JUDGMENT 1. THIS writ application is directed against the disciplinary proceedings including the charge sheet, the order of suspension, the enquiry report, the order of punishment as contained in the writ petition. The said charge sheet was issued under the heading orders by the Executive Engineer Calcutta (Agri-Mechanical)Division, The petitioner replied to the charge sheet by letter dated 30/12/76, by the said letter, petitioner denied the allegations leveled against him thereat for the petitioner was served with an order of suspension dated 24th August, 1976. The petitioner was, theater, served with a notice as contained in Annexure IX to the application for vacating interim order 2. THE enquiry report shows that as regards charge no, 1 that the Presenting Officer could not produce any evidence as to whether sri Das was apprised of his conduct before recommending any punishment for discharge and warning should be given for improvement of Sri Das as regards, article of charge no. 2, the enquiry officer found "it is not convincing to me that such alleged non-procedural transaction of the store could run with interference of Sri Das. I detract to drag the issue in deviation from the original charge on the basis of such deposition of Sri Das which appears to me one pretext or another to evade the charge and delink his responsibility in the matter. As a store keeper he should have attached importance in transaction of store with his share of responsibility and he should he primarily responsible for any loss or deficiency in the store. There is no charge of this nature as was found. by the enquiry officer that as stores keeper the petitioner was attached with the trans faction of stores with his share of responsibility. Enquiry officer further recommended that Sri Das should be degraded to a post of lower responsibility in a lower pay scale as well as may be asked to make good the loss. Article of charge no. 3 was dealt with by the enquiry Officer. The enquiry officer did not reach his finding as regards the said charge. As regards article of charge no. 4 the Enquiry Officer found the charge to be untenable. As regards, article of charge no. 5 the enquiry Officer held I could not collect any record of evidence to contradict the defence of Sri Das Regarding article of charge no. The enquiry officer did not reach his finding as regards the said charge. As regards article of charge no. 4 the Enquiry Officer found the charge to be untenable. As regards, article of charge no. 5 the enquiry Officer held I could not collect any record of evidence to contradict the defence of Sri Das Regarding article of charge no. 6, the Enquiry Officer held Regarding said other over writing I do not think it to be an act of bad intention of mischief. This is so far I had the privilege to consult papers and records. Thereafter, the petitioner was served with a second show-cause notice which is contained in Annexure X to the application for vacating order. The second show cause notice issued by Superintending Engineer reads thus : " Enquiring Officer has submitted his report against you copy of which is enclosed herewith for your perusal and it is proposed to award the following punishment; 1) Caution for misbehaviour and indiscipline. 2) A sum of Rs. 5,230/- will be recovered towards the cost of 261. 50 Kgs. of scrap copper wire. 3) Reversion to lower responsible post. If you have any' defence against the proposed punishment that-is going to be awarded, you are requested to place call on this office or submit a written statement in defence within 15 days from the date of issue of this letter, failing which I shall have no other alternative but to take exparte decision". The final order passed by the Superintending Engineer dated 2 7th November, 1978 is as follows : - "whereas it appears from the report of the Enquiry Officer that the maximum numbers of the charges framed against sri Arbinda Das, formerly Storekeeper of the office of the assistant Engineer (Agri. Irri. Stores, Calcutta-53) who was placed under suspension since 2/10/76 have been proved during enquiry, Sri Das is hereby reinstated in service and to the said post with effect from 12/10/76. i. e. date of suspension, on compassionate grounds and the following penalties are imposed on him : i) He is hereby cautioned for his misbehaviour and indiscipline; ii) A sum of Rs. 5,2 30/- only towards the cost of 261. 50 kgs. i. e. date of suspension, on compassionate grounds and the following penalties are imposed on him : i) He is hereby cautioned for his misbehaviour and indiscipline; ii) A sum of Rs. 5,2 30/- only towards the cost of 261. 