G.N Roy, J.:— This rule is directed against initiation of a Departmental proceeding against the petitioner who is a Rakshak in the Railway Protection force and the issue of a second show-cause notice proposing dismissal from service in the said Departmental proceedings. It appears that on September 27, 1976, the Petitioner was charge-sheeted by the Memorandum issued by the Assistant Security Officer, Railway Protection Force, Eastern Railway, Sealdah. The context of the charge-sheet is to the following affect:

“Gross negligence in the discharge of his duty in that on 1-9-76 while he was on duty at Naihati Up yard from 16.00 hrs. to 24.00 hrs. he failed to prevent and detect the pilferage of rice which was being committed by outside criminals at about 19.45 hrs. from Wagon No. CR/CG 62291 standing on Line No. 11 Hump at Naihati Up yard which was detected by S.I/CIB/KPA Sri B.N Bose, S. 1./P.C/KPA Sri S.B Mishra, S.I (C & W)/KPA Sri J.C Chakraborty and other CIP plain cloth staff. The raiding party of KPA/RPF Page: 535recovered 218 K. Gs. of boiled rice, one bed sheet, 2 empty small bags, one Iron rod of 8 ft. in length and could also arrest 4 outside criminals at the spot. This act of RK tantamounts to gross neglect of duty resulting in pilferage of boiled rice from a wagon which was standing on Line No. 11 Hump at Naihati yard during his duty hours.”.

2. The said charge-sheet together with enclosures have been annexed to the Writ Petition being marked as Annexure ‘A’. The Petitioner after receipt of the said charge-sheet submitted a reply on January 8, 1977, inter alia, stating therein that the charge-sheet was incomplete and the Petitioner also asked for certain documents to be made available to the Petitioner. The said documents are as follows:

“1. Diary entry showing departure of raiding party on 1-9-76.

2. F.I.R sent to GRP in regard to the incident.

3. Entries in the Seal Checking book.

4. DE No. 80 dated 1-9-76 at NH RPF post made by S.I.B.N Bose etc. & some others.”

3. The said documents were, however, not made available to the Petitioner and the Enquiring Officer informed the Petitioner that the said documents were not relevant. It appears that in the Departmental enquiry several witnesses were examined on behalf of the Department and the petilioner also deposed in support of his case. Thereafter another show-cause notice was issued by the punishing authority to the petitioner, inter alia, asking the petitioner to show-cause as to why he should not be dismissed from service. The order of the punishing authority was annexed to the said Memorandum asking the petitioner to show-cause against the proposed dismissal from service. It appears from the order of the said punishing authority that the said authority after setting the charges framed against the Petitioner and thereafter had observed to the following effect:—

“The R.O found him guilty of the charges. I also agree with his findings. This type of R.K has no right to stay in the force. So issue show-cause notice for removal from service.”

