ORDER The petitioner on 4.11.1949 joined as a Clerk in Macneill & Barry Ltd and in 1961 he was promoted to the Officer's Grade in River Steam Navigation Co. Ltd. and thereafter in 1965 be became the Financial Adviser and Controller of Accounts of the said Company. 2. On 8.9.67 the petitioner was appointed Deputy Chief Accounts Officer of Central Inland Water Transport Corporation Ltd. (CIWTC, in short) and in 1976 was promoted as Deputy Financial Adviser and Chief Accounts Officer. 3. In the year 1979 the CIWTC Board at its meeting approved the appointment of the petitioner as acting F.A. & C.A.O. and on 21.10.80 he was promoted as Manager (Finance). During 1981 the petitioner on several occasions looked after the work of General Manager (Finance) in the absence of the General Manager. 4. On 8.2.83 a purported charge-sheet dated 1.2.83 was served upon the petitioner, who replied .to the said charge-sheet on 16.2.83 denying all the allegations contained therein. However, on 16.2.83 a purported show-cause notice was served upon him and the petitioner also submitted a reply to the said show cause notice denying the charges. 5. But strangely, without proceeding further with the charge-sheet, the services of the petitioner were terminated in terms of clause 9(1) of the service, Discipline & Appeal Rules of CIWTC Ltd. 6. Against the said order the petitioner moved this Court under Article 226 of the Constitution and he was granted a stay of operation of the order of termination. 7. The CIWTC preferred an appeal against the said order, being F.A. M.T. No. 1604 of 1983 and a Division Bench of this Court healing the said appeal, declared Clause 9(1) as ultra vires Article 14 of the Constitution of India and struck down the same as void. The appeal Court also quashed the impugned order of termination dated 26.2.83 and ordered reinstatement of the petitioner with all arrears of pay. 8. Against that order, the CIWTC filed a Special Leave Petition before the Supreme Court and the Supreme Court by its order dated 6.4.86 dismissed the Special Leave Petition and directed reinstatement of the petitioner forthwith and payment of arrears of pay and allowances etc. 9. The petitioner was thereafter reinstated by an order dated 12.4.86 to the post of Manager (Finance) at the Head Office. 10. 9. The petitioner was thereafter reinstated by an order dated 12.4.86 to the post of Manager (Finance) at the Head Office. 10. On being so reinstated, the petitioner made a representation to the Chairman of the CIWTC for fixation of his seniority and pay protection as well as his confirmation to the post of Manager (Finance). 11. The Corporation (CIWTCI, however, having decided to proceed against the petitioner on the basis of the charge-sheet dated 1.2.83, the petitioner came up before this Court under Article 226 of the Constitution and this Court by its interim Order dated 10.4.87 directed that the preliminaries regarding the initiation of proceedings including appointment of an Enquiry Officer may be made, but no further steps should be taken without the leave of the Court. 12. In the instant writ petition the petitioner has asked for a writ in the nature of Mandamus directing the respondent to confirm him in the post of Manager (Finance) on the expiry of one year probationary period and also to consider his case for promotion to the post of Senior/Chief Manager (Finance) as well as to the post of General Manager (Finance). The petitioner has further asked for an interim order of injuction restraining the respondents from proceeding against him in any manner whatsoever on the basis of the purported charge-sheet dated 1.2.83 and the purported show-cause notice dated 16.2.83, (Annexures "w" and "y" to the writ petition). 13. The respondents in their affidavit in opposition have controverted all the material avernments contained in the writ petition. 14. According to the respondents, there can be no bar for proceeding against the petitioner on the basis of the charge-sheet in spite of the order of reinstatement passed by the Supreme Court. It is also alleged by the respondents that the petitioner has no right to be confirmed in the post of Manager (Finance) or to be promoted further. 15. Subsequently, the petitioner filed a supplementary affidavit stating certain facts and the respondents also filed an affidavit-in-reply thereto. 16. Appearing on behalf of the petitioner Mr. It is also alleged by the respondents that the petitioner has no right to be confirmed in the post of Manager (Finance) or to be promoted further. 15. Subsequently, the petitioner filed a supplementary affidavit stating certain facts and the respondents also filed an affidavit-in-reply thereto. 