JUDGMENT The petitioner joined the service under the Government of West Bengal in the Agri-irrigation Department on 23rd May, 1965 as a Work Sircar and in 1967 he became a Storekeeper. According to the petitioner the post of Storekeeper belongs to the cadre of Lower Division Clerk. The Superintending Engineer (A.N.), Berhampore, Agricultural Engineering Circle, respondent No.2, issued an order of suspension against him on 4th August, 1982 in terms of Rule 7(1)(a) of the West Bengal Services (Classification, Control and Appeal) Rules, 1971. On 3rd November, 1982 the respondent No.2 issued a charge-sheet against the petitioner under Rule 10(3) of the said Rules containing four Articles of Charges. The Charge-I relates to the fact that while functioning as Storekeeper during May and June 1982 the petitioner did not give proper receipt against challans whenever cement had been received by him from the Carriage Contractor and instead he received all at a time afterwards; the Charge-II is that the petitioner did not record in his Store Account properly the amount of cement received by him; the Charge-III is that the petitioner during the month of July 1982 signed the Delivery Challans of the Carriage Contractor but did not receive the materials and tried to implicate falsely his superior officer and other office staff in the misappropriation of cement; and the Charge-IV indicates that during July August 1982 the petitioner did neither contact the Police Authority nor the Department on his apprehension of outer influence on misappropriation of cement as well as personal protection, etc. Mr. G. C. Bhattacharjee, Executive Engineer (Agri-Irrigation), Berhampore (Agri-Irrigation Investigation, Planning and Civil Works) Division, was appointed Enquiry Authority to enquire into the charges. The petitioner moved the Hon'ble High Court praying for change of venue of the inquiry from Murshidabad to any other place on the ground that he was facing constant threats from highly influential persons and in the event of disclosing the truth his life would be at stake. The High Court disposed of the writ application with a direction to the petitioner to submit application to the authority for change of the venue of inquiry and the authority would consider the same within two weeks. But the respondent No.2 refused his prayer and directed that if the petitioner felt insecure he might lodge an F. I. R. with the Police for his personal safety and security. But the respondent No.2 refused his prayer and directed that if the petitioner felt insecure he might lodge an F. I. R. with the Police for his personal safety and security. The petitioner submitted a petition to the respondent to allow him an opportunity to represent his case by an Advocate and also submitted his written defence. He was informed that the prayer of engagement of a Lawyer could not be considered because no reason was assigned and the petition was rejected. The petitioner was asked by the Executive Engineer to be present at the godown several times and he did attend and thereafter he was issued a notice on 20th December, 1983 to the effect that the petitioner to hand over charge of the materials to the two officers, Mr. Biswas and Mr. Ghosh. The petitioner informed the Assistant Engineer that on receipt of the order of supension on 4th August, 1982 he was not in touch with any godown and he was not accountable to any materials from the day of suspension and as such the question of handing-over the materials did not arise. When the disciplinary proceeding was pending the Chief Engineer (Agriculture) issued an order of promotion in favour of the petitioner to the post of Upper Division Clerk with effect from 1st April, 1984. The petitioner had to file another writ petition challenging the suspension order of 4th August, 1982 and the charge-sheet of 3rd August, 1982 as well as the inaction of the respondents in not giving effect to the order of promotion dated 25th February, 1985 being C.O. No. 4204(W) of 1989. Mr. Justice G. N. Ray (as His Lordship then was) had given direction for Affidavits but no Affidavits-in-Opposition was filed by the respondents and on 30th November, 1989 three orders all of dated 28th November, 1989 were served upon the petitioner. The first Memo being No. 2178(4) issued by the respondent No.4 was about the withdrawal of disciplinary proceeding against the petitioner. The second Memo being No. 2173 intimated the petitioner of a fresh disciplinary proceeding started against him under Rule 10 of the said Rules. The first Memo being No. 2178(4) issued by the respondent No.4 was about the withdrawal of disciplinary proceeding against the petitioner. The second Memo being No. 2173 intimated the petitioner of a fresh disciplinary proceeding started against him under Rule 10 of the said Rules. The charge-sheet in question was changed and the new one was as under :–" The petitioner while functioning as the Storekeeper in the office of the