JUDGMENT Basak. J. This appeal arises out of a judgment and order passed by a learned Single Judge of this Court allowing the writ application of the writ petitioner (the respondent in the appeal) made under Article 226 of the Constitution of India and making the Rule absolute. By the said writ petition the petitioner prayed for setting aside the entire disciplinary proceedings against him including the charge sheet dated 12th May, 1987, the report of the Enquiring Officer, the Memorandum dated 24th of August and 14th of September, 1979 and the impugned order of removal from service dated 19th July, 1980. FACTS- 2. The facts of this case are as follows. At the relevant time the petitioner was holding the post of Assistant Director (Jute Scheme), Export Inspection Agency, Jute Scheme in the Cal. Office. Export Inspection Council of India (hereinafter referred to as Council) the officers of which are the respondents in the writ petition and the appellants before us. On 15th of October, 1970 the petitioner was appointed to the post of Junior Technical Officer in the Export Inspection Agency Calcutta (Jute Scheme). On 1st of November, 1974 the petitioner was promoted to the post of Assistant Director. In September, 1975 the petitioner visited Jammu and Kashmir along with the members of his family and other colleagues on obtaining Leave Travel Concession (hereinafter referred to as LTC). Apart from the petitioner, another Assistant Director, namely, Sri A. Dastidar of this office and one office Assistant namely, Samar Dey of the Calcutta Office also visited Kashmir. This was done under a package tour organised by one Maharaja Travels. In this connection the petitioner submitted a tour programme stating that on 1st of October, 1975 he along with the members of his family would be travelling to Kashmir and back. Under the heading "Means and Class" it was specified "Trains 1st Class". This was submitted to appropriate authority for approval requesting grant of necessary advances under L.T.C. This was sanctioned and he received a sum of Rs. 1,540/-. On completion of his said journey, the petitioner submitted a Tour Diary in the prescribed form. In the said Tour Diary under the column Means and Class the petitioner declared that he and the members of his family had travelled in "Jammu Exp. 1st" and "Jammu & Sealdah Ex. 1st". 1,540/-. On completion of his said journey, the petitioner submitted a Tour Diary in the prescribed form. In the said Tour Diary under the column Means and Class the petitioner declared that he and the members of his family had travelled in "Jammu Exp. 1st" and "Jammu & Sealdah Ex. 1st". It was also stated therein by the petitioner that be travelled under the package tour conducted by Maharaja Travels. In support of the same money receipt for Rs. 2,495/-, certificate dated 14th of November, 1975 granted by Maharaja Travels, the L.T.C. Certificate and the application for claiming reimbursement were enclosed. By an office Note dated 25th of November, 1975 the Controlling Officer sanctioned the claim of the petitioner. It is the case of the petitioner that such sanction was made after the Accounts Department had checked up from the organisations like D.G.C.I. and Indian Jute Industries Research Association (hereinafter referred to as IJIRA) that such package tours conducted by Travel Agencies were being entertained and the receipt issued by the Travel Agents were taken as admissible and that the L.T.C. claims were settled on that basis. By a memorandum dated 23rd of April, 1976 the petitioner was directed by the Addl. Director (T) of the Council to meet one Shri N.K. Mukherjee, an officer of the Central Bureau of Investigation, Special Police Establishment Division (hereinafter referred to as C.B.I.) on 6th of May, 1976. By a confidential letter dated 31st of July, 1976 Shri S.K. Chakraborty Superintendent of Police of C.B.I., Calcutta, forwarded his report No. 62 dated 30th of July, 1976 against Shri Samar Dey to the Additional Director of the Council, Calcutta, stating that the said report would show that there was enough material for initiating regular departmental action for imposition of major penalty against Shri Dey. By a memorandum dated 5th of August, 1976 issued by Shri C.K. Mehrotra, Additional Director (T) a departmental proceeding was initiated against Shri Dey. On the basis of a preliminary inquiry held against the petitioner, Shri N.K. Mukherjee of C.B.I. lodged a first information report against the petitioner with the Delhi Special Police Establishment Calcutta Branch on 27th of October, 1976 for alleged offence under sections 420, 468 and 471, IPC. On the basis of a preliminary inquiry held against the petitioner, Shri N.K. Mukherjee of C.B.I. lodged a first information report against the petitioner with the Delhi Special Police Establishment Calcutta Branch on 27th of October, 1976 for alleged offence under sections 420, 468 and 471, IPC. By an order dated 12th of November, 1976 issued by Additional Director of the Council, New Delhi, the petitioner was put under suspension on the ground that a criminal offence is under investigation against him. On 22nd of December, 1976 the petitioner preferred an appeal to the Director (C.C.) in the Ministry of Commerce Government of India against the order of suspension assessed against him. On completion of the investigation against the petitioner, C.B.I. forwarded the Report to Dy. Inspector General of Police, C.B.I., New Delhi. On or about 2nd of May, 1977 the D.I.G. of Police, C.B.I., New Delhi, advised the Ministry of Commerce, Govt. of India for initiating regular departmental action against the petitioner and also to recover a sum of Rs. 1,381.90 from the petitioner which he was alleged to have drawn in excess. 3. By a memorandum dated 12th of May, 1977 Sri D.C. Majumdar, the Disciplinary Authority of the petitioner (hereinafter referred to as D.A.) informed the petitioner that it was proposed to hold an enquiry against him under Rule 11 of the Export Inspection Agency Employees (Clarification, Control and Appeal) Rules (hereinafter referred to as the said Rules). The relevant portion of the said Memo is set out herein below : "The undersigned proposes to hold an enquiry against Shri Kalyan Kumar Mitra, Asstt. Director, Export Inspection Agency Calcutta (Jute Scheme) under Rule 11 of Export Inspection Agency Employees (Classification, Control and Appeal) Rules. The substance of the impugations of misconduct in respect of which the inquiry is proposed to be held is set out in the enclosed statement of articles of charge (Annexure I). A statement of the imputations of misconduct in support of the article of charge is enclosed (Annexure II). The substance of the impugations of misconduct in respect of which the inquiry is proposed to be held is set out in the enclosed statement of articles of charge (Annexure I). A statement of the imputations of misconduct in support of the article of charge is enclosed (Annexure II). A list of documents by which, and a list of witnesses by whom the article of charge is proposed to be sustained are also enclosed (Annexures III & IV)." "Sheee Kalyan Kumar Mitra is directed to submit within 10 days of the receipt of this memorandum, a written statement of his defence and also to state whether to desires to be heard in person." "He is informed that the inquiry will be held only if the article of charge is not admitted. He should, therefore, specifically admit or deny the article of charges." "Shri Kalyan Kumar Mitra is further informed that if he does not submit his written statement of defence on or before the date specified in para 2 above, or does not appear in person before the Inquiring Authority or otherwise fails or refuses to comply with the provisions of Rule 11 of the Export Inspection Agency (Classification, Control & Appeal) Rules, or the orders/direction issued in pursuance of the said Rule the Inquiring Authority may hold the inquiry against him ex parte." 4. The Articles of Charges, being Annexure I, provided as follows : "That Sri Kalyan Kumar Mitra, while functioning as Asstt. Director (Jute Scheme), Export Inspection Agency, Calcutta, during the months of September to December, 1975 committed gross misconduct and failed to maintain absolute integrity and acted in manner unbecoming of a Govt. servant inasmuch as he falsely claimed an amount of Rs. 1,618.70 P. from the Department as L.T.C. in respect of the journeys Ex. Sealdah to Pahelgaon (Kashmir) and back along with his wife, mother and son, aged about 5 years, by showing the railway journey Ex. Sealdah to Jammu and back in the 1st class, although be never performed the journey in the 1st class, but had travelled in second class both ways and obtained payment of Rs. 1,618.70 as against entitlement of Rs. Sealdah to Jammu and back in the 1st class, although be never performed the journey in the 1st class, but had travelled in second class both ways and obtained payment of Rs. 1,618.70 as against entitlement of Rs. 226.80 by submitting false money receipt and certificate of journey procured from M/s. Maharaja Travels, Shri Mitra thus failed to maintain absolute integrity acted in the manner unbecoming of an Officer and thereby contravened Rule 3(1)(i) & (iii) of C.C.S. (Conduct) Rules, 1955 applicable to the employees of the Export Inspection Agency." 5. The "Statement of Imputation of misconduct", being Annexure II, stated as follows : "The said Sri Kalyan Kumar Mitra, was functioning as Asstt. Director (Jute Scheme) Export Inspection Agency, under Export Inspection Council, Calcutta, during the months of September to December, 1975. That the said Sri Kalyan Kumar Mitra, applied for L.T.C. advance for going to Pahelgaon (Kashmir) with his mother, wife and one son, aged 5 years and on his application accompanied by tour programme an amount of Rs. 1,540/- was sanctioned to him on 1.9.75. In this tour programme Sri Mitra mentioned that he would travel in the 1st class from Sealdah to Jammu and back. After performing the journey, the said Sri Mitra submitted his tour diary indicating the particulars of journey performed by him. In this tour diary, he mentioned that he travelled from the Sealdah to Jammu in the 1st class by Sealdah-Jammu Express leaving Sealdah Station on 15.10.75 along with his family members. In respect of return journey, he mentioned in the tour diary that he along with his 3 family members had travelled in the 1st class by Jammu-Sealdah Express leaving Jammu Railway Station on 28.10.75. In support of the journey the said Sri Mitra submitted a money receipt of Rs. 2,495.00 along with a certificate of journey from M/s. Maharaja Travels, Calcutta showing that the journey from Sealdah to Jammu and back had been performed in the 1st class. On receipt of L.T.C. bill of the said Sri Mitra an amount of Rs. 1,618.70 was sanctioned to him. As Sri Mitra had already drawn a sum of Rs. 1,540.00 as advance, the balance amount of Rs. 78.70 was paid to him against the final settlement of his L.T.C. bill. On receipt of L.T.C. bill of the said Sri Mitra an amount of Rs. 1,618.70 was sanctioned to him. As Sri Mitra had already drawn a sum of Rs. 1,540.00 as advance, the balance amount of Rs. 78.70 was paid to him against the final settlement of his L.T.C. bill. It is found that the said Sri Kalyan Kumar Mitra, did not travel in the 1st class along with his family members as their names do not appear in the Reservation Chart of 17 Up of Sealdah-Jammu Express dated 15.10.75. It was confirmed by Sealdah Railway Station that there was no reservation in the name of Sri Kalyan Kumar Mitra and members of his family on 15.10.75 in the 1st class Ex. Sealdah Station the said Kalyan Kumar Mitra did not have any reservation in the 1st class as per Reservation Chart of Jammu-Sealdah Express dated 28.10.75. It was also found that the said Sri Mitra travelled in the second class on 15.10.75 along with his family members Ex-Sealdah to Jammu. Similarly, on his return journey, he travelled in the second class on 28.10.75 from Jammu to Sealdah. M/s. Maharaja Travels, Calcutta, had arranged for package tour from Calcutta to Pahelgaon for 13 persons including Sri Kalyan Kumar Mitra and his family consisting of his mother, wife and son, package tour had commenced on 15.10.75 and ended on 30.10.75. The said package tour from Sealdah to Jammu was performed in an unreserved second class Railway Compartment of Sealdah-Jammu Express on 15.10.75. The return journey was also performed in an unreserved second class Railway Compartment of Jammu Railway Station on 28.10.75 and the party reached Calcutta on 30.10.75. The said Sri Mitra, obtained a money receipt from M/s. Maharaja Travels, Calcutta for his journey to Kashmir. In the said money receipt, 1st class rail fare from Sealdah to Jammu and back is stated to have been realised, although no journey was performed in the 1st class. It was further found that M/s. Maharaja Travels, Calcutta charged/realised a total amount of Rs. 2,495/- from the said Sri Mitra. In the said money receipt, 1st class rail fare from Sealdah to Jammu and back is stated to have been realised, although no journey was performed in the 1st class. It was further found that M/s. Maharaja Travels, Calcutta charged/realised a total amount of Rs. 2,495/- from the said Sri Mitra. This charge included (i) 2nd Class Railway fare from Sealdah to Jammu and back for 3 adults and 1 child, (ii) Bus fare from Jammu and Srinagar and back for 3 adults and 1 child (iii) Sight seeing expenses at Kashmir, (iv) Expenses on food during rail and bus journeys for 3 adults and 1 child, and (v) Boarding and lodging expenses at Srinagar for 12 days for 3 adults and 1 child. As per L.T.C. Rule, an employee is entitled to get only rail/bus fare from his Hd. Quarters to any place in India after deducting the fare of first 400 K.M. on each side. The employee would get the railway fare in the class as per his entitlement, if actually travelled by him in the said class or would get the fare of the class in which the journeys have been performed. The said Sri Mitra was entitled to L.T.C. claim of Rs. 226.80 only from the department, because, he has travelled from Sealdah to Jammu and back with his family members in the second class but he had actually drawn a sum of Rs. 1,618.70P. by showing his in ward and outward journeys in the 1st class Express Sealdah to Jammu and back. This was most unbecoming conduct on his part. The said Sri Mitra, has thus, committed gross misconduct and failed to maintain absolute integrity and acted in a manner unbecoming of an officer. And, he thereby contravened Rule 3(1)(i) and (iii) of the C.C.S. (C) Rules, 1964, applicable to the employees of the Export Inspection Agency." 6. The List of Documents, being Annexure III, specified as follows: (1) Application of Sri K.K. Mitra for grant of LTC. ; (2) Advance sanction of L.T.C.; (3) Tour programme of Sri Mitra; (4) Particulars of Journey on tour of Sri Mitra; (5) Tour diary of Sri Mitra; (6) Money Receipt No. 122 of M/s. Maharaja Travels, Calcutta; (7) Certificate of M/s. Maharaja Travels; (8) LTC. ; (2) Advance sanction of L.T.C.; (3) Tour programme of Sri Mitra; (4) Particulars of Journey on tour of Sri Mitra; (5) Tour diary of Sri Mitra; (6) Money Receipt No. 122 of M/s. Maharaja Travels, Calcutta; (7) Certificate of M/s. Maharaja Travels; (8) LTC. Certificate of Sri Mitra; (9) Application for claiming reimbursement for travelling expenses of Sri Mitra; (10) Note sheet on which final sanction was accorded to Sri Mitra for Rs. 1,618.70, (11) 1st Class Reservation Chart of Sealdah-Jammu Express dated 15.10.75; (12) 1st Class Reservation Chart of Jammu-Sealdah Express dated 28.10.75; (13) Money Receipt Book of M/s. Maharaja Travels, Calcutta; (14) Distination chart of 1st class of Sealdah to Jammu Express leaving Sealdah on 15.10.75. 7. The List of witnesses, being Annexure IV, provided as follows : (1) Sri P. Roychoudhury, Ex. Joint Director, Export Inspection Council, Calcutta; (2) Sri S.S. Sarkar, Sr. Accounts Officer, Export Inspection Agency, Calcutta; (3) Sri T.N. Biswas, Accounts Officer, Export Inspection Agency, Calcutta; (4) Sri R.N. Ganguly, Accountant-cum-Cashier, Export Inspection Agency, Calcutta: (5) Sri B.M. Ghosh, Reservation Clerk, E. Rly. Fairlie Place, Calcutta; (6) Sri Samar Dey, Officer Assistant, Export Inspection Agency, Calcutta; (7) Sri S. Sengupta, partner of M/s. Maharaja Travels, Calcutta; (8) Sri Sushil Kr. Dey, 66, Mukta Ram Babu Street, Calcutta-7 ; (9) Sri P.B. Chakraborty Coach Attendant E. Rly., Calcutta; (10) Sri N.K. Mukherjee, Inspector of Police, C.B.I. S.P.E. Division, Calcutta; (11) Sri Anjan Kr. Banerjee, employee of M/s. Maharaja Travels, Calcutta; (12) Sri Trilokesh Banerjee, partner of M/s. Maharaja Travels, Calcutta. 8. In reply thereto by a letter dated 28th of May, 1977 the petitioner denied the charges levelled against him and asked for a personal bearing. By his letter dated 17th of June, 1977 the Director of the Council appointed one Sri S.N. Razvi, a Joint Director of the Council, the Inquiring Officer to inquire into the charges framed against the petitioner. Upon objection raised on behalf of the petitioner, by an order dated 4th of August, 1977, the D.A. appointed one Sri D.P. Bhattacharya, who was the Joint Director of the Council at Calcutta as the Inquiry Officer to enquire into the charges framed against the petitioner in place and stead of the said Sri Razvi (hereinafter referred to as I.O.). Upon objection raised on behalf of the petitioner, by an order dated 4th of August, 1977, the D.A. appointed one Sri D.P. Bhattacharya, who was the Joint Director of the Council at Calcutta as the Inquiry Officer to enquire into the charges framed against the petitioner in place and stead of the said Sri Razvi (hereinafter referred to as I.O.). By an order dated 2nd of September, 1978 D.A. appointed one Sri B.D. Roy who was then the Deputy Director of the Agency as the presenting Officer to present the case on behalf of the Disciplinary Authority (hereinafter referred to as P.O.). By an order dated 7th of October, 1977 Sri Lakshmikanthan, who was the Disciplinary Authority of Sri Samar Dey, who travelled along with the petitioner and who claimed L.T.C. similarly, passed an order of punishment withholding the increment of Samar Dey by one year and directing recovery of the amount drawn by Sri Dey in excess of the actual fare. In respect of the present enquiries I.O. held his first meeting and the preliminary hearing of the case on the 3rd of December, 1977. The said enquiry was held jointly against the petitioner and Sri A. Dastidar, Assistant Director against whom a similar charge sheet was issued and who also went to Kashmir in the same package tour with the members of his family along with the petitioner. By an order dated 24th of December, 1977 the D.A. revoked the order of suspension pasted against the petitioner. In the said enquiry the petitioner wanted to be assisted by a legal practitioner which was rejected. By a Memorandum dated 25th of February, 1978 the I.O. informed the petitioner that the Disciplinary Authority has decided that as the presenting Officer was not a legal practitioner, he did not find it necessary to allow the petitioner to engage a legal practitioner for the purpose of his defence although the enquiry was conducted in respect of an alleged criminal offence. By a letter dated 29th of March, 1978 the petitioner requested the I.O. to permit him to engage the services of a qualified officer/employee from Government or from Government undertaking to assist him in the enquiry. By a letter dated 29th of March, 1978 the petitioner requested the I.O. to permit him to engage the services of a qualified officer/employee from Government or from Government undertaking to assist him in the enquiry. By a letter dated 8th of May, 1978 the petitioner proposed to engage (i) Sri G.C. De, Joint Director, Export Inspection Council, Calcutta (ii) Sri A. Bagchi, a School Teacher of a West Bengal Government affiliated School, Calcutta and (iii) Sri I.P. Kapoor, Assistant Director, Export Inspection Agency, Calcutta to Act as his defence counsel. By letter dated 1st July, 1978 the petitioner requested the I.O. to engage Sri G.C. De and I.P. Kapoor as his defence helper. Several sittings were held by I.O. between 3rd of December, 1977 to 19th of June, 1979. In respect of these sittings, various grievances have been raised by the petitioners and in support of the same reliance was placed on various documents and correspondence. We shall deal with the same at the time of dealing with the specific submissions made. On 18th of August, 1979, I.O. submitted his report of the enquiry to the Disciplinary Authority of the petitioner. By a letter dated 24th of August, 1979 the D.A. informed the petitioner that he was willing to hear the petitioner and that he deemed it necessary to examine Sri S. Sarkar, Senior Accounts Officer and T.N. Biswas, Accounts Officer both of Export Inspection Council of India, Calcutta (Jute Scheme) in the presence of the petitioner with a liberty to the petitioner to produce defence witnesses. On 3rd of September, 1979 the petitioner made a representation to D.A. in reply to above requesting therein to supply to him a copy of the report of the Inquiry Officer and wanted to know under what provision of the Rules the Director wanted to reexamine the two witnesses who had already been examined and cross examined by I.O. In reply thereto by a letter dated 14th of September, 1979 the Director informed the petitioner that he had decided to examine Sri Sarkar and Sri Biswas to ascertain as to why the factual information referred to therein was not incorporated in the relevant records. By a letter dated 27th of September, 1979 the petitioner informed the Director, inter alia; that there was no justification in examining Shri Sarkar and Biswas without examining Sri P. Roy Chowdhury, the Controlling Officer who actually sanctioned the leave travel concession claim of the petitioner. On 11th of November the petitioner made an application under Article 226 of the Constitution of India challenging the validity and legality of the entire disciplinary proceedings including the charge sheet, the enquiry proceedings as also the Memo. dated 24th of August, 1979 and 14th of September, 1979 issued by the Director. A rule and an interim order was issued by Amlya Kumar Mookerji, J. (Civil Rule No. 15175 (W) of 1979). On 11th of December, 1979 during the pendeacy of the appeal preferred by Sri Samar Dey against the imposition of a minor penalty against him, the Director, who was his appellate authority, by an order promoted Sri Dey to the post of Section Officer. On 10th of July, 1980, the Civil Rule No. 15175 (W) of 1979 was disposed of by Dipak Kumar Sen, J. without adjudicating the merits of the contentions made by the petitioner in the said writ petition. The said order is set out hereinbelow :- "On a consideration of the entire records in the proceedings I dispose of this Rule by giving liberty to the disciplinary authority if he so advised to take necessary action under Rule 12(1) of the relevant rules. I put it on record that the officer concerned who was appointed as an Enquiry Officer is no longer willing to continue with the enquiry inasmuch as allegations have been made against him. The officer is present in court and has instructed the learned Advocate to inform the court of his decision. In that view of the matter the disciplinary authority will be at liberty to appoint another Enquiry Officer in accordance with rule and remit the proceedings back to him for further enquiry and report. It is made clear that this court has not adjudicated on the merits on the matter and this order is made without prejudice to the rights and contentions of the parties in the disciplinary proceedings. There will be no order as to costs. This order will govern the Civil Rule No. 15176(W) of 1979." 9. It is made clear that this court has not adjudicated on the merits on the matter and this order is made without prejudice to the rights and contentions of the parties in the disciplinary proceedings. There will be no order as to costs. This order will govern the Civil Rule No. 15176(W) of 1979." 9. On 19th of July, 1980, the Disciplinary Authority passed an order of penalty of removal of the petitioner from his service. The report of the Enquiry Officer was also furnished along with the order of removal. On 21st of July, 1980, the petitioner was served with the said order by registered post. Thereafter this writ petition was filed by the petitioner. TRIAL COURT JUDGMENT (SYNOPSIS): 10. As already stated, the learned Judge allowed the application and made the Rule absolute. The learned Judge, inter alia, held as follows : (1) The Charge sheet shows that the mind of the Disciplinary Authority was made up before it was issued; (2) The finding was at variance with the Charge sheet. Neither there was any finding on the charge framed nor the findings were in respect of the charge framed; (3) The argument of Mr. Ginwalla that the petitioner had admitted his guilt was rejected. It was held that the petitioner had placed before the Senior Accounts Officer the actual state of affairs. The sanctioning officer did not refuse to sanction because of the prevalent practice in other organisations as regards admissibility of L.T.C. in package tour; (4) There has been violation of the principles of natural justice on the following grounds; (a) Refusal of a Lawyer; (b) The petitioner was not furnished with the material documents and defence witnesses. In this respect it has been held by the learned Judge that (i) Documents in connection with the proceedings in respect of Samar Dey would have helped the petitioner in his defence but the same were deliberately withheld by the authority concerned; (ii) Regarding the records of I.J.I.R.A., the I.O. had prejudged the issue. These documents were relevant. In this respect it has been held by the learned Judge that (i) Documents in connection with the proceedings in respect of Samar Dey would have helped the petitioner in his defence but the same were deliberately withheld by the authority concerned; (ii) Regarding the records of I.J.I.R.A., the I.O. had prejudged the issue. These documents were relevant. Similar finding was made in respect of the prayer of petitioner regarding calling of the Officers of I.J.I.R.A. as defence witnesses; (iii) Report of the C.B.I. Inspector in respect of the Criminal investigation against the petitioner should have been furnished to the petitioner as requested by him; (iv) Enquiry should have been stayed till the disposal of the Appeal of Samar Dey ; (v) Separate enquiry of petitioner and a Dastidar should not have been held. (vi) Regarding re-examination of Sarkar the petitioner should have been allowed to cross-examine; (vii) Regarding evidence of Sengupta-it should not have been relied on; (viii) None of the prosecution witnesses examined. Only C.B.I. statement was produced. (5) The enquiry had been conducted in violation of the Statutory Rules; (a) Asking for disclosure of the names of defence witnesses before conclusion of prosecution evidence was contrary to Rule 11(16); (b) Never questioned generally under Rule 11(18); (c) Although the petitioner was not obliged to furnish names of the defence witnesses before the conclusion of the evidence of the prosecution; the petitioner had to furnish the same in view of the threat contained in the letter of the I.O. dated the 17th of February. 1979; (d) I.O. submitted the enquiry report. Thereafter Disciplinary Authority wrote a letter dated 24th of August, 1979 from which it is evident that the Disciplinary Authority was satisfied that the charges were not proved and as such he wanted to examine two of the witnesses mentioned in the charge sheet but the course proposed was not warranted by the Rule 12(1). It amounts to admission on the part of the Disciplinary Authority that the Rules of natural justice were not followed; (e) Thereafter the writ petition was filed and liberty was given to proceed-according to Rule 12(1) but it was not done. There has been no explanation; 6 (a) Misconduct is alleged in the charge sheet. It must be founded on a motive. There has been no explanation; 6 (a) Misconduct is alleged in the charge sheet. It must be founded on a motive. There was none in the present case ; (b) Contention of the respondents regarding Samar Dey was not accepted ; (c) No legal evidence before the Enquiry Officer to hold the charges proved. Samar Dey was acquitted; (d) Order of dismissal was without jurisdiction. Hence, the petitioner need not exhaust the statutory right of appeal; (e) The petitioner never claimed that he travelled by Railway First Class. 11. Being aggrieved by the same this appeal has been preferred by the respondents in the writ petition. SUBMISSION-On behalf of the appellant 12. Mr. Ginwalla appearing for the appellant has firstly made submission regarding the finding of the learned Judge that the Charge sheet shows that the Authority concerned was biased. In this connection he has placed before us the relevant charge sheet which we have quoted hereinabove. He has submitted that just as in the charge by the Magistrate under the Code of Criminal Procedure, a specific charge has to be made out, similar is the position here. It all depends on the facts and circumstances of the case as to whether the disciplinary authority is biased in initiating a disciplinary enquiry. In this case the Disciplinary Authority viz. Mr. Mazumdar, who was issued the charge sheet, was not biased. This will be borne out by following actions. At the request of the writ petitioner, the Inquiry Officer was charged by Mr. Mazumdar. Subsequently the suspension order passed against the petitioner was revoked at the instance of Mr. Mazumdar. In this connection he had produced before the Court the relevant records and notings the copies of which were supplied to the learned Advocates appearing for the writ petitioner. After the second show cause notice, the petitioner complained before Mr. Mazumdar regarding the conduct of the enquiry and accordingly be was offered an opportunity to produce further witnesses which was not availed of by the petitioner but instead a writ petition was filed. It is true that such action, which was purported to be under section 21(b) of the relevant rules, was a misconceived one upon a wrong construction of the Rules by the Disciplinary Authority. It is true that such action, which was purported to be under section 21(b) of the relevant rules, was a misconceived one upon a wrong construction of the Rules by the Disciplinary Authority. Admittedly he could not have acted in the manner or given any such direction in the facts and circumstances of this case but the fact remains that he wanted that a further opportunity be given to the writ petitioner. It was not for the purpose of filing up any lacuna as sought to be contended on behalf of the writ petitioner. In support of his contentions he has relied on the following decisions. (1) Management of Powat Tea Estate v M.K. Barkatahi reported in 1965(2) LLJ 102 (paragraphs 2 and 3) (2) Tripathi v. State Bank of India, AIR 1984 SC 273 at 278; (3) Nripendra Nath Tarafdar v. Union of India, 1981 LIC 1268 (paras 1, 2 and 6); (4) Collector of Customs, Calcutta v. Biswanath Mukherjee, AIR 1972 Calcutta 401; (5) Siddeswar Banerjee v. Divisional Superintendent, South Eastern Railway 1976 Calcutta High Court Notes 9 (paragraph 2); (6) Sunil Kumar Mukherjee v. State of West Bengal, 1976(2), Cat LJ 529 at 533 (paragraph 8). This was reversed on appeal and is reported at 1977 Calcutta High Court Notes, 1014 (at 1020, paragraphs 9 and 10) In (7) State of West Bengal v. Sati Prasad, 79 CWN 38 (at page 45, paragraph-11) and (8) Sudhir Chandra Chakraborty v. State of West Bengal, 1976 (1) Calcutta Law Journal 483, (paragraphs 4, 9, 10 and 11). 