B.N. Banerjee, J.
1. At all times material for the purposes of this Rule, the petitioner was employed as the Curator of the Indian Botanical Gardens at Sibpore, District Howrah. On July 21, 1958, thepetitioner was suspended from service, because there was an enquiry for alleged misconduct started against him by the Anti-Corruption Department of Police. Apparently acting on the report submitted by the Police, C. K. Ray (respondent. No. 3), the then Secretary, Forest Department, by a notice, dated October 17, 1958, charged the petitioner with several misconducts as hereinbelow stated :
'Charge I: Illegally and dishonestly accepted-
(a) A sum of Rs. 400/- in 1948 from one Monomohan Roy, son of Mohini Mohan Roy of 23A, Peari Mohan Roy Road, Chetla, on the pretest of helping him to get a telephone installed in his house by influencing the Contract Officer Telephones;
(b) A sum of Rs. 1,000/- from one Anadi Bhusan Singh, son of Surendra Nath Singh of Prince Anwar Shah Road, Tollygunge, on the false promise of procuring for him two permits for taxi and one permit for bus for Uluberia by influencing the District Magistrate, Howrah;
(c) A sum of Rs. 800/- in 1955 from one Abdul Hamid Mir of Village Podra, Howrah, on the pretext of recommending him to Sri S. Mullick, I.C.S., District Magistrate, Howrah, in connection with a criminal case instituted against Sri Mir by his co-villagers;
(d) A sum of Rs. 200/- in 1954 from Sri Dhirendra Nath Mondal, owner of a stationery shop at 25, Shilimar Road, Howrah, on the false promise of influencing the Civil Supplies authorities for a licence for a ration shop;
(e) A sum of Rs. 80/- in 1955, from Sri Anil Kumar Pathak of 591, Circular Road, Howrah on the false representation that Sri Anil Mukherjee Asst. Commissioner of Police, Detective Department, will have to be entertained in connection with the recovery of a sum of Rs. 800/- lost by Sri Pathak through cheating in respect of a deal in aeroplane plugs;
(f) A sum of Rs. 1,000/- in 1955 from Sri Amar Singh of 5/4, Kaibartapara Lane Howrah, on the pretext of procurring for him a permit for Bus No. WBV 388 in the name of his brother Sampuran Singh by influencing the R. T. A., Howrah;
(g) Entertainment and parties in hotel costing-a sum of Rs. 200/- from Sri Amal Kumar Bose, son of Dr. Dhirendra_ Nath Bose of 13, Goabagan Street, Calcutta-6, on the false assurance of pro-curing for him a Cinema Licence in Howrah by influencing Sri S. Mullick, I.C.S., District Magistrate, Howrah;
Charge II : And whereas you Sri Golam-Mohiuddin, Curator, Indian Botanical Gardens, Sibpur had for about one month taken food and drink without payment at the new Cathey Restaurant Chowringhee Road, Calcutta, belonging to on& Sri A. Rahman, P. 136, Jhowtala Road, Park Circus, on giving the latter a false hope of influencing the police authorities, Calcutta, to revoke the suspension order regarding late closing of his New Cathey Restaurant;
Charge III : And whereas you 'Sri Golam Mohiuddin, Curator, Indian Botanical Gardens Sibpur;
(a) had obtained two permits for Baby Taxi. one from the R.T.A., Calcutta on 4-1-1957 and another from the R. T. A., Howrah on 18-2-1957 by exerting undue influence on and utilising your personal acquaintance with Sri B. B. Mondal, I.A.S., District Magistrate and Chairman, R.T.A., Howrah and Secretary, R. T. A., Calcutta for and in the name of Sri Sumit Mitra of 193, Karnani Estates, Calcutta knowing or having reason to believe that the said Sumit Mitra was a bad character; and
(b) procured one licence for a pistol for and an the name of, one Sri Tarapada Sarkar of P. 147, Janak Road, Calcutta in December, 1956, by unduly influencing Sri R. N. Chatterjee, Superintendent of Police, 24-parganas, knowing and/or having reason to believe that the said Tarapada Sarkar was considered unsuitable for possessing arms;
Charge IV: And whereas you Sri Golam Mohiuddin, Curator, Indian Botanical Gardens, Sibpur, had between 1952, and 1958 used the Government quarters meant for the Curator of the Indian Botanical Gardens at Sibpur as a house of ill-fame and a place for assignation by indenting girls there for immoral purposes for entertainment of various persons like Basabendra Nath Tagore, an Artist of the Tagore Family, and Dilip Mitra, son of Sri N. C. Mitra of Beni Mitra Road, Howrah;
Charge V : And whereas you Sri Golara Mohiuddin, Curator, Indian Botanical Gardens, Sibpur, were, between 1952 and 1958, seen moving about with women of ill-fame and questionable character, keeping company with bad elements and thus leading a life unbecoming of a Government servant;
Charge VI: And whereas you Sri Golam Mohiuddin, Curator, Indian Botanical Gardens, Sibpur, were between 1952 and 1958, actively associating with smugglers and dock thieves and aiding and abetting them in the commission of theft, smug-ogling, trading in stolen or smuggled goods etc. by allowing them to use the Indian Botanical Garden as their operational base which act on your part was unbecoming of a responsible Government servant;
Charge VII : And whereas you, Sri Golam Mohiuddin, Curator, Indian Botanical Gardens, Sibpur, were utilising the services of coolies of the Indian Botanical Gardens, who are Government servants, for your personal work, namely, to send fish, vegetable, milk etc. from the Botanical Gardens to the flat of one Mrs, Mitra at 193, Karnani Estates and thus interfering with their Government work.'
2. In this Rule, however, I am concerned with Charges I(c), II, III and V, in respect of which charges alone the petitioner has been found guilty either wholly or in part. Along with the charge-sheet there was a 'statement of facts' served upon the petitioner and hereinbelow are set out the material portions from the said statement :
(i) Charge I (c) 'Sri Abdul Hamid Mir of village Podra, Howrah, was involved in a false criminal case about three or three and a half years back. His uncle, late Abdul Bank Khan, took him to Sri Mohiuddin, who agreed to recommend his case to Sri S. Mullick, I.C.S., the then District Magistrate, Howrah, provided Rs. 1,000/- was paid to Sri Mohiuddin. He paid Rs. 800/-to Sri Mohiuddin. in two instalments. But Mohiuddin did nothing and pressed for extorting the balance. The criminal case ultimately ended in a compromise in Court. Abdul Mir related this story to Sri Anil Kumar Pathak of 591, Circular Road, Howrah, and to Sri Sukumar Banerjee Overseer of the Indian Botanical Gardens.'
