Full Judgment Text
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PETITIONER:
GENERAL MANAGER, EASTERN RAILWAY ANDANOTHER.
Vs.
RESPONDENT:
JAWALA PRASAD SINGH
DATE OF JUDGMENT:
20/11/1969
BENCH:
MITTER, G.K.
BENCH:
MITTER, G.K.
SIKRI, S.M.
CITATION:
1970 AIR 1095 1970 SCR (3) 271
1970 SCC (1) 103
CITATOR INFO :
RF 1981 SC 858 (6)
ACT:
Natural Justice-Inquiry Committee’s duty to submit report to
punishing authority-Change in personnel of Inquiry Committee
during inquiry No de novo inquiry but proceedings continued-
Procedure if violates natural Justice.
HEADNOTE:
The respondent, a railway servant, was charged with
misappropriation. An Inquiry Committee of three officers of
the Railway was constituted to inquire into the charges.
After the proceedings had gone on for some time and some
witnesses were examined, one of the members of the inquiry
committee was transferred. There was no de novo inquiry and
the proceedings continued with the successor in office. The
Inquiry Committee found the respondent guilty of the charges
and submitted its report under the Discipline and Appeal
Rules of the Indian Railway Establishment Code. The
Disciplinary Authority considered the record of inquiry,
issued the second show cause notice and thereafter dismissed
the respondent from service. The respondent’s appeal to the
General Manager having proved unsuccessful, he challenged
the order in a writ petition. The High Court quashed the
order of dismissal on the ground that there was a violation
of the principles of natural justice, because of the change
in the personnel of the Inquiry Committee.
In appeal to this Court,
HELD : No known principle of natural justice is violated
when one member of the Inquiry Committee is substituted by
another, because, the change in the personnel even though it
was after the proceedings bad begun and some evidence was
recorded, could not make any difference to the railway
servant. The members of the Committee cannot record their
findings separately, but must arrive at their conclusion
jointly and it is the record consisting of the documents and
the oral evidence which forms the basis of the report of the
inquiry Committee. Therefore, any impression created by the
demand our of a particular witness on the mind of any member
could not affect the conclusion. [275 D-F; 276 A-B]
Further, under the rules, the duty of the Committee ends
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with the making of the report, because, it is not the
punishing authority. The punishing authority is the
Disciplinary Authority and the personal impression of a
member of the Inquiry Committee cannot possibly affect the
decision of the Disciplinary Authority. The Disciplinary
Authority merely goes by the written record after giving a
personal hearing to the railway servant if he asks for it,
and may even reverse the finding of the Inquiry Committee
absolving a railway servant, and impose a penalty on him.
[275 F-G]
Moreover, it is not uncommon, in proceedings before ordinary
courts, for one judge or magistrate to record part of the
evidence and for his successor to continue the proceedings
and dispose of the matter, or for witnesses to be examined
on commission and the weight of their evidence being
assessed by a judge who did not have the benefit of watching
the
272
demeanour, or for an appellate -court, which does not have
such an opportunity, to arrive at conclusions of facts on
the record of the case. The appellate court may take note
of any comment on the demeanour of a witness but never
guides itself entirely by such a comment. [276 E-H; 277 A-C]
Union of India v. H. C. Goel, [1964] 4 S.C.R. 718; A.I.R.
1964 S.C. 364, relied on, Gullapalli Nageswara Rao v. A. P.
Road Transport Corporation, [1959] Supp. 1 S.C.R. 319,
explained.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1186 (N) of
1967.
Appeal by special leave from the judgment and order dated
June 13, 1966 of the Calcutta High Court in Appeal from
Original Order No. 563 of 1964.
V. A. Seyid Muhammad and S. P. Nayar, for the appellants.
K. Rajendra Chaudhuri, Kanwal Singh and Kaushalya, for the
respondent.
The Judgment of the. Court was delivered by
Mitter, J. The question involved in this appeal is, whether
the whole ’proceedings of the Inquiry Committee constituted
to inquire into the charges of misappropriation and handling
cash belonging to Government without authority were vitiated
by the violation of, the principles of natural justice with
the result that the order of dismissal passed subsequently
on the respondent could not be sustained.
The facts necessary for the disposal of the appeal are as
follows. The respondent used to serve as treasure guard in
the Eastern Railway. A charge sheet was issued by the Chief
Cashier of the Railway on August 3, 1959 wherein allegations
of misappropriation of cash belonging to Government were
levelled against him. An Inquiry Committee consisting of
three persons, namely, A. K. Roy Choudhury, Divisional
Accounts Officer, Mani Chakraborty, Divisional Personnel
Officer and H. N. Chatterjee, Divisional Engineer, was
constituted to inquire into the charges. The charge sheet
had been issued after a fact finding committee of the very
same persons had looked into the matter. After the
proceedings of the Inquiry Committee had gone on for some
time and some witnesses were examined, A. K. Roy Choudhury
was transferred to some other place and the vacancy in the
committee was filled up by R. N. Vakil, his successor in
office. It is cornmon ground that the proceedings were not
started afresh but were continued from the stage at which A.
