S.N. Dwivedi, J.
1. In 1955 the petitioner held the post of a trvelling ticket examiner in the Northern Railway. He was removed from service by an order of the Divisional Commercial Superintendent dated 25 August 1959. His appeal against that order was dismissed by the Divisional Superintendent by his order dated 28 December 1959. He has moved this writ petition against the said two orders and prays that they be quashed.
2. The main argument is that the order removing him from service was passed in contravention of the provisions of Clause (2) of Article 311 of the Constitution, inasmuch as he was removed without having been afforded a reasonable opportunity of showing cause against the order of removal. In order to appreciate the argument it will be necessary to state briefly the material foots of the case.
3. The Divisional Commercial Superintendent delivered to him a chargesheet on 30 March 1956 and asked him to explain the charge contained therein. The charge was that while working as travelling ticket examiner on 29 September 1955 in the Agra-Kanpur passenger train he, in conjunction with the guard incharge Sri I.A. Khan, carried a number of ticketless passengers and passed them out of the gate at Etawah with the connivance of the ticket collector Sri S.P. Sharma. It is farther stated in the chargesheet that some of those passengers were apprehended by the staff of the Anti-Corruption branch at Etawah. Their names, as mentioned in the chargesheet, are Nathur Ram Sharma, Ram Kumar Varma, Sri Ram and Shyam Kishan Gupta. All these persons appeared to have admitted that they had paid a few annas as bribe for being permitted to pass out of the station gate at Etawah. Their statements were recorded behind the back of the petitioner and he could not cross-examine them. The petitioner submitted his explanation and thereupon a departmental enquiry was held. In that departmental enquiry none of the aforesaid passengers were examined. Their statements were, however, brought on record. It may, however, be observed that the petitioner was given no opportunity be cross-examine them. Four witnesses, Dogra, inspector. Sri L.S. Sharma, watcher, Hari Chand, khalasi of the vigilance squad and Sri Girdhari Lal, station master, Etawah, were examined in the presence of the petitioner. Their statements are annexures B. 1, B. 2, B. 3, and B. 4 to the affidavit of the petitioner. It appears from their statements that none of them were the eye-witnesses of the acceptance of the bribe by the petitioner or his associates. After the enquiry was over, the enquiring officer gave a finding that the charges were proved against the petitioner. Thereupon a show-cause notice was issued to him to explain why he should not fee removed from service. He submitted his explanation but that did not satisfy the divisional Commercial Superintendent. He accordingly passed the order removing him from service.
4. It appears to me that the order of removal a based upon the evidence of the four passengers which were recorded behind the back of the petitioner without affording an opportunity of cross-examining those witnesses in spite of petitioner's request to that effect. On appeal an argument was raised on behalf of the petitioner that the enquiry was defective because the four passenger-witnesses were not examined in the departmental enquiry. The Divisional Superintendent did not accept the argument because in his view the statements of the witnesses were taken on spot in the presence of the station master. He was of opinion that in view of that circumstance no importance could be attached to the non-examination of the passenger-witnesses in the departmental enquiry in the presence of the petitioner. He said:
I have to see whether natural justice has been done and I am satisfied that the original statements taken from the passengers have the necessary stamp of truth.
5. Sri Jagdlsh Swarup, learned Counsel for the respondents, does not dispute that the order removing the petitioner from service is founded on the statements of the passenger-witnesses, which were recorded behind his back and without affording him an opportunity of cross-examining them. It is thus clear that be has been removed from service on evidence which be was not allowed to test by cross-examination. It cannot, therefore, be said that he has been removed after having been afforded a reasonable opportunity of showing cause against the action proposed to be taken. It has been held in several cases by this Court as well as by the Supreme Court that the opportunity contemplated by Clause (2) of Article 311 of the Constitution means an opportunity inter alia of testing the adversary evidence by cross-examination. It has also been held that the adversary witnesses, whose evidence is relied upon, should be examined in the presence of the employee in the departmental enquiry. Here undisputedly neither the passenger-witnesses were examined in the presence of the petitioner nor was he allowed to cross-examine them at any stage. I am, therefore, of opinion that he has been removed in contravention of the provisions of Clause (2) of Article 311 of the Constitution.
6. I accordingly allow the writ petition with coats and quash the order of Divisional Commercial Superintendent removing the petitioner from service which was communicated to him by a letter dated 25 August 1959 and the appellate order of the Divisional Superintendent, Allahabad, dated 28/29 December 1959.