T.V.R. Tatachari, J.
(1) This Letters Patent Appeal has been filed by (1) The General Manager, South Eastern Railway, Calcutta, and (2) The Secretary, Railway Board, New Delhi, against the judgment of Jagjit Singh, J. dated February 3, 1971, whereby the learned Judge allowed Civil Writ Petition No. 699-D of 1963, quashed an order of the General Manager, dated July 25, 1957, and an order of the Railway Board, dated December 24, 1962, and directed the General Manager and the Secretary, Railway Board, respondents 1 and 2 in the Writ Petition (appellants herein), to reinstate the respondent herein, Ajit Kumar Bhattacharjee, in case he had not already attained the age of superannuation.
(2) The respondent herein, Ajit Kumar Bhattacharjee, filed the aforesaid Civil Writ Petition in the following circumstances. He started his service on November 28, 1942, as a temporary Assistant Station Master in the then Bengal Nagpur Railway Company. He was confirmed on that post with effect from December 18, 1952. The Bengal Nagpur Railway Company was subsequently taken over by the Government of India, and the respondent came thereafter under the control – of the South Eastern Railway.
(3) In February 1953, the respondent was acting as Relieving Station Master at Tiruldih. On February 13, 1953, two bales of goat-skins and cowhides were booked by him under Invoice No. 108, and on February 15, 1953, he booked fifteen bales of goat-skins and cowhides and issued Railway Receipt No. U24965, under Invoice No. 110. One Hasmatullah was shown as the consignor and one Saukatullah, Shalimar, was shown as the consignee. According to the respondent, the aforesaid seventeen bales along with eight other bales of goa-skins and cowhides aggregating twenty five bales, were loaded at Tiruldihn Railway Station in Train No. 299 Down which passed through the said railway station on February 15, 1953. The said twenty five bales are stated to have been loaded into Road Van No. 48010 E.I. of the said train. It is also stated that the loading of the two and the eight bales of goat-skins and cowhides was done in the presence of the consignor, while the loading of the remaining fifteen bales of goatskins and cowhides was done with the help of two servants of the sender of those bales who was present at the time of the loading. According to the respondent, he duly obtained release in respect of the said twenty five consignments from Shri C. Benham, who was the Guard, of the train, and corresponding entries were made by the respondent and the staff concerned in the Station Diary, Loading Tally Book and Guard’s Summary.
(4) Shri C. Benham made over charge of the goods to his successor Guard, Shri Halliburton, at Chandil station and obtained proper discharge in respect of the said consignments of twenty five bales. It appears that when the train arrived at Tata Nagar at about Ii .A.M. on February 16,1953, Shri Halliburton discovered that out of the twenty five bales seventeen bales of goat-skins and cowhides were missing. He, however, took no steps in the matter for about a week, and ultimately on February 22, 1953, he lodged a First Information Report about the missing of the seventeen bales at Government Railway Police Station, Tata Nagar. According to the respondent, Shri Halliburton specifically named Shri C. Benham as the suspect and also stated that Shri Benham was a habitual offender as would be evident from his past record.
(5) The Officer in charge of the aforesaid Police Station framed a charge under sections 406/379 of the Indian Penal Code against Shri Benham. After investigation, the said Officer in charge prepared final report No. 39, dated May 3, 1953, according to which nothing incriminating was found against the respondent herein. However, the Officer in charge, inter alia, recommended that departmental action be taken against the respondent. It appears that the respondent was placed under suspension from May 3, 1953, and a fact-finding Committee conducted a preliminary inquiry and submitted a report.
(6) On May 7, 1954, the District Commercial Superintendent, South Eastern Railway, Adra, District Purulia, issued a charge sheet to the respondent, and called upon the latter to show cause why he should not be punished with the penalty of removal from service. On May 10, 1954. the respondent wrote a letter to the District Commercial Superintendent asking for copies of the evidence recorded at the preliminary inquiry. On May 15, 1954, the District Commercial Superintendent replied by staling that the copies asked for could not be given, and that the respondent should submit his explanation to the charge sheet within seven days of the receipt of the letter. The respondent submitted his explanation on May 19, 1954, pointing out therein, inter alia, that he had not been supplied with copies of the statements recorded during the preliminary inquiry by the fact-finding Committee, that he had not been given any opportunity to cross-examine the witnesses before the said Committee, and that no inference should be drawn against him from the said statements or evidence recorded by the fact-finding Committee. He also submitted that in the absence of a full-fledged inquiry in his presence giving full opportunity to crossexamine the witnesses, he was at that stage unable to make any other submission beyond what he had stated in his explanation. He prayed that his explanation may be accepted, and that the proceedings against him may be dropped.
