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TMI Blog1956 (7) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... previously found missing on transit. Certain articles were apprehended in a brake van sometime in August 1950 and the enquiry was to find out the connection of four guards including the petitioner, with these goods. There took place, what is called a First class joint enquiry , feeing an enquiry by four officers. At this enquiry, a number of witnesses were examined, but all in the absence of the petitioner. On 31-5-1951, the petitioner was confronted with four witnesses, viz., Wilson, Ghose, Pal and Chatler-jee. These witnesses had already made statements implicating the petitioner. Apart from the fact that these statements had been made in the absence of the petitioner, he was not even furnished with a copy of their statements. He was merely asked to cross-examine them. According to the petitioner, he asked for time but was compelled to go on then and there, and examine these witnesses, without being told as to what were the specific charges against him and what the witnesses had said against the petitioner. This however is not the whole picture. The petitioner was not confronted with all the witnesses that gave evidence against him. The Report of the enquiry (Ex. 'B' to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... you from the date of receipt of this chargesheet. Failure to submit your explanation will be taken to mean that you have no explanation to offer and that you will be dealt with on the strength of the material available. If you desire to be heard in person you should state so at the time of submitting your explanation to the charge(s). 4. On 29-8-1951, the petitioner showed cause in writing and asked for a personal hearing. The Report, dated 8-6-1951 a copy whereof is annexed to the petition and marked 'B' is in three parts. The first part consists of a summary of the facts. It concludes by saying that a 'prima facie' case against the Guards (including the petitioner) for carrying stolen property Is therefore established, and their complicity in the original thefts may not altogether be ignored . The second part of the Report is headed Proceedings . This discusses the evidence adduced. I have already stated the nature of this evidence. Witnesses were examined in the absence of the petitioner and he was confronted with only some of them, and their statements already made were not made available to him. The Report then proceeds to state as follows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner made an application to this Court and a rule was issued on 11-3-1953. In answer, it was alleged that the appeal was still pending and the application was premature. On 2-8-1954, the rule was discharged on the ground that regard being had to the pendency of the appeal, the application was premature. 6. On 5-8-1954, the petitioner caused a request to be made to the C. O. S. to proceed with the appeal. On 22-10-1954, the Personnel Officer (Traffic) wrote to the petitioner that he should submit the 'final appeal' within 7 days. On 30-10-1954, it was pointed out by the petitioner that he had already filed an appeal and in fact the Personnel Officer had himself affirmed an affidavit in this Court and taken the objection that an appeal was pending. The petitioner prayed that the said appeal should be disposed of according to law. On 11-12-1954, the petitioner received a surprising communication from the Personnel Officer that as he had not complied with the ad-Vice contained in the letter dated 22-10-1954, to submit a Final appeal , it was assumed that he had no appeal to prefer against the original decision and the case was Accordingly closed . The petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court than to intervene and set matters right. It inevitably results in a frightful waste of time and harassment to all parties concerned. The departmental work is upset; officers who should be employed in their respective duties are taken away from their work, and the poor employee is kepli on starvation diet for an indefinite period, leaving a scar which may never be healed. I shall therefore try to collect and enunciate these principles, which have by now become well established. (1) The Constitution of India is paramount. While the Legislatures in their allotted spheres are supreme and can enact any law, however arbitrary it may be, the limits imposed by the Constitution cannot be exceeded. Unless the exemption is contained in the Constitution itself, a law which violates the Constitution, is to the extent void. (Article 13 of the Constitution). (2) Article 311(2) of the Constitution lays down that no person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a Civil Post under the Union or a State, shall be dismissed or removed or reduced in rank until he has been given a 'Reasonable opportuni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Aldridge, 1915 AC 120 (F) ; Statford v. Minister of Health, (1946) 1 KB 621 (G) ; Dipa Pal v. University of Calcutta, ; K. Ramayya v. The Madras State, ; K. L. Chatterjee v. Union of India, ; Shiv Nandan Sinha v. State of West Bengal, 59 Cal WN 794 (K). (9) Bearing these two principles in mind, ths procedure to be followed becomes easy of comprehension. A departmental enquiry consists of four main stages, viz., (a) charge, (b) investigation of the charge, (c) finding, punishment and (d) appeal. It will be useful to deal with each of these stages progressively. (10) Charge.-- A departmental enquiry is not conducted with the rigidity of a judicial trial. Hence, the charge which is to be framed need not be framed with the precision of a charge in a criminal proceeding. But it must not be vague or so general as to make it impossible of being traversed. The test is as to whether the charge conveys to the delinquent, the exact nature of the alleged offence, in a way that would enable him to meet the charge. In order to frame a charge, it is permissible to have a preliminary enquiry. This preliminary enquiry may be ex parte and it would be permissible to interrogate the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .--A departmental enquiry is not a judicial proceeding and the law and procedure applicable to judicial proceedings are not applicable. The strict rules of the law of evidence are not to be applied. 1911 AC 179 (E); 1915 AC 120 (F). But this does not mean that the proceedings can be held in an arbitrary manner. The rules of natural justice must still be applied. (See under heading 8). The question oiten arises as to whether, after a person has submitted his written explanation, there should be a personal hearing or not. Ordinarily there must be a personal hearing. If a person is entitled to show cause, he is entitled to a hearing, and if he is entitled to a hearing, he must have the opportunity of being personally heard, of calling his own evidence and cross-examining any witness called by the prosecution. Rama Shankar Srivastava v. The D.S.N.R. Allahabad, ; A, P. Singh v. State of U. P., ; Ravi Pratap Narain Singh v. State of U. P., . It Is, therefore, advisable to include a direction in the show cause notice that if the delinquent wishes to be heard in person, he should indicate it in his defence. If in spite of such a direction, the delinquent does not ask for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he position of a Judge, and the rules of natural justice demands that he should not himself be personally interested in the case. Frome United Breweries Co. v. Bath Justices. (1926) AC 586 at p 590 (X). He should be a person with an open mind, a mind which is not biassed against the delinquent. Eckersly v. Mersey Docks and Harbour Board, (1894) 2 QB 667 (Y); R. v. Sussex Justices, (1924) 1 KB 256 (Z): R. v. Rand, (1866) 1 QB 230 (Z1); (1926) AC 586 XX); R. v. Camborne Justices, (1954) 2 All ER 850 (Z2). He should not have prejudged the issue. East India. Electric Supply and Traction Co. Ltd. v. S. C. Dutt Gupta, 59 Cal WN 162 (Z3). He cannot act both as a Judge and a witness. Bijoy Ch. Chatterjee v. State of West Bengal, 58 Cal WN 988 (Z4), There is no bar to a person, issuing the show cause notice to try it himself. The principle that a prosecutor cannot be a Judge is not strictly applicable to departmental enquiries. Province of Bombay v. Kushaldass Advani, . But he must not lower himself to the status of a common prosecutor, that is to say of a person who feels it a part of his function to bring the guilt home to the accused at any cost. He must act with the detachment of a Judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession and power of the authorities but not produced, there results only a mockery of a trial and the proceedings may be set aside. The Court must see that justice is done. (12) Upon a charge being served upon the delinquent, he is generally suspended and kept on a subsistence allowance. Most rules provide for suspension. But in any event the authority having power to appoint has the power to suspend or dismiss (S. 16, General Clauses Act). An order of suspension cannot be retrospective. Hemanta Kumar v. S. N. Mukherjee, . But when an order of dismissal is made, the order of suspension merges in it. If such order of dismissal is set aside by Court, the order of suspension does not revive. Om Prakash v. State of Uttar Pradesh, . If it is intended to continue the departmental proceedings, a fresh order of suspension should be passed again, without delay. (13) Finding:--The enquiry, where it is held by a delegate, results in a report containing the recommendations of the tribunal enquiry. The enquiring officer must be careful to deal with the charges as framed and not depart from them or import extraneous matters. 60 Cal WN 692 (Z6). The report is forwar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only, namely, dismissal, removal from service or reduction in rank. Termination of service in accordance with a contract or the conditions of service, does not amount to dismissal. Satish Chandra v. Union of India, . Shyam Lal v. State of U. P., ; Anima Munshi v. Engineer in Chief and General Manager, Calcutta Telephone District, . Nor where the post is temporary and the post has been abolished. Brajnandan Prasad v. State of Bihar, (S) . Where by contract or the conditions of service, a service may be terminated without reasons shown or simply by serving notice, the mere fact that there has been a prior enquiry, does not take away the power of the authorities to terminate such service in terms thereof. Government is not expected to act arbitrarily and does often make such enquiries to make up its own mind as to whether the services of the employee should be terminated or not (Judgment D/- 11-5-1954 in Civil Revn. No. 3558 of 1953 (Cal) (L) ). . In such cases, however, care should be taken not to mention the enquiry or the finding in the letter terminating the services. This often leads to applications to Court urging that the action taken was in fact punitive and amounted to a dism ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposed behind his back. Some witnesses were not produced at ail. Thus there has been a violation of the rules at every stage and the order of dismissal and the proceedings culminating in such order, are all invalid and must be set aside and quashed. It is argued by Mr. Basu that the order made here is one of removal and he draws my attention to Rule 1709 in the Railway Establishment Code, Vol. I, p. 180. Prior to the amendment of 1953, a Railway servant without seven years continuous service, had no right to ask for a departmental enquiry at all. As I have mentioned above, this rule is clearly ultra vires and void as contravening the provisions of Article 311(2) of the Constitution, Fortunately however Sub-rule (b) has been omitted by an amendment of 1953. Even though this is a case prior to the amendment, the position is the same. The petitioner has a right to be heard under Article 311(2) of the Constitution and this right is paramount. No rules can affect it. A removal by way of punishment is nothing but a dismissal. Lastly, the point is taken that the appeal preferred by the petitioner is still pending. This appears to me to be a most untenable point. It will appear from the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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