Calcutta High Court
Tarakeswar Nandi vs Food Corporation Of India And Ors. on 7 December, 2001
Equivalent citations: (2002)3CALLT29(HC)
JUDGMENT A.K. Mitra, J.
1. This writ petition is directed against the disciplinary proceeding initiated and the final order dated 23.3.93 passed by the Zonal Manager (East), Food Corporation of India, against the writ petitioner.
2. The case as has been made out by the petitioner in the writ petition is infer alia as follows :
The petitioner was appointed in the post of Junior Clerk with effect from 6.5.1963 under the erstwhile Regional Director (Food), Government of India, Calcutta. Thereafter, he was promoted to the post of Senior Clerk in the middle of 1970. The services of the petitioner was transferred to the Food Corporation of India and the petitioner was designated A-G II Ministerial. The petitioner was promoted to the post of Assistant Grade-I (Ministerial) in March, 1973 and on promotion, the petitioner was transferred to Purnia. Subsequently, considering his efficiency, the petitioner was promoted to the post of officer i.e. Assistant Manager and his service was placed in the accounts cadre and he was posted to the Regional office at Patna, as an Assistant Manager (Accounts) on 16.12.1979.
3. While the petitioner was working as an Assistant Manager (Accounts) being attached to the Food Corporation of India, Zonal IA & PV branch he was served with a charge-sheet through Memorandum being No. VIG 2(7)/ 87 dated 17.7/3.8.87. In the said Memorandum containing Articles of charge it was stated that an enquiry under regulation 58 of the Food Corporation of India (Staff) Regulation, 1971 will be held. The petitioner has annexed the said Memorandum of charges being annexure-A to the writ petition. In response to the said charge-sheet the petitioner submitted his reply which has also been made annexure-B to the writ petition. Shri A.K. Biswas (OC) was appointed as enquiry officer. Before the first enquiry officer, the petitioner made a petition on 26.7.88 praying for production of 6 items of documents. The petitioner has annexed the copy of the said petition dated 26.7.88 as annexure-C to the writ petition. It may be mentioned that change of enquiry officer was made from time to time.
4. Four PWs adduced evidence, copies of which have also been annexed to the petition and collectively marked as annexure-D to the writ petition. The petitioner submitted written argument before the enquiry officer which is annexure-E to the writ petition. The enquiry officer submitted report and a copy of the report was forwarded to the petitioner for his comment along with the forwarding letter dated 22.6.92. Copy of the said letter along with enquiry report has been made annexure-F to the writ petition. The petitioner submitted a reply making comment on the enquiry report dated 20.7.92 as annexure-G to the writ petition. On 23.4.93, the petitioner received a Memo/Order No. VIG2(7)/86-Pt dated 23.3.93 passed by the respondent No. 2 the Zonal Manager (East), Food Corporation of India. The said order was a penal order and by virtue of the said order the petitioner has been awarded the penalty of reduction in rank to the rank of Assistant Grade-I (Accounts) with immediate effect and his basic pay has been reduced from Rs. 3125 to Rs. 2300. At this stage challenging the said penal order and the disciplinary proceeding the petitioner has come to this Court and agitated his grievance through this writ petition.
5. It is to be noted that when initially this writ petition was moved, on hearing the learned counsel for the parties on 30.4.93 Hon'ble Justice Susanta Chatterjee passed an impugned order to the extent that there will be an interim order restraining the respondents from giving effect or further effect to the impugned order of reduction in rank until further orders which, as it appears from the records is continuing till date.
6. On behalf of the respondent Nos. 1 to 5 affidavit-in-opposition has been affirmed by Deputy Manager (Vigilance) of the Food Corporation of India, Zonal Office (East) which has been filed on 29.7.93. On behalf of the writ petitioner affidavit-in-reply has been filed.
7. In the affidavit-in-opposition the respondent has categorically denied the allegations made by the petitioner. In the said affidavit-in-opposition it has been stated on behalf of the respondents that while functioning as the Assistant Manager (Accounts) Internal Audit and Physical Verification, Food Corporation of India, Zonal Office, Calcutta, during 1985 the writ petitioner was directed to take physical verification of stocks at Ghatal Food Storage Depot in July, 1985 along with other two officials.
