S.S. Dhavan, J.
1. This is a petition under Article 226 of the Constitution filed toy Avinash Chandra Sanjar, a ticket collector employed by the Central Railway, challenging the legality of an order passed by the Divisional Superintendent, Central Railway, Jhansi, removing Mm from service on the ground of incivility to a travelling passenger.
2. The facts are these. An incident occurred at Mahoba railway station on 28 May 1958 immediately after the arrival of the 523 Down passenger train from Jhansi on its way to Manikpur. The persona involved were Sri M.L. Dwivedi, a Member of Parliament and another person whose identity was never established but who is alleged by the respondent railway to be Avinash Chandra Sanjar himself. According to an eye-witness, who was the ticket collector on duty at the exit gate, passengers started passing through that gate soon after the arrival of the train at Mahoba. A group of five or six passengers went through the gate but had no tickets. The ticket collector checked them but they replied that a man following them had their tickets. The official waited for two or three minutes but nobody came forth with the missing tickets and meanwhile the passengers continued to pass through the gate. The ticket collector began to murmur against the irregularity of this procedure when a gentleman dressed in khadar came from the waiting room and tried to assure him that the persons who had gone out without tickets were his companions and that they were not without tickets. At this stage, an unknown person intervened and made remarks which were resented by Sri Dwivedi, and it appears that there was quite a scene at the railway station. During the resulting confusion, the unknown person disappeared and was never traced afterwards. Sri Dwivedi, however, persisted on pursuing the matter further and complained to the assistant station-master on duty. He wanted his assistance to establish the identity of the person who had offended him and demanded a search of the train on the suspicion that the person had probably hid himself in one of the compartments. A search was accordingly made and Sri Dwivedi pointed to a passenger and asked for his name. That passenger, however, refused to reveal his name and asserted that he had never left his compartment. Meanwhile other passengers who wasted to purchase tickets complained to the assistant station-master that they were being neglected. That official was compelled to return to his office to attend to their needs. The passenger pointed out by Sri Dwivedi apparently took advantage of this interval and disappeared from the compartment. Sri Dwivedi, however, insisted that the man should be traced and even made the surprising demand that the train should be detained and not allowed to leave the station until the man was caught. The other passengers, however, protested that there was no reason why they should suffer inconvenience and be made to miss a connexion. The railway officials regretted their inability to detain the train but advised Sri Dwivedi to make a complaint which he duly wrote down in the complaint book kept at the station.
3. The railway authorities took serious notice of Sri Dwivedl's complaint, but their problem was to find the man who had offended him. It is not clear how the suspicion fell on the petitioner Avinash Chandra Sanjar. Learned Counsel for the railway was not able to explain, in spite of repeated questions by this Court, how the railway picked him out as the guilty person, nor have the railway produced any documents to show why, when and how the petitioner became a suspect. This part of the controversy remains enveloped in mystery which has not been cleared up. At any rate, if the railway know why they suspected Avinash Chandra, they have not placed their knowledge at the disposal of this Court.
4. On 2 June 1958, Avinash Chandra Sanjar was directed by his superiors to see Sri Dwivedi which he did on 28 June at Harpalpur railway station when Sri Dwivedi was travelling in a train. The object of this interview evidently was to enable Sri Dwivedi to identify the person who was alleged to have insulted him at Mahoba. There are two conflicting versions of this interview--one by Sri Dwivedi and the other by the petitioner. A fortnight after the interview, on 11 July, Sri Dwivedi wrote a letter to the Divisional Superintendent, Jhansi, that he had identified Avinash Chandra as the 'person who had behaved awkwardly with me at Mahoba railway station on a previous occasion' and against whom he had already lodged a complaint. He also added that Sanjar 'was overwhelmingly apologetics' and recommended that he might be let off with a warning. The petitioner's version of this interview was different. He too wrote to the Divisional Superintendent that he had seen Sri Dwivedi and had asked him why he had sent for him (Sanjar). According to the petitioner, Sri Dwivedi asked him to admit his fault to which he replied that he did not even know the charge against him. Sri Dwivedi is reported to have observed that he could not recognize him as the guilty person as he had covered his head with a hat. Sri Dwivedi asked him to go away but warned him that he would send a report to the Divisional Superintendent.
