Decided on October 28,1960

UNION OF INDIA Respondents


SARJOO PROSAD, C. J. - (1.)IN this application the petitioner Madan Singh prays for writ of certiorari or any other appropriate writ for quashing the order passed by the Divisional Mechanical Engineer, Northern Railway removing the petitioner from service.
(2.)THE petitioner was serving as a Carriage Oiler. On 12th February, 1958 he was charge sheeted for misconduct arising out of a complaint for insubordination and indiscipline lodged by his immediate superior Shri Radhe Shyam, the Train Examiner, Utterlai. THE allegation against him was that on receipt of an order for leave from the office of the Divisional Mechanical Engineer, Jodhpur, Shri Madan Singh approached Shri Radhe Shyam, the Train Examiner, Utterlai Siding to be allowed to go on leave on 7th January, 1958. THE Train Examiner pointed out that he could not be spared until the arrival of his relief. This enraged Shri Madan Singh who adopted a threatening attitude in order to force the Train Examiner to allow him leave; and inspite of the attempts of the Train Examiner to pacify him he went on rebuking the former in the presence of his staff. He was about to assault the Train Examiner but the staff on the spot intervened and took him away.
The Train Examiner reported the whole incident to the Divisional Mechanical Engineer for necessary action and, on receipt of the report, the Divisional Mechanical Engineer suspended the petitioner by his order dated 31. 1. 1958 and issued a charge sheet against him on 12. 2. 58. It appears that after his suspension the petitioner submitted a written apology to the Divisional Mechanical Engineer in which he stated that whatever improper language he had used against the Train Examiner might be excused and that he be allowed to return to duty and the contemplated enquiry against him should not be undertaken. A departmental enquiry against the petitioner was, however, started at the instance of the Divisional Mechanical Engineer, vide his order dated 25th April, 1958, and an enquiry committee consisting of two persons, one the Carriage Wagon Inspector and the other a Loco Inspector was formed in which the former was appointed as the Chairman of the Committee. These were two senior subordinate officers of the Divisonal Mechanical Engineer. The L. I. Shri Soni, however, could not participate in the work of the committee and in his place one Shri Laxmanlal, T. I. was appointed as a member of the committee. The Inquiry Committee after having examined certain witnesses including the persons named by the petitioner came to a finding that the charges had been proved and that the petitioner was guilty of insubordination and indiscipline. The report of the enquiry committee then appears to have been considered by the Divisional Mechanical Engineer who passed the order of removal against the petitioner. The petitioner preferred an appeal against this order to the Divisional Superintendent who dismissed his appeal, adding that there were also previous complaints against him. in which he had been warned from time to time, and a revision application to the General Manager also failed. The petitioner has, therefore presented this application for the writ in question.

Mr. Singhvi appearing on behalf of the petitioner concedes that there has been no violation of Article 311 of the Constitution and that the order of removal passed against the petitioner has been passed by a competent authority. He has, however, urged two points for our consideration. Firstly, he submits that the enquiry committee was not appointed by the Divisional Mechanical Engineer, who was the only competent authority to constitute the Enquiry committee, and that not having been done the whole enquiry conducted by the members of the committee was without jurisdiction and no action could be taken on the report submitted by that committee. Secondly it is contended that the committee did not observe the principles of natural justice in refusing to examine some of the witnesses in the presence of the petitioner, thereby depriving him of the right to cross examine the said witnesses. Having examined the record carefully we are inclined to think that both these submissions are ill founded.

So far as the constitution of the Enquiry committee goes, in his own petition the petitioner has stated that the departmental enquiry was instituted against the petitioner by the Divisional Mechanical Engineer. He, however, relies upon the affidavit of the respondents wherein it is stated that since the Divisional Mechanical Engineer was on leave on the relevant date the committee could not be appointed by him. The order appointing the committee purports to be signed by the Divisional Mechanical Engineer. Even assuming that the permanent incumbent was absent on that date it appears that his assistant was in his absence working as the Divisional Mechanical Engineer. We have nothing to show that this constitution of the committee was without the authority of the Divisional Mechanical Engineer, because if that were so, the officer would not have directed the removal of the petitioner on the report of that body and would have constituted another enquiry committee before he took any action on that report. It is true that originally Mr. Soni was one of the members of the committee but when owing to indisposition of his son as it appears from his affidavit, he was unable to attend, Mr. Laxman Lal was appointed as a member of the committee in his place. This appointment was again made by the Assistant Divisional Mechanical Engineer who was then acting for his superior and was duly authorised by him; and no exception appears to have been taken by the Divisional Mechanical Engineer himself to the appointment of Mr. Laxmanlal as member of the Committee.