(7) On July 9, 1954, the respondent wrote a letter requesting that the case may be disposed of without further delay as he had already been under suspension for a period of about one year and five months. Then, on August 17, 1954, the District Commercial Superintendent, by a letter No. GR/1/19(P), informed the respondent that a formal inquiry under the Disciplinary Action Rules would be held on September 29, 1954, in his Office at Adra by senior scale officers. The respondent was required to attend the inquiry on the said date.
(8) The inquiry was held by an Inquiry Committee consisting of Shri N. Roy, District Commercial Superintendent, Shri A. M. Das, Security Officer, and Shri T. P. Ganguli, District Operating Superintendent, on November 9, and November 23, 1954. But, it appears that Shri Ganguli was subsequently transferred, and’ one Shri S. K. Banerji was appointed in his place as District Operating Superintendent. The re-constituted Committee with Shri S. K. Banerji in the place of Shri T. P. Ganguli continued the inquiry on January 18, 1955, and closed the same. The Inquiry Committee submitted its report on February 6, 1955, and the same was signed by Shri Roy, Shri Das, and Shri Banerji. The Committee found that the two bales booked under Invoice No. 108 and the eight bales and the seven gales booked under Invoice No. 110 were not at all loaded at Tiruldih Station, that only eight bales were loaded although twenty five bales were signed for by the Guard, and that the whole thing was done jointly by Shri Benham and the respondent herein who thereby defrauded the Raihyay.
(9) On the basis of the said report, the General Manager, who was the disciplinary authority, gave a notice to the respondent on September 20, 1955, to show cause why he should not be removed from service. The respondent sent a reply on October 6, 1955, complaining that a due and proper inquiry had not been held, that no due opportunity was given to him, and that there had been violation of principles of natural justice in dealing with his case. While pointing out various infirmities, he referred to his earlier explanation, dated May 19, 1954, (to the charge sheet, dated May 7, 1954), in which he had complained about the non-supply of the copies of the statements of witnesses recorded during the preliminary inquiry. In view of the said reply, the General Manager sent another show cause notice on November 16, 1956, enclosing a copy of the proceedings of the Formal Departmental Inquiry Committee, and requiring the respondent to show cause within seven days of the receipt of the notice as to why he should not be removed from service. The respondent submitted, on November 26, 1956, his explanation showing cause against the proposed punishment of removal from service. In that explanation, the respondent submitted that the Committee which submitted its report was not properly constituted, and complained that copies of the evidence recorded at the departmental inquiry were not supplied to him. After some months, the General Manager, by a letter, dated July 25, 1957, informed the respondent that he had decided that the respondent was guilty of the charges against him, and that he was removed from service as a disciplinary measure with effect from the date of receipt of the said letter.
(10) The respondent preferred an appeal against that order of the General Manager on August 13, 1957, to the Secretary, Railway Board. In that appeal, he submitted that he was handicapped in not having been given the copies of the statements of witnesses recorded in the departmental inquiry. He also submitted that principles of natural justice had been violated in the conduct of the inquiry in that copies of the statements of the witnesses were not given to him, that the constitution of the Inquiry Committee was improper in that it included (a) the District Commercial Superintendent, Adra, who issued the charge sheet and (b) the Superintendent, Watch and Ward, who represented the Department which was the prosecuting authority, that the Inquiry Committee was biased against him, and that the Inquiry Committee erred in coming to a conclusion against him on the material available on the record. The respondent also wrote a tester dated August 14, 1957, requesting that he may be supplier with copies of the evidence recorded in the inquiry. But, he did not receive any reply nor was his appeal disposed of for some time. The respon dent thereupon filed a Writ Petition, No. 2652, on September 10, 1957, in the High Court of Calcutta. By an order, dated August 22, 1960, D. N. Sinha, J. directed the authorities to furnish the respondent berein with copies of the evidence recorded in the departmental inquiry within three weeks, and allowed the respondent to submit additional grounds of appeal on receipt of the said copies of the evidence. Accordingly, the respondent was furnished on September 24, 1960, with the aforesaid copies, and the respondent submitted additional grounds of appeal on October 10, 1960. As the appeal was not disposed of for some more time, the respondent again moved the High Court of Calcutta, on March 26, 1962, under Article 226 of the Constitution. During the pendency of the said Writ Petition, the Railway Board dismissed the appeal by its order, dated December 24, 1962. In view of the said dismissal, the Writ Petition was dismissed as withdrawn on August 7, 1962, by B. N. Banerji, J. without prejudice to the rights of the respondent which he might have under the law. Thereafter, the respondent filed Civil Writ Petition No. 699-D of 1963 in this Court, out of which this Letters Patent Appeal has arisen.
