Judgment 1. THIS appeal has been preferred by the Calcutta Municipal Corporation against the order dated 14th May, 1991, passed by the court of the first instance on a writ application of respondent/writ petitioner. 2. SHORTLY stated, the facts are that the present writ proceeding, out of which the present appeal arises, was initiated against the inaction of the disciplinary Authority in not complying with the direction to complete the department proceedings within a period of six months from 6th November, 1990 in terms of the order passed by a Learned Single of this Court in an earlier writ application where the writ petitioner and asked for a direction for expedition of the departmental proceedings. By the said order dated 6th November, 1990 the Learned Single Judge of this Court disposed of the said earlier writ application directing, inter alia, that the Enquiry Officer would expedite the proceedings to conclude the enquiry within a period of three months if possible, and the Disciplinary Authority should apply its mind to the case on the basis of the report of the enquiry officer within a period of two weeks from the submission of the report so that the entire departmental proceedings against the writ petitioner over within a period of six months, if possible. Pursuant to the said order the Enquiry Officer concluded the enquiry and filed this report exonerating the writ petitioner from the charges leveled against him. 3. THE Disciplinary Authority did not take any further steps within the period stipulated by the court after sub-mission of the enquiry report. The writ petitioner, therefore, asked for quashing of the proceedings in the writ petition out of which the present appeal arises. By the order dated 14th May, 1991, the Learned Single Judge disposed of the said writ application the following terms : "having gone through the materials on record and considering the submissions made on behalf of the respective parties this Court is of the view that the order passed by Mukul Gopal Mukherji J. , on 6th November, 1990, is very clear and without any reservation. The disciplinary Authority cannot keep the mater in abeyance for seeking further leave of this Court to extend the period. Besides this Court has gone through the materials on record and looking into the enquiry report this Court is not inclined to extend time any further to the Disciplinary Authority. The disciplinary Authority cannot keep the mater in abeyance for seeking further leave of this Court to extend the period. Besides this Court has gone through the materials on record and looking into the enquiry report this Court is not inclined to extend time any further to the Disciplinary Authority. The prayer for extending any time to the Disciplinary Authority is refused. The Disciplinary authority will, however, act in terms of the report of the enquiry officer accordingly. " 4. IN course of the hearing of the appeal, we passed the following interim order on 7th august, 1991 : "by consent this application is treated as an appeal and heard accordingly. After hearing the learned Advocates appearing for the parties and after considering the order under appeal and having regard to the secular facts and circumstances of this case and in view of the facts that the Commissioner did not comply with the order passed by the Court below and did not conclude the Departmental proceedings within the time specified, we are of the view that the following order will meet the ends of justice. a) The order of suspension of the respondent shall stand revoked and the respondent be allowed to resume his duty forthwith. b) He shall be treated as on duty for the entire period irrespective of the order that may be passed by the competent authority on the basis of the enquiry report pursuant to leave granted by this order. He shall be paid all arrears monetary benefits after adjusting subsistence allowance, if any, paid within two weeks from date. c) The Commissioner will be at liberty to pass appropriate order on the basis of the enquiry report submitted to him after taking into account orders passed by the Court of the first instance and also all materials available on records. Such order, however, shall not be communicated to the respondent but shall be placed before this Court in a sealed cover within three weeks from date. In the event the Commissioner considers any materials prejudicial to the respondent and in the event he intends to differ from the reasoning and conclusion of the Enquiry Officer, he will give personal hearing to the respondent before passing the final order. The final order shall be subject to the result of the appeal. In the event the Commissioner considers any materials prejudicial to the respondent and in the event he intends to differ from the reasoning and conclusion of the Enquiry Officer, he will give personal hearing to the respondent before passing the final order. The final order shall be subject to