Samarendra Narayan Ghose (Petitioner) v. The State Of West Bengal And Others (S).

The Judgment of the Court was delivered by

Manash Nath Roy, J.:— The petitioner in this Rule as impeached (a) Memorandum dated 25th June, 1975, whereby a common enquiry proceeding has been proposed to be held under Rules 9 and 10 of the West Bengal Services (Classification, Control and Appeal) Rules, 1971 (hereinafter referred to as the said Rules), (b) an order under Rule 10(4) of the said Rules, appointing Shri R. Banerjee, Commissioner for Departmental Enquiries, Vigilance Commission, West Bengal as Enquiring Authority to enquire into the charges framed against him, (c) an order dated 25th June, 1975 whereby departmental proceedings were drawn up against the petitioner and (d) a communication dated 30th July, 1975 from the said Commissioner for departmental enquiries to the petitioner refusing inspection or copies of the documents as were asked for. It should be noted here that the Rule for non-compliance with the Court's order dated 28th April, 1981, has been discharged against respondent No. 9, Shri Ghanashyam Prosad Gupta.

2. The petitioner has stated that in or about December, 1945, he duly entered into the services of the Department of Food and Supplies, Government of West Bengal (hereinafter referred to as the said department), as Inspector, Food and Supplies through a competitive examination. It was his case that throughout his career and tenure he has discharged his duties and obligations faithfully, diligently and to the satisfaction to all his superiors and in fact, his service career is free from any blemish whatsoever. He has stated that considering his commendable services as rendered and more particularly during the course of disasters which occurred in 1950, he was temporarily promoted to the post of Inspector of the said department but he was subsequently reverted from such posting without any charge of any allegation. He has stated to have proved himself worthy of his appointment and has served the department in the satisfactory manner as indicated hereinbefore and as such, he has also claimed to have been promoted to the post of Inspector of the said department in or about May, 1964. It has further been stated that since such appointment, the petitioner has been posted to different districts and in or about April, 1973, he was transferred to Siliguri under the office of the Sub-Divisional Controller, Food and Supplies, respondent No. 5. The petitioner has reiterated that at Siliguri also he had discharged his duties in the manner as indicated hereinbefore and that two to the satisfaction of all concerned.

3. It was the case of the petitioner that in course of his duties as attached to the concerned office, he was required to check the modified ration shops, their registers, books, ledgers, vouchers, stocks of the food-grains etc. and was also competent to report against a modified ration dealer in case of irregularity or illegality if discovered or detected. Such report according to the petitioner was required to be made to the said respondent No. 5 and he has further stated that as a result of such reports as made by him, many of the persons against whom he had reported were found to be guilty of the concerned illegalities and irregularities as pointed out by him. The petitioner has stated that his jurisdiction to report in the manner as indicated above, was in respect of Siliguri Police Station and so also Phansedeoa Police Station and on or about 2nd November, 1973, he had to go Khokagram within Ghosepukur Anchal under Phansedeoa Police Station in Siliguri Sub-Division for the purpose of checking the modified ration shops of one Shri D.N Sikdar of Khokagram. It has been stated by the petitioner that during the course of checking the concerned shop had discovered abnormal shortage in rice, atta and stock of sugar. It was his further case that he also found that one Shri Parimal Ghose of Buragunj Anchal of Kharibari Police Station was managing that shop and incidentally the said Shri Ghose was himself a dealer of a modified shop at Buragunj Anchal under Kharibari Police Station. Since abnormalities, illegalities and irregularities were found out during the course of inspection as mentioned above, the petitioner made a report to respondent No. 5 on 5th November, 1973; as a result thereof, supplies to both the shops as mentioned above, were stopped from 14th November, 1973 by the respondent No. 5. It was his further case that said Shri Sikdar had another modified ration shop at Siliguri Town and he surrendered of the permit of the same to the respondent No. 5 for irregularities and illegalities as detected, The petitioner has alleged that Shri Parimal Ghose was an influential member of a particular political group and as a result of the detection and checking as held by the petitioner, he became inemical with him and openly threatened him to exert his political influence and to commit mischief so far the petitioner's service career was concerned. It should be mentioned here that although the petitioner has stated that the said Shri Ghose belonged to a particular political party and which according to the petitioner was an influential party. he has not mentioned the name and colour of such political party. It has bean alleged by the petitioner that because of the circumstances as mentioned above, in or about May, 1974 an order was passed in was collusion and connivance with respondent Nos. 4 and 5 whereby he transferred from his posting and was posted in the District of West Dinaijpur. Such order of transfer was made on 23rd May, 1974 and the petitioner was released on 5th June, 1974. This order of transfer, according to the petitioner, was out-come of his detection of mischief caused in the modified ration shop of Shri Parimal Ghose and was obtained due to his machination. The respondents have of course claimed that such order of transfer to have been made in public interest but the petitioner has denied the involvement of any public interest behind the same. He has further claimed that in having the concerned order of transfer passed by the authorities concerned have not acted in a responaible manner but their acts and actions were unfortunate and without jurisdiction apart from being void for non-application of mind. He also claimed such order of transfer to be arbitrary and capricious and further claimed that such transfer having been made to an unknown destination and that too without any notice in the middle of the year was contrary to the direction in that respect and was also thus arbitrary, capricious and issued [for collateral purposes. However, in obedience of such order or transfer the petitioner assumed his charge at West Dinajpur where again he has stated to have served the authorities concerned in the bona fide way and manner as indicated hereinbefore.

