ARUN KUMAR MITRA, J. ( 1 ) THIS writ petition has been moved by one Lower Division Clerk working under Kolkata Port Trust making the following prayers: "a) A writ in the nature of Mandamus commanding the Respondents, their agents and servants to forbear from giving effect or further effect to the impugned order of punishment passed, by the respondent no. 3 vide memo dated 20-03-2002 in Annexure P-17 and the impugned order passed by tile Appellate Authority vide memo dated 03-06-2002 in Annexure P-19 and the impugned order of review passed by the respondent no. 3 vide memo dated 25-03-2003 in Annexure P-21; b) A writ in the nature of Mandamus declaring that the impugned disciplinary proceeding initiated vide charge sheet dated 21-7-98 incorporating charges dealt with in previous proceedings, is non-est in the eye of law; c) A writ in the nature of Certiorari directing the respondents, their agents and servants to produce all records and proceedings so that conscionable justice may he administered by quashing the impugned disciplinary proceeding initiated vide charge sheet dated 21-7-98 in Annexure P-12 and the impugned order of punishment in annexure P-17 and the impugned appellate order in Annexure P-19 and the impugned order of review in Annexure p-21 and by granting the other reliefs as prayed for hereinabove;" ( 2 ) THE writ petitioner has challenged the order dated 20-03-2002 being annexure P-17 to the writ petition passed by the disciplinary authority, the order dated 03-06-2002 passed by the appellate authority being annexure P-19 to the writ petition and the order dated 25-03-2003 passed by the respondent no. 3 on the review application made by the petitioner being annexure P-21 to the writ petition as well as the charge sheet dated 08-02-1991 issued to the petitioner by the respondent no. 2 i. e. the deputy Chairman; Kolkata Port Trust which has been made annexure p-1 to the writ petition. ( 3 ) THE petitioner alleges that due to prolonged illness he was debarred from discharging his regular services for a period from 12-11-1990 and because of such absence, disciplinary proceeding was initiated against him and the consequence is the charge sheet. ( 4 ) THE petitioner made a representation on 09-08-1991 in response to the said charge. Thereafter, the petitioner. ( 4 ) THE petitioner made a representation on 09-08-1991 in response to the said charge. Thereafter, the petitioner. received a memo/order dated 12-09-1991 from which a warning was issued to the petitioner to, the extent that the petitioner should Improve his attendance- The petitioner alleges that on one hand he was absolved of the charges and on the other hand he was warned. ( 5 ) THE petitioner in the writ petition has submitted that by the charge sheet being annexure P-3, two charges were labelled against the petitioner; first being that the petitioner had been absenting himself from duties since 08-10-1991 without any valid permission and the second being that in spite of warning through memo dated 25-09-1991 the petitioner remained unauthorisedly absent since O8-1o-1991. ( 6 ) ACCORDING to the petitioner, in terms of the directives contained in the charge sheet, the petitioner filed a detailed reply on 30-11-1992. The petitioner has made this reply as annexure P-4. ( 7 ) ACCORDING to the petitioner, this is second disciplinary proceeding and during this second disciplinary proceeding the petitioner made several representations to the concerned authority to allow him to join. The petitioner alleges that his said prayer was kept in abeyance and simultaneously the disciplinary proceeding was dragged on and almost after two years from the date of issuance of charge sheet the respondent no. 2 appointed an enquiry officer by virtue of his order dated 08-09-1994 and on an ex, parte hearing the enquiry officer submitted a report on 17-05-1995. The writ petitioner, thissecond disciplinary proceeding annexure P-5. ( 8 ) THE petitioner alleges that during his period of absence he was seriously ill and had to be admitted in Kharagpur General Hospital from where he was discharged on 30-06-1992 and was declared fit to resume his duties on 15-07-1992. The petitioner further alleges that Kolkata Port trust authorities were not satisfied with such fit certificate and the petitioner was referred for further examination to the Chief Medical officer through memo dated 05-12-1992 and the Chief Medical Officer upon examination declared the petitioner fit for duty on 12-12-1992 and pursuant to such certification the petitioner was allowed to resume his duties. ( 9 ) ACCORDING to the petitioner, again he had to remain absent from 04-10-1993 because of severe ailment of his wife and child. ( 9 ) ACCORDING to the petitioner, again he had to remain absent from 04-10-1993 because of severe ailment of his wife and child. Thereafter, upon recovery the Petitioner approached the Kolkata Port Trust authorities to allow him to join without prejudice to the Final order in the pending disciplinary proceeding. The petitioner was allowed to resume his duties by an order issued through memo dated 15-06-1995 and this was done in terms of petitioner's application dated 11-06-1995. The petitioner has annexed the copies of Medical Certificate, Discharge certificate and Fit Certificate issued by Kharagpur General Hospital getting it collectively marked as annexure P-6. ( 10 ) COPIES of the memo dated 15-12-1992, fit certificate issued by the chief Medical Officer and the memo dated 14-12-1992 have been made annexure P-7, P-8 and P-9 respectively. , ( 11 ) COPY of the memo dated 15-06-1995 has been made annexure P-10 and the representation dated 11-06-1995 as annexure P-10a. ( 12 ) THE petitioner alleges that two spells of absence of the petitioner, one for the period from 08-10-1991 to 13-12-1992 and the period from 04-10-1993 to 15-06-1995 were taken into consideration while adjudicating the charges framed through memo dated 17-10-1992. The petitioner also alleges that upon perusal of the order issued by the