5. On 3 July 1958, Avinash Chandra Sanjar was served with a charge-sheet and was asked to show cause why he should not be punished for his misbehaviour. It is necessary to quote the charge which runs thus:
Charges: 'Incivility to public, under Rule 1708 (v). in that you used disgraceful language towards Sri M.L. Dwivedi, M.F. and assaulted him at Mahoba station on 28 May 1958, when the said Member of Parliament Sri M.L. Dwivedi was standing near the exit gate.
6. The petitioner was asked to submit his reply within seven days, but instead of Bending his explanation he requested that a copy of the complaint made by Sri Dwivedi at Mahoba railway station be supplied to him. This request was rejected by the Divisional Superintendent on the ground that, to quote his own words:
The charge-sheet is very clear and specific charges have been levelled against you.
It is common ground that the petitioner submitted no explanation, but defended himself in the inquiry which followed.
7. Five witnesses were examined by the inquiry officer--
(1) The petitioner;
(2) Binda Singh Khushwaha who was the ticket collector on duty when the incident took place;
(3) M.P. Sinha, the assistant station-master on duty at Mahoba station;
(4) Jassn, a pointsman who was present on the platform when the incident occurred; and
(5) B.L. Sinha, who was the guard of 523 Down when it was standing at Mahoba railway station.
8. The petitioner, in his evidence, denied his guilt completely and asserted that he was not the person who was involved in the altercation with Sri Dwivedi. He admitted that he was travelling in the same train but asserted that he was asleep in his compartment and knew nothing of what had happened outside. The ticket collector Binda Singh Khushwaha deposed that there was an incident between Sri Dwivedi and an unknown gentleman. But he clearly stated he could not recognize that person. The assistant station-master, M.P. Sinha deposed that Sri Dwivedi had made a complaint against some person who had misbehaved against him, but said that he was unable to recognize him. He plainly stated, in reply to a direct question from the tribunal, that Avinash Chandra Sanjar was not the man. The pointsman Jassu had not witnessed the actual incident but stated that Sri Dwivedi bad asked him the whereabouts of the station-master and had also directed him (Jassu) to request the assistant station-master to detain the train till the guilty person was found. The guard of the train, B.L. Sinha was not an eye-witness of the incident but of what might be properly described in the law of evidence as res gestae. He deposed that he heard Sri Dwivedi accusing the assistant station-master of having allowed a person to escape after having insulted him. Thereupon the guard volunteered his services. Meanwhile, the other passengers, were getting impatient because the train was being detained for a case in which they were not interested, and one of the passengers actually told Sri Dwivedi not to harass the assistant station-master. The guard could throw very little light on the identity of the accused person and expressly stated that Avinash Chandra Sanjar was not the man.
9. The inquiry officer, on this evidence, held the petitioner guilty of the charge of incivility to Sri M.L. Dwivedi, but not guilty of the charge of having assaulted him, He gave his reasons for his finding which run into six typed pages. He disbelieved all the railway officials who had deposed that they were unable to recognize the petitioner as the offending person and observed that a deliberate attempt had been made to shield the petitioner. He mainly relied on the identification of the petitioner as the guilty person by Sri Dwivedi at the interview at Harpalpur railway station. The inquiry officer observed that during the altercation Sri Dwivedi 'marked carefully' the person to be able to recognize him.
10. On the findings of the inquiry officer, the petitioner was asked to show cause why he should not be removed from service. He sent a long explanation in which he pointed out that the inquiry was not fairly conducted and that material documents had been withheld from him. He denied that he was the person involved in the incident and reiterated his innocence. His explanation was, however, rejected and on 15 October 1958, the Divisional Superintendent, Jhansi, passed an order removing him from service 'for incivility.' The petitioner submitted an appeal against this decision to the Chief Commercial Superintendent, Bombay, who declined to interfere with the order of removal. The petitioner has now come to this Court for relief.