16. Appearing on behalf of the petitioner Mr. Pal, the learned Counsel, contended inter alia that since the purported disciplinary proceeding relate to certain incidents which occurred during the years 1975 and 1976 and since the petitioner was promoted to the post of Manager (Finance) in the year 1980, there was no reason for his not being confirmed in the said post, particularly when there is no allegation that the petitioner's performance as Manager (Finance) was bad. To the contrary be was made to officiate in the post of General Manager (Finance) during different periods in the year 1981 and part of 1982. It was also contended by him that the charge being stale the respondents should not be allowed to proceed with the same after long 11 or 12 years. And further that the respondents having decided to terminate the services of the petitioner by following a abort cut method and having failed to sustain the said order, they cannot now proceed with the charge-sheet, since in spite of the charge-sheet having been served upon the petitioner and the petitioner having filed a reply thereto, the respondent decided not to proceed with the said charge-sheet. 17. All these contentions of Mr. Pal were seriously controverted by Dr. Tapas Banerjee, the learned Counsel representing the respondents. 18. In order to appreciate the contentious raised by Mr. Pal, it may be relevant to refer to the charge-sheet framed against the petitioner which is Annexure "w" to the writ petition. 19 It appears from the charge-sheet and the annexures thereto that on 23.10.75 orders for purchase of boiler and condenser tubas were placed with Mrs. Sampat Kumar Shantilal by Sri Sisir Kumar Banerjee, Deputy Materials Manager of the CIWTC. Although the materials against the purchase order were received on or about 14.5.76, Sri S.K. Banerjee on 18.12.75 advised the concerned Department to issue cheque against the supplier's proforma invoice dated 12.12.75. After consulting Sri T.K. Sengupta, the then senior Engineer of the Engineering Department and heaving obtained instructions from him. Although the materials against the purchase order were received on or about 14.5.76, Sri S.K. Banerjee on 18.12.75 advised the concerned Department to issue cheque against the supplier's proforma invoice dated 12.12.75. After consulting Sri T.K. Sengupta, the then senior Engineer of the Engineering Department and heaving obtained instructions from him. He petitioner while functioning as the Deputy F.A. and C.A.O. released the said payment to the Firm on 26.3.76. In contravention of the standing rules and also the condition of payment imposed in the purchase order itself, wherein it was clearly indicated that the cheque would be issued against the delivery of the materials. 20. Subsequently, the boiler tubes that were accepted were found to be below specification and/or substandard quality. Some of the said tubes were put in use in a vessel in April, 1978 and the same failed. 21. On the basis of the aforesaid facts the petitioner was charged for having violated the provisions of the Stores Manual in releasing payment of Rs.40,417.98p in favour of the supplier and also for having failed to maintain absolute integrity and devotion to duty as required by Rule 3 of the CIWTC Conduct Rules, 1979. 22. It will, therefore, appear that the incident on the basis or which the aforesaid charge was framed against the petitioner, occurred during the years 1975-76 and it was in the year 1978 that it was detected for the first time that the goods supplied were of substandard quality. Following this the matter was referred to the Central Bureau of Intelligence (CBI in short) and as it appears, an FIR was drawn up by the CBI in the month of July, 1980. Significantly, in the said FIR the petitioner's name did not appear as one of the culprits. Thereafter, the petitioner was promoted to the post of the Manager (Finance) with effect from October 21, 1980. 23. It was contended by Mr. Pal, the learned Counsel for the petitioner, that the petitioner having been promoted by the CIWTC with the knowledge of all the relevant facts leading to the incident. It must be presumed that the alleged involvement of the petitioner in the matter was either not taken note of or was waived and that being so, the charge-sheet issued against the petitioner in 1983 is bad in law. 24. It must be presumed that the alleged involvement of the petitioner in the matter was either not taken note of or was waived and that being so, the charge-sheet issued against the petitioner in 1983 is bad in law. 24. In this connection the respondents in their affidavit-in-opposition to the supplementary affidavit of the petitioner dated 24.12.87, have stated that they bad no knowledge about the involvement of the petitioner in the incident and. It was for the first time that they came to know about it when on August 6, 1981 the CBI communicated its report to the CIWTC Before this the CIWTC received a copy of the FIR on 28.7.80 wherein the petitioner's name did not appear. That being so, when the petitioner was promoted to the post of Manager (Finance) on 21.10.80, the concerned authority had absolutely no knowledge about the petitioner's involvement in the incident. And as such, it could not be said that with specific knowledge about the allegations against the petitioner, he was promoted to the post of Manager (Finance). 