Ihar Dass vs Union of India and Others

R.S. Narula, J.—Ishar Das petitioner, who was a Railway guard, was served with a charge-sheet dated 19th March, 1983. With the charge-sheet, a copy of the statement of allegations as Well as a copy of the extract from Urdu Weekly ''Lalkar'', on the basis of which the charges were framed, were attached. Before the service of that charge-sheet a preliminary ex-parte inquiry had been held in which evidence had been recorded. After reference to the relevant Railway rerecords by him, I have been told by the learned counsel for the respondent that same of the witnesses examined against the petitioner inr eluded Gurcharan Singh, Khilari Ram, Raj Kumar etc. On March 23, 1963, the petitioner submitted an application to the Inquiry Officer, copy of which is annexure A-2 to the Writ Petition. In the said application, the petitioner applied for being furnished with various documents including copies of statements recorded before the fact-finding Inquiry Officer on the ground that those copies "were essential in the preparation of his adequate defence without which he felt, the chances of his defence were very much vitiated-" He added an alternative request in the said application to the effect that if the requisite copies could not be supplied to him, he might be given an opportunity to inspect the relevant records and to take extracts thereof. By communication dated April 3, 1963; the Divisional Superintendent, Ferozepore, informed the petitioner that he was allowed to inspect the records in his office on any working day. The correctness of the contents of annexure A-4 to the writ petition dated the 8th April, 1963 has not been denied in the written statement but has rather been admitted in paragraph 6 thereof. Therein, it was stated by the petitioner that he was denied the opportunity to take down complete copies of the statements of the witnesses including the questions and answers of the witnesses recorded in the proceedings of the preliminary inquiry.

At the departmental inquiry, evidence of various witnesses was recorded against the petitioner. The Inquiry Officer submitted his report of which a copy has been placed on this record by the petitioner as annexure A-8 to the Writ petition. After detailed discussion of the evidence recorded before him, the Inquiry Officer recorded his finding to the folio wing effect :

After giving careful consideration to the evidence for and against the charges against Shri Ishar Das Guard and for reasons discussed in the preceding paragraphs the undersigned has come to the conclusion that the following charges against Shri Ishar Das Guard stand proved:

(1) On 28th September, 1962 while working 4 PBJ he allowed one lady passenger at Baijnath Paprola to travel in 1st Class compartment for Pathankot without arranging purchase of her ticket or issue of a Guard''s certificate thereby causing wilful loss of Railway revenue.

(2) At Kopar Lahar where the same lady on checking was found without a ticket, he issued C.M. 109 No. 523825, dated 28th September, 1962 for the above lady certifying her starting station Kangra instead of actual station Baijnath Paprola and paid the fare, and then scored out the word ''Lady'' in column "received from Name" in E.F.T. No. 793905 made out for the without ticket lady in order to cover up his fault under item (1) above." The first finding reproduced above was based on the appreciation of the evidence of various witnesses including that of Gurcharan Singh, Khilari Ram, Raj Kumar etc.

On a consideration of the report of the Inquiry Officer, the Chief Commercial Superintendent, Northern Railway served a show-cause notice on the petitioner, copy of which is annexure A-9 to the Writ petition. A copy of the report of the Inquiry Officer was served on the petitioner alongwith the said notice. The said notice distinctly mentioned that the General Manager Northern Railway, who is admittedly the competent disciplinary authority for the petitioner, agreed with the findings of the Inquiry Officer who had held that the two charges were proved. The petitioner submitted a representation in reply to the show-cause notice and after a consideration of the same, the impugned order, dated 3rd July, 1964, copy of which is annexure A-10, was passed by the General Manager removing the petitioner from service. It is this order of the petitioner''s removal from service which is sought to be set aside in this Writ Petition.

