JUDGMENT D.K. Seth, J.
1. The respondent No. 2 was subjected to an enquiry pursuant to a charge sheet dated 3rd January, 1975 and was found guilty of the charges upon such enquiry and was accordingly removed from service by an order dated 30th May, 1997. The said order of removal was challenged in Claim Case No. 161/V/R/M1/81. An appeal was preferred against the said order, which was rejected by an order dated 29th April, 78. Thereafter, the petitioner had moved the U.P. Public Services Tribunal (V), Lucknow in Claim No. 161/V/R/MI/81. By an order dated 16th July, 87, the claim petition was allowed and the impugned order dated 30th May, 97 removing the petitioner from service, was declared illegal and invalid and was set aside and it was declared that the petitioner would be deemed to be in continuous service while granting liberty to hold fresh disciplinary proceedings against him.
2. Mr. S.K. Sharma, Counsel for the petitioner employer challenged the said order of the Tribunal on four grounds (i) first that the finding of the Tribunal that the disciplinary authority was biased cannot be sustained on the basis of the material on record inasmuch as the charge sheet was issued by one Mr. Berthwal, who was never involved in the subsequent enquiry or inflictment of punishment. The enquiry was conducted by G.S. Tandon, while the punishment was inflicted by Sri J.D. Singh. Therefore, according to him, mere use of the expression while formulating the charges that the petitioner was held guilty of the charges levelled against him while issuing the charge sheet, cannot be taken to be a ground for vitiating the whole enquiry, since the officer signing the charge sheet was never involved in the disciplinary proceedings, (ii) His second contention was that the finding with regard to the fact that the documents, which were asked for by the delinquent, was not supplied, cannot be sustained in view of the finding in the enquiry report itself that all the documents, which were asked for by the delinquent were supplied to him and that he had submitted his explanation on 12th January, 76 whereas from record, it appears that all the letters by which the delinquent asked for the supply of the documents, were addressed prior to January, 76. The last such letter was addressed on 29th September, 75. That apart, according to him, documents which were asked for in the letter dated 29th September, 75, except the third one, the two other documents were attached to the charge sheet. He contends further that the third document was a letter issued by the authority on 17th December, 73, whereas the charges related to a period prior to November, 1972. Therefore, there cannot be any nexus with the subsequent letter coupled with the fact that the delinquent had never explained as to how the said letter is relevant. Therefore, according to him, the said finding cannot be sustained and is perverse, (iii) His third contention was that the two witnesses, who were sought to be summoned by the delinquent, were not defence witnesses as would appear from his own reply dated 12th of October, 76, where he had asked for summoning those witnesses for cross- examination. While one of the witnesses Mr. S,S. Mehrotra was allowed to be cross-examined, the other two witnesses Sarvashri R,N. Dwivedi and Mohd. Nazar were not examined by the prosecution and, therefore, there was no scope for summoning them for cross-examination. Since they were not cited as defence witnesses, therefore, non-summoning of those witnesses cannot vitiated the proceedings on these grounds (iv). The last ground was that the finding of the Tribunal for non-mention of the witnesses to be examined, in the chergesheet had vitiated the enquiry proceedings. From the record, he points out, which are Annexures C.A. 12 and C.A. 13 respectively that the witnesses who were sought to be examined by the prosecution were mentioned in the said two letters. The letter dated 18th October, 76 was issued 11 days ahead of the date fixed when the three witnesses mentioned in the said letter were sought to be examined while the letter dated 30th October, 96 was issued 9 days before. The three witnesses mentioned in the said letter were sought to be examined requiring the delinquent to cross-examine the witnesses while presenting him on the date fixed. Referring to the report of the enquiry, Mr. Sharma contends that all those witnesses were cross-examined by the delinquent. He further contends that these witnesses were the witnesses who were examined in the preliminary enquiry, whose names find place in the preliminary enquiry itself. The report whereof had already been supplied to the delinquent wherefrom the delinquent were award of the names of the witnesses that might be examined against him, He further points out that none of the witnesses except those witnesses who were examined in the preliminary enquiry, were examined in the enquiry itself. Therefore, it cannot be said that the respondent had suffered any prejudice and did not have sufficient opportunity to cross-examine those witnesses. He submits that the finding of the Tribunal and the consequential order passed by the learned Tribunal cannot be sustained and is wholly perverse. He had taken me through the various records, copies whereof have been annexed with the writ petition and the counter affidavit as well as the order of the learned Tribunal.
