Murari Mohan Dutta, J. - (1.) The petitioner is a driver in the Eastern Railway. The petitioner was served with a charge-sheet dated December 8, 1960, containing a charge to the effect that on November 23, 1960 at 4-10 hrs while he was working as a driver on Engine No. 1956/XC of 1267 UP Goods at Jasidib, he mistook the Main Line signal which was lowered for 735 UP Goods, entered the send hump and dashed into the buffer resulting in the train engine getting derailed of five pairs of engine wheels. The charge-sheet was issued by the Divisional Mechanical Engineer (P). The punishment, which was proposed, was removal from service. Instead of inflicting on the petitioner any major punishment the Divisional Mechanical Engineer imposed a punishment stopping his increment for two years. On April 24, 1961, the Divisional Superintendent however, issued a show cause notice upon the petitioner calling upon him to show cause why the said order should not be revised and why the punishment should not be enhanced to one of removal from service. An enquiry Committee was appointed to enquire into the charge levelled against the petitioner. The enquiry was held on a number of days, the last of which was on April 16, 1961. The said enquiry was conducted ex parte. The petitioner did not appear at the said enquiry as the defence helper whom the petitioner had nominated to defend him, was not spared by the authorities concerned Thereafter, on April 20, 1961, the petitioner was again served with a notice calling upon him to show cause why he should not be removed from service. Hi submitted his reply to the show cause notice and on May 2, 1961, the petitioner was dismissed from service with effect from May 4, 1961. Against the order of dismissal, the petitioner preferred an appeal but the appeal was dismissed. Thereafter he moved this Court under Article 226 of the Constitution and obtained a Rule being CR No 166 (W)62. The said Rule was made absolute by B.N. Banerjee, J by his order dated July 31, 1963, to this extent, only that the respondents were restrained from giving effect to the order of penalty imposed upon the petitioner as well as the appellate order. It was further directed that the respondents will not, however be precluded from proceeding afresh against the petitioner from the stage reached on April, 18, 1961, that the respondents would all the two firemen whom the petitioner wanted to examine and then proceed with the enquiry and that the evidence already on record might be treated as evidence at the fresh enquiry. As directed by this Court, the enquiry was resumed by the committee. At this enquiry S.C. Bagchi, one of the firemen, was examined as a witness and ne was also cross examined by the petitioner. The other fireman Raj Kishore was called at the enquiry, but it appears from the minutes of the proceeding that he did not depose in the enquiry but his oral statement, which was made by him in the enquiry held in 1964, was read out and Raj Kishore acknowledged the same as his statement. There after, the petitioner was asked to cross-examine Raj Kishore. The defence help, who was present on behalf of the petitioner, protested against the same. He claimed the production of certain documents for the purpose of enabling him to effectively cross-examine Raj Kishore. The said documents were refused to be grafted to the petitioner or to his defence helper whereupon the defence helper cross examined Raj Kishore under protest. It may also be stated that he also protested against the procedure adopted by the committee in only reading out the statement of Raj Kishore at the enquiry without getting his statement recorded afresh in the prepense of the petitioner. The petitioner also asked for cross examination of two other witnesses namely, O.B. Sinha, Guard, Asansoi and Missri Yadav, Porter. These two witnesses were examined on April 16, 1961, in the absence of the petitioner. Accordingly, the petitioner claimed that they should be produced in the enquiry so as to enable the petitioner to cross-examine them This claim of the petitioner was refused by the Chairman of the enquiry committee or the ground that this Court in the previous Rule had taken cognizance of the statements recorded upto April 16, 1961, anti directed, the Railway Administration to proceed after the stage of April 16, 1961, and to record the statement of two firemen, namely Raj Kishore and S.C. Bagchi. It that view of the matter it was directed by the Chairman that it would not be possible to allow examination of any other witnesses whose statements were recorded upto April 16, 1961, as the same would tantamount to contempt of this Court. The petitioner thereafter did not get any opportunity to cross examine those two witnesses. In the report, which has been submitted by the committee, the petitioner was held guilty to the charge The Divisional Mechanical Engineer (P) agreed with the findings of the enquiry committee and issued a second show cause notice to the petitioner calling upon him to show cause why he should not be reduced to the rank of a Shunter. The petitioner showed cause and thereafter, the Divisional Mechanical Engineer by his order dated July 25, 1969, reduced the petitioner to the lower post of Shunter with effect from July 26, 1967, until he was found fit by the competent authority to be restored to the higher post of driver, Grade 'C'. The petitioner has moved this Court against the said order of punishment.
