ORDER 1. This writ application is directed against the chargesheet as contained in Annexure ‘C’ to the writ application, together with the statement or articles of charges. The petitioner replied to the charge-sheet. Thereafter, the petitioner asked for certain documents by which articles of charges were proposed to be sustained against the petitioner. The proceeding thereafter commenced, continued and concluded. Before holding of the enquiry, certain orders which were not shown to the petitioner were passed by the concerned Minister, the Disciplinary Authority recorded certain finding. There is also an endorsement that another allegation has been enquired into by the Vigilance Commission against the petitioner Smt. Santi Chakravarti, although the said allegation does not find place in the charge sheet or it has been made known to the petitioner Many references made in the proceeding file, the xerox copies of which are annexed to the supplementary affidavit are nor produced before this Court. Sri M.R. Konar recorded the statement on 3.9.77 which is quoted below :- “In compliance with orders of Minister-in Charge, Animal Husbandry & Very Services Deptt. conveyed under No. 386/N/AH&VS/77 dated 29.8.77 a detailed report of the case of Smt. Santi Chakraborty under suspension is furnished below:- Suspecting some mal-practice was going in Depot No. Suravi.4 a surprise check by a team on vigilance duty was initiated. It was detected that mal-practice of selling milk was going on. A copy of report dated 23.5.77 is enclosed. On the basis of prima facie charge of mal-practice reported by the vigilance team all the employees involved had been placed under suspension w.e.f. the date of service of the order issued on 16.8.77. The representation of Smt. Santi Chakraborty is returned herewith in original.” 2. Before the issuance of the charge-sheet the presenting (?) officer requested Sri Sukumar Chatterjee, Milk Inspector, to appear before the Enquiry Authority but he did not appear. Thereafter, the Sales Officer by an order dated 15.7.80 informed the Administrative Officer. The ordersheets are incomplete. The relevant documents as regards the ordersheet are not produced before me. Although Mr. Dutt, the learned Advocate for the respondents, took adjournments on that ground on two diverse dates. Only two exhibits were relied, although exhibit no.2 was not proved by the van staff. On the basis of the proceeding thus concluded the Enquiry Officer submitted a report. It appears that the Minister-in-Charge passed a number of orders. Although Mr. Dutt, the learned Advocate for the respondents, took adjournments on that ground on two diverse dates. Only two exhibits were relied, although exhibit no.2 was not proved by the van staff. On the basis of the proceeding thus concluded the Enquiry Officer submitted a report. It appears that the Minister-in-Charge passed a number of orders. Thereafter, the Disciplinary Authority also passed certain orders before the holding of the enquiry. The said orders go to the root of the entire matter. 3. Mr. L.K. Gupta, the learned Advocate appearing on behalf of the petitioner, challenged the entire proceeding on the ground that the enquiring officer recorded that the Milk Inspector and other staff accompanying Sri Subimal Mukherjee refused to attend the enquiry at Central Dairy for certain reasons which were not quite intelligible. The enquiry proceeded, according to Mr. Gupta, on the evidence of only one witness Sri Subimal Mukherjee, Sales Officer who was the enquiring officer investigating into the charges of the van staff in the same transaction. But the report of the enquiring officer, viz. Sri Subimal Mukherjee as regards the other staff was referred to in Charge No.1. The statement of the van staff was proved by Sri Subimal Mukherjee, without adducing he evidence of the van staff Sri Subimal Mukherjee, according to Mr. Gupta, could not prove the exhibit no.2. The Enquiring Officer proceeded in a very perfunctory manner by observing that the petitioner does not come with any proof. The charge is to be proved by the prosecution not by the delinquent. The petitioner in his cross-examination specifically challenged that the checking staff arrived after delivery. Excepting Sri Subimal Mukherjee who is the Investigating Office, no other inspecting staff was examined although such challenge was thrown by the petitioner. Charge No.1 in a very strange and unwarranted manner was sought to be proved by the enquiring officer by holding inter alia that the charge was deemed to have been proved. The deeming provision cannot be applied in establishing the charge. The expression ‘deem’ involves element of fictional aspect. It has also to be held that the enquiry officer himself held that there was a main lacuna in the case lies in there being only one witness. The deeming provision cannot be applied in establishing the charge. The expression ‘deem’ involves element of fictional aspect. It has also to be held that the enquiry officer himself held that there was a main