the result of the appeal. If the petitioner is exonerated he will be entitled to all service benefits including the benefit of promotion according to his seniority and qualifications. The entire order is made without prejudice to the rights and contentions of the parties. The appeal is heard in part and adjourned for five weeks hence. All parties are to act on a signed copy of the minutes of this dictated order upon usual undertaking." Pursuant to the said order of this Bench, the Municipal Commissioner passed an order on 13th September, 1991 which is as follows : "seen the order dated 7th August, 1991, of the Hon'ble High court in the case of the Calcutta Municipal Corporation and Ors. v. Dr. S. Wajid Ali and Anr. in Matter No. 4330 of 1989. In pursuance to that the order was passed by Municipal Commissioner dt. 23. 8. 91 where C. M. F. A and C. M. H. O were requested to take necessary actions as per the order of the Hon' ble High Court as mentioned in paragraph (a) and (b) of the said order. "in pursuance to the order of the Hon'ble High Court hearing was fixed on 31. 8. 91. On that day Dr. Aft asked for a copy of the report of the Enquiry Officer and the Dy. L. 0. was asked to hand it over to Dr. All Another hearing was fixed on4. 9. 91 at 11. 00a. M. Dr. All asked for a copy of the order of 31. 8. 91. He was asked to apply for the certified copy of the order dt. 31. 8. 91. Again hearing was fixed on 11. 9. 91 at 3. 00 P. M. On 11. 9. 911 could not take up the hearing as I was out of the office at the relevant time. So hearing was fixed at 2-30 P. M. on 12. 9. 91. At that time. Dr. Ali did not appear. However, it is learnt that notice could not be served on that day. So hearing was fixed on 13. 9. 91 at 11. 30 AM. So hearing was fixed at 2-30 P. M. on 12. 9. 91. At that time. Dr. Ali did not appear. However, it is learnt that notice could not be served on that day. So hearing was fixed on 13. 9. 91 at 11. 30 AM. Dr. All appears. Dr. Ali has given a petition for the exhibits on the basis of which enquiry report was drawn. There is no Justification for giving this as Dr. All submitted on 31. 8. 91 that the High Court directed the Municipal Commissioner, C. M. C. to give him true copy of the enquiry report only. Dr. All submits that he has nothing more to say except what has been stated at the time of enquiry and says that he never threatened Murari Dhar Kanu. The fact of the case is that the accused Dr. S. Wajid All. Health Officer (Maniktala) who was looking after the works of d. H. O.- III, CMC, accepted three hundred-rupee as illegal gratification on 4. 8. 89 at about 131-40 hours, inside the chamber of d. H. C. III from one Shri Murari Dhar Kanu, owner of a coal and kerosene shop at 25/b, Cirish Chandra Bose Road, Calcutta for issuing Health Licence for the said shop. On challenge by the vigilance Officer and the Chief Investigator, namely (1) Sri Pradip mukherjee. (2) Sri Debabrota. Dasgupta and (3) Sri K. P. Chowdhury, it was reported that Dr. S. Wajid Ali brought out some money from his breast pocket of his shirt Including three hundred-rupee notes, the number of which were previously noted by the Vigilance Officer which Dr. S. Wajid Ali accepted from the said Sri Murari Dhar Kanu as illegal gratification. "the matter was enquired into by Sri Ajit Kumar chakraborty, Advocate, who was appointed as an Inquiry Officer. He submitted a report running through page 16, and concluded that the charges against the accused employee has not been proved. On scrutiny of the report it appears that Sri Murari Dhar kanu, owner of a coal and kerosine shop at 25/b. Girish Chandra bose Road, Calcutta, the complainant and principal witness in the case, did not appear before the Inquiry Officer as a witness. It also appears from 'notice' dt 8. 12. On scrutiny of the report it appears that Sri Murari Dhar kanu, owner of a coal and kerosine shop at 25/b. Girish Chandra bose Road, Calcutta, the complainant and principal witness in the case, did not appear before the Inquiry Officer as a witness. It also appears from 'notice' dt 8. 12. 91 from Vigilance Officer to Municipal commissioner that Sri Murari Dhar Kanu, the complainant, met the Vigilance Officer at his office at 12-00 noon on 21. 12. 90 i. e. on the date of hearing and told Mm that Dr. Ali and some unknown persons threatened him with severe consequence, if he appeared as witness. Sri Murari Dhar Kanu met the Presenting officer on 21. 12. 