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K. Roy Choudhury had dropped out. The committee submitted a
report finding the respondent guilty of all the three
charges framed against him. On 1st February, 1961 the Chief
Accounts Officer, Eastern Railway
273
issued the second show cause notice and by an order dated
March 20, 1961 he was dismissed from service. The
respondent’s appeal to the General Manager of the Railway
was unsuccessful. He thereupon moved the High Court and a
learned single Judge quashed the order of dismissal. A
Division Bench of the High Court dismissed the appeal of the
Union of India. Hence the present appeal by special leave.
The Division Bench of the- High Court took the view that
where the persons who decided the matter finally were not
the identical persons who had heard the witnesses at least
in respect of a part of the evidence, the departmental
proceedings were vitiated by the violation of the principles
of natural justice. Reliance was placed mainly on the
decision of this Court in Gullapalli Nageswararao and others
v. A. P. State Road Transport Corporation & another(’).
According to the High Court
"If the enquiring authority has a duty to come to a
conclusion as to the guilt of the, delinquent upon an
evaluation or assessment of the evidence, then it is
absolutely necessary that he who should decide the case
should hear the evidence. It was impossible to evaluate the
evidence of a witness taken on proxy, because one of the
salient features of such proceedings is to observe the
demeanour of the witness."
The High Court turned down the contention that according to
the Discipline and Appeal Rules for railway servants the
Disciplinary Authority had to look into the record itself in
which case any defect in the Inquiry Committee would not be
fatal. The High Court held that if the report of the
Inquiry Committee was tainted with illegality then the
entire departmental enquiry was vitiated.
In our view the judgment of the High Court cannot be sup-
ported. Section V of the Indian Railway Establishment Code,
Volume 1, lays down by several rules the procedure to be
followed for imposition of major penalties on railway
servants. Under r.1708 the inquiry may be held, as far as
may be, under rules 1709 to 1715. Rule 1709 lays down that
the Disciplinary Authority must frame definite charges on
the basis of the allegations on which the inquiry is
proposed to be held and such charges together with a
statement of the allegations on which they -are based have
to be communicated in writing to the railway servant who is
called upon to submit a written statement of his defence and
also to state whether he desires to be heard in person.
Such written statement may be submitted either to the
Disciplinary Authority or to the Board of Enquiry or
Inquiring Officer where
(1) [1959] Supp. 1 S.C.R. 319.
274
one has been appointed under r.1710. Under the last
mentioned rule, the Disciplinary Authority may enquire into
the charges itself or it may appoint a Board of Inquiry or
an Inquiring Officer for the purpose to be termed the
Inquiring Authority. Rule 1711 gives the railway servant
the right to inspect and take extracts from official records
as he may specify for preparing his defence. The inquiry
procedure is set forth in Rule 1712. ’This rule lays down
that an inquiry has to be made into the charges which are
not admitted after the filing of the written statement. At
the inquiry, a definite charge in writing must be framed and
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explained to the railway servant in respect of each offence
which had, not been admitted by him and the evidence in
respect of it along with any evidence which he may adduce in
defence must be recorded in his presence. The accused
railway servant may present his case with the assistance of
another railway servant. Sub-r. (3) of the rule provides :
"The Inquiring Authority shall, in the course of the
inquiry, consider such documentary evidence and take such
oral evidence including cross-examination of the. railway
servant and witnesses, as may be relevant or material in
regard to the charges. The railway servant shall have the
opportunity of adducing relevant evidence on which he
relies, the evidence of witnesses shall be taken in his
presence, he or, the person assisting him shall be given the
opportunity of cross-examining the witnesses and no
materials shall be relied on against him without his being
given an opportunity of explaining them."
Under sub-r. (4)
"At the conclusion of the inquiry, the Inquiring Authority
shall prepare a report of the inquiry, recording its
findings on each of the charges, together with the reasons
therefor........... "
Under sub-r. (5) the record of the inquiry shall include the
charges framed against the railway servant and the statement
of allegations furnished to him under Rule 1709, his written
statement of defence, if any, the oral evidence taken in the
course of the inquiry, the documentary evidence considered
in the course of inquiry, the orders, if any, made by the
Disciplinary Authority in regard to the inquiry and a report
setting out the findings on each charge and the reasons
therefor. Under rule 1713 the Disciplinary Authority, if it
is not the Inquiring Authority, shall consider the record of
the inquiry and record its findings on each charge.
275
It is after the observance of all the above formalities that
penalty may be imposed under r. 1704 or r. 1715.
In our opinion, the above procedure does not leave any scope
for the guidance of a member of an Inquiry Committee
consisting of more than one person by the impression formed
by him about the truthfulness or otherwise of a particular
witness examined during the inquiry. From the stage
antecedent to the framing of the charges everything is
recorded in writing : the allegations on which the charges
are based are made known to the railway servant and he is
called upon to file his written statement after looking into
all the relevant records. The oral evidence of all the
witnesses tendered during the enquiry is recorded in
writing. Where as here the oral evidence is recorded in the
presence of three persons constituting the Inquiry
Committee, any impression created by the demeanour of a
particular witness on the mind of any one member cannot
affect the conclusion afterwards arrived at jointly by them.