4. It has been claimed by the petitioner that while he was performing his entrusted duty at Raigunj he was surprised to receive an order of suspension dated 4/6th November, 1974, issued by the Director, District Distribution, Procurement and Supply respondent No. 2, without assigning any reason for which such order of suspension was passed. The petitioner claimed that such order of transfer to be null and void apart from being irregular and bad and passed in excess of power and jurisdiction and contrary to the said Rules. Admittedly the said order of transfer was challenged by the petitioner in a proceeding under Article 226 of the Constitution of India on 14th December, 1974 and the petitioner succeeded in obtaining a Rule and the corresponding interim order of injunction. It has been claimed by him that as soon as such order was received by him from this Court, the authorities concerned by their order dated 10/11th June, 1975 withdrew the order of suspension. This order of withdrawal of suspension is in Annexure ‘E’ to the petition.

5. The petitioner has contended that since the respondents found and felt that they have not succeeded in coughing him down by such order of transfer, they by the impugned order in Annexure ‘F’ dated 25th June, 1975, informed him that the Governor proposed to hold an enquiry in a common proceeding under Rules 9 and 10 of the said Rules against Shri Benoy Bhusan Chakraborty, formerly Sub-Divisional Controller of Food Supplies, Jalpaiguri, and Samarendra Narayan Ghosh, Inspector Food and Supplies now posted at Darjeeling and Molay Pada Chakraborty Lower Division Clerk of the Sub-Divisional Controller Food Supplies Jalpaiguri. The petitioner was also served with the articles of charges, alongwith the said order. Those articles revealed that the petitioner, while functioning as an Inspector of Food and Supplies in Raiganj Zone of Jalpaiguri District in the month of January, 1968, submitted a misleading report of enquiry in connection with an application for food-grain license made by one Ghanashayam Prosad Gupta and suppressed material facts from the said report and such conduct on his part wa 5 improper and unbecoming of a public servant and violative of Rules 3 and 4 of the West Bengal Government Servants' Conduct Rules, 1959 and on 28th December, 1967 on Shri Ghanashyam Prosad Gupta, son of late Saraju Ram of Raiganj District Jalpaiguri sebmitted an application to the Block Development Officer, Raiganj for a wholesale license in rice and paddy. In this application the applicant had mentionted two godowns that the possessed, one at Amaidighi (otherwise known as Kamrangaguri) and the other at Debgram and asked for license to be valid for Jalpaiguri District. The B.D.O under his Memo No. 40(9 dated 30th December, 1967 forwarded the application to the Sub-Divisional Controller Food and Supplies, Jalpaiguri that a recommendation which read as Shri Ghanashyam Prosad Gupta may he appointed for Fulwari Anchal. He has a godown at Kamrangaguri”. Shri Samarendra Narayan Ghosh, Inspector, Food and Suppiies, Raiganj, held a local enquiry into the application and submitted a report on 15th January, 1968. In the repors Shri Ghosh recommended the issue of a license in favour of Shri Ghanashyam Prosad Gupta in respect of his godown at J.L No. 2. Holding No. 422 at Debgram suppressing the fact that the said Ghanashyam Prosad Gupta had another godown at Kamarangaguri and also the fact that the B.D.O, Raiganj has recommended Gupta's appointment as a lealer fot Fulbari Anchal. In this report he has also suppressed the material fact that the coacerned godown at Debgram was actually situated on the premises of a rice mill owned by near relation of the applicant aud that his abutted on the said rice mill. The list of documents, on the basis whereof or through which the charge as aforesaid, was sought to be established, were also furnished to the petition. The petitioner has claimed that in exercise of powers under Rule 10(4) of the said Rules, the Governor has also been pleased to appoint Shri R. Benerjee as mentioned above, as the authority to enquire into the charge by the impugned order dated 25th June, 1975. There is also no doubt that the petitioner was further served with the impugned order in Annexure “H” which was issued under the power conferred by proviso to Rule 9 of the said Rules and whereby the Government had directed as under:—

1. That disciplinary action against all the three Government servants named above viz., Shri Benoy Bhusan Chakraborty, Shri Samarendra Narayan Ghosh and Sri Malay Pada Chakraborty shall be taken in a common proceeding.