8. The writ petitioner Shri Tarakeshwar Nandy submitted physical verification report showing 10680 bags of food grains consisting of 951 MT in the Food Corporation of India depot at Ghatai as per book balance, although all the stocks of Ghatal depot were not stored in the said godown.
9. After receiving the said physical verification report the higher authorities of the Food Corporation of India found discrepancies in the said report and therefore directed fresh physical verification which was conducted by a team headed by Shri A.K. Mitra, Assistant Manager (Vigilance), Regional Office, Food Corporation of India, Calcutta in November, 1985 and discrepancy was established.
10. It has also been stated in the said affidavit-in-opposition that chargesheet was issued and enquiry against the petitioner was proceeded in accordance with the rules, opportunity was given to the petitioner to defend and the final order passed against the petitioner is legal and valid.
11. In this written petition, therefore, following points are to be decided :-
(i) Whether there is malafide/bias is issuance of the chargesheet as alleged.
(ii) Whether the enquiry report is perverse as alleged or enquiry report is legal or valid.
(iii) Whether the final order passed in consequence of the disciplinary proceeding is bad in law as alleged or whether in proceeding with the entire disciplinary proceeding principles of natural justice were followed.
(iv) Whether the Court should interfere in its jurisdiction or scope of judicial review, in the instant matter.
12. Needless to mention or needless to observe that the Supreme Court in so many cases have observed that there remains not very much scope to interfere with the final order passed or there is not very much scope in the sphere of judicial review in a departmental proceeding, since the High Court is not sitting over the decision of the disciplinary authority as an appellate body.
13. But at the same time, the Hon'ble Supreme Court as well as High Court at Calcutta in so many matters have observed or found that inspite of the fact that the High Court is not acting as Appellate body but in some certain cases in its scope of judicial review the writ Court can interfere with the matter of issuance of chargesheet or submission of enquiry report or passing the final order or that is to say in decision making process if it found to be vitiated and obviously the Court can interfere with the decision which is a consequential result of the decision making process.
14. In the entirety of the submission when supporting the action taken by the disciplinary authority it has been submitted on behalf of the respondents that the disciplinary proceeding has been initiated in accordance with law, the same has been proceeded with, following the principle of natural justice and the final order passed in the matter is legal and valid. Along with such submission, it has been submitted on behalf of the respondents that there is no scope for interference by the Court in its power of judicial review in the instant matter, that is, the Court cannot and should not interfere in the decision making process or the decision of the disciplinary authority in the instant matter. In support of such contention decisions of the Hon'ble Supreme Court have been cited on behalf of the respondents reported in 1995(6) SCC 750 (Union of India and Anr. v. B.C. Chaturvedi), (State of T.N. v. Thiru K.V. Perumal and Ors.) and 1996(7) SCC 509 (State of T.N. and Anr. v. S. Subramanium).
15. In the matter of B.C. Chaturvedi (supra) the Hon'ble Supreme Court has observed :-
"Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of Judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court."
16. The Hon'ble Supreme Court in this matter also observed that the Court has no power to appreciate the evidence and reach its own contra-conclusion.
17. In the above matter of Shri B.C. Chaturvedi (supra) the Hon'ble Supreme Court also discussed the various decisions of the Hon'ble Supreme Court including the decision (Union of India v. H.C. Goel).
18. In the matter of Thiru K.V. Perumal (supra), the Hon'ble Supreme Court observed that the duty of the authority is only to supply relevant documents and not each and every documents asked for by delinquent. The Hon'ble Supreme Court also observed that the Administrative Tribunal oughc to have recorded a finding as to whether any relevant documents were not supplied and whether the non-supply prejudiced the delinquent's case and the Hon'ble Supreme Court observed :-
"It was the duty of the respondent to point out how each and every document was relevant to the charges or the enquiry being held against him and whether and how their non-supply has prejudiced him. Equally it is the duty of the tribunal to record a finding whether any relevant documents were not supplied and whether such non-supply has prejudiced the defence case."