(11) By his judgment, dated Februray 3, 1971, Jagjit Singb, J. held (i) that in the circumstances of the present case it appeared that tiw members of the Departmental Inquiry Committee were influenced by the view they had already formed while acting as members of the fact- finding Committee, and that they had pre-judged the guilt of the respondent; (ii) that the evidence produced during the inquiry by either side was not at all referred to in the inquiry report and no reasons were given as to why the charges framed against the respondent were considered to be proved; (iii) that the evidence of witnesses examined by the fact-finding Inquiry Committee in the absence of the respondent was relied upon; (iv) that in spite of the respondent’s request copies of the statements recorded by the fact-finding Inquiry Committee were not supplied to him to enable him to effectively cross-examine those witnesses during the regular departmental inquiry; and (v) that the appellate order did not appear to have been passed in accordance with the requirements of Rule 1721 of the Discipline and Appeal Rules for Railway Servants which had come into force before the disposal of the appeal. In that view, the learned Judge held that the order by which the respondent was removed from service as well as the order passed in appeal were had in law due to denial of reasonable opportunity to the respondent to defend himself and to show cause against the proposed punishment. In the result, the learned Judge allowed the Writ Petition, quashed the order of the General Manager, dated July 25, 1957, and the order of the Secretary, Railway Board, dated December 24, 1962, and directed the respondents in the Writ Petition (appellants herein) to reinstate the petitioner in the Writ Petition (respondent herein) in case he had not already attained the age of superannuation. It is against that judgment that the present Letters Patent Appeal 4ias been filed by the General Manager, South Eastern railway, Calcutta and the Secretary, Railway Board, New Delhi.
(12) Rai Bahadur Nanak Chand, learned counsel for the appellants, contended firstly that the learned Judge was not justified in coming to the conclusion that the members of the Departmental Inquiry Committee were influenced by the view they had already formed while acting as members of the fact-finding Inquiry Committee. It is common ground, as it was before the learned single Judge, that the fact-finding Inquiry Committee consisted of Shri Roy, Shri Das, and Shri Ganguli, and the subsequent Departmental Inquiry Committee consisted of Shri Roy, Shri Das, and Shri Ganguli for some time and later Shri Banerji in the place of Shri Ganguli. Thus, at least two of the members of the fact-finding Inquiry Committee acted also as members of the Departmental Inquiry Committee. The argument on behalf of the respondent herein was that the officers, who were members of both the committees, having conducted the preliminary inquiry and come to conclusions in their report regarding the guilt of the respondent herein, could not but be influenced and were in fact influenced by the conclusions arrived at by them in their report in the preliminary inquiry, and that the said members were thus biased against the respondent when they functioned as members of the Departmental Inquiry Committee. The learned single Judge, without going into the general question as to whether a person, who had held a fact-finding or preliminary inquiry, is debarred or incapacitated from inquiring into the allegations of misconduct, etc. against a Government servant in the subsequent departmental inquiry, held that in the circumstances of the present case it appeared that the members of the Departmental Inquiry Committee were not able to proceed with the disciplinary proceedings uninfluenced by the view they had already formed while acting members of the fact-finding Inquiry Committee, and that the way they conducted the proceedings in the regular departmental inquiry did leave an impression that they had pre-judged the guilt of the respondent herein.
