- (1.) THE petitioner railway employee challenges in this petition the order of removal passed against him by the respondent No. 1 on January 17, 1966 and confirmed in appeal by respondent No. 2 on August 20, 1966. Mr. Zaveri challenges this order on three grounds :- (1) That there was no inquiry held in the presence of the petitioner and, therefore, the inquiry violates Art. 311 (2) as well as the Statutory Rules 1712 (2), (2) that there was no personal hearing given even at the second stage of inquiry even though it was asked for; (3) that the order was not justified on merits as extraneous consideration has influenced the authority. As Mr. Zaveri should succeed on the first point, it would not be necessary to go into the others contentions of Mr. Zaveri. There is no dispute that no witness was examined in the presence of the petitioner at the inquiry before the competent authority. What was done was that prior statements were read over to the petitioner and he asked to cross-examine those witness who were kept present at the time of the inquiry. There is some dispute to whether the witness were present but we proceed on the assumption that the witness were kept present, because in question No. 8 in the inquiry it was in terms mentioned that the original statements were shown and he asked whether he wanted to cross-examine any of these persons who were present there. The petitioner stated in reply that he had seen statements of those persons who had even given evidence against him and he did not know why they deposed against him. He did not require them for cross-examination.
(2.) MR. Bhatt vehemently relied upon the decision of the Supreme Court in State of Mysore v. Shiva Basappa, [1964 - I L. L. J. 24]; A. I. R. 1963 S. C. 375 at p. 379. Their Lordships distinguished the decision in Verma's case, A. I. R. 1957 S. C. 882, where it was held that the rules of natural justice require that a party should have an opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence and he should be given an opportunity to cross-examine witnesses examined by the parties, and no material should be relied upon against him without being given an opportunity of explaining it. While explaining the observation "that the evidence of the opponent should be taken in his presence" their Lordships observe that in an inquiry held by a quasi-judicial body the rules of natural justice have to be observed. When the evidence was oral such rules would require that normally examinations of the witnesses should in its entirety take place before the party charged who would have the full opportunity to cross-examine him.
(3.) THEIR Lordships further held that the position is the same when a witness is called the statement given previously by him behind the back of the parties is put to him and admitted in evidence, a copy thereof is given to the party, and he is given an opportunity to cross-examine him. To require in that case that the contents of the previous statement should be repeated by the witness word by word, and sentence by sentence, is to insist on bare technicalities; and rules of natural justice are matters not of form but of substance. They are sufficiently complied with when previous statements given by witness are read over to them, marked on their admission, copies thereof given to the person charged, and he is given an opportunity to cross-examine them. Their Lordships had also pointed out Phulbari Tea Estate v. Its Workmen, [1959 - II L. L. J. 663], where the admission in evidence of the prior statements was held to be no evidence in consonance with the principles of natural justice on the ground that during the enquiry the statements were brought on record but they were not put to the witnesses who were present nor had the copies thereof been given to the workmen. Finally, their Lordships pointed out at page 379 (of A. I. R.) that the purpose of examination in the presence of a party, against whom an enquiry is made, is sufficiently achieved when a witness who has given a prior statement is recalled, that statement is put to him, and made known to the opposite party and the witness is tendered for cross-examination by that party. Their Lordship held that the procedure adopted was no violation of the rules of natural justice. Their Lordships also held that clause (8) of S. 545 of the Bombay Police Manual could not be held to be bad as contravening the rules of natural justice.;