The Judgment of the Court was delivered by

Banerjee, J.:— The petitioner was employed as a Sub-Inspector of Excise. He, along with several others, was prosecuted on a charge under Section 46 of the Bengal Excise Act, 1909, read with Section 120-B of the Indian Penal Code, inter alia, for having unlawfully imported Ganja. He was, however, discharged of the charge, under Section 243(1) of the Code of Criminal Procedure, by an order passed by Mr. D.P Chatterjee, a Presidency Magistrate, dated May 9, 1956, with the following observations:—

“Hence on a consideration of the entire evidence on record, I am clearly of opinion that the prosecution case against the accused persons is thoroughly rotten and utterly unacceptable. The entire prosecution story against the accused persons has been built upon the confession of Ramen Biswas and K. Tombi Singh. On their own admission they were involved in trafficing in Ganja, in complicity with other persons. They seemed to have shielded their real associates and have incriminated these accused persons who, I have found, are completely innocent.”

2. Before the petitioner was prosecuted as aforesaid, the petitioner had been suspended, by an order of the Commissioner of Excise, dated June 24, 1955, which I set out below:—

“Whereas it appears that you, Narendra Narayan Bhattacharyya, along with others have been accused of committing a crime of criminal conspiracy of unlawfully importing, possessing, transporting and or selling non-duty paid Ganja at Calcutta and other places in pursuance of which conspiracy various overt acts were committed during the period from December, 1951 to August, 1954 and that sanction under Section 92 of the Bengal Excise Act and consent under section 196A (2) of the Cr. P.C have been obtained for your prosecution in Court by the order of the Governor dated 24-6-55, you are hereby suspended with immediate effect until the termination of the criminal proceeding which is being instituted against you.

During the period of suspension you will be entitled to a subsistence grant of ¼th of your pay plus Dearness-Allowance as may be admissible.”

3. Thereupon, the petitioner applied, on July 2, 1955, to Superintendent of Excise, Balurghat, for permission to leave the station of his duty and to stay at Calcutta, until further order. The said application is Annexure A(3) to the affidavit-in-reply filed by the petitioner. On that application the Superintendent of Excise passed the following orders:—

“You are permitted to leave the station after you make over charge to Shri Himangshu Kumar Pal, S.I of Excise, Raigunj. This has the concurrence of E.C vide his order dated 1-7-55.

J.N Chowdhury.

2-7-55.”

4. After the termination of the criminal prosecution, the petitioner made a representation to the Commissioner of Excise praying for his re-instatement. No reply was given to the representation. He was, however, served with memo, being No. 348E dated July 17, 1956 (which was received by the petitioner on July 20, 1958) by the Collector of Excise, respondent No. 3, to the following effect:—

“He was permitted to stay away from Head Quarters till the disposal of the criminal case instituted against him with others. The criminal case has since been disposed of and he is therefore directed to report himself at Balurghat by 25-7-56 (forenoon) positively failing, which proceedings shall be drawn up against him for non-compliance of the order. He should also explain why he stayed away from his original place of posting even after the criminal case, starred against him was disposed of.

2. Further he should explain why appropriate action shall not be taken against him for addressing a representation for his re-instatement direct to the Commissioner of Excise.”

5. On receipt of the above memo, the petitioner wrote to the Collector, respondent No. 3, on July 20, 1956, as hereunder set out:—

“I beg leave to state that you have stated in your above that I was permitted to stay away from headquarters till the disposal of the criminal case instituted against me with other, but unfortunately I find no such order or direction whatsoever in the suspension order binding me to stay at specific place during the suspension period. I cannot recollect if any such order or direction from your District Excise Office was ever served upon me. I shall be very much grateful to you if you kindly send an attested copy of the same to me as early as possible. In this connection please send an attested copy of the E.C's order dated 1-7-55. After receiving all these copies I shall give explanation as desired by you.

In regard to my returning to Balurghat on 25-7-56 (forenoon) positively I beg to state that I am at present sick and in support of my sickness I am sending medical certificate very soon.

In regard to item No. 2 abovenamed I shall give my explanation after receiving your reply to this letter and containing attested copies as prayed above.”

6. Thereafter, he again wrote to the Collector to the following letter, on July 23, 1956:—

“In continuation of my letter dated 20-7-56 I beg to send herewith the medical certificate from Sri Sukumar Chowdhury, M.B, in original for favour of perusal.”

