1. The petitioner was working as a clerk attached to the Money Order Department, General Post Office, Calcutta. On or about 26-2-1949, a complaint was received from one Mr. Menon of 8, Dalhousie Square, Calcutta, alleging that he had remitted a sum of Rs. 300/- by money order receipt No. 1084 dated 11-2-1949 from the General Post Office, Calcutta, to the address of C. Raju, C/o Raghaban Tailor, Chittur, Cochin State, but no such money order was remitted. Four more complaints of non-payment on the same day were received aggregating to more than Rs. 1000/-. Upon this complaint an enquiry was made and it was found that a whole page of receipts was missing, a page which presumably contained entries in respect of these sums. The Postal Department of course had to meet the claims of the remitters. Mr. Menon wrote to say that he would be able to point out the counter and identify the official to whom the money was paid and it appears that there was an identification held and Mr. Menon pointed out the counter as also the petitioner asbeing the person to whom he had handed over the money.
The other persons whose monies had gone astray also attempted to identify and they certainly identified the counter, but it is not clear whether they or any of them identified the petitioner. The counter at which the petitioner was said to have been sitting was the third counter and one Tulsi Charan Chatterjee was in the second counter. According to the petitioner the third counter was what is called a 'Batch Counter' and only cheques were received there. He says that his duty was merely to assist Tulsi Charan Chatterjee who was in the second counter and he says that the missing money orders could not have been delivered at the third counter where only cheques were accepted. As against this it is said that although the third counter was a batch counter, in times of rush all the counters accept cash payments. The Postal authorities informed the local police and the petitioner was arrested on 6-5-1949 on charges under Section 409, Penal Code, and Section 52, Post Office Act. On 7-5-1949, the petitioner was suspended from office. The police, however, did not find sufficient evidence against the petitioner and on 31-8-1949 the Chief Presidency Magistrate, Calcutta discharged the accused.
Then on 4-11-1949 there was an order of reinstatement. It is obvious that the word 'reinstatement' has been Improperly used because the petitioner had never been dismissed. The proper order would have been to revoke the order of suspension. Be that as it may, what actually happened was that he rejoined service and was transferred to the Delivery Department. On or about 6-3-1950, a charge-sheet was delivered to the petitioner charging him with unauthorised possession and use of money order receipts Nos. 1081-1085 & not bringing into account the money collected thereon. He was called upon to show cause why he should not be dismissed from service. He was also called upon to state whether he wanted to be heard in person. According to the petitioner, he wanted to be heard in person. Although it is said on behalf of the respondents that no such request was received, it was admitted that the authorities granted him the facility of being heard in person and that he was actually present at the time of the enquiry. The petitioner duly showed cause against the charges and there was the hearing and it appears that the charges were found against the petitioner. This will appear from the annexure 'I' to the petition, in which the Presidency Post Master, Calcutta, the enquiring officer, records his findings and calls upon the petitioner to show cause why the punishment of dismissal should not be inflicted.
From this annexure it will also be found that the enquiring officer relied on a statement of the Counter Clerk Sri Tulsi Charan Chatterjee who is said to have been sitting on the second counter on the relevant date. This is what he said:
'This office records and the satement of the 2nd Batch Counter Clerk Shri Tulshi Charan Chatterjee go to prove without any stretch of doubt that Shri Kanailal Chatterjee was the clerk who took his seat at the 3rd counter on 11-2-49.'
Tulshi Charan Chatterjee was not called as a witness at the departmental enquiry. He seems to have made some statements previous to the handing over of the case to the police and it certainly had not been made in the presence of the petitioner and there was no question of his having any opportunity of cross-examining Chatterjee. Nor does it appear from the record that the attention of the petitioner was drawn to the fact that such a statement will be used for the purposes of the departmental enquiry and would colour the verdict. The petitioner showed cause against this notice and on the 16th of August 1950 an order of dismissal was passed. The petitioner thereafter filed an appeal which was kept pending for a very long time and ultimately in April 1953 the appellate authority confirmed the order of dismissal.
It is quite clear from the various annexures setting out the orders of the various authorities who dealt with the case that two police reports were also relied upon and were used as evidence against the petitioner. At least one of the police reports, it is admitted, was never shown to the petitioner nor his attention was drawn to the fact that such a report ever existed or what the contents of it were. The authorities have drawn adverse inference from these police reports without giving the petitioner an opportunity of meeting the same. This Rule was issued on the 13th of July, 1953 and calls upon the opposite parties to show cause why a Writ in the nature of Mandamus should not be issued directing them to forbear from giving effect to the order of dismissal passed upon the petitioner complained of in the petition and/or why a Writ in the nature of Certiorari should not be issued quashing the said order of dismissal including the order of the appellate authority and why such further or other order or orders should not be made as to this Court may seem fit and proper.
