. Copy of the Police Report. 12. Copy of First Information Report. This will be proved by oral testimony of witnesses at the time of enquiry. To the extent the documents mentioned at Sl. No. 1 to 9 of the list enclosed at Sl. 10. Copies of all documents intended to be produced at the time of enquiry. 11. Copy of the Police Report. 12. Copy of First Information Report. This will be proved by oral testimony of witnesses at the time of enquiry. To the extent the documents mentioned at Sl. No. 1 to 9 of the list enclosed at Sl. No. 1 to 9 of the list enclosed with Collector’s Memo No. S. 24-3/64-Estt. (Pt. I) dated 5.3.64 may be relevant, the accused had already perused the same. The said statements are not on record of the oral Enquiry Officer and as such the same does not constitute evidence for the oral Enquiry Officer. The said request had been turned down by the Collector of Customs. Not on reoord of the oral Enquiry Officer and as such does not form a part of evidence for the purpose of oral enquiry. If the accused is interested in producing the same as defence documents he may make his own arrangement to obtain the same form the authorities concerned. -do- -do- -do- (i) An employee of Calcutta Customs House to prove the pay and allowances of the accused. (ii) An officer from the office of the Assessor, Calcutta Corporation to prove the value of the building. (iii) Names of other witnesses shall be intimated in due course. No such statements are on record. Documents mentioned at Sl. No. 1-9 of the list attached to Collector’s Memo No. S. 24-3/64 Estt. (Pt. I) dated 5.3.64 have already been perused by the accused. There are no other documents. The same is a privileged document and its copy cannot be supplied to the accused. Also the oral Enquiry Officer will not be guided by contents of this report. No First Information Report was recorded in this case. The case was simply registered with S.P.E. and copy of this can not be supplied to the accused being a privileged document. Also the enquiry shall not be governed by this report. You are hereby informed that the oral enquiry against you will commence from 9-6-66 onwards. Witness No.1 as mentioned against Sl. No.8 above will be examined on 9-6-66 at 11-00 A.M. in the office of the officer-in-charge, Special Intelligence Unit, Mezzanine floor, Customs House, Calcutta. Witness No.2 mentioned at Sl. No.8 above shall be examined on 10-6-66 at 11 A.M. in the same office. Witness No.1 as mentioned against Sl. No.8 above will be examined on 9-6-66 at 11-00 A.M. in the office of the officer-in-charge, Special Intelligence Unit, Mezzanine floor, Customs House, Calcutta. Witness No.2 mentioned at Sl. No.8 above shall be examined on 10-6-66 at 11 A.M. in the same office. Names of the other witnesses and the dates and time of their examination shall be communicated to you later. You are accordingly directed to be present on the said dates and times at the said place. Your failure to be present will lead to the enquiry being held exparte and you will have no cause for grievance on that account. M. L. Khunger Enquiry Officer". The list of documents attached to the Collector’s Memo No. S. 24-3/64 (Estt). (Pt.1) referred to in the aforesaid letter of Khunger mentions the following documents. 1. Memo No.M/77/62 dated 10.9.63. 2. Extract from Inspection Book, lands and buildings in respect of premises No. 23A/827, New Alipore, Ward No. 72, certified by the Assessor, Calcutta Corporation. 3. Memo No. 5252/21/SPC/63-1. D. II dated 29.8.63 of S.P.L., Calcutta. 4. Memo No. G/I No. 3 dated 19.9.63 of Managing Director. Postal Co-operative Credit Society of Calcutta. 5. Statement No. I to VII submitted by Shri Biswanath Mukherjee dated 20.6.63. 6. Statement of Account, Savings Bank Account No. 114-2398 dated 23.4.56 of Calcutta GPO furnished by Shri B .N. Mukherjee. 7. Statement of Shri Haradhan Mukherjee dated 4.10.63. 8. Memo No. 5603/Spl,-3 dated 8-10-63 of the Deputy Regional Director, National Savings, West Bengal, along with a statement of commission drawn by Shri B. N. Mukherjee. 9. Memo No. CG-17/56-57 dated 21-10-63 of the Senior Superintendent, Foreign Post. 18. The enquiry proceeding against the respondent started on June 9, 1966 and be attended the said enquiry assisted by one Shri S. P. Ghosh, an appraiser in Calcutta Customs and on that date one Mahaded Saha of the Accounts Department. Calcutta Customs was examined to prove the statement showing pay and allowances and over time payments drawn by the respondent month by month and deductions made therefrom towards G.P. Fund and Income-tax since his appointment up to 30.4.63. These statements were marked as exhibit Nos. 2 and 3. On June 29, 1966 Shri S.N. Sanyal, an Assistant Inspector of Calcutta Corporation was examined on behalf of the prosecution for proving the valuation of the said premises at New Alipore. These statements were marked as exhibit Nos. 2 and 3. On June 29, 1966 Shri S.N. Sanyal, an Assistant Inspector of Calcutta Corporation was examined on behalf of the prosecution for proving the valuation of the said premises at New Alipore. This witness in course of his cros3-examination stated that Sm. Sudharani Debi was the owner of the premises as per his records and the assessment notice was sent to her and quarterly tax bills ought to be sent to her. This witness further stated that the valuation of the New Alipore property was arrived at on the basis of rent prevailing in the locality. Shri Haradhan Mukherjee, the father of the respondent died on the 27th of July, 1966 and the respondent by his letter dated the 3rd August, 1966 applied for an adjournment of the enquiry till August 29, 1966, The Enquiring Officer by his letter dated August 6, 1966 informed the respondent that adjournment till August 29, 1966 could not be granted but granted adjournment till August 17, 1966. On August 17, 1966 the 3rd witness of the prosecution S.N. Mustafi, a clerk in the Postal Co-operative Credit Society of Calcutta Limited was examined. This witness stated that he had personally verified the eorrectness of the entry contained in Exhibit No.7 and 8 with reference to the original records and he proved the signatures of T. N. Mustafi the Managing Director who signed exhibit No. 8. On the same day Shri SC De, Assistant Regional Director, National Swings, Government of India also gave evidence. This witness referred to exhibits 4, 5 and 6 and proved the signature of Shri DC Banerjee in exhibit No.5 and stated that he verified the correctness of exhibit No.6 which according to him was correct except for certain discrepancies which he pointed out. In cross-examination this witness stated that from June 1, 1946 upto some date of 1948 the work relating to maintenance of records showing payment of agency commission as also the work relating to actual payment of commission was transferred from National Savings Organisation to the postal department. On August 27, 1966 Satadal Banerjee, a clerk in the office of the Presidency Post Master, Accounts Department, GPO was examined to prove the correctness of Ext. No.9. On September 28, 1966 Amritlal Das, an Upper Division Clerk in the office of the Post Master General, Calcutta gave evidence. On August 27, 1966 Satadal Banerjee, a clerk in the office of the Presidency Post Master, Accounts Department, GPO was examined to prove the correctness of Ext. No.9. On September 28, 1966 Amritlal Das, an Upper Division Clerk in the office of the Post Master General, Calcutta gave evidence. He deposed to the salary and pension drawn by Shri Haradhan Mukherjee and he stated in answer to a question put by the Enquiring Officer that he did not know whether Shri Haradhan Mukherjee obtained any permission or gave any intimation regarding purchase of any immoveable property in his name or in the name of any of his dependents. On October 10, M. A. Hamid who was the 7th and the last witness called on behalf of the prosecution started giving his evidence. In course of his examination-in-chief Hamid stated that he was working in the Special Police Establishment since 1957 and on receipt of information from some source he made enquiries regarding the assets of Shri Biswanath Mukherjee and during his enquiries he examined Biswanath Mukherjee, his father Haradhan Mukherjee and other witnesses. Hamid stated that Biswanath Mukherjee had furnished his assets statement in 7 proformas which he produced and which is collectively marked as Ext. 10. Hamid further stated in course of his examination-in-chief that Haradhan Mukherjee, Biswanath Mukherjee's father had no source of income apart from his earnings from his service and in answer to the question put by the Enquiry Officer as to how he knew that Haradhan Mukherjee had no other source of income. Hamid stated that he had examined Haradhan Mukherjee who had given a written statement to him and in that statement he gave the details of his income and from those details it was found that he had no other source of income except from his service but the statement however, showed that Haradhan Mukherjee received from his father a lump sum amounting to Rs. 6000/- and this amount was received by Haradhan Mukherjee after the death of his father in 1914-15. It is also Hamid's evidence that 41/5B, Russa Road was assessed by Calcutta Corporation on 1.4.40 when it was single storied and Haradhan Mukherjee constructed the second storey of the building which was assessed from 3rd quarter of 1950-51 by Calcutta Corporation and there was further addition to this building during the year 1959-60. It is also Hamid's evidence that 41/5B, Russa Road was assessed by Calcutta Corporation on 1.4.40 when it was single storied and Haradhan Mukherjee constructed the second storey of the building which was assessed from 3rd quarter of 1950-51 by Calcutta Corporation and there was further addition to this building during the year 1959-60. In course of his examination-in-chief Hamid further stated-“It was found that neither Shri Haradhan Mukherjee nor his wife had the means to invest for acquiring the aforesaid house in New Alipore. So it is presumed that Shri B. N. Mukherjee has invested the money". In answer to the question put by the Enquiring Officer to Hamid as to whether Haradhan Mukherjee stated anything regarding the house or as regards the source of money Hamid said that Haradhan Mukherjee had stated that the money was invested by his wife who learned the money by her agency for the sale of National Savings Certificates and also from the rent of the ground floor of the Russa Road building. Hamid also stated that Haradhan Mukherjee never filed any Income-tax return. Sm. Sudbarani Debi submitted Income tax return for the first time on 26.4.63 for the years 1962-63 and 1963-64 and in these returns she showed the income from the New Alipore building and the income from the Russa Road building was not shown by her since as per her declaration in the income tax return the said property was acquired wholly by the earnings of her husband. He fun her stated that Shri Biswanath Mukherjee filed five income tax returns from 1959 onwards on 6.9.63 declaring therein his income from salary and income from Bank Accounts and nothing else. Hamid further mentioned in course of his examination in-chief that under letter No. 6157/21/SPC/63-1D. 11 Cal. dated 3.9.63, S.P.E. requested the Senior Superintendent, Foreign Post Office to state whether Shri Haradhan Mukherjee obtained permission from the competent authority to acquire any immoveable/moveable property or to construct any building or to engage himself in the business of selling National Savings Certificates either in his own name or in the name of any of his dependents and to this letter the Senior Superintendent, Foreign Post replied stating that no information on the point was available in the office. Hamid produced in original this letter addressed by S. P. S. P. E. which was marked as Ext. No. 16. Hamid produced in original this letter addressed by S. P. S. P. E. which was marked as Ext. No. 16. It appears from the proceedings that on the conclusion of the examination-in-chief of Hamid Shri S.P. Ghosh who was assisting the respondent in the enquiry lodged a protest which is recorded in the following terms. "In my presence reliance on statement by police is objected. Many statements, enquiries in the Post Office, Income tax etc. were not disclosed." 19. On October 26, 1966 Hamid was cross-examined. In course of his cross-examination Hamid stated that he did not examine Sm. Sudharani Debi and his knowledge about the financial status of Sm. Sudbarani Debi or her parents is confined to what her husband Shri Haradhan Mukherjee stated to him. Hamid further stated that he recorded two statements of Shri Haradban Mukherjee, one was recorded by him in his hand which was not signed by Haradhan Mukherjee and the other was recorded by Haradhan Mukherjee in his own hand and was signed by him and these two statements are dated 12.8.63 and 4.10.63. He said that the statement dated 4.10.63 had already been exhibited and he produced the statement dated 12.8.63 which was received and exhibited as Ext. No. 17. 20. Hamid in his cross-examination admitted that summons under section 94 of the Criminal Procedure Code had been issued and served on Haradhan Mukherjee. He stated that during the course of his investigation he had seen the Deed in respect of the New Alipore plot of land and the said Deed was executed by Life Insurance Corporation in favour of Sm. Sudharani Debi. He also stated that he had checked the records of Calcutta Corporation and the records of the Calcutta Corporation showed that Sm. Sudharani Debi was the owner of the said premises at New Alipore and according to Hamid the right of selling the New Alipore property was with Sm Sudharani Debi in whose name the building stood. It is Hamid's evidence that the enquiry in the case was conducted on receipt of information which was received in the office but he had no recollection as to who received the information. It is Hamid's evidence that the enquiry in the case was conducted on receipt of information which was received in the office but he had no recollection as to who received the information. When specifically asked as to whether Hamid recorded any F. I. R. Hamid said in answer that F. I. R. was recorded for preliminary investigation and when asked who recorded the FIR Hamid said that he found that an information was recorded by his SP and was endorsed to him for information and this he round on perusal of his records. It appears that at this stage of the proceeding the Enquiring Officer put to Hamid certain questions as to what Hamid understood and meant by FIR and in answer to the questions of the Enquiring Officer Hamid stated that the recording of the information by the SP did not amount to recording of FIR and when he had said that FIR was recorded for preliminary investigation he meant recording of sources of information and in the instant case apart from recording the sources of information by the SP no FIR had been recorded. Upon the said answers given by Hamid to the questions put to him by the Enquiring Officer Shri S. P. Ghosh who was assisting the respondent and was cross-examining Hamid on his behalf called upon Hamid to show the information recorded by the S. P. The Enquiring Officer disallowed the said request on the ground that the said information was a privileged communication and was of confidential nature and did not form part of the record on the basis of which the Enquiring Officer was to reach his findings. Hamid further stated that when his investigation was over he submitted his report of investigation. Hamid was specifically asked whether during the course of his investigation of the case he came across any instances wherein Shri Biswanath Mukherjee accepted any illegal gratification and Hamid's answer was that no direct evidence to that effect was available. Hamid was also specifically asked as to whether he had any proof that Sri Biswanath Mukherjee has any interest in the New Alipore property and his answer was-"He is the only son of his parents. His parents have no other son. They have three daughters so far as I remember". On the conclusion of Hamid's evidence the prosecution closed its case. His parents have no other son. They have three daughters so far as I remember". On the conclusion of Hamid's evidence the prosecution closed its case. On November 9, 1966 J. W. Davis, Inspector of Customs was examined as a defence witness by Sri S.P. Ghosh on behalf of the respondent. This witness stated in his Examination-in-chief that the respondent worked under him in various fields in all amounting to three years, spreading over the period 1958-59 to 1962-63 and as per his observation, knowledge and belief, integrity of the respondent was of the highest order and no complaint from the passengers, Ship's crew or members of trade against the respondent was ever brought to his notice. This witness further stated that as regards the respondents standard of living he had not seen a bigger miser since he would not stand even a cup of tea to anybody. In course of his cross-examination this witness stated that the respondent was performing his duties always under his direct watch and supervision and he could say what a subordinate was doing throughout the duty period under him, but he could not say anything as to what he was doing outside the duty hours. He further stated that any complaint against the subordinate staff would have gone to Assistant Collector of Customs, Preventive, but before that the complaint would come to him and then through him it would go to the Assistant Collector, Preventive. He further stated that he had no knowledge whether any complaint against the respondent was lodged with the Collector of Customs or the Assistant Collector of Customs. In answer to the questions by the Enquiring Officer the witness stated that he had no knowledge of any property owned by the respondent or his father or his mother or any other relative of the respondent and he could not form any opinion about the respondent's standard of living. There was some re-examination of this witness Davis and after re-examination there was further cross-examination of him and in course of this further cross-examination Davis stated that all the answers given by him were based on his personal knowledge and memory and were not based on any documents. 21. The next defence witness called on behalf of the respondent was Sri N. B. Bhattacharya and he was also the last and only other witness called on his behalf. 21. The next defence witness called on behalf of the respondent was Sri N. B. Bhattacharya and he was also the last and only other witness called on his behalf. This witness was also appointed as a Preventive Officer, Grade II and was a colleague of the respondent in the department. This witness stated that he and the respondent joined the department on the same day. It is his evidence that he and the respondent worked together on various occasions and he formed an opinion that the respondent's integrity was above board. He further stated that he had heard that the respondent was well connected from his paternal and maternal side and he had occasion to meet his father and other relation including an ex-Chief Presidency Magistrate Shri Mukherjee. one Dr. Bhattacharyya, one Shri Chatterjee who was a Chartered Accountant and one Attorney on the occasion of his marriage. In course of his cross-examination this witness stated that he was not supposed to keep an eye on the integrity of all his colleagues but during the period 1958-62 he was on a secret job and as such he had occasion to know about the integrity of some of the Officers in the rank of Preventive Officers working in some specified sections viz. Air Port, Rummaging Shipping. His further evidence was that his job was not to watch the integrity of the officers as such but it was incidentals to his job. It appears that this witness was hesitant to furnish details of his system of work during 1958-62 but on request by the Enquiry Officer he stated as below-"I was concerned with collection of intelligence regarding smuggling by air and sea during the said period. The informations collected by me would net point to any single officer who would be helping in smuggling operations but doubt would naturally fall on the entire group of officers who would constitute a unit or a batch for the particular flight etc. On such occasions, Shri B. N. Mukherji was never found to be one of the various officers, constituting a batch or a unit. Therefore, his integrity was never suspected". On such occasions, Shri B. N. Mukherji was never found to be one of the various officers, constituting a batch or a unit. Therefore, his integrity was never suspected". This witness was further asked in course of the cross-examination whether during the period 1956-58 he had any occasion to observe the conduct of the respondent outside his duty hours his character, habits his circle of friends and his dealings with public and in answer to the said question this witness stated that apart from meeting the respondent once in National Library, once on the occasion of his wedding he had not met him outside working hours. The Enquiring Officer put to this witness certain questions and this witness stated that his entire deposition was based on his memory and was not based on any documents in the present moment. On November 1966 written arguments on behalf of the department and also on behalf of the respondent were made over to the Enquiring Officer. 22. It appears that on the 19th November 1906, the date on which written note containing the arguments of the parties were submitted to the Enquiring Officer the Enquiring Officer sent a memo offering to supply certain documents. The respondents by his letter dated the 24th November, 1966 addressed to the Enquiring Officer protested against belated offer and sent the following reply-"With reference to your Memo dated the 19th instant I beg to state that it is mandatory that the documents relied on by the prosecution and documents required by the accused for his proper defence should be supplied at the proper stage of the proceedings. Violation of the aforesaid mandatory principles cannot be cured by making an offer at this stage. Moreover, existence of some documents were suppressed, supply of some documents though asked for were not given and inadmissible evidence was laid on the basis of alleged statement to a Police Inspector. All these have seriously jeopardised my defence. Therefore, no purpose will be served by your abstract offer at this stage. Regarding your postscript, with due obedience to you. I had requested Sm. Sudharani Debi to tender evidence. But in view of her lawyer's letter I regret my inability to approach her again. If you can cause her appearance, I will attend during her deposition. 23. The Enquiring Officer made his report on the 24th April, 1967. Regarding your postscript, with due obedience to you. I had requested Sm. Sudharani Debi to tender evidence. But in view of her lawyer's letter I regret my inability to approach her again. If you can cause her appearance, I will attend during her deposition. 