7. Before the petitioner received any reply to his letters, dated July 20 and 23, 1956, the Commissioner of Excise suspended him from service, By a notice being memo No. 1970-E, dated July 24, 1956 (which was received by the petitioner on 26-7-56), on the following allegation:—

“Whereas it appears that in course of your official duties and under colour of your office as Sub-Inspector of Excise in the Central Detective Department, you had done acts and made omissions, subversive of the discipline prejudicial to the interests of Government and contrary to official instructions and orders,

You are hereby suspended from service with effect from the 25th July, 1956.

2. You shall attend the office of the Collector of West Dinajpur or of such other officer as he may direct from day to day to receive the charges against you and to answer them and shall not leave the head-quarters station of the said Collector of West Dinajpur without his orders in writing.

3. During the period of suspension you will be entitled to a subsistence grant equal to one-fourth of your pay plus dearness and cash allowances at full rates for the time being in force.”

8. A reply to the petitioner's letter, dated July 23, 1956, asking for extension of time to report for duty on account of his illness, was given by the respondent Collector, on August 1, 1956, and was to the following effect:—

“He is allowed to stay at Calcutta upto 12-8-56. He should note that no further time will be allowed and he must report himself, on 13-8-56 (forenoon) positively.”

9. The aforesaid letter was said to have been received by the petitioner on August 8, 1956. The petitioner replied to the above letter, on August 12, 1956, as hereinbelow:—

“With reference to your letter No. 383E dated 1-8-56, which was received by me on 8-8-56, I beg to state that I am still sick and I have already intimated to you in my letter dated 6-8-56 along with an original medical certificate.

Therefore, it is not possible for me to report myself at Balurghat addressed (?) by you.”

10. He also sent a representation to the Commissioner of Excise, dated August 17, 1956, the material portion of which is sent out below:—

“That your, petitioner finds to his great surprise that he was served with an Excise Directorate Memo No. 1970 II dated 24-7-56 at his residence, Calcutta,; under registered cover conveying that he has again been suspended from service with effect from 25-7-56 for acts done and making omissions subversive of discipline, prejudicial to the interests of Government and contrary to official instructions and orders.

That the charges mentioned in the above memo are not clear and all these were done as alleged in course of his official duties and under colour of his office as Sub-Inspector of Excise in the C.D.D

That your petitioner as a free citizen of the Union of India enjoys all the fundamental rights of a citizen as guaranteed in Chapter HI of the Constitution of India, and that any attempt to make an infringement of those rights would amount to violation of such provisions of the said Constitution of India and your petitioner has in those circumstances every right to move the High Court or the Supreme Court of India under Article 226 of the said sacred Bible, i.e, the Constitution.

That the said Excise Directorate Memo No. 1970E dated 24-7-56 compelling your petitioner to stay under suspension at Balurghat at such stage is nothing but one more sinister attempt to debar him from wielding his said fundamental rights as mentioned above * * *”

11. His representation was not forwarded to the Commissioner, for reason which will appear from the following letter from the Superintendent of Excise, dated August 21/22, 1956:—

“His representation, dated 17-8-56, addressed to the Commissioner of Excise, is, as it would appear, against the order of the Commissioner of Excise, communicated under the Directorate Memo No. 1970E dated the 24th July, 1956, on the ground, inter alia, that the charges mentioned in the above memo are not clear and definite. But definite charges have since been framed against him by the Commissioner of Excise. The under signed, therefore, does not think it necessary to forward the representation at this stage.

He, is hereby directed to appear be-fore the undersigned and take delivery of the charges since framed against him,”

12. He was, however, by a separate letter, being Memo No. 446E, dated August 22, 1956, signed by the Supernitendent of Excise for the respondent Collector, informed as follows:—

“Ref Continuation to this Office Memo No. 388E dated 1-8-56.

He is directed to appear before the undersigned by 2-9-56 to receive copy of charges drawn up against him by the Commissioner of Excise.”

13. Before the 2nd of September, 1956 arrived the petitioner was charged by the Commissioner of Excise, on August 31, 1956 as hereunder appears:—

“Whereas it appears that you have not attended the office of the Collector, West Dinajpur, as directed by me under Excise Directorate Memo No. 1970E dated 24-7-56 sent to you per registered post, which was duly received by you on 26-7-56 and thus disobeyed my orders without any cause being shown in the meanwhile.

Now, therefore, you are called upon to show cause within 3 days of receipt of this notice why you should not be dismissed from service or shall not be otherwise dealt with as provided in rule 7 of the Bengal Subordinate Services (Discipline and Appeals) Rules, 1936. You are to intimate along with your reply if you want to be heard in person or to adduce any evidence in support of such plea as may be taken by you.

