Satyabrata Sinha, J. - (1.) This application is directed against an order of punishment dated 1st August, 1990 as also the order dated 24th October, 1991 passed by the appellant authority. The fact of the matter lies in a very narrow compass. The petitioner was a Diesel Mechanic in Loco maintenance under the Plant and Equipment Department of Haldia Dock Complex. According to the petitioner, authorities of the respondent were biased against him as he insisted that he should be designated as Diesel Mechanic Loco. A dispute arose which went to the Assistant Labour Commissioner, Central Calcutta in 1980 and the said dispute was settled. Allegedly in violation of the said settlement employees were transferred resulting in filing a writ application in this Court questioning such orders of transfer which was registered as C.O. 1304 (W)of 1983. The said writ application was dismissed as withdrawn. However, according to the petitioner, as he had filed a writ application, management became vindictive and two charges were framed against the petitioner that he snatched job book register and that he prevented a co-worker from doing his duties. The petitioner filed a show cause which having not been found to be satisfactory, a disciplinary proceeding was initiated. The disciplinary authority appointed an enquiry officer. The enquiry officer found the charges proved against the petitioner, but while doing so he held : "When this portion of Sri Rakshit's letter was pointed out by the Ld. P. O. to the Defence witness-2, who was all along giving deposition that there was no such incident happened at all on 31.12.83 and it was not possible for anybody to snatch the job booking register from Sri S.K. Basu due to the fact that the room was locked from inside during job booking, Sri Rakshit had to take the stand to substantiate his deposition so far given by him and the other witnesses produced in the instant enquiry by saying that his Ld. Advocate had wrongly drafted the aforesaid letter. I have no doubt to express my opinion that the witness was not telling the truth at that time. He had to fake the only ultimate course available before him to came out of the trap by saying that his learned Advocate has misrepresented the fact and wrongly translated Sri Rakshit's Bengali version into English. Sri Debaprasad Adhikary is a renounced pleader practising in the Calcutta High Court for a long time and he cannot make such type to mistake as stated by Sri Rakshit in his deposition. The type of argument on that particular paragraph of Sri Rakshit's letter to Dy. Chairman, could only be made if the register was ultimately handed over to Sri Salil Kr. Basu. Under the circumstances it is my considered opinion that the management witnesses were not telling the truth in the instant enquiry by saying that no such incident happened on 31.12.83 as reported by Sri S.K. Basu." It appears that the petitioner had issued letter in relation to the final charge stating that the job booking register was handed over to one Sudarsan Manna who in turn had handed over the same to S. K. Basu, P.W. 1. It appears from the report of the Enquiry Officer that despite the fact that the petitioner took a plea that his legal advisor had wrongly drafted the letter, disciplinary authority Inter alia, came to the conclusion that the said letter having been written by Sri D P. Adhikary (who incidentally has appeared on behalf of the petitioner before this Court), being an eminent counsel the petitioner has made false charges against his lawyer. As regard the second charge ; apart from the fact that Sri Gajendra Nath Adak who was allegedly prevented from doing his job was not examined although he had written a letter to the effect that the petitioner had not prevented him from joining the work taking into fact that the said letter appears a date 11.1.83, whereas the incident took place on 31.12.82, the said letter was found to be unreliable. The Enquiry Officer and the disciplinary authority have come to the conclusion that the petitioner has failed to prove that he is innocent in relation to the second charge. An appeal was preferred against the order of the disciplinary authority but the said appeal was dismissed. The petitioner filed a writ application in this Court questioning the said orders which was registered as C.O. 4943 (W) of 1991. The said writ application was dismissed by KalyaDtnoy Ganguly, J. on 23.4.91. The petitioner preferred an appeal against the said order which was marked as FMAT 1326 of 1991. By order dated 24th July, 1991, N.P. Singh C.J. (as His Lordship then was) speaking for the Division Bench, Inter alia, came to the conclusion that the appellant authority bad failed to perform his duty as contained in Rule 23 of the Calcutta Port Commissioners' Employees' (Discipline & Appeal) Rules, 1964. The matter was, therefore, directed to be remitted back to the appellate authority. Pursuant to the said direction, the appellant authority has passed the impugned order dated 24th October, 1991 as contained in Annexure "L" to the writ application. A bare perusal of the said order would show that the appellate authority has narrated fact of the matter only and recorded his findings in paragraph 10 of his order. He has not assigned any reason whatsoever in support of his finding. In fact clause (ii) of paragraph 10 reads thus- "(ii) There are two charges levelled against Shri Rakshit-the first one has been proved on the admission of the CSE himself-once before the Disciplinary Authority and then, in a writ petition supported by affidavit which was filed in the Hon'ble High Court at Calcutta. The second charge has been proved conclusively on the evidence produced by the management and the CSE was unable to produce any evidence to rebut it."