19. The Hon'ble Supreme Court also in the above matter observed to the extent, that the question as to whether the charges established on the material available is beyond the scope of judicial review since the tribunal is not the appellate authority over the departmental authorities.
20. In the matter of S. Subramanium (supra) the Hon'ble Supreme Court observed that within the scope of judicial review the Administrative Tribunal cannot reappreciate the evidence and reach its own conclusion.
21. From the above decisions cited on behalf of the respondents and also from other decisions the scope of judicial review has been more or less settled and the principle as it appears from the decisions of the Hon'ble Supreme Court enunciated in so far as the scope of judicial review is concerned is that there can be no straight jacket formula. In the matter of B. C. Chaturvedi (supra) cited on behalf of the respondents also the Hon'ble Supreme Court comes to the finding that the judicial review is meant to ensure that the individual receives fair treatment. The settled position of law is therefore that the writ Court is to see that whether there is any malafide or bias in the initiation and conclusion of departmental proceeding, whether the charges are definite and the enquiry report is definite on the charges, the enquiry report is not perverse, so to say, not based on no evidence or the enquiry did not traverse beyond the charges framed or the delinquent employee got a fair treatment and got the reasonable opportunity to defend his case and the enquiry officer specifically considered his defence and the disciplinary authority has imposed punishment on proper consideration of the charges, evidence adduced and the defence of the employee. The whole scope of review must be concentrated and based on the fact as to whether there is fair and impartial trial right from the beginning to the end. Now, in the aforesaid perspective and in the touch stone of the guidelines given by the Hon'ble Supreme Court in so many decisions concerning judicial review or concerning fair trial let us examine the above points for decision on the materials on record placed before this Court relating to this disciplinary proceeding.
22. Let us come to the charge sheet first which is annexure-1 to the writ petition. The charge sheet issued through Memo dated 17.7.87 contains annexure-1 as Article of charges and annexure-2 as statement of imputation of misconduct or misbehabiour in support of Articles of charge, annexure-3 being the list of documents and annexure-4 to the said memo being the list of witnesses along with calender of evidence (oral) and calender of evidence (documentary).
23. From the aforesaid memo/charge-sheet, it appears that before issuance of the charge sheet the authority arrived at a decision to initiate departmental proceeding against the petitioner relying on investigation by CBI inasmuch as in the list of witnesses, witnesses No. 4 Shri R.K. Sirkar is the Deputy Superintendent of CBI and in the calender of evidence (oral) enclosed it has been indicated that Shri R.K. Sirkar, DSP, CBI will prove the investigation of the case. It is therefore clear that the decision which must be taken before initiation of the departmental proceeding has been taken in the instant case is based on report of investigation made by the CBI which has not been brought to light or rather which has not been brought to the notice of the petitioner who is the charged employee.
24. It is a fact that before issuing a charge-sheet the disciplinary authority must come to a decision, that is initially the authority is to decide whether a charge-sheet will be issued against the employee at all or not. The authority is to satisfy itself first that there is prima facie allegations or charges on which charge-sheet can be issued against an employee and for coming to such a decision if the authority makes a preliminary enquiry by any other independent body the employee should get a chance to defend himself in the said enquiry also inasmuch as if the enquiry is held behind the employee he does not get a chance to refute the allegations levelled against him and the decision becomes exparte. The authority should not proceed on the basis of such enquiry where the employee does not get chance to disprove the allegations levelled against him.
25. In the instant case as it appears from the charge-sheet itself that the authority arrived at a conclusion and issued charge-sheet on the basis of a preliminary enquiry report which was conducted by the CBI and the petitioner comes to know of such an enquiry of investigation by the CBI for the first time when he received the charge-sheet. In the facts itself it does not appear to be bonafide. Even if the petitioner was not supplied with copy of the said preliminary enquiry documents/report on the basis of which the authority came to the conclusion that charge-sheet should be issued against the petitioner.