23. The Enquiring Officer made his report on the 24th April, 1967. In his report, the Enquiring Officer rejected the case of the respondent that the total value of the premises, i.e., New Alipore Property was Rs. 29.765/-, the value of the land being Rs. 1226/- and the cost of construction of the building being not more than Rs. 17600/-. The Enquiring Officer placed no reliance on the report of Sri Ghosh, an Engineer and Valuer on the ground that the respondent did not call him as a defence witness and no opportunity whatsoever was given to the presenting officer to rebut the finding of Shri Ghosh. The Enquiring Officer further observed that the respondent laid no evidence to prove that the objection said to have been filed against the Corporation valuation was sustained and the Enquiring Officer held that there was, therefore, no reason to believe that the assessment already done was erroneous. The Enquiring Officer observed that during the cross-examination of Sri S. N. Sanyal. the Assistant Inspector of Calcutta Corporation who was prosecution witness No. 2 the respondent was not able to discredit the basis of assessment and the basis of determination of the capital value and the Enquiring Officer held that the value of the building including the cost of land should therefore be taken to be Rs. 59400/-. On the question of ownership of the property the Enquiring Officer considered the statement made by Haradhan Mukherjee as also the evidence tendered as to the earning of Haradhan Mukherjee and noted that Haradhan Mukherjee did not obtain any permission from the competent authority to acquire any immoveable property or to construct any building either in his own name or in the name of any of his dependents and held that the property at New Alipore could not have been acquired with the income of the father i.e. Haradhan Mukherjee. The Enquiring Officer further held that Sm. Sudharani Debi, the mother of Biswanath Mukherjee earned commission of only Rs. The Enquiring Officer further held that Sm. Sudharani Debi, the mother of Biswanath Mukherjee earned commission of only Rs. 312.50 and had no other source of income except an amount of Rs.30 p.m. which her husband used to give her and concluded that it is ill-conceived to imagine that she had enough income of her own to construct the building the capital value of which had been determined to be Rs. 47,520/-. The Enquiring Officer observed also considering the pay and allowances drawn by the father of the accused and keeping in view the fact that with this meagre income he had to maintain himself, his wife his son (accused) and three daughters, to educate his son and to spend money on the marriage of three daughters, it is hard to imagine that he could have contributed any money towards the acquisition of this property". As per P.W.6 the father of the accused started his career as a clerk with a starting pay of Rs. 45/- p.m. (excluding the allowances) and retired as a Lower Selection grade clerk with a pay of Rs. 190/-per month (excluding the allowances). His pension was fixed at Rs. 82.50 per month. For a person of such meagre resources, it would have been a job to maintain a family consisting of wife and four children including three daughters for whose marriage substantial money had to be spent. To imagine that he could have contributed any thing towards the acquisition of such valuable property is next to impossible. It should be borne in mind that this property came into being after the accused joined the Customs Deptt. The time factor is quite relevant and suggests that the accused contributed towards the acquisition of the property. The Enquiring Officer further observed, The time lag between the date of independent posting for the accused and the date of selection of the plot is nearly 17 months which cannot be called insignificant by any stretch of imagination. By the time construction started, the accused had put in longer service. There is nothing absurd in the probability of a Customs Officer making so much money in a period of 17 months. Commenting on the statement of the father which is one of the document, being document No.7 in the list of documents relied on by the prosecution in support of the charge, the Enquiring Officer has observed. There is nothing absurd in the probability of a Customs Officer making so much money in a period of 17 months. Commenting on the statement of the father which is one of the document, being document No.7 in the list of documents relied on by the prosecution in support of the charge, the Enquiring Officer has observed. This clearly suggests that the money towards the acquisition of this property did not come from the mother of the accused and it is an unsuccessful attempt on the part of the accused's father to divert suspicion falling on the accused. Dealing with the statement made by the father that his wife Sm. Sudharani Debi earned a commission of Rs. 12,500/-the Enquiring Officer has held that he did not accept the said contention and he has further observed "Moreover, even an amount of Rs. 12,500 (Without conceding) along with the money received Rs.30/-p.m. cannot account for the acquisition of a property worth Rs. 47,500/-". The Enquiring Officer has also commented for not calling the mother as a witness and on the refusal of the respondent to be examined by the presenting officer in the enquiry. Dealing with the evidence of Davis, the first witness called on behalf of the accused, the Enquiring Officer has held that his evidence is irrelevant and no weight can be attached to the same and his evidence does not prove that the accused could not have resorted to have corrupt practices. The Enquiring Officer has also placed no reliance on the evidence of Bhattacharjee the other witness called on behalf of the defence and has observed that the opinion of this witness about the integrity of the accused is absolutely uncalled for. He further observed-The entire evidence of the witness is far fetched and irrelevant...The witness is, therefore, not qualified to absolve the accused from any possibility of having made money by corrupt and illegal means. The Enquiring Officer held-"Considering the evidence on record, I hold that the property in question was not acquired with the resources of the accused's mother or father but was acquired with the resources of the accused himself." The Enquiring Officer concluded that the charge against the accused of (a) having acquired assets disproportionate to his known sources of income, (b) obtaining pecuniary advantage to himself and (c) to maintain absolute integrity and devotion to duty has been proved beyond reasonable doubt. 24. 24. On May 27, 1967 the Collector of Customs served on the respondent the second show cause notice requiring him to make his representation as to why he should not be removed from service in view of the findings of the Enquiring Officer with which the Collector of Customs agreed. By his letter dated the 14th of June, 1967 the respondent replied to the said second show cause notice and made his representations. The respondent in his reply contended that the entire enquiry proceedings had been vitiated and the said enquiry was not binding on him and no action could be taken on the basis of the said enquiry and without prejudice to the aforesaid contention the respondent further submitted as follows :- (1) That there was no evidence whatsoever to substantiate the charge against him. (2) That on the evidence on record, no person with an unbiassed mind could have come to the purported findings. (3) That the findings are perverse, speculative conjectural and are based on mere suspicion and hypothesis without an iota of evidence, legal, acceptable or otherwise. (4) That there had been denial of natural justice and reasonable opportunity had not been afforded to him to place his defence before the Enquiry Officer, inter alia, on the grounds that he was not supplied with documents which were vital for his defence he was not supplied with the list of witnesses; examination of Sri R. N. Sen desired by him was arbitrarily refused and even when his father died, a month's respite was not given to him. He further stated in his reply that the house at New Alipore belonged to his mother who was not a member of his family according to the Government Servant Conduct Rules and he was not answerable for her actions and his mother had settled the said property in favour of his sisters and the respondent had no right, title and interest in the said property. The respondent in his said reply asked for a personal hearing and further asked for permission to be defended by a lawyer at the time of personal hearing and for consideration of his request for permission to be defended by a lawyer the respondent in his reply stated as follows: “You have decided to impose the maximum penalty under the Rules and if such penalty cannot give rise to sufficient circumstances, then the provision regarding lawyers in C.S.C.C. & A Rules is redundant. This is more necessary as Appraiser Shri S. P. Ghose, who is assisting me is in this case feels that in such a case, hearing will take at least two hours. the law points are too complicated and delicate for a layman like him and that he will not be able get all the law books necessary for explaining the case at the time of personal hearing which I crave for. Hence, the request for legal assistance. I shall refer to all the relevant documents and papers and evidence in this case at the time of hearing before you”. By his letter dated the 28th June, 1967 addressed by Shri R. N. Sen, Assistant Collector of Customs for Establishment and Administration to the respondent the prayer of the respondent for legal assistance was refused. As grounds for refusal of the said request of the respondent for legal assistance it was stated in the said letter that the issues involved did not justify the same, departmental proceedings had to be decided as per Classification, Control and Appeal Rules and cannons of natural justice and the departments case was not being represented by a lawyer. 25. On September 27, 1967 the respondent submitted his written notes of argument to the Collector of Customs. In the written note the respondent raised, inter alia, the following contentions: (1) In this proceeding he was not answerable for his mother's actions, assets, and sources of income etc., as his mother was not dependent on him and was not a member of his family. (2) The burden of proof rested entirely on the department and the department did not produce an iota of evidence in discharging the burden. (3) It was not for the respondent to establish as to how Sm. (2) The burden of proof rested entirely on the department and the department did not produce an iota of evidence in discharging the burden. (3) It was not for the respondent to establish as to how Sm. Sudharani Devi acquired the property at New Alipore, nor could any enquiry be made on the basis of the charge sheet submitted as to how Sm. Sudharani Devi acquired the property. The respondent did not acquire the said property and he did not have any right, title or interest in the said property. (4) Principles of natural justice and the fundamental principles of Criminal Jurisprudence had not been observed and disqualifying bias manifested itself. 26. On February 6, 1968 the Collector of Customs passed the impugned order removing the respondent from service. In making this order the Collector of Customs has observed-"Before I deal with the primary evidence, I note that an allegation of prejudice was levelled against the Inquiry Officer in view of his refusal to grant postponement of hearing and the using of certain words in his report. I have carefully considered the various urgings and am satisfied that there is no bias on the part of the Inquiry Officer. I have considered the various points urged in the reply to the notice as well as at the time of the personal hearing. The principal point for consideration in this case is whether the house at New Alipore belongs to Sri Biswanath Mukherjee or his mother. I find that even after his marriage Sri Biswanath Mukherjee stayed with his parents, contributing a fair portion of his salary towards expenses. Thus, he continued to be a part of a joint household during the relevant period. No evidence has been let in to show that the mother of Biswanath Mukherjee had independent means to construct the house. His father was a clerical employee of the Posts and Telegraphs Departments; even after his marriage the family had to obtain a good portion of his monthly salary towards the running of the household. An attempted explanation about some commission earned by the mother has not been fully proved. In fact, having raised the point one would expect Shri Mukherjee or his mother to come out with the full proof. Shri Mukherjee's mother did not choose to appear before the Inquiry Officer; a party that went to evaluate the house was not allowed admittance. An attempted explanation about some commission earned by the mother has not been fully proved. In fact, having raised the point one would expect Shri Mukherjee or his mother to come out with the full proof. Shri Mukherjee's mother did not choose to appear before the Inquiry Officer; a party that went to evaluate the house was not allowed admittance. Thus it is ought to be Implied that the mother did not like to do anything that would be of assistance to the son. The picture is hardly convincing when it is now reported that on the death her husband the mother is alleged to have given away her interest in the house to the daughters. One would expect tae mother, who claims to be not on good terms with her only son, to hold on to that little property as an insurance against ill-treatment by her daughters. The death of a person is not an occasion for the wife to give away her interest in the property alleged to be self-acquired. Considering all the aspects of the case, I am satisfied that the charge framed against Shri Biswanath Mukherjee of having assets disproportionate to his income has been fully established; in a Revenue Service such as ours, a person of doubtful integrity cannot have a place. Therefore, I consider that the punishment of removal from service is merited and order accordingly". 27. By his letter dated the 4th of May, 1968 the respondent called upon the Collector of Customs to withdraw the said order and demanded justice. The present application was moved by the respondent on June 27, 1968 and a Rule nisi was issued on that date. As earlier noted by his judgment and order dated the 13lh April, 1970 T. K. Basu, J held that the charge framed against the respondent in the instant case was bad and the learned Judge made the Rule absolute only on that ground without deciding any other questions. This appeal has been preferred against the said judgment and order of T. K. Basu J. and as we have earlier noticed P. B. Mukharji, C.J. and B.C. Mitra, J. who heard this appeal, by their judgment and order dated the 18th February, 1971 remanded the case to the learned trial Judge for his views on the four points set out in the judgment of the Court of Appeal. T. K. Basu, J. has expressed his views on the said four points on the basis of the said order of remand and this appeal has now come up before us for final disposal. 28. During the hearing of this appeal arguments, both on merits and on technical points, were advanced before us. Each and every contention put forward by one party was vehemently disputed by the other. Neither party was willing to give any quarter to the other. We however like to record that arguments on various points were very ably advanced by the counsel of either party. We further like to express our appreciation of the fact that at the end of his argument a written note of the argument advanced on behalf of the Customs Department was made over to us by the Department's counsel. 29. We now propose to deal with the various contentions raised before us in the appeal. 30. The first point argued by the parties related to the scope of the present appeal. Mr. G. P. Kar, learned counsel appearing on behalf of the appellants in course of his brief opening of the appeal. submitted that in view of the earlier judgment and decision of the appellate court remanding the matter to the learned trial Judge for his decision on the four points set out in the judgment of the Court which we have noted earlier and on the basis of the findings recorded by the learned trial Judge on the said four points this appeal ought to succeed and should be allowed. He has argued that the decision of the learned trial Judge holding that the charge was defective has not been upheld by the appellate court by its decision dated February 18, 1971 and further no appeal or cross-objection has been filed against the findings recorded by the learned trial Judge on the matter being remanded to him. According to Mr. Kar in the absence of any objection or appeal being filed against such findings of the learned trial Judge, the said findings of the learned Trial Judge realty go unchallenged and are binding on this Court. Mr. According to Mr. Kar in the absence of any objection or appeal being filed against such findings of the learned trial Judge, the said findings of the learned Trial Judge realty go unchallenged and are binding on this Court. Mr. Kar, therefore, contends that the findings of the learned trial Judge are all against the respondent and it is not open to the respondent to challenge any of the said findings in this appeal without preferring an appeal or cross-objection against the said findings of the learned trial Judge. Mr. Kar has submitted that there are five points out of which one point which was decided by the learned trial Judge against his clients has not been upheld by the appellate court and so far as other four points are concerned they have been decided in favour of his clients by the learned trial Judge by his decision dated September 17, 1971 and that decision has not been challenged by the respondent by preferring an appeal or cross-objection. Therefore, according to Mr. Kar the appeal should succeed. Mr. Kar further contended that as the appellate court directed the learned trial Judge to record the findings only on four points set out in the judgment of the appellate court while making the order of remand it is not open to the respondent, in any event, to urge any other new point in this appeal and all other points which the respondent might have taken in his objections must be considered to have been abandoned by him. In short, it is the contention of Mr. Kar that the respondent is not entitled to urge any other point in this appeal than those set out in the judgment of the appellate court and on which the learned trial judge was directed to record his findings on the matter being remanded to him and with regard to the said four points on which the learned trial Judge has recorded his findings on remand, the respondent is not competent to challenge the said findings at this stage of final hearing of the appeal as he has not filed any appeal or cross-objection against the said judgment and findings of the learned trial Judge. Mr. Mr. Kar has submitted that in view of the findings recorded by the learned trial Judge on the matter being remanded to him this court, following the earlier judgment of the Appellate Court, should allow the appeal. 31. Mr. Dipankar Gupta, learned Standing Counsel appearing on behalf of the respondent has submitted that the decision of the learned trial Judge is in favour of respondent and the learned trial Judge for reasons stated in his judgment Las quashed the order of dismissal and has made the Rule absolute. The learned Standing Counsel submits that it may be true that the learned trial Judge rested his decision on only one point without deciding the other contentions raised before him but the decision was nonetheless a decision in fovour of the respondent. The learned Standing Counsel contends that as the decision is a decision in favour of the respondent, it is open to him to support the said decision of the learned trial Judge, though based on one particular point, on all other points which, though not decided by the learned trial Judge, will tend to support the said decision, without preferring any cross-objection. Mr. Gupta has argued that the judgment of the appellate court is only on the question of the validity of the charge-sheet and the appellate court has not pronounced the charge sheet to be good and the appellate court, though it has not agreed with the reasoning of the learned trial court, has only expressed the view that for proper appreciation of the question the findings on the other four points formulated in the judgment of the court of appeal are necessary and the appellate court remanded the matter to the trial court for recording the findings of the trial court on the said four points. Mr. Gupta. has pointed out that while making the order of remand the appellate court did not give any direction as to the taking of any objection by any of the parties to the findings that might be arrived at by the learned trial Judge after hearing the matter on remand and the appellate court did not fix any time for preferring any memorandum of objections by any of the parties to the findings that the learned trial Judge might come. In this connection Mr. In this connection Mr. Gupta has drawn our attention to the provisions of Rule 26 of Order 41 of the Code of Civil Procedure which provides: "(1) Such evidence and findings shall form part of the record in the suit; and either party may, within a time to be fixed by the Appellate Court, present a memorandum of objections to any findings". (2) After the expiry of the period so fixed for presenting such memorandum the Appellate Court shall proceed to determine the appeal". Mr. Gupta has also drawn our attention to section 141 of the Code of Civil Procedure which lays down that: "The procedure provided in this Code in regard to suits shall be followed, as far as it may be made applicable in all proceedings in any court of civil jurisdiction". Mr. Gupta has contended that the order for remand was made to enable the Court of Appeal to decide finally whether the charge sheet against the respondent in the instant case is good or bad as the learned trial Judge disposed of the entire matter only on the said ground. It is the contention of Mr. Gupta that the Appellate Court has held that the findings on the four points set out by the Appellate Court in its judgment were necessary to determine finally the question whether the charge sheet was good or bad. It is the argument of Mr. Gupta that the said view expressed by the Appellate Court does not preclude the respondent from urging other points or raising other contentions in support of the decision of trial Court, which is in his favour. Mr. Gupta submits that even if the appellate court had come to the conclusion that the learned trial Judge was not right in his conclusion that the charge framed against the appellant was invalid and illegal, it would still have been open to the respondent to support the said decision of the learned trial Judge on any other ground though the learned trial Judge had not decided the said other points. In support of this submission Mr. Gupta relies on the provisions contained in Order 41 Rule 22 of the Code of Civil Procedure which provides that any respondent, though he may not have appealed from any part of the decree may support the decree on any of the grounds decided against him in the court below. Mr. In support of this submission Mr. Gupta relies on the provisions contained in Order 41 Rule 22 of the Code of Civil Procedure which provides that any respondent, though he may not have appealed from any part of the decree may support the decree on any of the grounds decided against him in the court below. Mr. Gupta contends that as the entire order is in favour of the respondent, there is no question of his filing any appeal from the same of preferring any cross-objection with regard to any part thereof and it is open to him to urge all the grounds in support of the said decision though the said grounds might have been decided against his client by the court below. Mr. Gupta bas also drawn our attention to the provisions contained in Rules 23, 24, 25 and 33 of Order 41 and has submitted that the power of the Appellate Court is indeed very wide. Mr. Gupta also submitted that the respondent is entitled to support the decision of the trial court also on the grounds which might not have been taken notice of by the trial court but were patent on the face of record. In support of his argument Mr. Gupta, learned Standing Counsel, has relied on various decisions viz., (2) official Assignee of Calcutta v. Bidyasundari Dasi & ors., AIR 1920 Calcutta 93 ; (3) Virdhachalam Pillai v. Chaldean Syrian Bank Ltd. AIR 1964 SC 1425 ; (4) Ramanbhai Ashabhai Patel v. Dabhi Ajit Kumar Fulsinji & Ors., AIR 1965 SC 669 ; (5) Management of the Northern Railway Co-operative Credit Society Ltd., Jodhpur v. Industrial Tribunal Rajasthan, Joipur & Anr., AIR 1967 SC 1182 . 32. Mr. 32. Mr. Gupta has finally contended that notwithstanding his aforesaid submissions if this Court is of the opinion that objection should have been filed by the respondent challenging the findings of T. K. Basu, J, on the matter being remanded to him this Court should now fix a particular time for filing of such objections under Order 21 Rule 26 of the Code of Civil Procedure inasmuch as at the time of making the order remanding the matter to the learned trial Judge the Appellate Court did not make any provision with regard to filing objections against the findings of the learned trial Judge by the parties in terms of the provisions contained in Order 21, Rule 26 and also did not fix any time for filing the objections as provided in the said Rule. It is the contention of Mr. Gupta that a party cannot be deprived of his right of taking such objections at the final hearing of the appeal for lack of appropriate directions by the Appellate Court in the said matter and it is the duty of the Court to give appropriate directions with regard to the filing objections by any party in the larger interest of justice to enable the party to take necessary objection to the said findings made by the learned trial Judge in his subsequent judgment on remand. 33. With regard to the question now under consideration three points in our view, really arise for determination. They are: (i) Whether Order 41, Rule 22 of the Code of Civil Procedure applies to the instant case; (ii) Whether Order 41, Rules 25 and 26 of the Code applies in this case and (iii) Whether it is open to the respondent to urge any point which, though not taken notice of by the Court below, is patent on the face of the record. 