Assistant Engineer (Agri-Irrigation), Murshidabad (I) Sub-Division Berhampore in 1982 received 12 M. T. (240 bags) of cement on 26th June, 1982 from Durgapur Cement Works through Carriage Contractor but the Stock Book maintained by the Storekeeper show that no entry was made in the said Stock Book after receiving the aforesaid articles. However it was stated that the petitioner misappropriated 12 M.T. (240 bags) from Durgapur Cement thereby causing loss to that extent to the Government". By the third Memo being No. 2184 Mr. S. Mardi, Deputy Commissioner for Departmental Enquiries, Vigilance Commission, West Bengal, was appointed enquiry authority. The petitioner states that without obtaining any leave from the Hon'ble High Court with regard to the first disciplinary proceeding which was under challenge, the respondent initiated a fresh disciplinary proceeding. It is stated by the petitioner that the fresh charge-sheet dated 28th November, 1989 issued by the Disciplinary Authority is also not maintainable for various reasons. By issuance of the charge-sheet of 28th November, 1989 the intention of the Disciplinary Authority is to get an adverse enquiry report against the petitioner. The petitioner states that it is significant to note that the respondents have not disclosed the enquiry report on the basis of the enquiry held in May 1983; and the petitioner further states that he has reasons to believe that the enquiry report went in his favour. The fresh inquiry or de novo proceeding is not maintainable both from the point of view of law and facts and the determination made by the earlier inquiry operates as res judicata for the subsequent proceeding by Memo dated 28th November, 1989. The petitioner prays that the respondents be commanded to cancel, withdraw or rescind the charge-sheet bearing Memo No. 2173 dated 28th November, 1989 and to act in accordance with law. 2. The State-respondents contested the matter by filing Affidavit-in-Opposition. It is disputed that the petitioner discharged his function and duties with sincerity and integrity. The petitioner prays that the respondents be commanded to cancel, withdraw or rescind the charge-sheet bearing Memo No. 2173 dated 28th November, 1989 and to act in accordance with law. 2. The State-respondents contested the matter by filing Affidavit-in-Opposition. It is disputed that the petitioner discharged his function and duties with sincerity and integrity. Apparently the Affidavit-in-Opposition is defective because in paragraph 9 of A/O the paragraphs 7 to 23 of the writ petition have been dealt with in four lines and the material portion says, "save and except what are matters of record and what are stated above, all the allegations have denied, " Again paragraphs 24 and 26 of the writ petition have been dealt with in para 10 of the said Affidavit stating that the promotion of Upper Division Clerk of the petitioner with other incumbents was subject to the approval and clearance by the Executive Engineer and the Superintending Engineer regarding the departmental proceedings, and so long the petitioner was placed under suspension and the proceeding was pending, no promotion could have been given. It is denied that the respondents have any knowledge of C. O. No. 4204 (W) of 1989 because no copy of the said writ application was ever served upon the respondents. The Affidavit defended the fresh proceedings taken by the respondents. It is stated that the subject matter is the same and there is no legal bar in drawing up proceeding on the same subject after withdrawing the previous one before passing final order. It is further stated that a proceeding can be deemed to have completed or concluded only after final order is passed. The rest of the Affidavit is mere denial of the allegations made in the writ petition. 3. Mr. Asoke De, the learned Advocate appearing for the petitioner, submitted that since 4th August, 1982 the petitioner has been suffering the rigours of suspension. On 3rd November, 1981 the charge-sheet was issued with four articles of charges relating to misappropriation of cement received by the petitioner from the Carriage Contractor M/s. C. B. & Company of Khagra. On the basis of the four articles of charge an Enquiry Authority was appointed and the enquiry was completed in May 1983 but the result of the enquiry was not disclosed to the petitioner. According to the knowledge of the petitioner the Enquiry Officer on merit did not hold him guilty. On the basis of the four articles of charge an Enquiry Authority was appointed and the enquiry was completed in May 1983 but the result of the enquiry was not disclosed to the petitioner. According to the knowledge of the petitioner the Enquiry Officer on merit did not hold him guilty. During the pendency of the enquiry proceeding an order of promotion in favour of the petitioner to the post of Upper Division Clerk on temporary basis was made on 25th February, 1985 and according to the ld. Advocate the