50 kgs. scrap copper wire shall be realised from Sri Das immediately and deposited in T. R. Form No. 7 in favour of the Assistant Engineer (Agri Irrign) Nadia-1, Krish nagar, under the head of account, 105-Agriculture-Misc. Receipts' and the receipted challan shall be produced to the said Assistant Engineer: ii Sri Das is hereby reverted to the post of Works assistant in the scale of pay of Rs. 2 30-425 with effect from the date of his resumption to with effect from the date of his resumption to duties within 7 days on receipt of this order, posting in the assignment of work assistant shall be effected' by the Chief Engineer (Agri)West Bengal. The period of suspension is hereby condoned towards payment of pay and allowances, on compassionate grounds and shall be treated as if on duty. The penalties shall be recorded in the service Book of Sri das". 3. MR. Mantu Bihari Maity, the learned Advocate for the petitioner challenged the entire proceedings including the charge sheet. Mr. Maity seriously claimed and contended that the charge sheet suffered from capsuled mind of the disciplinary authority inasmuch as before holding an enquiry the concerned authority reached his firm conclusion as to" the alleged guilt of the petitioner. Mr. Maity submitted that the disciplinary authority held the petitioner guilty of the charges leveled against him before the holding of departmental proceedings. Certain expressions' used in the charge sheet are : "sri Das has been held personally responsible for the loss of 261. 50 Kgs. Mr. Maity submitted that the disciplinary authority held the petitioner guilty of the charges leveled against him before the holding of departmental proceedings. Certain expressions' used in the charge sheet are : "sri Das has been held personally responsible for the loss of 261. 50 Kgs. of scrap copper wire to the extent to which it may be shown that he: contributed to the loss by his own action"; " Sri Das has been held personally responsible for the loss of bicycles arising from fictitious entries, fraud and negligence;" "it appears that the said Sri Das has been held personally responsible for the loss of fourteen time pieces arising through fictitious entries and framed to the extent to which it may be shown that he contributed to the loss by his own action "it appears that the said Sri Das has been- held personally responsible for tot maintaining; the stock accounts of stores properly for the loss of duplicate keys of stores almirah, store gates excepting key No. 454812 for main store;" "it appears that the said Sri Das has been held personally responsible for over writings and inter potations in the stock registers without cancelling the incorrect entry (if any) with the knowledge of the Head of the Office". 4. THEN Mr. Maity drew the attention of the court to a Memo issued by Assistant Engineer, Nadia being Memo No. 1267 dated 12th march, 1976 addressed to the Executive Engineer. Before the issue of the charge sheet the Assistant Engineer found the petitioner guilty of the charges. It is unknown and foreign to the provisions of West Bengal service Classifications and Appeals Rules, 1971 that before the issue of the charge sheet an Assistant Engineer, subordinate to the Appointing authority, would reach conclusion as to the alleged guilt of the petitioner. Copy of this Memo which was not furnished to the petitioner is quoted below : - Copy of the Memo No. 1267 dated 12/3/76 of Assistant engineer (A-l) Nadia-I, Krishnanagar addressed to Sri K, N. Basu, Ex. Engineer, Kalyani (A-i) Division. Sub ; Irregular and fictious entries in the stock books maintained by Sri. A, Das Ex-Store Keeper (Sub-Division) draft charges against ref : Your Memo No. 3 3s dated 21/1/76. Engineer, Kalyani (A-i) Division. Sub ; Irregular and fictious entries in the stock books maintained by Sri. A, Das Ex-Store Keeper (Sub-Division) draft charges against ref : Your Memo No. 3 3s dated 21/1/76. Putsuanr to the above context I am to inform you that Sri arabinda Das should be charged with the following lapses on the part of the said Store Keeper for not maintaining store books, registers of store materials etc. properly resulting losses, arising through grand fictitious entries and negligence. 1. Sri Das should be held personally responsible for the. loss of 261. 5 0 Kgs. of scrap copper wire 1o the extent to which it may be shown he contributed to the loss by his own action (Vide page No. 46 of Register No. 8 of Condemned materials. 2. Sri Das should be held personally responsible for the loss of bicycles arising from fictitious entries fraud and negligence (Vice page 64 of Register No. 8 of above. 3. Sri Das should be held personally responsible for the loss of fourteen ''time Pieces" arising through fictitious entries and framed to the extent to which it may be shown that he contributed to the loss by his own action (vide page 10 of Stock Book No. 7 of office furniture, tools and plants. 4. Sri Das should be held personally responsible for not maintaining the stock accounts properly for the loss of duplicate keys of stores admiral store gates excepting key no. 454812 for main store. 