In the absence of any communication from you within the period mentioned above, final order in the matter will be passed by me ex-parte.”

14. To the above charge, the petitioner replied on September 3, 1956, as follows:—

“With reference to the above I beg to submit the following for favour of your kind and sympathetic consideration.

1. That on 17-8-56 your petitioner sent a representation in reply to your Memo No. 1970E dated 24-7-56 addressed to you through the proper channel.

2. That the Superintendent of Excise, West Dinajpore, acknowledge receipt of the above representation vide his No. 447E dated Balurghat the 22nd August, 1956, copy of which is attached herewith.

3. That on 29-8-56 the petitioner sent another representation to the Superintendent of Excise, West Dinapore, in reply to his memo referred to in para 2 above and his Memo No. 446E, dated Balurghat the 2nd August, 1956.

4. That since then the petitioner has not received any further communication or order from the Superintendent of Excise, West Dinajpore.

In view of the above facts and circumstances the humble petitioner most respectfully submits that he may kindly be relieved from the burden of showing cause as directed in your notice under reference and his above representations may kindly be accepted.”

15. Thereupon, the respondent Commissioner of Excise, by his order, dated October 8, 1956, found him guilty of the charge and passed the following order:—

“The explanation cannot be accepted. The Officer has not intimated that he wants to be heard in person or to adduce any evidence in support of his plea.

Sri Narendra Narayan Bhattacharyya has deliverately disobeyed the orders directing him to attend the Office of the Collector of West Dinajpore. He has shown such spirit of indiscipline that it does not seem possible to allow him to continue in service without seriously imparing the administration. I, therefore, consider that he should be dismissed from service as soon as possible, under rule 7 of the Bengal Subordinate Services (Discipline and Appeal) Rules, 1936.

He should, therefore, be supplied with a copy of this report and be called upon to show cause within 7 days of receipt of this notice, why he should not be dismissed from service.”

16. On October 20, 1956, the petitioner wrote to the respondent Commissioner asking for the following documents:—

“It is also not possible for me to submit ‘show cause’ without being provided with the attested copies of orders passed by the Superintendent of Excise and Collector of West Dihajpur on my representation dated 17-8-56 and 29-8-56. I, may kindly be supplied with your orders on the above representations.

I, therefore, fervently pray and hope that you would be graciously kind enough to supply me with (a) certified copies of your findings on my explanation dated 3-9-56, (b) attested copies of orders of the Superintendent of Excise and the Collector of West Dinajpur as stated above and (c) attested copies of your orders on the representations mentioned above at an early date.

I shall ‘show cause’ as directed by you after the receipt of the above three certified copies.”

17. To that letter the petitioner received the following reply, dated November 9, 1956:—

“An attested copy of the findings dated 8-10-56 on your explanation dated 3-9-56 is sent herewith. No separate order was passed by any officer on your representation dated 17-8-56 and 29-8-56. It will appear from the order dated 8-10-56 that these petitions were taken into consideration. Your representations will again be considered before passing final orders.

You are, therefore, directed to reply to this Directorate Memo No. 3346E dated 9-10-56 within 3 days of receipt of this letter, failing which orders will be passed without waiting any further for your reply.”

18. By his letter, dated November 16, 1956, the petitioner asked for further three weeks' time to submit his representation against the proposed penalty. No further time was given to the petitioner, but toy an order, dated November 27, 1956, the petitioner was dismissed from, service, with effect from November ″28, 1956. The order of dismissal is Annexure V to the affidavit-in-opposition, filed on behalf of opposite party no. 2.

19. At an earlier stage, the petitioner had moved against order of dismissal and obtained a Rule from this Court, being Civil Rule No. 3339 of 1956. But that Rule was discharged by Sinha, J., on January 6, 1958, on the ground that the petitioner had an alternative remedy by way of an appeal to the departmental authority. Thereafter, on January 19, 1958, the petitioner filed an appeal before departmental authority, being the Secretary, Department of Excise, respondent no. 1.

20. An appeal against the order of discharge of Civil Rule No. 3339 of 1956, filed by the petitioner, was dismissed on the ground that the appeal before the departmental authority was pending.

21. On November 26, 1958, the appeal before the departmental authority was dismissed.

22. Thereafter, the petitioner again moved this Court and obtained the present Rule.

23. Mr. Arun Prokash Chatterjee, learned Advocate for the petitioner, made two points for my consideration. He argued, in the first place, that the petitioner had not been given proper opportunity to show caused either against the charges or against the proposed penalty. He argued further that the conduct of the petitioner was no misconduct and that he was mala fide penalised for no fault of his.

