T.K Basu, J.:—This appeal is directed against the judgment and order of P.K Banerjee, J. in C.R No. 5005(W) of 1970 dated 17th August, 1973. The Rule was directed against a show cause notice issued against the respondent by the Collector of Customs dated the 14th August, 1970. By the judgment under appeal, the learned trial Judge quashed the impugned notice and made the Rule absolute.

2. The case of the respondent before the learned trial Judge was shortly that a notice similar to the notice dated the 14th August, 1970 was issued by the Collector of Customs in 1964. The respondent replied to that show cause notice and on perusal of the reply, according to the respondent, the Collector of Customs was satisfied that there was no case against the respondent and dropped the proceedings. It is not really disputed that the notice dated the 14th August, 1970 which is the subject matter of the present proceedings is issued on more or less the same grounds as the earlier notice.

3. In the affidavit-in-opposition filed on behalf of the appellants before the trial court it was not made clear whether the proceedings initiated on the basis of the 1964 notice were dropped or not. But it appears that before the learned trial Judge the late Mr. A.C Mitra appearing on behalf of the present appellants produced all the records. From the records, it transpired that the previous notice of 1964 was initiated on a report by the Central Bureau of Investigation. The learned trial Judge in the judgment refers to a letter from the Collector of Customs dated the 18th August, 1965 to the Superintendent of Police, CBI, SPE Division in extenso. In the letter, the Collector of Customs went into an elaborate analysis of all the various allegations against the respondent and the report of the Investigating Officer of the CBI at whose instance the notice was issued. The letter concludes with the observation that “in the circumstances, this report (meaning the report of the Investigating Officer) has no legs to stand on.”

4. Thereafter, nothing was heard about the matter till as noted by the learned trial Judge and as transpires from the records that the Central Vigilance Commissioner in a letter dated the 16th April, 1970 came to the conclusion that the case against the respondent should be started again on a charge of major penalty. It was further stated in the said letter that final orders on the Enquiry Officer's report should not be passed by the Collector without previous reference to the Central Vigilance Commission. The CBI it was, stated should also be asked to appear for the prosecution before the Enquiry Officer.

5. It is on the basis of this letter that the impugned notice dated the 14th August, 1970 was issued against the respondent before us.

6. Mr. Saktinath Mukherjee the learned advocate appearing on behalf of the appellants urged, in the first place, that the proceedings initiated by the notice of 1964 was really in the nature of a preliminary enquiry and was not disciplinary proceedings. That enquiry according to Mr. Mukherjee was for the sole purpose of finding out whether there was a prima facie case against the respondent which could be taken up by way of disciplinary proceedings. He drew our attention to Rule 15 of the Civil Services (Classification Control and Appeal) Rules 1957, which according to Mr. Mukherji contemplates an enquiry. Since the notice of 1964 did not mention any such enquiry which was to be held, it should be construed as merely a notice of a preliminary enquiry and not a chargesheet. Consequently, the learned trial Judge was in error when he came to the conclusion that the respondent was sought to be proceeded against twice by way of disciplinary proceedings on the same materials.

7. Mr. Mukherjee relied on a decision of the Supreme Court in the case of Amalendu Ghosh v. District Traffic Superintendent, North-Eastern Railway, Katihar , Katihar reported in AIR 1960 SC 992 wherein Gajendragadkar, J. (as he then was) outlines the nature of a preliminary enquiry. He also relied on another decision of the Supreme Court in the case of Champaklal Chimanlal Shah v. Union Of India . reported in AIR 1964 SC 1854 in support of the proposition that when there is a preliminary enquiry to determine whether there is a prima facie case for formal departmental enquiry, such a preliminary enquiry is not governed by Article 311(2) of the Constitution of India.

8. The proposition that there can be a preliminary enquiry against a proposed delinquent in order to find out whether there exists a prima facie case against him for departmental proceedings cannot possibly be disputed. Similarly it cannot be disputed and, indeed, was not disputed, that such an enquiry would not come within a strict ambit of departmental proceedings. The question that arises for consideration in this appeal is whether the proceedings initiated by the notice of 1964 against the respondent was in the nature of a preliminary enquiry or was part of the departmental proceedings.

9. Mr. Somnath Chatterjee, appearing on behalf of the respondent submitted that the notice of 1964 was really a chargesheet to which the respondent was called upon to submit an explanation. With reference to the records of the proceedings which were produced before the learned trial Judge, Mr. Chatterjee argued that the proceedings in 1964 by way of the chargesheet were initiated on a report of the Central Bureau of Investigation. He referred to the elaborate analysis that the Collector of Customs made in his letter dated 18th August, 1965 to the Superintendent of Police, CBI, SPE Division in respect of the alleged charges against the respondent and come to the conclusion that the report of the CBI “has no legs to stand on”. In that view of the matter, it must be held that the Collector of Customs after having sent a chargesheet to the respondent and having considered his explanation came to the conclusion that there was no case against the respondent and as such the proceedings were dropped. Consequently, the respondent would not be proceeded against on identical materials by way of a second notice to show-cause.