90 at 2-00 P. M. as the enquiry was asked to wait outside the chamber of D. H. C. III where the hearing for enquiry was going on. When Sri Kami's turn came up, he was not found anywhere in the office of D. H. O. III. According to the Vigilance officer, there was reason to believe that Sri Kanu left the place out of fear. Therefore, it appears that Sri Kanu, the complainant and the Principal witness could not appear before the Inquiry Officer for reasons reported by the Vigilance Officer and the accused Dr. Ali cannot definitely be allowed the benefit of doubt on this ground. "it appears from page 5 of the Enquiry Report that "all witnesses have failed to establish the truth of documentary evidence through their oral evidence. " "on scrutiny of the depositions of the witnesses it simply appears that this conclusion of the Inquiry Officer is without any basis. Each witness confirmed the documents. "it has further been stated by the Inquiry Officer in page 5 that "the report of Vigilance Officer dt. 4. 8. 89 is merely a statement of fact and I have gone through it thoroughly but there is no definite clue in that statement through which the guilt of the delinquent employee is established, such as inventory list was not enclosed with the report of Vigilance Officer dt 4. 8. 89, sent to municipal Commissioner. On going through the photocopy of the report of Vigilance Officer it is crystal clear that the facts stated in the report shows that Dr. Wajid Ali accepted the illegal gratification. But this report alone is not sufficient to punish anybody. 8. 89, sent to municipal Commissioner. On going through the photocopy of the report of Vigilance Officer it is crystal clear that the facts stated in the report shows that Dr. Wajid Ali accepted the illegal gratification. But this report alone is not sufficient to punish anybody. It is to be supported by evidence. "It cannot be understood how the report became infractors only because the Inventory List was not enclosed with it while it was submitted to the Municipal Commissioner. The Inventory List, the notes and the seizure list of the V. C. were exhibited as list of documents for the articles of charges framed against Dr. S. Wajidali as Annexure 3. If we go through the enquiry report it is clear that while the report was finalized, the evidence of the prosecution witnesses were ignored for no valid reasons. Sound evidence by even a single witnesses quite enough for success of any prosecution. On scrutiny of the evidence of Sri s. Bandyopadhyay it is clear that Dr. Ali accepted illegal gratification. But it is a matter of extreme regret that no weightage was attached to this evidence of Sri Bandyopadhyay. Under the circumstances, I hold that the Enquiry Report submitted by Sri A. I. Chakraborty is not acceptable. A re-enquiry is to be made." (Emphasis supplied) 5. AT the hearing of this appeal it has been contended before us by Mr. Sankar Mitra karned Advocate far the respondent that Municipal commissioner not only prejudged the issue but also directed a fresh enquiry for obtaining evidence so that the charge against the writ petitioner could be established. It is contended by the learned Counsel appearing for the respondent that under the relevant administrative circulars of the Calcutta municipal Corporation no such de nova proceeding can be initiated by the disciplinary Authority if he does not agree with the report of the Enquiry officer. He contends that there is no specification rule nor any administrative direction that effect. 6. THE contention of Mr. Bhathacharjee learned advocate for the appellant is that if the Disciplinary Authority is not satisfied with the finding of the enquiry Officer he will be at liberty to direct a fresh enquiry The Disciplinary authority has not made up his mind. He contends that there is no specification rule nor any administrative direction that effect. 6. THE contention of Mr. Bhathacharjee learned advocate for the appellant is that if the Disciplinary Authority is not satisfied with the finding of the enquiry Officer he will be at liberty to direct a fresh enquiry The Disciplinary authority has not made up his mind. He has only directed that fresh enquiry should be made so that the truth or otherwise of the complaint of taking illegal gratification by the writ petitioner may be found out. He has submitted that where rules are silent administrative circular can be taken recourse to for guidance. We have considered the rival contentions. Admittedly there is no specific rule or regulation framed by the Calcutta Municipal Corporation which would permit a de novo enquiry by the Disciplinary authority where he differs from the finding of the Officer. Mr. Bhattacharjee larned advocate for the appellant has however placed reliance on the Commissioners Circular No. 6 of 1979-80 dated 14th June 1979 which, inter alia provides as follows : "the Disciplinary Authority should examine carefully and dispassionately the Inquiry Authority report and the record of the enquiry and after satisfying itself that the Civic servant has been given a reasonable opportunity to defend himself will record its findings in respect of each article of charge saying whether in its opinion it stands proved or not. If the Disciplinary Authority disagrees with the findings of the Inquiring Authority on any article of charge while recording its own findings it should also record reasons for its disagreement. If the Disciplinary