action of giving promotion amounted to condonation of any allegation against the petitioner. The order of suspension dated 4th August, 1982 and the charge-sheet dated 3rd November, 1982 as well as the inaction of the respondents in not allowing the petitioner the promotion was challenged in the Hon'ble High Court on 7th April, 1982 being C. O. No. 4204(W) of 1989 and is still pending. During the pendency of the aforesaid writ petition the writ petitioner was served with three Office Orders and/or Memos all dated 28th November, 1989. By the first Order being No. 2178(4) the Superintending Engineer withdrew the earlier charge-sheet of 3rd November, 1982. By second Order being No. 2173 a fresh disciplinary proceeding was initiated against the petitioner under Rule 10 of the West Bengal Services (Classification Control and Apneal) Rules, 1971. Mr. De pointed out that the charge sheet and/or the charges dated 3rd November, 1982 and the Order dated 28th November. 1989 are same and identical. By third Memo being No. 2184 Mr. Mardi, Deputy Commissioner for Departmental Enquiries, Vigilance Commission, West Bengal was appointed as Enquiry Authority. It is submitted by the petitioner that the present writ application being C O. No. 7107 (W) of 1990 is challenging the validity of fresh disciplinary proceeding and/or the fresh charge sheet dated 28th November, 1989. Mr. De has submitted that since the Chief Engineer, the respondent No.3, issued an order of promotion in favour of the petitioner on taking a decision that he should be promoted as Upper Division Clerk and more so the promotion was made particularly during the pendency of the first disciplinary proceeding then in such a case the issuance of the order of promotion amounts to condonation of any omission or commission on the part of the petitioner. In this connection he cited (1) AIR 1925 Cal 87, L. W. Middleton v Harry Playfair. He also referred to (2) AIR 1970 SC 2086 , The State of Punjab v. Dewan Chuni Lal and (3) 1976(2) SLR 897. The Collector of Customs v. Rebati Mohan Chatterjee. The learned Advocate also referred to the unreported Judgment in C. O. No. 8037(W) of 1989 dated 8th July, 1989; (4) G. C. Bhattacharyya v. General Insurance Corporation of India and Ors. which was affirmed by the Appeal Court in F. M. A. No 2424 of 1989 and finally affirmed by the Supreme Court. 4. The next submission of Mr. De was that on the self-same charges successive enquiries are not permissible. It is admitted by the respondents in para 13 of the Affidavit-in-Opposition that the subject matter of the charge was same. It is pointed out by the learned Advocated for the petitioner that the instant writ petition was heard extensively by this Court in the presence of the then learned Advocate of the State. Mr. Tarun Kumar Roy, who was fair enough to produce the enquiry report and the enquiry report showed that no charge could be established against the petitioner. Thereafter the State brief changed hand and Mr. Sankar Mukherjee, the learned Advocate, is appearing for the State-respondents. He very strongly contended that it is a matter of significance that Mr. Mukherjee did not produce the enquiry report before the Court after taking over the matter from Mr. Roy. In this connection the learned Advocate for the petitioner cited (5) 1988(1) CLJ 45 , Anand Prakash Saxena v. Union of India & Ors. It is further submitted by the learned Advocate that institution of a fresh enquiry of new charge-sheet is just to get a favourable enquiry report so that the delinquent can be punished. It is emphasised that the Courts have repeatedly deprecated this practice as beyond the principle of service jurisprudence. In ram 13 of the Affidavit-in-Opposition it is stated that the earlier proceeding was found defective and was withdrawn before passing the final order and a fresh proceeding was drawn up after taking corrective measures. This attitude of the respondents cannot be sustained in view of the principles laid down by the Supreme Court in (6) AIR 1978 SC 851 , Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi, and Ors. Mr. This attitude of the respondents cannot be sustained in view of the principles laid down by the Supreme Court in (6) AIR 1978 SC 851 , Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi, and Ors. Mr. De also relied on (7) 1989 Lab IC 329, Dinesh Chandra Sarkar v. The State of West Bengal and Ors. 5. The learned Advocate for the petitioner further submitted that the charges have become stale and no disciplinary proceeding can continue on stale charges as it amounts to violation of the principles of natural justice. In this connection he relied upon (8) AIR 1990 SC 1308 , The State of Madhya Pradesh v. Bani Singh and Anr, and (9) 1984(1) CLJ 56 , Samendra Narayan Ghosh v. The State of West Bengal and Ors. The further contention of the learned Advocate was that more or less for 10 years the petitioner is under suspension and a Government servant cannot be under suspension for an indefinite period because it affects him injuriously. In this connection he cited (10) 1987(4) SCC 328 , O. P. Gupta v. Union of India and Ors. and also (11) AIR 1988 Bom 416 , V. P. S. Gill v. Air India and Anr. He also referred to more decisions, namely, (12) AIR 1968 SC 647 , State of Orissa v. Sudhansu Sekhar Misra and Ors. and (13) 1901 AC 495, Quinn v. Leathem. Mr. De concluded by submitting that the charge-sheet of 28th November, 1989 and the suspension order of 4th August, 1982 should be set aside and direction be made reinstating the petitioner's service with all arrears of pay and other consequential service benefits. 