13. Mr. Ginwalla next took up the question of violation of rules as found by the learned Judge. The Rules which are relevant in this Appeal are set out hereinbelow:- Rule 11 (8)-The Agency Employee may take the assistance of any (public 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. Rule 11(16)-When the case for the disciplinary authority is closed the Agency employee shall be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the Agency employee shall be required to sign the record. Rule 11(16)-When the case for the disciplinary authority is closed the Agency employee shall be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the Agency employee shall be required to sign the record. In either case, a copy of the statement of defence shall be given to the presenting Officer, if any appointed. Rule 11(17)-The evidence on behalf of the Agency employee shall then be produced. The Agency employee may examine himself in his own behalf if he so prefers. The witnesses produced by the Agency employee shall then be examined and shall be liable to cross-examination, re-examination and examination by the inquiring authority according to the provisions applicable to the witnesses for the disciplinary authority. Rule 11(18)-The inquiring authority may, after the Agency employee closes his case, and shall, if the Agency employee has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Agency employee to explain any circumstances appearing in the evidence against him. Rule 11(19)-The inquiring authority may, after the completion of the production of evidence, here the Presenting Officer, if any, appointed and the Agency employee, or permit them to file written briefs of their respective case, if they so desire. Rule 11(20)-If the Agency employee to whom a copy of the articles of charge has been delivered, does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the inquiring authority or otherwise fails or refuses to comply with the provisions of this rule, the inquiring authority may hold the inquiry ex-parte. Rule 11(21)-(a) Where a disciplinary authority competent to impose any of the penalties specified in clause (i) the (iv) of Rule 8, but not competent to impose any of the penalties specified in clauses (v) to (ix) of Rule 8, has itself inquired into or caused to be inquired into the Articles of any charge and that authority, having regard to its own findings or having regard to its decision on any of the findings of any inquiring authority appointed by it, is of the opinion that the penalties specified in clauses (v) to (ix) of Rule 8 should be imposed on the Agency employee, that authority shall forward the records of the inquiry to such disciplinary authority as is competent to impose the last mentioned penalties. (b) The disciplinary authority to which the records are so forwarded may act on the evidence on the records or may, if it is of the opinion that further examination of any of the witness is necessary in the interest of justice, re-call the witness and examine, cross-examine and re-examine the witness and may impose on the Agency employee such penalty as it may deed fit in accordance with these rules. Rule 11(23)(i)-After the conclusion of the inquiry, a report shall be prepared and it shall contain ;- (a) the articles of charge and the statement of the imputations of misconduct of misbehaviour; (b) the defence of the Agency employee in respect of each article of charge; (c) an assessment of the evidence in respect of each article of charge; (d) the findings on each article of charge and the reasons therefor. Explanation; If in the opinion of the inquiry authority the proceedings of the inquiry establish any article of charge different from the original articles of the charge, it may record its findings on such article of charge. 14. Provided that the findings on such article of charge shall not be recorded unless the Agency employee has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge. 14. Provided that the findings on such article of charge shall not be recorded unless the Agency employee has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge. (II) The inquiring authority, where it is not itself the disciplinary authority shall forward to the disciplinary authority the records of enquiry which shall include; a) the report prepared by it under clause (i) ; b) the written statement of defence if any submitted by the Agency employee; c) the oral and documentary evidence produced in the course of the enquiry ; d) written briefs, if any, filed by the presenting Officer or the Agency employee or both during the course of the inquiry; e) the orders, if any, made by the disciplinary authority and the inquiring authority in regard to the inquiry. Rule-12 (1) The disciplinary authority if it is not itself the inquiring authority may for reasons to be recorded by it in writing remit the case to the inquiring authority for further inquiry and report and the enquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 11 as far as may be applicable, 12(1). (2) The disciplinary authority shall, if it disagrees with the findings of the inquiring authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose. (3) If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in clauses (i) to (iv) of Rule 8 should be imposed on the Agency Employee, it shall notwithstanding anything contained in Rule 13, make an order imposing such penalty. (4) If the disciplinary authority having to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in clauses (v) to (ix) of Rule 8, should be imposed on the Agency Employee it shall make an order imposing such penalty and it shall not be necessary to give the Agency Employee any opportunity of making representation on the penalty proposed to be imposed. 15. 15. So far as the Rule 11(16) is concerned, he has submitted that the learned Judge has misread the rule. In this context be referred to the letter dated 17th February, 1979 whereby the petitioner was called upon by the I.O. to furnish the names and addresses of the defence witnesses. This letter refers to similar direction given earlier by the I.O. by his letter dated 12th of February, 1979. He has also referred to the reply given by the petitioner on the 19th of February, 1979. He has submitted that no objection was taken by the petitioner against the same. He has submitted that in any event mere violation of Rules as such is not sufficient to enable the petitioner to succeed but he must also show that as a result of such non-compliance, he has suffered prejudice. There is also no allegation in the petition is to the prejudice suffered. He submitted that his contention is that there has been no violation of the rule and that in any event the petitioner was not prejudicially affected by any technical violation of the Rules. So far as alleged violation of Rule 11(8) is concerned, our attention has been drawn to the letters dated 19th February, 1979, 23rd March, 1979 and the writted behind of 25th May, 1979. In support of this contention he has relied on the decision in (9) S.K. Banerjee v. State of West Bengal, AIR 1980 SC 1170 . 16. Next Mr. Ginwalla made his submission regarding the finding of the learned Judge regarding violation of the principle of natural justice on several courts. He has submitted that there has been no such violation in the present case and in any event the petitioner has not suffered any prejudice. So far as the scope of principal of natural justice is concerned he has relied on K.L. Tripathi v. State Bank of India, AIR 1984 SC 273 at 281 (paragraph 29); (10) N.C. Sarin v. Union of India, AIR 1976 SC 1686 at 1695 (paragraph 25) and (11) State of U.P. v. Om Prakash Gupta, AIR 1970 SC 679 . On the question of not providing a lawyer, he submitted that in the present case, no complicated question of fact or law was involved. On the question of not providing a lawyer, he submitted that in the present case, no complicated question of fact or law was involved. So far as the question of fact is concerned there is no lis in the sense that there is an admission by the writ petitioner. The dispute between the parties is limited within a very narrow area. The petitioner obtained loan on the basis of certain application. He did not travel by Railway 1st Class. What he says is that he availed of a package tour arranged by Maharaja Travel and this package tour was of 1st Class. Therefore, on this limited point the enquiry was being held and denial of lawyer cannot be a ground for setting aside the proceeding. Moreover, there is a discretion of the authority concerned and having regard to the facts and circumstance of the case the discretion was properly exercised. In any event such discretion was in bonafide exercise of his power and the writ court should not interfere with the same. In this context he drew our attention to relevant Rule being Rule 11(8) which has been set out hereinabove. In support of his contention, he has relied on the following decisions: (12) Krishna Chandra Tandon v. Union of India, AIR 1974 SC 1589 at 1594 (paragraph 17); S.K. Banerji v. State of West Bengal, AIR 1980 SC 1170 at 1172; N.C. Sarin v. Union of India, AIR 1976 SC 1685 at 1695. 17. The next submission of Mr. Ginwalla was regarding the finding of the learned trial Judge regarding non-production of or not furnishing documents and defence witnesses. Regarding the records of proceedings in case of Samar Dey, he has submitted that the petitioner was given inspection of the Inquiry Report in connection with the disciplinary proceedings taken against Samar Dey. Non-production of other records of the said proceedings was not relevant as they were not material. 18. Regarding non-production of the records of the I.J.I.R.A. and its officers, our attention has been drawn to the findings of the learned Judge to the extent that the Inquiry Officer had prejudged the question of relevancy and that the procedure adopted by him was unusual. In this connection reliance was placed on the decision in K.C. Tandon v. Union of India, AIR 1974 SC at 1594 (paragraph 17). 19. In this connection reliance was placed on the decision in K.C. Tandon v. Union of India, AIR 1974 SC at 1594 (paragraph 17). 19. So far as the records of Preliminary Inquiry against the petitioner are concerned, he has submitted that it was not relied upon in the Inquiry proceedings or by the Presenting Officer. Accordingly not giving inspection of the same does not vitiate the proceedings. He has further submitted that there was no contemporaneous document asking for inspection of this document on the ground that they are required for cross-examination. So far as the C.B.I. report-particularly is concerned, it was submitted that such report could not have assisted the petitioner. In this context he has referred to sub-rule (11) and (12) of Rule 11 which have been set out hereinabove. He has also drawn our attention to the letter dated 19th February, 1979 requesting inspection of the documents. He has submitted that this was for preparation of the defence statement and not for cross-examination. So far as the preliminary Inquiry Report and the documents relating to the same, it was submitted that they were not relevant, So far as the I.J.I.R.I. records are concerned, it was submitted that all efforts were made to obtain the documents and the witnesses. So far as the documents from Maharaja Travels are concerned, he has submitted that all steps had been taken by the I.O. to obtain the document asked for and he has done everything within his power to make such document available. In any view of the matter no prejudice was caused for non-availability of such documents and accordingly the enquiry was not vitiated. In this connection he has referred to the following decisions: State of U.P. v. Om Prakash Gupta, AIR 1970 SC 679 at 684 and (13) State of Mysore v. Shivabasappa Shivappa, AIR 1963 SC 375 . 20. It has been admitted by Mr. Ginwalla that the I.O. had given certain directions and taken certain steps which are not in accordance with the rules. However, it was submitted that no prejudice was caused thereby. The I.O. had hazy collection of the rules which were not before him. It was admitted that the petitioner was asked to submit the written brief at a stage when question of giving such direction did not arise. However the petitioner had not suffered any prejudice thereby. However, it was submitted that no prejudice was caused thereby. The I.O. had hazy collection of the rules which were not before him. It was admitted that the petitioner was asked to submit the written brief at a stage when question of giving such direction did not arise. However the petitioner had not suffered any prejudice thereby. He has submitted that after receipt of the Enquiry Report the Disciplinary authority was inclined to give him an opportunity for fresh examination but this was declined by the petitioner. It shows that he did not went any fresh enquiry because no prejudice was suffered by him. In this connection he has referred to the following decisions Tripathi v. State Bank of India, AIR 1984 SC 273 ; S.K. Banerji v. State of West Bengal, AIR 1980 SC 1170 (14) R.C. Sharma v. Union of India, AIR 1976 SC 2037 , (15) Shinde v. State of Mysore, AIR 1976 SC 1080 (paragraph 10). 21. Regarding finding of the learned Judge that the charge found was not the charge submitted, he has submitted that such finding was not correct. He has further submitted that the finding of the learned Judge that the charge considered was not the charge submitted was also not correct. In any event the Disciplinary Authority had applied his own mind and given his own reasons for passing the impugned order. 22. Regarding Rule 3(i) and (iii) of the Conduct Rules, he has disputed the correctness of the finding of the learned Judge that it does not amount to misconduct. The said Rules are set out hereinbelow :- Rule 3, General (1) Every Government servant shall at all times- (i) maintain absolute integrity; (ii) maintain devotion to duty ; and (iii) do nothing which is unbecoming of a Government servant. Submission (Contd.) on behalf of Respondents. 23. Mr. Mookherjee, appearing on behalf of the respondent has supported the finding of the learned Judge in favour of the writ petitioner. He has dealt with, in a great detail, the case of the petitioner, the finding or the learned trial Judge and the submissions of Mr. Ginwalla. In this context he has submitted various written notes from time to time. He has submitted, firstly, that there has been violation of the principles of natural justice. He has dealt with, in a great detail, the case of the petitioner, the finding or the learned trial Judge and the submissions of Mr. Ginwalla. In this context he has submitted various written notes from time to time. He has submitted, firstly, that there has been violation of the principles of natural justice. Under this heading he has submitted as follows :- A. Documents were asked for by the writ petitioner to prepare his defence but this was not supplied :- 1. In the very first sitting of the enquiry proceeding held on 3rd of December, 1977 the petitioners asked for the following documents :- a) Certified copies of the documents mentioned in the Annexure to the Charge sheet. b) If any other document was to be relied upon by the prosecution as stated in Item No. 22 of the charge sheet against Mr. Dastidar, copies thereof. c) All documents related to the criminal investigation by the CBI against the petitioners. d) Statements of all witnesses named in Annexure IV of the Charge sheet. e) Certified copies of all the documents relating to an enquiry on the same incident which had already been completed. f) Other L.T.C. bills settled by the office for certification. 24. After service of the charge sheet dated 12th May, 1977 the petitioner prayed for the following documents by a petition dated the 27th November, 1978 :- a) Full report of the Enquiry Officer. b) Statement of witnesses. c) Deposition of all witnesses. d) Correspondence between disciplinary authority and Enquiry Officer. 25. The documents asked for were not made available. In this connection he has drawn our attention to the minutes dated 10th of January, 1979 wherefrom it would appear that the I.O. had directed that inspection of only the exhibited documents be allowed and it was specifically recorded that no other documents, either copies or certified copies, will be given. Regarding cash book and current money receipt of Maharaja Travel it was recorded by I.O. that since these documents have not been relied upon in framing the charge against petitioner and since these do not belong to the organisation, efforts will be made to arrange for the same but the discretion will be referred (?) by owner of the documents. The admitted position is, that such prayer of the petitioner was rejected. The admitted position is, that such prayer of the petitioner was rejected. In this connection he has pointed out that the C.B.I. officer concerned, who was the first P.W., deposed on merits. He referred to the results of his investigation as well as oral and documentary evidence collected to substantiate the charge. He was satisfied about the genuineness of the documents and statements of witnesses recorded during investigation and believed that the charge has been established without any doubt. Even then the C.B.I enquiry report and records of the investigation were not made available to the petitioner. The statements of witnesses in the C.B.I. enquiry though not originally mentioned in the list of documents were ultimately made exhibits and the witnesses were required to be cross-examined on those statements. Inspite of the same and inspite of the requests of the petitioner, these were not made available to the petitioner earlier, probably because to cause surprise; to prevent preparation of defence and effective cross-examination. Other materials collected by the C.B.I. were not disclosed. It appears from Enquiry Report regarding Samar Dey, which was brought to light during the hearing of the appeal only, that C.B.I. had bitter comments to make about Maharaja Travels. On 19.2.1979 petitioners again asked for enquiry report and records of the criminal investigation "since the proceeding stated to be the outcome of the criminal investigation". 26. Regarding the importance and relevance of the C.B.I. Investigation Report, he has submitted as follows. The Disciplinary proceeding was initiated on the basis of the said report. Admittedly a criminal investigation was started on some criminal charge but no criminal case was ultimately started. The said Investigating Officer of the C.B.I. was cited as a prosecution witness in the list of witnesses submitted along with the charge sheet. The said C.B.I. Inspector M. Mukherjee was examined as Prosecution Witness No.1. He relied on and justified the findings accorded in the undisclosed Inspection Report. The persons who made statements before the C.B.I. inquiry, were all examined as prosecution witnesses and their statements were exhibited and relied on by the Prosecution. In the present case in fact the prosecution relied on the said report without disclosing it or making the same exhibit. The petitioner considered the same necessary for the preparation of his defence. 27. The persons who made statements before the C.B.I. inquiry, were all examined as prosecution witnesses and their statements were exhibited and relied on by the Prosecution. In the present case in fact the prosecution relied on the said report without disclosing it or making the same exhibit. The petitioner considered the same necessary for the preparation of his defence. 27. So far as the importance and relevance of the statements before the C.B.I. enquiry was concerned, he has submitted as follows. The witnesses, who gave statements before the C.B.I. were cited as Prosecution witnesses. The prosecution relied on the said statements. The prosecution ultimately made these statements foundation of the prosecution case. The C.B.I. Investigating Officer during his examination, inter alia, referred to his finding recorded in his undisclosed report on the basis of the statements obtained by him. The said statements were very much necessary for effective defence and cross-examination. 28. So far as the Records relating to the enquiry proceeding of Samar Dey it was submitted as follows. The records of the said enquiry proceeding were repeatedly asked for from the very beginning. In this matter he has referred to the Minutes of the Enquiry dated 3rd of February, 1977; letter dated 27th of November, 1978; Annexure H; Minutes of the enquiry dated 10th of January, 1979; letter dated 19th February, 1979; Annexure 'P' to the petition. The prayer for supply of the said documents was refused. The importance and relevance of the records of Samar Dey's Enquiry proceeding are clear. Dey also travelled in the same manner along with Mitra and Dastidar. Dey was sanctioned L.T.C. on the basis of the same note sheet dated 25th of November, 1975. Dey was subjected to similar investigation by C.B.I. Dey was charge-sheeted on the basis of similar allegations. Enquiry against Dey was already concluded and he was exonerated by the Inquiry Officer though his Disciplinary Authority disagreed with the same. Most of the witnesses in the said enquiry were also examined in the same manner and as such their depositions were essential for cross-examining them in the case of the petitioner. The disciplinary authority of Dey differed from the Inquiry Officer but imposed punishment of stoppage of one increments for one year and recovery of the excess of the amount. Samar Dey's appeal was pending before the petitioner's disciplinary authority, who was the Appellate Authority in case of Dey. The disciplinary authority of Dey differed from the Inquiry Officer but imposed punishment of stoppage of one increments for one year and recovery of the excess of the amount. Samar Dey's appeal was pending before the petitioner's disciplinary authority, who was the Appellate Authority in case of Dey. Dey was cited as a prosecution witness in this enquiry. The petitioner was entitled to rely on the findings in Dey's case and to know the reasons of the Inquiring Officer, which was favourable to Dey. It now appears from the enquiry report in Dey's case, which was disclosed for the first line during the hearing of the Appeal, that although Sri Roy Chowdhury, the Sanctioning Authority was not examined in Dey's case, the I.O. there in exonerated Dey, inter alia, on the basis of the C.B.I. report and the note sheet dated 25th of November, 1975. In this connection be has referred to the Note sheet made Exhibit No. 15 and Minutes dated and of February, 1979. 29. In punishment order against Dey dated 7th of October, 1977 the similar money receipt of Maharaja Travels were not regarded as false. In the said punishment order Day was not charged as having preferred a bill upon the purported view that there was no self drawing Officer although in the case of the petitioner also the amount was sanctioned by the same Officer on the basis of the same Note sheet. If the records of proceeding against Dey were made available, the petitioners could have asked for a better finding in his favour. The said records of the enquiry proceeding against Dey were very vital and essential for the purpose of defence. 30. His next complaint was that the I.J.J.R.A. records were not produced and their officers were not summoned. In this context he relied on various facts, documents and correspondence in following facts, which we shall deal with in detail while dealing with this point. Regarding the importance and relevance of the Records of the I.J.I.R.A. Mr. Mukherjee submitted as follows: Firstly, the note sheet dated 25th of November, 1975 referred to I.J.I.R.A.'s settlement of L.T.C. claims. This is the basic document; sanction of L.T.C. was made on this basis. Regarding the importance and relevance of the Records of the I.J.I.R.A. Mr. Mukherjee submitted as follows: Firstly, the note sheet dated 25th of November, 1975 referred to I.J.I.R.A.'s settlement of L.T.C. claims. This is the basic document; sanction of L.T.C. was made on this basis. Secondly, Money receipt book of Maharaja Travels contained similar money receipts regarding staff of I.J.I.R.A. Thirdly, P. Roy Chowdhury in his evidence stated, inter alia, that Sri Sarkar ascertained from I.J.I.R.A. before preparing the note sheet. Fourthly, the prosecution witness T.N. Biswas also stated in his evidence that facts were ascertained from I.J.I.R.A. Fifthly, Sri Sarkar, P.S. also admitted that unofficial enquiry was made from I.J.I.R.A. before preparing the note sheet. 31. The next submission of Mr. Mukherjee was regarding the prayer of the petitioner for cross-examination or examination of Roy Chowdhury in view of certain statements made by him in Dastidar's case. This request was summarily rejected with the comments "cannot be conceded to"-No other reason was given this wrong. 32. The next complaint of Mr. Mukherjee was that Sri Sarkar was recalled for re-examination on 6th of February, 1979 and no further step was taken in the proceeding on such date. On the very next day i.e. on 7.2.1979 the petitioner prayed for recall of Sri Sarkar but the I.O. did not reply to the same. Sarkar was an officer of the department itself. There was no question of his non-availability. It was not alleged by I.O. that it was not necessary or relevant. 33. Regarding non-production of the documents of Maharaja Travels, he has submitted that inspite of petitioner's request it was not caused to be produced. The petitioner sent a reminder by his letter dated 27th March, 1979. The reply of the I.O. was that efforts were to be made but that he was not in a position to produce the same. The petitioner suffered extreme prejudice. The defence is that he was misled by Maharaja Travels. There is substantial corroboration of the same in the Report regarding Samar Dey. Identical money receipts were issued by Maharaja Travels to others in respect of the very same package tour. The charge against the petitioner is "procuring" the said money receipts. 34. The next submission of Mr. Mukherjee was that by a letter dated 16th February, 1979 the petitioner was asked by I.O. to name his defence witnesses. Identical money receipts were issued by Maharaja Travels to others in respect of the very same package tour. The charge against the petitioner is "procuring" the said money receipts. 34. The next submission of Mr. Mukherjee was that by a letter dated 16th February, 1979 the petitioner was asked by I.O. to name his defence witnesses. By another letter dated 19th February, 1979 it was repeated. It was so done even before the conclusion of prosecution evidence. It was staled therein as follows :- "Another opportunity is being given to furnish the same. In the case it is not received by 12 noon on 19.2.79 it will be assumed that you have no defence witness to present." 35. This is contrary to Rules 11(16) and 11(17) but in bills of such threat the petitioner had to submit the names of defence witnesses which he did on 19th of February, 1979. He has submitted that the Rules relating to disciplinary proceedings have to be strictly complied with. In this connection he has relied on the following decisions. In (16) State of U.P. v. Baburam reported in AIR 1961 SC 751 (at P 763); (17) Vitarelli v. Seaton, 1959 US 535 (at page 547); (18) Sukdeb Singh v. Bhagat Ram, AIR 1975 SC 1331 ; (19) Ramana v. T.A.A.I., AIR 1979 SC 1628 , refund Vitarelli v. Seaton by Justice Frankfurter referred to in (20) Service v. Dulles, 354 U.S. 1st Lawyer's Edition 1403, Head Note 3 at Page 1410; (21) A.C. Hongkong v. N.G. Yuen Sheiu (PC) reported in 1983(2) AER 346 (at page 351 bottom). 36. The next submission was that the enquiry was hastily concluded without providing the petitioner with a reasonable opportunity to defend himself by producing his evidence. In this connection it was submitted (hat on 7th March, 1979 the I.O. requested the P.O. to submit his written brief in support of his prosecution so as to reach the Enquiry Officer by 20.3.79 "since the hearing in the case was concluded". Before this the petitioner was called upon to state whether or not he admits his guilt "in view of the evidence marshalled against him by the Disciplinary Authority". It was recorded by the I.O. that the petitioner did not admit any of the charges. Thereafter, the P.O. was asked to submit his written brief by 20th March, 1979. Before this the petitioner was called upon to state whether or not he admits his guilt "in view of the evidence marshalled against him by the Disciplinary Authority". It was recorded by the I.O. that the petitioner did not admit any of the charges. Thereafter, the P.O. was asked to submit his written brief by 20th March, 1979. Though asked to name the defence witnesses and though they were named on 19th February, 1979 nothing was done to call them. On 23rd of March, 1979, the petitioner was supplied with a copy of the written brief submitted by the P.O. and was asked to submit written statement. Mr. Mukherjee pointed out that under Rule 11(16) it is open to the employee concerned to state his defence orally or in writing. A statement, whatever may its worth, was in fact recorded and by supplying a copy of the written brief of the P.O. The petitioner was asked to submit his written statement. Petitioner immediately objected on 27th March, 1979 that the enquiry could be concluded as he has not examined defence witnesses. There was a silence for about 2 minutes without any reason and inspite of two letters dated 21st April, 1979 and 8th of May, 1979 by the petitioner. These were referred to by the I.O. in his letter dated 26th of May, 1979. On 26.5.79 the I.O. in reply to the objections of the petitioner referred to the Statement of Allegations sent along with the charge sheet and stated as follows :- "If you feel that the eight defence witnesses and the relevant records available in the office of the I. J. I. R. A., Calcutta, as mentioned in your letter dated 19th February, 1979 is examined and/or cross-examined in the enquiry will support this statement i.e. you and your family members travelled by 1st class by Sealdah-Jammu Express and back as mentioned above, I have no objection to request these witnesses to give evidence...." 37. Mr. Mukherjee next submitted that the Inquiring Officer had a biased mind. He had submitted that Justice must not only be done but must seem to be done. Mere reasonable possibility of bias is enough, it is not necessary to show actual bias. He has submitted that in the present case it is not merely a case of possibility but a case of actual and real bias. 38. He had submitted that Justice must not only be done but must seem to be done. Mere reasonable possibility of bias is enough, it is not necessary to show actual bias. He has submitted that in the present case it is not merely a case of possibility but a case of actual and real bias. 38. In support of the aforesaid contentions Mr. Mukherjee has relied on the following decisions. In (22) Jagadish Prasad v. State of M.P., AIR 1961 SC 1070 (paras 11 and 13); (23) State of M.P. v. Chintamoni, AIR 1961 SC 1523 (paragraphs 9 and 10); (24) State of West Bengal v. Sailendra Nath Bose, AIR (1964) Cal 184 (DB) (paras 16 and 17); (25) Trilok Nath v. Union of India, 1967 SLR 759 (SC); (26) State of Punjab v. Bhagat Ram, AIR 1971 SC 2335 (paras 7 and 8); (27) Union of India v. Indra Nath, 1978 (I) SLR 1 (Cal) DB; (28) State of U.P. v. Md. Sharif, AIR 1982 SC 937 (para 3); (29) Bhagat Ram v. State of Himachal Pradesh reported in AIR 1983 SC 454 ; (30) Union of India v. Tulsiram Patel, AIR 1985 SC 1416 ; (31) Kashinath Dikshita v. Union of India, AIR 1986 SC 2118 ; (32) General Medical Council v. Spackman, 1943 (2) AER 337 at 345 (HL); (33) Annamunthodo v. Oil Fields Workers Trade Union, 1961 (3) AER 621 at 625 (PC); (34) Ridge v. Baldwin, 1963 (2) AER 66 (HL). 39. Mr. Mukherjee has then submitted that whatever might have been the earlier view it seems to be settled now that violation of principle of natural justice renders the decision void. In this context he has relied on the following decisions Jagadish Pr. Saksena v. State of Madhya Pradesh, AIR 1961 SC 1070 . (35) Board of High School and Intermediate Edn. U.P. v. Kumari Citra Srivastava, AIR 1970 SC 1089 ; (36) S.L. Kapoor v. Jagmohan, AIR 1981 SC 136 . (37) Swadeshi Cotton Mills V. Union of India, AIR 1981 SC 818 , (paras 84-89); (38) Mumtaz Hossain Ansari v. State of U.P. 1984 (3) SCC 295 ; (39) Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180 (paras 47 and 48). 40. (37) Swadeshi Cotton Mills V. Union of India, AIR 1981 SC 818 , (paras 84-89); (38) Mumtaz Hossain Ansari v. State of U.P. 1984 (3) SCC 295 ; (39) Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180 (paras 47 and 48). 40. It was next contended that the Disciplinary Authority, inspite of his earlier decision regarding the necessity for further enquiry, refused to remand the case back to I.O. after the order of and inspite of the liberty given by D.K. Sen, J. The Director after consideration of the Report dated 18th of August, 1979 appeared to have accepted the objection of the petitioner that rules of natural justice had been violated to the effect that the petitioner had not been allowed to defend adequately and that the petitioner was under the apprehension that he will not get any justice from the I.O. and that the I.O. had prevented the production of I. J. I. R. A. records. Accordingly the Disciplinary Authority recorded as follows:- "Under the above circumstances it would not be fair on my part to come to a final conclusion in the matter at this stage." 41. His "urge" to do justice prompts him to re-examine, and not merely to cross-examine, the two prosecution witnesses viz. Sarkar and J.N. Biswas. In this context reference was made to the Note to Rule 11(15) which lays down that unless there is an inherent lacuna no witness shall be recalled to fill up any gap in the evidence. The Disciplinary Authority gives liberty to the petitioner to cross-examine them and produce defence witness. He also proposed to question him on circumstances appearing against him in purported compliance of Rule 11(16) which was by I.O. By a letter dated 3rd of September, 1979 the petitioner asked for a copy of the Report and the copy of the note of disagreement of the Director, if any, and also the provision of the Rules under which he proposed to proceed. By a letter dated 14th September, 1979 the director stated that he proposed to examine the two prosecution witnesses to ascertain "why the factual information was not incorporated in the relevant if these two Officers were aware that you did not travel in Railway 1st Class but travelled in 2nd Class compartment with special amenities provided by the travel agent". Comment of Mr. Comment of Mr. Mukherjee was that this was obviously an attempt to fill up, the gap and only to penalies the penalty. He has submitted that Rule 12 does not permit the Director to hold an enquiry under such circumstances. 