(13) Since the learned single Judge did not go into the general question as to whether a person who conducted a fact-finding or preliminary inquiry against a Government servant who is alleged to have been guilty of mis-conduct etc. is debarred or incapacitated from conducting the subsequent departmental inquiry against the delinquent, and as it is unnecessary to do so for the purposes of the present case, we too do not propose to consider the said question. In that view, there is no need to discuss the decisions in Govind Shankar Vs. State of Madhya Pradesh, , and Srikant Upadhya. Union of India, referred by Shri Nanak Chand in support of his contention that there is no legal bar against the same person conducting the preliminary inquiry and the subsequent departmental inquiry. For the same reasons, the circumstance pointed out by Shri Nanak Chand that the respondent herein did not object to the constitution of the Committee during the departmental inquiry, is immaterial and needs no consideration.
(14) However, it cannot be disputed that the person or persons who conduct a departmental inquiry should be with an open mind and without any bias against the delinquent, and should not have prejudged the issue. Shri Nanak Chand did not dispute this proposition, but contended that the facts and circumstances of the present case do not show that the members of the Departmental Inquiry Committee were either biased against the respondent herein or had pre-judged the issue against him. We have, therefore, to consider the facts and circumstances of the present case.
(15) The aforesaid conclusion of the learned single Judge was based upon three circumstances. Admittedly the members of the Departmental Inquiry Committee, or in any case Shri Roy and Shri Das, conducted a fact-finding or preliminary inquiry and subsmitted a report on the basis of which charges were framed against the respondent herein and the departmental inquiry was conducted. The question, therefore, is whether the members, who conducted both the inquiries, were influenced by their earlier findings or had pre-judged the guilt of the respondent or, at any rate, were biased against him. The earlier Committee was no doubt only a fact-finding Committee, but it is their report that is really material. It is possible that the said Committee might have merely set out the facts and the evidence collected by it and stated in the report that the allegations against the respondent appeared, prima facie, to be true, or might have set out their tentative conclusions or findings on the basis of the material collected by them. In such a case, it may be possible to say that they had not formed any positive opinion and, therefore, had not pre-judged the issue. But, it is also possible that they might have discussed the evidence and other material and instead of merely staling that the allegations made against the respondent appeared prima facie to be true, or giving their tentative conclusions or findings, might have recorded their conclusions or findings in a positive and definite manner as though the evidence and other material collected by them established the truth of the allegations against the respondent. All that depends upon the language and the manner in which the conclusions or findings were recorded in the report, and the report is thus a very material document. But, the said report has not been produced and placed on record. This is the first circumstance relied upon by the learned single Judge. He observed that the report was not placed on the record to show that the nature, object, and scope of the preliminary inquiry or fact-finding inquiry was different from that of the regular departmental inquiry or that the fact-finding Inquiry Committee was not concerned with apportioning the responsibility for the shortage found in the bales booked from Tiruldih.
(16) The second circumstance referred to by the learned single Judge was that the report of the Departmental Inquiry Committee showed that they were influenced as much as by what had transpired before the fact-finding Inquiry Committee as by the proceedings before them after the Departmental Inquiry commenced. The learned Judge referred to an observation in the report of the Departmental Inquiry Committee which reads as under :- "EVIDENCEof the witnesses examined by the fact-finding Inquiry Committee and the Formal Inquiry Committee have established beyond doubt that (two) bags of goatskins booked under Invoice No. 108 of 13-2-53 and 8 bags of goat-skins and 7 bundles of cowhides booked under Invoice No. 110 dated 15-2-53 ex-Tiruldih to Shalimar were not loaded at all from Tiruldih." (17) The said observation does suggest that the members of the Committee were keeping in mind the evidence adduced before the fact-finding Inquiry Committee.
(18) The third circumstance was the way in which the Inquiry Committee conducted the disciplinary or departmental inquiry proceedings. We shall refer to this again in detail at a later stage in considering the question of violation of principles of natural justice. For the present, it is sufficient to state that as and when a witness was examined by the Departmental Inquiry Committee, if the witness had been diamined before the fact-finding Inquiry Committee, his statement recorded at the fact-finding inquiry was either read out to the witness, or even without reading it out the witness was asked and the witness replied that he would stand by his statement recorded at the fact- finding inquiry. Immediately after such reading out or affirmation by the witness, the respondent was called upon to cross-examine the said witness. In other words, there was no examination-in-chief of any of the witnesses and their earlier statements before the fact-finding Inquiry Committee were adopted as their statements in examination-in-chief before the Departmental Inquiry Committee. The method so adopted does suggest that the members of the Departmental Inquiry Committee were constantly having in their minds the statements of the various witnesses examined at the fact-finding inquiry and the proceedings therein, and in the circumstances it cannot be said that the suggestion on behalf of the respondent that the members of the Departmental Inquiry Committee had kept in their minds the findings given by them against the respondent in their report as members of the fact-finding Inquiry Committee is not far- fetched.