6. Mr. Sankar Mukherjee, the learned Advocate appearing for the State, submitted that the first enquiry proceeding was held from November 1982 to July 1986 when the Enquiry Officer submitted his report to the Superintending Engineer. The delay was caused due to extraneous circumstances which were beyond the control of the Disciplinary Authority and there was no laches on the part of the Disciplinary Authority. The delay was caused due to extraneous circumstances which were beyond the control of the Disciplinary Authority and there was no laches on the part of the Disciplinary Authority. The finding of the Enquiry Officer was sent to the Vigilance Commission in terms of the G.O. dated 2nd February, 1972 issued by the Chief Secretary to the Government of West Bengal and the Vigilance Commission suggested that the proceeding was defective as the article of charge suffered from vagueness and the findings were not in conformity with the West Bengal Services (C.C.&A.) Rules and it was suggested by the Commission to drop the enquiry proceedings and to start a fresh proceeding after necessary correction. The new Disciplinary Authority found no reason to disagree with the Vigilance Commission and earlier proceeding was withdrawn and the same proceeding was corrected and started by Memo dated 28th November, 1989. Everything was done within the strict compliance of Rule 10 of the said Rules. 7. Mr. Mukherjee further submitted that there was no legal bar in drawing up proceedings on the same subject after withdrawing the earlier proceeding before passing final order. According to him, a proceeding can be deemed to have completed/concluded only after final order is passed. The learned Advocate stressed that there was no violation of principles of natural justice because no "fresh" enquiry is there and in fact the second enquiry is the continuation of process of the first enquiry which is wholly good in law. The learned Advocate relied very much on (14) AIR 1975 SC 2277 , The State of Assam and Anr. v. J. N. Roy Biswas in support of his contention and also on (15) AIR 1960 Punjab 147, Binod Chandra Mazumdar v. Union of India and Anr. Mr. Mukherjee further submitted that so far as the promotion order is concerned such general promotion orders are always subject to the result of enquiry proceedings and such orders are not given effect to. He further clarified by way of example that the decision of such promotion was taken generally and technically but the same was subsequently withdrawn. He contended that the Authority concerned acted on behalf of the State of West Bengal and any action taken by the Authority concerned which the Authority is not competent to exercise in law is not binding on the State. He contended that the Authority concerned acted on behalf of the State of West Bengal and any action taken by the Authority concerned which the Authority is not competent to exercise in law is not binding on the State. The learned Advocate further relied upon (16) AIR 1979 SC 1923 , Anand Narayan Shukla v. State of Madhya Pradesh. 8. This writ petition is directed against the impugned charge-sheet contained in Memo No. 2173 dated 28th November, 1989 issued by the Superintending Engineer (Agri-Irrign.) Krishnagar (Agri-Irrign.) Circle, Krishnagar, Nadia. This writ application has nothing to do with the petitioner's first writ application being C. O. No 4204(W) of 1989 which is pending and related to the order of suspension dated 4th August, 1982 against the petitioner. There is no specific denial by the State that the first enquiry proceeding was completed in May 1983 and it is also an admitted fact that during the pendency of the first enquiry proceeding the Chief Engineer (Agriculture) issued suo motu order of promotion on 25th February, 1985 in respect of the petitioner to the post of Upper Division Clerk temporarily effective from 1st April, 1984. There appears to be much truth in the case of the petitioner that when the respondents found that they were not in a position to rope in the delinquent then they issued four Memos and/or Office Orders all of 28th November, 1989. By the first Memo being No. 2178(4) the Charge-sheet of 3rd November, 1982 was withdrawn. By the second memo being No. 2173 a fresh disciplinary proceeding dated 28th November, 1989 had been initiated