42. He has further submitted that earlier Rule (C.R. 15175(W) of 1979) was disposed of by the Hon'ble Mr. Justice D.K. Sen on 10.7.80. The Department wanted to withdraw and proceed denovo through another officer. Petitioner objected to the same on the ground that this was an attempt to obliterate the evidence already given. The petitioner, however, pointed out it was open to remove the defect by proceeding under Rule 12(1). Further the order dated 10th July, 1980 D.K. Sen, J. granted liberty to D.A. to appoint another I.O. in accordance with rules and remit the proceedings back to him for further enquiry and report. There is nothing on record to show why inspite of his own earlier findings and the order of the Hon'ble Court he did not proceed to remit the case but imposed the punishment of removal immediately. It is true that there was no direction regarding the remand, but liberty was given to the disciplinary authority. He had the discretion either to remand the matter or not. Whatever might hove been his decision, in any event, such discretion should have been properly and judicially exercised. In the present case there is no proper exercise of discretion and no proper ground has been given for the action taken. An order of punishment was passed summarily. In this context Mr. Mukherjee has relied on the following decisions: In (40) Manager Government Branch Press v. Beliappah, AIR 1979 SC 429 (paras 18 and 19); (41) Royappa v. State of Tamil Nadu, AIR 1974 SC 55 (paras 85 and 86); (42) Ajoy Hasia's Case, AIR 1981 SC 487 where in AIR 1974 SC 555 was quoted A.C. Hongkong v. N.G. Yuen Shieu (PC), 1983 (2) AER 346 at p. 351. 43. Mr. Mukherjee has pointed out what he described as "peculiarity of the proceedings" and has submitted that I.O. was biased and that in any event he did not have open mind. Each day's proceedings were forwarded to the Disciplinary Authority. Rules do not contemplate the same. It seems that the Disciplinary Authority was unusually interested in the proceedings. 43. Mr. Mukherjee has pointed out what he described as "peculiarity of the proceedings" and has submitted that I.O. was biased and that in any event he did not have open mind. Each day's proceedings were forwarded to the Disciplinary Authority. Rules do not contemplate the same. It seems that the Disciplinary Authority was unusually interested in the proceedings. Though the Director had appointed the I.O. he cannot direct the I.G. or exercise control over him as to how the enquiry was to be conducted. There is nothing in the Rules to support the same. Where an Inquiry Officer is appointed, the Charged Officer is entitled to the benefit of consideration of his case by two authorities i.e. initially by the Inquiry Officer and thereafter by the Disciplinary Authority after the report is submitted by I.O. Having appointed an I.O. to hold the enquiry it was not open to the D.A. still to conduct the enquiry himself though not directly but indirectly. As it now appears from the documents disclosed during the bearing of the appeal there was a regular correspondence between the I.O. and the D.A. The petitioner repeatedly asked for the copies of correspondence between the I.O. and the D.A. which was refused. We ought to point out that it is correct that this correspondence was disclosed for the first time during the hearing of this appeal. In this connection he has relied on De Smith's Judicial Review of Administrative Action, 4th Edn. 309 and (43) Simmis Mottor Units Ltd. v. Ministry of Labour, 1946(2) AER 201 at page 205. 44. He has next submitted that the Disciplinary Authority was biased against the petitioner as would be evident from the following. The petitioner, as an office bearer of the Association has been making serious allegations against the Director. Sri Mazumdar for obtaining house building loans in violation of the Rules and it was alleged that the charge sheet was the outcome of personal grudge of Sri D.C. Mazumdar. Sri Mazumdar in his A/O held that the same are "false", "fabricated", 'Mischeavous', 'concocted' and 'mala fide' allegations and have been deliberately made by the petitioners with a view to malign him before this Court and/or to mislead this Hon'ble Court. Identical allegations were made by the petitioner in the earlier writ application of November, 1979. Sri Mazumdar in his A/O held that the same are "false", "fabricated", 'Mischeavous', 'concocted' and 'mala fide' allegations and have been deliberately made by the petitioners with a view to malign him before this Court and/or to mislead this Hon'ble Court. Identical allegations were made by the petitioner in the earlier writ application of November, 1979. Sri D.C. Mazumdar, however in his A/O in the earlier writ dealt with the said allegations and alleged that the same are mala fide, baseless etc. It will appear from the statement of Sri Mazumdar that there were certain allegations and counter-allegations. Admittedly since in the first writ application, allegations were made against him, there was likelihood of bias by him. 45. The next ground of attack regarding bias of the Disciplinary Authority was that the case of the petitioner and that of Samar Dey was similar. This was confirmed even by the Disciplinary Authority by his letter dated 4th of July, 1978 addressed to Sri Dey. Where in Sri Dey was informed that his appeal will be considered after submission of the Report of enquiry against the petitioner. The petitioner by his letter dated 1st of September, 1978 asked for stay of the enquiry proceedings against him in order to provide him with the fullest opportunity to defend his case. The Director by his letter dated 25th October, 1978 turned down the prayer for stay of the proceedings against the petitioner "in order to provide him the fullest opportunity to defend his case". Submission of Mr. Mukherjee was that such player for stay was refused for the purpose of allowing Mr. Dey to go away with a minor punishment and to punish the petitioner severely. The order of penalty against the petitioner was passed by the Director on 19th July, 1980, and it appears now from the documents disclosed during the hearing of the appeal that the appeal of Samar Dey was dismissed by the same person, that is, the Director on 19th July, 1980, that is, just a day before. On the question of bias, Mr. Mukherjee has submitted that the actual bias need not be shown. The question is real likelihood of bias. The Question of bias is both as the stage of initiation and also at the stage of the punishment of disciplinary proceedings. In this connection he has relied on (44) The Director, Eastern Railway & Ors. On the question of bias, Mr. Mukherjee has submitted that the actual bias need not be shown. The question is real likelihood of bias. The Question of bias is both as the stage of initiation and also at the stage of the punishment of disciplinary proceedings. In this connection he has relied on (44) The Director, Eastern Railway & Ors. v. S.N. Chatterjee & Ors., 1981 (1) Cal LJ 305. 46. The next ground of attack of Mr. Mukherjee was that the assistance of a lawyer though justly prayed for was unjustly refused on irrelevant grounds. It was refused on the ground that the Presenting Officer is not a legal practitioner and the mere fact that an enquiry was conducted in respect of an alleged criminal offence was not sufficient. It was submitted that the charges against the petitioner were in the nature of criminal offence, inter alia, for which reason the petitioner prayed for legal assistance as it appears from the minutes dated 3rd of December, 1977. The facts against the petitioner were collected, statements were obtained and the same were marshalled by highly trained officers of the C.B.I. and the petitioner was required to face the same barely with the assistance of his untrained colleagues. In respect of the most of the P.W's., who were examined during the preliminary enquiry by C.B.I., there was no examination in chief as such but their evidence was merely the production of these statements before the C.B.I. which was without prior intimation. The procedure followed required to be dealt by a quick and trained mind like a lawyer. The scrutiny of the events in course of the enquiry show the unreasonableness of the refusal. Even if there was no motive behind it, extreme prejudice was suffered by the petitioner in consequence thereof. Had there been a legal practitioner there could be a better cross-examination and the proceeding possible would have been in a different shape and take a different course. In this connection he has relied on the following decisions : (45) Vaswani v. Union of India, 1983 (1) Cal LJ 8 para 59; (46) The Board of Trustees of the Port of Bombay v. Dilip Kumar, AIR 1983 SC 109 , para 10; (47) Pett v. Greyhound Racing Association, 1968 (2) AER 545 (Lord Denning) at page 549 : AIR 1983 SC 109 . 47. The next contention of Mr. 47. The next contention of Mr. Mukherjee was that the charges found against him were different from the charges levelled against the petitioner. The charges were three fold. Firstly, that the petitioner falsely claimed an amount of Rs. 1,618.70 by showing the Railway journey.........in 1st class; secondly, that he never performed the journey in 1st class but travelled in 2nd class; and thirdly and finally, that he obtained payment of the said amount by submitting false money receipt and certificate of journey procured from M/s. Maharaja Travels. There was no finding regarding the third part of the charge. There was no reference to the Note sheet (Ex. 15) which was not even in the list of documents enclosed to the Charge sheet. There was no findings so far as the third part of the charge is concerned. Moreover the I.O. while submitting the report had restated the charge rather differently. The I.O. records the finding that the charge of false statement was established. The charge was that the petitioner submitted false money receipt and certificate "procured" but in the restatement of charges the cgarge was taken to be "has furnished false receipt and certificate issued by Maharaja Travels". Here also, the failure to mention in the tour diary, was taken to be the basic offence. On account of such failure it was held: "We cannot even imagine that the concerned officials who admitted the case were aware that the journeys were performed......in unreserved 2nd class compartment with extra amenities............" 48. It was submitted that both Sri P. Roychowdhury and T.N. Biswas however, admitted that they were aware that journeys were made not in the usual 1st class compartment and that is why the note sheet dated 25th November, 1975 was prepared. The Enquiry Officer hold that the petitioner should not have accepted the money receipt issued by Maharaja Travels. 49. So far as the Disciplinary Authority's order is concerned he recorded the following findings: The petitioner did not travel in the 1st class; he did not disclose at any stage whatsoever that he did not undertake to travel in the Railway 1st class; the money receipt and the certificate of Maharaja Travels did not disclose that he had undertaken the said journey in a class other than the 1st class; he had obtained the payment of Rs. 1,618.70 by submitting tour diary; the money receipt and certificate: did not represent the correct state of affairs ; the petitioner was not entitled to the said payment. Mr. Mukhrjee has submitted that there is no finding about falsity of claim or submitting false money receipt procured from Maharaja Travels. The finding appears to be that the petitioner had received payment to which he was not entitled. There is no finding that he falsely claimed Rs. 1,618.70.by showing that he travelled in the 1st class or that he obtained payment by submitting false money receipt and certificate. There is no finding that he "failed to maintain absolute integrity" or that he "acted in a manner unbecoming of a Government servant". The Disciplinary Authority held that it was not proved that amount mentioned in Maharaja's money receipt included any other charge like sight seeing, food, boarding and lodging. 50. It was next submitted by Mr. Mukherjee that in imposing the punishment, the Director had not considered the propriety of the quantum of punishment in relation to the charges levelled and ultimately found. A stand was taken by the D.A. in the present case which was different from the stand taken by him as the appellate authority in the case of Samar Dey which was disposed of by him just a day before i.e. on 18th July, 1980. He has not also considered whether or not there was any evil or dishonest motive on the part of the petitioner. He has submitted that the Writ Court has jurisdiction to set aside the order of punishment if the same is, in its opinion, harsh and disproportionate. In this connection he has relied on the following decisions: (48) R. v. Bareley, 1976(3) All ER 452 at P 456, Bhagatram v. State of Himachal Pradesh, AIR 1983 SC 454 (para 15). 51. Next Mr. Mukherjee has submitted that "misconduct" as alleged depends upon the provisions of the Conduct Rules. It requires to be defined and/or specified. In the instant case the clauses of the Conduct Rules are indefinite. There is no question of misconduct involved in the present case. Further there should be a specific finding of misconduct. 51. Next Mr. Mukherjee has submitted that "misconduct" as alleged depends upon the provisions of the Conduct Rules. It requires to be defined and/or specified. In the instant case the clauses of the Conduct Rules are indefinite. There is no question of misconduct involved in the present case. Further there should be a specific finding of misconduct. In this connection he has relied on the following decisions: (49) A.L. Kulra v. P & E Corporation Ltd., AIR 1984 SC 316 (paras 21 and 22); (50) Glaxo Laboratories v. Presiding Officer, Labour Court, AIR 1984 SC 505 para 23. 52. Next he has submitted that in the case of Samar Dey the findings were really against Maharaja Travels and it was rather accepted that the rules were relaxed in exercise of discretionary powers. Such findings were recorded even without the evidence of P. Roychowdhury. In the punishment order reference has been made to the fact that Sri Samar Dey was not a self-drawing officer and that he was a Group 'C' Officer. In the case of Samar Dey it was however, recorded that he obtained pecuniary advantage by making false declaration in his L.T.C. Tour Diary. In the case of the petitioner the findings are not like those of Samar Dey. Samar Dey, petitioner and Dastidar all were grouped together for L.T.C. purpose and all were concerned with the same Tour Diary, money receipt and the certificate all were entitled to 1st class travels none was entitled to draw the "mount of his own, all were actually given the amount under the same order being Exhibit 15 dated 25th November, 1975. The petitioner was greatly prejudiced by non-supply of Samar Dey's documents. 53. Next it was submitted that the charge sheet was bad in as much as it reflected a closed mind. He has submitted that though the charge sheet should contain charges i.e. definite accusation it becomes vitiated if it reflects a closed mind, patent bias and attempt to hold a mere show of an enquiry. In the instant case the charge sheet suffers from vices because of the following reasons. The L.T.C. claim was sanctioned on the basis of the "note sheet" Exhibit 15. It was recorded in the "note sheet" wherein it has recorded that the persons had made arrangement of the loan for undertaking such journey for package tour. In the instant case the charge sheet suffers from vices because of the following reasons. The L.T.C. claim was sanctioned on the basis of the "note sheet" Exhibit 15. It was recorded in the "note sheet" wherein it has recorded that the persons had made arrangement of the loan for undertaking such journey for package tour. It was presumed that they had travelled in the special compartment. Enquiries were made with D.D.C.I.S. and I.J.I.R.A. and It was ascertained that L.T.C. claims were settled on the basis of such money receipt. It was suggested that the Controlling Officer may release normal rules on his satisfaction. As Maharaja Travels had charged 1st class railway fare the claim may be restricted to such railway fare. The Controlling Officer expressly agreed. The note sheet does not find any reference either in the statement of allegation or in the list of documents. The charge sheet has been framed in deliberate disregard of the note sheet. Almost all the witnesses were called upon to prove the charges on the basis of their previous statements before the C.B.I. Officer who himself was called upon to depose on the basis of his report but neither the statement of the witnesses nor the report were included in the list of documents. Sri Samar Dey was the prosecution witness though he himself was an accused and he was called upon to dispose possibly with a prior arrangement. There could be no reason to make him a prosecution witness unless the design was to penalise the petitioner by any means. Sri S. Sarkar, Senior Accounts Officer, Sri T.N. Biswas, Accounts Officer and Sri P. Roychowdhury the then Joint Director were picked up as prosecution witnesses obviously on the basis of the note sheet and it was intended to make them depose only on the basis of the C.B.I. statements and not on the note sheet. The list of documents at page 65 (under serial No. 10) includes the note sheet by which the actual amount was sanctioned. Manifestly the note sheet being Exhibit No. 15 was sought to be suppressed. The note sheet was the foundation of the defence and manifestly an attempt was made to suppress it. The list of documents at page 65 (under serial No. 10) includes the note sheet by which the actual amount was sanctioned. Manifestly the note sheet being Exhibit No. 15 was sought to be suppressed. The note sheet was the foundation of the defence and manifestly an attempt was made to suppress it. It is a departmental proceeding where the prosecutor is also the judge; a Subordinate Officer was appointed as an Inquiry Officer; the enquiry was held in an office room with subordinate officers all around; the necessity of fair and impartial enquiry is indeed great in order to maintain its difference with a ceremonial farce. 54. On the question that the charge sheet disclosing 'closed mind' he has relied on the following decisions: (51) P. Sreeramulu & Anr. v. State of A.P., AIR 1970 AP 114 ; Sunil Mukherjee v. State of W.B. & Ors., 1977 CHN 1014, (52) Bimala Kanta Mukherjee v. State of W.B. & Anr., 1980 (2) CHN 35 ; (53) Subrata Bhattacharya v. Bharat Process and Mechanical Engineers & Ors, 1984 (2) CHN 185 , Submission (Contd.) Reply. 55. In his reply Mr. Ginwalla has submitted as follows. He has first submitted that in the case of violation of principle of natural justice or in the case of violation of the statutory Rules, the petitioner must show that there has been any actual prejudice. So far as the Supreme Court decisions, where it is stated that there is no question of prejudice in the case of violation of principle of natural justice, he has submitted that those are the cases where there was no hearing at all. Regarding the contention of Mr. Mukherjee that the I.O. was in constant touch with the Disciplinary Authority during the enquiry he has submitted that the Disciplinary Authority had the power to give such direction as he thought fit regarding the manner of the conduct of inquiries. In this context he has placed before us the copies of the correspondence between the I.O. and the D.A. and submitted that in any event nothing wrong has taken place. Regarding the question of bias, he has submitted that it cannot be held that there was any such bias at the initial stage merely because of some particular expression used in the charge-sheet as such. Regarding the question of bias, he has submitted that it cannot be held that there was any such bias at the initial stage merely because of some particular expression used in the charge-sheet as such. So far as the alleged bias at the punishment stage, he has submitted that no such bias can be presumed merely because there was some allegation against the Director in the first writ petition. Regarding the question of punishment, he has submitted that this Court has no power to go into the question as to whether punishment was proportionate to the charges. Regarding I.J.I.R.A. he has stated that during the hearing of the Appeal, all the correspondence between the I.J.I.R.A. and the Director of the counsel has been disclosed. He has further submitted that it was no part of the duty of the I.O. to collect evidence in support of the defence. In any event, he has submitted that the documents that had not been supplied were not relevant. He also referred to (54) Sovachand Mulchand v. Collector of Central Exise & Land Customs, 71 CWN 700 to which his attention was drawn by us. On the question of "misconduct" he has disputed the correctness of the contention of Mr. Mukherjee. DECISION Natural Justice-Scope and Meaning of 56. Before we go into the merits of the contentions raised before us, we shall firstly examine what is the meaning of the expression 'natural justice' particularly in the context of an enquiry which is quasi-judicial in nature like a disciplinary proceeding. What is meant by "reasonable opportunity"? The next question is even if in a given case it has been proved that there has been a violation of the principles of natural justice and/or statutory Rules, whether still the charged officer has to satisfy that he has suffered some actual prejudice as a result of such violation. 57. In the case of State of Madhya Pradesh v. Chintamani Sadashiva Waishampayan, AIR 1961 SC 1523 it was held that a reasonable opportunity is denied if the employee concerned is not provided with an opportunity to prove his case. 58. 57. In the case of State of Madhya Pradesh v. Chintamani Sadashiva Waishampayan, AIR 1961 SC 1523 it was held that a reasonable opportunity is denied if the employee concerned is not provided with an opportunity to prove his case. 58. In the case of The State of Punjab v. Bhagat Ram, AIR 1974 SC 2335 it was observed as follows: "The meaning of a reasonable opportunity of showing cause against the action proposed to be taken is that the Government servant is afforded a reasonable opportunity to defend himself against charges on which inquiry is held. The Government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so when he is told what the charges against him are. He can do so by cross-examining the witnesses produced against him. The object of supplying statements is that the Government servant will be able to refer to the previous statements of the witnesses proposed to be examined against the Government servant. Unless the statements are given to the Government servant he will not be able to have an effective and useful cross-examination." 59. In the case of K.L. Tripathi v. State Bank of India, AIR 1984 SC 273 the passage relied on in paragraph 29, which is set out hereinbelow:- "We are of the opinion that Mr. Garg is right that the rules of natural justice as we have set out hereinbefore implied an opportunity to the delinquent officer to give evidence in respect of the charges or to deny the charges against him. Secondly, he submitted that even if the rules had no statutory force and even if the party had bound himself by the contract, as he had accepted the Staff Rule, there cannot be any contract with a Statutory Corporation which is violative of the principles of natural justice in matters of domestic enquiry involving termination of service of an employee. We are in agreement with the basic submission of Mr. Garg in this respect, but we find that the relevant rules which we have set out hereinbefore have been complied with even if the rules are read that requirements of natural justice were implied in the said rules or even if such basic principles of natural justice were implied, there has been no violation of the principles of natural justice, in respect of the order passed in this case. In respect of an order involving adverse or penal consequences against an officer or an employee of Statutory Corporations like the State Bank of India there must be an investigation ditto the charge consistent with the requirements of the situation in accordance with the principles of natural justice as far as these were applicable to a particular situation. So whether a particular principle of natural justice has been violated or not has to be judged in the background of the nature of charges, the nature of the investigation conducted in the background of any statutory or relevant rules governing such enquiries. Here the infraction of the natural justice complained of was that he was not given an opportunity to rebut the materials gathered in his absence. As has been observed in "on justice" by J.R. Lucas the principles of natural justice basically, if we may say so emanate from the actual phrase "audi alteram partem" which was first formulated by St. Augustine (De Duabus Animabus, XIV 22, J.P. Migne, Pl. 42, 110) (para 29)." 60. In the case of K.L. Shinde v. State of Mysore, AIR 1976 SC 1080 the Supreme Court held that it is well-settled that whether the delinquent had a reasonable opportunity of effectively defending himself is a question of fact depending upon the circumstances of each case and no hard and fast rule can be laid in that behalf. 61. In the case of Union of India v. Tulsiram Patel, AIR 1985 SC 1416 it was held as follows:- "The rule of natural justice with which we are concerned in these appeal and writ petitions, namely, the audi alterem partem rule, in its fullest amplitude means that a person against whom an order to his prejudice may be passed should be informed of the allegations and charges against him, be given an opportunity of submitting his explanation thereto, have the right to know the evidence, both oral or documentary, by which the matter is proposed to be decided against him, and to inspect the documents which are relied upon for the purpose or being used against him, to have the witnesses who are to give evidence against him examined in his presence and have the right to cross-examine them, and to lead his own evidence both oral and documentary, in his defence. The process of a fair hearing need not, however, conform to the judicial process in a court of law, because judicial adjudication of causes involves a number of technical rules or procedure and evidence which are unnecessary and not required for the purpose of a fair hearing within the meaning of audi alteram partem rule in a quasi judicial or administrative enquiry." 62. In the case of General Council of Medical Education and Registration of the United Kingdom v. Spackman, 1943 (2) AER 337 the House of Lords held that if the principles of natural justice are violated in respect of any decision, it is indeed immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision. 63. In the case of Ridge v. Baldwin and Others, 1963(2) AER 66 Lord Devlin observed that the decision given without regard to the principles of natural justice is void. It was said that the body with the power to decide cannot lawfully proceed to make a decision until it has afforded to the person affected a proper opportunity to state his case. 64. In the case of Board of High School and Intermediate Education U.P. v. Kumari Chitra Srivastava, AIR 1970 SC 1039 it was observed as follows: "Principles of natural justice are to some mind burden some but this price-a small price indeed-has to be paid if we desire a society governed by the Rule of Law (para 9)." 65. On the question as to whether it has to be shown that inspite of violation of principle of natural justice the officer charged has been prejudiced, the following decisions were cited by the parties. 66. In the case of Annamunthodo v. Oil Fields Worker's Trade Union, 1961(3) AER 621 it was a decision of the Privy Council. Therein Lord Denning dealt with the suggestion of the counsel of the respondent Union that a man could not complain of a failure of natural justice unless he could show that he had been prejudiced by it. Lord Denning rejected this suggestion and held as follows : "If a domestic tribunal fails to act in accordance with natural justice, the person affected by their decision can always seek redress in the Courts. It is prejudice to any man to be denied justice. Lord Denning rejected this suggestion and held as follows : "If a domestic tribunal fails to act in accordance with natural justice, the person affected by their decision can always seek redress in the Courts. It is prejudice to any man to be denied justice. He will not, of course, be entitled to damages if he suffered none. But he can always ask for the decision against him to be set aside." 67. In the case of Sunil Kumar Banerjee v. State of West Bengal, AIR 1980 SC 1170 it was not strictly a question violation of principle of natural justice as such but it was a question of the failure of the Inquiring Officer to comply with the requirements of Rule 8(19) of the All India Services (Discipline and Appeal) Rules 1969. Such rule provided as follows: "Rule 8(19): The Inquiring Authority may, after the member of the service closes his case, and shall, if the member, of the service has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the member of the service to explain any circumstances appearing in the evidence against him." It was held that the petitioner was not prejudiced by the failure of the Inquiring Officer to question him under the said rule. 68. In the case of S.L. Kapoor v. Jagmohan and Ors. reported in AIR 1981 SC 136 it was held by the Supreme Court as follows: "In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It will come from a person who has denied justice that the person who has been denied justice is not prejudiced." 69. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It will come from a person who has denied justice that the person who has been denied justice is not prejudiced." 69. In the case of Swadeshi Cotton Mills v. Union of India reported in AIR 1981 SC 818 , it was contended on behalf of the respondent that it was a case where a prior hearing to the Company could only be a useless formality because the impugned action had been taken on the basis of evidence, consisting of the Balance Sheet, account books and other records of the Company itself, the correctness of which could not have been disputed by the Company. On these premises, it was submitted that non-observance of the rule of audi alteram partem would not prejudice the Company, and thus make no difference. This contention was rejected by the Supreme Court following the decisions in Ridge v. Baldwin and Ors. (ibid) and S.L. Kapoor v. Jagmohan and Ors. (ibid) The passage quoted above from the case of S.L. Kapoor Jagmohan and Ors. was expressly approved in this decision (para 89). The relevant passages are set out hereinbelow :- "In the renowned case, Ridge v. Baldwin (ibid) it was contended before the House of Lords that since the appellant police officer had convicted himself out of his own mouth, a prior hearing to him by the Watch Committee could not have made any difference; but on the undeniable facts of that case, no reasonable body of men could have reinstated the appellant. This contention was rejected by the House of Lords for the reason that if the Watch Committee had given the police officer a prior hearing they would not have acted wrongly or unreasonable if they had in the exercise of their discretion decided to take a more lenient course than the one they had adopted (para 84)." "A similar argument was advanced in S.L. Kapoor v. Jagmohan (Civil Appeal No. 1516 of 1980) decided on 18-9-1980 (reported in AIR 1981 SC 136 ) to which decision two of us (Sarkaria and Chinnappa Reddy, JJ.) were parties. In negativing this argument, this Court, inter alia, quoted with approval the classical passage reproduced below, from the judgment of Megarry, J. in John v. Rees, (1970) 1 Ch. In negativing this argument, this Court, inter alia, quoted with approval the classical passage reproduced below, from the judgment of Megarry, J. in John v. Rees, (1970) 1 Ch. 345 at p. 402." "As everybody who has anything to do with the law well-knows, the path of the law is strewn with examples of open and shut cases which somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to under estimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events (para 85)." "In General Medical Council v. Spackman, 1955 (1) KB 24 Lord Wright condemned the oft-adopted attitude by tribunals to refuse relief on the ground that a fair hearing could have made no difference to the result. Wade in his Administrative Law, 4th Edn. page 454 has pointed out that "in principle it is vital that the procedure and the merits should be kept strictly a part, since otherwise the merits may be prejudged unfairly (para 86)." "In (55) Maxwell v. Department of Trade and Industry, (1974) QB 523, Lawton, L.J. expressed in the same strain that "doing what is right may still result in unfairness if it is done in the wrong way". This view is founded on the cardinal canon that justice must not only be done but also manifestly seen to be done" (para 87). 70. In the case of K.L. Tripathi v. State Bank of India & Ors., AIR (1984) SC 273 it was held that in order to sustain a complaint of violation of principles of natural justice on the ground of absence of opportunity of cross-examination, it has to be established that prejudice has been caused to the party concerned by the procedure followed. It was observed that neither cross-examination nor the opportunity to lead evidence by the delinquent is an integral part or all quasi judicial adjudications. 