34. Under Order 41, Rule 21 of the Code of Civil Procedure as noted earlier, the respondent may support the decree on any of the grounds decided against him. Therefore if the decision still stands in favour of the respondent it is open to him to support it on any ground decided against him. 34. Under Order 41, Rule 21 of the Code of Civil Procedure as noted earlier, the respondent may support the decree on any of the grounds decided against him. Therefore if the decision still stands in favour of the respondent it is open to him to support it on any ground decided against him. According to the learned counsel for the appellants the decision of the learned trial Judge in favour of the respondent having been set aside by the appellate Court by its judgment dated February 18, 1971 it cannot be said that there is any judgment or decision in his favour which can be supported on any of the grounds decided against him by the learned trial Judge upon the matter being remanded to him. Therefore, according to the learned counsel Order 41, Rule 22 of Civil Procedure Code does not apply in the instant case. The learned counsel for the appellants relied on the various cases, to wit, (6) V.P.R.V. Chockalingam Chetty v. Seethai and others, AIR 1927 Privy Council 252; (7) Hardi Ram Pandey v. Kaliprasad Singh & Ors., AIR 1949, Patna 79 ; (8) Madanlal Kothari v. The Bank of Maharashtra & Anr., AIR 1964 MP 262 ; and (9) Rajendra Narayan Roy v. Bhairabendra Narayan Roy, AIR 1938 Calcutta 563. 35. Excepting the case of (5) Management of the Northern Railway Co-operative Credit Society Ltd. Jodhpur v. Industrial Tribunal, Rajasthan, Jaipur & Anr. AIR 1967 SC 1128, with which we shall deal later, the other cases cited on behalf of both the parties only relate to the scope of Order 41, Rule 22 of the Code of Civil Procedure and, therefore, it is not necessary, in our view, to deal with those cases in any detail. It is well settled that under Order 41, Rule 22 of the Code of Civil Procedure a respondent who bas not preferred any appeal or cross-objection is only entitled to support the decree on anyone of the grounds decided against him, but be cannot challenge the decree itself without filing an appeal or cross-objection. It bas therefore, to be seen if the provisions of Order 41 Rule 22 applies to this case or not. In our view it does. The present position of the instant case appears to be this. It bas therefore, to be seen if the provisions of Order 41 Rule 22 applies to this case or not. In our view it does. The present position of the instant case appears to be this. The decision of the learned trial Judge, T.K. Basu, J. dated April 13, 1970 in favour of the respondent has not yet been set aside. The appellate court, who first heard the appeal, has not accepted the reasoning of the learned Judge for holding that the charge was bad. But, according to the appellate court for coming to a decision whether the charge was bad or not it was necessary to have findings on the other four points noted in the judgment of the appellate court and for that purpose remanded the case to the learned trial Judge for deciding those four points. The learned trial Judge has decided those four points against the respondent. After the learned trial Judge has returned his findings on the four points upon the matter sent to him on remand the same appeal is being heard by us. The Appellate Court did not yet decide that the charge against the respondent was good and did not set aside the judgment and order of the learned trial Judge. The Appellate Court thought it fit and proper not to dispose of the appeal, but to remand the matter to the trial Court for its findings on the four points enumerated in the judgment of the Appellate Court. Whether any remand for deciding the question of the validity of the charge was necessary or not is a question with which we are not concerned at this stage. The position remains that the appeal remains and the decision against which the appeal has been preferred by the Collector of Customs and others is a decision in favour of the respondent. As the said decision in the appeal is in favour of the respondent and has not been set aside and the subject-matter of the appeal is a decision in favour of the respondent, it is open to him to support that decision on any ground decided against him by the learned trial Judge on remand. As the said decision in the appeal is in favour of the respondent and has not been set aside and the subject-matter of the appeal is a decision in favour of the respondent, it is open to him to support that decision on any ground decided against him by the learned trial Judge on remand. To us the position at present appears to be that there is a decision of the trial Court in favour of the respondent who obtained the rule which has been made absolute by the trial Court and the learned trial Judge in coming to his decision bas, as if it were, decided one point in favour of the respondent and the other points against him. 36. In the case of the (5) Northern Railway Co-operative Credit Society Ltd., Jodhpur v. Industrial Tribunal, Rajasthan, Jaipur, AIR 1967 SC 1182 an appeal was preferred to the Supreme Court against the decision of the Industrial Tribunal, Rajasthan. The Supreme Court observed that the decision of the Tribunal could be supported on grounds which were not accepted by the Tribunal or on other grounds which might not have been taken notice of by the Tribunal while they were patent on the face of the record. In our view the principle laid d0wn by the Supreme Court applies to this case. Accordingly, we hold that it is open to the respondent to support the decision appealed against on the grounds decided against him as also on the grounds which though not taken notice of by the learned trial Judge but are patent on the face of the record. 37. As in our opinion Order 41, Rule 22 of the Code of Civil Procedure applies to this case it is not necessary for us to deal with the other contentions of the parties on this point. We, however, wish to observe that if we had any doubts as to the applicability of Order 41 Rule 22 in the instant case we would have undoubtedly held that the respondent should be given time to file cross-objection against the findings of the learned Judge on the four points remanded to him, and we would have granted leave to the respondent accordingly. 38. 38. It was next contended by the learned Standing counsel that the respondent was found guilty of a charge of benami, that is to say, the respondent was found guilty of acquiring asset viz. New Alipore Property in the benami name of his mother. It was urged that the said charge of benami was not in the charge sheet. Therefore, the learned counsel submitted that the charge sheet and the enquiry made pursuant thereto are vitiated. It was however argued on behalf of the appellants that this point is covered by the judgment of the appellate Court which heard the appeal before remand and, therefore, this point is no longer open to the respondent. Counsel for the appellants relied on the following observation of the Appellate Court: "Now the question of benami does not appear to us to vitiate the proceedings because the whole point was whether the petitioner was in possession of assets disprotionate to his known sources of income. The enquiry is implicit as to whether the assets though may be standing in the name of his mother were in reality his assets. By itself such a consideration would not in our view vitiate the enquiry. It is therefore, necessary to come to certain findings on those four questions." With regard to this question T. K. Basu, J. who heard the matter upon remand observed: "From this it is obvious that the petitioner understood the charge-sheet to include a charge of acquisition of assets in the "Benami" name of his mother and dealt with that charge in elaborate detail. Consequently, it must be held that principles of natural justice have not been violated by not including an express reference to acquisition of assets in "Benami" by the petitioner in the charge sheet and the petitioner has not suffered any prejudice and had not been handicapped in his defence in any manner. This contention on behalf of the petitioner, therefore, fails." The above observation of the Appellate Court, in our opinion, concludes the matter. Further, this aspect of the matter was fully considered by the learned Judge who heard the matter after remand. We full agree with the reasoning and the finding of the learned Judge on this point. 39. This contention on behalf of the petitioner, therefore, fails." The above observation of the Appellate Court, in our opinion, concludes the matter. Further, this aspect of the matter was fully considered by the learned Judge who heard the matter after remand. We full agree with the reasoning and the finding of the learned Judge on this point. 39. Now, we shall deal with the respondent's allegation in respect of violation of the Rules and principles of natural justice in course of enquiry proceeding which according to the respondent deprived him of the reasonable opportunity of depanding himself as guaranteed under Art. 311(2) of the Constitution of India. The respondent complains about the following violations during the course of enquiry: (i) List of witnesses though called for were not supplied to the respondent. (ii) Documents called for by the respondent were not furnished to him. (iii) Enquiry Officer refused to call witnesses named by the respondent. (iv) Permission was refused to the respondent to be represented by a lawyer in the enquiry proceeding. According to Mr. Gupta the above amounted to a violation of Central Civil Services (Classification, Control and Appeal) Rules 1957 (hereinafter referred to as the 1957 Rules" and Central Civil Services (Classification, Control and Appeal) Rules 1965 (hereinafter referred to as the "1965 Rules") and principles of natural justice. 40. Before we take up the above four points for consideration, we think, it is necessary to decide a controversy that has arisen between the parties viz., whether the 1965 Rules apply to this case. Because if 1965 Rules do not apply then some of the above points will be without force. 41. According to Mr. Gupta 1965 Rules which came into force on December 1, 1965 would apply because the hearing before Enquiring Officer really commenced in December 1965 although charge sheet was served on the respondent in March 1964 when 1957 Rules were in force. Mr. Gupta contended that the enquiry proceeding was pending on December 1, 1965 when 1965 Rules came into force and, therefor", on and from the said date the proceeding would be governed by 1965 Rules. He drew our attention to Rule 34 of the 1965 Rules 'Which reads as follows :- "34(1)-Subject to the provisions of rule 33, the Central Civil Services (Classification, Control and Appeal) Rules, (1957) and the Civilians in Defence Service (Classification. He drew our attention to Rule 34 of the 1965 Rules 'Which reads as follows :- "34(1)-Subject to the provisions of rule 33, the Central Civil Services (Classification, Control and Appeal) Rules, (1957) and the Civilians in Defence Service (Classification. Control and Appeal) Rules 1952, and any notification or orders issued thereunder in so far as they are in consistent with these rules are hereby repealed Provided that- (a) such repeal shall not affect the previous operation of the said rules, or any notification or order made, or anything done, or any action taken, thereunder; (b) any proceedings under the said rules, pending at the commencement of these rules shall be continued and dispose of as far as may be, in accordance with the provisions of these rules, as if such proceedings were proceedings under these rules." 42. It was the contention of Mr. Gupta that inasmuch as in the instant case enquiry proceedings taken under 1957 Rules were pending on the date on which 1965 Rules came into force it had to be continued and disposed of as far as might be, in accordance with the provision of 1965 Rules. Mr. G. P. Kar, learned counsel for the Customs Department, however, contended that the enquiry proceedings which commenced under 1957 Rules would not be affected by the 1965 Rules. He relied on Rule 34(1) (a) and section 6 of the General Clauses Act. He contended that in the instant case all substantive actions, to wit, framing of charge, drawing up and furnishing of statement of allegations filing of the respondent's written statement before the Enquiring officer, appointment of the Enquiring Officer, and the Presenting Officer, had taken place before the date of commencement of 1965 Rules viz. December 1, 1965. He submitted that the provisions in the show cause notice dated March 5, 1964 regarding giving of inspection of documents by the Government and taking of inspection of the documents by the delinquent officer are all based on the relevant rules of 1957 Rules. It is the contention of Mr. Kar that violations of the rules complained of by the respondent are all matters of substantive law and these question should be governed by the relevant rules of the 1957 providing for such matters. He has further submitted that the respondent having previously complained that the violations are. It is the contention of Mr. Kar that violations of the rules complained of by the respondent are all matters of substantive law and these question should be governed by the relevant rules of the 1957 providing for such matters. He has further submitted that the respondent having previously complained that the violations are. matters of substance cannot now turn round and say that these are matters of procedure. He relied on the cases of (10) T. S. Balia v. T. S. Rangachari, Income-tax Officer, Central Circle VI, Madras, AIR 1969 SC 701 and (11) Shamlal Sen Private Ltd v. Additional Collector of Customs & others, AIR 1967 Calcutta 239. It was further contended by Mr. Kar that even if it was held that the matters arising after December 1965 would be governed by 1965 Rules still it could not be said that there was any violation of 1965 Rules in this case inasmuch as almost all the questions regarding procedural matters viz., inspection of documents, summoning of documents etc. arose or were mooted before the Enquiring Officer and fell to be decided by the authorities concerned before December 1965 although some actual correspondence communicating certain decisions regarding those matters took place after December 1965. He bas referred to the list of documents annexed to charge sheet dated March 5, 1964 and submitted that inspection of the documents mentioned therein was directed to be completed within 7 days after the said date and of the other documents within the 5 days from the said date. Therefore, according to Mr. Kar these matters would be regulated by 1957 Rules. 43. We are unable to accept the contention of Mr. Kar. In our view the clear provisions of Rule 34 of 1965 Rules decide the issue. According to Clause (a) of sub-rule (1) of rule 34 repeal of 1957 Rules would not affect the previous operation of the said Rules or any notification or order made or anything done or action taken thereunder. In other words, by the repeal any operation of the 1957 Rules or any notification or order made or anything done or any action taken under 1957 Rules before its repeal was not affected. All such matters remained valid even after the repeal of 1957 Rules. In other words, by the repeal any operation of the 1957 Rules or any notification or order made or anything done or any action taken under 1957 Rules before its repeal was not affected. All such matters remained valid even after the repeal of 1957 Rules. Clause (b) on the other hand, however, says what will happen to the proceedings which had started under 1957 Rules but were pending on the date on which 1965 Rules came into force. It provides that all such proceedings would be continued and disposed of as far as might be in accordance with the provisions of 1965 Rules as if the proceedings have been taken under those Rules, It is. therefore, clear that the effect of the two clauses is that all matters mentioned in clause (a) which had already taken place under 1957 Rules would not be affected by the repeal of the said Rules but the proceedings pending on the date of repeal would, as far as might be, continued and disposed of according to the provisions of 1965 Rules. Therefore, if the disciplinary proceedings had started under 1957 Rules but was not concluded before December 18, 1965 (when 1965 Rules came into force) all matters which had taken place in the proceedings before the said date would remain valid but the said proceedings after the said date would be continued according to 1965 Rules as far as might be. In this case enquiry proceedings against the respondent commenced under 1957 Rules but it was pending on December 18, 1965 when 1965 Rules came into force and, therefore, after the said date the proceedings, in our opinion, should have been continued and disposed of as far as might be under 1965 Rules, as if the proceedings bad been taken under the new Rules. The validity of all actions taken and orders made in the proceedings prior to December 18, 1965 in accordance with the provisions of 1957 Rules would not however in any be affected due to repeal thereof. In the aforesaid view of the matter it is not necessary for us to deal with the other contentions raised on behalf of the appellants or the cases cited on their behalf in any detail. The cases cited by Mr. Kar, in our view, are distinguishable. In the aforesaid view of the matter it is not necessary for us to deal with the other contentions raised on behalf of the appellants or the cases cited on their behalf in any detail. The cases cited by Mr. Kar, in our view, are distinguishable. It may however, be noted that as a 'different intention' appears in Rule 34 (1) of 1965 Rules. Section 6 of the General Clauses Act 1897 replied upon by Mr. Kar is of no assistance to his clients. In the aforesaid view of the matter whatever be the nature of the violation of the Rules complained of, be it procedural or substantive, if any such violation amounts to a violation of any rule of 1965 Rules and the same had taken place after the said Rules came into force, that would, in our view, affect the enquiry proceedings. 44. We now deal with the contention of the respondent that list of the witnesses was not supplied to him. In support of this contention learned counsel for the respondent relied on 1957 and 1965 Rules. He has, however, commented that in the Rules of 1957 and 1965 there is no material difference in the relevant Rules which have a bearing on the questions involved in the present proceeding. Mr. Gupta has referred to Rule 14 of the Rules of 1965 and the various sub-rules thereof. Rule 14 which contains various sub-rules lays dawn the procedure which bas to be followed for imposing penalties on any delinquent Government servant. Sub-rules (3) and (4) on which Mr. Gupta relies in this connection are in the following terms-(3) where it is proposed to hold an enquiry against a Government servant under this rule and rule 15, the disciplinary authority shall draw up or cause to be drawn up- (i) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charges; (ii) a statement of imputations of misconduct or misbehaviour in support of each article of charge, which shall contain- (a) statements of all relevant facts including any admission or confession made by the Government servant; (b) a list of documents by which, and a list of witnesses by whom the articles of charge are proposed to be sustained. (4) The disciplinary authority shall deliver or cause to be delivered to the Government servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each articles of charges is proposed to be sustained and shall require the Government servant to submit within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person. Mr. Gupta has argued, while delivering to the respondent the copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour along with a list of documents was also delivered but list of witnesses was not furnished and in this connection he has drawn our attention to the relevant document which are contained in Annexure 'B' to the petition and appear at pages 40-48 of the Paper Book and he has commented that the list of witnesses was not furnished in terms of the provisions contained in the aforesaid Sub-rules (3) and (4) of Rule 14 Mr. Gupta has also drawn our attention to the document bearing Memo No. S-24-3/64 dated the 6th June, 1966 (which appears at pages 174-176 of the Paper Blok) addressed by M.L. Khunger, Enquiring Officer to the respondent and has pointed out that in item No.8 of the said document the Enquiring Officer while dealing with the respondents requests for information regarding the names of the witnesses to be examined on behalf of the department stated as follows: "(i) An employee of Calcutta Customs House to prove pay and allowance of the accused. (ii) An Officer from the office of the Assessor, Calcutta Corporation to prove the value of the building. (iii) Names of other witnesses shall be intimated in due course. 45. Mr. Gupta has commented that names of other witnesses were never intimated to the respondent. Mr. Gupta has referred to the statements made by the respondent in paragraphs 17, 8, 20 and 35(j) of his petition and has submitted that the respondent in the said petition has made the specific case that the list of witnesses was not delivered to him and the enquiry was conducted in contravention of the provisions of the Rules and the fundamental principles of natural justice. Mr. Mr. Gupta has further commented that no affidavit denying the allegations has been field by the Enquiring Officer and the affidavit which has been filed in opposition by R. N. Sen is of no consequence as the said R. N. Sen was not competent and in a position to deal with the said allegations of the respondent and the specific case made by him. Mr. Gupta has further argued that even in the said affidavit of Shri R. N. Sen, there is no proper denial of the said statements of the respondent and he has drawn our attention to the statements contained in paragraphs 20 and 21 of the affidavit of Sri R. N. Sen. Mr. Gupta has contended that it is a mandatory requirement of Sub-rules (3) and (4) of Rule 14 that the list of witnesses must be submitted to toe Government servant and the said requirement is also in conformity with the principles of natural justice. It is the contention of Mr. Gupta that by not furnishing the list of witnesses there has been a clear violation of the mandatory provision of the Rules and also of the principles of natural justice. Mr. Gupta in this connection has referred to the decision of this Court in the case of (12) Golam Mohiuddin v. State of West Bengal & Ors. reported in AIR 1964 Calcutta 503 = 68 CWN 215 46. It was however contended on behalf of the appellants that according to 1957 Rules Disciplinary Authority was not bound to supply the names of witnesses. He submitted that 1957 Rules did nor contain any provision corresponding to Rule 14(4) of 1965 Rules. Learned Counsel has contended that though Rule 14(4) requires delivery or list of witness to the Government servant but such list is to be supplied when the charge is made and delivered to him, which in this case took place long before 1965 and, therefore, Rule 14(4) has no application in the instant case. Hence according to the learned counsel no question of violation of Rule 14 (4) of 1965 Rules does arise in this case. He has further contended that non-supply of the names of the witnesses beforehand is not such a grievous breach of natural justice as would amount to denial of reasonable opportunity within the meaning of Article 311 of the Constitution. He has further contended that non-supply of the names of the witnesses beforehand is not such a grievous breach of natural justice as would amount to denial of reasonable opportunity within the meaning of Article 311 of the Constitution. It is the contention of the learned counsel that this is not one of the four points remanded by the decision of the Appellate Court and, therefore, strictly speaking, we should not entertain this point. With regard to Golam Mohiuddin's case it was submitted that the point which is now under our consideration was not specifically considered in that case. In that case the question of not supplying the names of the witnesses, the learned counsel stated, was considered along with the question of inspection of documents. Further, in that case, 1957 Rules were also not considered and the decision was made on the basis that statements were not given and not on the ground that names of the witnesses were not supplied. Therefore, according to the learned counsel, Golam Mohiuddin's case is clearly distinguishable. 