Rabindra Nath Pyne, J. - (1.) This appeal came up for final disposal before this Bench under circumstances which may be stated. Biswanath Mukherjee made an application under Article 226 of the Constitution, challenging the order dated February 6, 1968 passed by the Collector of Customs whereby Biswanath Mukherjee was removed from service. In his said application Biswanath Mukherjee impleaded (1) Collector of Customs, Calcutta. (2) M.L. Khunger, (3) Deputy Inspector General of Police, Central Bureau of Investigation, Special Police Establishment and (4) Union of India as party respondents. In this petition Biswanath Mukherjee took a number of grounds and a rule nisi was issued by Ghose J. The said application of Biswanath came up for final disposal before T.K. Basu, J. who decided only one point and on that ground alone, the learned Judge made the Rule absolute. The only point on which the learned Judge decided the whole application was whether the charge sheet was defective or not, leaving the other points undecided. T.K. Basu, J. hat recorded in his judgment delivered on the 13th April, 1970. "Although several grounds have been taken challenging the order and elaborate arguments were advanced by Mr. Somnath Chatterjee in support of these contentions, this application in my view, ought to succeed on a short point". The learned Judge held that the charge sheet in the present case was defective and in that view of the matter the learned Judge allowed the petition of Biswanath Mukherjee, made the Rule absolute and quashed the order. The learned Judge has further observed in his judgment"Mr. Chatterjee further contended that the petitioner had been found guilty of the charge of benami which was not in the charge sheet. He also submitted that the findings of the Enquiring Officer were perverse as being based on no evidence and on mere conjectures and surmises. He also made a grievance of the fact that certain documents were considered by the Enquiring Officer behind the back of the petitioner. His further contention was that the onus of proof was misplaced by the disciplinary authority as a result of a confusion between the law regarding disciplinary proceedings and proceedings under section 178A of the Sea Customs Act. 1878.
(2.) In view of my finding that the charge sheet is defective as being in violation of the principles of natural justice thereby vitiating the entire proceedings it is not necessary for me to express any opinion on the merits of these contentions. Against the judgment and order of the learned trial Judge, this appeal was preferred. The appeal came up for hearing before the Division Bench consisting of P.B. Mukharji, C.J. and B.C. Mitra, J. The Appellate Court in its judgment reported in AIR 1972 Calcutta 401 (The Collector of Custom and others v. Biswanath Mukherjee) has noted "The learned Judge expressly mentions four other points which were argued before him but on which he expressed no opinion. These are : (1) The petitioner had been found guilty of a charge of 'benami' which was not in the charge sheet, (2) the findings of the Eenquiring Officer were perverse as being based on no evidence and on mere conjectures and surmises, (3) certain documents were considered by the Enquiring officer behind the back of the petitioner and (4) the onus of proof was misplaced by the disciplinary authority as a result of a confusion between the law regarding disciplinary proceedings and proceedings under section 178A of the Sea Customs Act, 1878."
(3.) The Appellate Court held that in the absence of any finding on certain other questions it was not possible to come to any conclusion whether the charge sheet was defective or not and the Appellate Court remanded the case to the learned Judge for his finding and conclusion on four points set out in the judgment of the Appellate Court. The Appellate Court in its judgment observed"The proper way, in our view, of interpreting a charge sheet of this nature in disciplinary proceedings is not lo be technically and legalistically strict as in the case of a charge sheet in criminal proceedings. This principle is well known. It should be fairly and reasonably interpreted in a common sense way to -see that there is a plain statement of the thing complained of as wrong so that the party complained against may be put on his defence to meet the allegation". After referring to the observations contained in the decision in the case of In Federal Trade Commission v. Gratz 253 U.S. 421 the Appellate Court proceeded to observe "Now a question of fair interpretation of a charge sheet in a disciplinary proceeding depends on the context of facts in which the charge is laid. The two words 'found' and 'giving rise to the presumption' are not, in our judgment, enough by themselves to make the charge in this case in limine bad and void on the ground of violation of the principles of natural justice. The word 'found' is a general word and it will depend on the context of the situation whether that expression means a bias or conclusion of the mind when the charge sheet shows that the Officer is found to be in possession of assets disproportionate to his known source of income'. Secondly, the words 'giving rise to the presumption' cannot also be conclusive in this particular context of facts because we find on examination of the records that no presumption in fact was drawn and that it was the employing authorities who led the evidence and there was no misplacing of onus of proof and there was cross-examination by the petitioner of the evidence led by the Customs authority. It was only after the Customs Authorities had led their evidence and there was such cross-examination that the petitioner led his evidence. Therefore, in fact there was no misplacement of onus and nothing was presumed against the petitioner. This aspect of the problem was not considered by the learned Judge in his decision but these considerations reflect on the question of how the charge should be read in the context.;