I may mention at this stage that according to the petitioner, fee had submitted a departmental appeal against the impugned order to the Railway Board on 16th August, 1964 vide postal acknowledgment due receipt, annexure A-12, and had followed it up by various reminders sent by registered past of which acknowledgments have been produced and marked by the petitioner as A-13 to A-16. In the written statement of the respondents, it has been stated that no such appeal was received by the Railway Board or by the Divisional Superintendent and, therefore, the question of deciding any such appeal did not arise. Shri Partap Singh, counsel for the Railway Administration has made it clear that the said averment has been made on the basis that no proper appeal, in any case, was preferred by the petitioner for transmission to the Railway Board and that even in the office of the Railway Board, no appeal has been traced which could be treated as such and could be heard and disposed of. At one time, I was inclined to dismiss this Writ petition on the ground that it was premature and that the petitioner must first exhaust his alternative remedy of a departmental appeal. In view, "however, of the denial of the Administration about any appeal having been filed by the petitioner and the time of such an appeal having expired, I consider that this case falls within the writ jurisdiction of this Court as held by the Supreme Court in Union of India (UOI) Vs. T.R. Varma, more so because the departmental appeal has ceased to be an efficacious remedy which might still be available to the petitioner.

At the hearing of the Writ petition, Shri Partap Singh, learned counsel for the Railway Administration has raised before me three preliminary objections against the maintainability of this writ petition. The first is the one referred to above regarding the alternative remedy by way of filing a departmental appeal. The second aspect of the same objection is that the petitioner should, in a case like this, have approached the ordinary Civil Courts of the land in a regular suit. Attention of the Court has been invited by the learned counsel for the Railway Administration to the law laid down in this respect by the Supreme Court in Thansingh Nathmal and Others Vs. A. Mazid, Superintendent of Taxes, . There is no quarrel with the proposition of law laid down in that case. In Chetan Dass v. State of Punjab C.W. No. 1552 of 1965, Civil Writ No. 1552 of 1965 decided on 13th July, 1965, a Division Bench of this Court has held that though the jurisdiction of this Court under Article 226 of the Constitution is not fettered by any such consideration as that of a alternative remedy, it is one of the things which must weigh with the Court in the exercise of its writ jurisdiction. As the questions involved in the instant case are pure and patent questions of law and do not involve any question requiring any elaborate inquiry, I consider that a suit is not an equally efficacious alternative remedy for the petitioner to adopt.

The second preliminary objection raised by the learned counsel for the Railway Administration is that the petition is very much belated in as much as it was filed on 16th November, 1964 impugning the order passed in July, 1964. I do not consider that in the circumstances of this case, about four months'' delay in impugning the order of the petitioner''s removal from service amounts to such an inordinate delay which might disentitle the petitioner to invoke this Courts'' jurisdiction under Article 226. If the time spent by the petitioner in his preferring the alleged departmental appeal and trying to obtain a decision on it by reminding the Railway Board again and again is taken into account, there is no delay at all. Postal Acknowledgment Due receipts having been produced by the petitioner, it was for the Railway Boord to produce the communications which were received under those acknowledgments. In the absence of such production, I have to presume that the petitioner''s allegation in this respect is correct. This does not, however, mean that the communication sent by the petitioner amounted to a proper appeal which the Railway Board was bound to consider. The stand of the learned counsel for the Railway Board may be correct that the communications were not treated as an appeal, as they did not amount to the same. Bet that as it may, this is not a case of unexplained inordinate laches disentitling the petitioner to claim relief under Article 226 of the Constitution. The third preliminary objection urged by Shri Partap Singh learned counsel for the Railway Administration will be dealt with at its proper stage. The objection is to the jurisdiction, of this Court to go behind findings of fact recorded by the Inquiry Officer and agreed to by the competent Punishing Authority.

Shri Rajinder Sachar, learned counsel for the petitioner, urged four points in support of the Writ petition. It was firstly contended by the learned counsel that the entire inquiry proceedings are vitiated by the fact that the Inquiry Officer himself acted as prosecutor as well as Judge and this involved the violation of principles of rules of natural justice. I am not inclined to agree with this contention. In departmental disciplinary proceedings, it is certainly not necessary that there should be a separate prosecutor and in the nature of things, no objection could be taken to an Inquiry Officer himself getting and gathering all the material against the accused officer so long as he conforms to the judicial norms and holds all the proceedings in the presence of the accused official and informs him of any material which he is likely to use against such an official. No such violation of rules of natural justice, has been pleaded or contended in this case. I, therefore, find no merit I in this argument of Mr. Sachar.