24. The first branch of the argument, in the form put is not very well conceived. In the notice to show cause, datd August 31, 1958, the petitioner was expressly asked to inform if he desired to be heard in person and to adduce evidence on his behalf. The petitioner did not choose to do so. In his letter, dated September 3, 1956 (Annexure P to the petition), written in answer to the notice to show cause, the petitioner merely referred to certain representations made by him in connection with a previous notice to show cause and prayed for being “relieved from the burden of showing cause”. In paragraph 13 of his affidavit-in-reply the petitioner states:—

“I did not show cause as it was useless to show cause by virtue of the mala fide nature of the proceedings.”

25. After all that, the petitioner cannot be allowed to contend that he was not given proper opportunity to show cause against the charges made against him. I, therefore, hold that there is no substance in the first branch of the contention made by Mr. Chatterjee.

26. I now turn to the other branch, of the contention made by Mr. Chatterjee, which in my opinion is of some substance.

27. Under Rule 7 of the Bengal Subordinate) Service (Discipline and Appeal) Rules, 1936, a person may for good and sufficient reason be penalised for misconduct and the penalty may be dismissal from service. “There is no fixed rule of law”, observed Lord James of Hereford in Conslton v. Corry (1), defining the decree of misconduct which will justify dismissal * * misconduct inconsistent with the fulfilment of the express or implied conditions of service will justify dismissal”. If the petitioner ia really guilty of misconduct I have no power, in the exercise of my jurisdiction under Article 226 of the Constitution, to sit in appeal over the order of penalty. I have nevertheless jurisdiction to examine two things in that connection, namely, (1) whether the petitioner was bona fide proceeded against in the disciplinary jurisdiction, under the rules of service, and (2) whether he was given an opportunity to show cause against the action proposed and whether the procedure adopted at the enquiry against the petitioner was an orderly course of procedure.

28. I have already held that the petitioner can have no grievance on the point that he had not been given opportunity to show cause. I now turn to examine the bona fides or otherwise, of the departmental proceeding against the petitioner.

29. It appears from the order, dated July 2, 1955 (already quoted), that during the period of his suspension pending the criminal case, the petitioner was permitted to leave his station of duty. After the termination of the criminal case, ending in the discharge of the petitioner, he made a representation to the Commissioner of Excise for his reinstatement in service. He was, however, by an order dated July 17, 1956, directed to report himself for duty at Balurghat, on July 25, 1956, and at the same time was directed to explain why he had stayed away from the place of his posting after the disposal of the criminal case against him. Also he was directed to show cause why disciplinary action should not be taken against him for having made a representation directly to the Commissioner of Excise. To the above notice the petitioner gave a correct report, by his letter, dated July 20, 1956 to the effect that there was nothing contained in the order, dated July 2, 1955, permitting him at stay away from the headquarters, until only the disposal of the criminal case. Moreover, the petitioner's representation to the Excise Commissioner for re-instatement, that is to say, to rejoin his former post, remained unanswered until July 17, 1956, when only he was directed to report for duty at Balurghat. Because of all these the petitioner might have been under a bona fide doubt as to what to do after the criminal case was over. I have, therefore, to hold that the authorities were not justly treating the petitioner when they addressed the aforesaid notice to him.

30. The petitioner could not report himself at Balurghat, as directed, because he pleaded, by his letters, dated July 20 and 23, 1956, that he was too ill to do so. There is nothing to show that his plea of illness was disbelieved. On the other hand, he was granted extension of time to rejoin, apparently accepting his plea of illness, as will hereinafter appear.

31. On July 24, 1956 the petitioner was; again suspended from service with effect from July 25, 1956, on some vague allegations, as hereinbefore quoted, and was directed to attend the Office of the Collector of West Dinajpur or such other officer, as he may direct, from day to day to receive the charges against him and to answer them. He was also directed not to leave the headquarters station of the said Collector of West Dinajpur, without his order in writing. The letter containing the aforesaid direction is curious. In the first place, it contained no date when the petitioner was to attend the Office of the Collector. In the next place, it is not understandable why the charge, intended to be levelled against the petitioner, could not be served on the petitioner by post and why further it became necessary to call upon the petitioner daily to attend the office of the Collector to receive charges against him and to answer them. I am not sure whether the authorities contemplated that the petitioner must answer the charges against him as soon as received. Lastly, I fail to see why it was necessary to order the petitioner, then under suspension, to confine himself to the headquarter station of the Collector of West Dinajpur.