(19) Taking the aforesaid three circumstances into consideration, we agree with the view of the learned single Judge that the way in which the members of the Departmental Inquiry Committee conducted the proceedings does leave an impression that they had kept in their minds and were influenced by their findings in their report as members of the fact-finding Inquiry Committee, and had thus pre-judged the guilt of the respondent herein. We are, therefore, unable to accept the first contention of Shri Nanak Chand.
(20) The second contention of Shri Nanak Chand was that the learned single Judge erred in accepting the submission on behalf of the respondent herein that there was violation of principles of natural justice, and that he did not have a reasonable opportunity to defend himself in an effective manner. The learned single Judge gave two reasons for his aforesaid view. The first reason was that copies of the statements of witnesses examined in the fact-finding inquiry were not given to the respondent herein so as to enable him to cross-examine the witnesses effectively when they were examined in the subsequent departmental inquiry. As stated earlier, the charge sheet was issued to the respondent by the District Commercial Superintendent on May 7, 1954. On receiving the same, the respondent, wrote a letter to the District Commercial Superintendent, on May 10, 1954, asking for copies of the evidence recorded at the preliminary of fact-finding inquiry. The District Commercial Superintendent replied on May 15, 1954, stating that the copies asked for could not be given as the penalty of removal from service had not yet been inflated upon him. We find it difficult to understand the said reason given by him. The respondent submitted his explanation on May 19, 1954, and he pointed out in the said explanation that he had not been supplied with copies of the statements recorded during the preliminary or fact-finding inquiry. Again, in giving his reply, dated October 6, 1955, to the show cause notice, dated September 20, 1955, he reiterated his complaint in his explanation, dated May 19, 1954, viz., that he had not been supplied with copies of the statements of the witnesses recorded in the preliminary or fact-finding inquiry. It is thus a fact that the respondent was not supplied during the departmental inquiry the copies of the statements of the witnesses examined at the preliminary or fact-finding inquiry. This has in fact been admitted in paragraph 9 of the counter affidavit filed on behalf of the respondents in the Writ Petition.
(21) A perusal of the copies of the statements of witnesses recorded during the departmental inquiry which have been annexed to the Writ Petition shows that 12 witnesses were examined during the said inquiry. In the case of witnesses Nos. 1, 4, 9, and 12 their statements recorded during the preliminary inquiry were read out in the presence of the respondent, the witnesses stated that they stood by the evidence given by them before the fact-finding Inquiry Committee, and that they had nothing further to add to what they had already deposed previously, and then the respondent was asked to cross-examine the witnesses. In the case of witnesses Nos. 2,3,5,6,7,10 and 11, the earlier statements were not read out, but the respondent was asked to cross-examine them straightaway. In the case of witness No. 8, an earlier statement written and given by the witness to the Watch and Ward Assistant Inspector on December 7, 1953, was put to him, and on the witness admitting that he did so, the respondent was asked to cross-examine the witness. In the case of witness No. 12, his earlier statement does not appear to have been read out. The witness, however, stated that he stood by his statement given before the fact-finding Committee, and thereupon he was cross-examined by Shri Benham. That it was so done is. apparent from the copies on record and the same was also admitted in a way in the counter affidavit of Shri Govind Chandra Hazara, Assistant Personnel Officer, South Eastern Railway, Calcutta, wherein the deponent stated that the statements of “some witnesses who were examined at the fact- finding inquiry were read out in the presence of the witnesses who cross-examined them.” The learned single Judge referred to the observation of the Supreme Court in M/s. Keso Ram Cotton Mills Ltd. v. Ganga-Dhar and others, that where lawyers are permitted before a Tribunal holding an inquiry and the party against whom the inquiry is being held is represented by a lawyer, it may be possible to say that a mere reading of the material to be used in the inquiry may sometimes be sufficient, and then observed that in the present case the respondent herein was not represented by a lawyer, and that a mere reading of the earlier statements before he was called upon to cross-examine the witnesses was no better than making a mockery of the opportunity of defending himself. In that view, the learned Judge held that, without copies, the respondent must have been handicapped in cross-examining the witnesses even if the earlier statements had been read out during the departmental inquiry. With respect, we entirely agree with the view of the learned Judge which is fortified by the observations of the Supreme Court at page 827 of the report in the case of M/s. Keso Ram Cotton Mills Ltd. (supra). As stated above, the earlier statements were read out in the case of only some of the witnesses, and when so read out, even a lawyer, unless he had an extraordinary memory might have found it difficult to remember or take notes of all the averments in the statements and cross-examine the witnesses regarding the said averments. That being so, it is obvious that a person like the respondent, even when the earlier statements were read out, could not have remembered or taken notes of all the averments in the said statements and effectively cross-examine the witnesses with reference to those averments. It was a greater handicap In the case of those witnesses whose earlier statements were not read out at all. In the circumstances, it has to be held that the noneupply of the copies of the earlier statements of the witnesses had prevented the respondent from effectively cross-examining the witnesses, that he had thus been denied a reasonable opportunity to effectively defend himself, and that the principle of natural justice was thus violated.