4. Before passing any order on the second show-cause notice the Petitioner moved this Court and the instant Rule was issued. An interim order was also passed in the Rule to this extent that the final order should not be communicated to the Petitioner until disposal of the Rule. It has been stated in the Afndavit-in-opposition filed on behalf of the Respondents that after considering the representation made by the Petitioner on the second show-cause notice the punishing authority has passed on order of dismissal against the Petitioner but in view of the interim order passed in the Rule the said order of dismissal has not yet been communicated to the Petitioner and has also not been given effect to. Mr. Ganguly, the learned Counsel appearing for the Petitioner contended that the charge-sheet clearly depicts a closed mind of the punishing authority and as such the entire proceeding is vitiated on the ground of bias. He contends that in the charge-sheet it has been specifically stated that the act of Rakshak tantamounts to gross neglect of duty resulting in pilferage of boiled rice from a Wagon standing online No. 11 Hump at Naihati Yard during his duty hours. Mr. Ganguly contends that in the charge-sheet it has not been stated that from the imputations it prima facie transpire that the petitioner was guilty as being neglectful to duty but the language of the charge-sheet communicates that the Page: 536disciplinary authority has formed a view that the delinquent has been neglectful to his duty resulting in pilferage of the boiled rice from, a particular Wagon and the delinquent was required to dispel the conclusion already drawn by the Disciplinary authority. Mr. Ganguly also contends that the disciplinary authority in framing the charges also did not apply his mind. He stated that the name of the Rakshak was not mentioned and it was only stated that the act of Rakshak tantamount to gross neglect of duty. Mr. Ganguly contends that when the Disciplinary Authority being a superior Officer has formed a clear opinion about the Commission of guilt or dereliction of duty by the delinquent the Enquiring Officer being subordinate to him is likely to be influenced by such formation of opinion by the Disciplinary authority. Mr. Ganguly contends that actual bias is also not the test for deciding as to whether a charge-sheet is illegal or not. It is only sufficient to hold a charge-sheet as illegal if there is likelihood of any bias, for this contention Mr. Ganguly refers to a Bench decision of this Court made in the case of Sunil Kumar Mukherjee v. State of West Bengal reported in 1971 Calcutta High Court Notes at Page 1014. Mr. Ganguly also contends that the bias of the Disciplinary Authority is further reflected and/or projected in the second show-cause notice. The Disciplinary authority has clearly stated that “This type of RK has no right to stay In the force So issue show-cause notice for removal from service,” Mr. Ganguly contends that from the aforesaid facts it is quite clear and evident that from the very beginning the Disciplinary authority made up his mind that the petitioner was guilty of the charges leveled against him and he should be removed from service and it was only to comply with the formalities that the said Departmental proceeding was initiated against him and the second show-cause notice was issued. Mr. Ganguly also referred to Rule 44(1)(10) of the Railway Protection Force Rules, 1969 and he contends that under the said Rules the punishing authority is required to record his own finding after considering the report of the Enquiring Officer and other documents relating of the Departmental proceeding but in the instant case it is evident from the second show-cause notice that the Disciplinary authority did not give his own findings but merely stated that he agreed with the finding of the Enquiring Officer. Mr. Ganguly contends that the issue of a second show-cause notice is also bad in view of the violation of the requirements under the said Rule 44(1)(10). Mr. Ganguly next contended that the Petitioner asked for certain documents at the earliest opportunity to defend himself in the said Departmental proceeding but such documents were not made available to the Petitioner by the Enquiring Officer and the Enquiring Officer only informed the petitioner that the said documents were not relevant. Mr. Ganguly contended that under Rule 44(3) of the Railway Protection Force Rules the Enquiring Officer is bound to disclose his reasons as to why he considers a particular document called for by the delinquent as not relevant. He contends that in the instant case no reason whatsoever was given by the Enquiring Officer contrary to the provisions of Rule 44(3), but the said Officer arbitrarily disallowed the prayer of the Petitioner in furnishing the documents on a bald statement that the said documents were not relevant, Mr. Ganguly contends that the documents called for by the Petitioner were quite relevant and as a matter of fact the charges were framed against the Petitioner on the basis of the complaint made by the Departmental Officer to the G.R.P as contained in the F.I.R lodged with the G.R.P He also submits that as a matter of fact a criminal proceeding was instituted against the Petitioner and other persons for the Page: 537self-same incident but the F.I.R sent to the G.R.P relating to the said incident was not made available to the Petitioner on the flimsy ground that the said documents were not relevant. Mr. Ganguly submits that the Enquiring Officer referred to the complaints made against the Petitioner and also to the F.T.R sent to the GRP relating to the said incident in his finding but the documents were not made available to the Petitioner. Mr. Ganguly also contended that the Diary entry showing departure of the raiding party on September 1, 1976, is a very relevant document and entries in the Sealed checking books are also very relevant and denial of the said documents to the Petitioner has deprived the Petitioner to defend himself effectually. Mr. Ganguly contends that in the aforesaid circumstances the Departmental proceeding is vitiated and no action can be taken on the basis of such Departmental proceeding. In this connection Mr. Ganguly refers to a Bench decision of this Court made in the case of Collector of Customs v. Biswanath Mukherjee reported in 1974 CLJ at page 251. In the said decision the effect of non-supply of material documents like the F.I.R was considered by this Court and it was found that such non-supply of the said material documents had prejudicially affected the delinquent.

5. Mr. Ganguly also contends that the findings made in the Departmental proceeding were not in conformity with the charger sheet and the said findings were contrary to the charges. He contended that in the charge-sheet it was stated that on the spot the rice was recovered but in the finding it was stated that the said rice was found in the Naibati Yard. Mr. Ganguly contends that the finding made by the Enquiring Officer establishes an absolute non-application of mind! He contends that the evidence adduced in the Departmental proceeding do not establish that at the relevant time the Petitioner was on duty on the spot where the pilferage is alleged to have taken place. Mr. Ganguly contends that in the aforesaid circumstances the entire proceeding is illegal and bad and no action can be taken on the basis of any finding made in the said departmental proceeding-He submits that although no formal communication of the order passed by the Disciplinary authority has been made to the Petitioner in view of the interim order passed in the Rule but it has been disclosed in the Affidavit-in-opposition that an order of dismissal has been made by the Disciplinary authority. Mr. Ganguly contends that as the disciplinary proceeding itself is illegal and vitiated with bias and irregularity or procedure the said proceedings and alt order passed in the said Departmental proceeding should be quashed.

