Judgment 1. ON December 8, 1964 the petitioner appellant who was a permanent Government servant in the State Government, was served with the following charge sheet: "whereas it has been made to appear to the Governor that you, Sri Sudhir Chandra Chakraborty, have, while employed as Forest Ranger, canning under the 24-Parganas forest Division, been guilty of the following charges namely:- (1) That you are found to be in possession of a property to wit a two stride building on a plot of land measuring about 4.25 kottahs situated at 15b, N.N, Ghosh Lane, Tollygunge, valued according to you, at Rs.30000/- which is utterly disproportionate to the known sources of your income and the acquisition of which property has not been satisfactorily accounted for by you with the result that there is warrant for reasonable inference that the said property was acquired by you in criminal misconduct in the discharge of your duties. (2) That the declaration of assets submitted by you on. . . . . . are materially incomplete, misleading and false in regard to several items. " 2. THE petitioner was asked to put in his written statement of defence 1c the Enquiring Officer, appointed for the purpose of holding the inquiry, stating whether he desire to be heard in person or to call any witness or to produce any document in his defence and showing cause Why the penalty of dismissal or other penalty as would be deemed fit should not be imposed on him. The petitioner on January 15, 1965 filed his written statement of defence deny the charges. Thereafter on behalf of the Government a letter was written to the Enquiring Officer on March 3, 1965 which is as follows: "I have to state that the charges framed against Shri S. C. Chakraborty are not in keeping with facts incorporated in our enquiry report. As a matter of fact, we have not at our disposal the evidence necessary for charge No. 1 and as such we do not press for this charge in our report. Regarding Charge No. 2 the charge and the statement of allegations are not clear and unambiguous as some vital information is lacking. Our evidence Warrants charges of different kind on the basis of information at our disposal. I, therefore, pray that I may be permitted not to proceed with the charges framed. Regarding Charge No. 2 the charge and the statement of allegations are not clear and unambiguous as some vital information is lacking. Our evidence Warrants charges of different kind on the basis of information at our disposal. I, therefore, pray that I may be permitted not to proceed with the charges framed. We are writing to the forest departments for taking further and necessary action in the matter." 3. THEREAFTER again it appears that on July 17, 1965 the petitioner was served with the following charge sheet. "whereas it has been made to appear to the Governor that you, Shri sudhir Chandra Chakraborty, has, while employed as Forest Ranger, canning under the 24-Parganas Forest Division, been guilty of the following charges namely:- (1) That you are found to be in possession of a property to wit a two storied building on a plot of land measuring about 4. 25 kottahs situated at 15 (subsequently numbered 15b), N. N. Ghosh Lane, Tollygunge, valued, according to you, at Rs. 30,000/- which is utterly disproportionate to the known sources of your income and the acquisition of which property has not been satisfactorily accounted for by you with the result that there is warrant for the reasonable inference that the said property was acquired by you in criminal misconduct in the discharge of your official duties. (2) That the declaration of assets as they stood on different dates. . . . . . . . are materially incomplete and or misleading and or false inasmuch as the of sum of Rs. 5,000/-slated to have been spent by you after August, 1961 in constructing three living bed-rooms and one verandah on the first floor of the building situated at 15 (subsequently numbered 15b) N. N. Ghosh lane, Tollygunge was not mentioned by you in the aforesaid declaration of assets. (3) That the declaration of assets on. . . . . . . . are materially incomplete, misleading and or false. (4) That you are guilty of contravention of Rule 15 (2) of the West Bengal Government Servants' Con duct Rule, 1959 inasmuch as the leasehold land in Siliguri held in the name of your wife was sold. . . . without previous knowledge or sanction of your appointing authority. And whereas for the aforesaid reasons you are prima facie unsuitable to be retained in service of the state Government. . . . without previous knowledge or sanction of your appointing authority. And whereas for the aforesaid reasons you are prima facie unsuitable to be retained in service of the state Government. And whereas on the grounds set forth above it is proposed to impose upon you. . . . . . the penalty of dismissal from the civil Service of the State Government. Now, therefore. . . Governor is pleased to require you to put in within 15 days from the date of the receipt of this order or within such extended period as may be allowed before Sri C. C. Chakraborty, West Bengal Higher Judicial Service (Retired), Special Officer, Chief Minister's Secretariat and Commissioners for Departmental Enquiries under the Vigilance Commission, west Bengal who have been appointed as: the enquiring Officer for holding enquiry into the aforesaid charges against you, a written statement of your defence and to make any representation that you may desire to make stating whether you desire to be heard in person or to call any witness or to produce any document in your defence and showing cause why the penalty of dismissal from the Civil Services of the State government or any other penalty of which mention is made in Rule 49 of the Civil Services (classification, control and Appeal) Rules, as may be deem fit should not be imposed upon you". Along with this charge sheet a statement of imputations on which the charges were based was also enclosed. 