11. Sri Jagdish Swarup, learned Counsel for the railway has raised two preliminary objections that the petition is not maintainable. First, he contended that the order of removal had merged in the order of the Chief Commercial Superintendent, Bombay, who had dismissed the petitioner's appeal. This Court, he pointed out, had no jurisdiction to issue any order under Article 226 to an official who admittedly resides and functions in Bombay. In brief, the argument is, that the petitioner asked for relief from the wrong High Court.
12. Secondly, Sri Jagdish Swarup submitted that the petitioner has an alternative remedy by way of a civil suit.
13. The first objection appears to be without merit. The doctrine of merger is confined to judicial or quasi-judicial proceedings and does not extend to an order of dismissal which is confirmed on appeal. The proceedings before the inquiry officer may be quasi-Judicial, but the order removing the petitioner from service is an executive order. The petitioner had a right of appeal against it, but no question of the order of the removing officer in that of the appellate officer arises. The overwhelming weight of authority is against the preliminary objection. In Abul Hasan v. Works Manager, Northern Railway 1961--I L.L.J. 424, a Division Bench of this Court held that an administrative order stands on a different footing from a judicial order which may emerge on appeal in the order of the appellate authority. The learned Judge followed the principle laid down by the Supreme Court in State of Uttar Pradesh v. Mohd. Nooh A.I.R. 1958 S.C. 86 in which the doctrine of merger was analysed and held not applicable to an order of dismissal upheld on appeal. The Supreme Court observed that the original order of dismissal
'is operative on its own strength' and does not gain any greater efficacy from the subsequent order of dismissal of the appeal or revision.
A Special Bench of the Calcutta High Court took the same view in East India Commercial, Ltd. v. Collector of Customs : AIR1960Cal1 . In the present case the order of removal was passed by the Divisional Superintendent, Jhansi, who resides and functions within the territorial jurisdiction of this Court. The Chief Commercial Superintendent who declined to interfere in appeal resides in Bombay and this Court can issue no direction to him. But as explained above, it is not necessary for this Court, in order to give effective relief to the petitioner, to interfere with the order in appeal. The order of removal can be examined on its own merits and quashed on a proper case being made out against him. The first objection, must, therefore, fall.
14. Nor am I impressed with the second. It is true that the petitioner has an alternative remedy, and this Court does not ordinarily interfere when the petitioner can obtain adequate relief by way of a civil suit. But this is a practice based on the self-discipline of the Court and is not like the laws of the Medes and Persians to be rigidly applied in every case. The Supreme Court has granted relief in several cases though the petitioner had an alternative remedy. In State of Uttar Pradesh v. Mohd. Nooh A.I.R. 1958 S.C. 86 (supra), the Supreme Court interfered even though the petitioner had a right of appeal before a higher tribunal and had not availed of it. In Prabhawati v. District Magistrate, Allahabad : AIR1952All836 , this Court quashed an order of the District Magistrate even though the petitioner had a remedy by way of a suit for ejectment on the ground that the petitioner was an old lady who would not live to enjoy the fruits for the decree for ejectment if she was driven to the civil Courts. The second objection too must fail.
15. On merits Sri B.P. Srivastava, learned Counsel for the petitioner, urged the following arguments against the proceedings which lead to the removal of the petitioner. First he contended that the charge against the petitioner was too vague to enable him to give a satisfactory explanation in defence. Secondly, the finding of the inquiry officer that the petitioner Avinash Chandra Sanjar was the man who had misbehaved towards Sri Dwivedi was based on no evidence whatsoever. Thirdly, the proceedings in the inquiry were in violation of the principles of natural justice as the inquiry officer had relied upon Sri Dwivedi's complaint which was never shown to the petitioner. Fourthly, the petitioner's request for examining Sri Dwivedi who was the complainant against him and, therefore, the most Important witness was rejected on inadequate grounds. For all these reasons the petitioner was deprived of the constitutional protection of Article 311(2) of the Constitution which enjoins that no member of an All India Service should be dismissed or removed or reduced in rank unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken against him. According to the learned Counsel, the petitioner was not given such an opportunity.
16. I have heard the learned Counsel for both sides at considerable length and am of the opinion that all these contentions are unanswerable. I shall first take the question of the vagueness of the charge against the petitioner.
