1. The facts in this case are shortly as follows: Prior to the partition, the petitioner had been working in East Bengal in different departments under the Government of Bengal since 1941. After the partition, on or about the 19th January 1948, the petitioner was appointed as a Lower Division Assistant in the office of the Registrar of Orphans under the Education Directorate of the Government of West Bengal. A copy of the letter of appointment is Annexure 'X(1)' to the further affidavit filed by Sri Tamash Ranjan Roy, dated the 18th June 1957. It appears from that letter that the appointing authority is the Orphanage Officer and Registrar of Orphans of the Government of West Bengal. It is admitted in the petition that the Orphanage and Registration Section is a section of the Education Directorate of West Bengal. My attention has been drawn to a notification, being West Bengal Services (Revision of Pay) Rules, 1950, which was published in the Calcutta Gazette, Extraordinary, on the 13th June 1950. It clearly shows that the Orphanage Section is a section of the Office of the Director of Public Instruction. Since the 7th June 1949, the petitioner was working as a clerk in the Banipur State Orphanage Camp. On or about the 15th July 1952, the petitioner was placed under suspension, and on the 16th August 1952, he was served with a charge-sheet. The charges are somewhat serious and consist of falsification of accounts, using as genuine forged documents and so forth. In respect thereof, two criminal cases were filed against the petitioner, being Criminal Case No. C/1067 of 1952 under Sections 471 and 477-A of the Indian Penal Code and Case No. 1087 of 1953 under Sections 409 and 467 of the Indian Penal Code. On the 18th March 1954, he was acquitted in the Criminal Case No. C/1067 of 1952. On the 29th July 1954, another departmental charge-sheet was served upon him. On the 29th December 1954, the petitioner was discharged in the second Criminal Case No. 1087 of 1953. On the 23rd August 1955, a third charge-sheet was served, and a fresh departmental enquiry was commenced. The petitioner replied to the charges and a departmental enquiry was held. It must be stated however that the petitioner asked for an adjournment which was not granted and the departmental enquiry was held ex partc. The enquiring officer Tamas Ranjan Roy made a re-part on the 20th October 1955, a copy whereof is annexure 'E' to the petition. He found the delinquent guilty of the charges, In this report there are two infirmities. Firstly, the enquiring officer, without any reference to the delinquent, consulted the Public Prosecutor and obtained his opinion. It is true that the opinion asked for was on a point of law, and the opinion is set out in the report. The Public Prosecutor gave an opinion that although he was acquitted in one case and discharged in another, there was no bar in punishing the delinquent with dismissal. The opinion concluded as follows :-
'As a result of the departmental enquiry, Sri Manmatha Nath Ghosh may be dismissed, and an order of dismissal cannot be regarded as a punishment for an offence punishable under particular section of the Indian Penal Code.'
2. The enquiring officer is not the punishing authority and it is not clear as to what was the urgency in obtaining this opinion. I think however that such an opinion ought not to have been utilised without making it known to the delinquent, and that the objection of the petitioner that the form of the opinion was likely to prejudice him is well-founded. A lenient view however may be taken of it, because it is nothing more than a legal opinion which incidentally happens to be the correct one. But there is another infirmity in the report, which in my opinion is fatal. In the charges that were preferred, reference was made to certain records. If the enquiring authority looked into such records, that would be justifiable, but in his report he says that not only he looked into such records, but certain unspecified records as well, for the purpose of arriving at his conclusions. He says in his report as follows:-
'The charges brought against Sri Ghosh have been verified by me from the records of Barasat Sub-Treasury, of the Office of the Principal, Banipur Basic Training College, and from the original bills lying with the Deputy Accountant General, West Bengal, as also from certain records of this office.'
3. The last mentioned records have not been specified and the petitioner was never told as to what records were looked into. Regard being had to the seriousness of the charges, this was Something which has greatly prejudiced the petitioner, because against this report it is impossible to file an appeal, inasmuch as the petitioner does not know and nobody knows as to what records were looked into, and what was contained therein. Pursuant to the report the petitioner was dismissed by an order dated the 20th December 1955, copy whereof is annexure 'F' to the petition. It is against this order of dismissal that this Rule has been directed. Mr. Das Gupta on behalf of the petitioner has taken two points. The first is that the petitioner was dismissed by an authority contrary to the provisions of the Bengal Subordinate Service's (Discipline and Appeal) Rules, 1936. The second point is that the report referred to the opinion of the Public Prosecutor and to certain unspecified records and this has rendered the report of the enquiry bad and consequently the order of dismissal based thereon cannot stand.
4. Coming to the first point, it has been formulated thus. Rule 8 of the Rules mentioned above, runs as follows:-
'Subject to the conditions that no officer may be removed or dismissed by an authority subordinate to that by which he was appointed, the authorities specified in col. 3 of the Schedule to these rules may impose the penalties specified in col. 4 of that Schedule upon members of the services included in that Schedule.'
Reference may also be made to Rule 12 which runs as follows:-
'Members of Services included in the Schedule to these rules may appeal from orders passed in exercise of powers conferred by Rule 8 to the authorities specified in col. 5 of that Schedule.