(ii) 'Charge II : Sri R. Rahman of P. 136, Jhowtala Road, Calcutta, was the Proprietor of New Cathey Restaurant on Ghowringhee Rd. The licence of his restaurant for late closing was suspended by the Police for a month on the alleged, entertainment of a prostitute in the restaurant, though Sri Rahman claimed that she was the lady companion of a customer and Sri Rahman had no knowledge about her character. Sri Rahman approached Sri Mohiuddin for help for revoking the suspension order and Sri Mohiuddin assured him that he will get the order revoked, as Sri R. K. Gupta, Dy. Commr. of Police, Headquarters, was his personal friend. After this Sri Mohiuddin visited the restaurant with a number of friends three or four times, took food and wine there free of cost and even took away cooked food for his friends outside. This went on for a month but the order of suspension was not revoked.'
(iii) 'Charge III. (a) Sumit Mitra of 193 Karnani Estates, Calcutta, applied to the District Magistrate, Howrah, on 8-11-56 for a Baby Taxi permit falsely mentioning his address as 51/1/2, Botanical Gardens Road, Howrah, C/o Sri Lachmi Prosad Tewari, a label writer of Botanical Gardens working under Sri Mohiuddin. The R.T.A. Howrah at that time consisted of Sri B. B. Mondal, I.A.S. District Magistrate, as Chairman and Sri D. N. Pal, W.B.J. C. S., as Secretary. Afterwards Sri Mitra informed the District Magistrate of two successive changes of his address with a view to delaying the verification of his antecedents and character by the police, as he knew he was a registered bad character of Beniapukur P. S. As the police report was delayed due to wrong address mentioned by Sri Mitra, a permit was issued to him on 18-2-57 on his prayer to execute a bond before the District Magistrate, Howrah, stipulating cancellation of the permit in case of unfavourable Police report. An unfavourable police report came later but the permit was not cancelled. The unusual procedure adopted in issuing a Baby Taxi permit in this case and the non-cancellation of the same in spite of adverse police report were due to the fact that Mohiuddin utilised his personal acquaintance with and exerted his influence on Sri B. B. Mondal, I.A.S., District Magistrate and Chairman, R.T.A., Howrah.
Sumit Mjtra also applied for another Baby Taxi permit to the R.A.T., Calcutta, on 30-7-56. No Police enquiry about his character and antecedents was made. He was interviewed by Sri H. K. Chakravarty, Secretary, R. T. A., Calcutta, on 17-11-56 and a permit for a Baby Taxi was issued on 4-1-57. Sri Mohiuddin himself confessed to S. I., Alwin Biswas that he had manipulated the issue of the Baby Taxi permit in Calcutta for Sumit by Influencing high officials.
(b) Tarapada Sarkar was attempting to get licence for a rifle and a pistol since 1940. After several unsuccessful attempts he obtained a licence for a rifle in 1945. He then made several attempts to get the licence for a pistol but the Commissioner of Police rejected his prayer on each occasion. He appealed to Government against the decision of the C. P. but this was rejected. Then on 21-9-56 he applied for licence of pistol to the District, Magistrate, 24 Parganas, giving his address as Madbyamgram. The petition was directly submitted to the Supdt. of Police, 24 Parganas, who directed D.I.O, (I) for an enquiry and on the report of D.I.O. (I) the Supdt. of Police recommended the case to the Dist. Magistrate who issued the licence on 3-12-56. The usual procedure to refer such petitions to thane and then to route it through the Circle Inspr., S.D.P.O. and S.D.O. was not adopted in this case due to the intervention of Sri Mohiuddin who accepted an, illegal gratification of Rs. 1000/- from Sri Tarapada Sarkar and, taking advantage of his undue intimacy with Sri H. N. Chatterjee the then S.P., 24-Paraganas, manipulated the issue of the licence.' 'Charge V : Sri Mohiuddin was often seen at, the Biltmore Hotel inside a room of the house drinking in company of women of questionable character, such as, Lata, Anima and others. He was also seen coming to the Botanical Gardens at 7 P.M. or 8 P. M. in his car in a drunken state with girls.'
3. The petitioner alleges that the charges against him had their genesis in the personal vendetta of certain persons, who got the support of certain political leaders and a section of the press and who were aided by Satyendra Nath Mukherjee, Deputy Commissioner Anti-Corruption Department of the police. In elaboration of this part of his case, he says that one Asutosh Banerjee and his son Sukumar Banerji were respectively the Head Clerk and the Overseer in the Botanical Gardens. The petitioner says that he found out that the said Asutosh Banerji was guilty of various counts of misconduct in service and complained against him to the authorities. As a result of that, the said Asutosh Banerjee was dismissed from service. That action against Asutosh Banerjee enraged Beni Chandra Dutt, a member of the West Bengal Legislative Assembly, who was an intimate friend of Asutosh Banerjee. Sukumar Banerjee above named also became inimically disposed towards the petitioner, because the petitioner was primarily responsible for the disgrace suffered by his father Asutosh Banerjee. The petitioner further says that the said Beni Chandra Dutt and Sukumar Banerjee started, by way of vengeance, a malicious campaign of publicly vilifying Elm for sexual immorality, spying for Pakistan and for other anti-social activities. The petitioner also says that the campaign was taken up by a Bengali daily newspaper known as 'Ananda Bazar Patrika', through the intervention of Dhananjoy Banerjee, a correspondent of the said daily, who was himself a friend of the said Beni Chandra Dutt and was also a relative of Asutosh Banerjee. Ultimately the petitioner says, Beni Chandra Dutt made several complaints against the petitioner before the State Government. The State Government, it is said directed an enquiry into the complaints and entrusted the investigation to Satyendra Nath Mukherjee, Deputy Commissioner of Police, Anti-Corruption Department. To the misfortune of the petitioner, it is alleged, Satyendra Nath Mukherjee became ill-disposed towards the petitioner from the very inception, on the supposed belief that the petitioner had helped the wife of one Alwin Biswas, a favourite Sub-Inspector of Police under the said Satyendra Nath Mukherjee, in her quarrel with her husband. The investigation report, prepared by Satendra Nath Mukherjee, was, it is said, a malicious report against the petitioner, prepared without any opportunity to him to explain the situation and principally based on maliciously false information supplied by persons like Sukumar Banerjee, Beni Chandra Dutt, Alwin Biswas and also others, who were either intimate with the abovenamed persons or were otherwise inimically disposed towards the petitioner. Amongst the various grievances against the report, made by the petitioner, I need refer to two specific grievances, at this stage. The petitioner says that he had caused disciplinary action being started against Sukumar Banerjee and as a result of the proceeding Sakumar Banerjee was found guilty of misconduct; but that notwithstanding the report eulogised Sukumar Banerjee as a loyal public servant and as a person who had displayed commendable concern for the purity of administration. The report, it is said, accepted irresponsible informations supplied by Sukumar Banerjee against the petitioner on their face value. The other grievance made against the report was that the same was meant to be a confidential document; but that notwithstanding Satyendra Nath Mukherjee in collusion with Beni Chandra Dutt, caused a summary of the said report being published in the press even before the petitioner had been formally charged with misconduct. In these alleged circumstances, the petitioner characterised the initiation of departmental action against him as the product of political pressure. The respondent No. 3, who was at the material time the Secretary of the Forest; Department, it is alleged, although himself otherwise convinced was made to sign the charge-sheet prepared at the instance of Satyendra Nath Mukherjee and others.