71. In the case of Olga Tellis and Others v. Bombay Municipal Corporation and Ors., AIR 1986 SC 180 Supreme Court referred to the decision in the S.L. Kapoor v. Jagmohan and Ors. It was observed that neither cross-examination nor the opportunity to lead evidence by the delinquent is an integral part or all quasi judicial adjudications. 71. In the case of Olga Tellis and Others v. Bombay Municipal Corporation and Ors., AIR 1986 SC 180 Supreme Court referred to the decision in the S.L. Kapoor v. Jagmohan and Ors. (ibid) and quoted with approval, the relevant passage therein which we have quoted hereinabove. 72. In the case of Kashinath Dikshita v. Union of India & Ors. reported in AIR 1986 SC 2118 it was held that the appellant had been denied a reasonable opportunity of exonerating himself. In this connection Supreme Court observed that whether or not refund to supply copies of documents or statements had resulted in prejudice to the employee facing the departmental enquiry depends on the facts of each case. The Supreme Court did not accept the submission urged on behalf of the respondent that there was no prejudice caused to the appellant in the facts and circumstances of that case. There the appellant had set out in his affidavit in detail as to how he has been prejudiced and the respondent had not been able to satisfy that no prejudice was occasioned to the appellant. 73. Next we shall examine some of the decisions regarding the object and scope of the disciplinary enquiry proceedings. In the case of Jagadish Prasad Saxena v. State of Madhya Pradesh reported in AIR 1961 SC 1070 it was pointed out that it is of the utmost importance that in taking disciplinary action against a public servant a proper departmental enquiry must be held against him after supplying him with a charge sheet and he must be allowed a reasonable opportunity to meet the allegations contained in the charge sheet. The Supreme Court observed that High Court was in error in coming to the conclusion that no prejudice had been caused to the appellant as a result of the respondent's failure to hold an enquiry against him after supplying him with a charge sheet. In this connection the Supreme Court observed that the departmental enquiry is not an empty formality it is a serious proceeding intended to give the officer concerned a chance to meet the charge and to prove his innocence. In this connection the Supreme Court observed that the departmental enquiry is not an empty formality it is a serious proceeding intended to give the officer concerned a chance to meet the charge and to prove his innocence. In the absence of any such enquiry it would not be fair and strain facts against the appellant and to hold that in view of the admissions made by him the enquiry would have served no useful purpose. It was held that is a matter of speculation which is wholly out of place in dealing with cases of orders passed against public servants terminating their services. 74. In this connection reference may also be made to the decision in Swadeshi Cotton Mills v. Union of India reported in AIR 1981 SC 818 , relevant passages of which we have quoted hereinabove while dealing with the question of natural justice. 75. In the case of Olga Tellis and Others, Petitioners v. Bombay Municipal Corporation and Others reported in AIR 1986 SC 180 the Supreme Court observed as follows :- "The proposition that notice need not be given of a proposed action because there can possibly be no answer to it, is contrary to the well-recognised understanding of the real import of the rule of hearing. That proposition overlooks that justice must not only be done but must manifestly be seen to be done and confuse one for the other. The appearance of injustice is the denial of justice. It is the dialogue with the persons likely to be affected by the proposed action which meets the requirement that justice must also be seen to be done. Procedural safeguards have their historical origins in the notion that conditions of personal freedom can be preserved only when there is some institutional check on arbitrary action on the part of public authorities. The instrumental fact of the right of hearing consists in the means which it affords of assuring that the public rules of conduct which result in benefits and prejudices alike are in fact accurately and consistently followed." 76. In this connection we may point out that we have approached the points involved and have come to our decisions on all the questions raised in the writ petition relying only on the contemporaneous records and documents including those produced by the appellants during the hearing of this appeal. In this connection we may point out that we have approached the points involved and have come to our decisions on all the questions raised in the writ petition relying only on the contemporaneous records and documents including those produced by the appellants during the hearing of this appeal. We have not referred to or relied on any explanation offered in the affidavit-in-opposition filed on behalf of the respondents, which was prepared upon legal advice and which are not corroborated or supported by, but in some cases contradict, such contemporaneous documents and records. We are recording the same in view of the fact that in respect of various matters, in the affidavits affirmed by the appellants herein, there are clear departures from what appears from such documents and records. In various cases, what is not in the records, is sought to be introduced by such affidavits for the first time Affidavits on behalf of the Government or State must be on the basis of records. Natural Justice (Contd.) Non-supply of documents 77. One of the main grievances of the petitioner on the question of violation of the principles of natural justice is non-supply of documents to prepare his defence including cross-examination of the prosecution witnesses. The facts relating to the same has been set out by us in connection with the submissions made by Mr. Mukherjee in this context. To summarise, the petitioner at the first sitting of the enquiries wanted the following :- (a) Certified copies of each document as per the list of documents being Annexure III of the Memorandum dated 12.5.77 ; (b) Serial No. 22 of Annexure III refers to other documents, if any. A clarification of the other documents and the copies of the same was sought to be furnished; (c) Since the proceeding was the outcome of a criminal investigation all documents relating to that investigation; (d) Statements of all witnesses as enumerated in Annexure IV of the Memorandum containing the charge-sheet; (e) Certified copies of all document relating to the enquiry on the same incident which has already been completed; (f) Other L.T.C. bills supplied by this office for verification. 78. 78. By a petition dated 27.5.73 the petitioner prayed for the following documents :- a) Full report of the Enquiring Officer; b) Statements of witnesses; c) Depositions of witnesses and d) Correspondence between the Disciplinary Authority and the Inquiring Officer- No such document was furnished, not even statements of witnesses before the C.B.I. In the minutes of the meeting dated 10th of January, 1979 the I.O. directed that the petitioner may make an appointment with the P.O. to examine the documents presented earlier as exhibited i.e. the listed documents but regarding other documents the prayer of the petitioner was rejected. In this context he recorded as follows: "No other documents, either copies or certified copies will be given. Further the Defence Officer submitted that the other documents mentioned which had been refused to be provided with certified copies might please be arranged to be placed during the enquiry as exhibited." 79. Before we make any comments regarding the validity of the action of the I.O. in this regard, we shall consider the cases cited before us on the question of supply of documents. 80. In the case of Jagadish Prasad Saxena v. The State of Madhya Pradesh, AIR 1961 SC 1070 the petitioner was not given a copy of the report made by the Enquiry Officer in the earlier enquiry on the basis of which the particular disciplinary enquiry was started against the petitioner. It was held that the petitioner had not been given proper opportunity of showing cause as required by Article 311(2) of the Constitution of India. 81. In the case of The State of Madhya Pradesh v. Chintamani Sadasiva Waisnampayan reported in AIR 1961 SC 1623 the Supreme Court observed that the documents which the respondent wanted were relevant and would have been of valuable assistance to him in making his defence and cross-examining the witnesses who gave evidence against him. The Supreme Court rejected the contention made on behalf of the appellant that as the enquiry officer was merely exercising his discretion it was not open to the Court to consider the propriety or the validity of his decision. The Supreme Court observed that it would be improper to contend that the infirmities on which the public officer relies, flows from the exercise of discretion vested in the enquiry officer. The Supreme Court observed that it would be improper to contend that the infirmities on which the public officer relies, flows from the exercise of discretion vested in the enquiry officer. It was observe that the enquiry officer may have acted bona fide, but that does not mean that the discretionary orders passed by him are final and conclusive. In this context it was pointed out that the departmental enquiry should observe the rules of natural justice and that if it is fairly and properly conducted the decisions reached by the enquiry officer on the merits are not open to be challenged on the ground that the procedure followed was not exactly in accordance with that which is observed in the Courts of Law. 82. In the case of The State of West Bengal & Ors. v. Sailendra Nath Bose reported in AIR 1964 Cal 184 one of the contentions raised by the writ petitioner was that the opportunity for inspection of documents was not given during the enquiry and the opportunity which was given was wholly insufficient and inadequate. In this connection the Division Bench of this High Court stated that the writ petitioner was certainly entitled to inspect the evidence collected against him before the commencement of the examination of the witness. It was held that proper inspection of the documents was not allowed to the respondent. The Division Bench held that the objection raised by the writ petitioner that he was seriously handicapped in the matter of cross-examining the witness because of non-supply of copies of the documents was a substantial one. The Division Bench held that the Trial Judge 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. 83. In the case of Trilok Nath v. Union of India & Ors. reported in 1967 (1) SLR 759 Supreme Court held that if the public servant so requires for his defence, he had to be furnished with copies of all relevant documents, that is, the documents sought to be relied upon by the Inquiry Officer or required by the public servant for his defence. reported in 1967 (1) SLR 759 Supreme Court held that if the public servant so requires for his defence, he had to be furnished with copies of all relevant documents, that is, the documents sought to be relied upon by the Inquiry Officer or required by the public servant for his defence. It was obligatory upon the enquiry officer not only to furnish the public servant concerned with a copy of charges levelled against him but also the grounds on which those charges were based and the circumstances on which it was proposed to take action against him. 84. In the case of the State of Punjab v. Bhagat Ram reported in AIR 1974 SC 2335 the Supreme Court pointed out that the object of supplying the statements of the witness as recorded by the Vigilance Department during the preliminary, enquiry, which were not supplied to the respondent but only the synopsis of which was supplied, was that the Government servant will be able to refer to the previous statements of the witness proposed to be examined against the Government servant. Unless the statements are given to the Government servant he will not be able to have an effective and useful cross-examination. It was observed that it was unjust and unfair to deny the Government servant the copies of the documents examined during the investigation and produced at the enquiry in support of the charges levelled against the Government servant. The synopsis does not satisfy the requirement of giving the Government servant a reasonable opportunity of showing cause against the action proposed to be taken. 85. In the case of Union of India & Ors. v. Indra Nath reported in 1978 (1) SLR 1 Cal certain documents which were not disclosed to the respondent at any stage and not even mentioned in the annexure to the charge sheet, were also proved through the witness. This was one of the grounds on which the Division Bench confirmed the judgment of the learned Single Judge whereby the Rule was made absolute. 86. In the case of The State of Uttar Pradesh v. Md. Sharif reported in AIR 1982 SC 937 after holding the departmental disciplinary enquiry against the Government servant, the department ultimately dismissed him from service. 86. In the case of The State of Uttar Pradesh v. Md. Sharif reported in AIR 1982 SC 937 after holding the departmental disciplinary enquiry against the Government servant, the department ultimately dismissed him from service. After the department's appeal and revision to the higher authority had failed, the plaintiff filed a suit challenging the dismissal order on the ground that it was illegal and void as no proper enquiry was held against him and no reasonable opportunity was given to him to defend himself against charges framed against him. The trial Court dismissed the suit. In the appeal preferred by him the Second Additional Civil Judge of Kanpur reversed the trial Court's findings and decreed the suit. The State preferred a second appeal and the High Court confirmed the decree passed by the appeal court and dismissed the second appeal. Thereafter the State of Uttar Pradesh came up before the Supreme Court in appeal. The Supreme Court had that both the appeal court and the High Court were right in holding that the plaintiff had no reasonable opportunity of defending himself against the charges levelled against him and that he was prejudiced in the matter of his defence. In that case a preliminary enquiry had preceded the disciplinary enquiry and during the preliminary enquiry statements of witness were recorded. The copies of such statements were not furnished to him at the time of disciplinary enquiry. Even the request of the plaintiff to inspect the file pertaining to the preliminary enquiry was rejected. Accordingly the Supreme Court held that both the first appeal court and the High Court were right in corning to the conclusion that the plaintiff was denied reasonable opportunity to defend himself at the disciplinary enquiry. It was held that in the absence of the statement of the witness he was prejudiced in the matter of his defence. Accordingly the appeal preferred by the State of Uttar Pradesh before the Supreme Court was dismissed. 87. In the case of Bhagat Ram v. State of Himachal Pradesh & Ors. reported in AIR 1983 Supreme Court 454 there was a disciplinary enquiry against the petitioner. There was an enquiry report and the disciplinary authority provisionally decided to impose a penalty of removal from service and served the writ petitioner with a notice to show cause why the provincial penalty decided upon by the disciplinary authority should not be confirmed. reported in AIR 1983 Supreme Court 454 there was a disciplinary enquiry against the petitioner. There was an enquiry report and the disciplinary authority provisionally decided to impose a penalty of removal from service and served the writ petitioner with a notice to show cause why the provincial penalty decided upon by the disciplinary authority should not be confirmed. A written explanation was submitted by the appellant. The enquiry officer after considering the same confirmed the penalty of removal from service. The appellant preferred an appeal to the Chief Conservator of Forest without success. Thereafter the appellant filed a revision petition to the Forest Minister. Before any reply was received to the same, a writ petition was filed and moved before the High Court of Himachal Pradesh and the High Court of Himachal Pradesh dismissed the writ petition. Against that an appeal was preferred to Supreme Court by Special Leave. In this connection the Supreme Court held as follows :- "It is well-established that the delinquent has a right to cross-examine witnesses examined on behalf of the disciplinary authority and an opportunity to lead his own evidence and to present his side of the case. This is the minimum principle of natural justice which must inform the disciplinary proceeding. To be precise, the provisions contained in the 1965 Rules do make adequate provision for the same. The question is whether it has been substantially complied with." 88. In that case though the question of supply of documents did not directly come up but the right of cross-examination was confirmed and the object of supply of documents has already been spelled out by various decisions, inter alia, to enable the officer concerned to cross-examine the prosecution witness effectively. 89. In the case of Kashinath Dikshita v. Union of India reported in AIR 1986 SC 2118 the validity of the impugned order of dismissal was an issue. The question was whether the principle of natural justice was violated by the respondents by refusing to supply to the appellant (1) copies of the statement of the witness examined at the stage of preliminary enquiry preceding the commencement of disciplinary enquiry and (2) copies of the documents sought to have been relied upon by the disciplinary authority in order to establish the charges against the appellant who was holding the post of Superintendent of Police. The appellant's request for supply of the copies of the relevant documents and statement of witness was rejected. In this connection the Supreme Court held that when the Government servant is facing a disciplinary proceeding he is entitled to be afforded a reasonable opportunity to meet the charges against him in an effective manner and no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents which could be used against him are made available to him. In the absence of such copies the concerned employees cannot prepare the defence, cross-examine the witness and point out the inconsistency with a view to show that the allegations are incredible. The Supreme Court held that after taking an over all view of the matter the appellant had been denied a reasonable opportunity of exonerating himself. In this connection the Supreme Court quoted with approval the cases of Trilok Nath v. Union of India reported in 1967(1) SLR 759. The State of Punjab v. Bhagat Ram reported in AIR 1974 SC 2335 and The State of Uttar Pradesh v. Md. Sharif reported in AIR 1982 SC 937 , which we have referred to hereinabove. 90. In the case of Anandrai Jiandrai Vaswani v. Union of India & Ors., 1983(1) Cal LJ 8 the judgment was by a Division Bench of this High Court. In that case the writ petitioner wanted certain documents on the basis of the evidence of one particular S.N. Banerjee, preliminary enquiry Officer. It also included the report submitted by S.N. Banerjee the preliminary enquiry officer and the departmental investigating Officer. What was also withheld from the petitioner was a report submitted by the Special Police Establishment. It was held that it was obligatory on the part of the disciplinary authority to allow all the documents asked for by the delinquent officer although the relevancy of the documents may not be very clear to the disciplinary officer. The power to refuse access to the Official records should however be used by recording in writing the reasons for such refusal and not by merely stating that the same is irrelevant. It was held that the enquiry proceeding was vitiated in view of the refusal of the disciplinary authority and the Enquiry Officer to give access to the documents to the Officer concerned which were relevant to his defence. It was held that the enquiry proceeding was vitiated in view of the refusal of the disciplinary authority and the Enquiry Officer to give access to the documents to the Officer concerned which were relevant to his defence. Natural justice (contd.)-Non supply of documents-Statements of the witnesses in C.B.I. enquiry. 91. So far as the statements of the witnesses in the preliminary C.B.I. enquiry against the petitioner are concerned, as already pointed out, these were not included in the list of documents which was sent along with the charge sheet. From time to time the petitioner has been asking for copies of the same giving reasons but that was being refused. Peculiarly enough in the enquiry proceedings not only that these statements were relied upon by the prosecution but they formed the basis of the prosecution case. These were practically the sole deposition in examination-in-chief of the witnesses concerned. In this case a peculiar procedure was followed. The charge sheet was submitted on 12th of May, 1977, the petitioner has been asking for these statements, the report of the C.B.I. Investigating Officer and other documents. The first witness who was examined on behalf of the Department on 2nd of February, 1979 was Shri N.K. Mukherjee, Inspector of Police, C.B.I. Calcutta who was the Investigating Officer in the C.B.I. enquiry. He gave evidence but his report was not produced nor was it exhibited. The next witness was P. Roy Chowdhury who was examined on the same day. On the next date i.e. 3rd of February, 1979 the next prosecution witness Shri T.N. Biswas appeared and the only question put to him by P.O. (Presenting Officer) was whether during investigation of the case against the petitioner he was examined by the C.B.I. if so, whether he made the statement before the C.B.I. as exhibit 18. He answered 'Yes please'. Then he was allowed to be cross-examined. Similar procedure was followed in respect of the other witnesses who made statements before the Investigating Officer. Inspite of the same the petitioner was refused copies of the said statements even when he had asked for the same at the very outset. There statements were produced ultimately when the witnesses concerned were produced in the enquiry. On such occasion, the particular statement was exhibited and practically no other question was asked in the examination in chief. Then the particular witness was allowed to be cross-examined. There statements were produced ultimately when the witnesses concerned were produced in the enquiry. On such occasion, the particular statement was exhibited and practically no other question was asked in the examination in chief. Then the particular witness was allowed to be cross-examined. These statements by themselves were important documents for the purpose of preparing the defence. In particular having regard to the procedure followed regarding the examination of prosecution witnesses, supply of copies of these documents earlier would have helped the petitioner in cross-examining the prosecution witnesses. Though he asked for the same long time back and he was refused, the prosecution just chose to introduce such statements at the time when the particular witnesses concerned appeared to depose in the enquiry. In the case of State of Punjab v. Bhagat Ram (ibid) the statements of witnesses as examined by the Vigilance Department in the preliminary enquiry were not supplied but only the synopsis was given. It was held by Supreme Court that it did not satisfy the requirement of giving reasonable opportunity of showing cause. In the case of Union of India v. Indranath (ibid), documents which were not disclosed at any stage and which were not mentioned in, the annexure to charge sheet were proved through the witness at the Inquiry. This was held to be bad. The right of the charged officer to obtain such copies of statements was re-asserted by Supreme Court in State of U.P. v. Md. Shariff (ibid) and Kashinath Dixita v. Union of India (ibid). In this connection reference may also be made to Union of India v. Tulsiram Patel (ibid). There is no question of any discretion of I.O. regarding production of such documents, State of Madhya Pradesh v. Chintamani (ibid). Further the charged officer is entitled to inspection of the evidence collected against him before the commencement of the examination of the witness, State of West Bengal v. Sailendra Nath Bose (ibid). Accordingly in our opinion non-supply of such document resulted in denial of reasonable opportunity to the petitioner to defend himself in the said enquiry. 92. In this connection Mr. Ginwalla relied on State of Mysore & Ors. Accordingly in our opinion non-supply of such document resulted in denial of reasonable opportunity to the petitioner to defend himself in the said enquiry. 92. In this connection Mr. Ginwalla relied on State of Mysore & Ors. v. Shivapasappa Shivappa Makapur, AIR 1963 SC 375 where the Supreme Court held as follows : "The sole point for determination in this appeal therefore is whether the procedure adopted by the Deputy Superintendent of Police in admitting the Statements of witnesses examined before Mr. Majumdar in evidence is opposed to the rules of natural justice. The question is one of importance, because as appears from the cases which have come before us the procedure followed by the Deputy Superintendent of Police in this case is the one followed by many tribunals exercising quasi judicial powers. For a correct appreciation of the position, it is necessary to repeat what has often been said that tribunals exercising quasi judicial functions are not Courts and that therefore they are not bound to follow the procedure prescribed for trial of actions in Courts nor are they bound by strict rules of evidence. They can unlike courts, obtain all information material for the point under enquiry from all sources, and through all channels without being fettered by rules and procedure which govern proceedings in Court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. What is a fair opportunity to must depend on the facts and circumstances of each case but where such an opportunity had been given the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in Courts" (para 3). What is a fair opportunity to must depend on the facts and circumstances of each case but where such an opportunity had been given the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in Courts" (para 3). "But in our opinion, the purpose of an examination in the presence of a party against whom an enquiry is made, is sufficiently achieved, when a witness who has given a prior statement is recalled, that statement is put to him, and made known to the opposite party, and the witness is tendered for cross-examination by that party, in that view we must hold that the order dated July 5, 1956 is not liable to be set aside on the ground that the procedure followed at the enquiry by the Deputy Superintendent of Police was in violation of the rules of natural justice. It is hardly necessary to add that clause(8) of section 545 of the Bombay Police Manual cannot be held to be bad as contravening the rules of natural justice. (para 9)" 93. Mr. Ginwalla in this connection also relied on the decision in the case of State of U.P. v. Om Prakash Gupta (ibid). The Court therein held that the fact that the statements of the witnesses taken at the preliminary stage of the enquiry were used at the time of formal enquiry does not vitiate the enquiry if those statements were made available to the delinquent officer and he was given opportunity to cross-examine the witnesses in respect of the statements. In this connection Supreme Court followed the decision in State of Mysore v. Shivabasappa (ibid). However it is to be noticed that the Supreme Court pointed out that it was clear from the records of the case that the respondent had been permitted to go through the statements recorded from the witnesses by the Deputy Commissioner and prepare their notes; he was supplied with the English translation of those statements and that he was permitted to cross-examine the witnesses in respect of those statements. 94. The facts of the aforesaid two decisions are different from the facts of the case before us. 94. The facts of the aforesaid two decisions are different from the facts of the case before us. As a matter of fact in the last decision itself, the Supreme Court pointed out that what principles of natural justice should be applied in a particular case, depends on the facts and circumstances of that case. Natural Justice (Contd.)-Non-supply of documents-Investigation Report of C.B.I. 95. The petitioner also asked for preliminary investigation report of the C.B.I. in his case which was also refused. As already pointed out, in the case of the gentleman who conducted the investigation viz. Shri N.K. Mukherjee, the procedure followed was not followed in respect of other witnesses. Instead of the same he was examined in chief, but his report was not brought forward or disclosed. The admitted position is that the disciplinary proceedings was initiated on the basis of the investigation carried on by the C.B.I. and on the basis of the report of such investigation. There was also a criminal case against the petitioner which was ultimately dropped. This report could have been of much help to the petitioner particularly for the purpose of cross-examination of this officer himself and also the other witnesses who had made statements earlier. What was the view expressed by the Investigating Officer in his report before the initiation of the enquiry would have certainly helped the petitioner in preparing his defence and particularly cross-examining the witnesses who deposed before the Investigating Officer and also in the enquiry. Last, but not the least, the Investigating Officer himself was P.W.1 in the said disciplinary enquiry. The prosecution relied on the said report without disclosing the same. Apart from anything else Investigating Officer's Report would have shown whether his evidence in the enquiry tallies with his report of Investigation. Such report was the basis of the charge and the Inquiry against the petitioner and the same should not have been withheld from the petitioner. In this connection reference may be made to Trilok Nath v. State of Madhya Pradesh (ibid) and Anandrai v. Union of India (ibid). 96. In this connection Mr. Such report was the basis of the charge and the Inquiry against the petitioner and the same should not have been withheld from the petitioner. In this connection reference may be made to Trilok Nath v. State of Madhya Pradesh (ibid) and Anandrai v. Union of India (ibid). 96. In this connection Mr. Ginwalla relied on the decision in the case of Krishna Chandra Tandon v. Union of India, AIR 1974 SC 1589 wherein the Supreme Court held as follows: "One of the submissions of the appellant was that a copy of the report of the Vigilance Commissioner should have been made available to him when he was called upon to show cause why the punishment of reduction in rank should not be imposed upon him. We do not see any justification for the instant request made by the appellant to the disciplinary authority that the report of the Vigilance Commissioner should be made available to him. In the preliminary findings of the disciplinary authority which were communicated to the appellant were those of the disciplinary authority and it was wholly unnecessary for the disciplinary authority to furnish the appellant with a copy of the report of the Vigilance Commissioner when the findings communicated to the appellant were those of the disciplinary authority and not of the Vigilance Commission. That the preliminary findings of the disciplinary authority happened to coincide with the views of the Vigilance Commission is neither here nor there" (para 4). In our opinion the facts of this case are completely different from the facts of the case before us. Natural Justice (Contd.)-Non-supply of documents (Contd.)-Records of proceeding's Re:- Samar Dey : 97. The next question to be considered is whether the records of the enquiry proceedings against Samar Dey should have been made available to the petitioner. Such prayer for supply of the said documents was refused as we would be found, inter alia, from the minutes dated 10th January, 1979 by using a short sentence as follows :- "No other documents either copies or certified copies will be given." 98. It was not even said by the I.O., that he considered them to be irrelevant. No reason was given for such refusal. It was not even said by the I.O., that he considered them to be irrelevant. No reason was given for such refusal. In this connection it may be pointed out that the Inquiring Officer in his letter dated 23rd March, 1979 while rejecting the prayer of the petitioner for furnishing the documents specified by him, stated, that the report of the Enquiry Officer in respect of the case of Sri Samar Dey, Office Assistant was shown to petitioner during the examination of Sri Dey i.e. on 7th March, 1979. It is seen from the Minutes of the proceedings of 7th March, 1979, in which Samar Dey gave his evidence, that the statement of the Enquiring Officer in his letter referred to above, that the report was shown to the petitioner, is incorrect. The minutes concerned do not support the statement of the I.O. It should be pointed out that though a question was sought to be put on behalf of the petitioner regarding such departmental enquiry upon objection being taken by the Presiding Officer, it was not allowed. The relevant portion of the minutes is quoted hereinbelow :- Q. It is understood that the departmental enquiry was instituted against you regarding the above L.T.C. claim and the said enquiry had already been completed. Will you please let us know the findings of that enquiry ? 