- (1.) The petitioner, while employed as Sadar Sub-divisional Officer, Hooghly was served with a charge sheet dated November 9, 1966 by the Chief Secretary to the Government of West Bengal, Respondent No. 1, with a statement of allegations stating that it appeared he had been guilty of showing undue favour to one Sk. Abdur Rahim of Bhaira in abuse of office power in that (I) (a) during 1964 he manipulated matters so that most of the paddy secured by persuation were made over for milling to Joypur Rice Mill, of which Sk. Abdur Rahim was one the proprietors, in deprivation of about thirty miles in the locality: (b) he issued instructions to Block Development Officer to make over the paddy to the said mill (c) No steps were take to ensure that the paddy rice did not find way to black market. (II) While a criminal case against Joypur Rice Mill was pending in his Court he went to a sight seeing trip to Kashmir with Sk. Abdur Rahim. (III) Special favour was shown to Sk. Abdur Rahim. (III) Special favour was shown to Sk. Abdur Rahim by grant a Food Grain Licence. The petitioner was further informed that S.P. Ghosh W.B.H.J.S. (retd.) was appointed the Enquiry Officer to hold enquiry into the charges and he was required to file his statement of defence and make his representation before the said officer and to show cause why the penalty of dismissal or any penalty under Rule 49 of the Civil Services (Classification, Control and Appeal) Rules should not be imposed on him. The petitioner filed his written statement wherein all material allegations were denied and, in particular, it was stated that Sk. Abdur Rahim had nothing to do with the null during 1964 and no favour was shown by allotment of paddy to the mill and further no instruction were issued to the Block Development Officers to make over the paddy to the said mill. On March 3, 1967 the petitioner was supplied with a list of documents relied by Government and also a list of witnesses to be examined in the enquiry and he was also informed of the date of hearing. The petitioner made a representation on March 21, 1967 stating that if some of the witnesses had made any statement to police he should have been shown such statements. The petitioner also called for some documents and by his further representation dated April 4, 1967 made a grievance that he was never shown any statement of the Chief Inspector Sen Gupta dated July 21, 1966 which was thus evidently antedated. At the enquiry a large number of witness were examined on either side and number of documents were exhibited. The Enquiry Officer submitted his report finding him guilty on all charges and by Order No. 127-GAC (Vig) dated February 1969, the Chief Secretary informed the petitioner that it was found that all charges except No. I(c) were proved against him and the Governor had been pleased, in consultation with the Public Service Commission, "to decide and order under rule 19(1) of the Civil Services (Classification, Control and Appeal) Rules that you (i.e. the petitioner) be severely censured and that this be recorded in your Confidential Character Roll." Immediately thereafter on the said day the following order was passed: "Order No. 128-GAC (Vig) Dated Calcutta the 5th February 1969. Whereas, you, Shri Dhirendra Ghosh, a Deputy Magistrate and Deputy Magistrate and Deputy Collector, now employed as Assistant Secretary, Finance Department attained the age of fifty years on the 31st July, 1967. And whereas, the Governor who is the appointing authority in respect of your service under Government has, under clause (i) of the proviso to sub-rule (a) of rule 75 of the West Bengal Service Rules, Part I (hereinafter referred to as the said rules), decided that you shall not continue in such service beyond the 31st August, 1969. Now therefore, in pursuance of Clause (I) of the proviso to sub-rule (a) of Rule 75 of the said rules, the Governor is pleased hereby to give you notice that you, Shri Dhirendra Mohan Ghosh, who attained the age of fifty years on the 31st July, 1967 shall retire from service under Government on and from the 1st September, 1969. By Order of the Governor M.M. Basu, Chief Secretary."
(2.) The petitioner contended that the above order was really an order of removal from service, passed mechanically on the report of the Enquiry Officer without a second enquiry or a second show cause notice. It was further contended that the decision was not honestly formed, and was mala fide, and being a penalty, it was incumbent that the procedure laid down in Article 311(2) of the Constitution should have been followed. The petitioner also contended that proceeding before the Enquiry Office was vitiated by the failure to observe the principles of natural justice as the statement of three witnesses referred to in his representation was used adversely against him and he had no opportunity of contradiction the same.
(3.) On these allegations and conditions the petitioner moved this Court in Constitutional Writ Jurisdiction for issuance of appropriate writs fore bearing the respondent from giving effect to the said two orders and also for quashing the same. The application however was dismissed by B. C. Mitra, J. on March 26, 1969. An appeal was preferred against this order and the appellate court by its judgment dated July 7, 1970 set aside the said order and issued a rule in terms of the prayer making it returnable before the appropriate bench.;