17. The charge has been quoted above and need not be repeated. In a nut-shell it accused the petitioner of incivility to the public. The particulars of this accusation were in the following manner:
That you used disgraceful language towards Sri M.L. Dwivedi and assaulted him at Mahoba station on 28 May 1958.
It is not necessary for this Court to consider the charge of assault as it has been rejected by the tribunal as not proved. The whole ease against the petitioner is reduced to the allegation that the petitioner 'used disgrace-full language' towards Sri Dwivedi. I am afraid this is much too vague to form the basis of a valid charge. When a railway official is accused of offence of incivility to the public, it is not enough to allege against him that he used 'disgraceful language' against a particular passenger. The actual words attributed to him must be included in the charge to enable the inquiry officer to decide whether, in the particular circumstances, the use of the words amounted to incivility. The mere addition of the adjective 'disgraceful' to the noun 'language' does not make the charge clear and specific.
18. In the present case, the railway has not stated in its counter-affidavit what language was used by the petitioner during his alleged altercation with Sri Dwivedi. I have perused the entire record of the proceedings before the inquiry officer which has been appended to a supplementary affidavit filed by the petitioner. Not one witness was able to repeat the exact language used by the petitioner assuming that he was the person involved in the incident. It is not known what words were attributed to the petitioner by Sri Dwivedi in his complaint. This document was not shown to the petitioner nor has it been produced before this Court. Even the counsel for the railway was unable to state before the Court, in spite of repeated questions, the precise words alleged to have been used by the petitioner. He was not able even to give a paraphrase of what the petitioner had said. In his subsequent letter to the railway in which he claimed to have identified the petitioner as the accused person Sri Dwivedi described him 'as the person who had behaved awkwardly with me at Mahoba railway station. 'Thus, whereas the charge-sheet says that he used disgraceful language, the complainant himself stated that the petitioner 'behaved awkwardly' with him. I do not think awkward behaviour. Is the same thing as uncivil behaviour. A schoolboy who appears before his principal or elders improperly dressed may be guilty of awkward behaviour but not of uncivil attitude. It is the settled view of the Supreme Court and all the High Courts in India that the vagueness of the charge against a Government servant vitiates the inquiry which subsequently leads to his dismissal or removal or reduction. Khem Chand v. Union of India 1959--I L.L.J. 167 Niranjan Prasad v. State of Uttar Pradesh : AIR1960All323 ; in re Rajdhar Kalu Patel A.I.R. 1958 Bom. 334. 1, therefore, hold that the charge against the petitioner was too vague and this is a fatal defect which vitiates the entire proceedings.
19. The petitioner's second grievance is that the findings of the inquiry officer are based on no evidence whatsoever. After examining the record and hearing the learned Counsel I am inclined to agree. The crucial question before that officer was the identity of the person who was alleged to have misbehaved towards Sri M.L. Dwivedi, M.P. The petitioner had denied that he was the person and pleaded that it was a case of mistaken identity. Judicial annals are littered with oases of persons who were convicted of crimes never committed by them on the basis of wrong identification. It was therefore, all the more necessary to establish by clear evidence that the petitioner was the guilty person. I have examined the entire record and find that every single witness stated before the inquiry officer that the petitioner was not that person. Learned Counsel for the railway took time to examine the record but had to concede on the second day of the hearing that he was unable to find any evidence on the record connecting the petitioner with the unknown person who is alleged to have misbehaved. The inquiry officer, however, felt that the witnesses had deliberately concealed the truth, from him and tried to read between the lines of the deposition of each witness. This was an erroneous approach to the question of proof. The tribunals in charge of such inquiries, in their anxiety to find evidence of guilt against an accused officer, will do well to remember the injunction of the Privy Council in B.B. Singh v. The Emperor that a tribunal cannot convict a person on the basis of evidence which was never produced howsoever strongly it may feel that such evidence ought to have been produced. I, therefore, hold that there was no evidence before the inquiry officer to prove that the petitioner was the person who had misbehaved towards the complainant Member of Parliament. It is settled law that a finding based on a total absence of evidence will not be allowed to stand. In R.C. Verma v. R.D. Verma : AIR1958All532 , and also in the unreported case of Mohd. Ibrahim v. State of Uttar Pradesh in Special Appeal No. 342 of 1955, the finding of the inquiry officer that the petitioner was the guilty person must be set aside as it is based on no evidence.