99. The P.O. objected to this question. "The Defence Counsel were requested to clarify the words 'findings' in the question objected by the P.O. However, the relevant papers available with Shri Samar Dey in this connection may be placed with the Defence Counsel if it is so desired. Since Sri Samar Dey has informed that he had no copies of the papers to spare with the Defence Counsels he may kindly consult the papers earlier handed over to them. These papers and documents relating to enquiry of Samar Dey was relevant so far as the defence of the petitioner is concerned and particularly for the purpose of cross-examination of the witness. Not only that the petitioner was not even given an opportunity to cross-examine Samar Dey effectively on this point. Samar Dey worked in the same office. He travelled in the same manner along with Dastidar in the same package tour. He was governed by the same L.T.C. Rules. He submitted similar documents. Similar money receipts were issued by Maharaja Travels. Not only that the petitioner was not even given an opportunity to cross-examine Samar Dey effectively on this point. Samar Dey worked in the same office. He travelled in the same manner along with Dastidar in the same package tour. He was governed by the same L.T.C. Rules. He submitted similar documents. Similar money receipts were issued by Maharaja Travels. His L.T.C. was sanctioned on the basis of the same note sheet dated 25th November, 1975. There was similar investigation by C.B.I. so far as Samar Dey is concerned. Similar charge sheet was issued against Samar Dey on similar allegations. In this context the relevant portion of the Report of Enquiry against Mr. Samar Dey dated 14th September, 1977 is quoted hereinbelow. 2. "Board features of the case under enquiry and the Articles of Charges. 2. 1. Shri Samar Dey, Office Assistant, Export Inspection Agency-Cal. (Jute Scheme) approached to the Joint Director (Tax) Export Inspection Council, Calcutta on 19.8.1975 for L.T.C. advance indicating his desire to go to Pahalgaon, Kashmir with his family members viz. self, mother, wife, sister and daughter. Accordingly he made an application for advance with a Tour programme in support thereof, duly sanctioned by Shri P. Roy Chowdhury, Joint Director (Tax) dated 6.9.75, Shri Dey has drawn an advance of Rs. 1,980.00 for undertaking the journey. 2. 2. From the documents it transpires that Shri Dey along with his family members left Sealdah on 15.10.1975 by Ex-Sealdah-Jammu Express and left Jammu on 28.10.1975 Ex-Jammu-Sealdah Express and submitted his claim for the purpose of Leave Travel Concession on 21.11.1975. 2. 3. Alongwith the application for L.T.C. claim Shri Dey submitted the certificate for Leave Travel Concession, the Tour Diary of self and family members, the money receipt in Original No. 120 for Rs. 3.185 of M/s. Maharaja Travels and a certificate in original of M/s. Maharaja Travels. The copies of the documents are placed at annexure-I (pp. 12-20). 100. The allegations against Shri Samar Dey as indicated in the statement of articles of charges also in the statement of imputation of misconduct or misbehaviour in support of the article of charges were similar to petitioner. In the said Report the I.O. also stated as follows :- 7. 1. A gross issue, which emanated from the hearing is that there is a lacuna in the Rules/Govt. In the said Report the I.O. also stated as follows :- 7. 1. A gross issue, which emanated from the hearing is that there is a lacuna in the Rules/Govt. Orders to the extend that there is no guideline as to how the package lours should be dealt with for the purpose of L.T.C. The expression 'package tour' also includes within its meaning the expenses other than the fare, such as, food during the journey, sight seeing expenses etc. If within the sanctioned limit, the beneficiaries enjoy certain additional advantages from a private party, it does not ordinarily amount to misconduct involving moral turpitude. 7. 2. The limit of discretion allowed to the Controlling Officer in admitting L.T.C. claims should also be amplified to cover cases having peculiar features. The Controlling Officer has been allowed to admit claims for travel in private cars in between places connected by Railways as per G.I.M.H. affairs Memo No. 43/5/57 dated 11.2.1958. In such cases the claimant is supposed to submit the cost of propulsion. Since the scrutiny of evidences for such case have been dispensed with, the expression cost of propulsion may be stretched to include within its meaning, wages for the driver, ordinary repairing cost as well as cost of fuel. The case of 'package tour' can be dealt with the same spirit." 101. In the said Report the finding of the Inquiring Officer was as follows :- 8. Findings of the Inquiry Officer with reasons for the conclusion. 8. 1. Shri Samar Dey did not submit any bill. The bill was drawn by this office on the basis of evidence produced. The gross evidence namely the money receipt of M/s. Maharaja Travel for Rs. 2,385/- covering the said journey is genuine. Shri Dey cannot be charged for the falsification of details in the money receipt which was duly printed and granted to other customers also in (8.1.) 8. 2. However, Shri Dey should not have mentioned 1st class in his tour diary rather he could have mentioned Special compartment in his tour diary. Since he has paid such amount to M/s. Maharaja Travel against a genuine money receipt he could seek sanctioned of Controlling Officer relaxing the normal rules with a view to getting reimbursement to the maximum admissible extent. 8. 3. Since he has paid such amount to M/s. Maharaja Travel against a genuine money receipt he could seek sanctioned of Controlling Officer relaxing the normal rules with a view to getting reimbursement to the maximum admissible extent. 8. 3. In view of what has been stated in the note sheet of Accounts Section dated 25.11.1975 that they had taken into consideration before admitting the claim, the fact that such type of claims were being approved by other Govt. Offices viz. "D.G.C. I & S. Calcutta, and the point was also considered by the Controlling Officer, there is little scope to doubt the integrity of Shri Samar Dey. We cannot but allow a benefit of doubt to Shri Samar Dey in regard to his statement to that effect that he had disclosed all details of journey to Shri P. Roy Chowdhury before and after the journey. 8. 4. After the hearing and on going through all the documents mentioned in the list of documents provided to the Delinquent Officer, the undersigned has the opinion that the charges against Shri Samar Dey to the extent that he has enjoyed undue economic advantages by misdeclaration cannot be proved beyond reasonable doubt." 102. From the documents disclosed during the hearing of the Appeal it appears that certain points regarding the said Report were raised by the Additional Director, who was the disciplinary authority of Samar Dey, by his nothing dated 30th September, 1977. In answer thereto the I.O. concerned gave a Note on 5th of October as follows :- Confidential Export Inspection Agency 14/1B, Ezra Street, Calcutta-1 Dated: 5.10.77 Sub: Departmental Inquiry against Shri Samar Dey Office Assistant, Export Inspection Agency. Calcutta (Jute Scheme) 103. The point No. (ii) raised by Shri S. Lakshmikanthan, Additional Director vide his noting U.O. No. ETC/Addl./Dir/EO 18/76/5212 dated 30.9.77 was examined by the undersigned at length. In course of investigation, a photo copy of the note sheet dated 25.11.75 has been brought to my notice. A photo copy of the same is also enclosed for ready reference. In the same note sheet, Shri S. Sarkar, Senior Accounts Officer has brought to the notice of the Controlling ? Officer that the travel undertaken by Shri Samar Dey was in a special compartment arranged by a tour. Shri Satkar has also indicated that Railway money Receipts, Ticket Nos. etc. could not be verified for such case. In the same note sheet, Shri S. Sarkar, Senior Accounts Officer has brought to the notice of the Controlling ? Officer that the travel undertaken by Shri Samar Dey was in a special compartment arranged by a tour. Shri Satkar has also indicated that Railway money Receipts, Ticket Nos. etc. could not be verified for such case. Shri Sarkar was stated to have ascertained from I.J.I.R.A. and D.G.C.I.S. (other Govt. offices) that such L.T.C. has been sanctioned on the basis of Receipts from Private Travel Agents in the above offices. The, categorical proposal from the Accounts Section was that the claim may be restricted to first class Railway fare. 104. The economic advantage taken by Shri Dev which was more than the cost of transportation was not on the basis of the arbitrary declaration of Shri Dey. The officer initiating the note sheet for re-imbursement of this claim had fully explained this point to the Controlling, Officer, who knowing the prima facie of the case has exercised the discretionary power to relax the normal rules. 105. Besides above, Shri Samar Dey has also claimed that he has brought all aspects of the case to the notice of the Controlling Officer before and after the journey was over. Since the Controlling Officer, Shri P. Roy Chowdhury did not respond to the summons, the veracity of. Shri Dey's statement could not be proved. However, from the note sheet indicated above there are ample grounds to deduce that the Controlling Officer after considering all aspects has passed the claim using his discretion relaxing the norms. Submitted please. Sd/- P. K. Chatterjee Inquiry Officer Deputy Chief Executive ETA-Cal. 106. In Samar Dey's case after the Report, it was remitted back to the I.O. by an order dated 30th of September, 1977 which is set out hereinbelow :- Findings of the Disciplinary Authority on the Inquiry against Shri Samar Dey Office Assistant, Export. Inspection Agency, Calcutta (Jute Scheme) 107. The undersigned has studied the report of the enquiry Officer, Shri P.K. Chatterjee, Deputy Chief Executive Export Inspection Agency, Calcutta. The following are his findings :- (i) The Inquiry Officer has come to the conclusion that Shri Samar Dey should not have mentioned first class in his tour diary. It is also clear from various other documents that Shri Samar Dey did not travel in 1st class. The following are his findings :- (i) The Inquiry Officer has come to the conclusion that Shri Samar Dey should not have mentioned first class in his tour diary. It is also clear from various other documents that Shri Samar Dey did not travel in 1st class. (ii) There are strong grounds for inferring that even though the money receipt of M/s. Maharaja Travels indicates only the train fare and bus fare, Shri Samar Dey was provided with food, lodging and sight seeing facilities at no extra cost. If this is established, it would mean that Shri Samar Dey drew an amount which was something more than the cost of transportation. 108. The case is, therefore, remitted back to the Inquiry Officer who may make a further inquiry and report as to whether the inference at (ii) above can be sustained or not. (S. Lakshmikanthan) Addl. Director. 109. Ultimately the disciplinary authority passed the following orders on the 7th of October, 1977 :- Findings of the Disciplinary Authority on the Inquiry against Shrt Samar Dey, Office Assistant, Export Inspection Agency, Calcutta (Jute Scheme) "It is clear from the note dated 5th October, 1977 of the Inquiry Officer that Shri Samar Dey derived an economic advantage which was more than the cost of transportation. As such, it is established that Shri Samar Dey derived a pecuniary advantage by making a false declaration in his L.T.C. tour diary that he travelled in 1st class. I cannot agree with the deduction of the Inquiry Officer that the normaul rules were relaxed approving the payment of an amount higher than the cost of transportation. The utmost that can be deduced from the note sheet dated 25th November, 1975 of Shri S. Sarkar, Sr. Accounts Officer is that discretionary powers have been exercised by the Controlling Officer in permitting the travel in the special compartment on a package tour and waiving of production of railway receipts." 110. However, as the employee is not a self-drawing Officer, he cannot be charged as having preferred a bill. Similarly the money receipt obtained from M/s. Maharaja Travels cannot be termed as false. 111. As the employee belongs to Group C-I would like to take a lenient view and impose a minor penalty. However, as the employee is not a self-drawing Officer, he cannot be charged as having preferred a bill. Similarly the money receipt obtained from M/s. Maharaja Travels cannot be termed as false. 111. As the employee belongs to Group C-I would like to take a lenient view and impose a minor penalty. Accordingly, I am ordering the following :- (i) Shri Samar Dey should pay back the amount drawn by him in excess of the actual second class fare and (ii) one increment shall be withheld for one year S. Lakshmikanthan Addl. Director 7 October, 1977 ORDER Whereas the Inquiry under Rule 11 of the Export Inspection Agency Employees (Classification, Control and Appeal) Rules against Shri Samar Dey, Office Assistant. Export Inspection Agency, Calcutta (Jute Scheme) has been completed and it is established that the delinquent official derived a pecuniary advantage by making a wrong declaration in his L.T.C. tour diary, the following minor penalty is imposed: One increment shall be withheld for one year. Further, Shri Samar Dey should pay back the amount drawn by him in excess of the second class fare. S. Lakshmikanthan Additional Director 112. It is apparent from the above that if the petitioner had been given acess to the records of the enquiry proceedings against Samar Dey, including the report, subsequent noting of the Inquiry Officer therein, the order of remand and the final order of the disciplinary enquiry, it would have greatly helped the petitioner in preparation of his defence. It would have been open for him to say that similar finding should be arrived at by the I.O. in this case also. In this context it may be pointed out that the charge against him was that his conduct as alleged therein amounts to 'misconduct". He could have relied on the finding of the I.O. in that case that such conduct does not ordinarily amount to misconduct involving "moral turpitude." He was deprived of the same. In any event he could have contended that he should be treated similarly. Accordingly, in our opinion non-supply of such document resulted in denial of reasonable opportunity to the petitioner. In this connection reference may be made to the decisions referred to earlier. Natural Justice (Cond.)-Non-supply of documents (contd.)-I.J.I.R.A. 113. In any event he could have contended that he should be treated similarly. Accordingly, in our opinion non-supply of such document resulted in denial of reasonable opportunity to the petitioner. In this connection reference may be made to the decisions referred to earlier. Natural Justice (Cond.)-Non-supply of documents (contd.)-I.J.I.R.A. 113. The next question to be examined is the action and conduct of the I.O. regarding the prayer of the petitioner for production of the records of I.J.I.R.A. and their officers/ employees as witnesses. The facts relating to the same are as follows. By a letter dated 19th February, 1979, the petitioner asked the I.O. to request Indian Jute Industries Research Association having its office at Calcutta (hereinafter referred to as I.J.I.R.A.) to produce the relevant documents along with concerned officers to depose. It was stated by the petitioner therein that during the time of inspection of the documents of the money receipts of Maharaja Travels, it was revealed that a number of officers of I.J.I.RA. had travelled to Kashmir and same type of money receipt, as, in the case of the petitioner, had been issued in their favour from the Money Receipt Book, Ext. 13-containing Money Receipt Nos. 120, 121 and 122. A peculiar and unusual procedure was followed by Investigating Officer upon receipt of this letter. Instead of writing a letter to I.J.I.R.A. to that effect, he chose to visit the office of the I.J.I.R.A. himself on the 23rd of February, 1979 without informing the petitioner when admittedly he had a discussion with its Secretary. This is recorded by him in his letter dated 24th Feb., 1979 address to the Secretary of I.J.I.R.A. After recording such visit, by the said letter he asked the Secretary to confirm, inter alia, whether his organisation was following the Government of India Rules in granting and settling TA/DA claims including the L.T.C. claims to the I.J.I.R.A. Staff. They were also requested to give confirmation regarding "the present position and with special reference to the year 1975". It was not recorded in the said letter or any contemporaneous document for what purpose such visit was made by him upon receipt of the letter of the petitioner and what was the nature of such discussion. Thereafter on the morning of 6th of March, 1979 the I.O. had a telephonic conversation with the Jt. It was not recorded in the said letter or any contemporaneous document for what purpose such visit was made by him upon receipt of the letter of the petitioner and what was the nature of such discussion. Thereafter on the morning of 6th of March, 1979 the I.O. had a telephonic conversation with the Jt. Director of I.J.I.R.A. This is recorded in the letter of 6th March, 1979 written by the I.O. to the Jt. Director of I.J.I.R.A. Again, it does not appear from the said letter or any other contemporaneous document as to what was the necessity of such telephonic conversation and what transpired during such conversation. I.O. wanted the Jt. Director to enlighten him on this subject. On 9th March, 1979 the Jt. Director of I.J.I.R.A. wrote a letter to I.O. wherein it was stated, inter alia, that IJIRA settle L.T.C. claims of staff according to Government Rules and that this practice was being followed from the year 1975. The letter also dealt with TA/DA and entitlements of the staff. Admittedly this was not brought to the notice of the petitioner. It appears that the I.O. had another telephonic conversation with the Jt. Director of I.J.I.R.A. This is recorded in the letter dated 22nd March, 1979 written by I.O. to the Jt. Director of I.J.I.R.A. Similarly, what was the necessity of such telephonic conversation and what transpired during the same is not disclosed in the said letter or any other contemporaneous document. Further, inspite of the earlier clarification on behalf of the I.J.I.R.A. the I.O. again pursued the matter. It was stated as follows: "As a matter of fact, what we precisely would like to know is whether your organisation is required to be governed by the Government of India Rules in settling the L.T.C., T.A., D.A. etc. claims of your staff. In other words whether your organisation is controlled, manned and financed by Government of India and whether the service conditions of your organisation, necessitate to follow and observe Government Rules in toto." 114. What was the necessity of such "clarification" having regard to the communication already made by I.J.I.R.A. by letter dated 9th March, 1979. Further the practice followed by I.J.I.R.A. had been intimated earlier. Now I.O. asks whether it was "required to be" governed by Government of India Rules. What was the necessity of such "clarification" having regard to the communication already made by I.J.I.R.A. by letter dated 9th March, 1979. Further the practice followed by I.J.I.R.A. had been intimated earlier. Now I.O. asks whether it was "required to be" governed by Government of India Rules. On the very same date there was a letter promptly from I.J.I.R.A. whereby the previous stand was changed and it was stated as follows: "In answer to your query, this is to let you know that our organisation is an Autonomous Co-operative Research Laboratory which is registered under the West Bengal Societies Registration Act and is controlled by a council of Management, consisting of representatives of the Industry, representatives of Government and independent co-opted scientists, as prescribed by the Rules and Regulations of the Society. Our organisation is not controlled and manned by the Government of India. While it does receive grants-in-aid from the Government, service conditions of our organisation do not necessitate us to follow and observe Government Rules in toto. This being the case, we are not obligated to settle L.T.C., T.A., D.A. etc. claims of our staff exactly as per Government Rules." 115. This is inspite of the earlier letter of 9th March, 1979 whereby the very same gentlemen stated that I.J.I.R.A. settled L.T.C. claims of staff according to the Government Rules. This view is now subsequently being changed obviously at the persistence and pursuation of the I.O. 116. On the 23rd March, 1979, the I.O. wrote to the petitioner stating that regarding the records of I.J.I.R.A. and the depositions of I.J.I.R.A. is neither a Government body nor they are obligated to settle the L.T.C. claims of their staff as per Government Rules. He was informed that hence it has been decided that the documents or deposition of officer belonging to a non-governmental organisation will be no use so far as this enquiry was concerned. Very conveniently no reference was made to the correspondence or the visit or the conversation made privately by the I.O. with I.J.I.R.A. particularly about the earlier stand of I.J.I.R.A. as expressed by their letter dated 9th March, 1979 that L.T.C. claims of their staff were settled according to Government Rules. Very conveniently no reference was made to the correspondence or the visit or the conversation made privately by the I.O. with I.J.I.R.A. particularly about the earlier stand of I.J.I.R.A. as expressed by their letter dated 9th March, 1979 that L.T.C. claims of their staff were settled according to Government Rules. By his letter dated 27th March, 1979 the petitioner protested against such decision of the I.O. and pointed out that in the note sheet dated 25th November, 1975 by which his and another L.T.C. claims were prepared by the Accounts Department and sanctioned by the Controlling Officer, it was mentioned that I.J.I.R.A was an organisation similar to this office and certain clarifications were obtained by the Accounts Department from I.J.I.R.A. and D.G.C.I. & S to get the guideline of settling L.T.C. claims for package tours like the petitioners. It was pointed out that the purpose of examining a witness in a Departmental enquiry was to bring out the truth and hence it was not necessary that a witness should be a Government employee or employee of some Department which follow the Government Rules. It was asserted that anybody who can throw some light on the case can be a witness it was further pointed out that in the said enquiry so many witnesses were called by the prosecution and were allowed by the I.O. who are employees of non-Government organisation and even private individuals presumably to support the prosecution. It was protested that in view of the same there was no justification in not allowing the witnesses from I.J.I.R.A. in this enquiry whose examination, in his opinion will throw sufficient light on the facts and bringing the "false and motivated statement" made by some of the prosecution witnesses. It was pointed out that the employees of I.J.I.R.A., whose names had already been furnished to the I.O. were material witnesses for the purpose of his defence. It was recorded that he felt that denial of opportunity to examine the documents and the defence witness as requested by his letter dated 4th of February, 1979 will not only prejudice the cause of defence but also will prejudice the enquiry itself. This obviously created some difficulty for the I.O. This was sought to be resolved by another private discussion with the Jt. This obviously created some difficulty for the I.O. This was sought to be resolved by another private discussion with the Jt. Director of I.J.I.R.A. on 4th May, 1979 which was recorded in the letter dated 4th May, 1979 written by him to the Jt. Director. Again, why such discussion was thought to be necessary and where it took place and what was the subject-matter of such discussion has not been stated in the said letter or any other contemporaneous document. The said letter proceeded on the basis as if this is for the first time that the I.J.I.R.A. has been approached. The said letter states as follows : "We are in the process of investigation of some L.T.C. claims by some of our officers who had availed of the L.T.C. facility in the year 1915. These officers had travelled to Kashmir and pahelgaon in a package tour conducted by M/s. Maharaja Travels, Calcutta. I shall be grateful if you kindly let us know the documentary evidence and certificates etc. that are required to be submitted by your staff for reimbursement of L.T.C. claims when they have availed of the same on package tour conducted by the travel agent. This has reference to my discussion with you today." 117. Promptly came the letter of 21st May, 1979 from the said Director of I.J.I.R.A. who stated as follows :- "In response to your enquiry, the documentary evidence and certificates that are required to be submitted by our staff for reimbursement of L.T.C. claims are as follows : 1) A signed statement from the staff member regarding the particulars of his travel. 2) Such other documents/certificates money receipts from the Railway or accredited travel agents as will convince us of his actual class and mode of travel. In cases where we have not been convinced by the documents produced, either at the time of their production or subsequently the claims have not been entertained and actions taken to obtain refunds. This also includes the type of package tour conducted by travel agents to which you have referred in your letter." 118. In cases where we have not been convinced by the documents produced, either at the time of their production or subsequently the claims have not been entertained and actions taken to obtain refunds. This also includes the type of package tour conducted by travel agents to which you have referred in your letter." 118. By a letter dated 26th May, 1979 the I.O. informed the petitioners as follows: "If you feel that the eight defence witnesses and the relevant records available in the office of the I.J.I.R.A. Calcutta as mentioned in your letter dated 19th February, 1979 is examined and/or cross-examined in the enquiry will support this statement i.e. you and your family members travelled by 1st class by Sealdah-Jammu Express and back, I have no objection to request those, defence witnesses to give evidence in the enquiry and also request the office of the I.J.I.R.A., Calcutta, to produce the relevant records available with them which you may like to produce in the enquiry. On hearing from you necessary arrangements will be made accordingly. You are requested kindly to confirm this at the earliest but not later than 1st June, 1979." 119. By a letter dated 30th May, 1979 the petitioner protested against the same. He stated- "Kindly refer to your letter No. EIC/TK/Vig. KKM dated 2.5.79 on the above subject written in response to my letters dated 27th March, 79, 21.4.79 and 8.5.79 in the said letter you have at 1st agreed to call the witnesses as desired in my letter dated 19-2-79 but under certain condition which is very much surprising. Your kind self may please note that the prosecution witnesses as desired by the presenting officer were called by you unconditionally, even though one of them was found to be of little evidence value, as expressed by the Presenting Officer himself vide his letter No. EIC/TEX/Vig./KKM dated 19.2.79. It may be relevant to mention here that you conveyed me your decision for the first time, not to call the defence witnesses on the ground that I.J.I.R.A., the organisation which the said witnesses belong to is not Government organisation and not obligated to settle L.T.C. claims of its staff as per Government Rules after expiry of a fortnight form the date you declared the hearing of the enquiry as closed. I have already established the relevant of the said defence witnesses with the Department enquiry under reference in my letters dated 19.2.79 and 27.3.79 and I have nothing more to add in this regard. Under the circumstances, I would again request you kindly to arrange to call the said defence witnesses for examination, as desired in my earlier letters. Further, it is learnt from some reliable sources that between the period from 7.3.79 (the day you declared the hearing of the enquiry as closed) and 26.5.79 you had some dialogue and also written communications with I.J.I.R.A. regarding I.T.C. claims of the person whom I desired to examine as defence witnesses and as such your are requested kindly to supply me the copies of the said communication and also arrange to call Shri J.M. Mitra, Secretary of I.J.I.R.A. as another defence witness in addition to those already named." 120. Inspite of the same, no such copy of any such communication was provided to the petitioner. On 11th of June, 1979 the I.O. wrote a letter to the Secretary, I.J.I.R.A. referring to the letter of the petitioner dated 19th of February, 1979 referred to above. The names of eight officers were also given there but not the name of Shri J.M. Mitra, Secretary, I.J.I.R.A. as requested by the petitioner in his letter dated 30th May, 1979. 121. Then comes an interesting stage. From the minutes of Enquiry held on 19th June, 1979 it appears as follows : "Till 11.15 A.M. none of the witnesses requested from I.J.I.R.A. did present themselves for deposition. It is therefore decided that arrangements will be made to hold the proceedings again on 22.6.1979 at 11A.M. In the meantime arrangements will be made to send one registered letter and one letter by messenger today itself to ensure that the letter reaches I.J.I.R.A. today itself officials requesting them to send the concerned for the hearing on Friday the 22.6.1979. The hearing is adjourned on 22.6.1979. 122. After the proceedings were over today a letter No. 1055/79-80 dated 19th June, 1979 addressed to Shri D.P. Bhattacharya Joint Director & Enquiry Officer. Export Inspection Council has been received from I.J.I.R.A. Calcutta in this regard, which reads as follows:- Sub: Departmental Enquiry at EIC, Calcutta. "With reference, to your letter Nos. The hearing is adjourned on 22.6.1979. 122. After the proceedings were over today a letter No. 1055/79-80 dated 19th June, 1979 addressed to Shri D.P. Bhattacharya Joint Director & Enquiry Officer. Export Inspection Council has been received from I.J.I.R.A. Calcutta in this regard, which reads as follows:- Sub: Departmental Enquiry at EIC, Calcutta. "With reference, to your letter Nos. EIC/TX/Vig./AD/1662 & 1665 dated 11th June, 1979 we have to inform you that the contents of both the letters have been carefully noted by us. We do not think that it will be possible for us to send our officers or to produce the record mentioned in your letter under reference in the departmental enquiry. The proposed enquiry is in connection with your own officers who are alleged to have travelled to Kashmir and received reimbursements for first class railway fare. You would no doubt appreciate that our Officers whom you have called for have got nothing to do with the said enquiry. In the circumstances, we regret very much that your request cannot be complied with. Under the circumstances, the action contemporary earlier in today's proceedings need not be followed up. The Delinquent Officers are requested to submit their statement of defence so as to reach the undersigned on or before 30th June, 1979. This was agreed upon. The Delinquent Officer requested the Enquiry Officer to consider whether the I.J.I.R.A. Officials could be individually called directly to which the Enquiry Officer declined by saying that it would not be appropriate to call an official of an organisation directly." 