47. It is true that this point is not specifically covered by the four points remanded by the Appellate Court but as this point is patent on the face of the record being specifically taken by the respondent in his petition of the writ application and answered by the appellants in their opposition to the writ petition the point can be urged in appeal in support of the decision of the trial Judge. In the instant case it appears to us that charges were framed and communicated to the respondent in accordance with the relevant provisions of 1957 Rules and those Rules did not require submission of a list of witnesses along with the articles of charge. Learned counsel fur the appellants is right in saying that as the delivery of charge-sheet took place in 1964.when 1957 Rules were in force, the question of compliance with Rule 14 (4) of 1965 Rules does not arise in this case. Rule 14 (4) directs. as noticed earlier, delivery of the list of witnesses with the articles of charge and as that stage was over prior to corning into force of 1965 Rules, in our opinion, no question of violation of Rule 14 (3) (4) does arise in this case. Rule 14 (4) directs. as noticed earlier, delivery of the list of witnesses with the articles of charge and as that stage was over prior to corning into force of 1965 Rules, in our opinion, no question of violation of Rule 14 (3) (4) does arise in this case. It should be noted that 1957 Rules did not contain any provision exactly corresponding to the provisions of Rule 14 (3) and (4) of the 1965 Rules. We are, therefore, of the opinion that there has been no violation of the rules and we are further of the opinion it cannot be said that non-supply of the list of witnesses amounted to a violation of the principles of natural justice. The question which does arise, in our opinion, is whether a party against whom an enquiry is being made has been given reasonable opportunities to defend himself or not, and in that context it has to be seen if reasonable opportunity has been given to the accused to deal with the evidence adduced against him. In the facts and circumstances of this case it cannot be said that non-supply of the list of witnesses caused any prejudice to the respondent and amounted to any denial of reasonable opportunity of dealing with the evidence adduced for defending the case of the respondent. We are, therefore, unable to accept the contention of the respondent on this point. We are also of the opinion that Golam Mohiuddin's case is not of any assistance to the respondent on this point and so far as this particular aspect is concerned that case is distinguishable as will appear from the following observation of Benerjee J. in that case. "The previous statements made by witnesses were part of the record. The petitioner wanted to know the names of witnesses, who were going to depose against him, and the Enquiring Officer thought it proper to show him the statements presumably because he had thought that the previous statements of witnesses would be utilised against the petitioner. In giving inspection of the statements to the petitioner, however, he held back some of the statements and lulled the petitioner in the belief that he had been given inspection of statements of all the witnesses, who would depose against him. In giving inspection of the statements to the petitioner, however, he held back some of the statements and lulled the petitioner in the belief that he had been given inspection of statements of all the witnesses, who would depose against him. Thereafter, suddenly to confront the petitioner with other witnesses, whose previous statements he had not seen, and to ask him to cross-examine such witnesses at once was to embarrass him and to prejudice him in putting up his defence." 48. The next ground of violation of Rule 14 of 1965 Rules and the principles of natural justice in the enquiry proceeding relates to non-furnishing of documents which were called for by the respondent for the preparation of his defence. Mr. Gupta in this connection bas referred to paragraphs 17-20 of the petition and bas submitted the non-production of the following documents called for by the respondent amounted to a violation of Rule 14 and resulted in a denial of reasonable opportunity to the respondent. (1) Sethi's preliminary report. (2) First Information Report. (3) Hamid's Investigation Report. (4) Exhibit No. 12 in the enquiry proceeding, which is the certified statement of account in 10 sheets of Haradhan Mukherje's Postal Savings Bank Account in the G. P. O. bearing No. 614495 opened on 6.4.36. (5) Exhibit No. 16, which is a letter No. 6157/21/S.P.C./63 ID 11 Cal., dated 3.9.63 by SPE to the Senior Superintendent. Foreign Post, Calcutta by which SPSPE requested the said Senior Superinrendant to state whether Sri Haradhan Mukherjee obtained permission from the competent authority to acquire any moveable/immoveable property or to construct any building or to engage himself in the business of selling National Savings Certificate either in his own name or in the name of any of his dependents. Mr. Gupta has submitted that Sethi held a preliminary enquiry and the findings of Sethi were very material for the respondent for properly defending himself in the enquiry proceeding as the said findings of Sethi would have undoubtedly indicated what were the materials that would be used against him consisted of. On the First Information Report (hereinafter referred to as 'FIR' for the sake of brevity), Mr. Gupta has relied on the following evidence of Hamid as recorded by the Enquiring Officer. "Q. Did you record a FIR? Ans. FIR was recorded for preliminary investigation. Q. Who recorded the FIR? Ans. On the First Information Report (hereinafter referred to as 'FIR' for the sake of brevity), Mr. Gupta has relied on the following evidence of Hamid as recorded by the Enquiring Officer. "Q. Did you record a FIR? Ans. FIR was recorded for preliminary investigation. Q. Who recorded the FIR? Ans. What I find is that an information was recorded by my SP and endorsed to me for investigation. This I find on perusal of my records. Question by Enquiry Officer: "what do you understand by FIR? Ans. FIR stands for First Information Report. It is a report filed by the complainant with Police Officer and is the basis to initiate the enquiry. By complainant I mean the aggrieved person. If on enquiry the allegation contained in the FIR appears to be substantiated, a charge sheet will be filed in the Court. Question by Enquiry Officer: "In the present case you have stated that (a) the FIR was recorded for preliminary investigation (b) that your SP recorded an information. Does this recording of information by your SP amount to recording of FIR ? Ans. The recording of the information by the SP does not amount to recording of FIR Further question by Enquiry Officer Q. When you stated that FIR was recorded for preliminary investigation what exactly did you mean? Ans. I meant recording of sources of information. Further question by Enquiry Officer: "In the present case did you record any FIR apart from the recording sources of information by SP ? Ans. .. No. Shri S.P. Ghose asked the witness to show the information recorded by the S.P. The Enquiry Officer disallowed the request since the said information is a privileged document and is of confidential nature and does not form part of record on the basis of which the enquiry officer is to reach his findings." 49. Mr. Gupta has also pointed out that in the letter of the Enquiring Officer dated June 6, 1966 the Enquiring Officer while dealing with this request for supplying a copy of FIR has stated "No. FIR was recorded in this case. The case was simply registered with SPE and copy of this cannot be supplied to accused being a privileged document. Also, the enquiry shall not be governed by this report." 50. Mr. The case was simply registered with SPE and copy of this cannot be supplied to accused being a privileged document. Also, the enquiry shall not be governed by this report." 50. Mr. Gupta bas pointed out that the said documents cannot be considered to be privileged and the learned trial Judge has held that the said documents are not privileged. Mr. Gupta further comments that it is not open to the Enquiring Officer to refuse production of inspection of any document on the ground of privilege and the party who is in possession of the documents and who may be called upou to produce the same at the enquiry may only take the plea of privilege and may claim that he should not be called upon to produce the document on the ground of privilege. Mr. Gupta criticises the view expressed by the learned trial Judge that non-production of the said documents has not in the facts and circumstances of this case resulted in the violation of the principles of natural justice as the Enquiring Officer has not taken into consideration the said documents and has not been guided by the same. Mr. Gupta argues that it is quite clear from the facts and circumstances of this case that the Enquiring Officer has in fact gone through the said documents and the mere fact that the said documents are not referred to by the Enquiring Officer in his report does not indicate or establish that he has not in any way been influenced by the said documents. Mr. Gupta contends that in any event the said documents were material for the purpose of the defence and non-production of the said documents has materially prejudiced the defence of the respondent. In this connection Mr. Gupta has relied on the decision of the Delhi High Court in the case of (13) K. N. Gupta v. Union of India reported in AIR 1968 Delhi 85. Mr. Gupta has commented that the learned trial Judge has not placed proper weight to the fact that the allegations made in paragraph 20 of the petition on this aspect of the matter has not been dealt with in the affidavit filed by Shri R. N. Sen and there is no affidavit from the Enquiring Officer. In support of his contention Mr. In support of his contention Mr. Gupta has also relied on the cases of (14) Byomkesh De v. Controller of Telegraph Stores & Ors., 67 CWN 966; (15) State of West Bengal v. Sailendra Nath Bose, AIR 1964 Calcutta 184 = 68 CWN 203 and (12) Golam Mohiuddin v. State of West Bengal, AIR 1964 Cal 503 = 68 CWN 215. 51. With regard to Sethi's preliminary report, First Information Report and Hamid's Investigation Report learned counsel for the appellants contended that it is not correct to say that the allegation regarding the same as contained in paragraph 20 of the petition have not been denied in the affidavit-in-opposition. Learned counsel took us through paragraph 22 of the opposition and submitted that the material allegations of paragraph 20 of the petition have been denied though by mistake the number of the paragraph was not mentioned. He further submitted that production of those documents was refused on two grounds, viz., (1) privilege and (ii) Enquiring Officer would not rely upon them. It was the submission of the learned counsel that though the expression 'privilege' was used by the Enquiring Officer but what he really meant to say by that expression was that it was not in public interest to disclose those documents which related to the preliminary investigation which the enquiry Officer was fully entitled to under Rule 15 (3) of 1957 Rules. He bas also submitted that documents need not be supplied unless they are relied upon by the Enquiring Officer. He has referred to the relevant portion of the judgment of T. K. Basu, J. dated September 17, 1971 and has relied on the cases of (16) Dr. Tribhuwan Nath v. The State of Bihar & another, AIR 1960 Patna 116 and (17) Amulya Ratan Mukherjee v. Deputy Chief Mechanical Engineer, Eastern Railway and others, AIR 1961 Calcutta 40. The learned counsel also submitted that except the case reported in (14) 67 CWN 966 which deals with the question of privilege and its limits, the other cases cited on behalf of the respondent were distinguishable. We shall deal with the submissions of the learned counsel on the cases cited on behalf of the respondent when we shall deal with the cases hereafter. 52. We shall deal with the submissions of the learned counsel on the cases cited on behalf of the respondent when we shall deal with the cases hereafter. 52. In the case of (14) Byomkesh v. Controller of Telegraph Stores & Ors., 67 CWN 966 the petitioner challenged the order of the Enquiring Officer in the disciplinary proceeding initiated against him under Article 226 of the Constitution. In this case the petitioner asked for opportunity to inspect and take extract from certain documents so as to enable him to prepare his defence. The respondent Controller, however, refined permission to the petitioner to inspect certain documents or to take extracts therefrom on the ground that three of the documents were not relevant for the purpose of preparing the defence and that it was against public interest to allow access to other documents. One of the grounds taken by the petitioner in challenging the order of the Enquiring Officer was that Rule 15(3) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 was violated by the disciplinary authority. The Court held that under Rule 15(3) of the Central Civil Services (Classification, Control & Appeal) Rules, 1957 a Government servant has the right to inspect all the documents that he may specify and require for the purpose of preparing his defence. The disciplinary authority may refuse inspection or the taking of extracts if he is of opinion (i) that the records are not relevant for the purpose of preparing defence by the person charged with misconduct or (ii) that it is against public interest to allow him access thereto. This opinion is not, however, a subjective opinion and must be supported by reasons to be recorded in writing. The Court further observed that the error committed by the respondent Controller in that case in disallowing inspection in respect of the documents was that merely expressed the opinion either that they were not relevant for the purpose of preparing defence or that it was against public interest to allow access to those documents and why be arrived at that opinion he did not say. The Court in that case allowed the petition. It should be noted that in the case inspection of the documents was asked for by the delinquent officer before submission of his written defence to the charge-sheet. 53. The Court in that case allowed the petition. It should be noted that in the case inspection of the documents was asked for by the delinquent officer before submission of his written defence to the charge-sheet. 53. In the case of (15) State of West Bengal v. Sailendra Nath Bose, AIR 1964 Calcutta 184 = 68 CW N 203 the Court was considering the validity of an order of dismissal of the respondent, a Government servant. In that case the charge was submitted to the Government on May 19, 1959 and disciplinary proceeding was started under Rule 45 of the Civil Services (Classification, Control and Appeal) Rules. The allegation against the Government servant was demand of illegal gratification and acceptance of the same from different Police Officers. Charges were grouped under 4 main heads. By letter dated May 27, 1959 the Government servant asked for copies of various documents including statements of the Officers and witnesses if any, alleged to have been present at the time of occurrence on October 15, 1958, the statement of Sergeant Dhar in respect of some incident and a copy of his own statement alleged to have been made before the Special Officer, Enforcement Department. By a letter dated May 28, 1959 the Enquiring Officer informed the Government Servant that copies of the statement of witnesses could not be supplied at that stage but that he would be offered an opportunity to inspect the record containing those statements in proper time after he had put in his written statement. The respondent's written statement was put in on June 10, 1959. By a letter of even date the respondent again asked fur opportunity of depending himself by the supply of the copies of statements and other papers mentioned in his letter of May 27, 1959. By a letter dated June 15, 1959 the Enquiring Officer communicated to the respondent that copies of the documents could not be supplied to him but that he might ask for inspection of the record containing evidence so far collected against him. In support of the allegations of the violation of natural justice in enquiry one of the grounds taken was that copies were not supplied to the Government servant to enable him to cross examine the witness. In support of the allegations of the violation of natural justice in enquiry one of the grounds taken was that copies were not supplied to the Government servant to enable him to cross examine the witness. It was held that the objection of the respondent that be was seriously handicapped in the matter of cross-examination of witness because of non-supply of copies of documents was a substantial one, and that one could not lose sight of the fact that the respondent had to get ready to cross-examine all the witnesses who were going to be examined against him and that he could only hope to do so effectively if he had the materials for cross-examining them. With regard to some of the documents called for the Court remarked that the Enquiring Officer did not hold that those documents were altogether irrelevant. The Appellate Court upheld the decision of the trial Judge by saying that he was justified in coming to the conclusion that failure to have these documents produced in proper time was a violation of the rules of natural justice which should have been observed at the enquiry stage. Learned counsel for the appellants commented on that case by saying that there was no preliminary enquiry in that case and the documents asked for by the delinquent officer related to the incident which was the basis of the charge and came into existence on the day of the occurrence or soon thereafter and in that background Court held that those documents should have been supplied after the charge was framed. He further submitted that in that case documents called for did not relate to any stage of Preliminary investigation but tended to prove or disprove the charge itself and were also relied upon by the Enquiring authority. According to learned counsel in the background of the aforesaid facts Court held that non-supply of those documents amounted to a violation of the rules of natural justice. According to learned counsel in the background of the aforesaid facts Court held that non-supply of those documents amounted to a violation of the rules of natural justice. It is true that the documents in that case did not relate to preliminary enquiry but were statement of witnesses and personal diaries of the delinquent officer and other persons of the date of the incident but on principle it does not appear to make any difference whether the documents relate to preliminary enquiry on the basis of which a charge is framed or other documents, if they are relevant and called for by the delinquent officer for the purpose of cross-examination in support it of his defence. Certainly, if the production of those documents is refused on the ground that they are irrelevant different consideration may arise. We are however not concerned with that aspect of the matter in this case in view of the fact that refusal was on two specific grounds mentioned hereinbefore. We therefore do not think there is any force in the comment of the learned counsel on the above case. 54. The case of (12) Golam Mohiuddin v. State of West Bengal & Ors., AIR 1964 Calcutta 533 = 68 CWN 215 also relates to dismissal of a Government servant. In that case in support of the contention of the Government servant that he was not given sufficient opportunity to defend himself and rules of natural justice were not observed by the Enquiring Officer, one of the grounds taken was that documents called for by the Government servant were not produced. The Court held that one of the documents called for was the personal file of one Sukumar Benerjee who was examined at the enquiry and had been eulogised in the fact finding report by Satyendra Nath Mukherjee as a loyal Government servant, although he was subsequently dismissed from service for misconduct. The Court observed "The definite of the petitioner was that the charges against him were the product of malicious propaganda carried on by Sukumar Banerjee along with others. His personal files might have helped the petitioner in making out this branch of his case. The Court observed "The definite of the petitioner was that the charges against him were the product of malicious propaganda carried on by Sukumar Banerjee along with others. His personal files might have helped the petitioner in making out this branch of his case. By not producing files which were in possession of the Government, the petitioner was certainly prejudiced." Learned counsel for the appellants tried to distinguish this case by submitting that in that case the document withheld from the delinquent Officer neither beloned to the prelimininary investigation nor those documents were not to be relied upon by the Enquiring Officer. As in that case inspection of the documents which were going to be relied upon by the Enquiring Officer was not given, the Court held there was violation of the principles of natural justice. 55. We do not think the aforesaid comments of the learned counsel are well founded. In that case the documents called for were the personal files of a witness who was examined at the enquiry. It does not appear whether the Enquiring Officer was going to rely on those documents, viz., the personal files. The documents were really wanted for the purpose of cross-examining the witness who was giving evidence against the delinquent officer and in that view of the matter the Court held that delinquent officer was prejudiced as those documents might help him in cross-examining the witness. In that view of the matter we are unable to accept the submissions of the learned counsel for the appellants on this case. 56. We now come to the case of (13) K. N. Gupta v. Union of India AIR 1968 Delhi 85. This is also a case of dismissal of a Government servant. In that case it was held that department was not bound to supply copies of documents to the accused officer in departmental enquiry when inspection of the documents and taking of extracts by the Officer were permitted. In that case reference was made to the following extracts from the decision of the Supreme Court in (18) Trilok Nath v. Union of India, Civil Appeal No. 322 of 1957, dated 1.11.1960. In that case reference was made to the following extracts from the decision of the Supreme Court in (18) Trilok Nath v. Union of India, Civil Appeal No. 322 of 1957, dated 1.11.1960. "Therefore, in our view the failure of the enquiry Officer to furnish the appellant with copies of the documents such as the first information report and the statements recorded at the Shidipura House doring the investigation must be held to have caused prejudice to the appellant in making his defence at the enquiry. The enquiry held must, in these circumstances, be regarded as one in violation not only of Rule 55 but also of Article 311 (2)." 57. Learned Counsel for the appellants commented that from the decision of the Delhi High Court the precise facts and circumstances under which the Supreme Court made the said observations do not appear. He submitted it might well be that those observations by the Supreme Court were made in the background of the facts of that case viz, the Enquiring Officer in his report relied on the first information report and the statements recorded during the preliminary investigation and therefore, the Supreme Court justly interfered in that case. It was further pointed out that in his second judgment dated September 17, 1971, T.K Basu J. observed there is nothing to show that the Enquiring Officer relied on those documents and, therefore, on that ground Supreme Court decision was distinguishable. It is true that in the above case of the Delhi High Court the facts of the said Supreme Court case do not appear but it is clear that the above observation of the Supreme Court rested on the basis that the non-production of the documents called for prejudiced the defence of the Government servant. The test is, as will appear from the observation of the Supreme Court quoted above, whether non-production of the documents has prejudiced the delinquent in his defence in any way. 58. In the case of (16) Dr. The test is, as will appear from the observation of the Supreme Court quoted above, whether non-production of the documents has prejudiced the delinquent in his defence in any way. 58. In the case of (16) Dr. Tribhuwan Nath v. The State of Bihar & Anr., AIR 1960 Patna 116 it was observed: -'There is no law nor rule forbidding the Government to have a confidential enquiry made prior to the framing of a charge, and the delinquent officer cannot as a matter of right have a copy of the report of Anti-Corruption department or, for the matter of that, of any Government Officer, unless the report formed part of the evidence before the enquiry Commissioner and was relied upon by him' With regard to the report of the Anti-Corruption department it was further observed that when, however, that report was not at all exhibited nor was it referred to nor relied upon by the Commissioner (Enquiring Officer) there was no meaning in contesting it and consequently, absence of opportunity to meet its contents involved no violation of constitutional provisions. It should be noted that in that case the Court was not considering the question if a document was called for by the delinquent officer during the enquiry proceedings as being relevant for the purpose of cross-examining the witnesses then whether withholding of that document without proper ground would amount to a violation of the principles of natural justice and deprive the delinquent of the reasonable opportunity to defend under Article 311 of the Constitution. The Patna decision, therefore, in our view, is distinguishable. 