B.N. Banerjee, J.
1. The petitioner, Golam Rasul, was a driver of a motor vehicle under the Public Service Commission, Went Bengal. On 16 December 1958, the petitioner was charged with misconduct as hereinbelow set out:
'Whereas it appears that you, Golam Rasul, driver of car No. WBD 9798 of the Public Service Commission, West Bengal, were guilty of serious misconduct and dishonesty, in that you accompanied by Md Farouk, cleaner of the said oar, went to shed No. 9at 11-A, Free School Street, between 7 and 7-30 a.m. on Saturday. 22 November 1958, and again at about 8-30 a.m. on Tuesday, 25 November 1958. and removed without authority, permission or the knowledge of your superior officers a large number of blank examination answer books valued at nearly Rs. 500 from the inner room of shed No. 9.
Now, therefore, you are hereby directed to show cause within 15 days of the receipt of this memorandum why you should not be dismissed from service or other-wise suitably punished under Rule 7 of the Bengal Subordinate Services (Discipline and Appeal) Rules, 1936, for the said misconduct.
2. The enquiry into the said charge, however, did not proceed, because the petitioner was facing a criminal trial before a Presidency Magistrate, Calcutta, on a charge of theft of blank answer-papers. The learned Magistrate, however, discharged the petitioner on 29 January 1959, because no report from the investigating officer was forthcoming. On the same criminal charge, the petitioner and another person named Md. Farouk were again put to trial before Mr. S.K. Ganguly, Presidency Magistrate, but on 23 June 1959, the petitioner was acquitted of the charge by the labour Magistrate with the following observations:
I am perfectly convinced that the accused persons did not commit theft of any paper belonging to the Public Service Commission as alleged. Prosecution failed to establish the charge against the accused.
3. After his acquittal, the petitioner submitted an application before the Secretary of the Public Service Commission praying for disposal of the disciplinary proceeding against him in the light of the order of his acquittal passed by the criminal Court.
4. Thereupon, the petitioner was served with a fresh chargesheet, on 23 November 1959, which reads as follows:
Whereas it appears that yon Golam Rasul, driver of oar No. WBD 9798 of the Public Service Commission, West Bengal, were guilty of serious misconduct and dishonesty in that you accompanied by Md. Farouk, cleaner of the said car, went to shed No. 9 at 11-A, Free School Street, between 7 and 7-30 a.m. on Saturday, 22 November 1958, and again about 8-30 a.m. on Tuesday, 25 November 1958, and removed without authority, permission or the knowledge of your superior officers a large number of blank examination answer-books valued at nearly Rs. 500 from the inner room of shed No. 9;
And further, that you grossly abused your position as driver of the office oar by taking the oar surreptitiously and without authority to shed No. 9 at 11-A, Free School Street, between 7 and 7-30 a.m. on 22 November 1958 and at about 8-30 a.m. on 25 November 1958 and were thus guilty of serious misconduct;
Now, therefore, you are hereby directed to show cause within 15 days of the receipt of this memorandum why you should not be dismissed from service or otherwise suitably punished under Rule 7 of the Bengal Subordinate Services (Discipline and Appeal) Rules, 1936, for the said misconduct.
5. The petitioner showed cause to the charges in writing, on 16 December 1959, denying the charges levelled against him. At the end of his letter showing because he wrote as follows:
I claim a personal hearing and I repeat my prayer for being helped by a lawyer. If this is not allowed, my son-in-law- Sharfuddin Ahmed-may be permitted to assist me during the enquiry.
I beg to add that Sri J.C. Ghose, Deputy Secretary of the Public Service Commission, may kindly be asked to appear at the enquiry as I may have to examine him on certain matters.
6. On the basis of the charges levelled against the petitioner there was an enquiry held. The petitioner attended the enquiry in person but was not allowed to be assisted by a lawyer or by his son-in-law as prayed for. At the enquiry, however, Mr. J. C. Goose was not produced as a witness as the petitioner had prayed for. From the records produced by Mr. P.K. Banerjee, learned advocate for the opposite parties, it appears that the enquiring officer had made a reference to Mr. J. c. Ghose whether he would give evidence at the enquiry. Mr. Ghose gave the following reply:
After Rasul wants me as a witness, you will have to decide whether my evidence is material to his case and decide accordingly.
7. Curiously enough, the enquiring officer did not decide whether the evidence of Mr. Ghose would serve any purpose of the petitioner. He escaped deciding the point with the following observation in the report:
The Deputy Secretary has not been cited as a witness in the present depart-mental proceedings and as such I do not want to go into the action taken by him in this regard.
* * *The signatories of the log book for 25 November 1958 have not been cited as witnesses either by the prosecution or by the defence.
8. (Vide enquiry report, annexure H to the petition at pp. 30 and 33.)
9. It is difficult to understand why the enquiring officer observed like that. The copy of the log book which is annexure A to the petition bears the signature of Mr. J.C.Ghose, dated 25 November 1958. Mr. J. C. Ghose was himself the Deputy Secretary of thePublic Service Commission and the petitioner might have proved through him that the taking out of the oar was authorized by Mr. J. C. Ghose. He had cited Mr. Ghose as a witness at a very early stage. The enquring officer might have ascertained from the petitioner for what purpose Mr. Ghose was being cited as a witness. He, however, escaped his duty in this respect on the imaginary ground that Mr. Ghose had not been cited as a witness on behalf of the petitioner at all.