2. That the Secretary to the Government of West Bengal in the Food & Supplies Department shall function as the disciplinary authority for the purpose of such common proceedings.

3. That the above mentioned disciplinary authority shall be competent to impose any of the penalties mentioned in Rule 8 ibid, and

4. That the procedure prescribed in Rule 10 ibid shall be followed in such common proceedings.

6. The petitioner has claimed the departmental proceedings as short to be initiated to be a pretended one, based on no materials or any cogent evident of facts and it was his further assertion that the entire initiation was void ab initio and absolutely without jurisdiction. He further claimed that the allegations purporting to form the basis of the concerned charge sheet of the statement of imputation being nonest, charge sheet was also void, ab initio and bad.

7. It was his case than on receipt of the charge sheet he submitted a petition as in Annexure “I”, in terms of said rules asking for inspection of the documents as mentioned in Annexure “III” to the charge sheet and so also some other additional documents which were not mentioned therein and he felt that those documents would be material and relevant for the purpose of his defence. He of course, categorically denied that he was guilty of any charges, or there was any basis for the imputation of any misconduct against him. It was his categorical case that the charges as sought to be leveled against him was baseless and contrary to the said Rules and furthermore any proceeding with the charge sheet without making available the documents and the additional documents as asked for the authorities concerned were not acting in a bona fide manner and in fact, such inaction on their part would mean violation of principles of natural justice to the petitioner.

8. The affidavit-in-opposition which was dated 13th February, 1980, has been filed on behalf of respondent Nos. 1 to 3, 6 and 7, through Shri Ranjit Chowdhury, the Assistant Secretary of the State of West Bengal. He has stated that the petitioner was promoted as Inspector and joined on 12th July, 1950 and then he was reverted to the next lower rank of Sub-Inspector vide order dated 1st December, 1950 as issued by the District Controller of Food and Supplies, Darjeeling with effect from 1st December, 1950, it has also been stated that the petitioner was placed under suspension with effect from 6th September, 1955 and was reinstated from 11th June, 1956 in terms of the order as issued by the Directorate of Food on 6th June, 1956. The deponent has also stated that the petitioner had to work as Sub-Inspector, the reverted post from 1st December, 1950 to 27th May, 1964 and from next day he was promoted and appointed as Inspector. It has also been stated that for the second time the petitioner was placed under suspension with effect from 17th November, 1974 in terms of the order of the Directorate dated 4/6th November, 1974 and the said suspension order was subsequently withdrawn. During the course of suspension, the deponent has stated that the petitioner was however allowed to withdraw full pay and allowances in terms of the interim order as issued by this Court in the Rule, the particulars whereof have indicated hereinbefore. It was the categorical case of the deponent that the petitioner was transferred to Siliguri to work under S.C.F & S. Siliguri and the checking of the M.R Shops was a part of his duty as Inspector. Apart from the about it has been stated that the petitioner was also to carry out checking and inspection works relating to various licenses and orders for which he was appropriately authorised. The deponent has stated that the petitioner did not submit any report of any incident to the respondent No. 5 or respondent No. 6, which he has obliged to make in the facts and circumstances of the case.