3. Mr. Satya Prakash has also led me through various records as well as the order of the Tribunal. He points out that the letter contained item No. 3 of the letter dated 29th September, 75 being Annexure C.A. 10, was never supplied as it appears from the record itself. He further contends that from his letters dated 10th January, 75, 13th March, 75 and 22nd April, 75, it appears that those documents were not supplied to him. It appears that the documents mentioned in serial Nos. 1 and 2 were not supplied, which fact has been reiterated by the delinquent in his very letter as well as in his reply which he had submitted on 12th October, 76. He further contends that the disciplinary authority was biased right from the beginning which is reflected in the issue of the charge sheet, where it was pointed out that he was held guilty of the charges, which bias was carried through the disciplinary proceedings though there might be change of personnel. But in fact, it will not affect the bias which was in the initiation of the proceedings. According to him, the very initiation of the proceedings being biased the subsequent proceedings cannot be sustained since the charge sheet itself being a biased one, no proceeding can be carried on the basis of the said charge sheet. He also contends that the witnesses which he wanted to cross-examine, were in fact defence witnesses, who as a lay-man had described as to cross-examine, which was in fact a prayer for examination as his defence witness. Therefore, much stress should not be laid on the use of the expression cross-examination. Thus non-summoning of those two witnesses had vitiated the proceedings. He further contends that in absence of the names of the witnesses in the charge sheet, the delinquent has suffered prejudice and was never aware as to what oral evidence would be used against him. The time given by means of Annexure C.A. 12 and C.A. 13 were too short for preparing himself for cross-examination of those witnesses. Thus, according to him, the order passed by the Tribunal, is well-reasoned and supported by law and cannot be assailed.
4. I have heard both the learned Counsel at length. In respect of the first point taken by Mr. Sharma about the question of bias, it appears that Rule 55 of the U.P. Civil Services (Classification, Control & Appeal) Rules, 1930 provides that the grounds on which it is proposed to take action shall be reduced in the form of definite charge or charges which shall be communicated to the person charged and which shall be so clear and precise as to give sufficient indication to the charged government servant of the facts and circumstances against him. Thus in the charge sheet, the charges were formulated. The charge sheet begins with the opening word that the delinquent was charged or. Now the use of the expression "that you are held guilty of the charges" coupled with the fact that various documents were attached with the charge sheet indicaing that those might be used as evidence against him in the enquiry following the charge sheet and giving opportunity to contest the disciplinary proceedings itself, shows that it was in fact a charge sheet which has been wrongly coined. But then if the enquiry was conducted by the same officer, who had signed the charge sheet, against whom bias has been alleged or if he would have inflicted the punishment. Then such allegation could have been sustained. Admittedly, in the present case, the enquiry was conducted by a different person and the punishment was inflicted by some other different person. The fact remains that the officer signing the charge sheet Mr. Berthwal was never involved in the enquiry proceeding that followed. The Tribunal had also come to a finding that the officer who had signed the charge sheet was biased. No where the Tribunal had come to a finding that the officer conducting the enquiry or inflicing the punishment was baised. He has also not come to a finding that the bias of the officer issuing the charge sheet vitiates the initiation of the proceeding itself. The charge sheet has indicated that an enquiry would be held and in fact whole enquiry has been gone into and opportunity had been given.
5. Therefore, the bias even if there be any, in the issue of the charge sheet, the same cannot will vitiate the enquiry unless there are sufficient materials to show that the enquiry proceedings itself suffers from bias, after the issue of the chargesheet. The charge sheet is only issued in terms of the Rule 55, which required an intimation of the charges to be given to the delinquent in order to enable him to meet the charges. Even if there is any bias on the part of the officer issuing the charge sheet, the same cannot vitiate the proceedings if the enquiry is conducted by a person other than the persons signing a charge sheet. There is nothing on the record to show that the bias of the officer signing the charge sheet has been transmitted to or carried on by the officer holding the enquiry or inflicting the punishment. In absence of any such finding, the finding of the Tribunal cannot be supported with regard to the first point as has been contended by Mr. Sharma,
6. Mr. Sharma had cited a decision in the case of Arum Kumar Mitra v. Central Vigilance Commission, F.L.R. 1987, Vol. 55 S.C. 5. It was a Single Judge decision of the Calcutta High Court where it was held that the charge sheet was to tell the accused as to what is supposed or alleged to have been done. The charges framed only state the facts which are essential for the delinquent to know to explain his position and to prove his innocence and in the departmental proceedings he would have sufficient opportunity to explain his position and prove his innocence. The departmental proceedings following the charge sheet is a quasi-judicial proceeding and in such proceedings, a reasonable opportunity is given to the delinquent to defend himself to cross- examine prosecution witness. The closed mind enquiry therefore is restricted in the respect or rare cases when the issue of the charge sheet itself is challenged at the threshold. In this case the petitioner did not challenge the charge sheet at the threshold and had participated in the proceeding and the bias having not been carried through after the issue of the charge sheet, the question of vitiating the delinquent proceedings by issue of such charge sheet, cannot be sustained after the same was not taken before the enquiry proceeding was commenced. There is no thing alleged that or found that the enquiry proceeding was borne by malafide.