(22) Shri Nanak Chand referred to the decision of the Supreme Court in State of Mysore v. Shivabasappa Shivappa Makapur, . The learned counsel drew our attention to the observation in paragraph 6 of the judgment which reads as under :- “…………THEperson against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation. When the evidence is oral, normally the examination of the witness will in its entirety take place before the party charged, who will have full opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him, and admitted in evidence, a copy thereof is given to the party, and he is given an opportunity to cross-examine him. To require in that case that the contents of the previous statement should be repeated by the witness word by word, and sentence by sentence, is to insist on bare technicalities, and rules of natural justice are matters not of form but of substance. In our opinion they are sufficiently compiled with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to the persons charged, and he is given an opportunity to cross-examine them.”
(23) The above observation is clearly of no assistance to the learned counsel. It no doubt points out that the earlier statements may be read out to the witness, and the witness need not repeat the said statement word by word and sentence by sentence. But, in the present case, the earlier statements were not even read out in the case of some of the witnesses. That apart, the more important point to be noted is that it was stated clearly in the aforesaid observation of the Supreme Court that copies of the earlier statements were given to the delinquent. That was why it was held in that case that the principles of natural justice were sufficiently complied with. As already stated, in the present case, copies of the earlier statements were not supplied to the respondent, and in such a situation the principles on natural justice cannot be said to have been sufficiently complied with.
(24) Shri Nanak Chand also urged that during the departmental inquiry the respondent did not make any grievance of the non-supply of the copies of the statements of the witnesses examined at the preliminary inquiry, and that it was not, therefore, open to him to raise that question against in the Writ Petition. There is no force on the said argument. As pointed out above, as soon as he received the charge sheet, he wrote a letter on May 10, 1954, asking for the said copies, but the District Commercial Superintendent replied on May 15, 1954, flatly refusing to furnish the said copies. The respondent again requested for the copies in his explanation dated May 19, 1954, and in his letter, dated October 6, 1955. But, there was no response and the copies were not supplied. In view of the refusal by the District Commercial Superintendent and the subsequent silence of the authorities, there was no point in the respondent asking for the copies again and again during the further stages of the departmental inquiry. The argument of the learned counsel is thus without any force.
(25) The second reason given by the learned single Judge was that the evidence produced during the departmental inquiry by either side was not at all referred to in the inquiry report and no reasons were given as to why the charges framed against the respondent were considered to be proved. The report of the fact-finding Inquiry Committee has, not been placed on record as the file was stated to have been lost. As regards the report of the Departmental Inquiry Committee, as observed by the learned Judge, beyond stating that the evidence established this fact or that fact, there was no reference to the said evidence of the witnesses examined by the parties and much less any discussion of the averments of the said witnesses. No reasons were given as to why the charges framed against the respondent were considered to be proved. Such discussion and reasons were necessary as they would enable the respondent to give an effective explanation and show cause against the proposed penalty or punishment. The omission to do so was clearly a handicap for the respondent and be must be held to have been prejudiced thereby. The decision of the General Manager, dated July 25, 1957, removing the respondent from service was even more laconic without any reference to the evidence or any discussion of the submissions made by the respondent in his explanation dated November 26, 1956, showing cause against the proposed punishment. Thus, the learned Judge was justified in taking the view that the respondent did not have a reasonable opportunity to defend himself in an effective manner. We, therefore, reject the second contention of the learned counsel for the appellants.