under Rule 10 of the West Bengal Services (Classification, Control and Appeal) Rule, 1971 but the charge in the new charge-sheet remained the same and identical as in the earlier charge-sheet 3rd November, 1982. A new Enquiry Authority was appointed and this very second charge-sheet or the fresh charge-sheet is under challenge in the instant writ application. One of the major attacks of Mr. De for the petitioner is on the validity of fresh disciplinary proceeding and/or the charge-sheet dated 28th November, 1989. The promotion of the petitioner to the post of Upper Division Clerk during the pendency of the first disciplinary proceeding was a condonation of any omission or commission on the part of the petitioner. A Division Bench Judgment of Calcutta High Court reported in AIR1925 Cal. The promotion of the petitioner to the post of Upper Division Clerk during the pendency of the first disciplinary proceeding was a condonation of any omission or commission on the part of the petitioner. A Division Bench Judgment of Calcutta High Court reported in AIR1925 Cal. 87 (supra) states as follow :– "If a master on discovering that his servant has been guilty of misconduct which would justify a dismissal, yet elects to continue him in his service, he cannot at any subsequent time dismiss him on account of that which he has waived or condoned". In the case of the State of Punjab v. Dewan Chuni Lal (supra) the Supreme Court held that the charges or reports relating to period earlier than the petitioner in which a delinquent was allowed to cross efficiency bar should not be considered in enquiry. Similar view is taken in 1976(2) SLR 897 (supra) where a Division Bench of Calcutta High Court held that the crossing or efficiency bar and promotion must be treated on one and the same principle. According to the learned Judges the action of promotion amounted to a condonation of any allegation against the delinquent. Their Lordships further held that "After all this Court is exercising its equitable jurisdiction in granting discretionary relief. The appellants in our view cannot be allowed to approbate and reprobate at the same time." 9. It must be noted that the charges as contained in the charge-sheet of 3rd November, 1982 and the charge-sheet under challenge dated 28th November, 1989 are identical and this has been admitted by the respondents in paragraph 13 of the Affidavit-in-Opposition when they have categorically stated that ''the subject matter of the charges was same." The fact remains that no charge could be established pursuant to the charge-sheet dated 3rd November, 1982 and the charges are not at all alive because the charge-sheet of 3rd November, 1982 has already been withdrawn. It is the case of the respondents that after the submission of the enquiry report by the Enquiry Authority in respect of the charge-sheet of 3rd November, 1982 the same was forwarded to the Vigilance Commission and on the advice of the Commission the fresh charge-sheet of 28th November, 1989 was initiated. It makes the inference very well that the disciplinary authority was inclined to get rid of the service of the delinquent officer by imposing a major penalty. It makes the inference very well that the disciplinary authority was inclined to get rid of the service of the delinquent officer by imposing a major penalty. Otherwise once an enquiry has taken place on merit it was not justified to have a fresh enquiry on the same charges. The very motive of punishing the delinquent any how is always deprecated and is against the principles of natural justice. The petitioner gets support in a reported decision in 1989 Lab IC 329 (supra) wherein the learned Judge held that it would be unfair to the petitioner to be settled with a second charge-sheet on the identical grounds which were earlier being withdrawn unconditionally. This is an act contrary to fairness. 10. The enquiry is almost 10 years old now having started in 1982 and restarted in 1989. No cogent reason has been given as to why the enquiry has remained pending for such a long period. The suspension order was made upon the delinquent in August 1982 and it is a well-known principle of law that an order of suspension, unless a departmental enquiry is completed or concluded within a reasonable time, affects a Government servant adversely because a Government servant cannot be kept under suspension for an indefinite period. The fresh charge-sheet was issued in November 1989 and which in effect means that the disciplinary proceeding started afresh from November 1989 for which no satisfactory explanation could be given by the respondents save and except that it was done at the instance of the Vigilance Commission. This inordinate delay itself is fatal for the fresh enquiry according to AIR 1990 SC 1308 (supra). An unexplained delay constitutes violation of the principles of natural justice and here the delay is considerable and the explanation is quite weak, 1984(1) CLJ 56 , (supra). The decision reported in 1987(4) see 328 (supra) goes a long way to support the contention of the petitioner. 