Mahitosh Majumdar, J. - (1.) This writ application is directed against the charge sheet, as contained in Annexure 'C' to the writ application, together with the statement of articles of charges. The petitioner replied to the charge-sheet. Thereafter, the petitioner asked for certain documents by which articles of charges were proposed to be sustained against the petitioner. The proceeding thereafter commenced, constituted and concluded. Before holding of the enquiry, certain orders which were not shown to the petitioner were passed by the concerned Minister, the Disciplinary Authority recorded certain findings. There is also an endorsement that another allegation has been enquired into by the Vigilance Commission against the petitioner Smt. Santi Chakravarti, although the said allegation does not find place in the charge-sheet or it has been made known to the petitioner. Many references made in the proceeding file, the xerox copies of which are annexed to the supplementary affidavit are not produce before this Court. Sri. M.R. Konar recorded the statement on 3.9.77 which is quoted below:- "In compliance with order of Minister-in Charge, Animal Husbandry & Very. Service Deptt conveyed under. No 386/A/AH&VS/77 dated 29.8.77 a detailed report of the case of Sm. Chakraborty under suspension is furnished below:- Suspecting some malpractice was going in Depot No. Suravi-4 a surprise check by a team on vigilance duty was initiated. It wad detected that malpractice of selling milk was going on. A copy of report dated 23.5.77 is enclosed. On the basis of prima facie charge of malpractice reported by the vigilance team all the employees involved had been placed under suspension w.e.f the date of service of the order issued on 16.8.77. The representation of Sm. Santi Chakraborty is returned herewith in original."
(2.) Before the issuance of the charge-sheet, the presenting ( ) officer requested Sri Sukumar Chatterjee Malik Inspector, to appear before the Enquiry Authority but he did not appear. Thereafter, the Sales Officer by an order dated 15.7.80 informed the Administrative Officer. The order sheets are incomplete. The relevant documents as regards the order sheet are not produced before me. Although Mr. Dutt, the learned Advocate for the respondents, took adjournments on that ground on two diverse dates. Only two exhibits were relied, although exhibit no 2 was not proved by the van staff. On the basis of the proceeding thus concluded the Enquiry Officer submitted a report. It appears that the Minister-in-Charge passed a number of orders. Thereafter, the Disciplinary Authority also passed certain orders before the holding of the enquiry. The said orders go to the root of the entire matter.
(3.) Mr. L. K. Gupta, the learned Advocate appearing on behalf of the petitioner, challenged the entire proceeding on the ground that the enquiring officer recorded that the Milk Inspector and other staff accompanying Sri Subimal Mukherjee refused to attend the enquiry at Central Dairy for certain reasons which were not quite Intelligible. The enquiry proceeded, according to Mr. Gupta, on the evidence of only one witness, Sri Subimal Mukherjee, Sales Officer who was the enquiring officer investigating into the charges of the van staff in the same transaction. But the report of the enquiring officer, viz. Sri Subimal Mukherjee as regards the other staff was referred to in Charge No. 1. The statement of the van staff was proved by Sri Subimal Mukherjee, without adducing he evidence of the van staff Sri Subimal Mukherjee, according to Mr. Gupta, Could not prove the exhibit no 2. The Enquiring Offices proceeded in a very perfunctory manner by observing that the petitioner does not come with any proof. The charge is to be proved by the prosecution not by the delinquent. The petitioner in his cross-examination specifically challenged that the checking staff arrived after delivery. Excepting Sri Subimal Mukherjee who is the investigating officer, no other inspecting staff wat examined although such challenge was thrown by the petitioner. Charge No. I in a very strange and unwarranted manner was sought to be proved by the enquiring officer by holding inter alia that the charge was deemed to have been proved. The deeming provision cannot be applied in establishing the charge. The expression 'deem' involves element of fictional aspect. It has also to be held that the enquiry officer himself held that there was a main lacuna in the case lies in there being only one witness. The others have for some obscure reasons, preferred not to turn up and thereafter the enquiring officer has no business to say that there is breach of discipline Sri Subimal Mukherjee, while presenting the esse, sought to add a new charge, that is, charge or corruption. The charge of corruption from references to the charges does not find place. In the charge sheet Mr. Gupta on that aspect severely criticized the action of the enquiry officer. The van staff were not examined. The report as referred to in a very manner was treated to be not relevant but that is referred to The Charge no. III without any evidence or any assumption of evidence was proved on the ground that the petitioner admitted the charge. The admission of a charge cannot be treated as a conclusive proof of guilt as held by the Supreme Court in the case of K. S. Srinivasan v. Union of India, reported in AIR 1958 SC 419.;