disciplinary authority on 19-06-19% it wffl appear that the authority deadly remarked that the charge sheeted emprolonged had remained unauthorisedly absent for two spells of prolonged period. Upon arriving at shuch findings the disciplinary authoriy passed anorder of punishment reducing the pay of the petitioner to the lower stage in his time scale of pay with immediate effct for a period of three years and it was issued through -memo dated 14-06-1995 which is made annexure P-11 to the writ petition. ( 13 ) ACCORDING to the petitioner after three years again through memo dated 21-07-1998 a fresh charge sheet was issued by the respondent no. 3 incorporating two charges the first one is that the petitioner had been unauthorisedly absenting from duties for a period of 294 days, between 13-03-1994 and 31-12-1994, 166 days in between 01-01-1995 to 15-06-1995, 32 days in between 16-10-1996 and 16-11-1996, 6 days in between 26-12-1996 and 31-12-1996, 10 days in between 01-01-1997 to 18-04-1997 and 31 days in between 19-03-1998 and 18^09-1998. The second charge that the petitioner had. The second charge that the petitioner had. a poor record of attendance in spite of imposition of warning arid punishment vide memo dated 25-09-1991 and 14-06-1995 respectively. The writ petitioner has annexed a copy of the said charge sheet dated 21-07-1998 having marked as annexure P-12. ( 14 ) IN reply, the petitioner furnished details and a copy of the said reply dated 03-08- 1998 has been made annexure P -. 13. ( 15 ) THROUGH a memo dated 28-01-1999 the respondent no. 2 appointed one Sri Indrani Banerjee as the Enquiry Officer and the said officer submitted her report through memo dated 27-08-1999. In the said report the said officer observed in respect of the first charge that the period of absence in 1996 (38 days), in 1997 (108 days) and in 1998 (31 days)were regularized by grant of half pay leave, medical leave and earned leave and the disciplinary authority now cannot initiate disciplinary proceeding and that to at a later date on 21-07-1998, In the said report it was observed that the first charge has not been substantiated and in respect of the second charge also the enquiring officer observed that the petitioner/charge sheeted employee has already suffered punishment for unauthorized absence during the periods of 1994 and 1995. ( 16 ) THE petitioner alleged that in spite of the said enquiry report the disciplinary authority through memo dated 19-11-1999 directed the enquiring authority to reopen the case and the give an opportunity to the petitioner as a, sympathetic gesture since it was done ex parte. In the said memo the direction was as follows "the period of absence from 04-10-1993 to 15-06-1995 is to be dealt with by the Enquiry Officer at present, i. e. Sri I. Banerjee, Jr. Asstt. Manager (P andir ). " ( 17 ) COPY of the said memo dated 19-11-1999 has been made annexure p-15 to the writ petition. ( 18 ) ACCORDINGLY, the enquiry was reopened and a fresh enquiry report was prepared and copy of the same was forwarded to the petitioner through memo dated 24-4-2000. This second enquiry report according to the petitioner, would reveal that the absence from 04- 10-1993 to 15-06-1995 has been treated as a part of the charge sheet but though enquiry was made into the same. This second enquiry report according to the petitioner, would reveal that the absence from 04- 10-1993 to 15-06-1995 has been treated as a part of the charge sheet but though enquiry was made into the same. However, as regards the said absence From 4-10-1993 to 15-06-1995 the enquiring officer observed that the prosecution hadnt been able to substantiate the said charge. Copy of the memo dated 24-04-2000 has been made annexure P-16. ( 19 ) THE petitioner against the said memo dated 24-4-2000 submitted his representation on 30-05-2000 and after lapse of a period of more than two years the petitioner was served with a memo dated 20-03-2002 issued by the respondent no. 3 imposing penalty of reduction of the present pay of the petitioner for a period of five years with cumulative effect. Copy of the. memo dated 20-03-2002 has been marked as annexure P-17. ( 20 ) THE writ petitioner being aggrieved by the said order dated 20-03-2002 preferred a statutory appeal through petition dated 10-4-2002. The said appeal was disposed pf by the appellate authority by reducing the length of penally from five years to three years with cumulative effect, and the order was passed on 3-6-2002. The appeal petition and the order has been made annexure P-18 and P-19 respectively. ( 21 ) BEING aggrieved by the appellate order the petitioner preferred a review petition on 03-07-2002 and the petitioner in support of his review petition submitted five representations and copies of the said representations starting from 19-07-2002 have been made annexure P-20 collectively. ( 22 ) IN the review petition, the petitioner made out specific case that he had been punished twice for the same period of absence from 4-10-1993 to 15-06-1995. The petitioner also submitted that the authority being vindictive, dragged the proceeding for a long period. The petitioner further submitted that the reviewing authority, instead of setting aside the order of the appellate authority modified the same by imposing penalty of three years without cumulative effect. ( 23 ) THE specific case as was made out by the petitioner in paragraph 22 of the writ petition is that for the period from 08-10-1991 to 13-12-1992 and for the period from 04-10-1993 to 15-06-1995 the petitioner has been punished twice inasmuch as the petitioner was first punished for the same absence by the authority through his final order dated 19-06-1995. ( 24 ) THE petitioner alleged that for the period of absence from 4-10-1993 to 15-06-1995 the petitioner was on one hand denied his pay totally and on the other he was punished twice through two disciplinary proceedings and in fact such imposition of triple punishment speaks of extreme vindictiveness. ( 25 ) THE petitioner