26. Hon'ble Supreme Court in its decision (Krishna Chandra v. Union of India) observed :-
"It is very necessary for an authority which orders an enquiry to be satisfied that there are prima facie grounds for holding a disciplinary enquiry and, therefore, before he makes up his mind he will either himself investigate or direct his subordinate to investigate in the matter and it is only after he receives the results of this investigation that he can decide as to whether disciplinary action is called for or not. Therefore, these documents of the nature of inter-departmental communication between officers, preliminary to the holding of enquiry have really no importance unless the enquiry officer wants to rely on him for reaching conclusions. In that case it would only be right that copies of the same should be given to the delinquent."
27. Again charge-sheet is nothing but the compilation of certain specific allegations against an employee and naturally a show-cause issued with the charge-sheet gives a chance to the employee concerned to submit his reply to the said specific allegations. If the allegations are vague the charge-sheet is not proper. Therefore, the allegation must be specific and the employee must be given chance to give reply to the said allegations in specific. After consideration of the show-cause along with the charge-sheet and the reply of the employee in respect of the charges levelled against him the authority is to decide whether there will be an enquiry on the basis of the charge-sheet or not. If on very issuance of the charge-sheet before receipt of reply the authority decides that an enquiry would be held then it smacks of bias. The authority appears to be biased when without waiting for the reply to the charge-sheet decides that any enquiry would be held against the employee concerned. In fact, charge-sheet/show-cause or its reply is a matter of serious consideration of the authority inasmuch as if the authority is satisfied with the reply of the employee to the charge-sheet/show-cause, the authority may not or need not have to proceed with any enquiry and If the authority is not satisfied then and then only there would be enquiry. If in the charge-sheet itself it is stated that an enquiry would be held on the basis of the charges and the employee is asked to give reply to the charge-sheet, then there remains no meaning is submission of the reply inasmuch as the authority has already decided to hold the enquiry and this is real bias.
28. The Hon'ble Supreme Court in its decision reported in AIR 2001 SC 343 (State of Punjab v. V.K. Khanna) when considering the scope of interference in its judicial review by the High Court in a disciplinary proceeding observed :-
"While it is true that justifiability of the charges at this stage of initiating a disciplinary proceeding cannot possibly be delved into by any Court pending inquiry but it is equally well settled that in the event there is an element of malice or malafide. motive involved in the matter of issue of a charge-sheet or the concerned authority is so biased that the enquiry would be a mere farcical so and the conclusions are well-known then and in that event law Courts are otherwise justified in interfering at the earliest stage so as to avoid the harassment and humiliation of a public official. It is not a question of shielding any misdeed that the Court would be anxious, it is the due process of law which should permeate in the society and in the event of there being any affection of such process of law that law Courts ought to rise up to the occasion and the High Court in the contextual facts has delved into the issue on that score. On the basis of the findings no exception can be taken and that has been the precise reason as to why this Court dealt with the issue in so great a detail so as to examine the judicial propriety at this stage of the proceedings."
29. Though in the instant case the High Court did not interfere at this stage of issuance of the chargesheet but still then principle enunciated by the Hon'ble Supreme Court regarding bias in initiating a proceeding or rather in issuing a charge-sheet is same. It becomes more clear when the Hon'ble Supreme Court also observes in this case:
"At the same time, it is undeniably true that whenever there is a dereliction in the performance of duties by the civil servant, the State Government has the right to intervene and punish the guilty, This is the undoubted prerogative of the State. But to borrow the words of Prof. Wade this power has to be used "for the public good". The action of the authority must be fair and reasonable. It should be bonafide. It should not be arbitrary. It should not be based on extraneous considerations. It should be for public good. Bias or personal malice should not taint it. Bias is like a drop of poison in a cup of pure milk. It is enough to ruin it. The slightest bias would vitiate the whole action."
30. Now in the context of enquiry the Supreme Court in this decision explained concept of bias and observed in the manner as follows :-
"What bias means has already been dealt with by us earlier in this judgment, as such it does not require any further dilation. But the factum of announcement has been taking note of as an illustration to a mindse viz. the inquiry shall proceed irrespective of the reply -- is it an indication of a free and fair attitude towards the concernd officer? The answer cannot possibly be in the affirmative. It is well settled in Service Jurisprudence that the concerned authority has to apply its mind upon receipt of reply to the charge-sheet or show-cause as the case may be, as to whether a further enquiry is called for. In the event upon deliberations and due considerations it is in the affirmative -- the inquiry follows but not otherwise."