123. By his letter dated 22nd of June, 1979 petitioner wrote to the Secretary I.J.I.R.A. with a copy to I.O. objecting to the stand taken by the I.J.I.R.A. and mentioned about the various visits by I.O. There was no reply to the petitioner's letter either by I.J.I.R.A. or by I.O. 124. We are unable to accede to the contentions of Mr. Ginwalla appearing for the appellant that the I.O. had no duty to call for any document or call any person to give evidence if he did not belong to the department concerned. In our opinion, it is the duty of the I.O. to see that a fair enquiry takes place. We are unable to accede to the contentions of Mr. Ginwalla appearing for the appellant that the I.O. had no duty to call for any document or call any person to give evidence if he did not belong to the department concerned. In our opinion, it is the duty of the I.O. to see that a fair enquiry takes place. It is certainly his duty to take all necessary steps in the matter in respect of any document or witness in the custody or possession of any person or authority, whether inside or outside the Government. No power of issuing summons has been conferred even so far as the documents and witnesses belonging to the Government departments are concerned. The duty of the I.O. in such a case is to see that all necessary efforts are made for production of the same. In this case no serious attempt was made by the I.O. On the other hand he entered into secret correspondence, made private visits to and had telephonic conversation with the officials of the I.J.I.R.A. from time to time. All these were kept concealed from the petitioner. Even when the letter of 9th of March, 1979 was received by him from I.J.I.R.A., which clearly stated that such L.T.C. claims were paid according to the Government Rules, this was not disclosed to the petitioner. This would have certainly helped the petitioner. The petitioner has pointed out from time to time the relevance of the same particularly having regard to the note sheet (Ext. 15) referred to above. He might have shown that similar procedure had been followed in other cases also and such sanction in his favour has been made following the practice of I.J.I.R.A. In any event he could have stated that in view of the same whatever he has done, it does not amount to misconduct or that there is no question of “lack of absolute integrity” or “conduct unbecoming of a government servant”. The I.O. had deliberately concealed these materials from the petitioner. Further the I.O. made the I.J.I.R.A to change their earlier stand. Though at one stage they were not unwilling to furnish informations but ultimately after final interview by the Investigating Officer, they took the final stand as stated above. In our opinion, the I.O. has acted improperly, unfairly and was biased. Further the I.O. made the I.J.I.R.A to change their earlier stand. Though at one stage they were not unwilling to furnish informations but ultimately after final interview by the Investigating Officer, they took the final stand as stated above. In our opinion, the I.O. has acted improperly, unfairly and was biased. He made enquiries behind the back of the petitioner without giving the petitioner an opportunity to deal with the same. When the petitioner wanted to look into the communication between the I.O. and the I.J.I.R.A. it was refused. The petitioner came to know of the same for the first time when during the hearing of this appeal these records were produced pursuant to direction of the Court. Lastly, the request of the petitioner to call their officials directly was also turned down by the I.O. on the ground that it would not be proper to call an official organisation directly. Why was it not proper? What reason was there for forming such opinion? It was not a non-governmental agency according to him. What prevented him from writing a letter to the individual officers leaving the choice to the officers themselves whether to appear or not? Why such opportunity was not afforded to the petitioner? As already pointed out, the note sheet dated 25th November, 1975 would show that the matter was referred to I.J.I.R.A. regarding settlement of L.T.C. claims with money receipts of Maharaja Travels. Similar money receipts regarding the staff of I.J.I.R.A. were there P. Roy Choudhury's evidence clearly stated that Sarkar ascertained from I.J.I.R.A. before preparing the note sheet. J.N. Biswas also gave evidence to that effect. Sarkar had also stated that unofficial enquiry was made from I.J.I.R.A. before preparing the note sheet. After this no reasonable person could possibly contend that this would have no relevance to the enquiry. The I.O. was fully aware of the same and that is why he behaved in such a clandestine fashion. He has disgraced the role he was appointed to play. In our opinion there has been violation of the principle of natural justice and no reasonable opportunity was given to the petitioner. Further, in our opinion the I.O. was biased. Natural Justice (contd.) Non-Supply of documents (contd ) Maharaja Travels : 125. The next grievance of the petitioner is that the documents of Maharaja Travels were not caused to be produced. Further, in our opinion the I.O. was biased. Natural Justice (contd.) Non-Supply of documents (contd ) Maharaja Travels : 125. The next grievance of the petitioner is that the documents of Maharaja Travels were not caused to be produced. Sri S. Sengupta a partner of Maharaja Travels, and who was one of the persons who made statements to C.B.I. was examined as one of the Prosecution Witnesses on 16th of February, 1979 when his statement before C.B.I. was exhibited. He was also cross-examined and re-examined on that date. It is alleged in the petition that the Enquiring Officer directed one of the witnesses viz. Sri S. Sengupta of M/s. Maharaja Travel to furnish the following information and records :-(1) Whether he had any rate for package tour from Calcutta to Kashmir other than the two rates mentioned in his statement i.e. Rs. 700/- per adult and Rs. 600/- per adult, (2) Whether he received any amount from our party in addition to the total amount of the money receipts bearing Nos. 120, 121 and 122, (3) Whether he entered in his cash book as refund of the amount stated to have been refunded to Sri K. Mitra at Kashmir. (4) Current Money Receipt Book and relevant cash book of M/s. Maharaja Travels. This is also repeated in petitioner's letter to I.O. dated 27th of March, 1979. This is also not denied or disputed. By his letter dated 19th February, 1979 addressed to the Inquiry Officer, the petitioner requested him to furnish the documents specified therein including the relevant Cash Book and current Book of Maharaja Travels. It may be pointed out that earlier during the sitting held on 10th January, 1979 the petitioner had asked that various documents will be required for examination, for taking extract and making copies. These included the relevant cash book and current money receipt book of Maharaja Travels. By another letter dated 27th March, 1979 the petitioner pointed out that during the hearing on 16th of February, 1979 Sri Sengupta was asked by I.O. to furnish the following information and documents. (a) Whether M/s. Maharaja Travels had any rate for package tour from Calcutta to Kashmir other than the two rates mentioned in his depositions i.e. Rs. 700/- per adult and Rs. (a) Whether M/s. Maharaja Travels had any rate for package tour from Calcutta to Kashmir other than the two rates mentioned in his depositions i.e. Rs. 700/- per adult and Rs. 600/- per adult (vide proceedings of the hearing held on 16.2.79), (b) Whether he received any amounts from our party in addition to the total amount of the money receipt bearing numbers 120, 121 issued to the party (vide the proceeding of the hearing held on 16.2.79), (c) Whether the amount stated to have been refunded to Shri K.K. Mitra at Kashmir had been entered in the Cash Book of M/s. Maharaja Travels as refund (vide proceedings of the hearing held on 16.2.79), (d) Current Money Receipt Book and the relevant Cash Book of M/s. Maharaja Travel for verification. The petitioner stated that the above information and documents are essential for preparation of his defence and accordingly the I.O. was requested to supply him with those information so as to enable him to prepare written defence statements. It was further stated that the enquiry had not yet been concluded and after examination of the defence witnesses as mentioned earlier and receiving the above mentioned information and documents, he would be in a position to prepare his written defence statement. 126. In reply thereto by a letter dated 26th May, 1979 I.O. informed the petitioner that he had neither received the information nor the records from Maharaja Travels. It was further stated that efforts were made by I.O. for production of such records in the enquiry. It was further stated that he was not in a position to produce such records in the enquiry. What efforts had been made had not been disclosed either in the said letter or any other contemporaneous document. In our opinion, it was the duty on the part of the I.O. to make all attempts for the purpose of obtaining the necessary information and necessary documents from Maharaja Travels though it is not a Government concern. This case involves the package tour arranged by Maharaja Travels and the question was what was done by Maharaja Travels in respect of the petitioner and others including Samar Dey. He had applied for L.T.C. on the basis of such package tour and particularly the money receipt of Maharaja Travels. One at the grievances of the petitioner was that he has been misled by Maharaja Travels. He had applied for L.T.C. on the basis of such package tour and particularly the money receipt of Maharaja Travels. One at the grievances of the petitioner was that he has been misled by Maharaja Travels. According to the petitioner, the substantial corroboration of the same in the enquiry regarding Samar Dey was that there was identical money receipts issued by Maharaja Travels to others. The charge against the petitioner is that he had "procured" the certificate from Maharaja Travels. If such receipt had been granted by Maharaja Travels in normal course as they had done in other cases, this would not amount to "procurement" or "misconduct" as alleged in the charge sheet. Under these circumstances, in our opinion, such information or document was necessary for the purpose of defence of the petitioner and the I.O. not having taken appropriate steps for the purpose of production of the same, has acted in violation of the principles of natural justice. No "reasonable opportunity" was afforded to the petitioner. Natural Justice (Contd.)-Refusal to allow cross-examination/examination of P. Roy Choudhury: 127. The next aspect on the question of violation of principles of natural justice is the refusal by I.O. to allow cross-examination or examination of P. Roy Choudhury by the petitioner which be asked in view of certain statements made by him in Dastidar's case. Dastidar was similarly charged with and upto a stage a joint enquiry was being held. By a letter dated 14th of February, 1979 the petitioner informed the I.O. that Sri P. Roy Choudhury, who was his Controlling Officer and who sanctioned his L.T.C in his deposition in the hearing of the enquiry against Shri Dastidar, made some statements of vital importance so far as arriving at the truth of the case as well as preparation of his defence are concerned and that the said statement was equally applicable in his case also. It was stated that in view of the same it was felt by the petitioner that the said Shri P. Roy Chowdhury should be further Cross-examined or examined as the case may be. Accordingly, I.O. was requested to recall Sri Roy Chowdhury to the inquiry and if necessary as a defence witness. It was recorded that Shri Roy Chowdhury was at that time at Calcutta and it was expected and it was not difficult on his part to attend the enquiry at once if requested. Accordingly, I.O. was requested to recall Sri Roy Chowdhury to the inquiry and if necessary as a defence witness. It was recorded that Shri Roy Chowdhury was at that time at Calcutta and it was expected and it was not difficult on his part to attend the enquiry at once if requested. This was rejected by the I.O. by his letter dated 15th of February, 1979 without giving any reason. It is to be pointed out that Roy Choudhury gave his evidence in the enquiry as a prosecution witness on 2nd of February, 1979. 128. In our opinion, such rejection of the prayer without giving any reason was not justified in the facts and circumstances of this case. The reasons put forward by the petitioner were justified reasons. As the petitioner sought to call Sri Roy Choudhury in view of such statement made by him such prayer should have been allowed particularly when it is nobody's case that Roy Choudhury was not available. By such arbitrary and peremptory refusal, the defence of the petitioner was prejudiced. In our opinion such rejection amounts to violation of the principle of natural justice. Natural Justice (contd.) Refusal to allow further examination of Sri B. Sarkar. 129. The next complaint of petitioner is with regard to the refusal of the I.O. to allow the prayer of the petitioner made on 7th of February, 1979 requesting that Sri B. Sarkar be directed for further examination on some soecific points. Sri Sarkar, who was P.W.5 in the enquiry, was examined and cross-examined on 6th of February, 1979. On the very next day, such request was made by the petitioner on the ground that in reply to the question made by P.O. during re-examination (though objected to by the defence counsel) it was observed that the answer given by the witness was quite contradictory to the replies made by him during the cross-examination by the defence counsel on 6th of February, 1979. This prayer of petitioner was not acceded to by the Investigating Officer. In fact, no reply was even given to the same irrespective of the fact that such request was made on the very next date. Sarkar was an officer of the department itself. There is no question of his evidence not being necessary or he not being available. This prayer of petitioner was not acceded to by the Investigating Officer. In fact, no reply was even given to the same irrespective of the fact that such request was made on the very next date. Sarkar was an officer of the department itself. There is no question of his evidence not being necessary or he not being available. Under the circumstances we are of the opinion that not according the prayer of the petitioner prejudiced the defence case of the petitioner. In our opinion, such action and conduct on the part of the I.O. was in violation of principle of natural justice. Violation of Statutory Rules : 130. Another ground of attack against the conduct of enquiry by the I.O. was that by a letter dated 17th February, 1979 the petitioner was asked to furnish the name of his defence witness by 19th February i.e. even before the conclusion of the prosecution case. It may be pointed out that in this context I.O. purported to conclude the hearing on 7th March, 1979 as would appear from the Minutes of the same. Previously thereto also the petitioner was asked to submit such list. This is contrary to Rule 11(16), 11(17), 11(18) and 11(19) which we have set out hereinabove. 131. From the aforesaid, it is clear that only when the case for the disciplinary authority is closed, then and then only the charged officer may be required to state his defence. It is also clear that the question of evidence on behalf of the charged officer can only arise after the case of the prosecution is closed. Admittedly at the relevant time, such case was not closed. Rule 11(16) itself was not attracted at the relevant time. Accordingly the question of application of Rule 11(17) at that time did not also arise. It is to be pointed out that such rule does not even authorise the I.O. to give any such direction. Therefore, there was non-compliance of the Rules. As there was no lawyer to guide him, the petitioner was compelled to submit the names of the defence witnesses which he did on 19th of February, 1979. This was not merely a case of violation of a Rule simplicitor, but this went to the root of the matter and it affected the preparation of the defence by the petitioner. 132. There is another aspect of the matter. This was not merely a case of violation of a Rule simplicitor, but this went to the root of the matter and it affected the preparation of the defence by the petitioner. 132. There is another aspect of the matter. From the minutes of 7th March, 1979 it would appear that the I.O. requested the P.O. to submit his written brief in support of his prosecution so as to reach the enquiry Officer by 20th of March, 1979 stating that "the bearing in this case was concluded". Before this was recorded the petitioner was requested in the said meeting to state whether or not he wished to admit any of the charges in view of the evidences marshalled against him by the Disciplinary Authority and it was recorded by the I.O. that the petitioner did not admit any of the charges. The petitioner submitted the list of the witnesses on the 19th February, 1979 but no step was taken by I.O. to arrange for the production of the witnesses. As would appear from the rules aforesaid, question of submission of any written brief by the I.O. at that stage could not and did not arise. As already stated, after the close of the case of the Prosecution i.e. after the P.W. witnesses examinations were over, the next step was that the charged officer shall be called upon to state his defence. A copy of the statement of defence if it is in writing is to be given to the Presenting Officer. Only thereafter, that the evidence on behalf of the charged officer was to be produced. Thereafter the I.O. may, after the close of the case of the employee and shall, if the agency employee has not examined himself generally, question on the circumstances appearing against him in the evidence for the purpose of enabling the Agency employee to explain any circumstances appearing in the evidence against him. Sub-rule (19) of Rule 11 it provides that after the completion of the production of evidence, the inquiring authority may hear the Presenting Officer and the Agency employee concerned or permit them to file written briefs of their respective case. Sub-rule (19) of Rule 11 it provides that after the completion of the production of evidence, the inquiring authority may hear the Presenting Officer and the Agency employee concerned or permit them to file written briefs of their respective case. In this case without complying with the provisions of sub-rules (16), (17), (18) and (19) of Rule 11 the Presenting Officer was directed to submit his written brief on the 7th March 1979 wrongly declaring that the hearing of the case was concluded and without complying with the condition precedent to the exercise of proper under sub-rule (20). It was not proper on the part of the I.O. at that stage, to accept any such written brief from the Prosecution in view of the said rules. The petitioner objected to the same again on 27th March, 1979 staring that enquiry cannot be completed as he has not examined defence witness. The I.O. remained silent for about two months inspite of the letters dated 25th April, 1979 and 8th May, 1979 by the petitioner. On 26th May, 1979 the I.O. stated that if the defence witness and relevant records available in the office of I.J.I.R.A and cross-examination of the enquiry will support the statement then he had no objection. That is the peculiar attitude adopted. In our opinion such blatant disregard of the relevant rules has prejudicially affected the petitioner. These Rules are meant for the purpose of affording an opportunity to the accused officer to defend himself against the charges preferred against him. It is not a question of mere violation of some rules. It is the question of violation of the norms laid down for the purpose of having a real enquiry. Such norms have been given a go bye and I.O. made a mess of the enquiry. Naturally the petitioner who was without any lawyer did not know what to do about this matter. It was submitted by Mr. Ginwalla that the I.O. did not have the Rules before him. That is a lame excuse. The I.O. had on business to act in "ignorance" of the rules. This aspect of the matter should be looked into in the background of the conduct of enquiry by the I.O. as a whole which we have already discussed and which we shall also discuss hereinafter. These Rules are meant to set out a norm for providing adequate safeguard to the petitioner. This aspect of the matter should be looked into in the background of the conduct of enquiry by the I.O. as a whole which we have already discussed and which we shall also discuss hereinafter. These Rules are meant to set out a norm for providing adequate safeguard to the petitioner. In our opinion the Inquiring Officer acted improperly and illegally in blatant and flagrant defiance and violation of the Rules. The enquiry was a sham enquiry. It had prejudicially affect the petitioner's chance for having a proper hearing to prove his innocence. Bias-Inquiry Officer. 133. The next question is whether the Inquiry Officer was biased. In this context we may point out that in the real question is not whether there was actual bias but whether there was a real likelihood of bias. As pointed out he had entered into a private correspondence, had several private telephonic conversations and private visits with I.J.I.R.A. without informing the petitioner. 134. There is another aspect of this matter. In this case from time to time the Inquiry Officer has been contacting the disciplinary authority. We are unable to accept the contention of Mr. Ginwalla that because the Inquiring Officer has been appointed by the disciplinary authority, the disciplinary authority was entitled to give directions to the Inquiring Officer from time to time as to the manner in which he will conduct the enquiry or that the I.O. is entitled to seek such "guidance" from the D.A. from time to time as to the manner in which he is to conduct the enquiry. We reject such contention an authority entrusted with a discretion, must not, in the purported exercise of its discretion, act under the dictation of another body or person. De Smith's Judicial Review of Administration Action, 4th Ed. page 309. This is also not supported by the Rules. At the best, the I.0. may keep the disciplinary authority aware of the proceeding before time e.g. by sending the minutes of the hearing before but whatever decision has to be taken regarding the manner of conducting the enquiry including giving any direction of taking any direction regarding any prayer of charged officer, has to be taken by the Inquiring Officer himself. may keep the disciplinary authority aware of the proceeding before time e.g. by sending the minutes of the hearing before but whatever decision has to be taken regarding the manner of conducting the enquiry including giving any direction of taking any direction regarding any prayer of charged officer, has to be taken by the Inquiring Officer himself. There are two stages in the matter when such enquiry is entrusted to some other officer by D.A. at the enquiry stage and the stage thereafter i.e. when the enquiry is completed and the report is submitted before the disciplinary authority. The charged officer is to try to convince the Inquiring Officer about his innocence and he is also entitled to repeat the same before the disciplinary authority when the report comes up before him for the purpose of consideration as to what order is to be passed on the basis of such report. It is also open to the charged officer to convince the disciplinary authority that no proper hearing took place and the manner of conduct of enquiry was illegal or improper. This will be supported by Rub 12(1) which empowers the disciplinary authority to remit the case to the Inquiring Officer. If the I.O. acts at the dictate of the disciplinary authority regarding the conduct of the enquiry, then there is no independent application of mind by him and no independent enquiry as such. In that event it is not a real enquiry at all. Further when the enquiry is conducted in the manner dictated by the Disciplinary Authority any complaint made against the same by the charged officer to the disciplinary authority after the report stage would be useless and infructuous. 135. However, we shall consider the question as to whether in the facts of this case the I.O. had acted at the dictate of the Disciplinary Authority or whether he had applied his mind independently. In this connection we shall rely on the records produced on behalf of the appellant at the time of hearing of this appeal which was not disclosed before. The Inquiring Officer was appointed by an order of the disciplinary authority dated 4th August, 1977. By his letter dated 18th August, 1977, he requested the Disciplinary Authority to appoint the Inquiring Officer. The Inquiring Officer was appointed by an order of the disciplinary authority dated 4th August, 1977. By his letter dated 18th August, 1977, he requested the Disciplinary Authority to appoint the Inquiring Officer. By a letter dated 19th September, 1977 addressed to the Disciplinary Authority be stated that certain documents were necessary to start the enquiry. He again wrote a letter on 29th September, 1977. This refers to certain discussions he held with the Director. He sought to seeked certain direction regarding holding of the enquiry. By another letter dated 5th December, 1977 he referred to the preliminary enquiry held on 3rd of December a copy of the records of which was sent to the D.A. He has referred to the question No. 4 in the said enquiry whereby the petitioner has asked for a number of documents as referred to above. He also referred to reply to 4(b) and 4(f). The Inquiring Officer sought for the "guidance" of the Director in this matter. By another letter dated 27th December, 1977 he informed the Disciplinary Authority that he had received a letter from the C.B.I. requesting him to intimate to their office about the development of the hearing of the case. He asked for "clarification" on the matter. By a letter dated 6th January, 1978 the Director informed the I.O. that it would not be proper to keep the office of C.B.I. posted with the development of the hearing of the case. He was informed that as Inquiry Officer he was under obligation the conduct enquiry independently and also to ensure that the rules of natural justice are duly complied with. It was further pointed out that all opportunities should be given to the officers concerned to defend their cases adequately. By another letter dated 30th January, 1978 Mr. Majumdar informed the I.O. to conduct inquiry in accordance with the rules independently. Reference was also made to another letter of the Director dated 18th January, 1978 which was not produced before us. By his letter dated 22nd April, 1978 the I.O. informed the Director about the stand taken by the petitioner regarding the defence counsel. This letter refers to a letter of 1st April, 1978 which was not disclosed before us. Another letter was written on 15th May, 1978 to Mr. By his letter dated 22nd April, 1978 the I.O. informed the Director about the stand taken by the petitioner regarding the defence counsel. This letter refers to a letter of 1st April, 1978 which was not disclosed before us. Another letter was written on 15th May, 1978 to Mr. Majumdar by the I.O. in which copy of the letter received from the petitioner regarding the defence counsel was enclosed. He wanted clarification as to whether all the three persons should be engaged. On 3rd July, 1978 the I.O. wrote to D.A. referring to the letter dated 24th of June, 1978 from Shri B.D. Roy. Dy. Director (Accounts) in which he had mentioned that he had a verbal discussion with the 2 Inspectors of Police in the C.B.I. who had been dealing with the cases of Sarvasree Kalyan Kumar Mitra and Amalendu Dastidar, Assistant Directors of this office. It was stated that in his results of discussion Shri Roy has mentioned that the C.B.I. would be giving documents in original only and not furnish any certified copies so far as documents mentioned at 'A' of Shri Roy's letter dated 24th February, 1978. In regard to (c) of Shri Roy's letter dated 24th of February, 1978, C.B.I. had agreed to give only one copy each of the statement of witness duly attested. These documents would be made available to Shri Roy on or around the 7th of July, 1978. 136. The I.O. requested the D.A. for a clarification as to whether the original documents should be typed and handed over to the persons concerned or they should be only shown to them and they may be allowed to take extracts from those. It was further stated that on the date of writing of the said letter the I.O. had received a letter each from Shri Kalyan Kumar Mitra and Shri Amalendu Dastidar copies of which were forwarded therewith. It was stated that from this letter it will be seen that they had now agreed for 2 officers of EIC/EIA as their defence counsel in Shri G.C. De, Joint Director EIC, Calcutta and Shri I.P. Kapoor, Asstt. Director EIA, Calcutta (Jute). The I.O. also stated that he had also received a letter on that day from Shri B.D. Roy requesting for permission for Shri A.K. Basu DD (Admn.) to assist him in this case. The copy of the letter was enclosed. Director EIA, Calcutta (Jute). The I.O. also stated that he had also received a letter on that day from Shri B.D. Roy requesting for permission for Shri A.K. Basu DD (Admn.) to assist him in this case. The copy of the letter was enclosed. The I.O. expressed that he felt that the request of Shri Roy can be acceded to since similar request for the delinquent officers had been accorded to. He also asked for advising him as to whether Shri Mitra and Shri Dastidar should be informed of granting permission to Shri B.D. Roy. He stated that he will be grateful for the permission of D.A. in this matter. It was further stated that necessary arrangements for the sitting of the hearing can be arranged only after they received the papers from the C.B.I. through Shri B.D. Roy Presenting Officer. On 6th of July, 1978 Mr. Majumdar replied to above stating that copies of documents may be supplied to those officers including showing the originals to them in the course of enquiry. He indicated that he had no objection to the suggestion of I.O. to nominate Shri A.K. Basu, Deputy Director EIA, Calcutta to assist Shri B.D. Roy Deputy Director EIA, Calcutta as requested by Shri Roy. He was directed to inform this to Shri Mitra and Shri Dastidar. The I.O. again wrote a letter dated 9th of August, 1978 to D.A. that in view of D.A.'s letter dated 6th July 1978 he was advising Shri B.D. Roy Deputy Director to obtain the relevant documents from the office of Central Bureau of Investigation, Calcutta I.O. said that he had also ascertained from Shri N.K. Mukherjee Inspector of Police Central Bureau of Investigation Calcutta that they have no other documents excepting those mentioned in Annexure III of Memorandum dated 12 May, 1977. Accordingly it was stated that he will not allow the Presenting Officer to produce any other document other than those mentioned in Annexure III. In this context it may be pointed out that inspite of the same, the statements made by the persons examined by C.B.I. which were not included in such annexure were allowed to be exhibited when the respective witnesses came to depose in the enquiry. Mr. Majumdar replied to the letter of 9th August, 1978 by his letter dated 17th August, 1978 whereby be referred to his earlier letter dated 6th of January, 1978. Mr. Majumdar replied to the letter of 9th August, 1978 by his letter dated 17th August, 1978 whereby be referred to his earlier letter dated 6th of January, 1978. By a letter dated 26th August, 1978 Mr. Majumdar enquired of the I.O. regarding the latest position of the enquiry and requested that the enquiry be expedited. By another letter dated 11th September, 1978 the I.O. informed Mr. Majumdar that he has received a letter from the petitioner wherein the petitioner has mentioned that he has submitted an appeal to Mr. Majumdar praying for stay of the departmental enquiry pending against him on grounds mentioned in that appeal. The petitioner had further requested him to stay the enquiry till receipt of the decision of Mr. Majumdar. He stated that accordingly he was not making any arrangement for any further hearing of the case. He asked for the advice of Mr. Majumdar in the matter. By an express telegram dated 29th November, 1978 to Mr. Majumdar, the I.O. asked him for telex instructions immediately to petitioner informing that separate enquiry means separate for Dastidar and Mitra and not with respect to Samar Dey. By his letter dated 18th December, 1978 the I.O. sent him a copy of the proceedings of the enquiry held on 16th of December, 1978. He also enclosed the original of the representation of the petitioner dated 15th of December. Copy of his letter permitting the petitioner to Defence Counsel was also enclosed. Similar action was taken in respect of subsequent proceedings. By a telex dated 14th February, 1979 the I.O. was asking the D.A. as to whether prayer for postponement of the proceedings as made by the petitioner on the ground that one of the Defence Counsel was on leave, should be allowed or not. The petitioner wrote a letter dated 27th of March, 1979 to the I.O. This was with reference to I.O.'s letter dated 23rd of March, 1979 written in reply to the D.A.'s letter dated 19th of February, 1979 which was delivered to the petitioner on the late afternoon of 23rd of March, 1979. The petitioner wrote a letter dated 27th of March, 1979 to the I.O. This was with reference to I.O.'s letter dated 23rd of March, 1979 written in reply to the D.A.'s letter dated 19th of February, 1979 which was delivered to the petitioner on the late afternoon of 23rd of March, 1979. The petitioner stated that he was very much surprised to note the decision of I.O. not to can the officials of I.J.I.R.A. as defence witnesses on the presumption that I.J.I.R.A. was not a Government body and hence the documents of depositions of officers of a non-governmental oganisation like I.J.I.R.A. will be of no use so far as this enquiry is concerned. In this context reference was made to the note sheet dated 25th of November, 1975 by which the L.T.C. claims of petitioner was prepared by the Accounts Department and sanctioned by the Controlling Officer wherein it was mentioned that I.J.I.R.A. was an organisation similar to petitioners and certain clarifications were obtained by Accounts Department from I.J.I.R.A. and D.G.C.I. & S. to get the guidelines for settling L.T.C. claims for package tours like petitioners. It was stated that the purpose of examining a witness in a departmental enquiry is to bring out the truth and hence it is not necessary that a witness should be Government employee or employee of some department which follow the Government rules. As a matter of fact, anybody who can throw some light on the case can be a witness. In the present case so many witnesses were called by the prosecution and were allowed by I.O. who are the employees of non-Government organisation and even private individuals presumably to support the prosecution. In view of the above, there is no justification in not allowing the witnesses from I.J.I.R.A. in the present case, whose examination in his opinion will throw sufficient light on the facts and bring to surface the false and motivated statements made by some of the prosecution witnesses. It was mentioned that the employees of I.J.I.R.A. whose names has already been furnished to the I.O. are material witnesses for the purpose of his defence. It was therefore felt that denial of the opportunity to examine the documents and the defence witnesses as requested in his letter dated 19th of February, 1979 will not only prejudice the cause of defence but also will prejudice the enquiry itself. It was therefore felt that denial of the opportunity to examine the documents and the defence witnesses as requested in his letter dated 19th of February, 1979 will not only prejudice the cause of defence but also will prejudice the enquiry itself. Hence the I.O. was requested to make necessary arrangements for examination of the documents and defence witnesses as requested in his letter dated 19th of February, 1979. It was further stated that during the hearing held on 16th of February, 1979 Shri Sengupta of M/s. Maharaja Travel was asked by the I.O. to furnish the following information and documents: (a) whether M/s. Maharaja Travel had any rate for package tour from Calcutta to Kashmir other than the two rates mentioned in his depositions i.e. Rs. 700/- per adult and Rs. 600/- per adult (vide the proceedings of the hearing held on 16.2.79), (b) whether he received any amount from our party in addition to the total amount of the money receipts bearing numbers 120, 121 and 122 issued to the party (vide the proceedings of the hearing held on 16.2.79) (c) whether the amount stated to have been refunded to Shri K.K. Mitra at Kashmir had been entered in the Cash Book of M/s. Maharaja Travel as refund (vide proceedings of the hearing held on 16.2.79), (d) Current Money Receipt book and the relevant cash book of M/s. Maharaja Travel for verification. 