( 1 ) A show-cause notice dated 15. 11. 2002, issued by the Chairperson, kaliaganj Municipality has been subjected to challenge in the present writ proceeding at the instance of the petitioner who, at the material time, was working in the said Municipality as an Assignment Inspector. The petitioner was sought to be proceeded against for committing misconduct of temporary defalcation of public fund, insubordination and for raising incorrect and inconsistent pleas for obtaining leave on medical ground. ( 2 ) THE show-cause notice was challenged not on the ground that the Chairperson had no authority to issue the same or that the" same did not disclose any offence or that the allegations were vague. On the contrary, the same was assailed on the ground that before initiation of disciplinary, proceeding against the petitioner, a First Information Report had been lodged on 3. 7. 02 in relation to an allegation of defalcation of fund by the petitioner, giving rise to Kaliaganj Police Station Case no. 84/02 dated 3. 7. 02 under Section 409 of the Indian Penal Code and since criminal proceeding was pending on the charge of temporary defalcation alleged against the petitioner in the show-cause notice, the continuation of parallel proceedings, viz. criminal proceeding and departmental proceeding would compel the petitioner to disclose his defence which ultimately would prejudicially affect him in the criminal proceeding. In the writ petition, the relief sought for is as follows:- (a) To issue a writ in the nature of mandamus commanding the respondents, namely, respondent Nos. 2, 3 and 4 to keep the departmental proceeding initiated on the basis of charge-sheet dated 15. 11. 2002 issued by the Chairman, Kaliaganj Municipality in abeyance till the disposal of the criminal case being Kaliaganj P. S. Case No. 84/02 dated 03. 07. 2002 (G. R. Case No. 380/02), now pending before the learned Sub-Divisional Judicial Magistrate, raiganj, and/or (b) To issue a writ in the nature of certiorary calling upon the respondents to transmit and produce the record of the case at the time of hearing of this application, so that conscionable justice may be administered to the petitioner upon perusal thereof. ( 3 ) THE writ petition was heard on 24. 1. 2003. Though they were put on notice, the Municipal authorities did not appear. The departmental proceeding initiated against the petitioner was stayed for a limited period. Thereafter, on 19. 2. ( 3 ) THE writ petition was heard on 24. 1. 2003. Though they were put on notice, the Municipal authorities did not appear. The departmental proceeding initiated against the petitioner was stayed for a limited period. Thereafter, on 19. 2. 2003 the writ petition was admitted when the Municipal authorities again chose not to be represented and the interim order was extended until further orders. It is not disputed that in compliance with the interim order passed by this Court, the respondents did not proceed with the disciplinary proceeding against the petitioner. ( 4 ) THE respondents filed an application for vacating the interim order dated 24. 1. 2003, since extended by the order dated 19. 2. 2003, but the interim order was not vacated. However, the application was kept pending. ( 5 ) DURING pendency of the writ petition, the petitioner filed an application for appropriate order being C. A. N. No. 4537/06 praying for release of subsistence allowance. On such application, certain orders were passed by a learned Single Judge of this Court directing release of subsistence allowance in favour of the petitioner in accordance with law. ( 6 ) THE writ petition along with the pending applications came up for consideration before this Court on exchange of affidavits. In course of hearing, jt was represented on behalf of the petitioner that the criminal proceeding which was initiated against the petitioner has also been stayed by this Hon'ble Court exercising Criminal Revisional Jurisdiction. ( 7 ) IN such circumstances, Mr. Banerjee, learned Advocate representing the petitioner did not pray for any order in terms of prayer (a) extracted above. He, however, assailed the disciplinary proceeding on a plea which does not find place in the writ petition but has been taken in the supplementary affidavit filed on behalf of the petitioner, affirmed on 14. 2. 2006. ( 8 ) THE petitioner has, by filing the supplementary affidavit, questioned the show-cause notice issued by the Chairperson on the ground that at the time of issuance of the same, the guilt of the petitioner had been prejudged apd/or pre-determined by the Chairperson and, as such, it would be absolutely futile for the petitioner to face the disciplinary proceeding. In this connection, the petitioner has referred to the show-cause notice whereby the petitioner was "required to show-cause against dismissal/termination" of his service within 15 days on the charges mentioned therein. In this connection, the petitioner has referred to the show-cause notice whereby the petitioner was "required to show-cause against dismissal/termination" of his service within 15 days on the charges mentioned therein. It is the contention of his learned Counsel that since this demonstrates the negative mindset of the Chairperson at the very inception of the disciplinary proceeding, continuation of the proceeding would be nothing but an idle formality and that dismissal of the petitioner from service is a foregone conclusion. ( 9 ) HE further contended that since