31. It is very clear from the principles laid down by the Hon'ble Supreme Court or rather it is the basic principle of service jurisprudence that when a chargesheet is issued the charges must be prima facie and when delinquent employee gives a reply the authority at this stage must be very vigilant and should consider the entire prospective and all the documents and on due consideration of all the documents including the charge-sheet and reply and on proper application of mind the authority is to decide whether the authority is satisfied with the reply of delinquent employee or not and if not then and then only the question of enquiry comes. When at the very issuance of the charge-sheet ft remains in the mind of the authority that enquiry should be there, then the mind is cloudy and does not appear to be clear and here the question comes of real likelihood of bias and not mere apprehension of bias. In the instant case the authority initially decided that there must be an enquiry whatsoever irrespective of the reply from the delinquent employee and this is bias.
32. In the instant case in the memorandum of chargesheet in the very first line, the authority has written that the authority proposes to hold an enquiry against the petitioner under Regulation 58 of FCI (Discipline and Appeal) Staff Regulation, 1974. In Clause 2 of the said memorandum the petitioner has been directed to submit written statement of his defence and also to state whether he desires to the heard in person. In paragraph 3 of this memorandum, it has been stated (he is informed) that an enquiry would be held only in respect of those Articles of charges as are not admitted. He should therefore specifically admit or deny each Articles of charge.
33. It, therefore, clearly appears that memorandum containing Articles of charges suffers from malafide and bias because of non-service of preliminary enquiry report on the basis of which decision has been taken by the authority to issue charge-sheet and because of pre-determination regarding enquiry.
34. Articles of charges framed against the petitioner which is annexure-1 to the said Memo dated 17.7.87/3.8.87 contains three charges. Out of these three charges second and third charge are related to the first charge and may be said to be consequential to the first charge. Now the first charge is that the petitioner committed gross misconduct by submitting P.V. report of stock of FC! Depot dated 19.8.84 as per book balance without verifying the physical stock. The second is, and thereby suppressed the fact of misappropriation of FCI by the Inspector-in-charge of Ghatal depot and third, and third is in conspiracy with M.R. Distributors, Shri Sadhu Charan Paul and Diptendu Nath.
35. Statement of computation of misconduct or misbehaviour in support of Articles of charges which is annexure-2 says that the petitioner has been functioning as Assistant Manager, Accounts (LA & PV) FCI, Calcutta during 1985 and he was asked to take physical verification of stock, Ghatal FCI, Depot in July 1988 along with other 2 officials and the petitioner submitted P.V. report showing 10580 bags of food-grains consisting of 951 M.T. in the FCI godown at Ghatal although all the FCI stock of Ghatal depot were not stored in the said godown and for reasons best known to him; submitted Incorrect P.V. report to shield misdeed of Ratan Chandra Batabyal. In this statement of imputation if was also been stated that the petitioner committed misconduct by contravening Rule 4.36(b) of Conduct Regulation, Section 4 of Office Manual, Vol. 1 of FCI.
36. On 26.7.88, the petitioner submitted a representation before Shri C.P. Unnikrishnan, Joint Manager, an enquiry officer, FCI, Zonal Office (East), 10A Middleton Row, Calcutta. In the said representation, the petitioner stated that in pursuance of the order of enquiry officer dated 28.6.88 the document listed in annexure-3 to the memorandum of charge he took inspection. On scrutiny of the said documents the petitioner found that some additional documents are imperatively necessary to disprove the allegations brought against him. In the said representation, the petitioner gave the description of documents, relevancy of the documents and availability of the documents making it columnwise. But the said documents were neither supplied to the writ petitioner nor the enquiry officer recorded the reason why these documents are not relevant. It is needless to mention that these documents are relevant or vital and necessary for the purpose of cross-examination but those were not supplied to the petitioner.
37. By not supplying those vital documents and by denying opportunity to the petitioner to cross-examination PWs properly, not only the statutory rules are violated but also there happens gross violation of principle of natural justice.