25. Mr. Pal, the learned Counsel for the petitioner, seriously controverted the aforesaid contentions raised on behalf of the respondents. According to Mr. Pal, the concerned authority while lodging an information about the incident with the CBI must have had specific knowledge about the role played by the petitioner in the transaction. The petitioner at the material time was Deputy F.A. and CAO and the concerned authority must have known that the payment was released by him against the Rules and also against the specific condition in the purchase order and with such knowledge they promoted the petitioner and that being so, there can be no escape from the conclusion that the concerned authority was not at all serious about the petitioner's alleged involvement to the incident. Not only this, even assuming that the concerned authority had knowledge about the petitioner's involvement for the first time on 6.8.81, the petitioner was thereafter made to officiate in the post of General Manager (Finance) on deferent occasions Mr. Pal, accordingly, submitted emphatically that the facts of the petitioner promotion and officiation in the post of General Manager (Finance) in the circumstances disclosed above, should be deemed to have resulted in the charge covering the period 1975-76, as condoned and/or wiped out and/or waived. 26. Coming to the contention so raised by Mr. Pal. Pal, accordingly, submitted emphatically that the facts of the petitioner promotion and officiation in the post of General Manager (Finance) in the circumstances disclosed above, should be deemed to have resulted in the charge covering the period 1975-76, as condoned and/or wiped out and/or waived. 26. Coming to the contention so raised by Mr. Pal. It is now well settled that to make out a case of implied waiver of a legal right, there must be a clear, unequivocal and decisive act of a party showing such purpose, or acts amounting to an estoppel on his part. 27. Applying the aforesaid test in the instant case, it cannot, in my view, be said that the mere act of giving promotion to the petitioner amounts to waiver of the legal right of the Corporation to proceed against him departmentally for his alleged negligence or callousness verging on misconduct. Even assuming that the Corporation while considering the petitioner for promotion was fully aware of his aforesaid conduct, it is quite likely, in the absence of anything positive to prove otherwise, that the said conduct of the petitioner was not considered sufficient to deny him the promotion otherwise legitimately due to him, particularly when it did not affect the merits of his performance. But that by itself does not indicate that the Corporation waived or abandoned its legal right to proceed against him departmentally for his alleged acts of negligence or callousness in the past. 28. So far the petitioner's integrity is concerned, it is yet to be established that it was not above board. Moreover, the petitioner has also not been charged specifically for having acted in connivance with the two others, namely, Sri Banerjee and Sri Sengupta. And that being so, it cannot be said that with full knowledge that the petitioner's integrity was not "above board he was given higher responsibilities by way of promotion and officiation. 29. In my judgment irrespective of the language of the charge the CIWTC authorities at no point of time sincerely believed that the petitioner's integrity was doubtful and that explains why the concerned authorties even after having received the report of the CBI indicating the petitioner's involvement in the deal, went on vesting in him higher responsibilities by way of officiation as General Manager (Finance) from time to time and there is no indication that the petitioner ever betrayed this trust. But this could never amount to an intentional relinquishment of the right to proceed against the petitioner departmentally for his alleged acts or emissions as mentioned in the charge-sheet. 30. Of course, had the petitioner's integrity been doubted from the very beginning, the conduct of the concerned authorities in promoting him to a higher position and then to allow him to officiate in a still higher position might have been consistent with an intention of such waiver. But the petitioner's integrity, as already seen, never seems to have been doubted. 