further alleged that 'the enquiry in respect of the charges contained in memo dated 21-07-1998 (annexure P-12) stood concluded with the submission of enquiry report on 27-04-1999 and the said report would reveal. that save and except charge which stood allegedly proved thereby through the earlier disciplinary proceeding, no other charge could be proved inasmuch as the entire period of absence in the year 1996, 1997 and 1998 stood regularized by the grant of leave and the petitioner could not be punished on the face of the said enquiry report ( 26 ) THE petitioner submitted further that though all the three charge sheets were said to be issued under the provisions of Calcutta Port trust employees' (Classification, Control and Appeal), Regulations, 1987 in the first and second disciplinary proceeding the respondent no. 2 acted as disciplinary authority but in the third proceeding the respondent no. 3, an officer lower in the administrative hierarchy to the respondent no. 2 acted: as a disciplinary authority and such charge and -alteration of disciplinary authority is dehors the provisions of the said regulations: ( 27 ) THE disciplinary authority in the first and second proceeding that is the respondent no. 2 stood elevated as appellate authority, in. the third proceeding and this is in deviation from the regulations. ( 28 ) THE petitioner, in the above perspective and. in the above context challenged the third disciplinary proceeding as well as the appellate order and the review order passed by the reviewing authority against the appellate order. When the said writ petition was moved, interim order was granted in terms of prayer V of the writ petition until further order since no one appeared in spite of service. ( 29 ) THE respondent authorities filed an application for vacating the said interim order dated 27-06-2003. When the said writ petition was moved, interim order was granted in terms of prayer V of the writ petition until further order since no one appeared in spite of service. ( 29 ) THE respondent authorities filed an application for vacating the said interim order dated 27-06-2003. The said application for vacating came up for hearing and by an order dated 22-08-2003, after hearing the learned counsel for the parties this Court passed an order that the application for vacating the interim order be treated as opposition to the writ petition and reply be given by the writ petitioner. Ultimately, the petitioner submitted reply treating the vacating application as opposition (hereinafter termed as said opposition ). ( 30 ) IN the said opposition the respondent authorities stated that the writ petitioner misleads Court and got the interim order and it should be vacated. ( 31 ) THE crux of the matter taken out in the said opposition is as follows: the respondent remained absent for eight days in 1989 and 130 days in 1990 and this absence was unauthorized (termed as first. offence ). For this first offence, charge sheet was issued on 8-2-1991 (annexure- P1) to the writ petition. ( 32 ) THE disciplinary authority passed an order on 25-9-1991 and the order was on compassionate consideration and the order was to the extent that the writ petitioner be warned and there should be no recurrence of unauthorized absence on his part in future. The order was received by the writ petitioner on 01-10-1991. ( 33 ) THE petitioner again remained absent unauthorisedly with effect from 08-10-1991 (second offence ). Another charge sheet dated 17-1-1992 was issued to him for his such unauthorized absence continuously since 08-10-1991. Separate domestic enquiry was held and the Enquiry Officer submitted his report on 19-5-1995 and the disciplinary authority passed an order of penalty through order dated 14/19-06-1995 with a direction to improve his attendance as last chance. Meanwhile, the writ petitioner had been allowed to resume his duties with effect from 14-12-1992 without prejudice to the pendency of departmental proceeding against him but the writ petitioner again remained absent with effect from 04-10-1993 and as such the writ petitioner could not remain present during the enquiry as regards his second offence and ultimately, ex parte enquiry was held. The disciplinary authority passed the final order dated 14-19/06/1995. The disciplinary authority passed the final order dated 14-19/06/1995. The writ petitioner was allowed to join on 16-06-1995 with the stipulation that the concerned period of unauthorized absence with effect from 04-10-1993 to 15-06-1995 win be dealt with later. Hence, the penalty passed on 19-06-1995 covered the period of his absence with effect from 08-10-1991 and the respondent authority alleged that in paragraph 11 the writ petitioner totally mislead this Court. ( 34 ) THE respondent authority further alleged that the petitioner was again involved in fresh departmental proceeding for his unauthorised absence for 294 days in 1994, 166 days in 1995, 38 days in 1996, 108 days in 1997 and 31 days in 1998 and for recurrence of misconduct of unauthorized absence (third offence ). ( 35 ) THE Enquiry Officer submitted a report and the enquiry was reopened. Full opportunity of defence was given to the writ petitioner in terms of his prayer. The Enquiry Officer submitted his report of 14-03-2000. The writ petitioner submitted representation on 30-05-2000 and the final order to the third offence was passed on 20-03-2000. ( 36 ) THE respondent authorities denied the allegation that the petitioner was punished for the same charge that is his absence in 1993 to 1995 under separate orders dated 19-06-1995 as well as of 20-03-2002. In fect on two different and independent charges for independent absence on two separate occasions, the petitioner was punished. ( 37 ) THE respondent authorities in the said opposition submitted that the petitioner in his writ petition made incorrect averments, mislead this Court and got the interim order which should be vacated. ( 38 ) THE writ petitioner submitted his reply and reiterated bis stand taken in the writ petition, hi the reply, in paragraph 8 the writ petitioner stated that in the third charge was for the alleged unauthorized absence for the following periods: Year Period Days a) 1994 294 b) 1995 1-1-95 to 15-6-95 166 c) 1996 (16-10-96 to 16-11-96) And (26-12-96 to 31-12-96) 38 d) 1997 1-1-97 to 18-4-97. 