9. The deponent has also stated that Sub-Divisional Controller of Food and Supplies, Siliguri found some fraud in the checking done by the petitioner on 2nd November, 1973 and it was not a fact that the petitioner was authorised to renew any ration card. It has been stated that the petitioner was authorised only to replace old and defaced cards. The checking works as alleged by the petitioner, has been stated by the deponent not to have been conducted or undertaken by him individually but it has been stated that such checking was done jointly by one C.I.F.M.S and the petitioner. The deponent has further stated that the petitioner in fact, did not report any abnormal shortage to the respondent No. 5 and it was not a fact that the said respondent No. 5 stopped supplies to the concerned shops on the basis of the report. It has been admitted that the petitioner sumitted a report to the S.C.F.M.S on 3rd November, 1973 regarding the M.R Shop of D.N Sikdar of Khokagram and the said Shri Sikdar surrendered his M.R Shop which was accepted. But it has been denied that so far the suspension of the shop of Parimal Ghose, the petitioner had any hand or anything to do or such suspension was due to hi report. It has been stated that Shri Ghose's shop was checked by Shri B. Bose another Inspector along with Shri S.N Bose, C.I and the said Shri Bose submitted a report on the basis whereof the shop of the said Parimal Ghose was suspended. In fact, it has been stated that view of the above state of affairs there was no cause or any occasion for criticism about the checking of Shri Ghose's shop by the petitioner. In that view of the matter it has also been stated by the deponent that the transfer of the petitioner as indicated hereinbefore, was not the out-come of the detection of mischief as caused in the M.R Shop of Ghose. It has been claimed that the petitioner was transferred purely in public interest and for his careless and irresponsible dealings which indicated and revealed from the fact of missing of some blank ration cards from his custody. The deponent has further stated that the petitioner failed to keep the blank ration cards duly secured knowing fully well that those cards may be misused. The dependent has stated that the petitioner obtained the supply of 100 blank ration cards on 18th September, 1973 against requisition stating that the S.I concerned will be entrusted for renewal works but in fact, he did not entrust any S.I for such purpose reported missing of some blank ration cards from his custody alongwith few other papers without of course mentioning the quantity of such blank ration cards as were found to be missing. It has been stated further by the deponent that such happening was flashed in a local weekly “Jubochinta” and more particularly in their issues of 1st May, 1974 and on such clue enquiries were made which revealed that the missing blank ration cards were all signed by the petitioner in advance without any ostensible reasons for such signature in advance. In fact, it has been alleged that the petitioner concealed the fact that the missing ration cards which were blanks, were signed by him in advance. The explanation as given by the petitioner on asking was found to be contrary and inconsistent. The deponent has further stated that the missing cards being stamped with office seals could easily be used and fresh ration cards far the purpose or drawing M.R commodities till their detection in any area of the concerned Sub-Division. That being the position the deponent has claimed that matters of grave and vital public interest was involved in this case. The deponent has stated that the petitioner was transferred because of such public interest involved and in any event, transfer being a matter of routine nature for inspecting staff and according to their terms of service and conditions of employment and more particularly they can be transferred anywhere in West Bengal at any time when exigencies would require, this Court in the facts and circumstances of the case should not interfere. The deponent has stated that there was no malice against the petitioner but his conduct lacked good faith.

10. It was the case of the deponent that the Inspectors of Food and Supplies Department are liable to work under the District Controller where they are to work relating to checking of rice mills, husking mills besides their other normal works and there is no rule or any order passed pursuant to any rule that such Inspectors should perform only works of checking of modified ration shops under the control of the concerned Sub-Divisional Controllers. The suspension order as indicated in the petition was issued pending investigation into certain allegations against the petitioner and the same was also claimed to be in accordance with the rules, legal, due, bona fide and proper. It has been alleged that the petitioner well-knew or was quite conscious of the irregularities he committed during his tenure under the Sub-Divisional Controller of Food and Supplies, Siliguri and such fact would be apparent from his representation as disclosed with the affidavit-in-opposition. The deponent has further stated that an order of suspension not be a final one but being of a temporary nature and whereby the delinquent Government servant's activities are curved temporarily and is debarred from performing functions for such temporary period and more particularly when the actions has been taken in the interest of public and pending investigation of the charges no interference should be made by this Court. The deponent has further stated that the steps in the matter of suspension against the petitioner have been taken in terms of the said rules as disciplinary proceedings/departmental enquiry against him was contemplated and pending.

11. The deponent has further stated that it was not the intention of the authorities concerned to foot the petitioner into any trouble uncalled for and without any reasons whatsoever. But steps against him and those had to be started by the vigilance on examination of the material records connected with the allegations and some gross irregularities were found out. It was the further case of the deponent that on the basis of the material records, some offences suspected to have been committed by the petitioner in collusion with others, were detected and as such under order of the Governor of the State of West Bengal, the Food Commissioner and the Secretary to the Government of West Bengal Food and Supplies Department, in exercise of the powers conferred under the proviso to Rule 9 of the said Rules found it expedient to draw up common departmental proceedings against the petitioner and others for disciplinary action. It has been stated that for such purpose. Shri R. Benerjee as mentioned hereinbefore, was duly appointed as the enquiring authority to enquire into the charges framed against the petitioner and others. The charges in substance and according to the deponent related to imputation of misconduct or misbehavior and they were not only framed duly but the petitioner was also given all, every and reasonable opportunities to defend himself. The deponent, in short has claimed that there has been no illegality or any irregularity and misuse or abusive use or power for which the charges as framed, could be claimed to be irregular, or inappropriate. It was the deponent's further case that the report as made, was duly and appropriately considered and there was also no misuse or abusive and capricious use of power, competence and jurisdiction. On the question of supplying the certified copies or attested copies of the documents as asked for, the deponent has stated that there has been no system of supplying such copies as was asked for but the petitioner, in terms of the rules and principles as followed, was duly asked to take inspection of the documents or copies of them and so also the statements of witnesses on which and on whom the prosecution was intended to be based. In fact, it has been stated that the facilities as mentioned above, were given to the petitioner in respect of all documents which were intended to be used and relied on by the department, and the petitioner was-given time till 25th August, 1975 to submit his written statement of defence after completing. his inspection and taking all copies of documents and he was also asked to appear personally before the enquiring authority. The procedure as followed by the enquiring authority was claimed to be due and appropriate and it has further been stated that in following such procedure there was no violation of the said Rules or the requirements of Article 311(2) of the Constitution of India.