31. It was next contended by Mr. Pal that previous termination of the petitioner's service by taking recourse to clause 9(1) of the Service, Discipline and Appeal Rules of the CIWTC without proceeding with the charge-sheet, exposes the biased mind of the authorities, reducing thereby the proposed disciplinary proceeding to a farce. 32. This contention, in my view, is rather fallacious since in such a situation frosh enquiry can never be ordered on the basis of a charge-sheet where the Court in a given case sets aside the order of termination of an employee on some technical grounds etc. But this is more often done than not. 33. In Anand Narain Shukla v. State of M.P. (1980) 1 SCC 252 the Supreme Court held that whore the first enquiry is vitiated on technical grounds a fresh enquiry on the same old charge can be held on merits and order of reinstatement following quashing of the reversion order based on the first enquiry would not invalidate the second enquiry. 34. Following this decision the Supreme Court held in the Union of India v. M.B. Patnaik, (1981) 2 SCC 159 that when a departmental enquiry is held bad and reinstatement is ordered, a fresh enquiry can still be held on merits. That being so, the contention of Mr. Pal on this score also cannot be accepted and the proposed proceeding cannot on that ground be stopped. 35. Mr. Pal's next contention was that the charge having been framed against the petitioner long after the alleged incident and this long delay not having been explained sufficiently, it would amount to violation of the principles of natural justice if on the basis of such stale charge a departmental proceeding is allowed to continue. 36. 35. Mr. Pal's next contention was that the charge having been framed against the petitioner long after the alleged incident and this long delay not having been explained sufficiently, it would amount to violation of the principles of natural justice if on the basis of such stale charge a departmental proceeding is allowed to continue. 36. As it appears, the charge relates to an incident of 1975-76 and the facts were revealed to the authority sometime in 1978. In 1980, the matter went to the CBI which submitted its report in August 1981 and the charge was framed against the petitioner in February, 1983. 37. Thus, undoubtedly, there has been a delay of about seven years or so in framing the charge, but it cannot be said that the delay has not been explained. At any event, it cannot be discarded as stale outright. 38. As regards the question of proving the charge after so many years, it should be the headache of the concerned authority. Moreover, it would be more or less a question of drawing an inference from undisputed facts that is, releasing payment to the supplier before delivery and acceptance of the goods allegedly against the Rules and the condition in the purchase order. 39. So, this is not a case where the delay would prejudicially affect the petitioner in substantating his defence amounting thereby to violation of the principles of natural justice. 40. It, must of course, be said that with some amount of diligence on the part of the authority the delay could nave been prevented but it is futile to expect such diligence from Government establishments and public undertakings for divergent reasons. 41. As regards this branch of the case, it was lastly contended by Mr. Pal that the concerned authority having initially elected to terminate the services of the petitioner by a short-cut method rather than proceeding with the charge-sheet the said remedy should be deemed to have been waived by the doctrine of waiver by election of remedies. 42. Black's Law Dictionary (5th Edition) at page 1418 cites the decision in Hertz v. Mills, D.C. Md., 10F Supp. 42. Black's Law Dictionary (5th Edition) at page 1418 cites the decision in Hertz v. Mills, D.C. Md., 10F Supp. 979, 981 where it has been that the "doctrine applies if there exist two or more co-existing remedies between which there is right of election, inconsistency as to such available remedies, and actual bringing of action or doing some other decisive act, with knowledge of facts, whereby the party electing indicating his choice between such inconsistent remedies." 43. I do not however, think that the doctrine of waiver by election can be made applicable to procedures available for a particular remedy. 44. Here, the remedy sought for was to take departmental actions if any against the petitioner. For this, two procedures were available. The Corporation adopted the summary procedure which was found to be bad upto the Supreme Court. I do not think that in such a situation the other procedure or the proper procedure can be deemed to have been waived. 