1. This is an application under Article 226 of the Constitution for a Writ in the nature of Mandamus directing the respondents to withdraw two notices dated 26-4-1952 and 29-4-1952 intimating that certain departmental proceedings will be proceeded with against the petitioner and for a writ in the nature of Prohibition prohibiting the respondents to proceed with the enquiry without complying with the statutory provisions governing the matter of holding such inquiries.
2. The case of the petitioner is that on or about 3-2-1951 the petitioner was transferred from the post of Manager, Government Cinchona Plantation, Munsong, to the post of General Manager, Government Cinchona Plantation, Mangpoo, and was directed to take over charge from the outgoing General Manager, one Mr. Fothergill. The petitioner was appointed to act as such General Manager with effect from 15-2-1951. The petitioner took charge of his new post as General Manager from Mr. Fothergill on 15-2-1951 and it is alleged that in order to make up a shortage of cash to the extent of Rs. 1422-13-6, the petitioner lent the said sum to Mr. Fothergill at the latter's request for the purpose of making the cash tally with the relevant entry in the cash book. It is further alleged that at the time of taking over charge a sum of Rs. 10,280/- was shown in the books as advances to various parties which remained unrealized at the time. It is further the case of the petitioner that the sum of Rs. 1422/13/6 was subsequently repaid by Mr. Fothergill to the petitioner on or about 23-2-1951. Thereafter in or about the 1st week of May 1951 the petitioner came to know as a result of checking up of the accounts for 1950-51 that a sum of Rs. 10,280/- had been accounted for as expended and deducted from the closing balance of cash in hand. On 10-5-1951 the petitioner wrote a letter to Mr. Fothergill informing him about the position detested by the petitioner after checking of accounts and requested Mr. Fothergill to make up the deficit of Rs. 10,280/- and a copy of the letter was forwarded to the Director, Cinchona Plantations. On 11-5-1951 Mr. Fothergill wrote back stating that he was not prepared to make good any deficit before a proper audit was completed. It was also pointed out in this letter that while handing over charge, the charge sheets were signed by the petitioner and he apparently agreed to the accounts being correct. It appears that a copy of this letter was also forwarded to the Director, Cinchona Plantations. By a letter dated 15-5-1951 the petitioner pointed out that the taking over of charge did not mean that everything was alright and he requested Mr. Fothergill to make up the deficit. A copy of this letter was also forwarded to the Director, Cinchona Plantations.
On 29-5-1951 the Director sent a report to the Government about the shortage detected by the petitioner. It is curious that although in view of the impending retirement of Mr. Fothergill from the post of General Manager, the Director submitted a proposal to the Government for arranging a special audit of personal ledger account of Mr. Fothergill, no such audit was in fact done upto 23-7-1951 when Mr. Fothergill left India for England. On 10-9-1951 the petitioner handed overcharge as the General Manager and reverted to his substantive post of Manager. On 16-11-1951 the accounts were audited and the report submitted to the Government by the auditor confirmed the fact that Mr. Fothergill defalcated a sum of Rs. 10,280/-. On 24-1-1952 certain charges of making fraudulent entries in the books of account at the time of taking over charge from Mr. Fothergill were made against the petitioner and the petitioner was further charged with gross negligence and inefficiency In the discharge of duties as public servant. On the same date a suspension order was passed against the petitioner. On the 5th February the petitioner handed over charge as Manager. On 21-2-1952 the petitioner submitted his written explanation to the charges. On 26-3-1952 certain fresh charges were made against the petitioner.
On 21-4-1952 the petitioner intimated to the authorities concerned that he desired Dr. M. Sen, Director and Mr. Fothergill to be called as witnesses for the purpose of cross-examining them, upon being informed by letter of the Assistant Secretary dated 15-4-1952 that he was entitled to have such witnesses called as he might desire, at the enquiry, to be held. In answer to the said letter of the petitioner the Deputy Secretary wrote to the petitioner fixing 9 and 10-5-1952 as the dates for holding the enquiry and informed the petitioner that Dr. Sen would be called to give his evidence but as Mr. Fothergill was out of India it would not be possible to secure his attendance. It was further stated in the said letter that the documents desired to be produced would be produced during the enquiry. On 29-4-1952 the dates of enquiry were postponed till 15-5-1932 & 16-5-1952. On 30-4-1952 the petitioner again wrote to the Govt. stating that they would have to make arrangements for Mr. Fothergill's presence at the enquiry, and pointed out that it was not made clear by the Government as to what documents would be produced at the enquiry. The petitioner further complained that no inspection had been offered of such documents. On 8-5-1952 the Deputy Secretary replied to the letter of the 30th April and maintained the attitude taken up in the letter of 28-4-1952. By a letter of 10-5-1952 the petitioner again pressed for securing attendance of Mr. Fothergill and for inspection of the relevant documents. By letter of 13-5-1952 the Deputy Secretary pointed out that the departmental proceedings had been drawn up under the provisions of Rule 55, Civil Service (Classification, Control and Appeal) Rules of the Government of Bengal and that the petitioner had no further rights in relation to the enquiry than what were allowed under the said Rule 55. The petitioner thereupon obtained the present Rule on 15-5-1952.