12. The deponent has further stated that the petitioner in fact, has not denied the charges before the enquiring authority although he had the fullest scope to have the inspection and copies of the relevant records as mentioned above. This apart, the deponent has stated that the petitioner had and has the fullest scope to have remedy departmentally but without facing such departmental enquiry rather avoiding the same, he was sought protection of this Court and such being the position, this Court at this stage should not interfere. If the petitioner feels that he is not guilty of any of the charges then he could have attended before the enquiring authority and after making such case asked for exoneration from the charges.

13. In his reply dated 29th June, 1982, apart from denying the material allegations as contained in the affidavit-in-opposition, the petitioner has stated that on a glance of the said affidavit-in-opposition it would be patent and clear that extraneous materials were taken into consideration as the foundation of the disciplinary proceeding. In fact, it has been stated that reports which were not available or known to the petitioner have been taken into consideration or looked into. The petitioner has of course, sought to make out a case which was not made out by him in the petition, in his reply under consideration in any event he has stated that without such and due opportunities which he has asked for being made available to him. He cannot be forced to disclose his defence or charges against him on matters which were stale or which had happened, if at all, long ago cannot be taken into consideration or should not be allowed to be agitated. In fact, about the blank ration cards it was the categorical case of the petitioner that such charge was really very stale and from the conduct of the authorities concerned it would appear that, charges on those basis, even if they were available were given a go-by. The petitioner has categorically stated that he was not given reasonable, due and adequate opportunities to meet the charges before the enquiring authority and the authority also did not act bona fide. It was also the petitioner's case that the petition as claimed, would not be pre-mature but the same would be maintainable and the respondents have acted arbitrarily, unreasonably and illegally apart from being in violation of principles of natural justice. It was claimed by the petitioner that every attempt was made by the authorities concerned to victimise and harass him. He has categorically claimed that finding no other alternative, the authorities concerned have now came forward with a stale matter of 1967 and no explanation has been duly given in the concerned affidavit-in-opposition as to why the proceedings against the petitioner could not be initiated within a reasonable time of the alleged occurrence, if any.

14. The memorandum dated 25th June, 1975 (Annexure F) shows that the Governor proposed to hold the enquiry in a common proceedings under Rule 9 of the said Rules, which, without the notes, is quoted as under:—

Subject to the provisions of Rules 10 to 13, any of the penalties specified in Rule 8 may be imposed on—

(i) a member of the West Bengal State Service, Class I or Class II, by the Governor; and

(ii) a member of the West Bengal State Services, Class III or Class IV, by the authorities specified in corresponding entries in Column 3 of Schedule I:

Provided that in a case where two or more Government servants are concerned, the Governor or any other authority competent to impose the penalty of dismissal from service on all such Govt., servants may make an order directing that disciplinary action against all of them may be taken in a common proceeding. The order so made shall specify.—

(i) the authority which may function as the disciplinary authority for the purpose of such common proceedings.

(ii) the penalties in Rule 8 which such disciplinary authority shall be competent to impose, and

(iii) Whether the procedure prescribed in Rule 10 or Rule 11 shall be followed in the proceedings, against the petitioner alongwith other, on the changes as indicated hereinbefore and the said memorandum was signed by one Shri B.C Bhattacharjee, Food Commissioner and Secretary to the Government of West Bengal, Food & Supplies Department. Mr. Moitra, after referring to the said memorandum/charge sheet, claimed the same to be bad and unauthorised under the said Rules as according to him, the Governor was not the appropriate authority to issue the same. He also claimed the initiation of common proceedings to be bad, void, irregular and unauthorised under the said Rules or the procedure for initiation as laid down therein and more particularly the proviso to Rule 9. It was further claimed and contended by Mr. Moitra that since the incident of 1967 was too stale and remote and such stale and remote incident was made the foundation of proceeding in 1975, there was admitted remoteness and want of nexus and that vitiated, not only the proceeding but the proceedings as such became apparently a biased one and the attitude and action of the respondents concerned established malice in law and fact. In particular, Mr. Moitra contended that the charge sheet for 1967 incident could not be issued for a proceeding under the said Rules, which was not retrospective and that too as the earlier proceeding as initiated was not saved by the saving clause of the said Rules. While on this point, Mr. Moitra apart from relying on Rule 9 as quoted hereinbefoie, also referred to Rules 6 and 12(2) of the said Rules, which are quoted hereunder:—

6. (1) Appointments to Class I and Class II Services.—All appointments to the West Bengal State Service, Class I and Class II shall be made by the Governor:—

Provided that the Governor may, by a general or special order, and subject to such conditions as he may specify in the order, delegate to any authority subordinate to him the power to make such appointments.