45. Then again, it is not a case where after adopting the particular procedure the Corporation voluntarily wanted to switch bark to the other one, appreciating its impropriety. Here, the procedure adopted was found to be constitutionally bad and was struck down. This means that the procedure initially adopted was not legally and technically available to the Corporation, and as such, the doctrine of waiver by election, in my view, cannot be alleged to raise its head here. 46. As regards the next branch of the case, namely, non-confirmation of the petitioner as Manager (Finance) Mr. Pal's contention was that the petitioner having completed his probationary period of one year satisfactorily there was absolutely no reason for not confirming him to the post. 47. Against this contention of Mr. Pal it was contended by Mr. Banerjee, the learned Counsel for the respondents, that confirmation like promotion could not be claimed as a matter of right and it was for the concerned authority to decide whether the petitioner is fit to be confirmed. 48. In support of this contention Dr. Banerjee relied mainly upon two decisions of the Supreme Court. 49. In Swami Saran Saksena v. Stare of Uttar Pradesh, (1980) 1 SCC 12 as referred to by Dr. 48. In support of this contention Dr. Banerjee relied mainly upon two decisions of the Supreme Court. 49. In Swami Saran Saksena v. Stare of Uttar Pradesh, (1980) 1 SCC 12 as referred to by Dr. Banerjee, the Supreme Court held that whether an officer should be confirmed or not is a matter to be decided by the relevant authority and it is not proper that the Court should preempt its judgment. 50. Similarly in Dhanjbhai Ramjibhai v. State of Gujarat, (1985) 2 SCC 5 the Court held that there was no right in an officer to be confirmed merely because he had completed the period of probation. The function of confirmation implies the exercise of judgment by the confirming authority on the overall suitability of the employee for permanent absorption in service. 51. In the instant case the petitioner was promoted as Manager (Finance) on 21.10.80 on probation. He completed his probationary period of one year on 20.10.1981. But before that, the Corporation received the report of the C.B.I. indicating involvement of the petitioner in the incident which occurred during the year 1975-76. It may be that the petitioner's confirmation was deferred on account of that and it is still being deferred since the disciplinary proceeding against the petitioner is yet to be disposed of. 52. Mr. Pal in this connection referred me to the decision of the Supreme Court in Comptroller and Auditor General of India v. K.S. Jagannathan, 1986 (2) SCC 679 . There the Supreme Court observed that the High Courts exercising jurisdiction under Article 226 can issue directions, orders or writs, so as to enable the High Court to reach injustice wherever it is found and that the High Courts have power to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule etc. 53. This, however is not a case involving confirmation of an officer, Moreover, in view of the facts as referred to earlier, I do not think that this Court should direct the respondents to confirm the petitioner in the post of Manager (Finance) with immediate effect even assuming that such direction could be made. 54. In the above view of the matter, the petitioner is not entitled to the reliefs prayed for. 55. 54. In the above view of the matter, the petitioner is not entitled to the reliefs prayed for. 55. The Civil Rule be accordingly, dismissed without any order for costs and the interim order do stand vacated. 56. The concerned authority of the CIWTC may now proceed with the disciplinary inquiry on the basis of the charge-sheet already issued, if the said authority so desires. 57. However, in case the authority decides to proceed with the enquiry, it should commence within a period of thirty days from this date and should be concluded within a period of sixty days thereafter in accordance with law. 58. This target will not be very difficult to achieve in view of the nature of the charge and also in view of the fact that the petitioner has already replied to the charge-sheet as well as the show cause notice and all preliminaries are complete. 59. It is expected that the petitioner, who had earlier co-operated in the matter by giving his replies to the charge-sheet and the show-cause notice, will again extend his co-operation in the matter of holding of the inquiry. In default, the concerned authority will be entitled to proceed ex-parte in the matter. 60. This Court in this connection sincerely expects that in the matter of holding the inquiry and also in the matter of recording its findings etc. the concerned authority should maintain an unbiased, impartial and detached attitude and avoid the path of vindictiveness so that the entire proceeding may not be vitiated. 61. Verbal prayer for stay of operation of this order made on behalf of the petitioner is considered and rejected. 62. Dr. Banerjee in this connection undertakes not to start the enquiry proceeding before two weeks. Civil rule dismissed.