137. The petitioner submitted that since the said information and the documents were essential for preparation of his defence I.O. was requested to supply the petitioner with those information so as to enable him to prepare written defence statement. It was further stated that the enquiry had not yet been concluded and after examination of the defence witnesses as mentioned earlier and receiving the above mentioned informations and documents the petitioner shall be in a position to prepare his written defence statement. In the aforesaid circumstances the petitioner prayed that the time for filing his written statement of defence may by extended. It was stated that he would submit written statement of defence after getting reply of the said letter. By a letter dated 17th April, 1979, in connection with records of I.J.I.R.A. and Maharaja Travels, Mr. In the aforesaid circumstances the petitioner prayed that the time for filing his written statement of defence may by extended. It was stated that he would submit written statement of defence after getting reply of the said letter. By a letter dated 17th April, 1979, in connection with records of I.J.I.R.A. and Maharaja Travels, Mr. Majumdar informed the I.O. that while it is on record that I.J.I.R.A. vide their letter dated 22nd of March, 1979 informed that they were not obligated to settle L.T.C., T.A., D.A. etc. claims of their staff exactly as per Government rules yet it is felt that it would be useful to ascertain from the offices of the I.J.I.R.A. as well as D.G.O.I. & S. the procedure adopted by these officers for settling L.T.C. claims for package tours in respect of their employees who have availed of the package tours conducted by M/s. Maharaja Travels, Calcutta like Shri Mitra and Dastidar. It is stated that the request of these officers to examine the documents and the defence witnesses in this regard will be examined on hearing from the office of the I.J.I.R.A. and D.G.O.I. & S. Regarding the request of the petitioner to furnish certain information from M/s. Maharaja Travels and also some of their documents; it was stated that it was felt by him that M/s. Maharaja Travels, Calcutta may be requested to furnish the same to his office, so that the information can be conveyed to these officers and also the documents/records of M/s. Maharaja Travels may be produced to these officers for their information and/or verification. It seems that the I.O. did not think it fit to act accordingly. The I.O. sent copies of letters received from the petitioner and his letters to and from I.J.I.R.A. by his covering letter dated 19th June, 1979. Similar thing was done on the 30th June, 1979. 138. From the aforesaid it is clear though it cannot be said that Mr. Majumdar has at any stage interfered with the day-day conduct of the enquiry but certainly the I.O. was at every stage asking the D.O. for "direction", "clarification", "guidance" relating to the same and on some occasions the same was provided by Mr. Majumdar. This shows that while concluding the enquiry the I.O. did not act independently and he did not have an open mind but he wanted to please the D.A. who was his superior authority. Majumdar. This shows that while concluding the enquiry the I.O. did not act independently and he did not have an open mind but he wanted to please the D.A. who was his superior authority. He also did not want to displease C.B.I. at whose instance the enquiry was initiated. This particular conduct of I.O. along with others clearly show that the I.O. did not really apply his mind independently and properly. His conduct and attitude throughout does not disclose an intention to hold a proper and real enquiry. Such an enquiry does not require that the procedure to be followed must be the same as followed in a court of law but the principle that "justice must not only be done but seem to be done" is not applicable in respect of the ordinary Courts of Law only. It must be made applicable also in respect of any authority, administrative or quasi judicial, whose decision may prejudicially affect the rights or property of a citizen. His report also reflects his state of mind. It does not record the correct state of facts. It does not properly record the course of proceedings before him. The objections raised have not been properly dealt with by him. It may be pointed out that after a cursory reference to the evidence before him, in an one line sentence he gave his finding. Only after coming to such finding he condescended to deal with the "defence allegations". When already he had made up his mind then there is no use of "dealing" with the "defence allegations'. No actual bias need be proved in such a case. A real likelihood of bias is sufficient, Director Eastern Railway & Ors. v. S.N. Chatterjee & Ors., 1981(1) Cal LJ 305 (D.B.) In our opinion there was not only a "likelihood" but actual bias in the present case on the part of the Inquiry Officer. Accordingly in our opinion this was not a fair enquiry but a sham enquiry. Natural justice-Statutory Rules-violation of-effect. 139. We have considered each heading of complaints on the question of violation of principles of natural justice and the statutory Rules. We have considered the same in details individually and separately. Now let us consider the same as a whole. We do not intend to summarise the same but we shall just refer to some aspects of the same. 139. We have considered each heading of complaints on the question of violation of principles of natural justice and the statutory Rules. We have considered the same in details individually and separately. Now let us consider the same as a whole. We do not intend to summarise the same but we shall just refer to some aspects of the same. Statement of witnesses and the Report of Inquiry which was undertaken by C.B.I. prior to the issue of charge sheet was not supplied even they were asked for and though the charge sheet has based on the same and the disciplinary proceedings were initiated for the same. The examination-in-chief of prosecution witnesses consisted of tendering such statements made by them. Records of inquiry proceedings of Samar Dey, who was similarly situated was not produced. No genuine attempt was made by I.O. to obtain I.J.I.R.A. records and production of witnesses, though from the note sheet sanctioning the L.T.C. claim of the petitioner, it is clear that such sanction was made after enquiry from I.J.I.R.A. On the other hand, the I.O. made secret enquiry regarding the same from I.J.I.R.A. by telephone, by correspondence and by private visits. The same was done behind the back of the petitioner and without giving the petitioner an opportunity regarding the same. The first favourable information given by I.J.I.R.A. was not communicated to the petitioner. Shri Roy Chowdhury and Sri Sarkar were not recalled though they were available. Statutory Rules were given a go-bye. Such Rules were meant for giving the accused person a fair hearing. The enquiry which took place was a sham enquiry. For the reasons given above we are of the opinion that sum total of the same was that there has been a violation of principles of natural justice and violation on the statutory rules in the facts and circumstances of this case. 140. The next question is even if such violation is established, is it still the duty of the charged officer to prove that he has actually suffered prejudice as a result of such violation and if so whether such actual prejudice has been proved in the facts and circumstances of this case. We shall take up this question in relation to the violation of the principles of natural justice first. 141. We shall take up this question in relation to the violation of the principles of natural justice first. 141. In our opinion where there has been a violation of the principles of the natural justice, there is no proper or reasonable hearing and accordingly the proceeding are a nullity. In that case the charged officer does not have to prove further that in fact he has suffered prejudice as a result of such violation. The question is not of actual prejudice but of fair play. As pointed out by House of Lords in the case of General Medical Council v. Spackman, (1943) 2 All ER 337 it is in material whether the same decision would be arrived at in the absence of the departure from the essential principles of natural justice. As Lord Denning pointed out in the Privy Council decision of Annamunthodo v. Oil Fields Workers’ Trade Union, (1961)3 All ER 621 if there is denial of natural justice that itself is prejudice. As so clearly pointed out by Supreme Court in the case of S.L. Kapur v. Jagmohan, AIR 1981 SC 136 the question is not whether any difference would have been met had there been no such violation. The non-observance itself is prejudice and there is no necessity of independent proof of prejudice if there is such violation. The principles laid down in Ridge v. Baldwin (ibid) and S.L. Kapoor v. Jagmoham (ibid) were specifically approved by the subsequent decisions of the Supreme Court in Swadeshi Cotton Mills v. Union of India (ibid) and Olga Tellis v. Bombay Municipal Corporation. The decision of Supreme Court in K.L. Tripathi v. State Bank of India (ibid) is the sole decision in support of the contention urged to the contrary. That decision was given in the fact of that case. It was held therein that absence of cross-examination did not cause any prejudice. No general law was sought to be laid down. The case of S.K. Banerjee v. State of West Bengal (ibid) the only other decision cited in this connection by Mr. Ginwalla was a case of violation of Statutory Rules and not the principles of natural justice. It was held therein that absence of cross-examination did not cause any prejudice. No general law was sought to be laid down. The case of S.K. Banerjee v. State of West Bengal (ibid) the only other decision cited in this connection by Mr. Ginwalla was a case of violation of Statutory Rules and not the principles of natural justice. However in view of the overwhelming decisions of the Supreme Court to the contrary, some of which are subsequent to Tripathi's case, we are of the opinion that law as laid down by the Supreme Court and which is at present binding on us is that where there has been a violation of the principles of natural justice, the further question as to whether any actual prejudice has been suffered, is immaterial and irrelevant. 142. In any view of the matter we are of the opinion that the violation of the principles of natural justice in the facts and circumstances of this case has in fact resulted in causing actual prejudice to the charged officer as he did not get a reasonable opportunity to defend himself. 143. So far as violation of statutory Rules are concerned, statutory rules governing disciplinary proceedings cannot be treated as administrative directions. Where appropriate authority takes disciplinary action under the Rules, it must conform to the provisions of such Rules. If a mandatory provision is not complied with such inquiry and order of dismissal would be illegal. In State of U.P. v. Babu Ram, AIR 1961 SC 751 . Dismissal or removal of an employee in a statutory body in contravention of statutory provisions is illegal. Sukhdev Singh v. Bhagatram, AIR 1975 SC 1331 . Reference may be made in this connection also to Ramana v. I.A.A.I., AIR 1979 SC 1628 . However, if there is any solitary or isolated violation of a Rule which is not mandatory in nature then that may not violate the proceeding as a whole S.K. Banerjee v. State of West Bengal (ibid) R.C. Sharma v. Union of India, AIR 1976 SC 2037 . But in the present case there was gross violation of such Rules in various aspects which Rules are the basis of a fair enquiry. This along with the violation of natural justice on various counts has in our opinion caused prejudice to the charged officer because it was not a fair trial. But in the present case there was gross violation of such Rules in various aspects which Rules are the basis of a fair enquiry. This along with the violation of natural justice on various counts has in our opinion caused prejudice to the charged officer because it was not a fair trial. Refusal of Disciplinary Authority to remand : 144. Next we shall deal with the complaint of the writ petitioner as to the stand taken by the Disciplinary Authority in not remanding the case pursuant to the liberty given by the Court. Whereas it is quite clear that there was no direction given by the learned trial Judge in the first writ petition, however a liberty was given to that effect, that is, it was left to the discretion of the D.A. However such a discretion was to be properly exercised. What he did will be borne out from the relevant note sheet of the Deputy Director dated 17th July, 1980 and his own note sheet dated 19th July, 1980 which are set out hereinbelow : "Submitted below (Flag A) is a letter dated 15th July, 1980 from the Joint Director (A & A) E.I.C. Calcutta regarding the writ petitions filed by Shri Amalendu Dastidar and Kalyan Kr. Mitra in the Hon'ble Calcutta High Court. Calcutta Office has forwarded a copy of the judgment of the Hon'ble Calcutta High Court in the above two writ petitions as well as the advice of................in the above matter. According to............there is no direction upon the disciplinary authority that he shall have to remit the matter to the Inquiry Officer for further inquiry. The disciplinary authority if he so thinks may pass a final order on the basis of the enquiry proceedings already held and the report already submitted by way of awarding punishment as may be warranted as per rules or exonerating the officers from the charges. He has also held that disciplinary authority has given the liberty to appoint another Inquiry Officer in accordance with the rules and if it is decided to have further inquiry the inquiry would start from the point it was left by the Inquiry Officer and accordingly the enquiry need not be a de-novo one. As desired, I have also perused the writ petitions submitted by the above two officers in the Hon'ble Calcutta High Court. As desired, I have also perused the writ petitions submitted by the above two officers in the Hon'ble Calcutta High Court. In this connection paras 82, 86, 87, 89 of the writ petition dated 6th November, 1979 filed by Shri A. Dastidar and paras 85, 90, 91, 92 of the writ petition dated 6th November, 1979 filed by Shri Kalayan Kr. Mitra are relevant to examine the question whether the enquiry proceedings which have been concluded by Shri D.P. Bhattacharjee, Joint Director be again referred to another Inquiring Authority. It may kindly be observed from these paras that according to the petitioners, a further enquiry is designed to penalise them as the enquiry reports already forwarded by the Inquiring Authority, the petitioners believe, do not support the charge framed against them. For consideration. (P. Srinivasan) Deputy Director (Admn.) 17.7.1980 Shri A. Dastidar and K.K. Mitra both Asstt. Directors in EIA, Calcutta vide their letters dated 27.9.79 have, inter alia, stated that they believe that I wanted to examine Shri Sarkar and Biswas again only to fill up the gap in the evidence and such examination is not really for the purpose of giving them further opportunity to substantiate by defence. Earlier vide this office letter dated 14.9.79, those two officers were informed that if they were not willing that two Officers (Shri Sarkar and Biswas) would be further examined on behalf of the disciplinary authority, then these two officers would not be examined and a conclusion will-be drawn up by the undersigned on the basis of the records and evidence already produced in the inquiry. Keeping this in view as well as the submissions made by these two officers in their writ petition referred to above, before the Hon'ble High Court and also the legal advice tendered by and also the fact that the submission made by Shri S.S. Ray, learned Sr. Advocate before the Hon'ble Mr. Justice D.K. Senon 10.7.80 that the entire inquiry may be withdrawn and a fresh inquiry be made by appointing another Inquiry officer under the rules was opposed by the petitioners in the Hon'ble High Court on the round that it would destory the evidences on record in the inquiry which were in favour of these two Officers, the inquiry need not be remitted back to the Inquiry Officer for further inquiry and report. Accordingly, I have decided to pass a final order on the basis of the records of the inquiry, evidences on record witnesses, examined, submissions of the Presenting Officer as well as the Charged Officers, inquiry report and other relevant factors Orders to be conveyed to these two charged Officers have been dictated separately for stencilling. (D.C. Majumdar) Director (Insp. & QC) 19.7.1980 145. In our opinion, the reasons given by him for not remanding the matter are extraneous and it was not a proper ground for refusing to remand this matter. He has first taken into consideration the fact that his decision to examine Sarkar and Biswas was opposed by the petitioner on the allegation that it was being done for the purpose of filling up the gap. This he should not have taken into consideration because subsequently the first writ petition was filed wherein the order was passed by D.K. Sen, J. giving him the liberty to remand the matter. Under these circumstances he should not have taken into consideration the earlier stand taken by the writ petitioner. He had also referred to the submissions made by Mr. S.S. Roy before the learned Judge regarding fresh enquiry and the fact that it was opposed by the petitioner. For similar reasons this should not have stood in his way. It appears that in the meanwhile be had also taken advice of a lawyer. 146. In our opinion this is not a proper exercise of discretion. His decision not to remit back the case but to pass an order of punishment immediately after the order of D.K. Sen, J. was communicated to him, along with the advice of their Calcutta lawyer (whose name we have omitted while quoting the note sheet above), was not in proper exercise of his discretion. Such order should not have been passed so hurriedly without proper application of his mind. In this context it is to be pointed out that the order of the Court and the opinion of the lawyer at Calcutta was communicated to him by a letter dated 16th July, 1980 and he passed the punishment order on the 19th July, 1980. At one stage, after receipt of the enquiry report, he was considering to take some fresh evidence which he was, admittedly, not entitled to do under the Rules. At one stage, after receipt of the enquiry report, he was considering to take some fresh evidence which he was, admittedly, not entitled to do under the Rules. Inspite of the same and inspite of the liberty given by the Court to exercise his power to remand, he acted hastily and on extraneous grounds decided not to remand but passed an order of punishment immediately. 147. On the question of bias, so far as the disciplinary authority is concerned there are two aspects of this matter. So far as the bias regarding initiating the proceedings are concerned was may point out that this was based mainly on the language of the charge sheet. We shall examine this aspect of the matter latter separately. It was also alleged in the petition that the petitioner was an office-bearer of the office union and that the petitioner took part in the complaint made against the director. In this context we refer to paragraph 14 of the petition which is set out hereinbelow :- "Your petitioner states that your petitioner was the Joint Secretary of All India Export Inspection Council/Agency Officer's Association which was a registered Society. The petitioner and other office-bearers of the said Association incurred the displeasure of Sri D.C. Mazumdar, Respondent No. 4 herein, who was previously holding the post of Senior Additional Director as they pointed out certain illegality on the part of the said Officer in the in the matter of Drawing House Building advances; the said Sri D.C. Mazumdar, who was the Senior Officer of the Accounts Department took House Building Advance loan twice in violation of the Rules; it may be mentioned that after it was pointed out by the Association the said Sri D.C. Mazumdar had to refund the House Building Loan taken by him in violation of the Rules. Since then your petitioner and other office-bearers of the Association were not in good book of said Sri Mazumdar. Said Sri D.C. Mazumdar was very much annoyed with your petitioner and other office-bearers of the Association as he had to refund the House Building Advance loans which he drew in violation of the Rules. Since then your petitioner and other office-bearers of the Association were not in good book of said Sri Mazumdar. Said Sri D.C. Mazumdar was very much annoyed with your petitioner and other office-bearers of the Association as he had to refund the House Building Advance loans which he drew in violation of the Rules. The petitioner further states that as Senior Additional Director the said Sri D.C. Mazumdar wanted to shift the Office of the Secretariat from Calcutta to Delhi but that was opposed by the Association and such shifting was not done, said Sri D.C. Mazumdar became very much displeased with the office bearers of the Association as his intention of shifting the Secretariat from Calcutta to Delhi was not materialised. The petitioner also incurred the displeasure of Sri Mazumdar as he, as Joint Secretary of the Association, had to criticise various decisions taken by said Sri Mazumdar" (para 14). 148. With reference to this in paragraph 13 of the Affidavit-in-opposition it was stated by the Director as follows :- "With reference to the allegations contained in paragraph 14 of the said petition, I deny each one of the allegations made therein, I say that the said allegations are, mala fide, vague, devoid of material particulars and have been recklessly made by the petitioner with an ulterior motive and/or as an after thought. It is on record that while the petitioner has allegedly in paragraph 14 that I have drawn House Building Advance twice in violation of the rules, the petitioner in paragraph 98 has stated that I have drawn the said House Building Loan thrice. I say that the petitioner without carrying to ascertain the true facts, made the said frivolous allegations against me with some ulterior motive in desperation. I say that the said false, fabricated, mischievous concocted and mala fide allegations have been deliberately made by the petitioner with a view to malign me before this Hon'ble High Court and/or mislead this Hon'ble Court. I deny that at any stage whatsoever, I had the intention to shift the office of the Export Inspection Council from Calcutta to Delhi. I also deny that I have committed any irregularity in the matter of House Building Advance. I deny that at any stage whatsoever, I had the intention to shift the office of the Export Inspection Council from Calcutta to Delhi. I also deny that I have committed any irregularity in the matter of House Building Advance. I am not aware that the All India Export Inspection Council/Agency Officers Association have ever pointed out any alleged irregularity on my part in the matter of drawing of House Building Advance as alleged by the petitioner. The allegations that the alleged office-bearers of the said unrecognised Association were not in my good book is wholly misconceived and I empathically deny the same. As a matter of fact, the All India Export Inspection Council/Agency Officers' Association had not been recognised by the Export Inspection Councilor Agency. In the Export Inspection Council and Export Inspection Agencies, there are 3 Officers' Association out of which only one officers Association, namely, All India Export Inspection Officers' Association, has been recognised by the Export Inspection Council on 11th October, 1979. I further say that according to my information and knowledge, the allegations now levelled by the petitioner in paragraph 14 of his writ petition were never brought to my notice or the notice of my superior authorities. I came to know of the said allegations for the first time through the writ petition dated 6th November, 1979 filed by the petitioner before this Hon'ble Court I humbly before this Hon'ble Court that such reckless, indecent and sinister imputations levelled against me are smeared with bad faith and polluted by oblique ends. I further submit that the allegations levelled against me by the petitioner have been designed as an after thought to malign me personally who is the disciplinary authority for the petitioner with a view to making out a case attracting alleged biasness and lack of bona fide only to mislead and prejudice this Hon'ble Court. I crave leave to refer to and rely on the records relating to drawal of my House Building Advance at the time of hearing, if necessary. I say that the very fact that the petitioner was promoted to the post of Assistant Director under my orders and the orders of suspension on review was revoked by me, would go to show that I do not have any bad intention against the petitioner whatsoever. I say that the very fact that the petitioner was promoted to the post of Assistant Director under my orders and the orders of suspension on review was revoked by me, would go to show that I do not have any bad intention against the petitioner whatsoever. Had my intention been mala fide in any way, I would have deferred this promotion and continued, the order of suspension passed against him. On the other hand, the action that was taken by me was in the interest of the organisation and was bonafide. Save as what have been stated hereinbefore and save what are matters of record. I deny all allegations contrary thereto and/or inconsistent therewith. In particular I deny that I had drawn House Building Advance in violation of the Rules or that there was or could be any occasion to make any complaint in the matter of re-drawal of House Building Advance. I also deny that I shifted the Head Office from Calcutta to Delhi or had any intention to do so" (para 13). 149. On this aspect of the matter having regard to aforesaid, it is not possible for us to come to a definite conclusion that D.A. had a biased mind while initiating the disciplinary proceeding. He initiated the same at the instance of the C.B.I. and on the basis of their Report. 