the petitioner was asked to show-cause against proposed dismissal/termination of service without there being a formal enquiry into his conduct, this Court ought to set aside the show-cause notice. ( 10 ) IN support of such submission, Mr. Banerjee relied on the following decisions:- (1) 2001 (2) SCC 330 ,state of Punjab v. V. K. Khanna, (2) 2002 (1) CLJ 203, Sanjoy Kumar Singh v. Union of India and Ors. , (3) 1968 Lab 1c 735, Gouri Pr. Ghosh v. State of West Bengal, (4) AIR 1958 SC 300 , Khem Chand v. Union of India and Ors. , (5) AIR 1956 Cal 662 , A. R. S. Choudhury v. The Union of India and Ors. , and (6) AIR 1961 Cal 626 , Sudhir Ranjan Haider v. State of West bengal and Anr. ( 11 ) IN so far as the allegation regarding non-payment of subsistence allowance is concerned, he contended that during the period the order keeping the petitioner under suspension is in continuation he is entitled to subsistence allowance as per rules and, therefore, the Municipality ought to be directed to release subsistence allowance as per his entitlement. ( 12 ) MR. Das, learned Senior Counsel appearing for the Municipality vehemently opposed the contention advanced on behalf of the petitioner. It is his submission that the petitioner cannot travel beyond the prayers made in the writ petition without amending the same and the Court ought to confine itself to the prayers made. in the writ petition. In this connection he cited the following decisions:- (1) AIR 1984 SC 186 (para 27), Krishna Priya Ganguly v. University of Lucknow and Ors. , (2) AIR 1986 All 154 (para 32), Dilip Singh Yadav v. The. in the writ petition. In this connection he cited the following decisions:- (1) AIR 1984 SC 186 (para 27), Krishna Priya Ganguly v. University of Lucknow and Ors. , (2) AIR 1986 All 154 (para 32), Dilip Singh Yadav v. The. Pracharya and Adhikshak, (3) AIR 2002 SC 665 (paras 12 and 13), Om Prokash Gupta v. Ranbir B. Goyal, and (4) 2006 (5) SCC 515 (para 7), National Board of Examinations v. G. Anand Ramamurthy and Ors. ( 13 ) IT was next contended, by him that the points sought to be urged by the learned Counsel for the petitioner that the Chairperson had a negative mindset while issuing the show-cause notice is absolutely misconceived. He referred to the penultimate paragraph of the show-cause notice whereby it was conveyed that the Vice-Chairperson of the municipality had been appointed as the disciplinary authority to dispose of the disciplinary proceeding against the petitioner and he was asked to submit written version, against the charges levelled before her, if the petitioner was willing to be heard in person. It is his submission that the municipality having expressed its intention to hear the petitioner prior to passing any final order, the apprehension of the petitioner that a decision has already been taken to dismiss him from service or to terminate his service is without basis. In this connection he invited the attention of this court to the decision of the Division Bench of this Court reported in 80 cwn 517, Sudhir Chandra Chakraborty v. State of West. Bengal for the proposition that if the enquiry be conducted in compliance with the principles of natural justice, mere mention of proposal of punishment in the show-cause notice/charge-sheet would not vitiate the enquiry. ( 14 ) REGARDING the contention of non-release of subsistence allowance in favour of the petitioner, he, however, submitted that the petitioner would be paid subsistence allowing in accordance with the extant rules subject to adjustment of amounts already received by the petitioner in terms of interim orders passed by this 'court. ( 15 ) IN reply, Mr. Banerjee submitted that although the point of prejudgment/pre-determined mind had not been taken in the writ petition but having been taken in the supplementary affidavit, the Municipality had due notice of the point raised by the petitioner and the Court should not be guided by technicalities. ( 15 ) IN reply, Mr. Banerjee submitted that although the point of prejudgment/pre-determined mind had not been taken in the writ petition but having been taken in the supplementary affidavit, the Municipality had due notice of the point raised by the petitioner and the Court should not be guided by technicalities. So far as appointment of the Vice-Chairperson as the disciplinary authority is concerned, it is his submission that the municipality is the disciplinary authority of the petitioner and the proceeding sought to be continued with the Vice-Chairperson as the disciplinary authority would be dehors the provisions of the Municipal laws governing the field. Accordingly, he prayed for setting aside of the disciplinary proceeding as well as the order of suspension and for an order directing the Municipality to permit the petitioner to resume service. ( 16 ) THIS Court has heard the rival submissions at the bar and has considered the materials-on-record as well as the decisions cited on behalf of the parties. ( 17 ) REALLY, with the abandonment of prayer (a) by the petitioner, nothing survives to be tested in the present petition. The decisions cited by Mr. Das, learned Senior Advocate on the point are apposite and this court would be well within its right to refuse relief to the petitioner on the ground that in the absence of amendment of the writ petition, relief as sought for in terms of pleadings contained in the application for interim order and the supplementary affidavit cannot be