R.M. Sahai, J.
1. In this defendant's second appeal directed against concurrent decree of two Courts below granting declaration that order dated 15th October, 1967 removing respondent from service was illegal and inoperative, consequently the respondent continued in service since 1962 and was entitled to all benefits and emoluments including his salary, the decisive controversy is whether the finding that enquiry against respondent was violative of principle of natural justice and contrary to fundamental procedure of law is well founded.
2. Appointed as coal boy in 1957 respondent was chargesheeted in 1962, for absence of duty from 30th August 1962 to date in an unauthorised manner, while working as ladderman in Central Loco Shed, Bina. No evidence oral or documentary was mentioned in charge sheet although respondent was called upon to show cause why he should not be punished with penalty specified in item 6 of the list below that is removal from service. Consequent to above charge sheet enquiry was held by various Officers but according to respondent, it concluded when the respondent could get hold of D.W.2 who was prejudiced against respondent and was willing to go out of way and punish him. Enquiry Officer admitted to have been appointed by Assistant Personnel Officer by written order but expressed inability to produce it. In cross examination he admitted to have examined respondent and his witness first. According to him he formed his opinion on evidence recorded by him and not by his predecessor although he attached copies of those statements as well along with his report. Further he admitted to have formed his opinion on personal file of respondent but he could not state whether respondent was absent from duty since 30th August, 1962 or he was suspended. No written order of suspension could be produced although appellate authority found that after having heard rumour of suspension respondent applied on 1st September, 1962 to supply the written order of suspension but it was only on 8th October, 1965 that the department sent a letter informing respondent that he was not suspended orally. Procedural illegality and violation of natural justice found by Courts below are omissions to mention evidence in charge sheet, proposing punishment to be inflicted even before holding enquiry, examination of respondent and his witness before departmental witnesses, failure to examine entire material by Enquiry Officer, keeping respondent suspended for five years on mere charge of absence from duty, not deciding the appeal for three years, omission to produce suspension order, attendance register, non production of personal file of respondent which was examined by Enquiry Officer before Courts below. Each of these may be examined to find out if the order suffers from any error of law.
3. Section V of Conduct and Discipline Rules etc. of Railways Establishment Code deals with imposition of major penalties. Paragraph 1709 deals with framing charges. It requires Disciplinary authority to frame charge on basis of allegations on which enquiry is proposed to be held and communication of the statement of allegations along with charge sheet to the railway servant. On this the employee is required to file his written statement and under paragraph 1712 the Enquiry Officer is required to enquire into those charges which are not admitted. In the absence of allegations on which charges are based, that is the evidence, the employee cannot file written statement or set up a proper defense. Mere communication that respondent was absent from duty in an unauthorized manner was not sufficient. Under rules it is not an empty formality as the entire foundation of challenge is based on it.
4. Omission to mention evidence in charge sheet was held contrary to principles of natural justice as far back as 1958 in Khemchan v. Union of India 1959-I L.L.J. 167. It was followed by this Court in State of U.P. v. Ashisht Narain Singh (1973) L.I.C. Vol.6, 717. Argument that U.P. Police Regulations did not require mentioning of the evidence in charge sheet was repelled.
5. Examination of the respondent and his witnesses before departmental witnesses was not only irregular but violative of basic principleof enquiry on charge of misconduct etc. In order to bring home charge framed against delinquent the enquiry must stand on its own. That is, the department should not only lead evidence first but prove it affirmatively that the employee was guilty of the charge framed. Asking respondent to appear first and examination of his witness was putting the burden on respondent to prove the negative that he was not absent in an unauthorised manner. Prejudice is writ large in such faulty procedure. How could the respondent speculate evidence and the manner in which his absence was going to be established. Enquiry Officer may have discretion in examination of certain witnesses or he may change the order of examination 1647 as hold in I.T. Inspecting Asstt. Comm. v. S.K. Gupta (1975) L.I.C. 1647 but examination of respondent and his witness before departmental witnesses particularly in a case where no evidence was disclosed in the charge sheet was certainly contrary to procedure of enquiry and principle of natural justice.
6. Both Courts below have found enquiry report to be vitiated due to non-consideration of entire material on record. Enquiry Officer admitted in his deposition that he did not place any reliance on testimony of departmental witnesses recorded by his predecessor yet he attached copies of those statements with his report. Further he admitted to have recorded evidence in Hindi. Trial Court found that eleven witnesses were examined in all, out of which only three were produced on behalf of department. And the substantial evidence of these witnesses was in English. He rightly felt surprised that if testimony of these witnesses was not examined how could the Enquiry Officer record finding of guilt against respondent. In fact respondent has been found to be absent from duty in an unauthorised manner not on departmental evidence but on evidence of respondent.