Authority considers that there is any defect in the enquiry i.e. , the Inquiry Authority had taken into consideration certain factors without giving the Civic servant an opportunity to defend himself in that regard, the Disciplinary authority may for reasons to be recorded by it in writing remit the case to the Inquiring Authority comes to the conclusion that the enquiry was not made in conformity with the principles of natural justice, it can quash the same and remit the case for fresh enquiry on all or some of the charges. " 7. THE aforesaid guideline does not advance the case of the appellant It does not provide for a de novo enquiry merely because the Disciplinary authority differs from the findings and conclusions of the Enquiry Officer. " 7. THE aforesaid guideline does not advance the case of the appellant It does not provide for a de novo enquiry merely because the Disciplinary authority differs from the findings and conclusions of the Enquiry Officer. It only provides that where an enquiry has been completed without giving opportunity to the delinquent Officer to defend himself, the case may be remitted to the Inquiring Authority for further enquiry. Similarly where the enquiry was not made in conformity with the principles of natural justice, the enquiry can be quashed and the case can be remitted for fresh enquiry on all or some of the charges. In the instant case, it is not the grievance of the delinquent Officer that he was not given reasonable opportunity to defend himself in the enquiry or the principles of natural justice had been violated. Accordingly, the matter cannot be remitted to the Enquiry Officer for fresh enquiry. Here the grievance is of the Disciplinary Authority that one material witness was not examined and accordingly a fresh enquiry should be held so that the said witness could be examined. In other words, the Disciplinary authority has differed from the finding of the Enquiry Officer and directed that me matter should be enquired again by the Enquiry Officer after recording the deposition of a witness, this procedure is nod warranted either by the rules or the regulations or by the aforesaid guidelines relied on by the learned advocate for the appellant. We are unable to persuade ourselves to hold that where the disciplinary Authority summons a witness and such a witness does not appear at the hearing and the Enquiry Officer proceeds to conclude enquiry on the basis of the evidence adduced and exonerates the delinquent Officer on the materials disclosed, the Disciplinary Authority still has the jurisdiction to set aside the finding of the Enquiry Officer ;and direct a fresh enquiry after taking new or evidence. 8. THE aforesaid guideline is intended to provide for safeguard and protection to a delinquent employee in the event he finding is against him without following the principles of natural justice. 8. THE aforesaid guideline is intended to provide for safeguard and protection to a delinquent employee in the event he finding is against him without following the principles of natural justice. In other words an employee in a given case is entitled to take advantage of the aforesaid guideline wherein the finding is against him but not vice-versa, that is to say the employer is not entitled to re-open the enquiry by directing fresh de novo enquiry simply because the finding at the enquiry already held has been made in favour of the employee. In our view, therefore, the disciplinary authority acted without jurisdiction in directing a fresh enquiry. Our attention has been drawn by Mr. Bhattacharjee, learned advocate for the appellant, to a decision of the Supreme Court in the case of K. R. Dev. vs. The Collector of Central Excise, reported in AIR 1971 SC 1447 , in support of his contention that if there is some defect in the inquiry conducted by the inquiry Officer, the Disciplinary Authority can direct the Inquiry Officer to conduct further inquiries in respect of that [matter. There the Disciplinary authority appointed another person to enquire into the charge after the enquiry officer had reported in favour of the delinquent officer. 9. IN that case, the Supreme Court was concerned with the scope of Rule 15 (1) of the Central Civil Services (Classification, Control and Apeal) Rules which has been re-produced in the judgment of the Supreme Caurt and which runs as follows: " (1) Without prejudice to the provisions of the Public Servants (inquiry)Act, 1950, no order imposing on a Government servant any of the enalities specified in Clauses (iv) to (vii) of Rule 13 shall be passed except after an inquiry, held as far as may be, in the manner hereinafter provided. " Clause (2) of Rule 15 provides for framing of charges and communication in writing to the Government servant of these, charges with the statement of allegations on which they are based, and it also provides for a written statement of defence. Under clause (3)the Government servant is entitled