It cannot be suggested that all the. three persons would
record their impressions separately about the demeanour of a
witness and it is quite possible that a particular witness
may appear to one member of the committee to be untruthful
without his being considered so by the others. The members
of the Inquiry Committee cannot record their findings
separately but it is their duty to record findings on each
of the charges together with the reasons therefor. It is to
be noted that the duty of the Inquiry Committee ends with
the making of the report. The Disciplinary Authority has to
consider the record of the inquiry and arrive at its own
conclusion on each charge. Whatever may be the impression
created by a particular witness on the mind of one member of
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the committee, the same is never translated into writing and
the Disciplinary Committee merely goes by the written record
after giving a personal hearing to the railway servant if he
asks for it. Even if the Inquiry Committee makes a report
absolving the railway servant of the charges against him,
the Disciplinary Authority may, on considering the entire
record come to a different conclusion and impose a penalty.
This is amply borne out by a judgment of this Court in Union
of India. v. H. C. Goel(l) where it was said that neither
the findings nor the recommendations of the Inquiry
Committee are binding on the Government.
In such a state of affairs a change in the personnel of the
Inquiry Committee after the proceedings are begun and some
evidence recorded cannot make any difference to the case of
the railway servant. The record will speak for itself and
it is the record consisting of the documents and the oral
evidence as re-
(1) [1964]4 S.C.R. 718, A.I.R. 1964 S.C. 364.
276
corded which must form the basis of the report of the
Inquiry Committee. The committee is not the punishing
authority and -the personal impression of a member of the
committee cannot possibly affect the decision of the
Disciplinary Authority. In a state of affairs like’ this we
cannot see any reason for holding that any known principles
of natural justice is violated when one member of the
committee is substituted by another.
The observations of this Court in Gullapalli Nageswara Rao’s
case(l) have no bearing on the facts of the present case.
There it was held that if a personal hearing is given by the
Secretary of a Department and the Minister of the State has
to decide on the notes put up by the Secretary, the
procedure defeats the object of personal hearing. The
observations at p. 357 that
"Personal hearing enables the authority concerned to watch
the demeanour of the witnesses and clear-up his doubts
during the course of the arguments, and the party appearing
to persuade the authority by reasoned argument to accept his
point of view. If one person hears and another decides then
personal hearing becomes an empty formality."
can have no application to the facts of the case before us.
The members of the Inquiry Committee who heard the arguments
had the entire record before them and they had to go by the
record.
In proceedings before ordinary trial courts of the land,
both civil and criminal, it is not uncommon to find oral
evidence recorded before more than one presiding Judge or
Magistrate. Common convenience requires it and statutes
provide for it. It cannot be suggested that the
legislatures have enacted laws in ,disregard of an
elementary principle of natural justice. Besides not
unoften witnesses have to be examined on commission.
Whenever a witness is so examined, the Judge does not have
the benefit of watching his demeanour. The Criminal
Procedure Code provides for more than one Magistrate
recording the evidence of witnesses. Section 363 Cr. P.C.
enjoins upon a Sessions Judge or a Magistrate to record such
remarks (if any) as he thinks material respecting the
demeanour of a witness whilst under examination. Order
XVIII -r. 15 of the Code of Civil Procedure empowers a Judge
to treat the evidence recorded by his predecessor in office
as if it had been taken down by him or under his direction
under the said rule and he may proceed with the suit from
the stage at which his predecessor left it, whenever his
predecessorin-office is prevented from concluding the trial
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of a suit by reason of death or transfer or some other
cause. Instances are not rare
(1) [1959] Supp. 1 S.C.R. 319.
277
Then such powers have to be used either -by a Judge hearing
a evil suit or a Magistrate or a Sessions Judge hearing, a
criminal matter. In the vast majority of cases both civil
and criminal, a judge does not come to any conclusion merely
on the impression created by a witness while he is in the
witness box. In all matters which go up in appeal, the
appellate court does not have any opportunity of watching
the demeanour of the witness : it has to go y the record of
the case. Of course if any comment is made by the trial
Judge about the demeanour of a witness, the appellate court
takes note of it. But it never guides itself entirely by
such comments. The entire evidence has to be looked into
and assessed as a whole. Where as here the punishing
authority does not hear the evidence but goes by the record
of -the case the demeanour of particular witness when giving
evidence can -have but little leaning and cannot influence
the mind of the Disciplinary authority in awarding
punishment. We therefore hold that the High Court was not
right in quashing the order of dismissal on The ground that
the report of the Inquiry Committee was vitiated y the
violation of any principle of natural justice as stated in
the judgement. The appeal is therefore allowed and the
order of the High Court set aside. There will however be no
order as to -costs.
I.P.S. Appeal
allowed.
CI (NP)70-3
278