lacuna in the case lies in there being only one witness. The others have for some obscure reasons, preferred not to turn up and thereafter the enquiring officer has no business to say that there is breach of discipline Sri Subimal Mukherjee while presenting the case, sought to add a new charge, that is, charge or corruption. The charge of corruption from references to the charges does not find place in the chargesheet. Mr. Gupta on that aspect severely criticized the action of the enquiry officer. The van staff were not examined. The report as referred to in a very manner was treated to be not relevant but that is referred to. The Charge no.III without any evidence or any assumption of evidence was proved on the ground that the petitioner admitted the charge. The admission of a charge cannot be treated as a conclusive proof of guilt as held by the Supreme Court In the case of K.S. Srinivasan v. Union of India, reported in AIR 1958 SC 419 . 4. Even the Enquiring Officer in respect of Charge No. IV fell into a grave error and illegality by holding inter alia this was not seriously challenged anywhere. The expression 'seriously challenged' is meaningless and then he held that it is taken to have been proved but how the charge could be taken to have been proved is contrary to the basic concept of service jurisprudence. The enquiring officer did not stop there and be further proceeded in his defence. The expression 'apparently'. Is also very unfortunate and contrary to the basic establishment of the charges Then Mr. Gupta referred to page 42 of the writ application where the enquiry referred to the files. A query was put to Mr. Dutt lis to whether the files were exhibited. The answer or Mr. Dutt is in the negative, Mr. Dutt could not satisfy this Court, the challan with the documents as contained in serial Nos. I and II and the statement of Smt Chakraborty against the serial no.4 were not exhibited No explanation could be found nor was advanced by Mr. Dutt The last submission of Mr. The answer or Mr. Dutt is in the negative, Mr. Dutt could not satisfy this Court, the challan with the documents as contained in serial Nos. I and II and the statement of Smt Chakraborty against the serial no.4 were not exhibited No explanation could be found nor was advanced by Mr. Dutt The last submission of Mr. Gupta is that the enquiry officer had no business under the West Bengal Services (Classification Control and Appeal) Rules, 1971. There are certain charges which do not find place In the chargesheet, namely, corruption No charge of malfeasance affecting the reputation of an organisation and expose It in a bad light before the members of the public is made. In fine, the enquiring officer recommended for the deterrent punishment so for as the petitioner is concerned Mr. Gupta in support or his contention referred to the judgment of the Supreme Court In the Case of the Union of India Vs. H.C. Goel. AIR 1964 SC 364 wherein it has been held that the principle that in Punishing the guilty scrupulous case must be taken to see that the Innocent are not punished, applies as much to regular criminal trials as to disciplinary enquiries held under the statutory rules. While referring to the judgment Mr. Gupta summed up his submissions that the statement of the van staff was not proved the charges which did not find place in the chargesheet were taken in to account. On the basis that the charge deemed to have been proved or is taken to have been proved the findings cannot but be called to have been rounded on mere conjectures and surmises. Reference may be made to the case of the Collector of Customs v. Biswanath Mukherjee, 1974 CLJ 251, which relied on the catena of decisions of the Supreme Court on eight grounds: "a) The Tribunal has come to the finding on no evidence. b) The Tribunal has based the finding on materials not admissible and has excluded relevant materials c) The Tribunal has not applied its mind to all the relevant materials and has not considered the same in coming to the conclusion. b) The Tribunal has based the finding on materials not admissible and has excluded relevant materials c) The Tribunal has not applied its mind to all the relevant materials and has not considered the same in coming to the conclusion. d) The Tribunal has come to the conclusion by considering materials which is irrelevant or by considering material which is partly relevant and partly irrelevant e) The Tribunal has disabled itself in reaching a fair decision by some considerations extraneous to the evidence and the merits of the case f) The Tribunal has based its finding upon conjectures surmises and suspicion g) The Tribunal has based the finding upon a view of the facts which could not reasonably be entertained or the facts found were such that no person acting judicially and properly instructed al to the relevant law could have found h) If the Tribunal in conducting the enquiry has acted in flagrant disregard of the rules of procedure or has violated the principles of natural justice, where no particular procedure is prescribed. 