4. Respondent No. 2, Mallinath Mukherjee, was appointed as the Enquiring Officer to enquire . into the charges against the petitioner. The petitioner says that the political and the press propaganda, in the background whereof the charges were framed against the petitioner, considerably prejudiced him at the enquiry and that the propaganda had some sort of a grip or baneful effect on the mind of Enquiring Officer himself.
4a. Be that as it may, on receipt of the charge-sheet the petitioner wrote a letter to the respondent Enquiring Officer on November 4, 1958, requesting him, inter alia, to furnish the petitioner with the particulars and details of the charges and also with a list of documentary and other evidence on which the charges were based. On November 6, 1958, the respondent Enquiring officer informed the petitioner (1) that the approximate dates of incidents would be supplied to the petitioner within a short time and (ii) that the list of witnesses and documents would also be furnished later on. By the said letter the petitioner was further informed that it would not be possible to supply the statements of all the witnesses to the petitioner but that the petitioner would be at liberty to inspect the records by previous notice. The petitioner makes a point out of this letter and says that even at the stage when the charges were framed against the petitioner, the places and dates of the incidents mentioned in the charges, had not been finally determined and that the mind of the disciplinary authority was still then in an exploratory stage. The petitioner says that in such circumstances he should not have been charged at all.
5. In further elaboration of this criticism, the petitioner relies on certain amendments which were subsequently introduced into the charges. On behalf of the petitioner my attention was drawn to a letter dated November 17, 1958 written by R. Bhattacharjee, Deputy Secretary, Agriculture, Animal Husbandry and Forest Department, by which the petitioner was informed that the charges framed against him had been considerably amended (vide P. 19 annexure to the petition). In this Rule I am concerned with four of the amendments introduced in the charges, namely, those in charges No. I(c), II, III and V. The above numbered charges, after amendment, read as follows :
'Whereas it appears that you Sri Golam Mohiuddin, Curator, Indian Botanical Gardens, Sibpur,
Charge I.-- Illegally and dishonestly accepted :
(a) * * * *(b) * * * *(c) A sum of Rs. 800/- in 1954 from one Abdul Hamid Mir of Village Podra, Howrah on the pretext of recommending him to Sri S. Mallick, I. C. S., District Magistrate, Howrah, in connection with a Criminal case instituted against Sri Abdul Hamid Mir by his co-villagers; 'Rs. 500/-having been paid first and Rs. 300/- after about a fortnight.'
Charge II.-- And Whereas you Sri Golam Mohiuddin, Curator, Indian Botanical Gardens, Sibpur, had 'on 4/5 occasions in the course of a month namely February 1958' taken food and drink without payment at the new Cathey Restaurant, Chowringhee Road, Calcutta, belonging to one Sri A. Rahman, P. 136, Jhowtolla Road, Park Circus, on giving the latter a false hope of influencing the Police authorities, Calcutta, to revoke the suspension order regarding the late closing of his new Cathey Restaurant.
Charge III--And Whereas you Sri Golam Mohiuddin, Curator, Indian Botanical Gardens Sibpur,
(a) had obtained two permits for Baby Taxi one from R.T.A. Calcutta on 4-1-57 and another from the R.T.A., Howrah on 18-2-57 by exerting undue influence on and utilising your personal acquaintance with 'Secretary, R.T.A., Calcutta' and Sri B. B. Mondal, District Magistrate and Chairman, R.T.A. Howrah 'respectively' for and in the name of Sri Sumit Mitra of 193, Karnani Estates, Calcutta, knowing or having reason to believe that the said Sumit Mitra was a bad character; and
(b) Procured one licence for a pistol for and in the name of one Sri Tarapada Sarkar, of P. 147, Janak Road, Calcutta in December, 1956 by unduly influencing Sri R. N. Chatterjee, Superintendent of Police, 24 Parganas 'in the latter's office and residence' knowing and/or having reason to believe that the said Tarapada Sarkar was considered unsuitable for possessing small arms. Charge V.-- And Whereas you Sri Golam Mobiuddin, Curator, Indian Botanical Gardens, Sibpur were between 1952 and 1958 seen moving about with woman of ill fame and questionable character keeping company with bad elements at 'Magnolia Restaurant, Park Restaurant, Biltoore Hotel, and Flury's, all on Park Street and at the Indian Botanical Gardens, Sibpur' and thus leading a life unbecoming of a Government servant, (underlined there into (' ') by me indicative of the portions amended);
6. Along with the charge there was a supplementary statement of facts in respect of charge No. II served upon the petitioners which was to the following effect:
'In February, 1958, the licence of the New Cathey Restaurant on Chowringhee Road, Calcutta, (whose proprietor was Sri A. Rahman of P. 136, Jhowtala Road, Calcutta), for late closing was suspended by the Police for a month on the alleged entertainment of a prostitute in the restaurant, though Sri Rahman claimed that she was the lady companion of a customer and Sri Rahman had no knowledge about her character. Sri Rahman approached Sri Mohiuddin in February 1958 for help for revoking the suspension order and Sri Mohiuddin assured him that he would get the order revoked as Sri R. K. Gupta, Deputy Commissioner of Police, Headquarters, was his personal friend. After that Sri Mohiuddin visited the restaurant; with a number of friends four or five times, took food and wine there free of cost and even took away cooked food for his friends outside. This went on for a month but the order of suspension was not revoked.' 7. Even thereafter and during the period that the enquiry was proceeding charge No. I(c) was further amended and the year '1954' was changed into 'March 1953'. The petitioner submits that the amendments were indicative of an uncertain mind and that he should not have been charged with misconduct by the disciplinary authority at a point of time when that authority was not itself sure of the particular misconduct the petitioner should be charged with.
8. Be that as it may, the petitioner exercised the liberty given to him to inspect documents and by previous appointment attended the office of the Enquiring Officer for taking inspection of records. The Enquiring Officer, instead of allowing the petitioner the opportunity of taking inspection, dictated to him the summary of statements of 52 witnesses, who were intended to be examined against the petitioner. It was argued on behalf of the petitioner that this procedure was a poor substitute for inspection of documents.
9. On December 1, 1958, the petitioner wrote a letter to the respondent No. 2, thereby enquiring :
(a) whether the documents that were inspected constituted the records in their entirety.
