S. Venkatachalam vs The Divisional Engineer, Telegraph, Salem Dn. and another

Ramakrishnan, J.—The petitioner in this writ petition is one Venkatachalam, who employed as a watch man in the office of the Sub-

Divisional Officer, Telephones, Erode. There was a report received from the railway authorities by his superior officer that on 28th July 1964 the

petitioner had travelled in a passenger train between Salam and Erode, using for that purpose a duty card pass issued to a lineman of the telegraphs

Department. This report from the railway authorities also mentioned the fact that at the time the petitioner was apprehended by the travelling ticket

examiner, he had given a statement admitting the fact that he had travelled on the pass of another person and claimed to be forgiven. However, the

railway authorities appear to have surcharged his by asking him to pay the railway fare all the way from Jolarpet to Erode, viz, Rs. 7-8-0, which he

paid. A preliminary enquiry was held about the petitioner''s conduct on 11th August, 1964, when he gave an elaborate statement of which the main

features appear to be that there was enmity between him and another lineman Vaiyapuri had that this Vaiyapuri had brought the ticket examiner to

him when he was in the railway station with a platform ticket and he was compelled by the T.T.E. to write out a statement under coercion

containing the admission that he had travelled on the railway on somebody else''s pass, but that the whole allegation of such misuse of the railway

pass was fictitious. The authorities did not accept this explanation and a formal charge was framed against the petitioner and he was asked also to

give particulars of his witnesses. He did not give any list of witnesses for examination. But he appeared at the enquiry. He was not questioned to

begin with by way of explanation to the charge. But what happened at the enquiry was that the presenting officer, that is the person who presents

the case of the department before the enquiring authority in respect of the charge (vide the Central Civil Services (Classification, Control and

Appeal) Rules 1957, rule 15, sub rule-6) cross examined him at length, and this was followed by the enquiry officer cross-examining the petitioner

at some length. In reply to these questions in cross-examination the petitioner appears to have a struck to his version given on 11th August, 1964,

at the preliminary enquiry that the statement which he gave to the ticket examiner was not given voluntarily and that in fact he did not misuse the

pass but that the case was foisted against him. But the enquiry officer who was also the punishing officer did not accept this explanation, found him

guilty of the charge of misusing railway pass of another subordinate and removed him from service. He appealed to the higher authority, that is the

Divisional Engineer, Telegraphs, Salem Division, first respondent in this writ petition. The authority confirmed the punishment of removal and

dismissed the appeal. Aggrieved against this order the petitioner has filed this writ petition under Art 296 of the Constitution for the issue of a writ

of certiorari.

The main point urged by the learned counsel appearing for the writ petitioner is that the enquiry held by the second respondent, Sub-Divisional

officer, Telephone, who was the enquiring as well as the punishing authority, did not comply with the principles of natural justice. I am inclined to

agree with this argument for the following reasons. A reference to the order of the appellate authority, first respondent, gives a succinct and clear

account of what has happed in this case. I shall start with that account for the purpose of finding out whether the requirements of natural justice

have been satisfied in this case or not.

The appellate authority states:

The whole case against the appellant is based on the statement given by him in his own handwriting to the Travelling Ticket Examiner and the

report of the T.T.E. in this regard to the D.C.S. Olavakot through TTI SA on 31st July, 1965. These two fundamental records were made

available to the appellant throughout the disciplinary proceedings and if only he had felt the necessity for having the TTE examined in his favour, it

was open to him to have demanded it at any stage in the disciplinary proceedings, vis, at the time of submitting the initial explanation, during the

enquiry or before giving his final defence with reference to the show cause notice Having failed in this respect, and without indicating what he would

be eliciting from the T.T.E. at any cross-examination, I am unable to hold that he (the appellant) has anything serious about the non-examination,

but merely pointing out a probable omission. I hold that the recorded materials are sufficient enough to prove the guilt of the appellant and his

present plea regarding the non-examination of witnesses as well as non-production of the railway duty card pass at the enquiry is only an after-

thought and cannot hold water.

To this finding the appellate authority has also supplemented the following:

The appellant himself has admitted during the disciplinary proceedings that he cannot say that the railway official bare ill-will towards him. Such

being the case, I dismiss the plea that the said railway official (TTE) misused his official position to oblige Sri Vaiyapurai lineman (enemy of the

appellant) by giving trouble to the appellant.