11. The contention of the respondents that there is no legal bar in drawing up proceedings on the same subject after withdrawing the same before passing the final order is in substance the main contention in the case, and further that such proceedings should not be considered as fresh enquiry. 11. The contention of the respondents that there is no legal bar in drawing up proceedings on the same subject after withdrawing the same before passing the final order is in substance the main contention in the case, and further that such proceedings should not be considered as fresh enquiry. The defence has taken the shelter of AIR 1975 SC 2277 (supra) where the Division Bench consisting of V. R. Krishna Iyer and A. C. Gupta, JJ., held that "We may however make it clear that no Government servant can urge that if for some technical or other good ground, procedural or other, the first enquiry or punishment or exoneration is found bad in law that a second enquiry cannot be launched". Nowhere it has been stated by the defence that there were procedural defect in the enquiry or there were technical defect or any other ground but the only case of the defence is that the enquiry report was sent to the Vigilance Commission and the Vigilance Commission suggested that the proceeding was defectively drawn as the Article of charge suffered from vagueness and the finding was also not in conformity with WBS (CC&A) Rules, 1971 and as such the Commission suggested that the enquiry proceeding be dropped. The question arises which Article of Charge out of four? The particular submission of Mr. Mukherjee for the respondent is an improvement upon the Affidavit-in-Opposition because nowhere in the Affidavit-in-Opposition this statement was ever made and for the first time this submission was made while arguing the case. Any how in page 5 of the written submission of Mr. Mukherjee "article of charge" suffers from vagueness. It is not clarified by the defence as to which particular Article suffers from Vagueness. In fact, in my opinion, the entire defence on the point suffers from vagueness. The decision in AIR 1960 Punj. 147 (supra) also is of no help to the respondents. I do not think that the unreported decision of the Division Bench of Calcutta High Court dated 4th May, 1990 in FMA No. 495 of 1988, (17) State of West Bengal and Ors. v. Nilim Krishna Banerjee is application in this case because there the writ petition himself prayed for promotion to cross efficiency bar pending disciplinary proceeding and the prayer was allowed and thereafter the petitioner challenged the jurisdiction of the disciplinary authority for continuing the proceedings. v. Nilim Krishna Banerjee is application in this case because there the writ petition himself prayed for promotion to cross efficiency bar pending disciplinary proceeding and the prayer was allowed and thereafter the petitioner challenged the jurisdiction of the disciplinary authority for continuing the proceedings. But in the case of the instant petitioner the promotion was made by the authorities themselves suo motu during the pendency of the disciplinary proceeding and thus the question of condonation of past conduct arises automatically. 12. I have practically discussed all the decisions placed before me and I find myself in agreement with the submissions made by Mr. De and I cannot reconcile myself with those of Mr. Mukherjee. 13. In that view of the matter the charge-sheet being Memo No. 2173 dated 28th November, 1989 issued by the Superintending Engineer (Agri-Irrign.), Krishnagar ( Agri-Irrign.) Circle, Krishnagar, Nadia, and the disciplinary proceedings are hereby quashed and as a consequential relief the order of suspension dated 4th August, 1982 passed by the Superintending Engineer (A. N), Berhampore, Agri. Engineering Circle, also stands quashed. The respondents are directed to be paid all his outstanding dues since 4th August, 1982 in accordance with law and by way of consequential relief the petitioner shall get the temporary appointment as Upper Division Clerk in accordance with Memo No. 3174(396)/2E-19/84-85 dated 25th February, 1985 issued by the Chief Engineer (Agri.), West Bengal, retrospectively with effect from 1st April, 1984. All outstanding dues of the petitioner must be paid within 31st August, 1992. The petitioner must report for joining his duties along with the xerox copy of this judgment to the Chief Engineer (Agriculture) West Bengal, respondent No.3, at the earliest and he shall be duty bound to direct his subordinate authority to allot the petitioner the duty. 14. The writ application succeeds and is allowed. The petitioner shall be paid a cost assessed at 100 G. Ms. by respondents Nos. 1 to 6. Let xerox copy of this judgment be made available at the earliest to the parties on usual undertaking and upon compliance of necessary formalities.