granted. However, mr. Banerjee urged this Court not to be guided by technicalities and to proceed to grant relief to the petitioner on the basis of the pleadings contained in the supplementary affidavit filed by him as well as the application for interim order. ( 18 ) THIS Court accepts the passionate appeal of Mr. Banerjee not to be guided by technicalities. After all, the grievance raised by the petitioner is on record and the Municipality had the Opportunity of controverting the same. It is, therefore, not a case where the Municipality has been taken by surprise. However, the point that is to be decided is whether the petitioner is entitled to succeed, based on the contention that the action of the Municipality in proceeding against the petitioner departmentally suffers from pre-judgment/pre-determined mind pf the Chairperson or not. It is, therefore, not a case where the Municipality has been taken by surprise. However, the point that is to be decided is whether the petitioner is entitled to succeed, based on the contention that the action of the Municipality in proceeding against the petitioner departmentally suffers from pre-judgment/pre-determined mind pf the Chairperson or not. ( 19 ) IT is settled law, as has been laid down in the decisions cited on behalf of the petitioner, that a disciplinary proceeding is initiated in order to ascertain as to whether the delinquent employee who is charged with misconduct is guilty or not. Burden of proving that the employee is guilty, normally, is on the management/employer. It is only after an enquiry is conducted in accordance with the principles of natural justice and a report is submitted by the enquiry officer holding that the charges of misconduct levelled against the employee stand established that the employer can enter into the arena of considering whether the delinquent employee is to be retained in service or not or while retaining him in service, to impose any other punishment on him which is permissible in accordance with the applicable rules. Question of dismissal of the delinquent employee would arise after the employee concerned having been found guilty of misconduct warranting major punishment gives his reply to the report of the Enquiry officer holding him guilty or where there is a provision for issuance of second show-cause notice, the petitioner is forwarded the report of the. Enquiry Officer together with the employer's tentative agreement with the finding of the Enquiry Officer and the provisional decision taken by the employer to punish him. Broadly, this being the procedure for holding a domestic enquiry, it is undesirable for the employer, while issuing show-cause notice or charge-sheet to indicate therein that the employee sought to be proceeded against is to show-cause against dismissal termination from service, and thereafter to grant opportunity to the delinquent employee to appear before an authority for personal hearing. The possibility of a delinquent employee being of the impression that the disciplinary authority having already taken a decision to dismiss him from service, the enquiry proposed to be conducted against him would be one to complete a formality in law cannot be ruled out. The possibility of a delinquent employee being of the impression that the disciplinary authority having already taken a decision to dismiss him from service, the enquiry proposed to be conducted against him would be one to complete a formality in law cannot be ruled out. It is in these circumstances, where the employee perceives a real danger of bias together with the feeling that justice would not be meted out to him, that a complaint of the nature sought to be raised by the learned Counsel for the petitioner in this case, can be examined having due regard to the surrounding facts and circumstances and conclusions can be drawn therefrom and if it is found to have some merit, the Court would consequently consider the extent of relief that can be granted. ( 20 ) THE show-cause notice in the present case was issued on 15. 11. 02. It appears from the materials-on-record that by his representation dated 28. 11. 02, the petitioner had replied to the show-cause notice. From the said representation it does not appear that the petitioner had expressed any apprehension that the issue sought to be investigated had been prejudged and/or pre-determined and that the same having been initiated to complete a formality in law, he would not receive justice. It appears that only due to pendency of criminal proceeding on the charge of defalcation of public money that the petitioner had requested the Chairperson of the municipality to keep the disciplinary proceeding in abeyance till such time the criminal proceeding is concluded so that his defence in the criminal proceeding is not disclosed by his participation in the disciplinary proceeding. Therefore, it is clear that had there been no criminal proceeding initiated against the petitioner on the charge of defalcation, he would have participated in the proceeding and would have raised his defence on merits. If the petitioner had any doubt in his mind that the chairperson had not acted impartially or that by calling upon him to show-cause against dismissal/termination from service the issue had been pre-judged/pre-determined, the reaction would have been spontaneous. However, after more than 214 years from date of submitting his reply to the show-cause the petitioner for the first time has raised the point in the