59. The above decision of the Patna High Court was distinguished in the case of (19) State of Madhya Pradesh v. Chintaman Sadashiva Waishampayan, AIR 1961 SC 1623 . In the Supreme Court case with regard to non-supply of the document, i. e., application on the strength of which the preliminary enquiry against the respondent was commenced the Court observed-"Then as to the application on the strength of which the preliminary enquiry was commenced against the respondent, we agree with High Court in holding that there was no justification for keeping back this document. Like the prior statements of Rajab Ali and Noorbhai this document also has been improperly characterised as secret and withheld from the respondent. Like the prior statements of Rajab Ali and Noorbhai this document also has been improperly characterised as secret and withheld from the respondent. If he had been given the documents which be bad called for the respondent would have been able to cross-examine the witness adequately, and in their absence he suffered from a handicap which in the result denied him a reasonable opportunity which is guaranteed to him under Article 311(2)". It should be noted that the Supreme Court distinguished the Patna decision observing that "In our opinion, this decision cannot assist the appellant's case because, as we have already pointed out, the documents which the respondent wanted, in the present case were relevant and would have been of invaluable assistance to him in making his defence and cross-examining the witnesses who gave evidence against him". 60. In the case of (17) Amulya Ratan Mukherjee v. Deputy Chief Engineer, Eastern Railway and others, AIR 1961 Calcutta 40 cited on behalf of the appellants the distinction between Fact-finding enquiry and Departmental enquiry was pointed out. This decision in our view, does not help the appellants. 61. It appears that the decision of the learned Judge on this point was given on the reasoning that as the Enquiring Officer did not rely upon those documents and there was no indication in his report that they were considered by him the petitioner (the respondent herein) was not justified in making any grievance for non-production of those documents. It may be so from that point of view but the real question to be considered, in our opinion, is as noticed earlier, whether in the absence of those documents the respondent was unable to cross-examine the witnesses adequately, particularly Hamid, and as a result thereof he suffered from a handicap resulting in denial of reasonable opportunity of defending himself as guaranteed under Article 311(2) of the Constitution. It should however be noted that the Enquiring Officer did not refuse production of those documents on the ground that they were not relevant. The Enquiring Officer has not recorded any finding that the documents are not relevant. We are also unable to accept the submission of the learned counsel for the appellants that when the Enquiring Officer refused inspection of the documents on the ground of 'privilege' such refusal in effect was on the ground of 'public interest'. The Enquiring Officer has not recorded any finding that the documents are not relevant. We are also unable to accept the submission of the learned counsel for the appellants that when the Enquiring Officer refused inspection of the documents on the ground of 'privilege' such refusal in effect was on the ground of 'public interest'. He submitted that the expression 'privilege' was used by the Enquiring Officer to mean 'public interest'. It was the contention of the learned counsel that access to the documents was refused on the ground of 'public interest' in terms of Rule 15 (3) of 1957 Rules. We are unable to accept the contention of the learned counsel for the appellants. The word 'privilege' is not synonymous with the word ‘public interest’. Refusal of production or inspection of a document on the ground of 'privilege' may of may not mean that production thereof will be against 'public interest'. But in the instant case as the Enquiring Officer has not stated any reason beyond mentioning the expression 'privilege'. It will, in our view, be an wild speculation to conclude that by the said expression he meant 'public interest'. Further, in view of the facts and circumstances of this case Rule 15(3) does not appear to be relevant. That rule is applicable to the stage before filing of the statement of defence and in the instant case that stage was over prior to 1966 when the documents were called for by the respondent. It should also be noticed that none of the reasons stated in the letter dated June 6, 1966 whereby production of document was refused, was mentioned in the said Rule. In this connection it may also be noted that in 1965 Rules there is no Rule corresponding to Rule 15(3) of 1957 Rules. In the aforesaid view of the matter and particularly, in view of the observation of the Supreme Court in Trilok Nath's case cited earlier we hold that by reason of non-production of the three documents mentioned above there has been a violation of the principles of natural justice which deprived the respondent of the reasonable opportunity to defend himself as guaranteed by Article 311(2) of the Constitution. 62. With regard to documents. being Exhibit Nos. 62. With regard to documents. being Exhibit Nos. 12 and 16 mentioned above, which wert:, produced during the course of enquiry proceeding we are of the opinion that learned Counsel of the appellants is correct in saying that the respondent had opportunity of looking into those documents and if he so wanted, he could have asked, for time for cross-examining the department's witnesses on the basis of those' documents. He has also relied on the case of (20) State of Orissa v. Murlidhar Jena, AIR 1963 SC 405. In that case regarding production of an earlier statement of witness Supreme Court observed that-"If the respondent thought it necessary to obtain its copy he could have easily obtained it and could have even asked for an adjournment to enable him to cross-examine the witness on that statement". With regard to these two documents we are of the opinion that there is no legitimate ground for the respondent's grievance that due to their absence his defence has in any way been prejudiced. On this point we are in agreement with the finding of the learned trial Judge. 63. The next ground urged in support of the violation of the Rules and the principles of natural justice was that the Enquiring Officer refused to call a material witness viz., Shri R. N. Sen who at the relevant time was posted as Assistant Collector of Customs for Establishment & Administration, inspite of the respondent's request made to him in that behalf. Learned counsel for the respondent submitted that Shri R. N. Sen was a relevant witness and the Enquiring Officer's refusal to call him as a witness for cross-examination resulted in complete injustice and amounted to denial of reasonable opportunity to the respondent to defend his case. In this connection counsel for the respondent has drawn our attention to paragraph 31 of the writ petition and paragraph 32 of the affidavit-in-opposition as also to the letter of the Enquiring Officer dated November 15, 1966 which is at page 278 of the Paper book. He has also placed before us paragraph 14 of the Report of the Enquiring Officer at page 235 of the paper book. He has also placed before us paragraph 14 of the Report of the Enquiring Officer at page 235 of the paper book. Learned counsel contended that the Enquiring Officer's answers contained in the said letter to the respondent's request to call R. N. Sen as a witness were given on the basis of the office record and he knew nothing about the matter. He further contended that R. N. Sen has not said anything in the matter. Commenting on paragraph 14 of the Enquiring Officer's Report counsel stated that Enquiring Officer was not competent to say if R. N. Sen would prove anything or not as he was not giving evidence on behalf of R. N. Sen. Learned Counsel has relied on the case (21) Anil Chandra Ghose v. Union of India & others, 1965 (10) FLR 263. Counsel for the appellants however submitted that the respondent could neither justify why R. N. Sen should be called as a witness nor could specify on what points his evidence was required. He further submitted that the respondent merely stated that evidence of R. N. Sen was required in respect of New Alipore property with which however he had nothing to do. He further pointed out that no where it was said that R.N. Sen was in conspiracy with anybody against the respondent and, therefore, his evidence would be required Drawing our attention to paragraph 14 of the report of the Enquiring Officer counsel further submitted that Enquiring Officer has recorded his reasons for his refusal as required under Rule 14(6) of 1957 Rules. It is also his contention that there is no provision in the Rules that the Enquiring Officer must examine what ever witness is named by the delinquent officer. Lastly, it was submitted that this point not being one of the four points remanded by the Appellate Court or covered by them it was not open to the respondent to agitate this point before us. 64. Regarding the last contention of the learned counsel for the appellants we bold, for reasons already stated earlier, that it is open to the respondent to agitate this point in the appeal before us. 65. Enquiring Officer's reasons for not calling R.N. Sen as a witness as stated in his letter dated November 15, 1966 and in paragraph 14 of his Report may be set out. From Letter dated November 15, 1966. 65. Enquiring Officer's reasons for not calling R.N. Sen as a witness as stated in his letter dated November 15, 1966 and in paragraph 14 of his Report may be set out. From Letter dated November 15, 1966. (paper book p.278). "As regards your request for examining Shri R.N. Sen, this is to inform you that since you have failed to justify the necessity of examining him inspite of repeated requests made to you verbally, it is regretted that your request cannot be granted. You have refused to clarify your remarks that Shri R. N. Sen conducted a second enquiry regarding valuation of the house even though I have informed you that the so-called second enquiry was conducted by SPE and Shri R. N. Sen did not conduct any enquiry apart from directing you to appear on certain stipulated date and hour fixed by the SPE for the purpose of inspection of the premises. I have further informed you that Shri R.N. Sen cannot have any further knowledge in the matter apart from what is contained in the relevant file of the Establishment Section of Customs House. This is to further inform you that I made an offer to you to examine the present A.C. Establishment who could give evidence on the has is of records. You have however, declined to accept this offer. Accordingly in the absence of any justification for examining Shri R.N., Sen, I have no option but to hold that your request is vexatious and contemplated to cause undue inconvenience to Shri R.N. Sen and further contemplated to cause delay in the proceedings. I have also asked you to note that the SPE., bad written to the Collector of Customs, Calcutta to secure your presence on the site for the purpose of inspection of the building and Shri R. N. Sen corresponded in the matter, acting for Collector and as such it is illegal to suppose that he had conducted any enquiry in the matter or he possesses any special knowledge vital for your defence, which is not already contained in the records of the Establishment section. Accordingly, I reject your request regarding examination of Shri R. N. Sen." Paragraph 14 of the Report (paper book p. 235). "14. The accused expressed a desire to summon Shri R.N. Sen as a witness. Shri R.N. Sen was posted as Asstt. Accordingly, I reject your request regarding examination of Shri R. N. Sen." Paragraph 14 of the Report (paper book p. 235). "14. The accused expressed a desire to summon Shri R.N. Sen as a witness. Shri R.N. Sen was posted as Asstt. Collector of Customs for Establishment & Administration for some of the period when the enquiry against the accused was pending. The accused could not substantiate the necessity of summoning Shri Sen as a witness beyond mentioning some vague points concerning, the valuations of the building. Since Shri Sen did not conduct any investigations whatsoever in this matter, and since he could possibly testify to only correspondence exchanged with SPE" I offered an alternative to the accused to summon the present AC.E & A. who could testify to any relevant question with the help of records. The accused was not agreeable to this. Also the accused was adamant in not justifying the necessity of summoning Shri Sen. Accordingly I felt that the accused's attempt to bring in Shri Sen was nothing hut a calculated attempt to cause undue expenditure, inconvenience and delay, etc. Since Shri Sen could not have bad any knowledge regarding the case expect what was contained in the files of the Estalishment Section, the request of the accused was, therefore, turned down." It, therefore, appears that the respondent did not advance any cogent reason for calling R. N. Sen as a witness in the enquiry proceeding. From the record it also does not appear why it was necessary for the respondent to cross-examine R. N. Sen. It is true that the grounds for the Enquiring Officer's refusal to call R. N. Sen as a witness are based on the record but that in our view does not necessarily mean that the grounds are untenable. There is no rule either in 1957 Rules or in 1965 Rules which enjoins the Enquiring Officer to call any person named by the Government servant as a witness. We also do not think that Rule 14(6) of 1957 Rules has any relevance with regard to this question. This rule does not require that the Enquiring Authority should call a person named by the Government Officer as a witness. We also do not think that Rule 14(6) of 1957 Rules has any relevance with regard to this question. This rule does not require that the Enquiring Authority should call a person named by the Government Officer as a witness. Under the rule amongst other, the Enquiring Authority may decline to examine a witness called by anyone of the parties on the ground that his evidence is not relevant or material and if he does so he shall record his reasons in writing. In any event as the request for calling R. N. Sen as a witness was made after 1965 Rules came into force Rule 14(6) of 1957 Rules is not relevant for the purpose of the question now under consideration. The case of (21) Anil Chandra Ghosh v. Union of India & Ors. cited by the Counsel for the respondent, in our opinion, is distinguishable. In that case refusal of the Enquiring Officer in a departmental disciplinary proceeding against a Government servant (a railway employee) to call two witnesses out of several witnesses named by the delinquent officer was held by the Court to be unjustified on the ground that their attendance before the Enquiring Officer could be procured without difficulty as both of them were railway employees and had knowledge of the incident because one of them was present when the occurrence took place and the other had conducted an enquiry into the incident immediately after the occurrence. This case, therefore, is of no assistance to the respondent. 66. In the aforesaid view of the matter and on the materials on record we are satisfied that Enquiring Officer was justified in not calling Sri R. N. Sen as a witness. We are therefore, unable to accept this ground urged on behalf of the respondent. 67. We shall now deal with the next ground urged on behalf of the respondent in support of his charge of violation of the Rules and of the principles of natural justice. It was urged that the respondent's prayer to be represented by a lawyer in the enquiry proceeding was turned down by the Enquiring Officer and this amounted to a violation of the Rules and the principles of natural justice: In connection with this aspect of the case Mr. It was urged that the respondent's prayer to be represented by a lawyer in the enquiry proceeding was turned down by the Enquiring Officer and this amounted to a violation of the Rules and the principles of natural justice: In connection with this aspect of the case Mr. Gupta drew our attention to paragraphs, 17, 18(g) and 35(i) and (r) of the petition, paragraph 20 of the affidavit-in-opposition and paragraphs 19, 20 and 21 of the affidavit-in-reply. He has also referred to the letters addressed by the respondent to the Enquiring Officer and the Collector of Customs as also the letters addressed by the Enquiring Officer and the Assistant Collector of Customs R. N. Sen to the respondent. The said letters are dated July 29, 1964, August 27, 1964; December 8, 1965; June 6. 1966; June 14, 1967; June 28, 1967 and they appear at pages 165, 169, 172, 174, 257, 264 of the paper book. It should be noted that all those letters are exhibits to the writ petition filed by the respondent. It appear that the Enquiring Officer refused permission on the ground that (i) the request was turned down by the Collector; (ii) department's case was not being represented by a lawyer: (iii) issues involved did not justify the engagement of a lawyer. Mr. Gupta also drew our attention to Rule 15(5) of 1957 Rules and Rule 14(8) of 1965 Rules which may be set out. Rule 15 (5) of 1957 Rules. "The Disciplinary Authority may nominate any person to present the case in support of the charges before the authority inquiring into the charges (hereinafter referred as the inquiring Authority). The Government servant may present his case with the assistance of other Government servant, but may not engage a legal practitioner for the purpose unless the person nominated by the Disciplinary Authority as aforesaid is a legal practitioner or unless the Disciplinary Authority having regard to the circumstances of the case, so permits." Rule 14 (8) of 1965 Rules. "The Government servant may take the assistance of any other Government servant to present the case on his behalf, but may not engage a legal practitioner for the purpose unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner, or, the disciplinary authority, having regard to the circumstances of the case, so permits." 68. It was contended by Mr. It was contended by Mr. Gupta that the charge against his client was very complicated involving difficult questions of fact and law and the charge was a very serious one entailing serious consequences. Further, the allegations against the respondent threatened his livelihood and any adverse comment against him in the enquiry proceeding was bound to be disastrous to him as it has proved to be. It was the contention of the learned counsel that in those circumstances it could not be expected that the respondent could act calmly or with deliberation in the enquiry proceeding. Further, the Presenting Officer who appeared on behalf of the department in the enquiry proceeding was a trained Police Prosecutor. In those circumstances, according to Mr. Gupta, his client's prayer to be defended by a lawyer, should have been granted and the refusal to allow the respondent to represent by a lawyer in the enquiry proceeding amounted to a violation of the Rules as also of the principles of natural justice. This refusal, according to the counsel, caused serious prejudice to the respondent and deprived him of the reasonable opportunity to defend himself. In support of his contention Mr. Gupta relied mainly on the Supreme Court decision in the case of (22) C.L. Subramaniam v. Collector of Customs, Cochin, AIR 1972 SC 2171. He also relied upon the Special Bench decision of this Court in the case of (23) Nripendra Nath Bagchi v. Chief Secretary, Government of West Bengal AIR 1961 Cal. 1 and a recent decision of this Court in the case of (24) Director General of Post & Telegraph & ors v. Nani Gopal Majumdar & Anr., 77 CWN 752. 69. Learned Counsel for the appellants however contended that this particular point has not been taken as a ground in the petition and further, as this point is not covered by any of the four points in respect of which order of remand was made it is not open to the respondent to agitate this point in the appeal. 69. Learned Counsel for the appellants however contended that this particular point has not been taken as a ground in the petition and further, as this point is not covered by any of the four points in respect of which order of remand was made it is not open to the respondent to agitate this point in the appeal. Learned counsel further submitted that in this case although the point was broached in some of the letters addressed by the respondent to the Customs authorities and the assistance of the lawyer was asked for yet the respondent appeared to have been content with the assistance of another departmental servant permission for which was accorded and he took the assistance of another Government servant in the enquiry proceeding and, therefore, it could not be said that the respondent had suffered any prejudice or had been deprived of the reasonable opportunity of defending himself in the enquiry proceeding., The learned counsel for the appellants relied on the cases of (25) Karuppa Udayar v. The State of Madras & others. AIR 1956 Madras 460 and (26) V.R. Kelkar v. The State of Mysore, AIR 1966 Mysore 218. He also submitted that the cases cited on behalf of the respondent are distinguishable. 70. As we have already held relying on the decision of the Supreme Court reported in (5) AIR 1967 SC 1182 that though a point not agitated in the Court below can still be urged in the appeal stage if it appears on the face of the record we shall have to see if this point has been taken in the petition and therefore, it is necessary to refer to the petition in some detail. 71. In paragraph 17 of the petition it is alleged that the petitioner (i.e. the respondent herein) was denied 0pfJortunity to be defended by a lawyer although the case was a complicated one. In paragraph 18 (g) of the petition it is alleged that by a letter dated 8th December 1965, the petitioner i.e., the respondent herein asked for permission to defend him through a lawyer in the enquiry proceeding. In .the letter dated 29.7.64 paper book page 165) addressed to the Enquiring Officer it is stated that "The enquiry against me involves difficult questions of law and as such I hereby crave leave to be assisted by a lawyer in the said enquiry". In .the letter dated 29.7.64 paper book page 165) addressed to the Enquiring Officer it is stated that "The enquiry against me involves difficult questions of law and as such I hereby crave leave to be assisted by a lawyer in the said enquiry". By his letter dated 17.8.64 (paper book page 169) addressed to the Collector of Customs the respondent asked the Collector of Customs to review his earlier decision for refusal of permission to be represented by a lawyer on the grounds that-"the enquiry involves intricate question of law as well as intricate questions of fact"; "The nature of evidence to be adduced and the nature of documents to be proved which require assistance of a lawyer for clear explanation"; and "the department in the inquiry is represented by a seasoned Police Officer as the Presenting Officer who is well conversant with the legal aspect of the case". Again in his letter dated 8.12.65 (paper book page 172) the respondent asked permission to defend himself through a lawyer. The respondent in his reply dated 14.6.67 to the second show-cause notice also asked for permission to be defended by a lawyer in the proceeding for determination of the punishment to be inflicted upon him. In this connection it should be noted that by his letter dated 6.6.66 the Enquiring Officer refused permission on the ground that the request bad been turned down by the Collector of Customs. Further, it appears that by a letter dated 28.6.67 the respondent's v request for permission to be defended by a lawyer as contained in his letter dated 14.6.67 was turned down on the ground that issue involved in the proceedings did not justify the same and that the department's case was not being represented by a lawyer. It is, therefore, clear that this point bas been specifically taken in the petition. This point has also been dealt with in paragraph 20 of the opposition. It further appears that although this point is not mentioned in the judgment of T.K. Basu J. dated April 13, 1970 yet from the minutes of the hearing of May 22, 1969 before the learned Judge it appears that the case of (23) Nripendra Nath Bagchi v. Chief Secretary, Government of West Bengal, AIR 1961 Calcutta-l was cited before the learned Judge though this case was not noted in the judgment. This case deals with the question of dismissal of a Government servant and one of the points dealt with in the judgment relates to the right of the public servant to be represented by the counsel in the departmental proceeding. It does not appear from the records that the plea of legal assistance which the respondent bad been asking for his proper defence in the enquiry and the refusal of which be has considered to be a denial of reasonable opportunity to him and which he has specifically complained in his writ petition, was at any point of time given up or abandoned by him. The direction of the Appellate Court for a report of the learned trial Judge on the four points stated in the judgment for considering the validity of the charge does not have the effect of debarring the respondent from raising the plea which clearly appears on the record. We are, therefore, of the opinion that it is open to the respondent to urge this ground in support of the decision in his favour. 