Note:- If, owing to the conditions mentioned in Rule 8, the authority ordering the removal or dismissal of an officer is higher than the authority specified in col. 3 of the Schedule, then the officer shall be entitled to appeal to the authority immediately superior to the authority imposing tbe penalty. If any doubt arises as to who that authority is, the matter shall be referred to the local Government whose decision shall be final.'
5. It is said that looking at the Schedule, the item that is applicable to the petitioner's case is Item No. 43 at p. 65 of the final publication. This shows that in the case of officers holding temporary ministerial posts on less than Rs. 100 per month, in institutions or offices subordinate to the Director of Public Instruction, Bengal, the authority empowered to appoint is the local controlling authority subordinate to the Director of Public Instruction, Bengal, which is also the authority empowered to impose a penalty, which includes dismissal, and the Director of Public Instruction of Bengal is the appellate authority.
6. The learned Government Pleader on the other band says that the proper item to be applied is Item 36, which deals with Lower Division Assistants in the Director of Public Instruction's Office. Of course, if this item applies, then the authority empowered to appoint is the Director of Public Instruction, who is also the authority empowered to impose the penalty, and the appellate authority in that case is the Secretary of the Government Department concerned.
7. Looking at the facts, it is difficult to say that the petitioner was appointed in an office subordinate to the Director of Public Instruction, because the Orphanage Section is a section of the Office of the Director of Public Instruction itself. The letter of appointment however has no reference to the Director of Public Instruction, and it certainly has been issued by the Presiding Officer of the Orphanage Section. But even assuming that Item 43 applies, the question is whether in such cases an officer higher up in the hierarchy in the same department can impose the penalty of dismissal or not. Mr. Das Gupta has argued that Rule 8 read with the Schedule lays it down that only the officers specified therein can inflict the punishment of dismissal. It has however been argued by the learned Government Pleader that Rule 8 is merely an enabling rule and has been expressly made subject to the condition that no officer may be removed or dismissed by an authority subordinate to that by which he was appointed. This is the limitation laid down by Article 311 of the Constitution, and by Section 96-B of the Government of India Act, 1935. It is argued that an official in the department who is not subordinate to the appointing authority can always impose the penalty, but in order to introduce a system by which it may be known as to which officer should ordinarily deal with punishments or appeals, there has been laid down a list in the schedule, of officers who should ordinarily make appointments, or dole out punishment or entertain appeals. It is then argued that it is because of the fact that higher officers are not precluded from imposing penalty, that it was necessary to append the note to Rule 12. Mr. Das Gupta on behalf of the petitioner argues that the note to Rule 12 had become necessary inasmuch as appointments made prior to the coming into operation of the rules might conflict with its provisions, inasmuch as the appointing authority in a particular case might be higher than the dismissing authority as laid down in the Schedule or may be the appellate authority itself. In such cases it was necessary to lay down as to who shall be the appellate authority. While I cannot brush aside the argument of Mr. Das Gupta, it seems to me that the better view is that Rule 8 is merely an enabling rule. The basic limitation is that a person could be removed or dismissed only by an authority of the same rank or by a higher authority, than the authority by which he was appointed. The rules however introduced a system enumerating the authorities who would ordinarily make the appointments, inflict penalties, or deal with appeals. Normally, this system was to be followed. As long however as the basic limitation was not violated, an order imposing a penalty could not be held to be contrary to law. In this view of the matter, the Director of Public Instruction in this particular case was not precluded from passing the order of dismissal as he was the Head of the Department. But as he was the appellate authority mentioned in the Schedule, the appeal would lie, according to Note to Rule 12, to the next higher authority, namely the Secretary to the Government Department concerned.
8. The next point however is a point of substance. As I have stated above, the enquiring officer was not justified in obtaining an opinion of the Public Prosecutor or in relying upon the same, without any reference to the delinquent. But what is absolutely fatal is that he should look into records which are unspecified, and rely upon them, but without intimating to the petitioner as to what records he had looked into. The petitioner ought to be put in a position to effectually make his submissions to the punishing authority who had asked him to show cause, or to appeal against the order of the punishing authority itself. The learned Government Pleader argues that after all the petitioner had not turned up at the enquiry and so the matter was decided ex-parte. That, in my opinion does not affect the question, but makes it all the more necessary that the enquiring officer should not do something which would prejudice the petitioner's case, by looking into unspecified documents behind his back and not disclosing in the report what documents he had looked into. As a matter of fact, a copy of the report was supplied to the petitioner, who was called upon by the D. P. I. to show cause why he should not be dismissed. Upon the report as it stands, with its reference to unspecified records, the petitioner could not show cause, not to speak of appealing against the decision to remove him. Even now, before me, the specifications of the records have not been disclosed. In my view, the order of dismissal based upon this report cannot stand and must be Set aside.
9. The Rule is accordingly made absolute, the order of dismissal dated the 20th December 1955, together with the enquiry proceedings are set aside and/or quashed and a writ in the nature of certiorari will be issued therefore. There will also be a writ in the nature of mandamus directing the respondents not to give effect to it. If the respondents are so minded, they must proceed de-novo upon the charge as served, or such other charges as they may choose to serve upon the petitioner. There will be no order as to costs.