to inspect and take extracts from such official records as he may specify, subject to certain exceptions. Under clause (3)the Government servant is entitled to inspect and take extracts from such official records as he may specify, subject to certain exceptions. Under Clause (4) on receipt of the written statement of defence the Disciplinary Authority may itself enquire into such of the charges as are not admitted, or if it considers it necessary so to do appoint a Board of Inquiry or an Inquiring officer for the purpose. Clause (7) provides that at the conclusion of the Inquiry, the Inquiring Authority shall prepare a report of the inquiry, recording its findings on each off the charges together with reasons therefor. If in the opinion of such authority the proceedings of the inquiry establish charges shall not be recorded unless the Government servant has admitted the facts constituting them or has had an opportunity of defending himself against them. 10. UNDER Clause (9) the Disciplinary Authirity shall, if it is not the inquiring Authority. consider the record of the inquiry and record its findings in each charge. "in that context. the Supreme Court observed as follows " It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible enquiry because some serious defects has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary authority may ask the inquiry officer to record further evidence but there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the inquiring officer or officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9". It cannot be said that there has been no proper inquiry in this Case. There is no defect in the inquiry. The material witness in this case was available but was not examined by the prosecution for one reason or the other. The Disciplinary Authority, in this cease as already observed set aside the previous inquiry on the ground that the report of the inquiring officer did not appeal to him. He wanted further evidence to be taken. There is no rule similar to Clause (9)of Rule 15 as considered by the Supreme Court. The Disciplinary Authority, in this cease as already observed set aside the previous inquiry on the ground that the report of the inquiring officer did not appeal to him. He wanted further evidence to be taken. There is no rule similar to Clause (9)of Rule 15 as considered by the Supreme Court. In our view, the aforesaid decision of the Supreme Court does not advance the case of the appellant. The procedure adopted by the Disciplinary authority is not only warranted by the Rules but if adopted would cause prejudice to the appellant. 11. LET us now examine the question regarding the absence of the material witness Murari Dhar Kanu, the material witness, could not be examined because the delinquent officer threatened him. This contention is misconceived and cannot be accepted. The Enquiry Officer in his report recorded as follows : "P. W.- V, Sri Murari Dhar Kanu, the owner of coal and kerosene oil shop, com plainer, did not appeal before the Enquiry Board. He was the main witness, but in spite of sending him several notices he has kept himself absent from the examination by delinquent employee, the reason is unknown. Lastly the presenting officer has sent a letter of threat, which is marked as exhibit 5 and it may be seen from the case file, for appearing before the witness box to give his vital witness in this case. When the main witness is absent, the gravity of the case is lost and it falls through. Moreover, it is difficult to consider the guilt of the delinquent employee without examining him in details and without his deposition, to find out the guilt of the delinquent employee will be in vain, and the natural justice will be dishonoured. " 12. IT appears from the records of the Enquiry Officer produced before us that on 7th December, 1990, the Enquiry Officer recorded as follows :- "regarding witness, Sri Murari Dhar Kanu has received the notice for appearing before the Inquiry Board, but he is not present to-day." On 12th December, 1990, the Enquiry Officer recorded as follows :- "met P. O. The delinquent employee, Dr. S. Wajid Ali is present with his Assistant Sri K. M. Havne at 2 P. M. P. O. could not produce his main man complainant- cum- Witness, Sri Murari Dhar Kanu at schedule time of enquiry. S. Wajid Ali is present with his Assistant Sri K. M. Havne at 2 P. M. P. O. could not produce his main man complainant- cum- Witness, Sri Murari Dhar Kanu at schedule time of enquiry. Further, witness, namely V. O and other three Chief Investigator are not present. . . . . The next date of hearing is no 21st December, 1990, at 2 P. M. P. O. must produce the material witness Sri Murari Dhar Kanu on the next date, it being a time bound proceeding under court's order on failure, the witness shall be deemed not desirous to give his deposition. P. O. agrees to it." (Emphasis supplied) 13. ON 27th December, 1990, the witnesses which were produced by the presenting officer were examined. The Enquiry Officer recorded as follows : "P.W. 5 Sri Murari Dhar Kanu, the complainant- cum- witness did not come to the witness box, the reason is not known inspite of giving him several notices. " (Emphasis added) 14. ON 28th December, 1990, the enquiry was concluded. It is, however, necessary to set out a few further facts-appearing from the records. On 14th December, 1990, the Presenting Officer submitted the following note to the commissioner through the Municipal health Officer : The department proceedings has been started against Dr. S. Wajid Ali for accept ion illegal gratification on 4. 