4. THE appellant thereafter filed his written statement of defence to the charge on August 25, 1965 contending inter alia that he could not be tried twice for identical charges. He also denied the various allegations made against him and prayed for hearing in person and to examine his witnesses. The Enquiry Officer thereafter conducted the departmental enquiry against him during October 18, 1965 ho October 20, 1965 when four prosecution witnesses and two defence witnesses ware examined and cross-examined. The Enquiry Officer filed his report on November 17, 1965 and in the said report the petitioner was found guilty of all the charges. The Enquiry Officer thereafter conducted the departmental enquiry against him during October 18, 1965 ho October 20, 1965 when four prosecution witnesses and two defence witnesses ware examined and cross-examined. The Enquiry Officer filed his report on November 17, 1965 and in the said report the petitioner was found guilty of all the charges. On February 8, 1966 the appointing authority issued the following order, the extracts whereof are as follows : "whereas after careful examination of the written statement of your defence, the report of the Enquiry Officer on merits as also the evidence produced by you before the Enquiry Officer the Governor is pleased to agree with the Enquiry Officer and to arrive at the conclusion that all the charges against you (the appellant) had been established. And whereas on account of Charge No. 1. . . . . . the Governor is pleased to propose to impose upon you the appellant) under Rule 52 read with Rule 49 of the Civil Services (Classification, Control and Appeal) Rules, penalty of dismissal from the Civil Services of the State Government. Now, therefore, in pursuance of Clauses (2) of Article 311 of the Constitution of India and Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, the Governor is pleased hereby to require you to submit within 15 days from the date of the receipt of this order, to the undersigned a written statement of defence, showing cause as to why the penalty of dismissal from the Civil Service of the State Government shall not be imposed on, you". Along with this order a copy of the enquiry report was forwarded to the appellant. 7 the appellant filed his written statement to the aforesaid show-cause notice denying the allegations and disputing the findings arrived at by the Enquiry Officer. Thereafter, on March 8, 1968 the following order the extract of which is given below was passed : ". . . . Whereas after proper departmental proceedings the said Sudhir Chandra Chakraborty has been found guilty of the charges stated above on account of which only the punishment of dismissal is considered adequate. Now, therefore, the Governor is pleased to order that the said Sudhir Chandra Chakraborty be and hereby is dismissed from the Civil Services of the said Government of West Bengal with effect from the date of this order." 8. Now, therefore, the Governor is pleased to order that the said Sudhir Chandra Chakraborty be and hereby is dismissed from the Civil Services of the said Government of West Bengal with effect from the date of this order." 8. The petitioner thereafter filed an application under Article 226 of the Constitution of India calling upon the Respondent, State of West Bengal, to show cause why a writ in the nature of certiorari should not be issued setting aside, concealing or quashing the orders of July 17, 1965 and February 8, 1906 and March 8, 1968 on the allegations and contentions made in the said application. It was contended inter alia that the charge sheet issued for the second time after withdrawing a similar charge sheet was not tenable in law ; that the charge sheet was vitiated by bias and prejudice by reason of the penalties mentioned therein. Further the imputations of the charge sheet were not proved in accordance with law and the findings on the aforesaid charges was unsustainable. On this application, a rule nisi was issued on June 25, 1968 and the State of West Bengal, on being served, duly filed its return to the rule by an affidavit-in-opposition affirmed by pradip Kumar Rakshit, Deputy Secretary, Government of West Bengal on 18th September, 1968 denying the allegations made in the petition and contending further that all the steps taken by the Government were in accordance with law and also that the finding that the appellant was guilty of the aforesaid charges was proper and based on cogent material. The petitioner filed his affidavit-in-reply affirmed on November 8, 1968 reiterating the contentions made in the petition. This rule giving rise to matter No. 434 of 1969 was heard by Sabyasachi Mukherji, J. on January 5, 1972 and was discharged. The present appeal is against this decision. 9. Mr. Abinash Chandra Bhattacharyya and later Mr. R.N. Deb appearing for the petitioner appellant firstly submitted that the charge-sheet and the proceeding there under were vitiated by the mention of punishment therein showing the bias and closed mind of the authority. It was contended that the question of penalty would arise only after the Government servant is found guilty of the charges alleged and never prior to such finding. It was contended that the question of penalty would arise only after the Government servant is found guilty of the charges alleged and never prior to such finding. The appellant in the charge sheet was also asked to show-cause against the proposed punishment of dismissal even though at that stage his guilt was yet to be ascertained. Strong reliance was placed on the decision in the case of State, of west Bengal v. Satiprasad Roy, 79 CWN 38 wherein it was held that the mention of proposed penalty of dismissal in the charge-sheet and other circumstances were likely to lead to the reasonable apprehension in such Government Servant of not having a fair and impartial inquiry against him. It would also disclose the closed mind of the disciplinary authority even before the charges were investigated. Reliance was placed on the decision in Khemchand v. Union of India, AIR 1958 S.C. 300 wherein the Supreme Court stated that the question of penalty would arise only if the delinquent officer was provisionally found to be guilty by the appointing authority. 