108 e) 1998 19-3-98 to 18-4-98 31 ( 39 ) THE writ petitioner iii said paragraph 8 stated that amongst *the above period, the absence specified in clause (c) (d) and (e) above stood condoned through grant of leave even before the issuance of the third charge sheet on 21-07-1998 and the period of absence under clause (a)and (b) stood covered under the second disciplinary proceeding and as such the punishment under the third proceeding is absolutely baseless and mala fide. ( 40 ) THE petitioner in paragraph 9 of the reply took the same point that the Deputy Chairman was the disciplinary authority in first and second proceeding and in the third proceeding the Manager (P and E )>wno is lower in rank acted as disciplinary authority and the Deputy Chairman, here acted as appellate authority and again review petition was considered allegedly by the Chairman. According to the petitioner, this is ex facie in violation of the Calcutta Port Trust Employees' (Classification, Control and Appeal) Regulations, 1987 (hereinafter termed as said regulations ). SUBMISSIONS ( 41 ) THE learned Counsel for the petitioner submits that the contents of the charge sheet of second and third disciplinary proceeding are same and when conducting the enquiry in the third proceeding the enquiry authorities didn't consider the materials of the second proceeding. ( 42 ) THE learned counsel further submitted that this is imposition of double penalty inasmuch as the period of absence of the year 1994-95 has once been considered and punishment imposed on the same. There cannot be second, enquiry in respect of the same absence of 1994-95. According to the learned Counsel, the enquiring- authority would have considered this aspect. The learned counsel refers to the decision reported in 1996 Vol. (1} CHN 147 (Shri Swapan Ray vs. Indian Airlines and Ors. ). The learned counsel relied on the observations made in paragraph 19 and 27 of this decision which are quoted hereinbelow: "19. In State of Assam and Anr. vs. Mahendra Kumar Das and Ors. The learned counsel refers to the decision reported in 1996 Vol. (1} CHN 147 (Shri Swapan Ray vs. Indian Airlines and Ors. ). The learned counsel relied on the observations made in paragraph 19 and 27 of this decision which are quoted hereinbelow: "19. In State of Assam and Anr. vs. Mahendra Kumar Das and Ors. , reported in AIR 1970 SC 1255 , the Apex Court held : "but we have to state that it is highly improper for an Enquiry Officer during the conduct of an enquiry to attempt to collect any materials from outside sources and not make that information, so collected, available to the delinquent officer and further make use of the same in the enquiry proceedings. There may also be cases where a very clever and astute enquiry officer may collect outside information behind the back of the delinquent officer and without any, apparent reference to the information so collected, may have been influenced in the conclusions recorded by him against the delinquent officer concerned, If it is established that the material behind the back of the delinquent officer has been collected during the- enquiry and such material has been relied on by the enquiry officer, without its having been disclosed to the delinquent officer, it can be stated that the enquiry proceedings; are vitiated," "27. The enquiry proceeding, in my opinion, as would appear from the discussions made hereinbefore is vitiated for more than, one reason:. . . . . . . . . 3. The enquiry officer would net have considered any evidence behind the back of the delinquent. As noticed hereinbefore, he had taken into consideration various circulars, report of the vigilance officer of indian Airlines and various ether materials behind the back of the petitioner without giving him opportunity to rebut the same. 5. The enquiry officer had taken into consideration various irrelevant and extraneous matters which was not germane for the purpose of holding the enquiry. It is also well known that any punishment imposed on the basis of a finding, which was not the subject matter of charges is wholly illegal. In State Of Punjab vs. Balkishen Singh, reported in 1972 SLR page 85 the Apex Court held that enquiry officer cannot go beyond the complaint. In Director Inspection and Quality Control Export Inspection council of India and ORB. as. Kaiyan Kumar Mitra and Anr. In State Of Punjab vs. Balkishen Singh, reported in 1972 SLR page 85 the Apex Court held that enquiry officer cannot go beyond the complaint. In Director Inspection and Quality Control Export Inspection council of India and ORB. as. Kaiyan Kumar Mitra and Anr. , reported in 1987 (2) CLJ page 344 this Court has clearly held that the enquiry officer must be free from bias. The enquiry officer, on his own showing, proceeded to take into consideration the irrelevant materials and failed to'take into consideration the relevant facts, and thus committed a self-misdirection. " ( 43 ) THE learned counsel further submitted that enquiry has vitiated insofar as the third proceeding is concerned inasmuch as in the third proceeding the enquiry authority observed "accordingly, with respect to the charge to be enquired into in contention of my enquiry in this case the relevant context of my report dated 27-08-1999 as aforementioned, is produced below". The learned counsel submits that the enquiring authority cannot take into consideration the extraneous materials and in this case the enquiring authority without making any independent enquiry relied on the earlier enquiry report dated 27-8-1999 ^which is illegal. ( 44 ) THE learned counsel then submitted that the punishment imposed by reducing the pay of the petitioner is a major penally and is shockingly