supplementary affidavit. However, after more than 214 years from date of submitting his reply to the show-cause the petitioner for the first time has raised the point in the supplementary affidavit. Apart from the offending phrase in the show-cause notice there is nothing in the surrounding circumstances from which a conclusion can be drawn that the Chairperson was biased against the petitioner or that the issue has been prejudged. The conduct of the petitioner is not such which appeals to this Court to take a view in his favour. ( 21 ) THE contention that Municipality being the disciplinary authority of the petitioner the Vice-Chairperson could not have been appointed disciplinary authority by the Chairperson is also not tenable in view of the provisions of Section 61 of the West Bengal Municipal Act, 1993. According to sub-section (1) thereof, the Chairperson is the disciplinary authority of the Municipal employees. In terms of sub-section (2) thereof, power of the Chairperson can be delegated by him. Delegation of power by the chairperson to the Vice-Chairperson thus cannot be said to be illegal. ( 22 ) THE decisions referred to by the learned Counsel for the petitioner have been considered. ( 23 ) IN V. K. Khanna (supra), the officer concerned being the former chief Secretary to the Government of Punjab had approached the Tribunal questioning the charge-sheet issued against him. Though the Tribunal held against him, the High Court ruled in his favour. The judgment of the high Court was upheld by the Apex Court. On the basis of the facts presented, which were indeed glaring, it was held that there was real danger of bias and not a mere apprehension of bias and, accordingly, the challenge of the officer concerned was upheld. The stage of the disciplinary proceeding when the Tribunal was approached is worth noting, for immediately after receipt of charge-sheet, the officer alleged that bias was the foundation of the same. Referring to the incidents preceding issuance of charge-sheet, the Apex Court agreed with the contention of the officer and confirmed the order of the High Court. The stage of the disciplinary proceeding when the Tribunal was approached is worth noting, for immediately after receipt of charge-sheet, the officer alleged that bias was the foundation of the same. Referring to the incidents preceding issuance of charge-sheet, the Apex Court agreed with the contention of the officer and confirmed the order of the High Court. The ratio of the decision is : whether there is a mere apprehension of bias or there is a real danger of bias has to be ascertained from the surrounding "circumstances and a conclusion has to be drawn therefrom, and if the facts reveal a real danger of bias the administrative action cannot be sustained whereas a fanciful apprehension pf bias would not be a ground for interfering with administrative action: In this case, there is no such glaring fact which shocks the conscience of the Court and impels it to hold that by asking the petitioner to show-cause against dismissal/ termination, there was a real danger of bias for which the disciplinary action intended to be taken against the petitioner is to be nipped in the bud. ( 24 ) IN Sanjay Kumar Singh (supra), the decision of the authority to conduct enquiry without even receiving the reply of the delinquent was held to demonstrate a biased mind of the disciplinary authority. The rules governing the disciplinary enquiry in question do not contemplate disciplinary action against an employee being taken after considering his reply to the show-cause notice. If there be materials which would warrant initiation of disciplinary proceeding and the delinquent is asked to explain his conduct in relation to the charges framed against him, it is open to the disciplinary authority simultaneously to appoint an enquiry officer. Like provision is found in the West Bengal Services (Classification, Control and Appeal) Rules, 1971. Whether or not decision to hold enquiry should be taken only after receipt of a reply to the show-cause notice/charge-sheet would really be dependent on the Rules governing the enquiry. Learned Counsel for the petitioner failed to invite the attention of this Court to any provision which obliges the disciplinary authority to appoint an enquiry Officer only after consideration of the reply to the show-cause notice/charge-sheet. The ratio of the cited decision has no application on facts of this case. ( 25 ) IN Gouri Pr. Learned Counsel for the petitioner failed to invite the attention of this Court to any provision which obliges the disciplinary authority to appoint an enquiry Officer only after consideration of the reply to the show-cause notice/charge-sheet. The ratio of the cited decision has no application on facts of this case. ( 25 ) IN Gouri Pr. Ghosh (supra), a learned Single Judge of this Court held that where an enquiry against the delinquent officer is conducted on the basis of a show-cause notice consisting of the charges as well as the proposed punishment, the notice itself being invalid, the enquiry consequent thereto is illegal and any order of punishment based on such illegal enquiry, despite grant of further opportunity to show-cause as to why the proposed punishment shall not be inflicted, would not save such illegal enquiry and the punishment has to be set aside. However, in that case liberty was given to the employer to proceed afresh according to law. Mere mention of proposed