Secondly, it was urged that the provisions of rule 1713 of the Railway Establishment Code, Volume II, have been violated in this case. The said rule reads as follows:

The Disciplnary Authority shall, if it is not the Inquiring Authority, consider the record of the Inquiry and record its findings on each charge.

The contention is that the General Manager did not record his own independent findings on each of the two charges, which had been found to be proved against the petitioner by the Inquiry Officer. I have already reproduced the relevant part of the order of the competent punishing authority. It would be safe to reproduce the same in the words of the memorandum:

On a careful consideration of the report and in particular of the conclusions reached in respect of the charges framed against him (Shri Ishar Dass), the General Manager agrees with the findings of the Inquiry Officer and holds that the charges are proved." I think, these clear and unequivocal findings by the punishing authority to the effect that he himself held that charges proved, sufficiently satisfies the requirements of rule 1713 of the Indian Railway Establishment Code, Volume II and it was certainly not necessary for the punishing authority to say in so many words that he agreed with the findings on charge No. 1 and charge No. 2. It was suggested by the counsel that the authority should have stated why and how he had agreed with the findings of the Inquiry Officer. This is not the requirement of the rule. The second contention of the learned counsel, therefore, also fails.

The third argument advanced by the learned counsel for the petitioner is that the denial to furnish the requisite copies of the statements of the witnesses who had been examined against the petitioner at the preliminary inquiry and the denial to the petitioner of his right to copy the said statements verbatim amounts to a violation of the constitutional guarantee enshrined in Article 311(2) of the Constitution and that this amounts to not granting to the petitioner adequate opportunity to show cause why he should not be removed from service. The relevant facts in this respect have already been set out above and are not disputed. The reply of the respondents in this respect is contained in paragraph 4 of the written statement. The reply is that a complete copy of the fact-finding inquiry was not supplied with the charge sheet as it was not required by any law or rules. It is further stated in paragraph 5 of the written statement that the petitioner''s request for the supply of copies of the fact-finding inquiry complete with statements of witnesses examined at that stage was not acceded to as its supply was not obligatory under the rules. The contents of annexure A-4''.to the writ petition have been expressly admitted in paragraph 6 of the written statement. There is, therefore, no dispute about the facts involved in this contention. The fact remains that the petitioner had expressly applied for the copies of the statements of witnesses recorded at the preliminary stage and stated in so many words that he required the same for effectively defending this case. It is also not disputed, as stated above, that the supply of the said copies was expressly denied to the petitioner. It is equally clear from the communications referred to above that the petitioner was denied the opportunity to make verbatim copies of those statements himself. It is on these facts that the learned counsel relies on the judgment of the Supreme Court in State of Madhya Pradesh v. Chintaman Sadashiva Waishampayan AIR 1961 S.C. 1623. The relevant passage in that judgment reads as follows:

The first point is that the respondent should have been given a copy of the application on the strength of which the preliminary enquiry was started against him; and the second that the statements of Rajab Ali and Noor Bhai recorded by Mr. Ghatwal should have been supplied to him. In appreciating the significance of these points, it is necessary to recall the broad features of the evidence adduced against the respondent. In respect of each charge, evidence was given by the person who paid the money to Rajab Ali and Noor Bhai or one of them in order that it should be paid in turn to the respondent. Noruddin, son of Saoji Veerani, Noor Mohd., son of Hasham, and Kasim Bhai are the three witnesses who gave evidance in support of the three charges respectively. The first witness said that he had given in all Rs. 12,000 to Rajab Ali and Noor Bhai in three instalments of Rs. 3,000, Rs. 3,000 and Rs. 6,000. Similarly the second witness said that he had paid Rs. 11,000 to Rajab Ali and Noor Bhai by two instalments of Rs. 6,000, and Rs. 5,000 respectively and the third witness stated that he was arrested after the police action, and he was told that if he paid the respondent Rs. 5,000, he would be released, and so the money was paid. It is obvious that Rajab Ali and Noor Bhai are the principal witnesses against the respondent. It is equally clear from the findings recorded in the report itself that they collected far more than they are alleged to have paid to the respondent in two cases. In fact, the report says that the excess amount collected by these two witnesses had been quietly pocketed by them. Thus it was of very great importance for the defence to cross-examine these two witnesses and for that purpose the respondent wanted copies of their prior statements recorded by Mr. Ghatwal in his preliminary enquiry. It is difficult to understand how these statements could be regarded as secret papers, for that alone is the reason given for not supplying their copies to the respondent. Failure to supply the said copies to the respondent made it almost impossible for the respondent to submit the said two witnesses to an effective cross-examination; and that in substance deprived the respondent of a reasonable opportunity to meet the charge. That is the view taken by Sen and Bhutt. JJ. and we see no reason to interfere with it." The facts of that case relevant to the present issue are on all fours with those of the case before me. I am, therefore, inclined to agree with this argument of the learned counsel for the petitioner.

Shri Partap Singh has referred to a later passage in the same judgment which reads as follows:.

Mr. Kbaskalam has strenuously contended before us that in not supplying the copies of the documents asked for by the respondent. the enquiry officer was merely exercising his discretion, and as such it was not open to the High Court to consider the propriety or the validity of his decision. In support of this argument, he has referred us to the decision of the Patna High Court in Dr. Tribhuwan Nath Vs. The State of Bihar and Another, In that case, the public officer wanted to have a copy of the report made by the anti corruption department as a result of a confidential enquiry made by it against the said officer, and the enquiry officer had rejected his prayer when it was urged before the High Court that the failure to supply the copy of the said report constituted a serious infirmity in the enquiry and amounted thereby to a denial of a reasonable opportunity to the public officer, the High Court repelled the argument, and held that the officer was not entitled to a copy of the report unless that report formed part of the evidence before the Enquiry Commissioner and was relied upon by him. "When, however, the report was not at all exhibited in the case, nor was it referred to, nor relied upon by the Commissioner", said the High Court, "there was no meaning in contesting it, and consequently absence of opportunity to meet its contents involved no violation of constitutional provisions". In our opinion, this decision cannot assist the appellants'' case because, as we have already pointed out, the documents which the respondent wanted in the present case, were relevant and would have been of invaluable assistance to him in making his defence and cross-examining the witnesses, who gave evidence against him." It cannot be denied that when an order of dismissal passed against a public servant is challenged by him by a petition filed in the High Court under Article 226, it is for the High Court to consider whether the constitutional requirements of Article 311(2) have been satisfied or not. In such a case, it would be idle to contend that the infirmities on which the public officer relies flow from the exercise of discretion vested in the enquiry officer. The enquiry officer may have acted bona fide but that does not mean that the discretionary orders passed by him are final and conclusive. Whenever it is urged before the High Court that as a result of such orders, the public officer has been deprived of a reasonable opportunity, it would be open to the High Court to examine the matter and decide whether the requirements of Article 311(2) have been satisfied or not.

There is no quarrel with the proposition that an accused official in an enquiry is entitled to ask for copies of such documents, namely, any documents on which the department may rely against the official and copies of previous statements of witnesses who are intended to be produced against the official in order to enable the accused official concerned to effectively cross-examine those witnesses. The passage referred to by Shri Partap Singh refers to the first category of documents but the complaint in this writ petition relates to the second class of papers.

