Varadarajan, J. - (1.) These appeals by special leave have been filed against two judgments of a Division Bench of the Orissa High Court (C. A. No. 389 of 1981) arising out of the judgment in Original Jurisdiction Case No. 832 of 1977 and C. As. Nos. 2119-2121 of 1979 arising out of Original Jurisdiction Cases Nos. 1261 of 1976 and 833 and 834 of 1977 respectively. P. N. L. Das, the respondent in C. A. No. 389 of 1981 was appointed as a Booking Clerk in the South Eastern Railway in 1955, and had been duly confirmed at that post. M. B. Patnaik, the respondent in C. A. No. 2119 of 1979, was working as a confirmed Commercial Clerk at Khurda Road in the South Eastern Railway, having been appointed in January-February 1964. D. Sahu and S. C. Mitra, the respondents in C. As. Nos. 2020 and 2021 of 1979 respectively were working as confirmed Booking Clerks in the South Eastern Railway at about the same time. A departmental enquiry was initiated against these four respondents and three others, namely, Ch. N. Murty, B. S. N. Rao and B. Papa Rao in 1964 on the basis of a report of the Travelling Inspector of Accounts, and two charges were framed against them. The second charge was not pressed, and we are, therefore, concerned only with the disciplinary proceeding relating to the first charge, which led to the removal of all the seven persons from service. The first charge framed against these six persons was this:-"On 20th May, 1959, 47 third-class express tickets had been issued from Khurda Road to Howrah for a total fare of Rs. 497.73 and these were accounted short on the plea of over-issue of these tickets on 12-5-1959. The record at Howrah Station indicated that the tickets were actually sold on 20-5-1959 and not on 12-5-1959. The result was the fare amounting to Rs. 497.73 had been misappropriated on 20th December, 1959 by tampering with the figure relating to 12-5-1959 in the cash book. The record foils of foreign express fare tickets issued on 12-5-1959 were fraudulently cancelled and the sum of Rs. 493.53 already accounted in the cash book against those two foreign express tickets was erased, and to balance the sum a fictitious sale of 47 tickets had been entered in the cash book."
(2.) Several points had been raised in the Writ Petition (Original Jurisdiction Case) No. 832 of 1977. But when that case was taken up the learned counsel for the petitioner P. N. L. Das confined his arguments only to two points, namely, (1) that though the Evidence Act does not strictly apply, suspicion and conjecture cannot form the basis of any conclusion in any departmental enquiry and (2) reasonable opportunity of defending himself had not been given to the petitioner P. N. L. Das. The disciplinary authority and punishing authority, namely, the General Manager, constituted an Enquiry Committee consisting of the Assistant Commercial Superintendent, Khurda Road and the Assistant Accounts Offices, Garden Reach, namely, Shri K. Julhe and Shri B. B. Chatterjee. In the midst of the enquiry Shri K. Julhe was transferred and thereafter his successor in office Shri B. K. Patnaik and Shri B. B Chatterjee, the Assistant Accounts Officers, Garden Reach continued the enquiry. The Enquiry Officers found the appellants in these appeals guilty of the charge. The punishing authority, the General Manager, on the representation of the respondents in C. As. Nos. 2119-2121 of 1979, directed a supplementary enquiry to be held. Notice of the supplementary enquiry was given in April 1967. At that time Shri B. K. Patnaik, who succeeded Shri K. Julhe as the Assistant Commercial Superintendent, Khurda Road as stated above, had been promoted as a Divisional Commercial Superintendent and was posted at Kharagpur while Shri B. B. Chatterjee, who was Assistant Accounts Officer, Garden Reach, had been promoted as the Divisional Accounts Officer and had been posted at Adra. These very persons issued the notice for continuing the enquiry after The General Manager directed the supplementary enquiry. It is at this stage that page No. N. L. Das, the appellant in C. A. No. 389 of 1981 challenged in O. J. C. No. 579 of 1971 the jurisdiction of the Enquiry Board. In that Writ Petition, Misra and Panda, JJ. of the Orissa High Court while negativing several other contentions raised on behalf of P. N. L. Das, directed that the supplementary enquiry pending against P. N. L. Das shall be continued by the officers holding the post of Assistant Commercial Superintendent, Khurda Road and the Assistant Accounts Officer, Garden Reach and not by Shri B. K. Patnaik who had been promoted as the Divisional Commercial Superintendent and was posted at Kharagpur and ceased to be Assistant Commercial Superintendent, Khurda Road and by Shri B. B. Chatterjee who had been promoted as the Divisional Accounts Officer and posted at Adra and ceased to be the Assistant Accounts Officer, Garden Reach.
(3.) In W. Ps. (O. J. C.) Nos. 1261/76 and 833 and 834/77 Misra and Mohanty, JJ. of the Orissa High Court found that by the time the decision in the said O. J. C. No. 579 of 1971 was rendered by Misra and Panda, JJ. on 20-9-1972, the enquiry against the respondents in C. As. Nos. 2119-2121 of 1979 had been disposed of and the disciplinary authority had taken into account the material collected in the supplementary enquiry and found the respondents in these three appeals guilty, in consequence of which these respondents were removed from service by the punishing authority. Writ Petitions (O. J. C.) Nos. 1261/76 and 833 and 834/77 were filed for challenging the removal of the respondents in C. As. Nos. 2119-2121 of 1979 from service. Misra and Mohanty JJ. held in these three writ petitions in their judgment dated 10-1-1979 that in view of what has been stated in the decision in Writ Petition (O. J. C.) No. 579 of 1971 (P. N. L. Das v. Union of India, 38 Cut LT 1152) the supplementary enquiry made by Shri. B. K. Patnaik who had ceased to be the Assistant Commercial Superintendent, Khurda Road and Shri B. B. Chatterjee who had ceased to be the Assistant Accounts Officer, Garden Reach, must be held to be without authority of law, and having regard to the fact that the case of the railway administration was not that the material gathered in the supplementary enquiry had not been used by the enquiry officers and the disciplinary authority, the finding of guilt and the imposition of punishment on the basis of that finding could not be sustained. Accordingly, the learned Judges allowed these Writ Petitions (O. J. C.) Nos. 1261/ 76 and 833 and 834/77 and quashed the order made in the disciplinary proceedings and directed that each of the three petitioners before them, namely, the respondents in C As. Nos. 2119-2121 of 1979 shall be deemed to be continuing in service and would be entitled to appropriate service benefits on that footing.;