8. 89 at about 13-40 hours inside the Chamber of D. H. O. III from one Sri Murari dhar Kanu, owner of a coal and kerosene shop at 25b, Girish chandra Bose Road, Calcutta, for issuing Health Licence for the said shop. The vigilance Officer caught Dr. S. Wajid Ali red handed when Dr. S. Wajid Ali was taking illegal gratification of the above mentioned date and time. In this case Sri Murari Dhar Kanu is the main witness to prove the case. Two dates were fixed for hearing on 7. 12. 90 and 12. 12. 90 but sri Murari dhar Kanu did not appear at the date and time of hearing inspite of the facts that he received such intimation before hand. The next date of hearing has been fixed on 21. 12 90, and Sri Murari dhar Kanu is being intimated to appear at the hearing on the aforesaid date and time. 12. 90 but sri Murari dhar Kanu did not appear at the date and time of hearing inspite of the facts that he received such intimation before hand. The next date of hearing has been fixed on 21. 12 90, and Sri Murari dhar Kanu is being intimated to appear at the hearing on the aforesaid date and time. It is a time bound case as per order of the Hon’ble High Court dated 6th November, 1990, where there is a direction to complete the disciplinary proceedings within three months and the final order be passed with two weeks thereafter two months have already been passed. It may be mentioned, if Sri Muraridhar Kamu does not appear at the time of hearing it will be difficult to prove the case. In the above context, it is proposed that the Vigilance Officer may be requested to take initiative to make Sri Murari bhar Kanu present at the time of hearing of the above mentioned case since the case was initiated by the Vigilance Officer, this may please be treated as very urgent." (Emphasis added) The Chief Municipal Health Officer forwarded the said note to the commissioner on 15th December 1990 for his consideration. On 29th December 1990 the Commissioner made the following endorsement after the enquiring proceeding had been concluded on 28th December 1990 "vig. Officer should ensure that Sri Murari Dhar Kanu appears on the next day. If fails to appear, show cause may be issued and disciplinary proceedings may be initiated subsequently. "(emphasis added) The said note was forwarded by the Chief Municipal Health Officer to the Vigilance Officer for necessary action who received it on 1. 1. 91. 15. BUT, in the meantime, on 17th December. 1990, the Presenting Officer wrote the following letter to the said Sri Murari Dhar Kanu : to sri Murari Dhar Kanu owner of Coal and Kerosene Shop 25b, Girish Chandra Bose Road, calcutta - 14 reg. disciplinary proceedings against Dr. S. Wajid Ali, Health Officer (Maniktala) who was looking after the work of Dist. health Officer district No HI sir. You are hereby repeatedly requested to appear before the Inquiry Officer on 21. 12. 90 at 2 P. M. in the Chamber of D. H. O. III located at 1, Hogg Street calcutta Mpl. disciplinary proceedings against Dr. S. Wajid Ali, Health Officer (Maniktala) who was looking after the work of Dist. health Officer district No HI sir. You are hereby repeatedly requested to appear before the Inquiry Officer on 21. 12. 90 at 2 P. M. in the Chamber of D. H. O. III located at 1, Hogg Street calcutta Mpl. corporation, Calcutta 87 (first floor) without fails otherwise you would have to face trouble In getting renewal of Health licence In future. Thanking you. Yours faithfully sd. Barid Baran Mondal presenting Officer and copy to D. H. O. III Jr. Administrative Officer for information please. D. H. O. III 17. 12. 90 sd. Barid Baran Mondal and jr. Admn. Officer d. H. O. III 17. 12. 90 16. ON 8th January, 1991, the Vigilance Officer recorded the following note to the Municipal Commissioner through the Chief Municipal Health Officer : "municipal Commissioner Thro: Ch. Mpl. H. O. Your order dt. 29. 12. 