Shri Partap Singh has then referred to the judgment of the Madhya Pradesh High Court in Sharmanand Vs. Superintendent, Gun-Carriage Factory and Another, . In that case, it was held that the demand of the reports of officers who had made preliminary inquiries can very well be refused. It was observed that these inquiries were merely for the satisfaction of the authorities to find out what charges should be enquir�ed into. Their Lordships held that the reports of such inquiries are not considered at the time of the departmental enquiry and cannot be used by the opposite party for any purpose. It was, in these circumstances, that the Madhya Pradesh High Court held that the accused official could not make a grievance of the fact that the reports of the Inquiry Officer were not supplied to him and the copies of those reports could be refused if they were confidential or if their disclosure was against the public interest. There is no quarrel with the proposition of law laid down in that case. Nor does it go contrary to the judgment of the Supreme Court in Chintaman Sadashiva''s case. The grievance of the petitioner in this case is not for the non-supply of the report of the preliminary inquiry. The Madhya Pradesh High Court did not lay down that an accused official wis not entitled to obtain copies of the statements of the witnesses examined at a preliminary stage if he required the same for examining those witnesses at a confronted inquiry.

Shri Partap Singh has lastly relied on a certificate signed by the petitioner, copy of which has been filed as annexure ''RB'' to the written statement. The copy produced in the Court does not bear any date but the learned counsel states that the original certificate is dated 6th September. 1963. The certificate is in the following words:

Certified that during the course of D.A.R. Enquiry in case No. 215T/18/64/62 at Pathankot on 21/8, 22/8, 4/9. 5/9 and 6/9/63, we were given all due facilities e.g. examination of all relevant record, cross examination of prosecution witnesses and production of defence witnesses We are fully satisfied with the conduct of this enquiry as all the relevant rules have been observed. We do not want to produce the following witnesses who were earlier cited by us as defence witnesses:

Shri H.K. Sethi, Guard Pathonkot.

Shri Shankar Constable, GRP.

(Sd.) BAL KRISHAN, Guard Amritsar. Defence Counsel.

(Sd.) ISHAR DASS, Guard under suspension at Pathankot.

N.B.- We have also received the copies of statements of all prosecution and defence witnesses.

(Sd.) BAL KRISHAN, Guard Amritsar. Defence Counsel at Pathankot.

(Sd.) ISHAR DASS Guard under suspension at Pathankot.

Nowhere in this certificate has the petitioner stated that he has given up the claim for obtaining the copies of the statements by the non supply of which he was aggrieved If the relevant facts relating to this contention had been disputed by the Government, I might have held that the petitioner was stopped from making any such allegations, which he has now made. In view, however, of the fair and frank manner in which the Railway Administration has honestly admitted the relevant facts, no estoppel can be pleaded against the petitioner on account of this certificate.

A faint attempt was made on behalf of the counsel for the Railway Administration to suggest that it was not necessary to furnish copies of the statements to the petitioner as no Railway rules required this. As held by the Supreme Court in the aforesaid case, it is the principles of natural justice which require the copies to be supplied in order to comply with the mandatory provisions of Article 311(2) of the Constitution, This contention of Shri Sachar, therefore, succeeds and I bold that the impugned order is liable to be set aside on this short ground.

In fairness to the learned counsel for the petitioner, I must also notice the last point urged by him in support of the writ petition. It is contended by the learned counsel for the petitioner that the finding about the lady in question having entrained at Baijnath Paprola and not at Kangra is not based on any evidence at all. Shri Sachar has attempted to take me through the evidence to prove this negative aspect of the case. Shri Partap Singh, the learned counsel for the Bailway Administration read out various passages from the evidence of some witnesses which, according to him, amounted to clear and unequivocal evidence against the petitioner regarding the relevant allegation against him. In the circumstances of this case, it is not necessary for me to decide this point. If the Railway Administration wants to proceed afresh against the petitioner, it will be for the Inquiry Officer concerned to appraise the evidence. It has been repeatedly held that it is not for this Court I in exercise of its writ jurisdiction to reappraise the evidence recorded by the Enquiry Officer to determine whether his findings of fact are correct or not..

This petition, therefore, succeeds and the impugned order of petitioner''s removal from service is set aside. In the peculiar circumstances of the case, the parties are left to bear their own costs.