disproportionate to the charges leveled, against him, In this context the learned counsel refers to the decision reported in 2001 Vol. (2) CHN 758 (Ashoke Chakraborty vs. Unoan of Indiaand Ors. ). The learned counsel laid stress on the observations made in paragraph 4 of this judgment which is quoted hereinbelow. "4. In other judgment reported in AIR 1997 SC 3387 (Union of India and Anr. vs. Ganayutham) in its paras-29 and 30 it has been held that any fundamental freedom is affected when there is a question of 'proportionality'. If the Punishment is disproportionately affecting a person then the law court should interfere with the same in an appropriate manner after coming to an appropriate conclusion in this respect. So far as AIR 1998 SC 948 (Colour Chem Limited vs. AL. Alaspurkar) is concerned, the writ court interfered even in a question of the matter to be adjudicated by the appropriate industrial court when it has found that the unfair labour practice is apparent from tfe face of it If one is victimized, by way of an unfair labour practice. Alaspurkar) is concerned, the writ court interfered even in a question of the matter to be adjudicated by the appropriate industrial court when it has found that the unfair labour practice is apparent from tfe face of it If one is victimized, by way of an unfair labour practice. the same cannot be overthorwa in the gard of the technicality of having alternative remedy beoause. it has gone down to the extent of constitutional safeguards. ( 45 ) THE learned counsel submitted that in the aforementioned judgment it has been observed that if the punishment is shockingly disproportionate to the charges, the Court can interfere. ( 46 ) THE learned counsel submitted that in the third proceeding (impugned herein) the punishment awarded by the disciplinary authority is "the penalty of reducing the present pay of the petitioner with immediate effect for a period of five years with Cumulative effect and during the period of five years he will hot he considered for any promotion with the direction to improve the conduct failing which spingent action will be taken against him. " The learned counsel submits that this impugned order of penalty is based on a vitiated enquiry and the" Manager (Pande) cannot be the disciplinary authority and this order is, as such without jurisdiction. ( 47 ) THE learned counsel submitted that when in the first and second disciplinary proceeding the Deputy Chairman acted as disciplinary authority, in the third proceeding Manager (P and E) being lower in the rank insofar as the administrative hierarchy is concerned, cannot act as disciplinary authority. ( 48 ) THE learned counsel also submitted that the final order is a result of bias and/or mala fide inasmuch as same absence has been taken into consideration in both the proceeding, second and third. ( 49 ) NOW, the learned counsel submitted that he was not allowed to inspect the relevant documents on which the enquiring authority relied upon and/or he has not even been given the copies of the relevant documents and withoutserving the documents on the charge sheeted employee the enquiry cannot proceed and as such the enquiry has been vitiated by bias and/or malice. The learned counsel in this regard relied on a judgment delivered by a. Hon'ble Division Bench, presided over by the Hon'ble the Chief Justice and reported in 2002 VOL. (2) CHN 29. The learned counsel in this regard relied on a judgment delivered by a. Hon'ble Division Bench, presided over by the Hon'ble the Chief Justice and reported in 2002 VOL. (2) CHN 29. The learned counsel referred to the observations made in paragraph 11 of this judgment and submitted that such type of proceeding has been found to be erroneous by the Hon'ble Division bench. ( 50 ) THE learned counsel therefore, submitted that the disciplinary proceeding, the final order and the appellate and/or review order should be set aside inasmuch as the proceeding is being vitiated starting from the enquiry onwards. , ( 51 ) IN his reply to the argument advanced on behalf of the respondents that these points were not advanced at the initial stage. Mr. Chakraborty, the learned counsel submitted. that these are questions of law which can be raised at any point of time and even by the Court suo moto. The learned counsel Mr. Chakraborty relied on a decision reported in 2003 Vol. (1)CHN 648 (CESC Limited fit Anr. vs. Board of Councillor, Bhatpara municipality fit Ors. ). The learned counsel specifically refers to the observations made by the learned Single Judge in paragraph 13 which is quoted hereinbelow: "13. The next question is whether such a pure question of law can be raised by the court suo moto even though such point has not been raised by the petitioners. The grievance of the petitioners herein is that the Municipality cannot realize any amount in excess of the one fixed by law. If in deciding such a case it appears to the court that the authorities below failed to take notice of a provision of law which stands in the way of the Municipality to claim the charge at the rate in such a case, the Municipality however must be given an opportunity of heating to meet such point. After alt, a writ court is within its competence to take judicial notice of any law of the land and if it appears that in a given case any such law confers a right upon the petitioners which is sought to be infringed by the State in ignorance of the same, the court can by relying upon such law protect the interest of the petitioner. Therefore, if it is established that the proposed construction comes within the purview of Section 2 (K) (i), the question being one of jurisdiction, can be entertained within the scope of judicial review. " ( 52 ) CONCLUDINGLY, Mr. Chakraborty appearing for the petitioner submitted that the summary of his submissions is as follows: 1) The second and third proceeding initiated against him relates to same alleged charge and a person cannot be penalized twice. 2) The Manager (P and E) cannot act as disciplinary authority. 