(2.) The appellate authority in terms of Rule 23 of the Appeal Rules was required to consider- "(2) In the case of an appeal against an order imposing any of the Penalties specified in rule 9, the appellate authority shall consider- (a) whether the procedure prescribed in these rules has been complied with, and, if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice ; (b) whether the findings are justified ; and (c) whether the penalty imposed in excessive, adequate or inadequate ; and pass orders- (i) setting aside, reducing confirming or enhancing the penalty ; or (ii) remitting the case to the authority which imposed the penalty or to any other authority with such directions as it may deem fit in the circumstances of the case. Provided that- (i) no order imposing an enhanced penalty shall be passed unless the appellant is given an opportunity of making any representation which he may wish to make against such enhanced penalty (ii) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (iv) to (vii) of rule 9, and an enquiry under rule 11 has not already been held in the case, the appellate authority shall, subject to the provisions of rule 14 itself hold such enquiry or direct that such enquiry be held and thereafter on consideration of the proceedings of such enquiry and after giving the appellant an opportunity of making any representation which he may wish to make against such penalty, such orders it may deem fit ; and (iii) the appellate authority shall not impose any enhanced penalty which neither such authority nor the authority which made the order appealed against is competent in the case to impose."
(3.) The petitioner before the appellate authority as also before us has, Inter alia, contended that the management had failed to examine the witnesses in respect of both the charges namely person from whom he allegedly snatched the job booking register and secondly is the workman who was prevented from joining his duties. They, according to the petitioner, were vital witnesses and their non-examination has vitiated the entire disciplinary proceeding. It was further the case of the petitioner that the concerned letter of the petitioner which was drafted by a lawyer was not considered in its proper perspective and the same in any event ought to have been considered in the light of the explanation given by the petitioner. Furthermore, the petitioner had urged that the representation of the counsel who had drafted the letter could not have been taken into consideration (or the purpose of fattening the guilty of the petitioner as allegedly be had made a wrong statement in relation to the lawyer in question namely A. P. Adhikari which was wholly irrelevant for the purpose of framing charges against the petitioner. So far as the second charge against the petitioner is concerned, it was contended that the concerned workman, Gajendra Naih Adh kari's letter evidently bore wrong date inasmuch instead and placed "11.1.84" he had wrongly written 11.1 83. Such mistake according to the learred counsel are normally committed in the month of January. Apart from the fact that the none of the aforementioned questions have been considered by the appellant authority, there cannot be any doubt that if the contentions of the petitioner are correct that he has been prejudiced by reason of non-examination of vital documents resulting in failure of justice, it is obligatory on the part of the appellate authority to show as to whether Enquiry Officer has made any attempt to scrutinise the said witness particularly in view of the fact that the witnesses were under the control of the management and they were the key witnesses. It is further evident from the impugned order that the appellant authority failed to take into consideration the question as to whether so-called admission made by the petitioner can be withdrawn or explained away. It was also obligatory on the part of the appellate authority to consider the evidence on record particularly in view of the findings of the Enquiry Officer himself that the case of the management had not been proved by reason of the evidence adduced by them. Apart therefrom, when this Court wanted to see letter allegedly written by the petitioner so as to enable this Court to come to conclusion as to whether any admission has been made therein by the petitioner or not, the same was not produced. An admission as is usually known is required to be taken in its entirety or not at all. Thus it was obligatory on the part of the appellate authority to decipher the purported admission made by the petitioner upon taking into consideration the entire letter coupled with the explanation offered by him. Subsequent explanation referred by the petitioner, might or might not have been accepted to the appellate authority but he was liable to assign some reasons in support of the said findings. So far the second charge is concerned, again no consideration has been made as regard the objection taken by the petitioner, as the appellate authority in view oi clause (b) or Sub-rule (2) of Rule 23 of the said Rules had a duty to consider as to whether the findings a rejustified. The petitioner as noticed hereinbefore, has raised a vital question that the Enquiry Officer and the Disciplinary authority had wrongly put the onus of proof upon him. Whether such wrong placement of onus of proof upon the petitioner was prejudicial to him also a point required to be considered by the appellant authority.;