(2) Appointments to Class III and Class IV Services.—All appointments to the West Bengal State Service, Class III and Class IV, specified in the entries in Column (1) of Schedule I shall be made by the authorities mentioned in the corresponding entries in Column (2) of that Schedule.

Note—A letter of appointment issued to a temporary employee shall specify the period of appointment. It shall also provide that the services of the employee will be liable to termination during that period by service of a notice terminating with the expiry of a period to be specified in the letter of appointment which period shall not ordinarily exceed of month. In cases where it may not be possible to insert such a provision, the appointment shall be made until further notice or orders.

12. (i):… …. … ……

(2) In the light of the finding in the disciplinary proceedings against the Government servant,—

(i) if the borrowing authority is of opinion that any of the penalties specified in clauses (i), (ii) and (iv) of Rule 8 should be imposed on him, it may, in consultation with the lending authority, pass such orders in the case as it deems necessary:

Provided that in the event of a difference of opinion between the borrowing authority and the lending authority, the services of the Government servant shall be replaced at the disposal of the lending authority and the borrowing authority shall transmit to it the proceedings of the inquiry and thereupon the lending authority may, if it is the disciplinary authority, pass such orders thereon including an order to commence the proceedings de novo as it may necessary, or if it is not the disciplinary authority submit the case to the disciplinary authority which shall pass such orders in the case including an order to commence the proceedings de novo as it deems necessary:

Provided further that in passing any such order the disciplinary authority shall comply with the provisions of Rule 10.

(ii) if the borrowing authority is of opinion that any of the penalties specified in clause (iv) to (viii) of Rule 8 should be imposed on him, it shall replace the services of the Government servant at the disposal of the lending authority and transmit to it the proceedings of the inquiry and, thereupon, the lending authority, may, if it is the disciplinary authority, pass such orders thereupon including an order to commence the proceeding de novo as it deems necessary, or if it is not the disciplinary authority, submit the case to the disciplinary authority which shall pass such orders in the case including an order to commence the proceedings de novo as it deems necessary:

Provided that in passing away any., such order the disciplinary authority shall comply with the provisions of Rule 10.

Explanation— The disciplinary authority may make an order under this clause on the record of the inquiry transmitted by the borrowing authority or after holding such further inquiry as it may deem necessary.

The disciplinary proceedings commenced by the borrowing authority shall be taken into accordance with the rules to which the Government servant proceeded against, is subject in consultation with the Public Service Commission of the State in which the lending authority functions, where such consultation is necessary. Mr. Moitra further contended that since the order of suspension as passed, was revoked, the transfer order as issued, was and should be deemed to be a penal one and the effect of such order in its entirety was nothing but a mala fide intention to harass the petitioner. That apart, Mr. Moitra claimed that the admitted refusal to give the concerned report was improper and that constituted violation of principles of natural justice.”

15. It was further claimed and contended by Mr. Moitra that the charges as contained in the charge sheet in the instant case were vague and in fact, on a reference to the charge sheet, he claimed that from the same it was difficult for the petitioner to follow what he was to answer. Such being the position, on the basis of the determinations in the case of Shri B.D Gupta v. State Of Haryana , (1973) 3 SCC 149. Which was a case under the Punjab Civil Services (Punishment and Appeal) Rules, 1952 and which in terms has laid down that a show-cause notice must hot be vague or in general terms. Mr. Moitra contended that the charge sheet in the instant case was pot proper or could not be sustained. If was further claimed by him that in this case the petitioner was not be licensing authorities but he just recommended the cases and as such, he should have received the benefit of the determinations in Dol Gobinda Das v. Union of India, 1981 (1) CLJ 461 wherein it has been observed that there cannot be any fixed principle for not entering any writ petition before the departmental proceeding is finally concluded. If a delinquent officer can satisfy the Writ Court that the departmental proceeding is vitiated either for violating the principles of natural justice or for not following the procedure resulting in gross injustice to the petitioner, it will be quite open to the Writ Court to interfere and to quash the departmental proceeding even at the intermediate stage so that a proper proceeding may be started and the delinquent officer may not suffer unnecessary agony for a prolonged period and the petition even at this stage would be maintainable as there was admitted violation of principles of natural justice. The non-supply of records has also been claimed by Mr. Moitra to be constituting violation of principles of natural justice on the basis of the determinations in the case of In re : Tilak Nath's case, 1967 SLR 759. He further contended on the basis of the observations in the case of Nand Kishore Prasad v. The State of Bihar, 1978 Lab IC 1106, that mere suspicion which was the case in this proceedings, was not enough to either initiate or conclude the departmental proceedings against the petitioner. In that case it has also been observed that disciplinary proceedings before domestic tribunal are of a quasi-judicial character; therefore, the minimum requirement of the rules of natural justice is that the tribunal should arrive at its conclusion on the basis of some evidence, i.e evidential material which with some degree of definiteness points to the guilt of the delinquent in respect of the charge against him and as indicated hereinbefore, suspicion cannot be allowed to take the place of proof even in domestic inquiries. In that case, it has also been observed that if the disciplinary inquiry has been conducted fairly without bias or predetection, in accordance with the relevant disciplinary rules and the constitutional provisions, the order passed by such authority cannot be interfered with in proceedings under Article 226 of the Constitution, merely on the ground that it was based on evidence which would be insufficient for conviction of the delinquent on the same charge at a Criminal trial.