3) The petitioner is not given opportunity of hearing neither he was given the copies of relevant documents on which the enquiring authority relied upon. 4) The disciplinary authority acted illegally by directing the enquiring authority to hold a fresh enquiry in respect of the same proceeding. The learned counsel in this regard also relied on a judgment of this High Court reported in 98 CWN 164 where it has -been observed that the findings and decision of the disciplinary authority are nothing but perverse since the said authority had merely reiterated the earlier final order passed by the predecessor-in-office and not proceeded with the case with an open mind after passing- of the order of remand by the. , appellate authority. ( 53 ) THE learned counsel submitted that such a remand by the disciplinary authority for a fresh enquiry is not only mala fide but also biased. The learned counsel submitted that twice one enquiry was held in respect of one disciplinary proceeding but the report could not substantiate the charges labelled against the petitioner and on the contrary the finding of the enquiry officer is otherwise, ultimately goes in favour of the petitioner. ( 54 ) ACCORDING to the learned counsel far the petitioner the proceeding is bad, he has been vexed twice for the same offence, he has not been given opportunity of hearing and even if he has not been given the relevant documents or copies of the documents and the whole proceeding goes to show that it was an intention to victimize the petitioner. ( 55 ) THE learned counsel for the respondent authorities submitted that the submissions of the learned counsel for the petitioner are misleading. ( 55 ) THE learned counsel for the respondent authorities submitted that the submissions of the learned counsel for the petitioner are misleading. The learned counsel referred to Regulation 7 (v), 7b, 8a (1) (ii), 8a (3), 15 (ii), 16 (ii) and 23 (1) of the Calcutta Port Trust Employees' (Classification, control add Appeal Regulations, 1987) to substantiate his defence. The said regulations are quoted hereinbelow: "7. The following penalties, may for good and sufficient reasons and or in hereinafter provided be imposed on an employee, namely: major penalties : (v) Redaction to a lower stage in a time-scale of pay for a specified period with further direction as to whether or not the employee will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction win or win not have the effect of postponing the future increments of his pay;" "7b. Disciplinary authorities-The authorities mentioned in the schedule 'a' shall be competent to impose penalties on the employees as indicated in the said schedule. Schedule "a" Categories of employees in Class III posts. Sri. No. 3 employees of pay scales, the maximum of which exceeds Rs. 927/-but do not exceed Rs. 1679/ -. Disciplinary Authority concerned Manager of Division at Haldia pock Complex for imposing penalties except items (vii), (viii) and (ix) of Regulation 7. Appellate Authority deputy Chairman for employees of Haldia Dock Complex. "8a. Action on the enquiry report.- (1) (ii) the Disciplinary Authority shall if it disagrees with the findings of the Enquiring Authority on any article of charge, record its reasons for such disagreement and record its own finding on such charge, if the evidence-on-records is sufficient for the purpose;" "8a (3 ). If the Disciplinary Authority having regard to its findings on all or any of the articles of charge and on the basis of evidence adduced during the enquiry, is of the opinion that any of the penalties specified in Clauses (v) to (ix) of Regulation 7 should be imposed on the employee itself make an order imposing such penalty and it shall not be necessary to give the. employee any opportunity of making representation on the penalty proposed to be imposed. "15. employee any opportunity of making representation on the penalty proposed to be imposed. "15. Orders against which appeals lies:- Subject to provision of regulation 14, an employee may prefer an appeal against all or any of the following orders, namely: (ii)an order imposing any of the penalties specified in Regulation 7 made by the disciplinary authority.-"16. Appellate Authorities: An employee, including a person who has ceased to be in the Board's service, may prefer an appeal against- (ii)an order imposing any of the penalties specified in Regulation 7, to the authority specified in this behalf in the schedule. " "23 Review-Appellate Authority may a) confirm, modify or set aside the order; b) confirm, reduce, enhance or set aside the penalty imposed by the order. (3) An application for review shall be. dealt with in the same manner as if it were an appeal under these regulations. " ( 56 ) THE teamed counsel for the respondent authorities submitted that as would appear from Schedule-"a" of Regulation 713, Manager of a division can be a disciplinary authority excepting in item nos. (vii), (viii)and (ix) but here, the petitioner has been punished which comes under the heading 7 (v) and as such this contention of the learned counsel for the petitioner that the authority is without jurisdiction in imposing penally is not tenable in law. ( 57 ) THE learned counsel relied on Regulation 8a and submitted that if any of the penalties specified in Clauses (v) to (ix) of Regulation 7, the same may be imposed on the employee without giving any opportunity of making representation on the penalty proposed to be imposed. The learned counsel in this context relied on a decision reported in 1984 (supp.) SCC 87 (Associated Cement Co. Ltd.) and submitted that in this judgment the Hon'ble Apex Court has held "unless the standing order provides far second opportunity to show cause against the proposed punishment either expressly or by necessary implication, no other enquiry which is otherwise fair and valid will be vitiated by non-affording of such second opportunity. ( 58 ) THE learned counsel submitted that second show cause is not required after the 42nd Amendment