10. Be that as it may, the enquiring officer came to the following conclusion:
Taking these two facts into consideration-
(i) that the driver and cleaner were seen with the Public Service Commission car in early morning of 25 November 1958 at Free School Street buildings by more than one disinterested witnesses, and
(ii) that the mileage recorded in the log Book for the journeys undertaken on 26 November 1958 was in excess of actual Journeys performed it can be concluded that charge 2 and a part of charge 1 have been proved.
* * * *Bearing in mind the fact that there were unauthorized journeys on the morning of 26 November 1958 by the driver and cleaner to Free School Street buildings and that a large number of examination scripts were actually missing from the hall at that time, a strong suspicion must be there in regard to the accused persons' complicity in the matter of unauthorized removal of the scripts. In view, however, of the fact that
(i) none of the witnesses had deposed to have actually sees the accused bringing papers from shed No. 9,
(ii) none of the examination scripts (sic) and that
(iii) there is discrepancy as regards the time at which the car was found in the Free School Street buildings.
I am unable to go beyond stating that there is a compromising suspicion but no absolute proof of the first charge.
11. Although the enquiring officer had recommended a different punishment, the Secretary of the Public Service Commission called upon the petitioner to show cause why he should not be dismissed. After considering the cause shown by the petitioner the Secretary of the public Service Commission passed an order of his dismissal. The petitioner made an appeal against the order of dismissal before the Chairman of the Public Service Commission but that appeal also failed.
12. It is these circumstances that the petitioner has moved this Court, under Article 226of the Constitution, inter alia praying for the quashing of the order of Ms dismissal and for a mandate on the respondents not to give effect to the same.
13. Mr. Kalyanbrata Roy, learned advocate for the petitioner, urged several points in this rule. He contended, in the first place, that the petitioner had no knowledge of the English or the Bangalee language and the proceedings before the enquiring officer conducted in a language unknown to hint was not at all intelligible to him. It must, therefore, be held that he was not given fair opportunity of being heard. In the affidavit-in-opposition It is stated that the proceeding before the enquiring officer was conducted in the Bangalee language and the petitioner perfectly understood the same. I cannot make much of this grievance. At no stage of the enquiry before the enquiring officer did the petitioner make a grievance to the effect that he was unable to follow the language in which the proceeding was being conducted. It is too late for the petitioner to make that sort of grievance in this rule. Therefore, I repel the first branch of the argument advanced by Mr. Roy.
14. Mr. Roy contended, in the next place, that the petitioner was denied the opportunity of being assisted by a lawyer or by his son-in-law. The answer to this contention is to be found in Rule 26 of the Bengal Subordinate Services (Discipline and Appeal) Rules, 1936, which reads as follows:
Except under vary special circumstances no pleader or agent should be allowed to appear either on behalf of Government or the accused either before the officer who conducts the enquiry or any officer to whom appeal may be made.
15. Mr. Roy could not point out to me any special circumstance which could have justified assistance of a lawyer or of an agent, on behalf of the petitioner, at the enquiry. I, therefore, repel the second contention also.
16. Mr. Roy argued, in the next place, that the enquiring officer was considerably biased against the petitioner. No particulars of bias could be ascertained from the facts and circumstances pleaded in this rule and In the absence of that I do not hold that the enquiring officer was in any way biased against the petitioner. This argument advanced on behalf of the petitioner also falls.
17. Mr. Roy lastly argued that the petitioner was denied natural justice in the sense that he was not allowed to examine Mr. Ghose, who had been cited by him as a witness. This is the most substantial of all the points argued in this rule. The law is quite clear that if a witness, cited by a person facing a disciplinary enquiry, is under the control of the disciplinary authority and if the evidence of the witness is material for the purposes of the enquiry, then the authority should arrange for the production of that witness at the enquiry. In this case Mr. Ghose had been cited as a witness by the petitioner. Mr. Ghose was not unwilling to depose, if the enquiring officer found his examination necessary. Curiously' enough, the enquiring officer did, not come to any conclusion that the examination of Mr. Ghose should not be necessary because he was not a material witness. He, however, escaped examining Mr. Ghose on the untrue pretext that he had not been cited as a witness at all. The petitioner's grievance that at the enquiry he was not afforded proper opportunity to defend himself, in the sense that a witness cited by him was not examined, must succeed.
18. For the reasons aforesaid, I hold that neither the enquiry report nor the order imposing penalty on the petitioner nor the appellate order affirming the penalty should be sustained and must be quashed. I order, accordingly.
19. Let a writ of certiorari, accordingly, issue. I make it dear, however, that I have not expressed any opinion on the merits of the charges levelled against the petitioner or of the defence taken by the petitioner. The respondents disciplinary authorities shall now be at liberty to proceed afresh against the petitioner according to law, if they like, and impose on him a proper penalty if the charges are proved.
20. This rule is made absolute to the extent indicated above. The petitioner is entitled to costs in this rule which I assess at two gold mohurs.