10. It would however, appear that the decision in the Satisprasad's case was based not only on the mention of proposed penalty in the charge sheet. Conclusion in the above case, holding that the enquiry was vitiated by bias and prejudice, was on consideration of various attending circumstances and the decision was based on the cumulative effect of all such factors. In that case the charge sheet indicated that the petitioner had been found guilty and also that the penalty of dismissal or other penalties was sought to be imposed upon him. The enquiry was directed to be conducted by an officer under the control of the appointing authority who was likely to be prejudiced by the expression of guilt by his superior officer and in fact he also recommended dismissal of the delinquent officer though it was not part of his statutory obligation. It was also held that the mere proposal of several punishments major or minor in the charge sheet will not by itself indicate that the disciplinary authority is biased or prejudiced against the delinquent officer as it indicates the flexibility and openness of his mind and this, without more, will not vitiate the enquiry where in fact the enquiry is held according to the rules and principles of natural justice. In that case the delinquent officer did not appear at the inquiry as he alleged that the Enquiry Officer was biased and prejudiced against him. 11. In the case before us there is proposal of punishment in the charge-sheet which undoubtedly should not have been there at the stage. In view of the inquiry which was held in accordance with the principles of natural justice it cannot be said that the inquiry was vitiated by reason of any bias on the part of the appointing authority. It may again be mentioned that the Enquiry Officer in the case before us was a retired member of the west Bengal Higher Judicial Service not under the administrative or any control of the appointing authority, which was the position in the case cited above. For all these reasons, it seems to us that the petitioner's contention has no substance in the attending facts and circumstances of the case. 12. The next point urged on behalf of the appellant is that the second proceeding was not permissible or tenable in law in view of the withdrawal of the similar charges earlier. Reliance was placed on the decision in rangachari v. Secretary of State, A.I.R. 1937 P.C. 27 in which it was held that when 'invalid pension was once granted my a competent authority to a civil servant who thus ceased to be in Government Service, the order of the successor in office removing him from service on reconsideration of the matter was improper. Reliance was also placed on the decision in Dwarkachand Vs. State of Rajas than, A.I.R. 1958 Rajas than 38, where it was held that once a departmental inquiry was over and a public servant had been exonerated, no second departmental inquiry on the same facts could be ordered unless there was a specific provision for reviewing an order of exoneration in the service rules, or, in law. On these authorities, it was submitted that the second inquiry was incompetent in law. 13. Mr. P.K. Sengupta appearing on behalf of the Government, on the other hand, contended that there was no trial in the first inquiry stage when the proceedings were dropped. On these authorities, it was submitted that the second inquiry was incompetent in law. 13. Mr. P.K. Sengupta appearing on behalf of the Government, on the other hand, contended that there was no trial in the first inquiry stage when the proceedings were dropped. Accordingly there was no bar to the second inquiry and he referred as example to Article 20 of the Constitution of India wherein it has been provided that a person is not to be prosecuted and punished for the same offence more than once. The position is different here as no trial in fact was held on the basis of the first charge-sheet and accordingly there was no exoneration of the petitioner in respect of those charges. It is true that the petitioner was called upon to answer practically identical charges but we do not find any impediment in law when in fact the first charge was dropped without any trial and there was thus no exoneration of the petitioner from tie charges against him. In the case of Rangachari, the public servant's service in Government came to an end by the grant of the invalid pension and the same being a final order in respect of the service could not be reopened by an order removing him from his service by a succeeding officer. In the Rajas than case, there was a trial and the public servant was exonerated from the charges after such trial. In that situation it was held that there could not be a second proceeding against the person. The principle of law enunciated in that case had no application to the case before us as the earlier charges were merely withdrawn without any trial and there was no legal impediment on the part of the Government to proceed against the charges for the second time in the circumstances. This contention is accordingly also unacceptable. 