to the Constitution of India. ( 58 ) THE learned counsel submitted that second show cause is not required after the 42nd Amendment to the Constitution of India. ( 59 ) IN reply to the submissions made by the learned counsel for the petitioner where the learned counsel submitted that the appellate authority when considering the statutory appeal did not give reasons or did not apply its mind, the learned counsel for the respondent authorities relies on a decision reported in AIR 2001 SC 1767 (Deokinanda Sharma as. Union of India and Ors. ). The learned counsel specifically referred to the observations made by the Hon'ble Apex Court in paragraph 6 and 7 of this judgment where it has been held "upon perusal of the petition of appeal it appeared that there is no whisper of the ground taken in Court therefore, it is not possible to allow appellant to raise this point before the court" ( 60 ) FURTHER held appellate authority having taken into consideration all points raised after duly considering the entire matter, dismissed the appeal order cannot be challenged on ground that appellate authority committed error in ddisposing of the appeal without recording reasons and considering submissions made on behalf of the delinquent. ( 61 ) THE learned counsel for the respondent authorities submitted that regulation 16 and 20 provide for dealing with the appeal by the appellate authority and in this case the appellate authority dealt with the appeal in terms of the said Regulation. ( 62 ) THE learned Counsel then submitted that if the order of appellate authority is an order of affirment then it is not obligatory on the part of the appellate authority to pass a speaking order provided the order showed application of mind. The learned counsel in this regard relied on a decision reported in 1994 (Supp.) Vol (2) SCC 468 (State Bank of india vs. S. S. Koshal ). The learned counsel laid stress on the observations made in paragraph 8 of this judgment. ( 63 ) THEN the learned counsel far the respondent submitted that in the decision reported in AIR 1998 SC 2713 (Punjab National Bank of ors. The learned counsel laid stress on the observations made in paragraph 8 of this judgment. ( 63 ) THEN the learned counsel far the respondent submitted that in the decision reported in AIR 1998 SC 2713 (Punjab National Bank of ors. vs. Kunj Behari Misra) it has been observed that if the disciplinary authority agrees with the enquiring authority on any article of charge, then before it records its own finding on such charge must record its tentative reasons for such, disagreement and give the delinquent an opportunity to represent. The learned counsel, on specific relied on the observations made in paragraph 19 and 20 of this decision which are quoted hereinbelow: "19. The result of the aforesaid discussion would he that the principles of natural justice have to be read into Regulation 7 (2 ). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its, own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the inquiry officer. The principles of natural justice as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to ghve an opportunity to the officer charged of misconduct to file representation before the disciplinary authority records its findings on the charges framed against the officer. " "20. The aforesaid conclusion, which we have arrived at, is also in consonance with the underlying principle enunciated by this Court in the case of Institute of Chartered Accountants ( AIR 1987 SC 71 ) (supra), While agreeing with the decision in Ram Kishan's case (1995 AIR SCW 4027) (supra), we are of the opinion that the contrary view expressed in S. S. Koshal (1994 AIR SCW 2901) and MX. Saxena's ease (1998 AIR SCW 965) (supra) do not lay down the correct law. " ( 64 ) IN the same line the learned counsel relied on paragraph 14 and 15 of another judgment reported in AIR 1966 SC 1827 (State of Madras os. A. R. Srinipasan ). Saxena's ease (1998 AIR SCW 965) (supra) do not lay down the correct law. " ( 64 ) IN the same line the learned counsel relied on paragraph 14 and 15 of another judgment reported in AIR 1966 SC 1827 (State of Madras os. A. R. Srinipasan ). ( 65 ) THE learned counsel for the respondent authorities submitted that from the records it would appear that the petitioner committed offence in three occasions and three different proceedings were initiated against him and the petitioner tried to mislead the Court by submitting that second and third proceeding contain the same offence. The learned counsel also submitted that here, the disciplinary authority, is within its jurisdiction and had* acted in terms of the said Regulation. ( 66 ) THE learned counsel also submitted that the appellate authority and/or the reviewing authority applied its mind, considered the claims and contentions of the petitioner and passed the order which cannot be termed to be unreasonable and the writ petition, as such should be dismissed and all interim orders should be vacated. DECISION ( 67 ) HEARD the learned counsel for the parties. The only basic thing which is to be looked into first as to what are the charges labelled against the petitioner in three different proceeding mainly in second and third proceeding. ( 68 ) IN the second proceeding Articles of Charge-I and II are as follows: article of Chnrge-I thai Shri Basudeb Soren, L. O. Clerk, P and E Division, Haidia Dock complex is charged with gross misconduct inasmuch as he has been reported to be absenting from duties unauthorisedly since 8-10-1991 without prior permission. The above act of the said Shri Soren, if proved, will amount to unauthorized absence from duties for a prolonged period implicating desertion from service, which is a gross misconduct. Article of Charge-II that Shri Basudeb Soren, L. D. Clerk, P and E Division, Haldia Dock complex is charged with gross misconduct inasmuch as it is alleged that he had a poor record of attendance as given under Article of charge-I above, inspite of the fact that he was warned that he should improve his attendance on offence and there should be no recurrence of unauthorized absence on his part in future vide memorandum No. Disc. /339/549 dated. 