90 sri Murari Dhar Kanu, the complainant in the case of Dr. S. Wajid ali, d. H. O. III,now under suspension met me at my office at 12 noon on 21.12.90 i.e. on the date of hearing and told me that Dr. Ali and some unknown persons threatened him with severe consequence if he appears as witness. I asked him to seem Sri Barid Baran Mondal, Jr. A. O. of d. H. O. III who is also the Presenting Officer in this case, on that dale at 2 P. M. at the chamber of D. H. O. III "it was reported to me by Sri P. Mukherjee, Chief Investigator who was a witness in this case that Sri Murari Dhar Kanu met the Presenting officer, Sri Mondal at his office on 21.12.90 at 2 P. M. As the enquiry was going on at that time Sri Mondal asked Sri Kanu to wait outside the chamber of D. H. O. III. When Sri Kami's turn came up he was not found any where in the office of D. H. O III. There is reason to believe that Sri kanu left the place out of fear. Vigilance Officer. When Sri Kami's turn came up he was not found any where in the office of D. H. O III. There is reason to believe that Sri kanu left the place out of fear. Vigilance Officer. Vigilance Officer, the Calcutta Municipal Corporation" PB/080191 Although it has been alleged in the said note of the Vigilance Officer that on 21st December, 1990 the said Murari Dhar Kanu met the Vigilance Officer and allegedly told him that he was threatened with dire consequences, nonetheless he met the Presenting Officer in his office on 21st December 1990 at 2 p. m. He thereafter left the office of the Presenting Officer. It, however, appears from the proceedings of the enquiry that on 21st December 1990 two prosecution witnesses were examined and the next date of hearing was fixed on 27th December 1990. It was recorded in the minutes of the proceedings of 27th December 1990, as we have already extracted, that Murari Dhar Kanu did not appear in spite of service of several notices and on that day the cross examination of the witnesses continued. Neither on 21st December 1990 nor on 27th December 1990 any whisper was made by the presenting Officer that murari dhar Kanu could not be produced as he was threatended by the delinquent officer or others. The enquiry was concluded, as we have already said, on 28th December 1990. Even on that date, even after the conclusion of the enquiry the prosecution did not make any grievance that the said Murari Dhar kanu could not be produced because: he was threatened. It is also significant that after 21st December 1990 when the said Murari Dhar Kanu appeared before the Vigilance Officer and the Presenting Officer, no application was made by the Presenting Officer for giving another opportunity to the Presenting officer to produce the said Murari Dhar Kanu. Threat, if any, was contained in the letter dated 17th December 1990 of the Presenting Officer which we have already extracted. By the said letter the Presenting Officer threatened that the said Murari Dhar Kanu would face trouble in getting renewal of health licence in future, if he did not attend the enquiry. The fact remains that Sri murari Dhar Kanu met the Presenting Officer on 21st December, 1990. Thereafter, he did not appear before the Enquiry Officer. By the said letter the Presenting Officer threatened that the said Murari Dhar Kanu would face trouble in getting renewal of health licence in future, if he did not attend the enquiry. The fact remains that Sri murari Dhar Kanu met the Presenting Officer on 21st December, 1990. Thereafter, he did not appear before the Enquiry Officer. In such a case, it cannot be said that the Presenting Officer did not get opportunity to present his witness for examination at the enquiry. On the materials, we are satisfied that there is no error committed by the Enquiry Officer in concluding the enquiry on the basis of the materials disclosed. The only grievance of the disciplinary authority is that Sri Murari Dhar Kanu could not be examined. But if the Disciplinary Authority fails to present the witness in support of its case no blame can be attributed to the enquiry proceedings or the findings and conclusions arrived at on the basis of the evidence adduced. We are, therefore, unable to hold, on the facts of this case, irrespective of the question whether rules permit remitting the case for fresh enquiry, that any fresh enquiry is justified. In our view the Disciplinary Authority in directing a fresh enquiry in this case acted contrary to law. 17. THERE is another aspect of the matter. The Enquiry Officer found that three 100 hundred rupee notes had been examined being exhibit no. 4. The enquiry Officer remarked : If those notes are completely free from anybody's signature on them except the signature of the Governor of the Reserve Bank. Even no sign was put on those notes as identification used for illegal gratification, hence, the newspaper cuttings do not tally with the actual notes which have been exhibited at the enquiry board. Those notes are lying with the vigilance Dept. as ordinary marketable notes." 18. IN that view of the matter, on the merits also the respondents are not entitled to proceed against the writ petitioner. For the reasons aforesaid, the appeal fails and is dismissed without any order as to costs. The writ petitioner will be entitled to all service benefits including monetary benefits and promotion, if any, due. Appeal dismissed.