150. So far as alleged bias in making the final order of punishment it is alleged that because some allegations was made against the Disciplinary Authority in the first writ petition he must have been biased. We cannot entertain any such contention because in that event in every case before some final order is passed the aggrieved person may challenge the proceeding in a writ petition by making some allegation against the Disciplinary Authority and if that was rejected or withdrawn may subsequently challenge the final order on the ground that it was passed because of the allegations made against the disciplinary authority in the first writ petition. Accordingly we do not entertain this contention. Order of punishment-whether harsh and/or disproportionate 151. There is merits in the contention on behalf of the petitioner that the punishment inflicted on him was harsh and disproportionate. In our opinion it is open to a Writ Court to interfere with an order for punishment if the same is found to be harsh and disproportionate. Order of punishment-whether harsh and/or disproportionate 151. There is merits in the contention on behalf of the petitioner that the punishment inflicted on him was harsh and disproportionate. In our opinion it is open to a Writ Court to interfere with an order for punishment if the same is found to be harsh and disproportionate. Reference may be made in this connection to R. v. Barely, 1976(3) All ER 452 at 456 and Bhagat Ram v. State of Himachal Pradesh, AIR 1983 SC 454 (para 15). As we have pointed out, the case of the petitioner and that of Samar Dey was similar. By this letter dated 4th July, 1979 the Director informed that the appeal would be considered after submission of the report of inquiry against the petitioner. However as pointed out hereinabove, he disposed of the appeal as the appellate authority of Samar Dey, one day before passing the order of punishment on the petitioner as his disciplinary authority. On 1st September, 1978, the petitioner asked for stay of the enquiry till the appeal of Samar Dey was disposed of. By his letter dated 25th October, 1978 the Disciplinary Authority turned down this prayer. In this context we may point out that in the order itself no reason has been given as to why such punishment has been imposed. A case is sought to be made out in the affidavit filed in the writ petition to the effect that the petitioner was a class 'A' officer whereas Samar Dey was a class 'C' officer. As no contemporaneous record or document could be produced before us to support the same such explanation is not acceptable to us. It is not genuine. It is merely an afterthought. The situation was similar. There is no reason why in the petitioner's case such a harsh order was to be passed whereas in the case of Samar Dey there was only an order of refund of the excess amount drawn and withholding of increment for one year. In this context it may also be pointed out that not only that Samar Dey was favourably treated but he was promoted immediately after the expiry of one year though his appeal was pending at the relevant time. His appeal was kept pending for unknown reasons or a length of time but during the pendency of the appeal he was promoted. His appeal was kept pending for unknown reasons or a length of time but during the pendency of the appeal he was promoted. Though it is stated in the affidavit that he was promoted because he was the senior-most eligibled candidate but it was not stated that he must be promoted because of such seniority. This aspect of the matter is to be examined in the light of the fact that the Appellate Authority of Samar Dey, who was the Disciplinary Authority in the case of the petitioner has the power of enhancing the sentence under certain circumstances and in certain manner as such appellate authority of Samar Dey under the relevant Rules. However, in this case by having promoted Samar Dey those provisions and those statutory rules for enhancement of sentence was made infructuous and given a go-bye. Once a promotion is made or selection graded is given any adverse remark made or any alleged conduct or misconduct before that, cannot be relied upon for the purpose of taking any action on the person concerned. In this connection reference may be made to (56) State of Punjab v. Dewan Chunilal, AIR 1970 SC 2086 , (57) Collector of Customs v. Rebati Mohan Chatterjee, 1976 CHN 792 and (58) Mr. R. Govindan v. Director of Government Examinations & Anr., 1978 SLR 637. Assistance of a lawyer- 152. On the question of assistance of a lawyer, ordinarily unless the Presenting Officer himself is a legally trained person or when the enquiry involves complicated question of facts or law refusal of lawyer is not a ground for holding the proceeding to be in violation of the principles of natural justice. K.C. Tandon v. Union of India, 1974 SC 1589 at 1593 (para 17). However in the present case simultaneous proceedings were going on against the petitioner both before the Disciplinary Authority and under the Criminal Procedure Code which might have likelihood of a great repercussion. The petitioner's future career, who was holding a high post at the relevant time, was at jeopardy. As it actually happened, in view of the ultimate order of punishment, his career with the Government has come to an end. This is one of the matter which should have been taken into consideration by the proper authority. The petitioner's future career, who was holding a high post at the relevant time, was at jeopardy. As it actually happened, in view of the ultimate order of punishment, his career with the Government has come to an end. This is one of the matter which should have been taken into consideration by the proper authority. Reference may be made in this connection to H.C. Sarin v. Union of India & Ors., AIR 1976 SC 1686 where the enquiry was being conducted in accordance with Rule 1730 of the Indian Railway Establishment Code, Volume I. In the main body of the rule, where a procedure for holding a departmental enquiry has been provided for, three is nothing said in relation to the engagement of a lawyer. Certain notes were appended to the rule. They seem to have been appended not on the basis of the executive instructions but as part of the rule itself. One such note was appended as note 4. Which subsequently became note 3, on September 25, 1956 by the President of India who had framed Rule 1730. This note reads as follows : "In a departmental enquiry the accused railway officer may if he so desires be accompanied by another railway officer provided that the officer so nominated as the defence counsel is approved by the competent authority to act as such, and provided also that the person so nominated shall not be a professional lawyer. The term ‘professional lawyer’ includes those persons who are competent to practice in a court of law." 153. In this context Supreme Court observed as follows : "In face of the above note, treating it as a part of the rule the appellant was not entitled to the services of a professional lawyer Cottwald as it appeals was a lawyer in name but actively in business. The services of a professional lawyer were not necessary to cross-examine him. The fact was a simple one as to whether he had paid money to the tune of about 24,000 D.M, to the appellant from time to time. Even if we treat the note aforesaid as one based merely on the executive instructions and not a part of the rule itself, we see no reason to say that the authority was obliged not to follow the note but to go against it. At the most it had a discretion in the matter. Even if we treat the note aforesaid as one based merely on the executive instructions and not a part of the rule itself, we see no reason to say that the authority was obliged not to follow the note but to go against it. At the most it had a discretion in the matter. The question is whether the discretion was rightly exercised or was it exercised so arbitrarily as to lead to the conclusion that principles of natural justice were violated when the services of a professional lawyer were not made available to the appellant. We gave the answers against the appellant" (para 21). "Great reliance was placed for the appellant on a decision of this Court in (59) C.L. Subramaniam v. Collector of Customs, Cochin, 1972(3) SCR 485 : AIR 1972 SC 2178 . In this case the argument that rule or no rule the services of a professional lawyer should be made available at a departmental enquiry when asked for was not accepted. What was held in that case was that the disciplinary authority brushed aside the request of the appellant before the Supreme Court on a wrong ground completely ignoring the circumstances which were relevant. It was therefore said at page (490 of SCR-(at page 2180 of AIR SC). "Therefore that authority clearly failed to exercise the power conferred; on it under the rule. It is not unlikely that the Disciplinary Authority's refusal 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" (para 22). "In (60) Tara Singh v. State of Rajasthan, (1975) 3 SCR 1002 : AIR 1975 SC 1487 the importance which is to be attached to the note appended the rule has been emphasised by Ray, C.J. delivering the judgment on behalf of the Division Bench of this Court to which one of us (Krishna Iyer, J.) is a party, in these terms:- "The notes are promulgated with the rules in exercise of legislative power. The notes are made contemporaneously with the rules. The function of the notes is to provide procedure and to control discretion. The real purpose of the notes is that when rules are silent the note will fill up gaps" (para 23). The notes are made contemporaneously with the rules. The function of the notes is to provide procedure and to control discretion. The real purpose of the notes is that when rules are silent the note will fill up gaps" (para 23). "The appellant was not entitled as a matter of right to have the services of any railway officer stationed in India to assist him in the conduct of his defence. He wanted an officer from India specially Shri Bhalla. It was not possible to make available the services of an officer from India. The appellant was given a wide field of choice either to choose any railway official stationed in London or in the continent or some other personnel of the Indian High Commission in London. The accusations made against the appellant were not such that required any expert or special skill. The question was a simple one whether he had taken money from Cottwald in discharge of his official duties. Having appreciated all the facts and circumstances of the case we have come to the conclusion that no principle of natural justice was violated in not making available to the appellant the services of Shri Bhalla or any other railway officer stationed in India for the conduct of his defence" (para 24). 154. In the entire background of this case we find a passage occurring at page 803 in the judgment of Lord Denning Master of the Rolls in the case of (61) R. v. Secy. of State for the Home Department ex parte Mughat, (1973) 3 All ER 796 quite apposite to be quoted. The passage runs thus: "The rules of natural justice must not be stretched too far. Only too often the people who have done wrong seek to invoke 'the rules of natural justice' 'so as to avoid the consequences'," (para 25) In the result we find no merit in this appeal and dismiss it with costs. (para 26) 155. In the case of Krishna Chandra Tandon v. Union of India, AIR 1974 SC 1589 the Supreme Court held as follows : “It was next argued that the appellant had asked for the assistance of an advocate but the same was refused. (para 26) 155. In the case of Krishna Chandra Tandon v. Union of India, AIR 1974 SC 1589 the Supreme Court held as follows : “It was next argued that the appellant had asked for the assistance of an advocate but the same was refused. It was submitted that having regard to the intricacies of the case and particularly the ill-health of the appellant, he should have been given the assistance of an advocate and since that was not given there was no reasonable opportunity to defend. The High Court has rejected this submission and we think for good reasons. The appellant was not entitled under the Rules to the assistance of an advocate during the course of the enquiry. The learned Judges were right in pointing out that all that the appellant had to do in the course of the enquiry was to defend, the correctness of his assessment orders. Clear indications had been given in the charge with regard to the unusual conduct he displayed in disposing of the assessment cases and the various flaws and defaults which were apparent on the face of the assessment records themselves. The appellant was the best person to give proper explanations. The circumstances in the evidence against him were clearly put to him and he had to give his explanation. An advocate could have hardly helped him in this. It was not a case where oral evidence was recorded with reference to accounts and the petitioner required the services of a trained lawyer for cross-examining the witnesses. There was no legal complexity in the case. We do not, therefore, accede to the contention that the absence of a lawyer deprived the appellant of a reasonable opportunity to defend himself” (para 17). 156. The other aspect of the matter is that this case proceeded on the basis of the report of the C.B.I. and as a result of the investigation by the C.B.I. Most of the persons who gave evidence before the C.B.I. were examined in the enquiry and the statements made in such investigation were produced before the persons concerned in the enquiry and practically this was the only examination-in-chief. These statements have been prepared by C.B.I. officers who are legally trained persons. These statements have been prepared by C.B.I. officers who are legally trained persons. Further we have discussed about the conduct of the Inquiry by the I.O. which was done in a manner which was highly improper and irregular resulting in violation of the principles of natural justice. Reference may be made in this connection to Board of Trustee, Port of Bombay v. Dilip Kumar, AIR 1983 SC 109 . Charges different from the charges levelled 157. So far as the contentions of Mr. Mukherjee that the charges found are different from the charges levelled, we ought to point out that in the I.O.'s report there is no finding regarding the third part of the change i.e. that the petitioner obtained payment of Rs. 1618.70 as against entitlement of Rs. 226.80 by submitting 'false' money receipt and certificate of journey 'procured' from Maharaja Travels. It does not appear that there is any clear finding to this effect. In any event there is no finding of misconduct. It is to be pointed out that the allegation was not merely that his action was in violation of the provisions of Rule 4 of Conduct Rules regarding “maintenance of absolute integrity” or "acting in a manner unbecoming of a government servant" but it was also alleged that he has committed a misconduct of the nature specified in the charge and accordingly acted contrary to the said Rule. In this connection reference may be made in this case of A.L. Kulra v. P.S. Corporation Ltd. reported in AIR 1984 SC 1361 and Glaxo Laboratories v. Presiding Officer, Labour Court reported in AIR 1984 SC 505 . 158. On the question of charge sheet disclosing a closed mind, we shall consider some of the cases on this point. In the case of Management of Powari Tea Estate v. M.L. Barkajaki & Ors. reported in 1965(2) LLJ 103 a charge sheet was served in which it was alleged that the employee concerned was guilty of three items of misconduct. On the question of charge sheet disclosing a closed mind, we shall consider some of the cases on this point. In the case of Management of Powari Tea Estate v. M.L. Barkajaki & Ors. reported in 1965(2) LLJ 103 a charge sheet was served in which it was alleged that the employee concerned was guilty of three items of misconduct. The charge sheet stated as follows :- It has been brought to my notice, "that you have been taking money from labourers at the time of payment of their wages and also from assisted emigrant labourers when they want to sign 'J' forms and also from non-workers in the lines." The charge sheet further added that Sri Allison had checked on the information furnished to him against Gohain and had been satisfied that Gohain had been guilty of the said misconduct. Gohain was, therefore, called upon to offer his explanation why action should not be taken against him for taking bribes from labour on the estate. The charge concluded with suspension of Gohain with immediate effect. The Supreme Court in this context observed that this charge, no doubt, is not happily worded and the expressions used in it would seem to indicate that the Disciplinary Authority had already made up his mind that the employee concerned was guilty of the misconduct set out in charge. However, the Supreme Court held that in the circumstances of this case it did not purpose to base their decision on this infirmity in the charge. The Supreme Court merely assumed that the charge intended to say that the Disciplinary Authority was prima facie satisfied that a case for enquiry had been made out against the charged officer. 159. The decision in K.L. Tripathi v. State Bank of India & Ors., AIR 1984 SC 273 at page 278 was relied on by Mr. Ginwalla. The language used in the concerned charge sheet was very strong but as no argument was advanced and further there was no finding in respect of the same, we do not think it necessary to deal with the same in detail. 160. In the case of Nripendra Nath Tarafdar v. Union of India & Ors. reported in (1981) Labour and Industrial cases 1268 there was an enquiry against the petitioner. 160. In the case of Nripendra Nath Tarafdar v. Union of India & Ors. reported in (1981) Labour and Industrial cases 1268 there was an enquiry against the petitioner. Thereafter another show cause notice was issued by the punishing authority to the petitioner, inter alia, asking the petitioner to show cause as to why he should not be dismissed, from service. The order of the punishing authority was annexed to the said memorandum asking the petitioner to show cause against the proposed dismissal from service. It appears from the order of the said punishing authority that the said authority after setting out the charges framed against the petitioner had observed to the following effect : "The I.O. found him guilty of the charges. I also agree with his findings. This type of R.K. has no right to stay in the force. So issue show cause notice for removal from service." Before passing any order on the second show cause notice, the petitioner moved this court and the instant rule was issued. It was slated in the affidavit in opposition filed on behalf of the respondents that after considering the representation made by the petitioner on the second show cause notice, the punishing authority had passed the order of dismissal against the petitioner. One of the contentions urged was that the charge sheet as framed against the petitioner has been vitiated on the ground of bias or closed mind. The learned Judge rejected this contention and in this context observed. “After all to avoid any vagueness in the charge sheet, the authorities must clearly state the imputations against the delinquent and pin-point the commission of any alleged offence and/or dereliction in duty. In my view, it will not be proper to consider the charge sheet in a hypercritical manner. The real pith and substance of the charge sheet is to be looked into dispassionately in order to find out whether the disciplinary authority is really proceeding or not with absolutely a closed mind against the delinquent. A bare statement that the delinquent is guilty of the charges will not ipso facto establish a closed mind. In my view, Mr. The real pith and substance of the charge sheet is to be looked into dispassionately in order to find out whether the disciplinary authority is really proceeding or not with absolutely a closed mind against the delinquent. A bare statement that the delinquent is guilty of the charges will not ipso facto establish a closed mind. In my view, Mr. Das is justified in his contention that the charge sheet read with memorandum makes it clear that the allegations were stated and on the basis of the allegations the charges were framed and the allegations on the face showed that the petitioner was guilty of the said charges. But the said documents do not establish that the disciplinary authority had absolutely made up his mind about the guilt of the delinquent.” 161. In the case of the Collector of Customs Calcutta and Ors. v. Biswanath Mukherjee, reported in AIR 1972 Calcutta 401 the expressions used in the charge sheet were "Shri B.M...................was found to be in possession of assets.....................giving rise to a presumption that.....................” The trial court quashed the order in disciplinary proceedings on the ground that the words 'found' and 'giving rise to presumption' indicated bias of the Collector who himself was the punishing authority and the whole proceeding were vitiated the charge being defective and being in violation of principles of natural justice. On appeal the Division Bench held that the two words 'found' and 'giving rise to the presumption' were not enough by themselves to make the charge in this case in limine bad and void on the ground of violation of the principles of natural justice. In this context it was pointed out as follows :- "The proper way of the interpreting charge sheet in disciplinary proceedings is not to be technically and legalistically strict as in the case of a charge sheet in criminal proceedings. It should be fairly and reasonably interpreted in a common sense way to see that there is a plain statement of the thing complained of as wrong so that the party complained against, may be put on his defence to meet the allegation." 162. 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." 162. In the case of Sidheswar Banerjee v. Divisional Superintendent, South Eastern Railway & Ors., 1976 Calcutta High Court Notes 9 (Notes) it was, inter alia, contended that the form of the charges and the way they were expressed indicated formation of prior opinion that the appellant had committed the offence. The charges were under Rules 3(i) 3(ii) and (iii) of the Conduct Rules of 1966 (similar to the present case) for having, taken irregular action in forcing issue of 34 sticks of solder soft weighing 22 Kgs from the custody of Nimpura Carriage shed stores without any requisition and having taken away the same caused loss to the Railway Administration. It was alleged that the appellant connived with Sri K.M. Nag to misappropriate the said Railway materials by arranging replacement of the same by sub-standard quality of solder soft. The, Sub-Divisional Safety Officer enquired into the charges and filed his report. The Divisional Superintendent having agreed with the findings of the Inquiry Officer, that the charges against the appellant had been proved, informed the appellant that he proposed to impose the penalty of removing him from service. The appellant showed cause against, the proposed punishment. However he was removed from service. Against the said order the appellant obtained a Rule which was eventually discharged. In the appeal preferred against the same it was contended, inter alia, that the form of the charge and the way they were expressed indicated the formation or prior opinion that the appellant had committed the offence. In this context it was held as follows :- "In considering the question of natural justice while there is need for caution on the part of the authorities what the form of the charges of the expression used do not disclose any bias or and unfair or closed mind, there also seem to exist some misapprehension about the form of the charges. The charges should be definite and clear and it would not be bad so long as it is made clear that the statements in the form of charges are charges and not findings. The charges should be definite and clear and it would not be bad so long as it is made clear that the statements in the form of charges are charges and not findings. In the instant case if the charges are read as a whole along with the memorandum of which it forms a part, they do not seem to imply a finding already made or indicate a close mind. The addition of the two adjectives 'highly irregular' and 'serious misconduct' in the charges seem to be indicative of the gravity of the charges rather than of a closed mind on the part of the authorities." 163. In the case of Sunil Kumar Mukherjee v. State of West Bengal reported in 1976(2) Cal LJ 529 the charge sheets read as follows : "Charge I: That the said Sri Sunil Kumar Mukhajee, while functioning as M.V. Inspector (Technical) P.V. Deppt. Calcutta during the period from 1965 to 1967 was found In possession of assets disproportionate to the known sources of his income to the extent of Rs. 10,061.02 in 1965, Rs. 2,203.46 in 1966 and Rs. 8,252.80 in 1967 and that his conduct as such is unbecoming of a Govt. servant." Charge II.: That the said Sunil Kumar Mukherjee, while functioning as above permitted his wife Sm. Bharati Mukherjee to purchase a car on 19.7.1965 and sell the same on 9.1.1967 without obtaining prior permission from his appointing authority and this violated Clause (b) of Sub-rule (2) of Rule 15 of the West Bengal Govt. servants Conduct Rules 1959." One of the contentions urged in that case was that the charge sheet shows that authority concerned had a close mind. It was held that the charges as levelled against the petitioner should not be taken as finding of the disciplinary authority regarding the guilt of the petitioner but those are mere imputation or allegation made against the petitioner which is required to be met. This case went on appeal (1977 CHN 1014 at 1020 paras 940) and it was held that it is clear that the officer concerned had a closed mind even at the stage of framing the charge. 164. This case went on appeal (1977 CHN 1014 at 1020 paras 940) and it was held that it is clear that the officer concerned had a closed mind even at the stage of framing the charge. 164. In the case of Sudhir Chandra Chakraborty v. State of West Bengal, 1976(1) Cal LJ 483 the charge was as follows :- "That you are found to be in possession off a property to wit a two storied building on a plot of land measuring about 4.25 cottahs situated at 158, 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 reasonable inference that the said property was acquired by yon 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." The charge sheet subsequently stated as follows :- "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 sum of Rs. 5,000/- stated to have been spent by you after August, 1961 in constructing three living bad rooms and one varandah on the first floor of the building situate at 15 (subsequently numbered 15B) N.N. Ghosh Lane, Tollygunge was mentioned by you in the aforesaid declaration of assets......... (3) That the declaration of assets on.........are materially incomplete, misleading and/or false. 5,000/- stated to have been spent by you after August, 1961 in constructing three living bad rooms and one varandah on the first floor of the building situate at 15 (subsequently numbered 15B) N.N. Ghosh Lane, Tollygunge was 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 Governments' Conduct Rule, 1959 inasmuch as the leasehold land in Siliguri held in the name of your wife was sold......without previous knowledge of sanction of you 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 (Retd.) Special Officer Chief Minister’s Secretariat and Commissioner for Departmental Enquiries under the Vigilance Commission, West Bengal who, have been appointed as the Enquiring Officer for holding enquiry into the aforesaid charges against you, a written statement of your defence and to make any representation that you may desired to make stating whether you desire to be heard in person or to call any witness or to produce any document in your defence, and showing cause why the penalty of dismissal from the Civil Services (Classification, Control and Appeal) Rules, as may be deem fit should not be imposed upon you." 165. In this context it was submitted on behalf of the writ petitioner that the charge sheet and the proceedings thereunder was vitiated by mentioning of punishment therein showing the biasness and close mind of the authority. The Court was as follows : "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 enquiry 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. In view of the enquiry 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 appellant’s contention has no substance in the attending facts and circumstances of the case." 166. In the case of State of West Bengal v. Sati Prosad Roy reported in 79 CWN 38 charge sheet stated that whereas it has been made to appear to the authority concerned "that you have been found guilty". Certain charges were mentioned therein and it was further 'stated-" And whereas for the aforesaid reasons of you are prima facie unsuitable to be retained in the service of 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 Government under clause (vii) of Rule of the Bengal Subordinate Service (Discipline & Appeal) Rules, 1936" it was held that in view of such expressions in the charge sheet about the guilt of the petitioner with the proposal for the dismissal of the petitioner and the final order of dismissal this case was prejudiced. It was held that mere proposal of several punishments in the charge-sheet will not by itself indicate that the disciplinary authority was biased or prejudiced against the delinquent as it indicates the flexibility and openness of mind of the disciplinary authority. This will not vitiate the disciplinary proceedings where in fact the enquiry is held according to the rules and principles of natural justice. It is however desirable that punishments should not at all be mentioned in the charge sheet consistent with provisions of Article 311(2) since proposal for punishment arises only after charges are established. The position however will be different when in the charge sheet the disciplinary authority purposes the penalty of dismissal or other major penalties which may indicate the closed mind of the disciplinary authority and his prejudice against the delinquent. The position however will be different when in the charge sheet the disciplinary authority purposes the penalty of dismissal or other major penalties which may indicate the closed mind of the disciplinary authority and his prejudice against the delinquent. Expressions of such proposals for punishments in the charge sheet before the start of the enquiry may cause reasonable apprehension in the mind of the delinquent that he can has been prejudged which will vitiate enquiry. The cases referred to therein were as follows. Sudhir Chandra Chakraborty v. State of West Bengal, 1976(1) Cal LJ 485, Krishna Chandra Tandon v. Union of India, AIR 1974 SC 1489 : AIR 1970 AP 114 at 117, Sunil Kumar Mukherjee’s case, 1976(2), Cal LJ 529, Bimal Kanti Mukherji's case, 1980(2) CHN 35 . 167. In our opinion the mere use of certain expressions in the charge-sheet in the present case, by itself, is not sufficient to enable us to come to the conclusion that it disclosed a closed mind and that the disciplinary authority issuing the charge sheet was biased. Whether the disciplinary authority is biased or not depends on the facts and circumstances of each case. The language used in the charge sheet itself is not, generally speaking, by itself conclusive. Mere use of certain expressions in the charge sheet without consideration of any thing else cannot he the conclusive factor. In this case it may be pointed out that the charge sheet was Annexure to the main covering letter. The opening words of the covering letter was that the D.A. proposed to hold an enquiry against the petitioner. It was stated that the substance of the imputations of the misconduct in respect of which the enquiry was proposed to be held was set out in the Articles of Charge being Annexure I thereto. This was the Articles of Charge. The statement of Imputation of misconduct in respect of the Articles of Charge was enclosed being Annexure II. In the light of the same the Articles of Charge are to be examined. It is quite clear that these are merely the charges against the petitioner. In our opinion in a case where a disciplinary authority wants to hold a disciplinary enquiry he must be satisfied that there is at least some prima facie case which requires to be enquired into. It is quite clear that these are merely the charges against the petitioner. In our opinion in a case where a disciplinary authority wants to hold a disciplinary enquiry he must be satisfied that there is at least some prima facie case which requires to be enquired into. Merely because there is some allegation against a Government servant, that should not lead to an order directing a disciplinary enquiry. Otherwise this would result in untold and unlimited misery to all Government employees and a boon to other Government or non-Governmental employees who may want to prejudice the career of the employee concerned. Therefore, it is fit and proper that before such a formal statutory disciplinary inquiry is ordered, some preliminary enquiry be made to ascertain whether there is even a prima facie case, that is, a case for a disciplinary enquiry under the Rules. Of-course, there may be some cases where there is already such material and there is no necessity of holding a formal preliminary enquiry. Further absence of such preliminary enquiry does not by itself vitiate a proper domestic enquiry if it is otherwise valid an proper. The admitted position is that in various cases firstly a fact finding enquiry is held in some of which investigation is made by the C.B.I. Upon the findings of these bodies that a decision is taken whether to initiate a disciplinary enquiry. This is a salutary principle and in our opinion where it is shown that an enquiry is sought to be held after such preliminary enquiry, the question of a "closed mind" cannot arise. Mere use of some expression in the charge sheet by itself is not sufficient to hold that the Authority directing such enquiry was biased. Use of the expression "prima facie" in our opinion cannot be held to be bad if it is not joined with any other expression which clearly shows a closed mind. We make it clear that it is not our opinion that in no case a charge sheet can disclose a "closed mind" but we are of the opinion that mere use of certain expressions e.g. "prima facie" particularly when there was such a preliminary enquiry cannot disclose a closed mind. We are of the opinion that from the charge sheet in the present it cannot be held that the disciplinary authority had a "closed mind" at that stage. We are of the opinion that from the charge sheet in the present it cannot be held that the disciplinary authority had a "closed mind" at that stage. We need not refer to the submission of Mr. Ginwalla regarding the subsequent conduct of the disciplinary authority bias cancellation of the order of suspension of the petitioner and the charge of the personnel of the Inquiring Officer because these were events subsequent to the issue of charge sheet and it has nothing to do with question of the state of mind of the Disciplinary Authority at the time of issuing of the charge sheet i.e. whether he had a "closed mind" in issuing the charge sheet. 168. Accordingly all the contentions raised in support of the appeal, excepting the question of validity of the charge sheet and bias of disciplinary authority, fail. We confirm the order of the trial Judge for the reasons given above. The appeal is dismissed with costs. All interim orders are vacated. 169. Prayer is made under section 134A of the Constitution of India for a certificate for leave to appeal to Supreme Court. In this case we have merely followed the general principles laid down by Supreme Court. It is merely application of such principles in the facts and circumstances of this case. Accordingly in our opinion it does not involve any ‘substantial’ question of law whether of the interpretation of the Constitution or otherwise. Further in our opinion there is no question of law involved which in our opinion need be decided by the Supreme Court. In this context reference to be made to the decision in (62) State of Jammu and Kashmir v. Ganga, AIR 1960 SC 356 . Accordingly prayer for certificate is rejected. 170. Prayer is made for stay of the operation of our order. The petitioner has been out of service since July, 1980 and he is not receiving any salary for about 7 years. He has succeeded in two courts. Merely because a Governmental Agency want to have the luxuary of filing a second appeal, is no reason why this court will prolong the agony of the petitioner. In view of the action of the Government Agency the petitioner is not only deprived of his salary but he is also incurring legal expenses which must be huge. Merely because a Governmental Agency want to have the luxuary of filing a second appeal, is no reason why this court will prolong the agony of the petitioner. In view of the action of the Government Agency the petitioner is not only deprived of his salary but he is also incurring legal expenses which must be huge. Accordingly we are not inclined to grant any stay unconditionally or for an indefinite period. Accordingly we direct that if a sum of Rs. 30,000/- is paid to the petitioner by next Tuesday, then there will be a stay of the operation of our order for six weeks from this date. - In default the parties shall and they are hereby directed to proceed on the basis that no order of dismissal was passed against the petitioner and the order passed against the petitioner and the order passed was null and void and has been set aside accordingly and that the petitioner shall obtain all benefits on the basis of the same. Mitra, J. : I agree.