(b) when could he expect the list of witnesses and documents, and
(c) the procedure to be followed at the enquiry.
10. In reply, the Enquiring Officer informed the petitioner that he had been allowed to take notices of the summary of statements of all the witnesses to be examined against him and that there was no further necessity of. supplying him with a list of witnesses. He was further informed that the list of documentary evidence, to be relied on, would be supplied to him after the filing of his written statement. He was also informed that he would be apprised of the procedure to be followed at the enquiry after he filed his written statement.
11. In these circumstances, the petitioner states, he was compelled to file his defence against the charges, without inspection of the documentary evidence. By the said statement, the petitioner denied the charges in their entirety and, inter alia, stated that the charges had their genesis in a false and malicious campaign against him by Beni Chandra Dutt, Asutosh Banerjee and Sukumar Banerjee and that Satyendra Nath Mukherjee, the Deputy Commissioner of Police, falsely brewed up the said charges against him. The defence of the petitioner is an annexure to the petition (marked with letter 'B').
12. After having filed his statement the petitioner wrote to the Enquiring Officer a letter, dated January 10, 1959, asking for the procedure to be adopted at the enquiry and also asking for production of the files relating to the disciplinary action against Asutosh Banerjee and the personal file of Sukumra Banerjee, The Enquiring Officer replied to the said letter, on January 13, 1959, and therein stated that the procedure to be followed in the enquiry would be substantially the same as in the Public Servants Inquiries Act. No assurance, however, was given about the production of the documents called for by the petitioner. The petitioner makes the grievance that in spite of the assurance given to him that a list of documents would be later on supplied to him, it was not so done during the entire course of the enquiry. The petitioner also makes the grievance that witnesses other than those whose statements the petitioner had obtained, were examined at the enquiry, thus causing great prejudice to him.
13. According to the petitioner, the enquiry against him was most irregularly conducted, without proper opportunity to him to defend himself.
14. As a result of the enquiry, the petitioner was found guilty of charges No. I(c), II, III and V either wholly or in part. After the service of the usual notice to show cause why the penalty of dismissal from service should not be imposed upon him, the petitioner was dismissed from service by an order dated October 28, 1960.
15. The petitioner moved this Court, under Article 226 of the Constitution, praying for a Writ of Certiorari for the quashing of the charge-sheet, the report of enquiry and the order of dismissal from service and obtained this Rule.
16. Mr, R. C. Deb argued the case on behalf of the petitioner. Mr. K. Mukherjee opposed him on behalf of the respondents. Both the learned Advocates have, by their able argument, considerably assisted me in resolving the complications involved in this Rule.
17. Prefacing his arguments, Mr. Deb contended that the Enquiring Officer did not arrive at his decision with the sense of responsibility of a Tribunal whose duty was to mete out justice. This, he contended, made the decision of the Enquiring Officer worthless. In support of this contention he strongly relied on the following observations by Viscount Haldane in Local Government Board v. Arlidge, (1915) AC 120 at p. 132:
'When the duty of deciding an appeal is imposed, those whose duty it is to decide it must act judicially. They must deal with the question referred to them without bias, they must give to each of the parties the opportunity of adequately representing the case made. The decision must be come to in the spirit and with the sense of resposibility of a tribunal whose duty it is to mete out justice.' 18. He also contended that the Enquiring Officer, sitting as a Tribunal, did not bona fide come to his findings, in the sense that he did not honestly apply his mind to the case made by the petitioner but put undue emphasis on the case made and the evidence of the witnesses examined by the department. He condemned this as most inappropriate and in support of this contention he placed reliance on the following observations by Lord Sumner in Roberts v. Hopwood, 1925 AC 578 at p. 603 :
'That is a qualification drawn from the general legal doctrine that persons who hold pubic office have a legal responsibility towards those whom they represent--not merely towards those who vote for them -- to the discharge of which they must honestly apply their minds. Bona fide here cannot simply mean that they are not making a profit out of their office or acting in it from private spite, nor is bona fide a short way of saying that the Council had acted within the ambit of its powers and therefore not contrary to law. It must mean that they are giving their minds to the comprehension and their wills to the discharge of their duty towards the public, whose money and local business they administer.' 19. He also invited my attention to the following observations by the Supreme Court in Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, : AIR1959SC308 :
'The mode of performing quasi-judicial acts by administrative tribunals has been the subject of judicial decisions in England as well as in India. The House of Lords in 1915 AC 120 in the context of the Housing Town Planning, Etc. Act, 1909, made the following observations at p. 132:
'My Lords, when the duty of deciding an appeal js imposed, those whose duty it is to decide it must act judicially. They must deal with the question referred to them without bias, and they must give to each of the parties the opportunity of adequately representing the case made. The decision must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice. But it does not follow that the procedure of every such tribunal must be the same.'
In New Prakash Transport Co. Ltd. v. New Suwarna Transport Co., Ltd. : 1SCR98 this Court reviewed the case law on the subject and came to the conclusion that the rules of natural justice vary with varying constitutions of statutory bodies, and the rules prescribed by the legislature under which they have to act, and the question whether in a particular case they have been contravened must be judged not by any preconceived notion of what they may be but in the light of the provisions of the relevant Act. This Court reaffirmed the principle in Nagendra Nath v. Commr. of Hills Division : 1SCR1240 .'
20. The principles contended for by Mr. Deb are elementary principles. An administrative tribunal must act in good faith, must have regard to relevant considerations only, must disregard all irrelevant considerations, must not seek to promote purposes alien to the letter or the spirit of legislation that gives it power to act and must not act arbitrarily or capriciously. In other words, an administrative tribunal must act bona fide on relevant considerations and must also act with a sense of responsibility in discharge of its duties.