6. Mr. R.N Das, the learned Counsel appearing for the Resonndents, however, submitted that the petitioner should not be permitted to challenge the legality and validity of the said Departmental proceeding at this stage and the petitioner must exhaust his remedies after the Departmental proceeding is concluded and if he still feels aggrieved the petitioner may Come before this Court. Mr. Das further submits that although the reasons-for non-disclosure of the documents called for by the delinquent have not been given by the Enquiring Officer, but the said officer has informed the petitioner that he considered the said documents as irrelevant. Mr. Das contends that for not disclosing the reason in details the petitioner has not suffered any prejudice and in any event the defect, if any, in conducting the Departmental proceeding without disclosing the foresaid documents could be agitated by the petitioner before the Page: 538Appellate Authority. Mr. Das also contends that the Disciplinary Authority did not proceed with any closed mind either at the time of issuing the charges-sheet or at the time of issuing the second show-cause notice. He contended that the charge-sheet was issued in the prescribed form under the said Railway Protection Force Rules and in the said charge-sheet allegations made against the petitioner were given. He also contended that there was no vagueness in the charge-sheet and/or there was no scope for the allegation that the Disciplinary Authority issued the charge-sheet without applying his mind to the facts of the case. He submits that the name of the petitioner was given in the allegation and by referring Rakshak in the charge-sheet the Disciplinary Authority meant the petitioner and there is no occasion for the petitioner to get confused as to who was meant by Rakshak in the said charge-sheet. Mr. Das also contends that the second show-cause notice was issued in terms of Rule 44(10). He submitted that it is a requirement under the said Rules that the Disciplinary authority is to consider the findings of the Enquiring Officer and is to arrive at his own conclusion and if he agrees with the finding of the Enquiring Officer and/or is of opinion that a major punishment is to be inflicted on the delinquent he is to propose such punishment. Mr. Dass contends that in the second show-cause notice the Disciplinary authority proposed a major punishment against the delinquent, namely, that the delinquent should be removed from service as he was found unsuitable to remain in the force. Mr. Das contended that the charge-sheet and the statement of facts accompanying the charge-sheet must be read as a whole and it will only be hyper-critical to consider either the charge-sheet or the allegations made against the delinquent separately and to make a finding on such isolation consideration. In this connection Mr. Das referred to the decision of the Supreme Court made in the case of State of Andhra Pradesh v. Sri Rama Rao reported in A.I.R 1963 S.C at Page 1723. It was held by the Supreme Court in the said case that the charge and the statement of facts accompanying the charge-sheet must be read as a whole and it should be hyper-critical to proceed on the view that the Respondent was expressly stated in the statement of facts which formed part of the charge-sheet that he had failed to record that Durgalu was handed over to him. But that ground of reprehension able conduct was not included in the charge and on that account the enquiry was vitiated. Mr. Das next contended that adequacy or sufficiency of evidence cannot be questioned in the writ proceeding. He submits that there are some evidences showing the implication of the Petitioner in respect of charges and the Enquiring Officer considered such evidence and came to a finding. Mr. Das contends that it is not a case that there is no evidence whatsoever against the Petitioner in support of charges levelled against the Petitioner and/or the finding made against the Petitioner is so perverse that it shocks the conscience of the Court. Accordingly, Mr. Das contends that there is no occasion to interfere by the Writ Court by appreciating or evaluating the evidences adduced in the proceeding.