72. In the case of (22) C.L. Subramaniam v. Collector of Customs Cochin, AIR 1972 SC 2178 the order of removal from service was challenged on the ground of violation of Rule 15 (5) of 1957 Rules. In that case the appellant asked for permission to be represented by a lawyer on the ground that the Officer to present the case before Enquiring Officer in support of the allegation was a trained police prosecutor and legally trained to conduct such prosecution. It was stated that under such circumstances unless permission to engage a counsel to appear and defend the appellant during the enquiry was granted he would be prejudiced in his defence. Such request was again re-iterated by the appellant's letters dated 9.10.63 and 14.10.63. The request of the appellant was turned down on the ground that although the Presenting Officer was legally trained he was not a legal practitioner. The Disciplinary Authority overlooked the fact that the appellant sought permission to engage a counsel not because the presenting officer was a legal practitioner but because he was a trained prosecutor. The request of the appellant was turned down on the ground that although the Presenting Officer was legally trained he was not a legal practitioner. The Disciplinary Authority overlooked the fact that the appellant sought permission to engage a counsel not because the presenting officer was a legal practitioner but because he was a trained prosecutor. Thereafter the appellant again asked for permission to be represented by a lawyer on the grounds that- "In the nature of accusations made against me and the nature of their widespread source the importance of the informants and their intentions, the varying types of witnesses supporting the charge, the complicated nature of the evidence, the inexperience I have in assessing the impact of such evidence and in sifting the evidence for preparing an effective cross-examination and above all the lurking conspiracy of a series of persons whom I have to deal with firmly in discharging my duties as a Preventive Officer, all these when considered can lead you to the only conclusion that if I am denied the assistance of an experienced counsel at the enquiry it would be tantamount to denial of an opportunity to defend myself and prove my innocence. This would be particularly so in the context of the present enquiry where evidence have sought to be brought in by different stages and alleged incidents subsequent to the charges are sought to be proved in support of the allegations made before such incidents." Despite the communications the appellant was not given permission to engage a legal practitioner to defend himself. Therefore, the question arose whether the appellant was given reasonable opportunity to defend himself in accordance with sub-rule 5 of Rule 15 of 1957 Rules. In dealing with that question Supreme Court observed :- "The grievance of the appellant was that he was pitted against a trained prosecutor and not that Sivaraman was a legal practitioner. The Disciplinary Authority did not considered that grievance. It brushed aside the request of the appellant on the ground that Sivaraman was not a legal practitioner, a consideration which was not relied on by the appellant. The grounds urged by the appellant in support of his request for permission to engage a legal practitioner were by no means irrelevant. The Disciplinary Authority did not considered that grievance. It brushed aside the request of the appellant on the ground that Sivaraman was not a legal practitioner, a consideration which was not relied on by the appellant. The grounds urged by the appellant in support of his request for permission to engage a legal practitioner were by no means irrelevant. The fact that the case against the appellant was being handled by a trained prosecutor was a good ground for allowing the appellant to engage a legal practitioner to defend him lest the scales should be weighed against him. The Disciplinary Authority completely ignored that circumstance. Therefore, that 8tiihority clearly failed to exercise the power conferred on it under the rule. It is not unlikely that the Disciplinary Authority refused to permit the appellant to engage a legal practitioner in the circumstances mentioned earlier had caused serious prejudice to the appellant and had amounted to a denial of reasonable opportunity to defend himself." The Court further observed that :- “It is needless to say that R. 15 is a mandatory rule. That rule regulates the guarantee given to Government servants under Article 311. Government servants by and large have no legal training. At any rate, it is nobody's case that the appellant had legal training. Moreover when a man is charged with the breach of a rule entailing serious consequences, he is not likely to be in a position to present his case as best as it should be. The accusation against the appellant threatened his very livelihood. Any adverse verdict against him was bound to be disastrous to him, as it has proved to be. In such a situation he cannot be expected to act calmly and with deliberation. That is why Rule 15 (5) has provided for representation of a Government servant charged with dereliction of duty or with contravention of the rule by another government servant or in appropriate cases by a legal practitioner:” 73. The other ground on which the Supreme Court held that the order of removal was bad because the appellant was not afforded facility to have the assistance of another government servant in defending him which assistance he was entitled to under the rule. The other ground on which the Supreme Court held that the order of removal was bad because the appellant was not afforded facility to have the assistance of another government servant in defending him which assistance he was entitled to under the rule. That was a separate ground of decision as will appear from the observation of the Supreme Court that-"The appellant supported his complaint of breach of Rule 15(5) on yet another ground". 74. Learned counsel for the appellants sought to distinguish this decision of the Supreme Court on which great reliance was placed on behalf of the respondent. It was submitted that the findings of the Court about the appointment of the lawyer in that case was really based of the fact that disciplinary authority acted tardily in the matter of appointment of another Government servant named by the delinquent officer. According to him in that case Enquiring Officer was held to have violated Rule 15(5) because he adopted an indifferent attitude in the matter of appointing another Government servant to assist the .delinquent officer and that compelled him to do the case. Learned counsel has further submitted that under Rule 15(5) of 1957 Rules permission to engage a lawyer should be given when (i) the disciplinary authority has nominated a legal practitioner, or (ii) the authority having regard to the circumstances of the case permits the engagement of the lawyer. It is his submission that if the Supreme Court decision is based on the second point then violation complained of in that case amounts to a violation of principles of natural justice and not of the rule. Because, according to the learned counsel, the rule gives an unfettered discretion to the authority either to permit or not to permit such engagement of lawyers and that cannot be interfered with except under compelling circumstances consistent with giving of reasonable opportunity. As in the instant case there is no such compelling circumstance the decision of the authorities cannot be challenged on that ground. According to the learned counsel in the instant case the person appointed to represent the delinquent officer from the beginning to the end enjoyed the confidence of the officer so much so that this point was not taken specifically as ground of challenge in the writ application, and, therefore, it cannot be said that the respondent has suffered any prejudice on this account. We do not think that learned counsel is right in his submission about the Supreme Court case. It is quite clear from the judgment that Supreme Court upheld violation of Rule 15(5) on two-fold basis viz., (i) the authority did fail to exercise the power conferred on it under the rule in the matter of appointment of a legal practitioner by the delinquent officer and (ii) the authority did not afford the delinquent officer necessary facility to have the assistance of another Government servant in defending him a facility to which he was entitled under the rule. We are also unable to accept the contention that the latter part of Rule 15(5) confers unfettered discretion on the authority concerned. Such discretion should, in our opinion, be exercised reasonably and properly, bearing in mind the facts and circumstances of the case and non-exercise of discretion in favour of the delinquent, when he makes out proper grounds for exercise thereof will amount to a violation of the relevant rule resulting in denial of reasonable opportunity to the delinquent officer guaranteed under Article 311 of the Constitution. In our view the Supreme Court decision helps the respondent. 75. Counsel for the appellants tried to distinguish the decision of (23) Nripendra Nath Bagchi's case reported in AIR 1961 Calcutta-I, by saying that in that case P. B. Mukherji, J. (as his Lordship then was) was considering the question of 'adequate opportunity' which according to the learned counsel is reasonable opportunity plus something else. Therefore, the learned counsel has submitted that, that decision does not help the respondent. It is to be noticed from the judgment of P. B. Mukherji J. that according to his Lordship the refusal to allow the assistance of the lawyer in the facts of that case amounted to denial of 'adequate opportunity' under Rule 55 of the Civil Services (Classification Control and Appeal) Rules and 'reasonable opportunity' under Art. 311(2) of the Constitution. 76. With regard to the case of (24) Director General of Posts and Telegraphs & Ors. v. Nani Gopal Mazumdar & Anr., 77 CWN 752 learned counsel for the appellants submitted that in that case prayer for permission was rejected in limini and as a matter of course, because the department did not appoint a lawyer whereas, in the instant case, such rejection was given after full consideration by the authority concerned. v. Nani Gopal Mazumdar & Anr., 77 CWN 752 learned counsel for the appellants submitted that in that case prayer for permission was rejected in limini and as a matter of course, because the department did not appoint a lawyer whereas, in the instant case, such rejection was given after full consideration by the authority concerned. In our view, this distinction is hardly any distinction. On the contrary, it bas been held in that case that under Rule 15(5) of 1957 Rules it is incumbent upon the disciplinary authority to consider the facts and circumstances of the case before him and come to a decision whether the Government servant concerned should be permitted to engage a legal practitioner to assist him in presenting his case and that the refusal of permission on the part of the disciplinary authority merely on the ground that no legal practitioner has been nominated to present the case of the Government would be a breach of the above rule and a violation of the principles of natural justice and of Article 311 of the Constitution. 77. The cases cited on behalf of the appellants on this point in our view, do not help them. In the case of (25) Karuppa Udayar v. The State of Madras & Others, AIR 1956 Madras 460, the dismissal of a Government servant was challenged in an application under Art. 226 of the Constitution. In that case on 8.7.1952 when the Revenue Divisional Officer enquired into the charges, the petitioner asked for permission to engage a counsel to defend him and that was refused. With regard to the petitioners's contention that he was not given a real and effective opportunity to defend himself before the disciplinary authority it was observed :- "I am unable to hold that amounted to a denial of real and effective opportunity to the petitioner to defend himself against the charges framed against him. There was no specific rule governing such departmental enquiries which provided for assistance of counsel. Nor could any principle of natural justice be invoked in support of a claim, that in every charge leading to a departmental enquiry, assistance of counsel must be given. There was no specific rule governing such departmental enquiries which provided for assistance of counsel. Nor could any principle of natural justice be invoked in support of a claim, that in every charge leading to a departmental enquiry, assistance of counsel must be given. Neither the nature of the charges framed against the petitioner, be was charged with having received sums from various people on the false representation that he would get them lands assigned on Dhrakhast,-nor the nature of the evidence furnished by some of these persons made it impossible or even difficult for the petitioner to defend himself against those charges by cross-examining those witnesses without the help of a counsel. Refusal at that stage to give the petitioner the assistance of a counsel did not therefore vitiate the enquiry." 78. In (26) V.R. Kelkar v. The State of Mysore, AIR 1966 Mysore 218 it appears that the request for permission to engage a lawyer for petitioner's defence in the enquiry proceeding was made on the ground that the petitioner did not know how to express in English. There was nothing to show that this request was seriously pressed before the Enquiring Officer when he started the enquiry. On the other hand, it was seen that without any protest the petitioner bad cross-examined the witnesses in support of the charge-sheet. Further the Enquiring Officer was not called upon to consider whether in the circumstances of the case he should permit a pleader to appear for the petitioner in the enquiry. On those facts court held that a delinquent Government servant cannot be equated to an accused facing a criminal prosecution and that the right given under Art. 22 (1) is an unqualified right to have the assistance of a legal practitioner of his (arrested person's) choice but under Art. 311 (2) the right secured is only a "reasonable opportunity", The Court did not accept the petitioner's contention that be was deprived of the reasonable opportunity to explain his case. In that case Court observed :- "Even if it were to be assumed that the disciplinary authority should take the circumstances of the case into consideration to decide whether a Government servant should be permitted to engage legal practitioner to represent him in the enquiry the circumstances of this case do not warrant any such permission. In that case Court observed :- "Even if it were to be assumed that the disciplinary authority should take the circumstances of the case into consideration to decide whether a Government servant should be permitted to engage legal practitioner to represent him in the enquiry the circumstances of this case do not warrant any such permission. In the first place such permission was not specifically sought for and the Enquiring Officer was not called upon to exercise his discretion in this matter. The petitioner has cross-examined the witnesses without any protest. The case is also a simple one as can be seen from the facts narrated above. The case against the petitioner is not one which can be considered to be a complicated or a difficult one nor is it a case where the Government servant is embarrassed in any manner to take part in the enquiry. Further, in the statement filed by the petitioner no such difficulty was pleaded. He only expressed his inability to express in English, This inability bas not ill any manner prejudiced the petitioner as can be gathered from the record of the enquiry," These two cases, in our view, are distinguishable. The decision of this Court in the case of Rabindra Nath Chatterjee v. Commissioner of Income-tax (Pauper Appeal No. of 1971) in our view is clearly distinguishable on facts and, therefore, it is not necessary to deal with that case in any detail. 79. The principles laid down by the Supreme Court in the case of (12) C.L. Subramaniam v. Collector of Customs, Cochin, in our view, fully applies to this case. In the instant case the presenting officer was a seasoned Police Officer and a trained prosecutor whereas the respondent has no legal training. The charge against the respondent is quite serious entailing serious consequences which have in fact followed in this case. The accusation against the respondent also threatened his very livelihood and any adverse verdict against him was bound to be disastrous to him, as it has proved to be. Further the questions involved in the inquiry were complicated and the inquiry also involved intricate questions of law and fact for which it was necessary for the respondent to have the assistance of a lawyer particularly, in the context of the nature of the charge and its consequences. Further the questions involved in the inquiry were complicated and the inquiry also involved intricate questions of law and fact for which it was necessary for the respondent to have the assistance of a lawyer particularly, in the context of the nature of the charge and its consequences. In the facts and circumstances of the case we do not think assistance of another Government servant particularly when he has no legal training, afforded adequate opportunity to the respondent to defend himself. As noted earlier the respondent from time to time prayed to both Disciplinary authority as well as the Enquiring authority for permission to be represented by a lawyer fully setting out the grounds therefor but his prayer was turned down. In such circumstances what the respondent could have been expected to do but to take assistance of another Government servant to represent him in the enquiry proceeding. In these circumstances it cannot legitimately be said that the respondent was quite content with the service of another Government servant or that be appeared in the proceeding without protest. Repeated requests of the respondent were turned down. The ground taken for refusal of the permission that the issues involved did not justify the appointment of a lawyer cannot be said to he reasonable in the background of the facts and circumstances of the case and in the context of the charge against the respondent. In the aforesaid view of the matter we are of the opinion that there has been a violation of Rule 14 (8) of the 1965 Rules which is corresponding to Rule 15 (5) of 1957 Rules (which Rules are mandatory) thereby depriving the respondent of the reasonable opportunity to defend himself as guaranteed by Article 311 (2) of the Constitution. 80. The next main ground of challenge is that the decision of the Enquiring Officer is perverse. On this question it has been hotly contested between the parties as to when it is open to the Court to interfere in a writ petition with the finding of the Tribunal on a question of fact which the Tribunal is competent to decide. It has been contended by the counsel for the appellants that in a writ application Court's jurisdiction to interfere with finding of fact by the Tribunal, which the Tribunal is competent to decide, is indeed very limited. It has been contended by the counsel for the appellants that in a writ application Court's jurisdiction to interfere with finding of fact by the Tribunal, which the Tribunal is competent to decide, is indeed very limited. The Court in such cases, the learned counsel has submitted, does not act as a Court of appeal and, therefore, it is not entitled to interfere with the Tribunal's finding when it involves question of appraisal of evidence. It is his contention that the Court is competent to interfere with the decision of the Tribunal on a finding of fact only if the Court is satisfied that the finding is perverse and the finding of the Tribunal is considered to be perverse only when there is no evidence for the Tribunal's finding. In fact learned counsel went to the extent of submitting that if there was some evidence, though not relevant, still it would not be open to the Court to interfere with the Tribunal's finding of fact as being perverse on the ground that there was no evidence for the finding. Learned counsel has further submitted that there is a difference between a wrong determination and a perverse determination by the Tribunal. According to the learned counsel if there is some evidence for the finding then it cannot be said that there is a perverse determination but it may amount to a wrong determination which will come within the domain of appraisal of evidence and therefore, it cannot be challenged in a writ petition. learned counsel has relied on the case of (27) Union of India v. H.C. Goel, AIR 1964 SC 364 . On the basis of this decision learned counsel bas submitted that if the ultimate conclusion of the Tribunal is supported by some evidence then Court will not interfere. But if there is total absence of evidence for the Tribunal's ultimate conclusion then it is open for the Court to interfere. On the basis of this decision learned counsel bas submitted that if the ultimate conclusion of the Tribunal is supported by some evidence then Court will not interfere. But if there is total absence of evidence for the Tribunal's ultimate conclusion then it is open for the Court to interfere. On this aspect of the matter learned counsel for the respondent has however submitted that in a writ petition the Court is competent to interfere with the Tribunal's finding of fact as perverse not only when there is no evidence for the finding but also in other cases viz., where relevant evidence is nut taken into account or irrelevant evidence is taken into account by the Tribunal; On the basis of facts found no person acting judicially and properly instructed as to the relevant law would have arrived at the conclusion reached by the Tribunal the Tribunal bas based its finding upon conjectures, surmises and suspicion; the Tribunal in conducting the enquiry has acted in flagrant disregard of the rules of procedure or has violated the principles of natural justice, where no particular procedure is prescribed and similar other grounds which' are now well settled by the various judicial decisions. In effect it is the contention of the learned counsel that the Court's power and jurisdiction in a writ application to interfere with the Tribunal's finding of fact on the ground of perversity is not so much limited as suggested by the appellants' counsel. In support of his contention learned counsel of the respondent has relied upon various cases, to wit, (28) Mehta Parikh & Co. v. The Commissioner of Income-tax, Bombay, AIR 1956 SC 554 = 30 ITR 181; (29) Omar Salay Mohammed Sail v. Commissioner of Income-tax, Madras, AIR 1959 SC 1238 (27) Union of India v. H.C. Goel, AIR 1964 SC 364 ; (30) Syed Yakoob v. K. S. Radhakrishnan AIR 1964 SC 477 ; (31) State of Andhra Pradesh & Others v. Sree Rama Rao, AIR 1963 SC 1723 (32) Central Bank of India Ltd. v. Prakash Chand Jain, AIR 1969 SC 983 ; (33) State of Assam v. Mohan Chandra Kalita & Another AIR 1972 SC 2535 ; (34) M/s. Basakha Singh and Co. Ltd v. The Collector of Central Excise And Land Customs, New Delhi And another, (1971) 3 SCC 856 (35) Bichhittar Singh v. State of Punjab & Another, AIR 1963 SC 395 ; (36) Commissioner of Income-tax, Bihar and Orissa v. S. P. Jain (1973) 87 ITR 370; (37) Messrs. Lalchand Bhagat Ambica Ram v. Commissioner of Income-Tax, Bihar and Orissa, 1959 SC 1295 ; (38) M/s. Parry & Co. Ltd. v. P. C. Pal, Judge of the Second Industrial, Calcutta, AIR 1970 SC 1334 (39) M/s. Hind Trading Co. v. Union of India and another, AIR 1970 SC 1858 and (40) the unreported Judgment of the Appeal Court in Appeal No. 76 of 1970, The Additional Collector of Custom & Ors. v. Padam Kumar Agarwala & Anr.). As in our view this point is now well settled by a catena of decisions of the Supreme Court it is not necessary to deal with the cases cited by the parties on this point in any detail. It should however be noted that in his judgment in the case of (40) The Additional Collector of Customs & Ors. v. Padam Kumar Agarwalla & Anr. A. N. Sen J. on the basis of the various decisions of the Supreme Court on the point has laid down the circumstances where the Court will interfere with the Tribunal's findings on the questions of fact on the ground of perversity in an application under Article 226 of the Constitution. Learned Judge has observed: "It is, however, equally well settled that even in a writ petition under Article 226, the Court is entitled to interfere with the finding of the Tribunal on any question of fact which the Tribunal is competent to decide, if the Court is satisfied that the finding of the Tribunal is perverse and the finding of the Tribunal is considered to be perverse, if- (a) The Tribunal has come to the finding on no evidence. (b) The Tribunal has based the finding on materials not admissible and has excluded relevant materials. (c) The Tribunal has not applied its mind to all the relevant materials and has not considered the same in coming to the conclusion. (d) The Tribunal has come to the conclusion by considering material which is irrelevant or by considering material which is partly relevant and partly irrelevant. (c) The Tribunal has not applied its mind to all the relevant materials and has not considered the same in coming to the conclusion. (d) The Tribunal has come to the conclusion by considering material which is irrelevant or by considering material which is partly relevant and partly irrelevant. (e) The Tribunal bas disabled itself in reaching a fair decision by some considerations extraneous to the evidence and the merits of the case. (f) The Tribunal has based its finding upon conjectures, surmises and suspicion. (g) The Tribunal has based the finding upon a view of the facts which could not reasonably be entertained or the facts found were such that no person acting judicially and properly instructed as to the relevant law could have found. (h) If the Tribunal in conducting the enquiry has acted in flagrant disregard of the: rules of procedure or has violated the principles of natural justice, where no particular procedure is prescribed. 