5. The contention of Mr. Gupta is that the enquiring officer had no business to make any recommendation for deterrent punishment. The view that I have taken find support of the judgment of this Court in the case of The State of West Bengal & Ors. Vs. Santi Prosad Roy in 79 CWN 39 where the Court of Appeal held that the enquiry officer had no power to make any recommendation for Imposition of deterrent punishment. This tantamounts to a serious and incurable infirmity in the enquiry proceedings. 6. Now, turning back to the final order as contained in Annexure 1 to the writ application, which is seriously challenged by Mr. This tantamounts to a serious and incurable infirmity in the enquiry proceedings. 6. Now, turning back to the final order as contained in Annexure 1 to the writ application, which is seriously challenged by Mr. Gupta on the ground that the amounts to breach of sub rules (8), (9) and (10) of Rule 10 of the West Bengal Services (Classification, Control and Appeal) Rules, 1971 which are set out below: “(8) On receipt of the, requisition referred to in sub-rule (i) every authority having the custody or possession of the requisitioned documents shall produce the same before the Inquiring authority: Provided that if the authority having the custody or possession of the requisitioned document is satisfied for reasons to be recorded by It in writing that the production of all or any of such documents would be against the public interest or security of the State, It shall Inform the inquiring authority accordingly and the inquiring authority shall, on being so informed communicate the information to the Government servant and withdraw the requisition made by it for the production or discovery of such documents (9) After the completion of the enquiry, a report shall be prepared and it shall contain- (a) the articles of charge and the statement or 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 therefor. (10)(i) The disciplinary authority shall consider the record of the enquiry and record its finding on each charge. (ii) The disciplinary authority may, for reasons to be recorded to writing, remit the case to the Inquiring authority for further Inquiry and report, and the inquiring authority shall, thereupon, proceed to hold further Inquiry, as far as possible, according to the provisions laid down in this rule.” 7. (ii) The disciplinary authority may, for reasons to be recorded to writing, remit the case to the Inquiring authority for further Inquiry and report, and the inquiring authority shall, thereupon, proceed to hold further Inquiry, as far as possible, according to the provisions laid down in this rule.” 7. I am of the view that mere parrot like chanting of the disciplinary authorities does not dispense with the requirements of sub rule (10) of rule 10 of the aforesaid Rules which says that the disciplinary authority shall consider the record of the enquiry and accord its findings on each charge The word "consider" Implies active application of mind to the facts and circumstance of the case and consideration of the matter should be made not mechanically but it required consideration of the pros and con of the entire case. The Disciplinary Authority did not discuss the defence of the petitioner nor did he consider assessment of evidence No reason were otherwise shown in support of the Show Cause Notice/order Regarding the charges which does not find place in the chargesheet, reference is made by Mr. Gupta to the judgment of the Hon'ble Supreme Court In case of the State of Punjab Vs. Baktiar Singh, 1973 SLR 85 and the decision of the Appeal Court In the Collector of Customs Vs. Md. Habibul Hoque, 1973 SIR 321. In this case, Anil Kumar Sinha J while speaking for the Court held that the delinquent should not be fastened with the charge which does not find place in the chargesheet. The petitioner was not fastened with the charges of corruption and malfeasance. So the enquiry report proceeded on a charge with which the petitioner was never charged. It is now necessary to record the contention of Mr. Dutt that enquiry proceeding was proceeded properly, validly 'and legally and the enquiry officer did not act illegally and not in contravention of the provision as contained in the West Bengal Services (Classification Control and Appeal) Rules, 1971. 8 Mr. Dutt was repeatedly asked to explain as to how and in what circumstances the then Minister-in-Charge and the Disciplinary Authority before the holding of the enquiry would record certain finding Mr. Dutt could not justify such action of the Minister-In-Charge and also the Disciplinary Authority. 9. Mr. 8 Mr. Dutt was repeatedly asked to explain as to how and in what circumstances the then Minister-in-Charge and the Disciplinary Authority before the holding of the enquiry would record certain finding Mr. Dutt could not justify such action of the Minister-In-Charge and also the Disciplinary Authority. 