7. So far as the second question that the documents were not supplied was not find support from the records inasmuch as the Tribunal had overlooked the enquiry report, where it has been mentioned specifically that he (delinquent) requested the copies of several documents, which were supplied to him. The delinquent had submitted his explanation on 12th October, 76. He also referred in his explanation that the documents mentioned in letters dated 10th January, 75, 13th March, 75 and 2nd April, 75 were not supplied to him whereas in his letter dated 29th September, 75, he mentions only three documents out of which first and second documents were attached along with the charge sheet, while the third documents, which is a letter dated 17th December, 73, does not appear to have been supplied to him. But the fact has to be read with the finding of the enquiry report, where he mentions in his report that all the documents asked for, were supplied. Then again the letter dated 17th December, 73 the other document which was issued after the date which was irrelevant for the charges. Nothing has been shown as to how such a documents is relevant for the purpose. The Tribunal did not come to any finding with regard thereto. There is nothing to show on the bais of the finding of the enquiry report that all the documents were supplied and any of the documents were not supplied having regard to the fact that two of the documents which were attached along with the charge sheet, were not mentioned even in his reply that those documents were not attached to the charge sheet or the charge sheet was supplied without those documents. In absence of any such assertion in the explanation, which is Annexure C.A. 7, it is not possible to come to a different finding that the documents were not supplied to the delinquent. The Tribunal does not appear to have considered these materials and it altogether overlooked the relevant materials on which he could have arrived at such finding. Therefore, the finding with regard to the second point as raised by Mr. Sharma, given by the Tribunal also cannot be sustained since it suffers from infirmity or non-consideration or omission to consider the material record to arrive at such a finding.
8. The next contention of Mr. Sharma that two of the defence witnesses were not called for had prejudiced the petitioner. It does not seem to have been properly dealt with by the learned Tribunal inasmuch the said two witnesses were mentioned in the explanation dated 12th October, 76 where the delinquent had requested for calling those witnesses for cross-examination Apparently it appears that Sri S.S. Mehrotra was cross-examined by the delinquent, whereas the other witnesses Sarvashri R.N. Dwivedi and Mohd. Nazar were not called on by the prosecution. It those witnesses are not called on by the prosecution, there is on scope for cross-examining those witnesses. The contention of Mr. Satya Prakash that the word "cross-examination" was a mistaken expression does not find support from the subsequent conduct of the delinquent. After the explanation, there is nothing to show that the delinquent had ever asked for summoning those two witnesses as his defence witnesses for examination. On the other hand, in the enquiry report, it has been point out that in his statement, the delinquent did not like to examine any defence witness. Even if he had intended to call them as defence witnesses, he could have explained that despite his attempt, these witnesses were not attending the enquiry proceedings and, therefore, it was necessary to summon them for attending the enquiry as defence witnesses. The delinquent had sufficient opportunity because the enquiry had continued for considerable time, during which he could have made another attempt to summon those witnesses as before witnesses. In absence of any such material it is very difficult to accept the proposition that the expression "cross-examination" Was a mistaken expression and these two witnesses were sought to be called on as defence witnesses. At the same time the said two witnesses were called on along with another witness, who was cross-examined by the delinquent and there was no distinction made in between the three persons, who were sought to be summoned by the delinquent to show that first one is prosecution witness, while the others are defence witnesses. Therefore, the finding of the Tribunal with regard to the said point, cannot be sustained.
9. The last contention was that the names of those witnesses, who were examined in the enquiry having not been mentioned in the charge sheet, it had vitiated the enquiry since the petitioner had no opportunity to cross-examine those witnesses can not be sustained. From Annexures C.A 12 and C.A. 13, it appears that the names of all those witnesses, who were examined in the enquiry, were mentioned in the said two letters, which were issued to the delinquent asking him to appear in the enquiry proceedings and produce his witnesses in defence, indicating that there witnesses would be examined by the prosecution. Similarly, in the letter dated 30th October, 76 the delinquent was asked to produce his witnesses and to appear in the enquiry proceedings, in which the said three witnesses would be examined. These notices were issued at least a little over than one week before the date fixed. Therefore, it cannot be said that the delinquent did not have sufficient opportunity to cross-examine those witnesses, who were sought to be examined in the enquiry proceedings. Then again the fact remains that the delinquent had cross-examined all these witnesses and that all the witnesses were examined in the preliminary enquiry, the report whereof was sent to the delinquent, which was sufficient intimation to him as to what are the materials that might be used against and who would be the witness in the proceedings. Coupled with this situation, it does not appear that omission to mention the names in the charge sheet, has in any way vitiated the proceedings particularly when the copy of the report of the preliminary enquiry was attached with the charge sheet itself, in which itself the names of the witnesses were very much mentioned in the said preliminary report.
10. Then again Rule 55 does not provide that the names of the witnesses are to be disclosed in the charge sheet itself. The disclosure of the names of the witnesses and the evidence is for the purpose to allow sufficient opportunity to the delinquent. If it appears from the proceedings that sufficient opportunity was given to the delinquent omission to mention the witness in the charge sheet cannot vitiate the whole proceedings. The delinquent had participated in the proceedings and had cross-examined all these witnesses. It is not a case that the delinquent was not given opportunity to cross-examine those witnesses or that he had suffered any prejudice in the facts and circumstances of the case. Thus the findings of the Tribunal in this regard also cannot be sustained.
11. In that view of the matter, the order of the Tribunal is, hereby, quashed. Let a certiorari do issued accordingly.
12. In the result, the writ petition is this allowed. There will, however, be no order as to costs.