81. In any of the above cases and in any other case where the Court, in the particular facts of the case, considers the finding of the Tribunal to be perverse and where the, Court is of the opinion that justice of the case so requires, the Court is entitled to interfere and set aside the finding of the Tribunal on any question of fact. In such cases, the Court holds that there is an error of law on any of the above grounds." 82. The legal principles on the point being well settled the question now is only the application of those principles to the facts and circumstances of a particular case. Therefore, applying those well established principles to the facts and circumstances of this case can it be said that the decision of the Enquiring Officer is perverse. But before I do that, I would like to deal with some of the other contentions raised on behalf of the respondent in connection with this issue. Firstly, it was submitted that the findings of the Enquiring Officer in the instant case are based on circumstantial evidence and not on direct evidence. He further submitted that when the Tribunal’s conclusion is based on circumstantial evidence then unless such conclusion is the only irresistible inference which can be drawn from such evidence the Court will interfere. Firstly, it was submitted that the findings of the Enquiring Officer in the instant case are based on circumstantial evidence and not on direct evidence. He further submitted that when the Tribunal’s conclusion is based on circumstantial evidence then unless such conclusion is the only irresistible inference which can be drawn from such evidence the Court will interfere. It is his contention that the principle that the circumstantial evidence must be conclusive equally applies to proceedings before a domestic Tribunal. He has further submitted that there is difference between inference or the circumstance and the circumstantial evidence and if the Tribunal's conclusion is based on mere inference or circumstance Court will interfere in certiorari proceeding. In support of his above contentions learned counsel relied on the cases of (12) Golam Mohiuddin v. State of West Bengal & Drs., AIR 1964 Cal. 503 = 68 CWN 215 (41) Hanumant Govind Nargundkar and another v. State of Madhya Pradesh, AIR 1952 SC 343 ; (42) Charan Singh v. The State of Uttar Pradesh, AIR 1967 SC 520 (43) Messrs. Barium Chemicals Ltd. v. Company Law Board and others, AIR 1967 SC 295 , Phipson on Evidence (11th edn.) p. 4, Halsbury's Laws of England (3rd edn.) vol. XV. p. 263, Cross on Evidence (3rd edn.) p. 5- and Sections 6 to 9 of the Indian Evidence Act. 83. Counsel for the appellants however has contended that the question whether the inference drawn by the Tribunal from the evidence before it is irresistible or not belongs to the domain of appreciation of evidence and the Writ Court is not entitled to look into each step followed by the Tribunal in support of its order to find out whether the conclusion is justified or not by the evidence. It is the submission of the counsel that even when the Court goes into the question of evidence and if it finds that there is some evidence to justify the ultimate conclusion of the Tribunal then the Court will not interfere. 84. In the case of (12) Golam Mohiuddin v. State of West Bengal & Ors. AIR 1964 Cal. It is the submission of the counsel that even when the Court goes into the question of evidence and if it finds that there is some evidence to justify the ultimate conclusion of the Tribunal then the Court will not interfere. 84. In the case of (12) Golam Mohiuddin v. State of West Bengal & Ors. AIR 1964 Cal. 503 = 68 CWN 215 which we have already referred to in connection with some other point it was held- “In order to find a person guilty on circumstancial evidence, the circumstance or the circumstances must be such as would irresistibly lead to an inference of the guilt of the person charged with the offence. In the instant case, if the inference drawn from the circumstances be not the only irresistible inference, then there is an error of law committed which may merit rectification by a writ Court." 85. In (41) Hanumant Govind Nargundkar and another State of Madhya Pradesh, AIR 1952 SC 342 while considering a criminal case the Supreme Court with regard to the rules applicable to circumstantial evidence observed that-It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. 86. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. 86. In (42) Charan Singh v. State of Uttar Pradesh, AIR 1967 SC 520 regarding the nature of the circumstantial evidence Supreme Court observed that-"It is well established that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and the circumstances so established should be consistent only with the hypothesis of the guilt of the accused person, that is, the circumstances should be of such a nature as to reasonably exclude every hypothesis but the one proposed to be proved. To put it in other words the chain of evidence must be so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused person." 87. Learned counsel for the respondent also relied upon the case of (43) Barium Chemicals Ltd. v. Company Law Board and others, AIR 1967 SC 295 where the Supreme Court while dealing with the validity of the order made under S. 237(b) of the Companies Act, 1956 against the Company observed that-"If section 237(b) is used by members, as an alternative to S. 236, the evidence must unerringly point to the grounds on which alone action can be founded". 88. Counsel for the appellants however submitted that the principle laid down in the cases reported in (41) AIR 1952 SC 342 and (42) AIR 1967 SC 520 which deal with criminal charge strictly applies to a criminal because in criminal cases the principle applicable is that the guilt of the accused will have to be proved "beyond reasonable doubt" which however, does not apply to departmental proceedings where, according to counsel, if two conclusions are possible, one consistent with the guilt of the person charged and the other consistent with his innocence and the conclusion consistent with the guilt is adopted the Court will not interfere. Acc0rding to the learned counsel the principles laid down in those Supreme Court cases is not applicable in the instant case because here we are concerned with the departmental disciplinary proceeding. 89. We do not think in the instant case it is necessary to go into the broader question whether the principle of strict proof as applicable to the criminal cases equally applies to disciplinary proceeding before a domestic Tribunal and therefore, we are not expressing any views regarding that aspect of the matter. The finding or the conclusion of the Tribunal if based on circumstantial evidence must undoubtedly lead reasonably to the finding arrived at or the conclusion reached by the Tribunal and unless it is reasonable to arrive at the finding or conclusion on the basis of such circumstantial evidence, the Court will interfere. 90. We now proceed to deal with the merit of the charge of perversity of the findings of the Enquiring Officer. The main contention on behalf of the respondent has been that the finding of the Enquiring Officer that New Alipore property has been acquired by the respondent is based on no evidence but on conjectures, surmises and possibilities and as such it is perverse. Learned counsel for the respondent has relied on paragraphs 25 and in particular on the grounds stated in sub-paragraphs (g), (n), (o) and (s) of paragraph 35 of the petition. He has further relied on paragraph 26 of the affidavit-in-opposition. Learned counsel has based the charge of perversity on two grounds, viz., (i) there is no material or evidence for the finding and (ii) in coming to the finding relevant material have not been considered by the Enquiring Officer. Learned counsel has argued that there is no direct evidence for the said finding and the finding is really based on circumstantial evidence. It is his submission that in fact admittedly there is no direct evidence linking the respondent with the New Alipore Property. Analysing the charge-sheet and the Report of the Enquiring Officer learned counsel submitted that out of the 9 items of evidence enclosed to the charge- sheet (page 44 of the Paper Book) only item Nos. 8 and 9 could be said to be circumstantial evidence in respect of the question who was the owner of the New Alipore property. Analysing the charge-sheet and the Report of the Enquiring Officer learned counsel submitted that out of the 9 items of evidence enclosed to the charge- sheet (page 44 of the Paper Book) only item Nos. 8 and 9 could be said to be circumstantial evidence in respect of the question who was the owner of the New Alipore property. He further submitted that out of 7 witnesses called by the department only the evidence of witness Nos. 5 and 6 was relevant. According to learned counsel there was nothing in the evidence of the witness Hamid. He only stated about the collection of certain materials during the course of enquiry and proved only certain documents. Learned counsel has submitted that relevant evidence, though circumstantial in nature which had been laid and proved in support of the allegation of the respondent's ownership of the New Alipore property are: (1) During November 1950 and December 1952 the respondent and his mother earned about Rs. 1,300/- on account of commission in respect of sale of National Savings Certificates and (2) Father of the respondent was employed in the Postal Department; particulars of his salary from December 1955 to March 1959 and of the Provident Fund and that he has a Bank Pass Book. In this connection learned counsel has referred to paragraphs 1, 18 and 19 of the Enquiry Report. According to the learned counsel if any inference has to be drawn, it must be drawn from the aforesaid two facts proved. It was his contention that no inference adverse or otherwise could be drawn for not calling the respondent's mother as a witness or for the respondent's not giving evidence in the enquiry proceeding. Learned counsel submitted that the question of the respondent's giving evidence could only arise if the initial onus to prove the charge, which lay on the department, had been discharged and as that had not been done in the instant case no adverse inference for the respondent's not giving evidence or calling his mother as a witness could be drawn. It was his contention that the onus which lay on the department could not be inferred to have been discharged from the fact of not calling a witness by the respondent or his not giving evidence. It was his contention that the onus which lay on the department could not be inferred to have been discharged from the fact of not calling a witness by the respondent or his not giving evidence. Another contention of the learned counsel was that the Enquiring Officer went wrong in rejecting the evidence of the defence witnesses as to the character of the respondent. He; submitted that character of the respondent was in issue and, therefore, the evidence as to his character was a relevant evidence which the Enquiring Officer refused to take into consideration. He relied on paragraph 24 of the Enquiring Officer's Report at page 245 of the paper book. He has also referred to sections 52 to 55 of the Indian Evidence Act, 1872. It was submitted that in rejecting the evidence of the defence witnesses the Enquiring Officer approached the question with a prejudiced mind and had also pre-judged the issue. 91. In support of his contention of perversity learned counsel further submitted that relevant evidences were not considered by the Enquiring Officer which, according to him, are (i) commission earned from 1946 to the end of 1950 by the sale of National Savings Certificates and also from Post Office; (ii) income of Russa Road property; (iii) the fact that father was able to construct property ; (iv) the probable expenditure of the family during the relevant period; (v) evidence as to character of the respondent. Summing up his contentions learned counsel has submitted that the findings of the Enquiring Officer regarding acquisition of New Alipore property is perverse and, therefore, the Enquiry Report is vitiated. 92. Learned counsel for the appellants bas submitted that in the instant case the Enquiring Officer's finding cannot be stigmatised as perverse on the ground that there is no evidence for the finding or that it is based on conjectures or surmises. He has submitted that there are indeed ample evidence to support the conclusion of the Enquiring Officer that the respondent acquired the New Alipore property. According to the learned counsel in the instant case it cannot be said that there is no evidence for the said finding and, consequently, the finding cannot be said to be perverse. 93. He has submitted that there are indeed ample evidence to support the conclusion of the Enquiring Officer that the respondent acquired the New Alipore property. According to the learned counsel in the instant case it cannot be said that there is no evidence for the said finding and, consequently, the finding cannot be said to be perverse. 93. On the question of the merit of the charge of perversity of the finding of the inquiring Officer learned counsel for the appellants has submitted that the question of valuation of the New Alipore properly, is not material unless it is shown that the father or the mother of the respondent had income or resources because the cost of building the house cannot be explained solely by the savings of the respondent. According to the learned counsel the Enquiring Officer has rightly rejected the grounds put forward by the father in support of the acquisition of the property by the mother of the respondent. The learned counsel has contended that there is not an iota of evidence in support of amassment of money by the mother except the father's statement. According to him, the source of acquisition of property by the mother as stated by the father in his statement bas been disproved. Regarding the other source, namely, the mother earned about Rs. 12,000/- by way of commission for selling National Savings Certificates, the learned counsel submitted that no proof was adduced by the respondent in support thereof. According to him it was not for the Enquiring Officer to collect evidence for the respondent. With regard to the charge that part of the father's evidence was accepted and part thereof was rejected by the Enquiring Officer, learned counsel submitted that the Enquiring Officer, who was in the position of a Judge, could certainly place his reliance on part of a document and reject another part thereof which was not acceptable to him. It was submitted that technicalities or niceties of the Evidence Act would not apply in the case of departmental proceedings. 94. It was submitted that technicalities or niceties of the Evidence Act would not apply in the case of departmental proceedings. 94. With regard to the respondent's grievance that adverse inference was drawn by the Enquiring Officer for the respondent's not giving evidence or for not calling his mother as a witness learned counsel submitted that in a case where evidence of the delinquent Officer or the witness (in the instant case the mother) could throw light on the question involved in the enquiry proceeding (which in the instant case was the question of ownership of property), and such evidence was withheld then it was within the competence of the Enquiring Officer to draw adverse inference in the matter and that could not be said to be perverse. He has submitted that comments or adverse inferences in the similar circumstances are always made or drawn by the learned Judges in deciding a case. It is the contention of the learned counsel that such adverse inferences when drawn, mayor may not by itself discharge the onus but according to the learned counsel, certainly it is open to the Enquiring Officer to make comments or even draw adverse inference from the fact that the necessary evidence has been withheld and that cannot be said to be perverse. Further, according to the learned counsel, the finding of the Enquiring Officer in the instant case is not merely based on such adverse inferences and such inferences cannot be said to be findings at all. Learned counsel submitted that the Enquiring Officer considered the evidence as also the absence of evidence on the question and based his finding thereon. Regarding the contentions that the defence evidence was wrongfully rejected by the Enquiring Officer while drawing the inferences that the respondent had no earning prior to 1955 and that the evidence of his earning from other post offices and for other periods between 1946 and 1955 had been shut out in spite of the respondent's demand to the Enquiring Officer to call for them, learned counsel submitted that as no evidence of any income of the respondent prior to 1955 had been given, the decision of the Enquiring Officer could not be said to be perverse. He further submitted that there could not be any question of shutting out of any evidence by the Enquiring Officer in the instant case because it was for the respondent to take steps for production of the relevant documents. With regard to the applicability of Rule 14 (12) and (13) of 1965 Rules, which according to the learned counsel are the rules by which the Enquiring Officer is compelled to call for documents requisitioned by the delinquent, it was submitted that these rules had no application in the instant case because the requisition for calling the documents by the Enquiring Officer was made by the respondent in 1964 when the 1965 Rules did not come into force. It was submitted that it was for the respondent to make necessary arrangements for production of the relevant evidence and his failure to do so could not be said to be the evidence of the fact that the decision of the Enquiring Officer was perverse. Referring to the finding of the Enquiring Officer contained in paragraph 20 of the Report (paper book p. 238) that the respondent contributed towards the acquisition of the property learned counsel submitted that the same could not be said to be mere conjecture or surmise as the Enquiring Officer was certainly entitled to infer, as no evidence had been given on behalf of the respondent, that there was no such earning of the respondent as alleged and that he was right in coming to the said finding. It was further submitted that it was for the respondent to prove his case and if he did not do so it was open to the Enquiring Officer to draw any legitimate inference from the fact of non-production of evidence and such decision of the Enquiring Officer could not be said to be perverse or based on conjectures or surmises. 95. With regard to the Enquiring Officer's observation that no permission was obtained by the father under Rules 18 or 15 of the Central Civil Service (Conduct) Rules 1955 for acquiring the New Alipore property, learned counsel submitted that it might be that the Enquiring Officer might possibly have made a mistake in interpreting the Rule 18 or Rule 15 of the Conduct Rules. He further submitted that the Enquiring Officer might have made an error in thinking that even if any dependent of a Government servant acquired any property in his or in her own name still permission was necessary. Learned Counsel submitted that probably the said observation of the Enquiring Officer might have been due to confusion between the above provisions and other provisions governing the question of disclosure of the property in the statement of assets by a Government servant. According to counsel such mistake or over-sight on the part of the Enquiring Officer would not make his decision perverse. 96. Answering the respondent's contention that relevant evidence of the defence witnesses has not been considered by the Enquiring Officer learned counsel for the appellants bas submitted that it is not correct to say that character has not been allowed to be proved in disregard of sections 52 to 56 of the Indian Evidence Act. Referring to the paragraph 24 of the Enquiry Report at page 245 of the paper book he has submitted that the Enquiring Officer has considered the evidence. But the weight that has to be attached to a piece of evidence is a matter for the Enquiring Officer and it cannot be said that this aspect bas not been considered. With regard to the respondent's allegation about not taking into consideration of the commission earned by the sale of National Savings Certificates and from Post Office it was submitted that the relevant material for whatever reason was not before Enquiring Officer and, therefore, naturally be could not consider the same. The respondent should have produced evidence for the Enquiring Officer's consideration but be failed to do. As regards the income of Russa Road property, the learned counsel submitted that it was not believed generally that the whole rental income of this property was saved by the mother or was kept in the house. Learned counsel has however fairly submitted that though this income bas not been specifically dealt with by the Enquiring Officer still his observations regarding keeping of money by the mother in the house which are at page 241 of the paper book will equally apply to this item. He further submitted that assuming the whole income was kept still the amount would come to Rs. He further submitted that assuming the whole income was kept still the amount would come to Rs. 15,000/-for the period from 1946 to 1957 and that would not explain the construction of a house valued at about Rs. 38,000/- It is the contention of the learned counsel that in his defence statement the respondent does not specifically point out or assest that the income from Russa Road property contributed to the acquisition of New Alipore Property. 97. Learned counsel for the appellants further submitted that the fact that the father was able to construct the Russa Road property would have been otherwise a salient fact in favour of the respondent if the father had not himself made a statement that he bad nothing to do with the construction of the New Alipore property. Learned counsel has contended that this part of the father's statement bas been accepted by the Enquiring Officer in view of the pecuniary circumstances of the father and the difference in prices and cost of construction between 1941-45 and 1956-59. It is the contention of the learned counsel that unless it is shown that any point in favour of the delinquent officer has been deliberately left out of consideration it will not be a case of perversity. The learned counsel dispute that the probable expenditure of the family during the relevant period had been left out of consideration by the Enquiring Officer. He his said that the probable bigger expenses and liabilities of the family like marriage of the daughters that have to be incurred by the family, have been taken into account. As regards probable daily and monthly expenses of the family the learned counsel has contended that as no evidence was adduced by the respondent in that behalf, there cannot be any question of not considering the same. Learned counsel has also pointed out that the father of the respondent in his statement has evaded the question. 98. With regard to the conclusion of the Enquiring Officer about the acquisition of the New Alipore property by the respondent learned counsel submitted that in this case the department had to proceed admittedly, on circumstantial evidence. This evidence was connected with intimate facts of the family of which evidence could only be given by the Officer. 