14. The appellant's next contention was that though he cited about 11 witnesses only two were called and the other witnesses were not allowed to be produced. This contention has no merit as there is no contemporaneous evidence to show that the petitioner seriously or at all pressed for examination of his other witnesses although he cited 11 witnesses or that the Enquiry Officer turned down the prayer without assigning any reason. This contention has no merit as there is no contemporaneous evidence to show that the petitioner seriously or at all pressed for examination of his other witnesses although he cited 11 witnesses or that the Enquiry Officer turned down the prayer without assigning any reason. It will appear from the Enquiry Officer's report that after conclusion of evidence he fixed the case for argument with the consent of the parties. This will also indicate that the petitioner never desired examination of his other witnesses. 15. It was further submitted that the petitioner's prayer for legal assistance at the inquiry was denied by the enquiry Officer. Under the rules of procedure it is the discretion of the inquiry officer to allow legal assistance to the delinquent public servant at the departmental inquiry. The Enquiry officer recorded that no legal assistance was called for. The rule as we have noted gives a discretion to the Enquiry Officer and we cannot say that such discretion was wrongly exercised. The questions involved in the case were in essence questions of fact about the possession of disproportionate assets by the appellant beyond his known sources of income. We do not think that there was any error of procedure or failure of natural justice in his refusal to allow the petitioner appellant to have legal assistance. 16. The last point contended on behalf of appellant relates to the order proposing penalty of dismissal. It is said that the finding that the petitioner is guilty when the penalty is proposed must be a provisional finding on acceptance of the report of the Enquiry officer. In the case before us it is contended that the finding about the guilt of the appellant was a conclusive one as the order indicated. Accordingly, the order was vitiated as: being in violation of the principles of natural justice. Our attention was drawn to the decision in the case of state of Assam v. Bimal Kumar Pandit, A.I.R. 1963 S.C. 1612, in which that court laid down the following proposition it is now well settled that a public officer against whom disciplinary proceedings are intended to be taken is entitled to have two opportunities before disciplinary action is finally taken against him. An enquiry must be conducted according to the rules prescribed in that behalf and consistently with the requirements of natural adjust at this enquiry, the public officer concerned would be entitled to test the evidence adduced against him by cross-examination, where necessary, and to lead his own evidence. In other words at this first stage of the proceeding he is entitled to have an opportunity to defend himself. "When the inquiry is over and the Enquiring officer submits his report, the dismissing authority has to consider the report and decide whether it agrees with the conclusions of the report or not. If the findings in the report are against the public officer and the dismissing authority agrees with the said findings, a stage is reached for giving another opportunity to the public officer to show why disciplinary action should not be taken against him. In issuing the second notice, the dismissing authority naturally has to come to a tentative or provisional conclusion about the guilt of the public officer as well as about the punishment which would meet the requirement of justice in his case and it is only after reaching conclusions in both these matters provisionally that the dismissing authority issues the second notice. There is no doubt that in response to this notice the public officer is entitled to show cause not only against the action proposed to be taken against him but also against the validity and correctness of the findings recorded by the Enquiry officer and provisionally accepted by the disciplinary authority." 17. The above principle has been consistently followed and reiterated as will appear from the decision in Krishna chandra v. Union of India, A.I.R. 1974 S.C. 1589. In the case before us, the order does not by itself indicate, after acceptance of the inquiry report, about the provisional findings of guilt as it stated that the appellant had been found guilty on the basis of such report. It would nevertheless appear that the petitioner's attention had been drawn to the provision of Article 311 (2) of the Constitution and he had been asked to show cause against the proposed punishment. It would nevertheless appear that the petitioner's attention had been drawn to the provision of Article 311 (2) of the Constitution and he had been asked to show cause against the proposed punishment. The opportunity to show cause against the proposed punishment includes right to show the infirmities in the findings of the enquiry report and in the procedure at such enquiry and accordingly by its nature the opportunity to show-cause against the proposed punishment must imply only a provisional acceptance of the findings of the enquiry report. Otherwise, there is no meaning for the opportunity to object against the enquiry report which would mean that the inquiry report was never conclusively accepted by the appointing authority. The finding of guilt was therefore a provisional finding in the circumstances and the petitioner having availed of the opportunity to show-cause against the report as also the proposed penalty has no reason to complain. For all these reasons all points urged on behalf of the appellant fail. The appeal is dismissed and there will be no order as to costs in the circumstances. Appeal dismissed.