Sinha, J. - (1.) The facts in this case are shortly as follows: Prior to the partition, the petitioner had been working in East Bengal in different departments under the Government of Bengal since 1941. After the partition, on or about the 19th January 1948, the petitioner was appointed as a Lower Division Assistant in the office of the Registrar of Orphans under the Education Directorate of the Government of West Bengal. A copy of the letter of appointment is Annexure 'X(1)' to the further affidavit filed by Sri Tamash Ranjan Roy, dated the 18th June 1957. It appears from that letter that the appointing authority is the Orphanage Officer and Registrar of Orphans of the Government of West Bengal. It is admitted in the petition that the Orphanage and Registration Section is a section of the Education Directorate of West Bengal. My attention has been drawn to a notification, being West Bengal Services (Revision of Pay) Rules, 1950, which was published in the Calcutta Gazette, Extraordinary, on the 13th June 1950. It clearly shows that the Orphanage Section is a section of the Office of the Director of Public Instruction. Since the 7th June 1949, the petitioner was working as a clerk in the Banipur State Orphanage Camp. On or about the 15th July 1952, the petitioner was placed under suspension, and on the 16th August 1952, he was served with a charge-sheet. The charges are somewhat serious and consist of falsification of accounts, using as genuine forged documents and so forth. In respect thereof, two criminal cases were filed against the petitioner, being Criminal Case No. C/1067 of 1952 under Sections 471 and 477-A of the Indian Penal Code and Case No. 1087 of 1953 under Sections 409 and 467 of the Indian Penal Code. On the 18th March 1954, he was acquitted in the Criminal Case No. C/1067 of 1952. On the 29th July 1954, another departmental charge-sheet was served upon him. On the 29th December 1954, the petitioner was discharged in the second Criminal Case No. 1087 of 1953. On the 23rd August 1955, a third charge-sheet was served, and a fresh departmental enquiry was commenced. The petitioner replied to the charges and a departmental enquiry was held. It must be stated however that the petitioner asked for an adjournment which was not granted and the departmental enquiry was held ex partc. The enquiring officer Tamas Ranjan Roy made a re-part on the 20th October 1955, a copy whereof is annexure 'E' to the petition. He found the delinquent guilty of the charges, In this report there are two infirmities. Firstly, the enquiring officer, without any reference to the delinquent, consulted the Public Prosecutor and obtained his opinion. It is true that the opinion asked for was on a point of law, and the opinion is set out in the report. The Public Prosecutor gave an opinion that although he was acquitted in one case and discharged in another, there was no bar in punishing the delinquent with dismissal. The opinion concluded as follows :- "As a result of the departmental enquiry, Sri Manmatha Nath Ghosh may be dismissed, and an order of dismissal cannot be regarded as a punishment for an offence punishable under particular section of the Indian Penal Code."
(2.) The enquiring officer is not the punishing authority and it is not clear as to what was the urgency in obtaining this opinion. I think however that such an opinion ought not to have been utilised without making it known to the delinquent, and that the objection of the petitioner that the form of the opinion was likely to prejudice him is well-founded. A lenient view however may be taken of it, because it is nothing more than a legal opinion which incidentally happens to be the correct one. But there is another infirmity in the report, which in my opinion is fatal. In the charges that were preferred, reference was made to certain records. If the enquiring authority looked into such records, that would be justifiable, but in his report he says that not only he looked into such records, but certain unspecified records as well, for the purpose of arriving at his conclusions. He says in his report as follows:- "The charges brought against Sri Ghosh have been verified by me from the records of Barasat Sub-Treasury, of the Office of the Principal, Banipur Basic Training College, and from the original bills lying with the Deputy Accountant General, West Bengal, as also from certain records of this office."
(3.) The last mentioned records have not been specified and the petitioner was never told as to what records were looked into. Regard being had to the seriousness of the charges, this was Something which has greatly prejudiced the petitioner, because against this report it is impossible to file an appeal, inasmuch as the petitioner does not know and nobody knows as to what records were looked into, and what was contained therein. Pursuant to the report the petitioner was dismissed by an order dated the 20th December 1955, copy whereof is annexure 'F' to the petition. It is against this order of dismissal that this Rule has been directed. Mr. Das Gupta on behalf of the petitioner has taken two points. The first is that the petitioner was dismissed by an authority contrary to the provisions of the Bengal Subordinate Service's (Discipline and Appeal) Rules, 1936. The second point is that the report referred to the opinion of the Public Prosecutor and to certain unspecified records and this has rendered the report of the enquiry bad and consequently the order of dismissal based thereon cannot stand.;