98. With regard to the conclusion of the Enquiring Officer about the acquisition of the New Alipore property by the respondent learned counsel submitted that in this case the department had to proceed admittedly, on circumstantial evidence. This evidence was connected with intimate facts of the family of which evidence could only be given by the Officer. All that the department had to do in those circumstances, - the learned counsel submitted, was to prove the circumstances of the father and the mother to show that none of them could acquire the house with their own moneys. Learned counsel further pointed out that the father and the mother did not come and give evidence and thus deprived the enquiring Officer of all direct evidence that could be made available. In such circumstances learned counsel submitted the Enquiring Officer had to fall back upon such evidence, mostly indirect which the department's witness could adduce and the Enquiring Officer bad to scrutinise those evidences to see how far it could be accepted and upon consideration of those evidences he came to certain conclusions. This according to the learned counsel, could not be said as perversity of the finding. It is the contention of the learned counsel that a domestic tribunal, like in the present case, is entitled to take into consideration evidence from all sources. Moreover, according to the learned counsel it is not correct to say that the Enquiring Officer has based his report on rejection of the father's contentions or the mother's contentions and drew adverse inference therefrom. It is his submission that the income of the respondent as also his expences have been taken into consideration by the Enquiring Officer and he has also considered the income and savings of the father and the mother in arriving at the conclusion which cannot be said to be perverse. 99. The most important point in the enquiry proceeding or the "most crucial point for consideration as the Enquiring Officer has said is whether the respondent was concerned with the acquisition of the New Alipore property. The Enquiring Officer came to the conclusion that the property was acquired by the respondent. If this conclusion of the Enquiring Officer is a correct one and valid then such acquisition remains unexplained by the disclosed means of the respondent. The Enquiring Officer came to the conclusion that the property was acquired by the respondent. If this conclusion of the Enquiring Officer is a correct one and valid then such acquisition remains unexplained by the disclosed means of the respondent. The question, therefore is whether the above conclusion of the Enquiring Officer is perverse as contended on behalf of the respondent. From the Enquiry Report (See paper book pp. 235-249) it appears that for coming to the said conclusion the Enquiring Officer has relied upon several materials viz, (1) his finding that the mother of the respondent could not have acquired the property. (ii) his finding that father of the respondent had no means to acquire the praperty. (iii) he disbelieved the evidence of the defence witnesses and (iv) he drew adverse inferences from the fact that the respondent and his mother did not give evidence. 100. In our view the finding of the Enquiring Officer that mother of the respondent could not have acquired the property cannot be sustained. In the statement of the father three sources for acquisition of the property were mentioned viz, (i) commission earned for selling National Savings Certificates, (ii) Rs. 30/- per month received from the husband since the time of occupation of Russa Road property by the family and (iii) Rent of Russa Road property. Though the Enquiring Officer has considered item Nos. (i) and (ii) above he has not at all taken into account item No. (iii) above. This relevant piece of evidence has been completely overlooked by the Enquiring Officer. We are unable to accept the contention of the learned counsel for the appellants that the Enquiring Officer has not believed generally that the whole rent income of the Russa Road property was saved by the mother or that it was kept in the house. From the report of the Enquiring Officer it is abundantly clear that this evidence has been totally ignored or overlooked by the Enquiring Officer. Further, it appears that the Enquiring Officer's aforesaid decision has been influenced by the consideration that the respondent and his mother have not given any evidence. In fact the Enquiring Officer has drawn some adverse inference from the fact of the respondent's and his mother's not giving evidence before him. (See para. 22 of the Enquiry Report at page 243 of the paper book). In fact the Enquiring Officer has drawn some adverse inference from the fact of the respondent's and his mother's not giving evidence before him. (See para. 22 of the Enquiry Report at page 243 of the paper book). This fact has influenced the Enquiring Officer's mind in arriving at the finding on the question of acquisition of the New Alipore property by the mother. In our view non-giving of evidence by the respondent and his mother is totally an irrelevant consideration in the facts and circumstances of this case. The onus lay fairly and squarely on the department to prove the guilt of the respondent and, therefore, no obligation was cast upon the respondent to adduce any evidence before the charge against him was proved by the department. It is true that if the initial onus was discharged by the department then it was for the respondent to rebut it and in that event, if the respondent had failed to give any evidence personally or to adduce any relevant evidence then certainly it would have been legitimate and proper for the Enquiring Officer to draw an adverse inference. But certainly, in our view, it was not legitimate or proper for the Enquiring Officer to draw such adverse inference when the initial onus was not discharged by the department, far less to rely upon such Inference in support of any finding. Therefore, from this aspect of the matter, in our opinion, it can legitimately be said that in arriving at the said finding the Enquiring Officer has taken irrelevant matter into consideration. For reasons mentioned hereinbefore we hold that the finding of the Enquiring Officer that the mother could not have acquired the property is perverse. Therefore, from this aspect of the matter, in our opinion, it can legitimately be said that in arriving at the said finding the Enquiring Officer has taken irrelevant matter into consideration. For reasons mentioned hereinbefore we hold that the finding of the Enquiring Officer that the mother could not have acquired the property is perverse. In this connection we would like to mention that the finding of the Enquiring Officer that-"Also considering the pay and allowances drawn by the father of the accused and keeping in view the fact that with this meager income he had to maintain himself, his wife, his son (Accused) and three daughters, to educate his son and to spend money on the marriage of three daughters it is hard to imagine that he could have contributed any money towards the acquisition to this property" does not also appear to us to be correct as, in our view, it cannot be said that this finding reasonably follows from the materials relied upon by the Enquiring Officer particularly, in the context of the fact that inspite of his poor income and family obligation the father of the accused was able to construct the Russa Road property. 101. From the record it appears to us that the conclusion of the Enquiring Officer that the mother could not have acquired the property has been influenced by the fact that no permission was obtained by the father from the Government for acquiring the property. In our view, this fact is not at all relevant in the facts and circumstances of this case. The correct position appears to be that as the property was acquired by the mother and not by the father in the name of his wife no such permission was required and this is not disputed by the appellant's counsel. Therefore, it appears that the Enquiring Officers's above conclusion is influenced by a totally irrelevant consideration. 102. For reasons mentioned herein before we hold that the finding of the Enquiring Officer "that the property in question was not acquired with the resources of the accused's mother or father, but was acquired with the resources of the accused" is perverse and Cannot be sustained. 102. For reasons mentioned herein before we hold that the finding of the Enquiring Officer "that the property in question was not acquired with the resources of the accused's mother or father, but was acquired with the resources of the accused" is perverse and Cannot be sustained. Further, assuming that the Enquiring Officer is correct in his finding that the property was neither acquired by the mother or father still we fail to understand in the absence of any evidence on record how can it be said that the property was acquired with the resources of the accused. We fail to see how the conclusion that the property was acquired with the resources of the respondent logically or reasonably follows from the finding that it was neither acquired by the mother nor by the father. In our view, no person acting judicially and properly instructed as to the relevant law could have come to the said conclusion from the said two findings assuming they are correct. In this case there is no direct evidence to support that the respondent acquired the property in question. On the materials on the record we are satisfied that there is nothing on record to support such a finding. Therefore, the finding of the Enquiring Officer, in our opinion, cannot be sustained. The Enquiring Officer, in our opinion, in arriving at the finding and reaching the conclusion mentioned hereinbefore has excluded materials which are relevant and has taken into consideration materials which was irrelevant. Further, the findings of the Enquiring Officer which were relied upon by him in coming to his ultimate conclusion viz., the respondent acquired the property are also based on conjectures, surmises and suspicion. In view of the materials on record and considering all aspects of the case, in our view, it cannot be said that the findings arrived at or the conclusion reached by the Enquiring Officer are such which any person acting judicially and properly instructed as to the relevant provision of law could have arrived at or reached. Therefore, applying the well established principles already mentioned earlier to the facts and circumstances of this case we hold that the conclusion of the Enquiring Officer to the effect that the property was acquired through the resources of the respondent is perverse and cannot be sustained. 103. Therefore, applying the well established principles already mentioned earlier to the facts and circumstances of this case we hold that the conclusion of the Enquiring Officer to the effect that the property was acquired through the resources of the respondent is perverse and cannot be sustained. 103. In view of our aforesaid finding we do not think it is necessary to deal with the other contentions of the parties on the question of perversity. 104. Another contention raised by the learned counsel for the appellants may be noted at this stage. He contended that in the present case evidence on behalf of the department has been adduced and all reasonable opportunity was given to the respondent to defend himself. The respondent has called two witnesses. But inspite of the opportunity given to the respondent he failed to give evidence himself or to call his mother as a witness. In these circumstances, learned counsel submitted that it was for the respondent to exonerate himself of the charge. It was the contention of the learned counsel that in a departmental disciplinary proceeding against a Government servant he could not sit tight on his demand on the other side to prove its case. In the case of a public officer, the learned counsel has submitted, wherever the onus may lie it is expected that the delinquent officer should come and clear himself of the charge. It has been further submitted that in a disciplinary proceeding the Government servant is entitled to a reasonable opportunity to defend himself and if that has been given to him but he has failed to avail of it by not giving evidence or calling any witness to disprove the charge, he cannot later on challenge the finding of the disciplinary authority as perverse. According to the learned counsel this would be more so in the instant case where the Government servant has deliberately refused to come forward and appear before the Enquiring authority inspite of the fact that the Presenting Officer wanted to examine him. We are, however, unable to accept this contention of the learned counsel. It is true that Art. 311 enjoins that reasonable opportunity should be given to the delinquent officer to defend himself but that does not do 4way with the primary obligation on the part of the department concerned to prove the charge. We are, however, unable to accept this contention of the learned counsel. It is true that Art. 311 enjoins that reasonable opportunity should be given to the delinquent officer to defend himself but that does not do 4way with the primary obligation on the part of the department concerned to prove the charge. The onus of proving the guilt of the delinquent lies fairly and squarely on the departmental authority and when it fails to discharge this onus it cannot be said that if reasonable opportunity to defend has been given to the delinquent he is not entitled to challenge the finding made against him. We do not think that is the correct position in law. 105. Mr. Kar also contended that in taking the disciplinary proceedings against the respondent the appellant has acted with the determination to root out corruption and therefore while considering the validity of the enquiry proceedings, strict application of the provisions of the Evidence Act should not be insisted upon and further, that we should not sit in appeal over the decision of the Enquiring Officer and seek to decide whether this Court would have taken the same view or not. 106. Though we quite appreciate the anxiety on the part of the Department to root out corruption, which we fully share and which should undoubtedly be rooted out, yet, in our view, when deciding or determining a charge against the government servant in disciplinary proceedings decision should not be taken on mere conjectures, surmises and possibilities only because the charge relates to corruption. In this connection we may refer to the observation made by the Supreme Court in the case of (27) Union of India v. H.C. Goel AIR 1964 SC 364 . At page 370 of the report Supreme Court observed that -"Though we fully appreciate the anxiety of the appellant to root out corruption from public services, we cannot ignore the fact that in carrying out the said purpose, mere suspicion should not be allowed to take place of proof even in domestic enquiries. It may be that the technical rules which govern criminal trials in courts may not necessarily apply to disciplinary proceedings, but nevertheless, the principle that in punishing the guilty, scrupulous care must be taken to see that the innocent are not punished, applies as much to regular criminal trials as to disciplinary enquiries held under the statutory rules". It may be that the technical rules which govern criminal trials in courts may not necessarily apply to disciplinary proceedings, but nevertheless, the principle that in punishing the guilty, scrupulous care must be taken to see that the innocent are not punished, applies as much to regular criminal trials as to disciplinary enquiries held under the statutory rules". 107. Learned counsel for the respondent has further urged that the order of the Enquiring Officer is vitiated by reason of violation of Rule 14 (18) of the 1965 Rules. He has submitted that as in the enquiry proceeding the respondent has not examined himself it was obligatory under the aforesaid rule for the Enquiring Officer to question the respondent on the circumstances appearing against him in the evidence for the purpose of enabling the respondent to explain any circumstances appearing in the evidence against him. Learned counsel pointed out several circumstances which appeared in the evidence against the respondent, were taken into account without affording any opportunity to the respondent to explain the same. According to the learned counsel these are: (i) Enquiring Officer disbelieves part of the father's statement though this was communicated to the respondent in support of charge-sheet without telling' the respondent that he was doing so: (ii) Enquiring Officer took into account the fact that because the father had to maintain a large family it was not possible for him to acquire the house, (iii) The mother of the respondent did not have any bank account; she also could not have kept the money in the house; the mother therefore could not have acquired the property; (iv) Absence of the departmental permission to the father before acquisition of the property in the name of the mother. The Enquiring Officer relied upon these circumstances without calling upon the respondent to explain them which was mandatory under the aforesaid rule. It was submitted that the respondent was taken by surprise when part of the father's statement was not accepted. Learned counsel for the appellants however contended that, this point has not been taken in the petition or at any time during the enquiring proceeding. According to the learned counsel as this point his been taken for the first time before us in the appeal it should not be considered. Learned counsel for the appellants however contended that, this point has not been taken in the petition or at any time during the enquiring proceeding. According to the learned counsel as this point his been taken for the first time before us in the appeal it should not be considered. In our opinion, learned counsel for the appellants is correct in his contention, Though it appears that there may be some force in the contention of the learned counsel for the respondent yet we do not express any view on this point as this point has been taken before us for the first time in the appeal and this point also does not appear to be patent on the record. 108. It is further argued by the counsel for the respondent that the Enquiring Officer heard the case with a closed mind and bias. He contended that the case was decided against the respondent before it was heard. Learned counsel referred to several facts in support of this charge These are: (a) Delay in proceeding with the hearing of the charge. Though Charge sheet was given in 1964 and hearing did not commence till 1966, still adjournment was not given to the respondent after his father's death: (b) subsistence allowance was refused to the respondent. Request for such allowance was made in March 1965 but it was refused in May 1965; (c) Enquiring Officer knew beforehand what oral evidence would be led and also knew who the witness would be; (d) Enquiring Officer should not have urged the claim of privilege; (e) Respondent's request for production of witness from National Savings Society and Post Office was turned down; (f) Taking up the cause of R. N. Sen by saying that he did not do anything; (g) Threatening the respondent by saying that unless he would come and give evidence the Enquiring Officer would hold against the respondent; (h) Enquiring Officer's comment because the mother wrote letter through lawyer; (i) Not writing to the mother of the respondent for the purpose of inspection of the property. 109. In view of our findings noted earlier we do not consider it necessary to deal with this point in any detail. In our opinion, it would not be safe to conclude from those facts that the Enquiring Officer was biased or conducted the proceedings with a closed mind or prejudged the issues. 110. 109. In view of our findings noted earlier we do not consider it necessary to deal with this point in any detail. In our opinion, it would not be safe to conclude from those facts that the Enquiring Officer was biased or conducted the proceedings with a closed mind or prejudged the issues. 110. The respondent also challenged the order of the Disciplinary Authority. The order is at page 275 of the paper book. Referring to paragraph 6 of the order at page 276 of the paper book it was submitted by the learned counsel for the respondent that the disciplinary authority took a completely wrong view about the onus of proof in coming to the conclusion that onus lay on the respondent and that he had failed to discharge the same. It was further submitted that the Disciplinary Authority did not consider all aspects of the case. Therefore, the learned counsel submitted that the order of the Disciplinary Authority is perverse. Though the point raised by the learned counsel cannot be said to be without substance yet in view of our finding with regard to the order of Enquiring Officer we do not think it is necessary to deal with this point in any detail save and except mentioning that the Disciplinary Authority did not take into account the fact that the mother of the respondent executed a Deed of Trust in respect of the New Alipore property in favour of her daughters although this fact was brought to the notice of the department by the letter of the mother's lawyer to the Collector of Customs dated June 11. 1966 which is at page 160 of the paper book. 111. With regard to remanded point No.4, namely the onus of proof was misplaced by the disciplinary authority as a result of confusion between the law regarding disciplinary proceedings under 178A of the Sea Customs Act 1878 it was submitted on behalf of the appellants that this point had been determined by the decision of the Appeal Court. In support of his contention reliance was placed upon the following observation in the said judgment. "Therefore, in fact there was no misplacement of onus and nothing was presumed against the petitioner. This aspect of the problem was not considered by the learned Judge in his decision. In support of his contention reliance was placed upon the following observation in the said judgment. "Therefore, in fact there was no misplacement of onus and nothing was presumed against the petitioner. This aspect of the problem was not considered by the learned Judge in his decision. But these considerations reflect on the question of how the charge should be read in the context." 112. Learned Standing Counsel appearing on behalf of the respondent, however, contended that the above point was not considered finally by the Appellate Court and, therefore, it remanded the point to the learned trial Judge for his consideration. He has submitted that the above observation of the Appellate Court is merely interlocutory in nature and is not conclusive. 113. With regard to the remanded point No.4 the learned trial Judge has observed that-"This contention again does not appear to be of any substance. As I have already indicated, the respondents did call some evidence and produce a number of witnesses before the delinquent was called upon to make his defence. This itself shows that the onus was not shifted on the delinquent to prove his innocence before the departmental authority had tried to prove the guilt of the petitioner. Hence, the question of confusion between the onus of proof under disciplinary proceedings and proceedings under section 178A of the Sea Customs Act does not really arise." 114. We fully agree with the conclusion of the learned trial Judge on this point. In our view the reasons of the learned Judge are quite sound and we do not see any ground to interfere with the above conclusion of the learned trial Judge on this point. 115. The real question, in our opinion, is whether the onus has been discharged and the finding of the Enquiring Officer can be justified. For reasons stated we have held that the finding of the Enquiring Officer in the instant case must be considered to be perverse and cannot be justified. 116. In the view that we have taken in the appeal for reasons stated herein, the appeal must fail and must be dismissed. 117. The appeal is therefore, hereby dismissed. Rule Nisi is made absolute. The order of the Collector of Customs dated February 6, 1968 is quashed. 116. In the view that we have taken in the appeal for reasons stated herein, the appeal must fail and must be dismissed. 117. The appeal is therefore, hereby dismissed. Rule Nisi is made absolute. The order of the Collector of Customs dated February 6, 1968 is quashed. The respondent will get the costs of hearing in the Court below (both the hearing of the writ petition and the hearing after remand) as also of the hearing before the Appellate Court which heard the appeal before remand and hearing of the appeal before us. Certified for two counsel so far as hearing of the appeal before us. 118. As we have held that the findings of the Enquiring Officer are perverse we direct that no fresh enquiry shall be held against the respondent on the same charge. 119. In the instant case, we have held that the order of dismissal was not justified as the said order was made in violation of the provisions contained in Article 311 of the Constitution and was also not justified on the merits as the charge against the Government servant was not established. On the basis of our aforesaid findings, we set aside the order of dismissal of the Government servant. In view of our aforesaid findings we direct the department to proceed to act in terms of the provisions contained in Fundamental Rules, Rule 54A(3). Sen, J.: I agree.