38. Reference in this regard may be made to the decision of Hon'ble Division Bench of this Hon'ble Court reported in 89 CWN 1167 (Himangshu Kumar Bose v. Union of India and Ors.) where this Hon'ble Court observed :-
"It is an accepted position in law that the necessity of supplying copy of the document will have to be judged not only from the stand point of the prosecuting authority but also from the stand point of the defence. The document may not at all be relevant or useful for the purpose of prosecution but may be of immense value for the purpose of defence the reason justifying the recognition of this principle is not far to seek. The right to cross-examine a particular witness on which reliance has been placed by the prosecution is the fundamental part of the principle of natural justice. Keeping the defence or the delinquent deprived of the previous statement or report renders illusory such a right."
39. In the instant case charge-sheet was based on preliminary enquiry report by the CBI, recording of the evidence during preliminary enquiry was obviously made but it does not appear that those were furnished to the delinquent employee. Charge-sheet must be based on some decision and if the said decision is on the basis of any preliminary enquiry then the statement of witnesses recorded in the said preliminary enquiry must be handed-over to the delinquent employee. In this regard Hon'ble Supreme Court in the decision (State of U.P. v. Muhammad Sarif) observed in the context of that case :-
"It was not disputed before us that a preliminary enquiry had proceeded the disciplinary enquriy and during the preliminary enquiry statements of witnesses were recorded, but copies of these statements were not furnished to his at the time of disciplinary enquiry. Even the request of the plaintiff to inspect the file pertaining to preliminary enquiry was also rejected. In the face of these facts which are not disputed, it seems to us very clear that both the first Appeal Court and the High Court were right in coming to the conclusion that the plaintiff was denied reasonable opportunity to defend himself at the disciplinary enquiry, it cannot be gainsaid that in the absence of necessary particulars and statements of witnesses which was prejudiced in the matter of his defence."
40. The case of the prosecution is that subsequent to the P.V. report submitted by the petitioner another P.V. report has been made by Shri A.K. Mitra and this report was produced as exhibit and he was produced as witness. This A.K. Mitra during his examination in chief said this in his preliminary report and he wilt submit his final report but in cross-examination he says he did not submit any further report. The basic charge against the petitioner is that he did not make the actual physical verification and he relied on the book values but Shri B. Das PW1 produced by the authority stated in his examination-in-chief that when Shri T. Nandi (petitioner) with a party conducted physical verification he was present and in cross-examination he also says that during physical verification he produced the documents and identified the stock and gunny which was stored in Ghatal depot.
41. Regulation 58 of the FCI Staff Regulation of 1979 (hereinafter termed as said regulation) provides for the procedure to be adopted during departmental enquiry. Now Regulation 58(18) of the said regulation provides :-
"The enquiry authority may, after the employee closes his case and shall, if the employee has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the employee to expalain any circumstances appearing in the evidence against him."
42. But in the instant case, the provision was not followed and the enquiry authority did not put any question to the petitioner. Now by non-supply of documents said regulations were not followed and during enquiry also the regulation was not followed. The enquiry report in conclusion observes :-
"After careful examination/scrutiny of the relied/defence documents, deposition of prosecution witnesses, prosecution/defence written briefs any by applying judicious mind, I am of the opinion that the prosecution had failed to establish the charge that foodgrains stock of 951 MTs as on 22.7.85 (OB) of FCI depot at Ghatal was not stored in the said godown. But the charge that Shri Tarakeswar Nandi had failed to conduct physical verification on stock of Ghatal depot as per procedure and also to furnish the correct P.V. report of Ghatal depot has been proved."