The lower appellate Court found that order of removal was passed without any application of mind of affording any opportunity of personal interview to respondent. Whether omission to grant personal interview results in vitiation of order or not but failure to apply mind by punishing authority certainly does. From perusal of the order it appears to be mechanical. It is more or less printed, except with blanks to be filled. Order has been issued in standard from No. 6(c). Part dealing with application of mind is printed, 'on a careful consideration of the report and in particular of the conclusions reached in respect of the charge framed against Sri Raghubir Saran, the undersigned agrees with findings of Enquiry Officer,' placed for name was blank which was filled by the punishing authority. One could understand if it was only P.N. Misra (1973) L.I.C. 1331. The learned Single But respondent having taken specific plea in sub-paragraph (x) of paragraph 9 of the plaintiff the appellant could have produced the order if there was any. In absence of it, the order removing respondent from service without application of mind in a mechanical manner cannot be maintained. Non-application of mind is further clear as report of Enquiry Officer was accepted and respondent was removed from service on mere charge of absence of duty without ascertaining whether he was suspended or was absent. What appears from perusal of Enquiry Proceedings that respondent was in fact present on duty on 30th August, 1962 but report was made against him as he left to attend call of nature without obtaining permission and did not return within half hour (paper No. 3/21 of Enquiry proceedings). In State of Punjab v. Bakhtawar Singh AIR 1972 SC 2083, it was held that order of removal which amounts to punishment should be speaking order and where an order does not disclose that the authority had applied its mind to the material on record order could not be upheld. It was gainfully applied by learned Single Judge of this Court in Union of India v. P.N. Misra (1973) L.I.C. 1331. The leanred Single Judge held that the order of removal should be speaking order and if the punishing authority does not appear to apply its mind to the material on record then it is vitiated. To the similar effect is the observation in Harmendra Singh v. General Manager, Northern Railway (All India Service Reports 443),
7. Mention of proposed punishment in charge sheet was no doubt improper but that by itself may not invalidate the enquiry as punishment of removal has been inflicted by an authority different than the Enquiry Officer specially when no allegation of bias or mala fide has been found against him. In The Union of India v. Smt. Ramrati Devi (S.A. 1859 of 1975) decided on 25th October, 1978 it has been held by this Court, agreeing with Abdul Ghani v. Union (1978) L.I.C. 1132, another single decision of this Court that validity of charge sheet shall be determined from surrounding circumstance and order of removal cannot be held to be invalid merely because proposed punishment was mentioned in the charge sheet. Reliance was placed by learned Counsel for respondent on Rajpati v. Hissar Municipality (1970) L.I.C. 1090 and Manickam v. Superintendent of Police, Nilgiris and others : (1963)IILLJ62Mad ). But in view of the decisions of this Court, which appear to be correct, it is unnecessary to discuss them.
8. Before parting with violation of natural. justice and considering other arguments of appellant it must be observed that non-production of written order appointing Enquiry Officer may not have been fatal but the appellant committed an error in not producing personal file of respondent before Courts below when it was perused by Enquiry Officer. By not producing attendance register appellant withheld important evidence and the presumption drawn against it appears to be well founded. Both in the enquiry and in Courts below respondent seriously disputed his suspension. It was supported by application dated 1st September, 1962. Enquiry Officer had to admit that he 'could not state whether respondent was suspended on 30th August, 1962 or was absent from duty'. Attendance register in the circumstances was a vital piece of evidence. If the Enquiry Officer was not certain whether respondent was absent or suspended then how did he hold that charge of absence from duty was found established.
9. It was vehemently argued that suit was barred by time. Finding of two Courts below was characterised as illegal. Learned counsel argued that appeal against order of Assistant Personnel Officer lay to the Central Railways and as on facts found appeal was filed before an authority who could not entertain it; Consequently respondent was not entitled to exclusion of time during which appeal was pending while computing the period for filing of the suit. Argument is devoid of any substance. Paragraph 1724 of Conduct and Discipline Rules etc. provide for filing of appeal by a railway servant against an order imposing upon him any of the penalties specified in Rule 1710 to the authority specified in this behalf, in the schedule, appended to the rules or where no such authority is specified to the authority to which the authority imposing the penalty immediately subordinate. No authority has been specified for class III and IV employees. Latter part of paragraph 1724, therefore, was applicable. Appeal was filed before Personnel Officer. It is not denied that Assistant Personnel Officer was subordinate to him. Therefore in the order itself it was mentioned that appeal under paragraph 1724 lay against the order of removal to Personnel Officer.
10. Another submission about the nature of order was equally devoid of any substance. Learned counsel deriving inspiration from observation in trial Court's order submitted that respondent was only retired from service and as this was in accordance with rules the Courts below committed an error of law in granting declaration that order of removal was illegal As pointed out above the order removing respondent from service is a printed order.
In it punishment of compulsory retirement/removal/dismissal from service with effect from are mentioned. From this except removal all have been scored out. Word retirement before removal has created this confusion. But a perusal of the order hardly leaves any scope for argument that it was an order of retirement.
11. Reliance was placed by learned Counsel for Union on Sunil Kumar v. State of W.B. : 3SCR179 . How is the decision helpful is not easy to understand except the principle that failure to comply with requirement of rules by Enquiry Officer does not vitiate enquiry. True but declaration has been granted by Courts below on failure to observe the principle of natural justice. The finding of guilt recorded by Enquiry Officer on evidence of delinquent without reference or consideration of departmental witnesses cannot be upheld. It cannot be argued that no prejudice has been caused. Nor do the decision in Abdul Rahim v. Executive Officer : (1962)IILLJ639AP and Ramesh Chandra v. U.O.I. : (1967)IILLJ658MP appear to be relevant.