The learned counsel for the petitioner has drawn our attention to Rule 1707 of the Indian Railway Establishment Code Vol. I which contains the discipline and appeal rules. Clause (b) of the rule provides that the charge sheet with the explanation furnished by the railway servant shall be considered by the officer competent under these rules to pass an order of dismissal who unless he takes steps for holding a departmental enquiry shall thereupon pass such orders as he thinks fit. Similarly in clause (c) also it is contemplated that the officer in question may cause a departmental enquiry to be held in the circumstances mentioned in the clause. The language, therefore, appears to be wide enough to cover a case of the kind where the appointment is made even by the Assistant Divisional Mechanical Engineer on the direction of his superior. \ The words "take steps for holding a departmental enquiry" or "cause a departmental enquiry to be held" would be wide enough to cover such a case. After all the committee was only a recommendatory body. All that it is required to do under the rule, is to hold a departmental enquiry in the matter and to submit a report and then final action has to be taken by the officer who is competent under the rules to pass the order of removal or dismissal. It cannot, therefore, be said that even if the committee was constituted by the Assistant Divisional Mechanical Engineer the report of the committee would be valueless and could not be acted upon by the Divisional Mechanical Engineer who had the final authority to accept or is reject it. In this case the Divisional Mechanical Engineer having considered the report passed the order in question, directing the removal of the petitioner from service; and this order, therefore, which was passed by a competent authority could not be challenged before us merely on account of some irregulariy, if at all, in the constitution of the committee. We must, however make it clear that there is nothing to show in this case that there was any such irregularity in the constitution of the committee. Indeed the committee appears to have been constituted at the instance of the Divisional Mechanical Engineer, whether it be the permanent incumbent or the person acting at the relevant time.

The next contention of Mr. Singhvi is equally groundless. The report shows that 3 persons; Banshilal Fitter, Ugamsingh Oiler and Chandra Prakash Khalasi were named by the petitioner himself as witnesses in his defence. The report further shows that Ugamsingh and Banshilal were reluctant to give evidence in the presence of the petitioner, because they considered that Madansingh might take retaliatory action against them if they stated anything against him and that he would try to harass them. For these reasons the members of the committee were of opinion that since these witnesses were named by the petitioner himself for his defence there would not be any question of cross examining them and they recorded the statements of these witnesses, not in the presence of the petitioner. This they appear to have been entitled to do both under rule 1707 clause (d) and rule 42 of the Discipline and Appeal Rules. The proviso to the Rule says that for special reasons to be recorded in writing, the enquiry officer may refuse to call any witness suggested by the railway servant and record evidence of any witness otherwise than in the presence of the railway servant. The members in their report have specifically referred to this rule and have given reasons for not examining those witnesses in the presence of the accused. In the circumstances we do not see how there has been any violation of the rules in question or of any principles of natural justice. The Enquiry committee was not bound by any elaborate rules of procedure as in the case of a civil or criminal trial. So long as it observes the broad principles of natural justice it can not be suggested that the procedure was illegal or that petitioner had been deprived of a reasonable opportunity of being heard by the enquiry committee. All that Rule 1707 provides is that he should be given all reasonable facilities for the conduct of his defence including the cross examination of witnesses. In this case he refused to cross examine the other witnesses examined by the committee, who were all examined in his presence; and except those witnesses who were examined and cited in his defence, he had full opportunity of cross-examining others. The committee has also referred to the fact that earlier the petitioner had tendered an apology accepting his guilt but in his explanation he made a different statement.

Mr. Singhvi has relied on the decision in Rex Vs. Bodmin JJ. (1) where on the facts of that case the examination of witness by the Tribunal in the absence of the accused was held to be unjustified and the conviction was quashed. The facts in that case were quite different and one has to remember that it was a Judicial Tribunal and the order of the Tribunal convicting the accused was final. It is not for us in an application under Art. 226 of the Constitution to review the procedure adopted by the Enquiry Committee or to interfere with that procedure. All that we require to see is whether or not the procedure adopted by the committee was consistent with the essentials of a fair trial and has not unduly prejudiced the petitioner. We do not think that any such thing has happened in this case. The petitioner had cited those witnesses in his own defence and the committee has given reasons for examining those witnesses in the absence of the petitioner; and found that even on their evidence the charges against the petitioner were sustained. There is, therefore, no merit whatsoever in either of the grounds urged by the petitioner.

Before we close this judgment we would refer to certain affidavits which have been submitted on behalf of the witnesses, Banshilal and Ugam Singh in this Court. In these affidavits they have now denied what they had stated before the Enquiry committee. The chairman of the Enquiry committee Mr. Walters has also filed an affidavit supporting the correctness of the evidence recorded by him of these witnesses. It appears from the record of the committee that the deposition of each of these witnesses, which was recorded in English, was read over to them and each page of their respective deposition has been signed by them in token of its correctness. We have no reason to disbelieve the statement of Mr. Walters that the above statements recorded by the committee were correctly recorded and we feel satisfied that these witnesses have subsequently gone back on their statements and presented false affidavits in this court. We, therefore direct Banshilal and Ugam Singh to show cause why they should not be prosecuted for swearing and presenting false affidavits in this court.

(3.)THE application of the petitioner for the reasons stated above is rejected with costs; hearing fee Rs. 50/ -. .

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