21. Further prefacing his arguments, Mr. Deb contended that a Writ Court should not fight shy of the findings of fact arrived at by a Tribunal, but should go deeper into the matter and see for itself whether the inferences drawn by such a tribunal were proper inferences. In support of this branch of his contention Mr. Deb relied On the following observations of Lord Radcliffe in Edwards (Inspector of Taxes) v. Bairstow, 1956 AC 14, at p. 36:
'I do not think that inferences drawn from other facts are incapable of being themselves findings of fact, although there is value in the distinction between primary facts and inferences drawn from them. When the case comes before the Court it is its duty to examine the determination having regard to its knowledge of the relevant law. If the case contains anything ex facie which is bad law and which bears upon the determination, it is, obviously, erroneous in point of law. But without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the Court must Intervene. It has no option but to assume that there has been some misconception of the law and that this has been responsible for the determination. So there, too, there has been error in point of law. I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictory of the determination, or as one in which the, true and only reasonable conclusion contradicts the determination. Rightly understood, each phrase propounds the same test. For my part, I prefer the last of the three, since I think that it is rather misleading to speak of there being no evidence to support a conclusion when in cases such as these many of the facts are likely to be neutral in themselves, and only to take their colour from the combination of circumstances in which they are found to occur.' 22. He also drew my attention to a decision of this Court in McLeod and Co. v. Sixth Industrial Tribunal : AIR1958Cal273 where P. B. Mukharji, J. followed the case of 1956 AC 14 (supra) and observed as follows:
'This decision of the House of Lords was given in proceedings on appeal and not in certiorari, but the importance of the classical observations of Lord Radcliffe lies in the distinction between 'primary' facts and 'inferences' drawn from them and in laying down when the latter are questions of law although expressed in three seemingly different expressions in jurisprudence on this point, namely, (i) no evidence to support the determination, (ii) evidence is inconsistent with the determination and (iii) the true and only reasonable conclusion contradicts the determination and the learned Lord's preference for the third expression as being most appropriate.' 23. Mr. Deb lastly drew my attention to 3 decision of the Supreme Court in Lalchand Bhagat Ambica Ram v. Commr. of Income-tax : 37ITR288(SC) in which the following observation appears :
'The limits of our jurisdiction to interfere zwith finding of fact reached by the courts or tribunals of facts have been laid down by us in various decisions of this Court in Dhirajlal Girdharilal v. Commr. of Income-tax Bombay : 26ITR736(SC) we observed that when a Court of fact arrives at its decision by considering material which is irrelevant to the enquiry, or acts on material, partly relevant and partly irrelevant, where it is impossible to say to what extent the mind of the Court was affected by the irrelevant material used by it in arriving at its decision, a question of law arises: Whether the finding of the Court of fact is not vitiated by reason of its having relied upon conjectures, surmises and suspicions not supported by any evidence on record or partly upon evidence and partly upon inadmissible material. We also observed, in Dhakeswari Cotton Mills Ltd. v. Commr. of In-come-tax, West Bengal : 27ITR126(SC) that an assessment so made without disclosing to the assessee the information supplied by the departmental representative and without giving any opportunity to the assessee to rebut the information so supplied and declining to take into consideration all materials which the assessee wanted to produce in support of the case constituted! a violation of the fundamental rules of justice and called for interference on our part. In Mehta Parikh and Co. v. Commr. of Income-tax, Bombay, : 30ITR181b(SC) , this Court observed that the conclusions based on facts proved or admitted may be conclusions of fact but whether a particular inference can legitimately be drawn from such conclusions may be a question of law. Where however the fact finding authority has acted without any evidence or upon a view of the facts which could not reasonably be entertained or the facts found were such that no person acting judicially and properly instructed as to the relevant law could have found, the Court is entitled to interfere. In our decision in Sree Meenakshi Mills Ltd., Madurai v. Commr. of Income-tax, Madras 0044/1956 : 1SCR691 after discussing the various authorities on the subject we laid down that * * * A finding on a question of fact is open to attack under Section 66(1) as erroneous in law when there is no evidence to support it or if it is perverse.
The latest pronouncement of this Court in Omar Salay Mohammed Sait v. Commr. of Income-tax, Madras : 37ITR151(SC) summarises the position thus:
'We are aware that the Income-tax Appellate Tribunal is a fact finding Tribunal and if it arrives at its own conclusions of fact after due consideration of the evidence before it this Court will not interfere. It is necessary, however, that every fact for and against the assessee must have been considered with due care and the Tribunal must have given its finding in a manner which would clearly indicate what were the questions which arose for determination, what was the evidence pro and contra in regard to each one of them and what were the findings reached on the evidence before it. The conclusions reached by the Tribunal should not be coloured by any irrelevant considerations or matters of prejudice and if there are any circumstances which required to be explained by the assessee, the assessee should be given an opportunity of doing so. On no account whatever should the Tribunal base its findings on suspicions, conjectures or surmises nor should it act on no evidence at all or on improper rejection of material and relevant evidence or partly on evidence and partly on suspicions, conjectures and surmises and if it does anything of the sort, its findings even though on questions of fact will be liable to be set aside by this Court.' ' The propositions contended for by Mr. Deb admit of little doubt and should be accepted as established propositions of law.
24. The question for my consideration is did the Enquiring Officer act irresponsibly and did be draw his conclusion against the petitioner in a manner which was neither bona fide nor responsible. This question I have to consider charge by charge as hereinafter stated.
25. So far as Charge No. 1(c) is concerned, the finding of the Enquiring Officer is based on the evidence of a single witness. P. W. 49, Abdul Hamid Mir alias Abdul Aziz Mir. The findings of the Enquiring Officer in this respect are as follows:
(a) One Gulam Kibria instituted a criminal case against Abdul Hamid Mir and his son and wife; the latter approached the petitioner with the request to save his wife from being dragged to Court; Mohiuddin demanded Rs. 1000/- from Abdul Hamid Mir in order to use his influence over the District Magistrate of Howrah and the Daroga of Sankrail P. S.,
(b) Abdul Hamid Mir had seen the District Magistrate of Howrah and the Daroga of Sankrail P. S. in the quarters of the petitioner at Botanical Gardens and thought that Mohiuddin would be able to influence the officers. He therefore paid a sum of Rs. 500/- in the hands of Mohiuddin, on March 10, 1953,
(c) The records of the criminal case showed that Abdu Hamid Mir was discharged in that case,
(d) By way of corroboration of the version it appears that the petitioner had accompanied Abdul Hamid Mir to the Bank and helped him to withdraw a sum of Rs. 500 /- from the Bank, on March 10, 1953.
26. The Enquiring Officer came to the conclusion that the petitioner had accepted a sum of of Rs. 500/- from Abdul Hamid Mir on the representation that he would use his influence over the District Magistrate and the Police Officers in order to save Abdul Hamid Mir and his wife from being dragged before a Criminal Court. The Enquiring Officer however, did not believe in the uncorroborated testimony of Abdul Hamid Mir in respect of the further payment of Rs. 300/- to the petitioner, ten or twelve days after the first payment.
27. Mr. Deb criticised the appraisement of evidence by the Enquiring Officer, in this respect, in very strong language. He submitted that the Enquiry Officer was himself not prepared to rely on the uncorroborated testimony of Abdul Hamid Mir in respect of the payment of Rs. 300/-. If the man was untrustworthy in respect of a part of his story, Mr. Deb contended, he should not have been relied upon in respect of the other part.
28. Mr. K. Mukherjee, learned Advocate for the respondents, tried to repel this criticism with the argument that there were corroborative documentary evidence in support of Abdul Hamid Mir's evidence for payment of Rs. 500/- to the petitioner and that induced the Enquiring Officer to accept that part of the testimony of the witness. He further contended that the finding in this respect was based on appraisement of evidence and not on inferences and a Writ Court should not reappraise the evidence and come to a different conclusion. In support of the last branch of his argument he relied on the observation of the Supreme Court in State of Orissa v. Murlidhar Jena? AIR 1963 SC 404, in which their Lordships observed that in a proceeding, under Article 226 of the Constitution, a High Court should not sit in appeal over the findings recorded by an administrative tribunal in a departmental enquiry and that if a High Court had purported to reappreciate the evidence for itself that would be outside its jurisdiction.
