R.M.Sahai, J. - (1.) In this defendant's second appeal directed against concurrent decree of two Courts below granting declaration that order dated 15th October, 1967 removing respondent from service was illegal and inoperative, consequently the respondent continued in service since 1962 and was entitled to all benefits and emoluments including his salary, the decisive controversy is whether the finding that enquiry against respondent was violative of principle of natural justice and contrary to fundamental procedure of law is well founded.
(2.) Appointed as coal boy in 1957 respondent was chargesheeted in 1962, for absence of duty from 30th August 1962 to date in an unauthorised manner, while working as ladderman in Central Loco Shed, Bina. No evidence oral or documentary was mentioned in charge sheet although respondent was called upon to show cause why he should not be punished with penalty specified in item 6 of the list below that is removal from service. Consequent to above charge sheet enquiry was held by various Officers but according to respondent, it concluded when the respondent could get hold of D.W.2 who was prejudiced against respondent and was willing to go out of way and punish him. Enquiry Officer admitted to have been appointed by Assistant Personnel Officer by written order but expressed inability to produce it. In cross examination he admitted to have examined respondent and his witness first. According to him he formed his opinion on evidence recorded by him and not by his predecessor although he attached copies of those statements as well along with his report. Further he admitted to have formed his opinion on personal file of respondent but he could not state whether respondent was absent from duty since 30th August, 1962 or he was suspended. No written order of suspension could be produced although appellate authority found that after having heard rumour of suspension respondent applied on 1st September, 1962 to supply the written order of suspension but it was only on 8th October, 1965 that the department sent a letter informing respondent that he was not suspended orally. Procedural illegality and violation of natural justice found by Courts below are omissions to mention evidence in charge sheet, proposing punishment to be inflicted even before holding enquiry, examination of respondent and his witness before departmental witnesses, failure to examine entire material by Enquiry Officer, keeping respondent suspended for five years on mere charge of absence from duty, not deciding the appeal for three years, omission to produce suspension order, attendance register, non production of personal file of respondent which was examined by Enquiry Officer before Courts below. Each of these may be examined to find out if the order suffers from any error of law.
(3.) Section V of Conduct and Discipline Rules etc. of Railways Establishment Code deals with imposition of major penalties. Paragraph 1709 deals with framing charges. It requires Disciplinary authority to frame charge on basis of allegations on which enquiry is proposed to be held and communication of the statement of allegations along with charge sheet to the railway servant. On this the employee is required to file his written statement and under paragraph 1712 the Enquiry Officer is required to enquire into those charges which are not admitted. In the absence of allegations on which charges are based, that is the evidence, the employee cannot file written statement or set up a proper defense. Mere communication that respondent was absent from duty in an unauthorized manner was not sufficient. Under rules it is not an empty formality as the entire foundation of challenge is based on it.;