43. Now, the charge is that the petitioner submitted P.V. report of stock of FCI Ghatal dated 19.8.85 as per book balance without verifying the physical stock and thereby the suppression of misproduction why the incharge of Ghatal Food Depot in conspiracy Mr. Distributor, S.C. Paul and D. Nandi now in the enquiry report in conclusive finding nowhere there is any mention about collusion with Mr. Distributors or about suppression of the fact of misappropriation by the Inspector-in-charge and the first basic charge that there is no actual physical verification, was not established and the enquiry officer observed that the charge of conduct of physical verification of stock at Ghatal depot not as per procedure and also he failed to furnish the correct P.V. report of Ghatal depot, has been proved, that means the enquiry officer transgressed the charges, found the delinquent employee guilty on the basis of charge which is not at all. a charge in the charge-sheet. The Division Bench of this Hon'ble Court in a decision reported in 1987(1) CLJ 467 (Ananda Chakraborty v. Union of India) observed :-
"If on the basis of the evidence adduced in the disciplinary proceeding, a view can reasonably be taken and such view has been taken by the disciplinary authority, this Court, in exercise of its power under Article 226 of the Constitution of India, cannot interfere with such finding. But if there is no materials evidence on the basis of which a finding can at all be made by any reasonable person then such finding made by the disciplinary authority cannot but be perverse and the writ Court in our view has not only power but also duty to consider the evidences for the purpose of finding out as to whether or not such finding is without any material evidence and as such perverse."
44. In the decision (Union of India v. H.C. Goel the Hon'ble Supreme Court observed :-
"Malafide exercise of power can be attacked independently on the ground that it is malafide. Such an exercise of power is always liable to be quashed on the main ground that it is not a bonafide exercise of power. But we are prepared to hold that if malafide are not alleged and bonafides are assumed in favour of the appellant, its conclusion on a question of fact cannot be successfully challenged even if it is manifest that there is no evidence to support it. The two infirmities are separate and distinct though, conceivable in some cases both may be present. There may be cases no evidence even where the Government, is acting bonafide; the said infirmity may also exist where the Government is acting malafide and in that case, the conclusions of the Government not supported by any evidence may be the result of malafides but that does not mean that if it is proved that there is no evidence to support the conclusion of the Government a writ of certiorari will not issue without further proof of malafides."
45. In the instant case enquiry authority transgressed the charges, submitted report based on no evidence committed statutory violation and by non-supply of documents violated the principle of natural justice and it can be safely said that this enquiry report in the instant case is based on no evidence and/or perverse.
46. Preliminary enquiry has been made before the issuance of the charge-sheet, statement recorded in the preliminary investigation and documents/ copy of the preliminary enquiry report was not served on the petitioner and thus violation of the principle of natural justice was done and the authority deprived him from his right to defence. When issuing the charge-sheet the authority becomes biased inasmuch as without considering the reply to the charge-sheet the authority in the Memorandum itself stated that there will be enquiry against the petitioner. During the enquiry relevant documents on specific asking were not supplied to the petitioner. During enquiry the enquiry officer violated the statutory rules and submitted report transgressing the charges and based on no evidence inasmuch as the charge on which the petitioner was found guilty was not at all a charge in the charge-sheet and there was no evidence to prove that particular charge. Thus the charge-sheet is a biased one and the enquiry proceeding has also become vitiated.
47. The final order through which punishment was awarded to the petitioner observes :-
"Whereas, it is obvious from the enquiry report that Shri Nandi A.M. (A/ CS) of IA & P.V. Division did not conduct the physical verification of stock of Ghatal properly. The management relies on I.A. P.V. Officer to report the correct state of affairs in a depot. If the I.A. P.V. officials do not cany out the work honestly the organisation cannot survive. Hence the offence committed by Shri Nandi is rather more serious than the incorrect PV carried out by a depot staff."
48. It, therefore, appears from the final order itself that the disciplinary authority relied on the said perverse and illegal enquiry report and awarded punishment on the basis of a different charge not in the charge sheet. In the light of the discussion made above it appears that the charge sheet suffers from bias and malafide, the enquiry report is perverse and relying in the said perverse and illegal enquiry report, the final order has been passed. The final order thus based on the said biased charge sheet and perverse enquiry report is also illegal, biased, malafide and bad in itself.
In the result, starting from the charge sheet entire disciplinary proceeding including the impugned final order being not sustainable is quashed. The writ petition is thus allowed. There will be, however, no order as to costs.
Urgent xerox certified copy, if applied for, will be given expeditiously to both the parties.