16. Mr. Moitra, on a reference to the case of Paresh Chandra Datta v. Collector of Calcutta, 1978 (2) CLJ 316, further claimed and contended that the charge sheet in this case was bad and liable to be set aside and quashed inasmuch as the same was based on suspicion. According to him, a suspicion of guilt could not be made the basis of the offence and as such a delinquent could not also be punished on suspicion nor can his position be jeopardised on such or mere suspicion. Such submissions were also sought to be supplemented on a reference to the determinations in the case of Nand Kishore Prosad v. State of Bihar, (supra), where it has been observed that “disciplinary proceedings before domestic are of a quasi-judicial character; therefore, the tribunal minimum requirement of the rules of natural justice is that the Tribunal should arrive at its conclusion on the basis of some evidence, i.e, evidential material which with some degree of definiteness points to the guilt of the delinquent in respect of the charges against him. Suspicion cannot be allowed to take the place of proof even in domestic inquiries”. Mr. Moitra next contended by that the inquiry report made by the Enquiring Authority was bad and erroneous and in violation of the principles of natural justice. It was erroneous as the money which had been deducted by the petitioner from the salaries of the employees for deposit in recurring deposits scheme with the Savings Bank was not Government money. It belonged to the employees concerned. It was in violation of the principles of natural justice inasmuch as, a postal employee, as will appear from the records, was examined without informing the petitioner that the said witness would be called and examined nor any opportunity was given to the petitioner to cross-examine the said witness. It is not known to what extent the decision of the Enquiring Authority was affected by the evidence of the said witness.

17. In the case of Ramana Dayaram Shetty v. The International Airport Authority of India, (1979) 3 SCC 489 : AIR 1979 SC 1628, to which a reference was made by Mr. Moitra, the Supreme Court has observed that in earlier cases, the observations that it is well-settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its action to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them, which ruie was enuncieted by Mr. Justice Frankfurter in Vitarelli v. Seaton, (1959) 359 US 535, where the learned Judge has said “an executive agency must be rigorously held to the standards by which it professes its action to be judged………………. Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed………. This judicially evolved rule of administrative law Is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword.” In fact, on the analogy and reasonings of the above decision, Mr. Moitra claimed that the authorities in this case had not acted duly, bona fide and properly. While on the question of violation of principles of natural justice, for non-supply of the report, a further reference was made by Mr. Moitra to the observation in the case of State of Gujarat v. Ramesh Chandra Mashmwhla, (1977) 2 SCC 12 : AIR 1977 SC 1619 which lays down that the failure to give copies of certain documents as demanded by the delinquent, would be of case of depriving him of reasonable opportunity to defend his cause.

18. The said Rules came into force on 1st May, 1971 and since no other or earlier date of effect has been mentioned. Mr. Moitra claimed that under the provisions of the General Clauses Act, the same would be prospective from the date as mentioned and cannot be retrospective from any other earlier date and that being the position, the said Rules according to him as indicated earlier, could not have any effect in this case. Mr. Moitra thus contended that Rule 25 of the said Rules, which deal with Repeal and Savings and to the effect that, (1) any rules, orders or notifications concerning matters covered by those rules including:—

(i) those contained in Parts XII and XIII of the Civil Services (Classification, Control and Appeal) Rules issued with the Government of India, Home Department Notification No. 9-3-30-Ests., dated the 19th June, 1930 and adopted by the State Government for application to the Gazetted services under their rule making control, and

(ii) the Bengal Subordinating Services (Discipline and Appeal) Rules. 1936, which were in force immediately before the commencement of these rules and applicable to Government servants to whom these rules apply, are hereby repealed:

Provided that—

(a) such repeal shall not effect the previous operation of the said rules, notifications and orders or anything done or any action taken thereunder;

(b) any proceedings under the said rules notifications or orders pending at the commencement of these rules shall be continued and disposed of as far as may be in accordance with the provisions of these rules.

(2) Nothing in these rules shall be construed as depriving any person to whom these rules apply of any right of appeal which had accrued to him under the rules, notifications or orders repealed by sub-rule (1) in respect of any order passed before the commencement of these rules.