3. The only point which has been urged by Mr. K.K. Basu, the learned Counsel for the petitioner, is that without providing the petitioner with the facilities which are afforded to him under Rule 55, Civil Service Rules, the respondents should not be allowed to proceed with the departmental enquiry. It is submitted that the holding of the departmental enquiry by the respondents without securing the attendance of Mr. Fothergill and without affording the petitioner opportunity to cross-examine him will mean violations of the provisions of Rule 55, Civil Service Classification Rules. It is argued that the attitude adopted by the respondents in the correspondence does not amount to 'refusal' to call Mr. Fothergill within the meaning of Rule 55 and even assuming that the conduct of the respondents does amount to such refusal, the reasons put forward for not securing the attendance of Mr. Fothergill are not 'sufficient reasons' within the meaning of the said Rule, It appears to me that this contention of Mr. Basu cannot be accepted. Although the word 'refuse' has not been used, the substance and effect of the words used in the letters of the Deputy Secretary dated 26-4-1952, 8-5-1952 and 13-5-1952 is that the authorities concerned expressed their refusal to call Mr. Fothergill as a witness in the departmental enquiry.
4. Although there is no doubt that but for the laches and slackness on the part of some of the officials of the Government, it would not have been possible for Mr. Fothergill to leave the shores of India without making good the defalcation or without making some arrangements for the purpose, yet I am unable to hold that sufficient reasons do not exist to justify the authorities in refusing to call Mr. Fothergill as a witness in the contemplated proceeding. It is just possible that as the suspicion raised against Mr. Fothergill had not been confirmed by a proper audit of the relevant accounts, it was found not advisable to put him under arrest or prevent him from leaving the shores of India at the time he actually left this country. Moreover, the fact remains that Mr. Fothergill is now in England and the enquiring or investigation officer in charge of the enquiry has no power to enfore the attendance of Mr. Fothergill at the enquiry by the issue of any summons or any other process. In the circumstances it cannot be said that the Government has no justifiable grounds for refusing to accede to the request of the petitioner to call Mr. Fothergill as a witness.
5. It has been further contended by Mr. Basu that without producing for inspection of the petitioner the documents in respect of which notice to produce has been given by the petitioner, the respondents should not he allowed to proceed with the departmental enquiry inasmuch as refusal of such inspection and non-specification of the documents which are actually going to be produced by the respondents at the enquiry, amount to denial of justice to the petitioner. It is clear from the letter of the petitioner dated 21-4-1952 that the petitioner gave a specific list of the various documents on which he wanted to rely in support of his defence at the departmental enquiry and the relevant portion of the letter was worded as follows:
'I shall rely amongst others on the following documents which you will kindly produce before the officer to enable me to make use of the same.'
The reply that was given by the Deputy Secretary to this request in the letter of 26-4-1952 was as follows:
'The documents mentioned in your letter under reference will be produced during the enquiry as desired provided they are readily available.'
The unsatisfactory nature of the answer very naturally made the petitioner uneasy. While struggling to exculpate himself from very serious charges of misconduct brought against him, to be told, that the documents asked for would be produced if readily available, cannot be characterized as anything else but denial of justice and the fundamentals of fair-play. The petitioner was definitely told that he could not have the assistance of a lawyer to defend him against the charges. He was to conduct his own defence and if to add to this disadvantage the matter of production of the vital documents was left in a state of uncertainty and he is not afforded opportunity to refresh his money with regard to the contents of the documents which have a bearing on his defence, it is difficult to resist the conclusion that there has been flagrant violation of the principles of natural justice.
6. It is true that no question of demanding production or inspection of documents can arise in terms of Rule 55 of the Classification Rules but I have no hesitation in holding that the facts and circumstances of this case and the principles of natural justice do cast a duty upon the respondent to specify and produce for inspection the documents asked for or such of them as are available, in order to enable the petitioner to defend himself properly against the charges levelled against him. In my view this is a case in which the respondent should not be allowed to proceed with the departmental enquiry without specification of the documents going to be produced at the hearing and without giving inspection thereof beforehand to the petitioner. See the case of -- 'London Corporation v. Cox', (1867) 2 H. L. 239 at 276 and Halstaury Vol. 9, page 819, paragraph 1395 which principle received the approval of K.C. Das Gupta and P.N. Mookerjee JJ. in the case of -- 'Purnendu Narain Bagchi v. R.S. Trivedi'. The learned Judges were inclined to take the view that Prohibition Quo Usque is not obsolete but can be issued in a case where production and inspection of documents is refused to a person called upon to show cause in a departmental enquiry. The learned Judges, however, did not deliver any judgment on the point. See 'Appeal No. 37 of 1952 O. S.'.
7. It was contended by the learned Advocate-General that as there is no question of dismissal or removal of the petitioner in this case, Rule 55 has no application. But it is clear from the correspondence of the Government officials that according to the practice obtaining in the department concerned, the procedure prescribed in Rule 55 is followed in departmental enquiry of the nature with which this case is concerned. There is, therefore, no substance in the contention of the learned Advocate General.
8. In my judgment this petition should succeed in part. The Rule is made absolute to the extent that the respondents are prohibited from proceeding with the departmental enquiry without specifying the particular documents which are going to be produced at the hearing and without giving inspection thereof to the petitioner beforehand.
9. I make no order as to costs.