7. In reply to the aforesaid contention of Mr. Das, Mr. Ganguly contended that the Memorandum was only an informal note or instrument containing the communication given to the Petitioner about the framing of the charge-sheet and initiating the Departmental proceeding but the said Memorandum cannot be considered for appreciating as to whether any biased mind was reflected in the charge-sheet. Mr. Ganguly contends Page: 539mat it is the charge-sheet which is to be looked into and not the accompanying documents for deciding the case of bias otherwise the grossest of bias may be salvaged by referring to a Memorandum which does not contain any projection of mind whatsoever. Mr. Ganguly in this connection referred to a decision of this Court made in the case of Meena Jana v. The Deputy Director of Tourism reported in 1974 (2) Services Law Reporter at Page 466. In the said decision this Court considered the charge-sheet and on such consideration came to the finding that the Departmental authority had already come to a conclusion and the delinquent Officer was asked to explain why she should not be discharged from service. Hence the charge-sheet was found wholly illegal and the Departmental proceeding was quashed. Similar view was also taken by this Court in other decisions. Mr. Ganguly futher submits that the decision of the Supreme Court made in the case of Rama Rao reported in A.I.R 1973 S.C 1728 can be distinguished in the facts and circumstances of the instant case. In the said case the Supreme Court was not called upon to decide as to whether or not the charge-sheet reflected any closed or biased mind. It was only contended that in the charge-sheet the reprehensible conduct alleged against the delinquent was not stated but in the statement of facts such reprehensible conduct was alleged. In that contest the Supreme Court held that the charge-sheet and the statement of facts accompanying it should be read together and not in an isolated manner. Mr. Ganguly submits that the Petitioner may get remedy before the Appellalc authority if the Appellate authority is satisfied about the correctness of the contentions made by the petitioner in the instant Rule. But if this Court is otherwise satisfied that the proceeding itself was vitiated because of the defective charge-sheet and the decision was made by the Disciplinary authority with a closed mind and the proceeding was also vitiated because of withholding of some very material documents to the Petitioner thereby depriving him of the reasonable opportunity to defend himself it will not be just and proper to refrain from interfering at this stage but directing the Petitioner to go up in the departmental appeal and to come up before this Court if he fails there. Mr. Ganguly contends that if the proceeding itself has been vitiated because of the aforesaid illegalities and/or irregularities, the Petitioner is bound to succeed and it will not be just and proper to direct the Petitioner to suffer further agony by going before the Appellate authority.

8. After considering the respective submissions made by the learned Counsel appearing for the parties it appears to me that the charge-sheet as framed against the Petitioner has not been vitiated on the ground of bias and/or closed fund. After-all to avoid any vagueness in the charge-sheet the authorities must clearly state the imputations against the Delinquent and pin-point the commission of any alleged offence and/or dereliction in duty. In my view it will not be proper to consider the charge-sheet in a hyper-critical manner. The real p???h and substance of the charge-sheet is to be looked into dispassionately in order to find out whether the Disciplinary authority is really proceeding or not with absolutely a closed mind against the Delinquent. A bare statement that the Delinquent is guilty of the charges will not ipso facto establish closed ???ind. In my view, Mr. Das is justified in his contention that the charge-sheet read with Memorandum makes it clear that the allegations were stated and on the basis of the allegations the charges were framed and the allegations on the face showed that the Petitioner was guilty of the said charges. But Page: 540the said documents do not establish that Disciplinary Authority had absolutely made up his mind about the guilt of Delinquent. It, however,-appears to me that in the second show-cause notice the Disciplinary, authority proceeded with a closed mind. It is true that it is necessary for the Disciplinary Authority to consider the findings of the Enquirag Officer and to come to a decision as to whether or not he agrees with the finding of the Enquiring officer. It is also necessary for the Disciplinary authority to decide prima facie as to whether he proposes-any major punishment against the Delinquent and if he proposes such punishment, he is to issue a second show-cause notice to the Delinquent asking him to show-cause as to why such proposed punishment should not be passed against him. But at the stage of issuing the second show-cause notice it is only necessary for the Disciplinary Authority to form a tentative opinion but not an absolute view that the Delinquent was guilty of the charges. In the instant show-cause notice it has been stated that the Rakshak has no right to stay in the force and so the second show-cause should be issued. In my view, Mr. Ganguly is justified in his submission that a firm con-collusion was drawn by the Disciplinary Authority about the Petitioner's complicity in the charges and the said second show-cause notice was only issued for complying with the formalities. I would have quashed the second show-cause notice and the decision made on the representation given by the Petitioner in answer to the second show-cause notice and directed the concerned authorities to proceed afresh from the stage of the second show-cause notice, but it appears to me that the enquiry proceeding itself is vitiated for not supplying the said documents or copies thereof to the delinquent. In the facts of the case it appears to me that the said documents are quite vital relevant and the said documents were withheld by the Enquiring Officer without giving the reasons why he thought that the said documents were not material and/or relevant. It appears to me that in the absence of the said documents the Petitioner was deprived of a reasonable opportunity to defend himself. In a Departmental proceeding the concerned authorities should not proceed with any pre-conceived notion against a Delinquent and the opinion of the Delinquent is got to be considered dispassionately and it is only desirable that all reasonable opportunities should be given to the Delinquent to defend himself. In the aforesaid circumstances the Departmental enquiry proceeding and the second show-cause notice at the Order passed on the basis of the second show-cause notice are quashed. But this order will not preclude the concerned authority to proceed afresh with the Departmental proceeding against the Petitioner from the stage of the said charge-sheet issued to the Petitioner.

9. The Rule is, accordingly, disposed of. There will be no order as to costs.

10. Rule made absolute.