5. Sri Das should be held personally responsible for over writings and interpolation in the stock registers without cancelling the incorrect entry (if any) with the knowledge of the head of the office". This is reprehensible. Mr. Maity while urging on the question of incurable infirmities which crept in the proceedings referred to the second show cause notice which, according to Mr. Maity, was in complete violation of the provisions of the West Bengal Services (Classifications, control and Appeals) Rules, 1971. Finally the order of punishment was seriously attacked by Mr. Maity on the ground that the said order was in complete contravention of sub-rule (10) of Rule 10. While extending his submission on the ground of viclation Mr. Maity also relied on sub rule (8) and (9) of sub-rule (10. The entire proceeding according to Mr. Finally the order of punishment was seriously attacked by Mr. Maity on the ground that the said order was in complete contravention of sub-rule (10) of Rule 10. While extending his submission on the ground of viclation Mr. Maity also relied on sub rule (8) and (9) of sub-rule (10. The entire proceeding according to Mr. Maity was incurably infected with the breach of provisions contained in the rules framed under article 309 of the Constitution. The Rule was ready as regards service as far as back on 26th October, 1979. No affidavit- in-opposition has been filed. Mr. Maity referred to the judgment of the supreme Court in the case of C. S. Rouji v. State of Andhra Pradesh; air 1964 SC 962 , in support of his contention that there is an imperative need for filing of counter affidavit. In the absence of counter-affidavit averments made in the writ application should be taken to have been admitted. Since there is no affidavit in opposition the basic grievance of the petitioner in the petition goes unchallenged and incontroverted. 5. TURNING back to the facts and circumstances, as regards the prejudged opinion of the disciplinary authority as also the capsuled mind as manifested in the charge sheet, Mr. Maity referred to the judgment of this Court in the case of Sunil Kumar Mukherjee v. State of West bengal, 1977 Calcutta High Court: Notes 1014, Mr. Maity also referred to the judgment of this Court in case of Bimalakanta Mukherjee v. State of West Bengal, 1980 (1) SLR 232 Manindra Nath Ghosh v. State of West bengal 1980 (1) SLR 232 Ram Copal Bhattacharya v. State of West Bengal; 1987 Lab. JC 1617. 6. THIS Court held the charge sheet should not have exposed the capsuled mind of the authority nor should it present any expression having had the effect of prejudged opinion of the authority. As I have already discussed that the charge sheet constituted the firm conclusion as to the alleged guilt of the petitioner. The decisions cited, in my view, fully and squarely apply in the facts and circumstances of this case. Before dealing with the other contentions of Mr. As I have already discussed that the charge sheet constituted the firm conclusion as to the alleged guilt of the petitioner. The decisions cited, in my view, fully and squarely apply in the facts and circumstances of this case. Before dealing with the other contentions of Mr. Maity, it is appropriate for the court to record that the report of the enquiry officer was based on undisclosed records without any mention thereof either in the charge-sheet or without any opportunity of allowing the petitioner to know the extents thereof. Mr. Maity submitted that any reliance of undisclosed records and papers not only operated to the prejudice of the petitioner by reason of whittling down the right of defence, but also the same offended the doctrine of fairness. The enquiry report could not be sustained by reason of the commendations of punishment by the enquiry officer. The enquiry report as also tainted with denial of reasonable opportunity inasmuch as undisclosed' records were relied on without any reference to the petitioner. This amounted to denial of reasonable opportunity which in its turn resulted in violation of the rules of natural justice. It is strange how the proceedings in the facts of the case were conducted in gross violation of the said rules. There was no statement of imputation of misconduct. There was no list of documents by which the charges were to be proved and there was no list of witnesses by whom the charges were to be proved. This amounted to unwarranted departure from the provisions of sub-rule (2) of Rule10 of the said Rules. sub-rule (2) of Rule 10 reads thus:- (2) The disciplinary authority shall draw up or cause to be drawn up - i) The substance of the. imputations of misconduct or misbehaviour into definite and distinct articles of charge; ii) A statement of' imputations of misconduct or misbehaviour in support of each article of charge which shall contain - (a) a statement of relevant facts including any admission or confession made by the Government servant. (b) a list of documents by which, and a list of witness by whom, the articles of charge are proposed to be sustained. 