10. The next submission of Mr. Chatterjee was based on the provisions of Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules 1965. Although the provisions of Rule 14 have been considered by the learned trial Judge, it will be useful to set out the provisions of Rule 14(2) which are as follows:

“Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Government servant, it may itself inquire into, or appoint under this rule or under the provision of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof.”

11. According to Mr. Chatterjee, the condition precedent for disciplinary proceedings under Rule 14(2) of the above mentioned Rules is the formation of an opinion by the Disclinary Authority that there are grounds for enquiring into the case of a delinquent. The Disciplinary Authority admittedly was the Collector of Customs in the present case. That Disciplinary Authority had in 1965 in fact formed an opinion that there was no case against the respondent to be proceeded with. It was only at the instance of the Central Vigilance Commission that in 1970 a successor of the previous Collector of Customs was prevailed upon to issue the second show-cause notice. The initiation of the proceedings in 1970 in this manner, according to Mr. Chatterjee, was really at the instance or behest of an outside authority and was not a bona fide exercise of power of the Collector of Customs under the above mentioned Rules.

12. We are merely recording the contentions advanced on behalf of the respective parties but we do not propose to express our opinion on them. This is because, in our view, this appeal must fail on a preliminary point which we propose to deal with now.

13. It is an admitted fact that after the disposal of the Rule Nisi by the learned trial Judge and during the pendency of this appeal the respondent has been promoted to a higher post by the Customs Authorities. It is also an undisputed fact that the promotion was on the recommendation of a Committee known as the Departmental Promotion Committee. This Committee as is well-known goes into the question of the merits and suitability of each candidate for promotion before making its recommendations. This Committee as we have stated recommended the promotion of the respondent which was acted upon by the Authorities and the recommendation was implemented during the pendency of the appeal.

14. It may be mentioned that no application was made by the appellants before the Court of Appeal for any order that the promotion of the respondent be stayed pending the disposal of the appeal or that the promotion should abide by the result of the appeal.

15. Relying on these admitted facts, Mr. Chatterjee contended that by this action of promoting the respondent, the Customs Authorities should be deemed to have condoned any allegation of misconduct against the respondent. He placed strong reliance on a decision of the Supreme Court in the case of State of Punjab v. Dewan Chuni Lal reported in AIR 1970 SC 2086. In that case during the pendency of the departmental proceedings the delinquent was allowed to cross the efficiency bar. Dealing with this aspect of the matter G.K Mitter, J. on behalf of the Court observed as follows:

“In our view reports earlier than 1944 should not have been considered at all in as much as he was allowed to cross the efficiency bar in that year. It is unthinkable that if the authorities took any serious view of the charge of dishonesty and inefficiency contained in the confidential reports of 1941 and 1942 they could have overlooked the same and recommended the case of the officer as one fit for crossing the efficiency bar in 1944. It will be noted that there was no specific complaint in either of the two years and at best there was only room for suspicion regrading his behaviour”.

16. Relying on these observations of the Supreme Court, Mr. Chatterjee submitted that although that case was one of crossing the efficiency bar and the present one of promotion, the same principle must apply to the present case. In other words, it must be held that by granting the promotion to the respondent the Customs Authorities must be deemed to have condoned any allegation of misconduct against the respondent. Mr. Chatterjee submitted that the Customs Authorities must not be allowed to take up inconsistent positions and there must be some predictability in the action of executive or Statutory authorities.

17. In our view, this contention of Mr. Chatterjee is sound and should be upheld. After all, the allegations against the respondent was of graft and corruption since he was being charged with having acquired assets disproportionate to his known sources of income. If the Customs Authorities were really serious in pressing the charge it is, in our view, unthinkable how during the pendency of this appeal they could have promoted the respondent. This action of promotion should, in our view be held, to amount to a condonation of any allegation against the respondent. After all this Court is exercising its equitable jurisdiction in granting discretionary relief. The appellants in our view cannot be allowed to approbate and reprobate at the same time.

18. In that view of the matter, we dismiss this appeal on this preliminary question without pronouncing on the merits of the contentions advanced by the respective parties.

There will be no order as to the costs of this appeal.

M.N Roy, J.:—I agree.

Appeal dismissed.