(2.) Mrs. Banerjee, learned Advocate appearing on behalf of the petitioner submits that he was not given a reasonable opportunity to effectively cross-examine Raj Kishore. It has already been noticed that Raj Kishore's statement was read out in the presence of the petitioner and the former acknowledged the same as his own statement which be made in the previous enquiry. The petitioner demanded the production of certain documents so as to enable him to effectively cross-examine the said witness. Mrs. Binerjee submits that the enquiry committee having refused to supply those documents to the petitioner before Raj Kishore could be cross-examined by him, violated the provisions of Rule 1711 of the Discipline and Appeal Rules. That Rule provides that the railway servant shall, for the purpose of preparing his defence, be permitted to inspect and take extracts from such official records as he may specify, provided that permission may be refused if for reasons to be recorded in writing, in the opinion of the Disciplinary Authority, such records are not relevant for the purpose or it is against the public interest to allow him access thereto in my opinion, this Rule has no manner of application to the facts stated above. Under this Rule employee concerned will be permitted to respect and take extracts from such official records as he may specify for the purpose of preparing his defence. The stage for preparing defence was long over and this Rule had no manner of application at the stage when enquiry was being held and witnesses were being examined. The petitioner could have at the time he prep ired his defence specified the documents and asked for the same from the punishing authority. The petitioner does not appear to have done the same. In any event, the petitioner was not entitled at the time the witnesses were being examined to ask for the documents from the enquiry committee which was not also the proper authority to supply the said documents. In this regard Mrs. Banerjee has strongly relied on a decision of the Supreme Court in Kesoram Cotton Mills Ltd. v. Gangadhar and others 1963 LLJ 371 where it has been held that where in a domestic inquiry in an industrial matter lawyers are not permitted, in such a case to read over a prepared statement in a few minutes and then ask the workmen to cross examine would make a mockery of the opportunity that the rules of natural justice require that the workers should have to defend themselves. It has been further observed that it seems that where one is dealing with domestic inquiries in industrial matters, the proper course for the management is to examine the witnesses from the beginning to the end in the presence of the workmen at the enquiry itself. Oral examination always takes much longer time than a mere reading of a prepared statement of the same length and brings home the evidence mere clearly to the person against whom the inquiry is being held. Normally where the witnesses are net examined from the very beginning at the enquiry in the presence of the person charged, the person charged should be give a copy of the statements, made by the witnesses which are to be used at the enquiry well in advance before enquiry begins (say, two days before the enquiry is to begin). In the Supreme Court case referred to above, the statements were made before the enquiry was held and those statements were necessary for the purpose of cross-examining the witnesses concerned. Raj Kishore deposed in the previous enquiry in the absence of the petitioner, but in the subsequent enquiry with which we are concerned, he acknowledge his own statement which was read out in the presence of the petitioner. Although the petitioner made a grievance before the committee that unless the witness himself made the statement over again in his presence, he will not he in a position to cross-examine him effectively. But, on a perusal of the minutes of the proceedings of the enquiry committee, it appears to me that the real grievance was not that. That real grievance was that the petitioner asked for the production of certain documents for the purpose of cross-examining Raj Kishore, but it wets refused by the committee. After all, the question is whether the petitioner was prejudiced After considering them materials on record, I am of the view that the petitioner was not prejudiced in the least as he was not supplied with the documents which hi asked for at the enquiry. On behalf of the petitioner Raj Kishore was cross-examined and I do not find any reason to hold that the said cross-examination was an ineffective one as contended on behalf of the petitioner. This contention of Mrs. Bannerjee regarding the cross-examination of Raj Kishore is rejected.
(3.) It is next argued by Mrs. Banerjee that the petitioner was seriously prejudiced as he was not granted any opportunity to cross-examine O.P. Sinha and Missri Yadav whose statements were recorded in the previous enquiry in 1961. The statements made by those two persons have been relied on by the enquiry committee in its report in adjudging the guilt of the petitioner. The reason for the refusal to the petitioner an opportunity to cross-examine these two persons is that this Court in the previous Rule directed that the respondents might start a proceeding afresh after the stage reached on April 16, 1961. As I read the order of this Court, I find that the direction was that the respondents were precluded from proceeding afresh against the petitioner from the state reached on April 16, 1961, and not after the stage reached on April 16, 1961 The Chairman of the committee thought that if he allowed the petitioner to cross examine the said two witnesses, he would commit contempt of this Court. I find no substance in the reasons given by the Chairman for allowing the petitioner to cross-examine the said two witnesses If the enquiry committee had not relied on the statements made by the said two witnesses, in that case the petitioner would have nothing to complain of, but the enquiry committee having relied on the statements of the said two witnesses in their report in considering whether the petitioner was guilty or not acted in violation of the Principles of natural justice in not allowing the petitioner to cross-examine O.P. Sinha and Missri Yadav. The Chairman of the committee misread and misunderstood the order of this Court in refusing the petitioner an opportunity to cross-examine the said two persons. This in my opinion, is serious and has vitiated the report of the enquiry committee holding the petitioner guilty to the charge levelled against him. On this ground alone, the report of the enquiry committee and order of punishment passed on the basis of such report cannot be allowed to sustain.;