7. THE enquiry proceeding was vitiated by the contravention of the sub-rule (2) of Rule 10 and also incurable infirmities as detailed above. (b) a list of documents by which, and a list of witness by whom, the articles of charge are proposed to be sustained. 7. THE enquiry proceeding was vitiated by the contravention of the sub-rule (2) of Rule 10 and also incurable infirmities as detailed above. In my view, the disciplinary authority committed violation of sub-rule (9) and sub-rule (10) of the said Rules by reason of his failure to consider the record of the enquiry. 8. SUB-RULES (9) and (10) of the Rules are set out hereunder : (9) After the completion of the enquiry, a report shall be prepared and it shall contain - (a) the articles of: charge and the statement of imputations of misconduct or misbehaviour; (b) the defence of the Government servant in respect of each article of charge; (c) an assessment: of the evidence in respect of each article of charge; (d) the finding on each article of charge and the reasons therefore. (10) The disciplinary 'authority shall consider the record of the enquiry and record its findings on each charge, the disciplinary authority did not consider the defence of the petitioner nor did he consider the assessment of evidence in respect of charge nor there was any finding by the disciplinary authority on each charge. Reliance on the undisclosed materials is seriously challenged by Mr. Maity on the ground of violation of the rules of natural justice. The salutary principle is that an adjudicatory body is to decide the matter on the basis of materials placed before it in the course of proceedings. It cannot take extraneous matters into consideration, it cannot base its decision on any material unless the person against whom it is sought to be relied upon has been given an opportunity to rebut or explain the same. Reference may be made to the case of H. Savey and Co. v. Secretary of State for the Environment (1978)1 All. England Reporter 586. If the adjudicatory authority seeks to rely on any materials and evidence both oral. or documentary for reaching his conclusion then the person to be affected by the decision of the said adjudicatory authority must be properly apprised of the undisclosed materials. Right to know the materials on which the authority is relying for taking decision, is a part of the right to defend, one self. or documentary for reaching his conclusion then the person to be affected by the decision of the said adjudicatory authority must be properly apprised of the undisclosed materials. Right to know the materials on which the authority is relying for taking decision, is a part of the right to defend, one self. Non-disclosure of evidence or materials to the affected party has been found to be incurable infirmity in the hearing proceeding. Reference may be made to the judgments in the case of state of Orissa v. Binapani Rai, AIR 1967 SC 1269 ; Sinha Gobindaji v. Deputy Chief Controller of Imports (1962)1 SC3 93, North Bihar Agency v. State of Bihar; AIR 1981 SC 1758 in support of non-disclosure of materials as stated above. 9. IT is further contended by Mr. Maity that enquiry officer acted in breach of the Rules in making the recommendations for the punishment. 10. NEXT contention of Mr. Maity, in my view, has force in it. According to the West Bengal Services (Classification, Control and Appeal)Rules, 1971 it is no part of the function of the enquiry officer to make recommendation for punishment. The contention of Mr. Maity finds support from the judgment of the Court in the case of Sati Prosad Roy v. State of West Bengal; 1979 CWN page 38. The second show cause notice and the final order of punishment there form could not be sustained. The procedure adopted by the disciplinary authority and the enquiry officer., in my view, suffered from flagrant violation of the provisions of the said Rules, as are indicated above. The proceedings, apart from being vitiated by the factors indicated above, could not be sustained on the ground of denial of reasonable opportunity and violation of the rules of natural justice. The impugned charge sheet, the order of suspension, the enquiry report, the second show cause' notice and the order of punishment, in my view, are wholly illegal and they are rendered to be nullity by reason of the violation of the rules of natural justice. 11. THE impugned orders are set aside. The Rule is made absolute and the writ petition is allowed without there being any orders as to costs. 11. THE impugned orders are set aside. The Rule is made absolute and the writ petition is allowed without there being any orders as to costs. Respondents are directed to pay all the service benefits to the petitioner which would have accrued to him had he not been saddled with the orders impugned in the writ petition within a period of 12 weeks from the date of communication of this order. Let appropriate writ do issue. Petition allowed.