20. The petitioner's third grievance is that the inquiry was conducted in violation of the principles of natural justice. It is common ground that the complaint of Sri M.L. Dwivedi, M.P. was never disclosed to the petitioner and yet it is admitted by the railway that Sri Dwivedl's complaint was placed before the inquiry officer and was thoroughly examined by him. This is corroborated by the reasons given by the inquiry officer for his findings. He has observed that the accused was 'a young person whom Sri M.L. Dwivedi, M.P. marked carefully to be able to recognize. 'This information must have been obtained by the inquiry officer from sources other than the witnesses who deposed before him. I have examined the evidence of each witness. None of them stated that Sri Dwivedi had declared before them that he had carefully scrutinized the features of the offending person. It is, therefore, clear that the inquiry officer either relied on the written complaint of Sri Dwivedi or on some other unknown source of information. The petitioner was not confronted with either of these sources. He had no opportunity to explain that Sri Dwivedi might be mistaken. He asked for a copy of Sri Dwivedl's written complaint but his request was rejected on the ground that it was a privileged document. It is difficult for this Court to understand much less appreciate, this reason, Sri Dwivedi made his complaint in the official complaint book which is kept at every railway station and to which every member of the public has access; I regret to say without meaning any offence to the inquiry officer, that in rejecting the petitioner's request for the most important document in the case, he used the high sounding phrase, 'privileged document, 'without appreciating the meaning of this term. To this day the petitioner is not aware of the precise nature of the complaint made by Sri Dwivedi against him. In the inquiry he was asked to defend himself against something which he did not know. This reason alone is sufficient to vitiate the entire proceedings.
21. The next grievance of the petitioner is that his request for the examination of Sri M.L. Dwivedi, M.P. was rejected. The reason given by the inquiry officer for the rejection of this request is best stated in his own words:
At this stage the defence counsel was informed that it appeared that Sri M.L. Dwivedi desired the Divisional Superintendent to take a lenient view of the case. Under the circumstances it was not felt necessary to summon Sri Dwivedi, M.P. to appear as a witness by the inquiry committee. This argument equally applies for not making the copy of the original complaint received from Sri M.L. Dwivedi available to the defence counsel.
22. The inquiry officer evidently had in mind the letter of Sri Dwivedi, dated 11 July 1958, in which he identified the petitioner as the offending person but strongly recommended that in view of his apology he should be let off with a warning. The inquiry officer made use of the kindheartedness of Sri Dwivedi to deprive the petitioner of his dear legal right, but afterwards the railway Ignored Sri Dwivedi's recommendation for leniency and removed the petitioner from service on the basis of a complaint which was never shown to the petitioner.
23. It is true that it was not within the power of the railway authorities to compel Sri Dwivedi to give evidence before the inquiry officer. But the inquiry officer never even tried to summon Sri Dwivedi and rejected the petitioner's request for reasons given above. Even if Sri Dwivedi had refused to attend the inquiry, the proper course for the inquiry officer would have been to discard any statement made by Sri Dwivedi against the petitioner behind his back. The inquiry officer adopted the reverse course. He thought that it was not at all necessary to summon Sri Dwivedi but relied on every statement made by him as evidence against the petitioner. There has been violation of the principles of natural justice.
24. For the reasons stated above, the proceedings before the inquiry officer must be quashed. Consequently, the order of removal which is based on these proceedings must also be set aside. I, therefore, allow this petition with costs and set aside the order of of the Divisional Superintendent, dated 15 October 1958, removing the petitioner Avinash Chandra from service.
25. Before leaving this case I would like to mention that the case for the petitioner was argued with considerable ability and exemplary thoroughness by Sri B.P. Srivastava. He exhibited a complete mastery over the record of this complicated case and the Court is obliged to him for his assistance.