29. Mr. Deb tried to pick holes in this argument with the following contentions. In the first place, he relied upon the same judgment cited by Mr. Mukerjee and argued that the Supreme Court had also laid down that if it was shown that the impugned findings recorded by the administrative tribunal were not supported by any evidence a High Court would be justified in setting aside such findings. He argued that there was little corroboration in support of the evidence of Abdul Hamid Mir and since the oral testimony of Abdul Hamid Mir was not acceptable to the Enquiring Officer, the petitioner should not have been found guilty of charge No. I(c) without more. He contended, in the next place, that there was an amount of perversity attached to the findings of the Enquiring Officer in this respect, in that he tried to find out corroboration from facts which were not in the least corroborative and his approach in so doing was not a judicial approach.
30. I have, therefore, to see whether there are documentary evidence which will go to corroborate the giving of money to the petitioner by Abdul Hamid Mir. In this respect, I need, in the first place, examine documents marked Ex. 25, Ex. 21 and Ex. 27 before the Tribunal (copies of which were marked Exs. 3, 4 and 2 before this Court). The first document (Ex. 25) is a certified copy of Register of complaints of offences. That document shows that, on February 10, 1953, Colam Kibria filed a complaint before the Sub-Divisional Officer, Howrah, against Abdul Aziz (Alias Abdul Hamid Mir) and his son and wife, under Section 406, I. P. C., and that on May 19, 1953 the accused persons . were discharged under Section 253 Cri. P. C. The second document (Ex. 21) is the petition of complaint in respect of the case referred to above. The third document (Ex. 27) is another, petition of complaint, seeking to revive the first criminal case on the ground that the accused persons had been discharged allegedly on the basis of a compromise between the complainant and the accused persons but the compromise ultimately failed to materialise. The said last complaint is dated May 20, 1953. Mr. Deb relied on the last petition of complaint and contended that the cri-minal case was not pending on March 10, 1953 and there was no occasion for payment of money to the petitioner in March 1953. This argument is not very well-conceived. The Enquiring Officer rightly pointed out that there was a criminal case pending against Abdul Hamid Mir and others since February 1953 and that the accused persons were discharged in that case in May, 1953. Therefore, if money was actually paid to the petitioner to help Abdul Hamid Mir in the Criminal Case, in March, 1953, that was not an unlikely time for such payment. The other branch of documentary evidence consists of the Bank Pass Book (Ex. 22) of Abdul Hamid Mir, which goes to show that, on March 10, 1953 there was an withdrawal of Rs. 500/- from Abdul Hamid Mir's Savings Bank Account and the cheque (Ex. 22), which goes to show that when the sum of Rs. 500/- was withdrawn, the cheque itself was written out by the petitioner. The Enquiring Officer holds that the interest shown by the petitioner in withdrawing the money was corroborative of his acceptance of the money.
31. The point for decision before the Enquiring Officer was whether the petitioner had accepted a sum of money from Abdul Hamid Mir, on the pretext of helping him in the criminal case. The pendency of the criminal case at the time when a sum of Rs. 500/- was said to have been paid to the petitioner is certainly a relevant circumstance. The association of the petitioner with Abdul Hamid Mir In the matter of cashing the cheque of Rs. 500/- is also another relevant circumstance. The two circumstances, however, are not such as are consistent only with the acceptance of the money by the petitioner. In order to find a person guilty on circumstancial evidence, the circumstance or the circumstances must be such as would irresistibly lead to an inference of the guilt of the person charged with the offence. In the instant case, if the inference drawn from the circumstances be not the only irresistible inference, then there is an error of law committed which may merit rectification by a writ Court. The petitioner gave an explanation as to why he wrote out the cheque for Abdul Hamid Mir. The latter was (and was also found to be) an unsophisticated rustic and not versed in English. The petitioner says that he was approached by Abdul Hamid Mir to write out the cheque for him, because he could not trust anybody else in the matter of such writing. This explanation was not accepted by the Enquiring Officer because he found that the petitioner had not only written out the cheque but also accompanied Abdul Hamid Mir to the Bank and when the Bank raised objection to the encashment of the cheque the petitioner helped him in diverse ways and thereby enabled him to withdraw Rs. 500/-. The Enquiring Officer finds fault with the petitioner because he failed to explain this part of his performance.
32-46. In my opinion, it is not, however, easy to find fault with the petitioner on the ground that he had failed to explain his conduct fully. Charge No. I (c. has a history of inaccuracy behind it. (His Lordship then examined the evidence relating to charge No. I(c), No. II, No. III (a) and III(b) and finding that the inferences against the petitioners were not based on any evidence whatsoever, continued as under :--)
47. I have now to consider Charge V. In that charge, the petitioner was originally accused of moving about with women of ill-fame and questionable character and of keeping company with bad elements and thus leading a life unbecoming of a Government servant. The charge was not proved in that form. There was an amendment introduced in the charge by which the petitioner was accused of moving about with women of ill-fame and questionable character and keeping company with bad elements at several restaurants and hotels, all at Park Street, and also at the Botanical Gardens. Of this amended charge the petitioner was found guilty in part, namely, that he was found to frequent Biltmore Hotel, in 1958, moving and taking food and drinks there in company of Anima and Sagarika (to receptionists in the hotel) who though not proved to be persons of ill-fame were characterised as 'evidently girls of questionble character'. The Enquiring Officer generally found that the petitioner was guilty of charge V but did not expressly find that he was leading a life unbecoming of a Government servant,
48. The Enquiring Officer based his finding on the evidence of P. W. 9, Sudhir Chandra Sinha, P. W. tO, Ajit Kumar Lahiri, P. W. 14 Swarnamoy Guha and P. W. 58, Basanta Kumar Chatterjee. It is necessary for me to set out material portions - from their evidence in order to see whether the evidence justifies the conclusion of the Enquiring Officer or whether he draws wrong inference therefrom:--
P. W. 9 Sudhir Kumar Sinha says :
'I used to go to that hotel frequently. I found that two girls Anima and Sagarika, who were said to be receptionists, used to share tables with; many persons. They used to sit at my table also and take drinks offered to them; other girls used to frequent that hotel and used to associate with boarders of the hotel in their rooms and with casual customers also. Dr. Mohiuddin (identifies) used to frequent that hotel. He was introduced to me by Sri A. K. Lahiri in October or November, 1957. I used to have drinks with Sri Mohiuddin and occasionally Anima and Sagarika used to share bur table. Generally I paid for the drinks shared with Mr. Mohiuddin and the two girls.' P. W. 10 Ajit Kumar Lahiri, proprietor of Biltmore Hotel says:
'I know Sri G. Mohjuddin (identifies) Curator of the Botanical Gardens for the last 10 or 15 years. He used to come to my hotel occasionally during the last 1 1/2 years or so. He used to talk to some of his friends in my hotel and have drinks there. Sudhir Sinha was one of the friends of Mohiuddin who used to come tq my hotel. Ha was introduced to Mohiuddin there. Anima Mallik and Sagarika Haldar were receptionists of my. hotel. I saw some other girls come to the hotel on occasions but I do not know their names except one Lata. The duty of the receptionists was to look after the customers. Sri Mohiuddin was known to the two girls receptionists of my hotel but I never saw them sit at the same table with Mohiuddin,' X X X X X
'Mohiuddin used to have drinks in my hotel on credit. Shown credit book says it is in the hand of my manager Rajani Mitra. The entries in the name of Mohiuddin have been underlined (Ex. 4). He has not yet paid me the money due from him towards price of drinks and food consumed.' Cross-Examination--
'My bar license was never suspended. My hotel was raided only once; that was on 12/6/58 at about 5 P.M. Sri Panchanan Ghosal and Rai Bahadur Satyen, Mukherji were amongst the raiding party. They arrested me, my Manager Mitra, my receptionists Anima and Sagarika and also three girls Lata Das, Roma Samanta and Miss Peaceful, the last of whom was a boarder of my hotel. Sudhir Sinha was also arrested, from my hotel on that date. The duty of the receptionists was to see that the customers were promptly attended by the boys and to see that boarders were provided with clean linen and other necessaries.' X X X X X
'The charge against me was that I had permitted my hotel to be used as a brothel and that I used to bring girls to the hotel for prostitution. Sudhir Sinha was discharged in the case before me. I had been to the Enforcement Branch even after the discharge of Sudhir Sinha. I was discharged on 10-10-58. Anima and Sagarika are still employed in my hotel.' P. W. 14 Swarnamoy Guha says:
'I have been to the Biltmore Hotel on many occasions and taken tea there in the company of friends. One day a gentleman came and inquired if Mohiuddin Saheb was there. The boy said he had not yet come. Subsequently Mohiuddin came and had some talk with that man about Milk Commissioner. I saw Mohiuddin taking drinks in the hotel in the company of some women on many occasions. Lata, Mashi and Sagarika are the names of some of the women. One night at about 10 P. M I saw Mohiuddin and another gentlemen going out of the hotel in a car in which there were two other females. They were drunk. I saw Mohiuddin taking drink in the hotel with one Khorshed. I saw him also coming out of rooms of the hotel in the company of different girls including Lata.' P. W. 58 Basanta Kumar Chatterjee says :
'Inspector of Police attached to Anti-Rowdy Section. I was ordered to watch the Biltmore Hotel sometime in March, 1958. I kept a watch on the hotel and found some officers taking drinks with some girls at the same table. Sri Mohiuddin (identifies) was one of the officers who was drinking in the company of the girls. I reported that fact to my superior.' A plain copy of the deposition of the above witnesses was filed before me and the original thereof was also produced. I direct that the plain copy of the depositions be kept on the record.
49. From the above quoted evidence the Enquiring Officer was justified in arriving at the conclusion that the petitioner used to take food and drinks at Biltmore Hotel in company with Anima and Sagarika, two receptionists in the hotel. His other conclusion, namely, that the two receptionists were 'evidently girls of questionable character', was a mere conjecture, in the absence of any evidence as to their character. The occupation of a receptionist in a hotel is not by itself a degrading occupation for females. Girls who like alcoholic drinks are not invariably bad or immoral. Girl receptionists, who accept offer of drinks from customers with whom they are friendly, may be much too forward a type of girls but only because of that they need not be characterised as girls of questionable character. The finding that spirituous drinks used to be served at Biltmore Hotel 'surreptitiously' is also against the weight of evidence. The evidence quoted above goes to show that drinks were openly served in the hotel, even under the watchful eyes of Police Officers (Say for example, Basanta Kumar Chatterjee). It may just! be, as the Enquiring Officer finds, that Biltmore Hotel had no license to serve drinks to persons who were npt the boarders or their guests. But that notwithstanding, drinks used to be served at the hotel to others as well aad there is no Indication that the same used to be done surreptitiously. Non was any action ever taken against the proprietor of the hotel, for cancellation of his license even after the police authorities had come to know of such sales. The fact that the hotel used to be frequented by other girls of 'unknown antecedents' is inconsequential. A refreshment room in a hotel is not expected to keep a record of antecedents of its customers and customers of 'unknown antecedents' are not necessarily bad people. Moreover the petitioner was not found to have mixed himself up with the other girls. Why the Enquiring Officer imported a fact of such irrelevancy In his findings passes my comprehension. Lastly, the finding of the Enquiring Officer that girls who take drinks offered by customers must be held to be persons of 'questionable character' is too broad a proposition of morality. It is difficult to understand which aspect of the conduct of the petitioner, the Enquiring Officer meant to condemn as unbecoming, namely,
(a) drinking in a hotel, or
(b) drinking in a hotel like Biltmore, where drinks were supposed to be surreptitiously served, or
(c) drinking in company with girls, who were receptionists at hotel Biltmore.
The Court is not a Court of morals. But because it is a Court of law and because it is required to decide whether the conduct of the petitioner was unbecoming or improper, from what is commonly known as the moral point of view that this Court has to pronounce its views on the point. In so doing, this Court need remember that it is not either the views of private or public morality of the Enquiring Officer or the fanciful morality of persons who happen to be propounding a new sociology or advanced philosophy of morals or becoming conduct that can be allowed to operate as the test. This Court has to go by the ordinary normal standards of morality and propriety of conduct prevailing and accepted by the society. By adopting that test, I need say that participation in drinking orgies at public places, with or without the company of girls, is not a becoming conduct for anybody, far less for a person holding a public office. But mere taking of alcoholic drink is not improper or unbecoming, although indulging in disorderly conduct under influence of drink is. Then again, consumption of spirituous drinks in a public hotel or restaurant is not per se condemnable, even in this country. This Court is in a position to take judicial notice of the fact that there are many reputed hotels, clubs and restaurants' in this country, all licensed by Government authorities, where such drinks are served to and are consumed by customers or members. It has not been established by evidence that Biltmore Hotel is a disreputable hotel or a den of drunkards and disorderly people. Therefore, taking of alcoholic drinks in such a hotel may not be by itself bad. The question that remains for my consideration is whether drinking in a hotel, in company with female receptionists of the hotel, should always be condemned. In my opinion such a conduct would amount to indiscretion, however, innocent the company may be. Public officers in the interest of their own reputation, should avoid such conduct. But, as Thomas Paine rightly observed -- 'Reputation is what men and women think of us; character is what God and angels know of us'. A man may be better than his reputation and I am not prepared to say that mere drinking in company with girl-receptionists of a hotel, without accompanying disorderly or unseemly behaviour, must be immoral or unbecoming.