9. Mr. L. K. Gupta while challenging the action of the respondent particularly, the unauthorised, unwarranted and uncommunicated recording of finding and/or remarks behind the back of the petitioner urged that the present case Involve the doctrine of dictation or In other words, manifestation of act under dictation. Mr. Gupta referred to the judgment of the Supreme Court In case of State of Punjab Vs. Suraj Prakash reported in AIR 1963 SC 507 ; Mounting Corporation v Director of Industries reported in AIR 1956 Mysore 143; Purtubpore Company Limited v Cane Commissioner of Bihar. reported in (1969) 1 SCC 308 . 10. The directions of the Minister-in-Charge as also the Disciplinary Authority before the holding of the enquiry and/or finding reached by the Inquiring Officer have and had the effect of obliterating the provisions of the West Bengal Services (Classification, Control and Appeal) Rules, 1971. Furthermore, the concerned authority the Minister-In-Charge while passing such order cannot use the Inquiring Officer merely as a conduit pipe. The entire proceedings by reason of incurable inffirmities are wholly vitiated Reference may be made to the doctrine of dictation and surrender appearing in H.W.R. Wade. From a Reference to the said celebrated treatise Inescapable conclusion is that the Minister and the Department have several times fallen foul of the same Rule relating to the doctrine of dictation. the English Court held that such doctrine of dictation in effect was to put the decisive power in the hands 'of the wrong Minister and that a decision so taken must be quashed Reference may be made to the following judgments : 1. Lavender Son Ltd. v .Minister of Housing and Local Government (1970) 1 WLR 1231 2 Simms Motors Units Ltd Vs. Minister of Labour (1946) 2 All ER 201 11. On a closer scrutiny of the materials on record and the submission of Mr. Gupta and Mr. Dutt this Court cannot but held that the enquiry proceeding was held perfunctorily. The petitioner was fastened with the charge not charged with. The enquiry report is found upon conjectures and surmises and hypothesis. Minister of Labour (1946) 2 All ER 201 11. On a closer scrutiny of the materials on record and the submission of Mr. Gupta and Mr. Dutt this Court cannot but held that the enquiry proceeding was held perfunctorily. The petitioner was fastened with the charge not charged with. The enquiry report is found upon conjectures and surmises and hypothesis. Hypothetical tests cannot take the place of proof. It is to be noted that other persons who are charged with there was lesser punishment. The Supreme Court in the case Sengara Singh v The State of Punjab AIR 1984 SC 1985 held that in a proceeding person. similarly charged only some delinquent cannot suffer punishment to the exclusion of others and the Supreme Court invoked the Articles 14 and 16 of the Constitution. The enquiry officer had no business to refer to the files and should not have proceed on the past that the "files revealed" If the files were taken into account the petitioner would have given an opportunity of inspecting the files for the purpose of cross-examining the witness. Exhibit 2 was proved without giving the petitioner an opportunity of cross-examining the said witnesses but uncommunicated remarks were relied on without the disclosure thereof to the petitioner. For obscure reasons the witnesses did not appear and also held that there is a main lacuna in that 12. Considering all facts and circumstances of the case, I am of the view that the entire proceeding including the charge sheet should stand set aside. In the event the respondents want to proceed against the petitioner, they must proceed along with the other staff who are equally placed under suspension and thereafter accorded lenient punishment that being the position, the charge sheet to the exclusion of others cannot be sustained and the charge-sheet is also set aside on the ground that now charges were framed in the enquiry report without giving the petitioner any knowledge of the charge beforehand. The application succeeds. The Rule is made absolute. Let appropriate writs Issue. 13. The petitioner shall be accorded all services benefit which would have accrued to him had he not been fastened with the orders impugned, within a period of eight weeks from the date of communication of this order. There will, however, be no order as to costs. 14. Before parting with the case, be it once recorded that although Mr. 13. The petitioner shall be accorded all services benefit which would have accrued to him had he not been fastened with the orders impugned, within a period of eight weeks from the date of communication of this order. There will, however, be no order as to costs. 14. Before parting with the case, be it once recorded that although Mr. Dutt in his usual fairness produced some documents, he took time on diverse dates for producing the other records of the files but he did not produce that same in spite of a writ in the nature of certiorari was issued. The court is precluded from looking into these records. Rule made absolute ; Inquiry proceeding and charge-sheet quashed