2. The first point made on behalf of the petitioner is that there has been a violation of Regulation 149A in the Posts and Telegraphs Manual, General Regulations, Volume II. I am not at all satisfied that these regulations have statutory authority. At least the preface seems to indicate that these are merely departmental instructions. In any event, I do not find anything in Regulation 149A which could prevent the authorities from proceeding with the departmental proceedings notwithstanding that the criminal case ended in a discharge. It is argued that once there has been a reinstatement there has been a condonation and, threfore, the master cannot punish the servant after having condoned his misconduct. Reliance has been placed on the cases of -- 'L. W. Middleton v. Harry Playfair : AIR1925Cal87 and -- 'District Council, Amraoti v. Vithal Vinayak', AIR 1941 Nag 125 (B). While the principle enunciated in these cases is well-known, I do not think that it has any application to the facts of this case. As I have pointed out, the word 'reinstatement' is a misnomer. The petitioner had been suspended because of his arrest.
Upon his ceasing to be in the custody of the Police, his right was to have the suspension order vacated. Simply because the Postal Department did what they should have done, namely, allowedhim to rejoin service they cannot be taken to have condoned his misconduct, and I see nothing to prevent a subsequent departmental enquiry. But the second point, namely, that the departmental enquiry had not been conducted as it should have been and that the petitioner has not had a reasonable opportunity of defending himself, is to my mind a point which has been made out. According to Rule 55 of the Civil Services (Classification, Control and Appeal) Rules certain formalities have been prescribed which must be followed in departmental proceedings and they are as follows:
'....... .The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires or if the authority concerned, so direct, an oral inquiry shall be held. At that inquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called, as he may wish, provided that the officer conducting the inquiry may, for special and sufficient reason to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof........'
So far as the framing of the charges is concerned there has been no violation of this Rule, but surely there has been a violation of nearly all the other rules laid down above. The enquiring officer relied on oral evidence which was not taken at the departmental enquiry and not even in connection therewith. The attention of the delinquent was not drawn to the fact that a statement made in some other proceedings, will be considered as evidence against the petitioner or will be allowed to colour the mind of the enquiring officer. He was never given any opportunity of cross-examining such a witness. Then again, reports were replied upon which were not made available to the petitioner and so far as one of the police reports is concerned he was not even told of its existence. Nevertheless, the enquiring officer allowed his mind to be coloured by such a report which the petitioner had no opportunity of dealing with.
3. It is true that departmental enquiries are not to be conducted with the strictness of a judicial trial, but they are nevertheless enquiries in which certain formalities must be observed. To start with, the rules of natural justice cannot be dispensed with and a man cannot be found guilty upon which he had no opportunity of meeting. Where Rule 55 of the Civil Services (Classification, Control and Appeal) Rules applies, the oral evidence that has to be used must be adduced at the time of the enquiry. Where documents have to be used, it may not be necessary to prove themunder the Evidence Act as in a judicial trial, but they must be made available to the delinquent and he must have an opportunity of inspecting them and meeting them. Documents which are kept back beyond his knowledge ought not to be used in order to find him guilty. The persons holding departmental enquiries are not men with judicial training and it is not to be expected that they should proceed according to the Evidence Act. But it is not the violation of that excellent piece of legislation that is complained of, but what is complained of is the violation of the rules of natural justice in using documents and statements of witnesses which the petitioner had never had an opportunity of either seeing or challenging.
In my opinion the departmental proceedings here have violated the rules of natural justice and are in violation of Rule 55 of the C. S. (C. C. A.) Rules and cannot be supported. I say nothing about the merits of the case. The function of this Court is to see that the safeguards imposed by Article 311 and the Statutory rules are properly maintained.
4. This Rule must, therefore, be made absolute and a Writ in the nature of Mandamus must issue directing the respondent to forbear from giving effect to the order of dismissal dated the 16th of August, 1950 or the order in appeal confirming the same dated the 23rd March, 1953. The respondents are directed to give the petitioner another opportunity of showing cause against the charges that have been framed against him and the punishment which is sought to be imposed. There will also be a Writ in the nature of Certiorari quashing these findings. If the authorities wish to abandon the charges they will be at liberty to do so.
5. I make no order as to costs.