(26) The third and the last contention of Shri Nanak Chand was that the learned single Judge was not justified in holding that the appellate order, dated December 24, 1962, did not appear to have been passed in accordance with the requirements of Rule 1721 of the Discipline and Appeal Rules for Railway Servants (Non-gazetted), 1951, The said Rule 1721 reads as under :- “1721-DUTIESof appellate authorities- The appellate authority shall consider- (a) whether the facts on which the order was based have been established; (b) whether the facts established afford sufficient ground for taking action and (c) whether the penalty imposed is adequate, inadequate or excessive.”
(27) The rule obviously makes it obligatory for the appellate authority to consider the various aspects mentioned in clauses (a), (b) and (c). The word “consider” clearly means a reference and an application of the mind to the evidence on record, particularly, in the light of the grounds urged in the Memorandum of Appeal. In fact. Rule 1719 prescribed that every appeal preferred “shall contain all material statements and arguments relied .on by the appellant.” The said requirement would be otiose if the arguments or grounds set out in the Memorandum of Appeal are not referred to, discussed, and considered by the appellate authority. No doubt the rules do not prescribe the form in which the order of the appellate authority should be pronounced. But, as observed by the Supreme Court in Bhagat Raja v. Union of India, a quasi-judicial authority like the appellate authority with which we are concerned in the present case should give reasons for its conclusion as the decision of the said appellate authority is subject to judicial review by the High Court under Article 227 of the Constitution and the appellate power of the Supreme Court under Article 136 of the Constitution. As observed by Mitter, J. in the aforesaid decision, when no reasons are given or when the reasons given are scrappy or nebulous and the appellate authority makes no attempt to clarify the same, the High Court or the Supreme Court in appeal would have to examine the case de novo, without anybody being the wiser for the appellate order of the concerned appellate authority. The order of the appellate authority has to be a “speaking order”, and in the present case, there cannot be any doubt about it m view of the clear provision in Rule 1721. Under the said Rule, the appellate authority is required to consider the various aspects mentioned in clauses (a) to (c), and as a quasi-judicial authority its order should contain not only its decision but an adequate disclosure of the materials on which the decision is based so as to justify an inference that there has been a judicial consideration of the case of the appellant. Further, as pointed out by Shah J. in Travancore Rayon v. Union of India, , “the Court insists upon disclosure of reasons in support of the order on two grounds: one, that the party aggrieved in a proceeding before the High Court or this Court (Supreme Court) has the opportunity to demonstrate that the reasons which persuaded the authority to reject his case were erroneous; the other, that the obligation to record reasons operates as a deterrent against possible arbitrary action by the executive authority invested with the judicial power.” In the present case, the appellate order of the Railway Board, dated December 24, 1962, has not been placed on record by either of the parties. It is, therefore, not possible to say whether the appellate order was in conformity with the provision in Rule 1721. The learned single Judge observed that there was no material to show that the appellate authority, while dismissing the respondent’s appeal, had kept in view the requirements of Rule 1,721. The learned counsel for the respondent submitted that it was for the appellants herein to produce a copy of the order. Shri Nanak Chand referred to an affidavit of Shri Sunil Bhattacharjee, Assistant Personnel Officer, Personnel Department of the South Eastern Railway, dated May 4, 1973. It was averred in that affidavit that the appellants engaged Shri R. S. Narula Advocate (now Hon’ble Mr. Justice R. S. Narula), that on his elevation to the Bench the appellants engaged Shri Nanak Chand, Advocate, that the case had been pending in the courts for the last 15 years, and that in the course of handing over records from one advocate to another the documents have been mislaid. Even if the documents had been mislaid, we are unable to understand why the Railway Board has not been able to produce at least an office copy of the appellate order. In the circumstances, we do not find any reason to assume or presume that the appellate order was in conformity with Rule 1721. In any case, in the view taken by us and the learned single Judge that the departmental inquiry and the report of the Inquiry Committee- were vitiated for the reasons mentioned in our judgments, the appellate order also is liable to be quashed, and the order of the learned single Judge quashing the same need not, therefore, be interfered with.
(28) For the foregoing reasons, the Letters Patent Appeal fails, and is dismissed with costs which are fixed at Rs. 250.00.