punishment in the show-cause notice, in the humble view of this Court, would not invalidate an enquiry if the enquiry has been held fairly and in conformity with the principles of natural justice [see Sudhir Chandra Chakraborty (supra)] This Court is bound by this division Bench judgment and, therefore, feels free to disagree with the ratio laid down in Gouri Pr. Ghosh (supra ). ( 26 ) IN Khem Chand (supra), the order of penalty was set aside on the ground that no second show-cause notice having been issued granting opportunity to the delinquent to show-cause against the proposed punishment, he was deprived of reasonable opportunity which was in violation of Article 311 (2) of the Constitution and not on the ground that the charge-sheet having called upon him to show-cause as to why he shall not be dismissed from service was invalid, on the ground of projecting negative mindset of the disciplinary authority. The decision, therefore, is clearly distinguishable on facts. ( 27 ) IN A. R. S. Chowdhury (supra), the procedure that is to be followed in conducting a disciplinary enquiry has been classically laid down. The court found that at every stage of the departmental enquiry conducted against the railway servant, there had been violation of Rules for which it interfered. In the present case, the enquiry could not commence at all because of the injunction granted by this Court. The court found that at every stage of the departmental enquiry conducted against the railway servant, there had been violation of Rules for which it interfered. In the present case, the enquiry could not commence at all because of the injunction granted by this Court. This decision thus does not come to the rescue of the petitioner. ( 28 ) IN Sudhir Ranjan Haider (supra) the factual situation was the same as in Khem Chand (supra ). Since no second opportunity to show-cause was given against proposed penalty, as was mandatorily required by Article 311 (2) of the Constitution, the disciplinary action was interfered with. This decision, therefore, has no application in the present case. ( 29 ) THE petitioner intended to stall the disciplinary enquiry and has been successful so far. However, with the abandonment of prayer (a) and the finding of this Court that the petitioner had no good reason to comprehend a real danger of bias, the respondents ought to be granted the liberty to proceed with the disciplinary enquiry. It has been submitted on behalf of the Municipality that the then Vice-Chairperson is no longer holding office. Thus, it would not be inappropriate to give necessary directions for proper conduct of enquiry. Liberty is accordingly granted to the respondents to proceed against the petitioner departmentally in respect of Ihe charges framed against him. The Chairperson being the disciplinary authority shall be authorized to appoint an Enquiry Officer for unearthing the truth. The petitioner shall be granted reasonable opportunity of defending himself. If there be any document in the custody of the municipality which the petitioner might require for raising defence, he shall be at liberty to pray before the Enquiry Officer for being furnished with a copy of it. The Enquiry Officer shall be at liberty to examine the relevance of such document to the enquiry and to pass appropriate orders in this respect. No document shall be looked into by the Enquiry Officer unless copy thereof is given to the petitioner or at least opportunity of inspection is given to him for taking notes therefrom. If the petitioner chooses to be assisted by a fellow employee, he shall be at liberty to make such prayer before the Enquiry Officer a'nd the same shall be considered sympathetically. If the petitioner chooses to be assisted by a fellow employee, he shall be at liberty to make such prayer before the Enquiry Officer a'nd the same shall be considered sympathetically. The petitioner shall be given the opportunity to cross-examine witnesses produced by the employer and to produce witnesses and documentary evidence in defence. The Enquiry Officer upon consideration of the materials placed before him shall submit the report of enquiry supported with reasons. If the enquiry report is adverse to the petitioner's interest and calls for imposition of major penalty, he shall be granted opportunity to represent against the enquiry report. Based on the materials placed before the Enquiry Officer, the report of enquiry and the petitioner's objection there against, the Chairperson shall pass final order in accordance with law. ( 30 ) SINCE the disciplinary enquiry could not be proceeded with during the last 4 years, the same in terms of this order shall be completed as expeditiously as possible. The petitioner shall co-operate and shall not seek unnecessary adjournment. ( 31 ) TILL such time the petitioner is kept under suspension, he shall be entitled to subsistence allowance according to Rules. The arrears be paid to him after making necessary adjustment with the amounts already paid in terms of orders passed by this Court. Such payment be effected within 31st July, 2007. The petitioner, however, shall be entitled to current subsistence allowance as per Rules. ( 32 ) WITH the aforesaid directions the writ petition along with all connected applications stand disposed of. There shall be no order for costs. Urgent certified copy of this judgment, if applied for, be furnished to the applicant within 3 days from date of putting in requisites therefor. .