32. Mr. Noni Coomar Chakravartty, learned Advocate for the Opposite Parties, tried to justify the order directing the petitioner not to leave the headquarters station of West Dinajpur, on the following line of reasoning. He contended that even under suspension the petitioner was a governmnt servant and that Rule 132 of Manual for the Guidance of Officers of the Excise and Salt Department, Vol. II required that:—

“An officer must on no account leave his jurisdiction except when it is to do so in connection with the detection of an offence, without the previous sanction of his immediate superior.”

33. The aforesaid rule is not a statutory rule but merely an executive instruction, as the preface to the volume itself shows. Then again, the rule applies to officers on duty and not to suspended officers. An officer, on suspension, is not on duty and there cannot be any conceivable reason to keep him confined within limits of the jurisdiction of the district headquarters and thus to restrict his freedom of movement. The last portion of the order was clearly without jurisdiction and the attempted jurisdiction of it fails.

34. Further, by a letter dated August 1, 1956, which was reply to the petitioner's application for extension of time to rejoin, the petitioner was allowed time till August 12, 1956 to join. The petitioner applied for further extension of time to rejoin on the ground that he had not recovered. Even that was granted, as the letter dated August 22, 1956 (hereinbefore quoted) which was a continuation of the letter dated August 1, 1956 aforementioned will show and the petitioner was allowed time till September 2, 1956 to report himself at Balurghat and to receive the charges against him.

35. In the background of all these, to charge the petitioner with disobedience of the order, dated July 24, 1956, “without any cause bing shown in the meantime” was to charge him with untruth. The petitioner had not only shown good cause why he was unable to rejoin as ordered but his cause was accepted and he was granted time to rejoin upto September 2, 1950.

36. Mr. Noni Coomar Chakravarty tried to justify the expression “without any cause being shown in the meantime”, in the charge, as the outcome, of a mistake, due to the fact that the Commissioner of Excise was not aware of the extension, of time to rejoin granted by the Collector. This plea is being taken for the first time now. Then again, all lapses are not justifiable on the theory of mistake and the present one the least of all. Before charging a person with disobedience, a disciplinary authority must be sure of a prima facie case against such person. To charge a person with disobedience, without being so sure, reveals a fault-finding mind and a mala fide disposition. The notice to show cause, dated July 24, 1956, suffers from this infirmity.

37. Further in a case, where the person charged had not shown cause but had asked for being relieved from showing cause, it is of utmost necessity that the disciplinary authority examines the case with greater care, before he makes up his mind about the guilt of the person. The order, dated October 8, 1956 does not show any such care. Having observed that the explanation was unacceptable, the Commissioner of Excise came to the offhand conclusion that the petitioner had “deliberately disobeyed” the order directing him to attend the office of the Collector. If the Commissioner of Excise had cared to examine the records, he could easily find out that the petitioner had supplied for extension of time to rejoin and had been allowed, such time. Therefore, the petitioner had not, at any time, exhibited any attitude of deliberate disobedience. In the face of all that to find the petitioner guilty of deliberate disobedience of order and to penalise him with dismissal from service shows that the decision was not made in good faith and that it offends against one of the fundamental principles of natural justice.

38. The order by the appellate authority, confirming the order of the Commissioner, suffers from the same infirmity. The appellate authority observed:—

“The Commissioner asked the officer by his order dated 24-7-56 to attend the office of the Collector of West Dinajpur. In spite of receiving the order, the officer did not do so even up to the date on which the Commissioner passed his orders of dismissal. He had, therefore, not merely defied orders but had persisted in doing so even after proceedings had been, drawn up against him. For such persistent and deliberate defiance of orders, the penalty of dismissal is justified.”

39. The appellate authority also did not take the trouble of examining the records as must have been the case, otherwise he could have found out where the Commissioner had erred. The charge of persisting in disobeying the order, even after the proceedings had been drawn up, is an ornamentation introduced, for the first time, by the appellate authority, a new offence with which the petitioner had not been charged or called upon to show cause. That is an additional infirmity with the appellate order and is largely violative of the principles of natural justice.

40. For the reasons aforesaid, I quash the order, dated October 8, 1956, finding the petitioner guilty of the charge, the order of penalty of dismissal, dated November 27, 1956, and the appellate order, dated November 26, 1958, confirming the order of dismissal. Let a writ of certiorari issue quashing the aforementioned orders.

41. This Rule is made absolute. There will be no order as to costs.