50. But even then a larger question remains for consideration. Conduct on the part of a public servant, which is likely to appear as unbecoming or improper in public estimation, may be an indiscretion on his part. But is such a conduct necessarily a misconduct? Prior to 1959, there used to be one code of conduct for Government servants, known as Government Servants' Conduct Rules, framed under Section 96B of the Government of India Act 1919. The said Rules, inter alia, contained restrictions, on (i) receipt of gifts, presentations, and complementary or valedictory address, (ii) raising of subscriptions or pecuniary assistance from Native Princes or Chiefs in pursuance of any subject (iii) lending and borrowing (iv) buying and selling of houses and other valuable properties (v) holding or acquiring immoveable properties (vi) investments (vii) speculation, (viii) promotion and management of companies (ix) private trade and employment, (x) communication of official documents or informations, (xi) connection with Press, (xii) criticism of Government, (xiii) giving evidence before committees (xiv) taking part in politics and elections, (xv) vindication of acts and character as Government servant etc. There was however, nothing contained in the said Rules controlling the private conduct of Government servant. Later, on August 7, 1959, there was a set of rules framed by the Governor, in exercise of his powers under Article 309 of the Constitution known as the West Bengal Government Servants' Conduct Rules 1959, which, inter alia provided:
Rule 3. Every Government servant shall at all times maintain a very high standard of integrity, impartiality and devotion to duty.
Rule 4. No Government servant shall behave in a manner which is improper and unbecoming of a public servant and derogatory to the prestige of the Government.
51. Rule 3 relates to the discharge of official duty by public servant. With that Rule I am not concerned in this case. Rule 4, however, deals with the behaviour of a public servant not only in his official life but also in his private life. The Rule is in a sense eliptic, in that it does not lay down a proper and a becoming standard of behaviour for public servants although it requires them to avoid impropriety or unbecomingness in behaviour. Behaviour runs through the general course of life, in conduct, in deportment, in manners in dress, in speech and also in association. To leave the standard of behaviour pattern of public servants to the subjective satisfaction of the disciplinary authority has its dangers. A public servant, who is unconventional in his conduct and deportment, unconstrained in his manners, original in his dress, free-styled in his speech and liberal in his association, may shock the conscience of a disciplinary authority, if that authority be either a conservative or a conventionalist. It would be wrong to think that Rule 4 of the West Bengal Government Servants' Conduct Rules 1959 was framed in order to introduce regimentation in the day to day life of public servants, according to a pattern. However undesirable it may be for a public servant to live a life of shame, disorderliness or immorality, it is equally undesirable to leave the appraisement of his behaviour to the subjective satisfaction of the Government or the disciplinary authority. Rule 4 suffers from the infirmity that it requires public servants to behave properly and becomingly in accordance with standards which may vary according to opinion.
52. The inhibition of the Purdah (or the veil) is largely inoperable now-a-days and feminine participation in all spheres bf life, including in public service, is on the increase. In the changed and changing social conditions of this country, society of females may have become unavoidable and need no longer be viewed with the prejudice of olden days.
53. The other test in the Rule, namely, that the behaviour of a public servant must not be derogatory to the prestige of the Government is an equally uncertain test. It is difficult to say that a public servant, who makes himself odious by the value he sets on his office or rank, by his fear of being ranked as a commoner, by his stiff or unsocial behaviour reflects glory upon the administration or enhances the prestige of the Government.
I have already observed that public servants should develop some sort of detachment in life and avoid scandalous sort of living. At the same time they should not live in ivory towers or in retreat from the world and their fellow citizens or live the life of cloistered hermits. If the Government thinks that public association of its officers with girls, who take intoxicating drinks, should be prohibited and should be characterised as misconduct, it should lay down such a rule specifically and should not leave such a misconduct for being spelled out from the vagaries of the language of Rule 4 of the Conduct Rules.
54. Be that as it may, the petitioner was charged with the misconduct, as in charge V, on October 17, 1958. The disciplinary enquiry against him was concluded on March 16, 1959. The report of the Enquiring Officer, recommending his dismissal is dated April 9, 1959. The West Bengal Government Servants' Conduct Rules 1959, were framed on August 7, 1959. The petitioner was asked to show cause against the proposed penalty on January 27 1960 and was dismissed from service with effect from October 28, 1960. Therefore, the position is that at the time when charge V was framed against the petitioner and during the time that the enquiry against him proceeded. Rule 4 of the Conduct Rules of 1959 was not in existence. Since that Rule was not given retrospective or retroactive operation, the disciplinary authority cannot take advantage of the Rule and find the petitioner guilty of unbecoming conduct, as under the Rule.
55. I do not intend to lay down, as a pro-position of law, that an officer guilty of improper or unbecoming conduct could not be proceeded against, by way of disciplinary action, prior to the promulgation of the Conduct Rules of 1959. The word 'misconduct' is a sufficiently wide expression and covers any conduct which in any way renders a man unfit for his office or is likely to tamper or embarrass the administration. In this sense grossly improper or unbecoming conduct in public life may also become misconduct and may render an officer liable to disciplinary action therefor. But I need point out that emphasis on the becoming and proper conduct of a Government servant, even in his private life, was laid only in 1959 and prior to that their private life was not governed by any code of conduct.
56. I hold that the Enquiring Officer inferred public exhibition of moral turpitude or unbecoming conduct in the petitioner on materials which do not irresistibly point to that conclusion. He characterised the two receptionist girls at Biltmore Hotel with whom the petitioner had taken drinks, as 'evidently girls of questionable character', although he was not prepared to hold that they were girls of 'ill-fame'. The expression questionable character means doubtful character. That doubt was his own doubt and that also in the absence of proof that the girls were persons of ill-fame. He should have given the petitioner the benefit of the doubt and should not have found the petitioner guilty of charge V.
57. Having examined the findings of the En-quiring Officer, I find that he drew erroneous inferences from primary facts found by him, dreamt of documentary corroboration where there was none and too freely found the petitioner to be blameworthy for misconducts, for which others appearto have been responsible. Further he evolved acode of private conduct for Government servants,which did riot exist at the material time, andfound the petitioner guilty of violation of suchcode. Also he had in his mind a code of femininemorality, which did not take into account changedsocial conditions of this country. His conclusionswere not based on evidence but on wrong inferences drawn from evidence and he did not exhibitthe proper sense of responsibility, as a fact findingTribunal, in arriving at hi