(3) An appeal pending at or preferred after the commencement of the rules against an order made before such commencement shall be disposed of in accordance with these rules and specially sub-rule (i) would have no application and if at all. sub-rule (ii) may apply. But even then, it was contended by Mr. Moitra, that would not justify the initiation of proceeding for the purported offences for 1967–68. While on the question of the bona fides or otherwise of the common proceedings as initiated and in support of the challenges as thrown against the same, Mr. Moitra referred to Rule 3(ii), (iii) and (iv) of the said Rules, apart from Rule 9 as quoted hereinbefore. The provisions of the sub-rule 3 as mentioned hereinbefore are quoted as under:—

(ii) the authority empowered to make appointments to the post which the Government servant for the time being holds, or

(iii) the authority which appointed the Government servant to such service, grade or post as the case may be, or

(iv) where the Government servant having been a permanent member of any other service or having substantively held any other permanent post, has been in continuous employment of the Government, the authority which appointed him to that service or to any grade in that service or to that post. He then referred to Rule 4 of the said Rules, which classifies the services under the Government and so also to Rule 6, which lays down how appointment to Class I and Class II Services under the West Bengal State Services shall be made. In addition to the above, Mr. Moitra referred to Schedule I of the said Rules, disclosing the list of appointing, disciplinary and Appellate Authorities in Class III and Class IV Services. The references to all the Rules as mentioned above, were intended for the purpose of establishing that the common proceeding as initiated, was unauthorised, without jurisdiction, illegal, irregular and void. Apart from the above. Mr. Moitra further claimed that non-disclosure of the televant rules in the charge sheet, also made the same ultra vires.

19. Submitting further on the question of due initiation of disciplinary proceeding in this case, the particulars whereof have been mentioned hereinbefore, Mr. Moitra made a further reference to the case of Mohanbhai Dungarbhai Parmar v. Y.B Zala, 1980 Lab IC 89, where it has been observed that delay in initiating proceedings may itself constitute denial of reasonable opportunity to defend. Such being the position and on the basis of the said determinations, because of the admitted delay in initiating the concerned proceeding for the alleged oifences which was alleged to have been constituted in 1967–68, Mr. Moitra contended that the petitioner did not receive due and appropriate opportunities and so there was admitted violation of principles of natural justice. Apart from the fact that reference to such a stale matter as a limb for the concerned initiation of disciplinary proceeding, established mala fide.

20. The issue of the charge sheet by or in the name of the Governor and so also the initiation of common proceedings under the said Rules, in the facts and circumstances of the case, cannot be said or held to be void, irregular and unauthorised or without jurisdiction as claimed. Thus, the submissions of Mr. Moitra on these account, in may view would be baseless.

21. The conduct of the petitioner in the matter of his dealings or disposal of the blank Ration cards it seems to me to be suspicious, not bona fide and that apart, his conduct on that aspect, was certainly unbecoming of a Government servant. I arm also of the view that it cannot be held or observed for certain and that too on the explanation as given now, if the petitioner could be exonerated of the necessary charges on the account, if duly framed or if he was appropriately proceeded at the relevant stage. Admittedly, the petitioner was not duly or at all proceeded with on framing of charges on account of misuse of blank cards and it would not be also be fair to allow such stale charges or incidents to be racked up after such a long lapse of time and more particularly when, it can be observed from the conduct of the appropriate authorities, who are respondents herein, that perhaps charges on the basis of such allegations because of their inaction or for not taking steps duly and in time, was given a go-by. In the circumstances of the case, it cannot but be held that the incident of 1967 was really and too stale and remote, when the charge sheet on that basis was issued in 1975 and such admitted remoteness meant, want of nexus and as such, the entire proceedings was vitiated or the same could be held to be biased and not bona fide. These apart, the said Rule, not being retrospective, but only prospective, the petitioner could not also the proceeded with under the said Rules, for such offence, which happened or occurred long prior to the coming into force of the same. The refusal to supply the concerned reports, in the facts of the instant case was also an act which constituted violation of principles of natural justice. It is true, mere suspicion of guilt, could neither be made the basis of an offence nor a delinquent could be punished on such suspicion only or such suspicion can alone be made the basis of a departmental proceedings. Since suspicion is not proof soon suspicion only, nobody could be found or held to be guilty of an alleged offence. The admitted and practically unexplained delay in initiating the proceedings in this case, on the basis of the decisions as cited at the Bar, have also constituted violation of principles of natural justice. Apart from the above, I do not find any other infirmities in the proceedings, so the submissions of Mr. Moitra, excepting those touching the points as indicated above, should fail. Thus the Rule is made absolute to the extent as indicated above. There will be no order as to costs.

22. Order accordingly.