25. 09. 1991 issued to him. /339/549 dated. 25. 09. 1991 issued to him. The above act of the said Sim Soren, if proved, will amount to recurrence of committing, similar misconduct>on his part showing service lack of. discipline which is a gross misconduct. In the third proceeding the Articles of charge are as follows;. Article of Chorge-I it has been revealed from records that Shri Basudeb Soren, L. D. Clerk, P and E Division is a habitual unauthorized absentee in-as-much-as he has been absenting himself for 294 days in 1994, 166 days in 1995, 38 days in 1996, 108 days in 1997 and 31 days in 1998. The details of unauthotised absence of the said Shri Soren are given hereunder: Year Period of absence No. of days 1994 13-3-94 to 31-12-94 294 days No pay 1995 1-1-95 to 15-6-94 166 days No pay 1996 (16-10-96 to 16-11-96) (26-12-96 to 31-12-96) Remarks (6 days) No pay (32 days) No pay 38 days No pay 1997 1-1-97 to 18-4-97 108 days No pay 1998 19-3-98 to 18-4-98 31 days No pay The said Shri Soren has been unauthorisedly absenting himself as stated herein above, inspite of having been issued with caution. / warning letters Nos. DM (Ops)/294/p-139/641 dt. 19-11-96. Article of Charge-II shri Basudev Soren, L. D. Clerk, Pande Divtsion was issued with memorandum no. Disc/339/1047 dt 8-2-91 for remaining continuously absent in an unauthorized manner from 12-11-90 and absenting for 8 days in 1989 (just after joining in service under Haldia Dock Complex on 2-9-98) and for 130 days in 1990 (till 15-10-90) Shri Soren was warned vide memorandum No. Disc. /339/549 dt. 25-9-91 to improve bis attendance on Office and also to avoid any recurrence of unauthorized absence on bis part in future. The said Shri Soren was issued with memorandum no. Disc. /393 /605 dt 17-10-92 for remaining absent continuously in an unauthorized manner since 8-10-91 and was imposed with the penalty of reduction of pay to the lowest stage in his time scale of pay for a period of three years, on expiry of which, the reduction will not have the effect of postponing his future increments of pay vide order no Disc:/393/185 dt. 19-6-95. Hence, the charge. " ( 69 ) THE only order dated 15-06-1995 issued by the Manager (Pande) when granting permission for resumption of duty comes into play. 19-6-95. Hence, the charge. " ( 69 ) THE only order dated 15-06-1995 issued by the Manager (Pande) when granting permission for resumption of duty comes into play. The said order is as follows: Calcutta Port Trust Manager (P & E)'s Office, Haldia Dock Complex No. DM (M & D)/294/p-139/173 Dated: 15-6-95 Sri basudev Soren, L. D. C. , p&e DW. Sub: Permission for resumption of duty. Reference your application dated 01-06-1995 praying for subject permission. as per Order of the competent authority, you are hereby allowed to resume duty with effect from 16-06-95 without prejudice to the final order of the appropriate authority on the disciplinary proceedings pending against you. However, your period of absence from 4-10-93 to till date of joining will be dealt with separately. Manager (P&e), Haldia Dock Complex. ( 70 ) IN this order it has been written "however, your period of absence from 4-10-93 to till date of joining will be dealt with separately" but in the said proceeding when passing the final order, the authority observed "but it is come into evidence that CSF has failed to comply with the directions and remained unauthorisedly absent for two spells of prolonged periods. "then again, in the instant disciplinary proceeding the authority considered the period of absence in 1994-95 which has been reflected from the affidavit-in-opposition paragraph 2 (v) (originally in the nature of application for vacating ). In this paragraph it has been written that proceeding vide memorandum dated 21-7-1998 was for bis unauthorized absence for 294 days in 1994, 166 days in 1995, 38 days in 1996, 108 days in 1997 and 31 days in 1998 and for recurrence of misconduct of unauthorized absence. In that view of the matter, from records it clearly appears that the period of absence of the year 1994-95 has been taken into consideration twice. That apart the period of absence in 1996-97 and 1998 have been regularized by grant of leave due to the credit of the petitioner under different headings, without coming into any other controversy as to whether the punishment is disproportionate or not, as to whether authority should be Manager or the Deputy Chairman, as to whether documents were supplied to the petitioner or not, it clearly appears that the petitioner was vexed twice for the same offence. The authority, in my opinion also acted illegally by directing the enquiring authority to reopen the same enquiry and the appellate authority also didn't consider the fact that the petitioner is being penalized twice for the same offence. In that view of the matter the charge sheet issued goes. Though, normally, the Writ Court should not enter into the charges but in the instant case since the charge sheet is based on wrong ground and is a result of official bias, the charge sheet should be quashed. Accordingly, the enquiry proceeding is also set aside and the consequent orders passed by the disciplinary authority, appellate authority and/or reviewing authority are set aside. ( 71 ) THE writ petition is therefore, allowed. ( 72 ) THE petitioner will be placed in the same scale and position with all consequential benefits where the petitioner would have been placed or what benefits the petitioner would have got had he not been fastened with such disciplinary proceeding. ( 73 ) THE benefits, as communicated above, would be given to the petitioner within a period of four weeks from the date of communication of this order. ( 74 ) THERE will be no order as to costs. ( 75 ) URGENT xerox certified copy, if applied for, will be given to the parties as expeditiously as possible. Writ allowed.