The above would show that no witnesses were orally examined to support the charge, but the entire case against the appellant was based on

two documents--(1) his own statement containing an admission was given to the travelling ticket examiner when the allegation was mad that he had

travelled on somebody else''s pass and (2) the report of the T.T.E., to his superior railway officer D.C.S. Olavakot, giving an account of what

happened at the railway station when the petitioner was apprehended which travelling with somebody else''s pass. The plea of the appellant to his

own departmental superiors both at the time of the preliminary enquiry on 11th August, 1964 and at the time of the subsequent formal enquiry after

charge was framed, was that the first document, namely, the statement which he is alleged to have given before the T.T.E. was not a voluntary

statement, but was extracted out of him by the T.T.E. at the instigation of his enemy, the lineman Vaiyapuri. In other words, at the departmental

enquiry when he was told that he was to be dealt with on a formal charge, he had consistently denied the truth of the earlier statement he had given

to the travelling ticket examiner, and put forward the version that it was obtained on coercion. In such circumstances, it is clear that the principles

of natural justice made it necessary that the T.T.E. should be examined orally by the enquiring authority not merely for the purpose of giving an

opportunity to the petitioner to make out his case of coercion, but also to satisfy the authority himself that the ticket examiner''s version about what

happened at the station has to be accepted as true and probable. In regard to the second document, there is the report of the T.T.E. it cannot be

substantive evidence against the petitioner, especially when he has attacked the version given in that report about the entire circumstances of the

incidents at the railway station. That also made it necessary that the T.T.E''s oral evidence as to what happened at the station, should have been

made available to the petitioner at the departmental enquiry to enable him to contradict the version of the T.T.E. and show whether his own version

of what happened is probable and should be accepted. The reasoning given by the appellate authority in the second part of his order that the

petitioner had admitted that the railway official did not bear any ill-will towards him will not suffice, in my opinion, to make good the aforesaid

defects in the enquiry, and that the two earlier documents are not sufficient to bring home the guilt of the petitioner, without the oral testimony of

T.T.E. with opportunity to the petitioner to challenge it in cross-examination.

A brief reference to the decision cited at the Bar which also, in my opinion, would go to support the view I have set forth above, can be made at

this stage. In Associated Cement v. Their Workmen (1963) 2 L.L.J. 396, the Supreme Court at page 400 has emphasised that in domestic

enquiries the employer should take steps first to lead evidence against the workman charged and give an opportunity to the workman to cross-

examine the said evidence and that it is not fair in domestic enquiries that at the very commencement of the enquiry, the employee should be closely

cross-examined even before any other evidence is led against him. In Jagadish Prasad v. State of Madhya Bharat A.I.R., 1961 S.C. 1070 the

Supreme Court after referring to the previous statement of the delinquent officer, where he had substantially admitted his guilt, observed at page

1073, that ""It is necessary to remember that the previous enquiry was not directed against the appellant as such, and he was certainly not in the

position of an accused in the said enquiry"". In such a case, the Supreme Court observed, ""even if the appellant had made statements which

amounted to admissions, it is open to doubt whether he could be removed from service on the strength of the alleged admissions without holding a

formal enquiry as required by the rules"". No doubt, in this case, a formal enquiry was held. But at that enquiry only a prior statement of his

amounting to admission which he challenged as obtained by coercion, and a prior report made by the T.T.E. behind his back were tendered as

material evidence against him without being supplemented by an oral enquiry.

In Central Bank of India Ltd. Vs. Karunamoy Banerjee, the facts were that an employee had admitted his guilt at all stages and there was no

objection raised at the domestic enquiry to the enquiring officer (management) to put questions to the employee by way of cross-examination,

when an attack was made on the above procedure subsequently, the Supreme Court held that since the employee had admitted his guilt at all

stages, the questions put to him by the management were only intended to give an opportunity to explain his conduct or to refer to circumstances.

But in the present case the question at the departmental enquiry put to the petitioner both by the presenting officer as well as by the enquiring

officer were not of the above kind. They were intended to shake his plea of not guilty in defence to the charge.

In Employers of Firestone Tyre and Rubber Co. Ltd. Vs. Their Workmen, , the Supreme Court adopted similar view that while the general rule

is that the delinquent should not be asked anything before all the evidence against him is led, ""the situation is different where the accusation is based

on a matter of record or the facts are admitted"". The questions in that case were put against the delinquent clerk to find out if there were any

extenuating circumstances before formal evidence was led to complete the picture of his guilt. In that case, the Supreme Court quoted with

approval its own earlier view in Central Bank of India Ltd. Vs. Karunamoy Banerjee, .

The above principles when applied to the present case, show that the petitioner had no been afforded a reasonable opportunity of meeting the

charge and that the principles of natural justice have been violated. The petition is allowed and a writ of certiorari will issue as prayed for. It will be

open to the respondents-authorities, if they are so advised, to hold a fresh enquiry after complying with the requirements of natural justice and in

accordance with rules. No order as to costs.