1. By this petition under Articles 226 and 227 of the Constitution the petitioner seeks a writ of certiorari for quashing an order of removal, dated 29th December 1964, passed by the Divisional Superintendent, Central Railway. Bhusawal. as also an order dated 7th August 1965. passed by the Chief Engineer. Central Railway. Bombay, in appeal confirming the order of removal.
2. During the relevant period, the petitioner was in charge of a Construction Depot of the Central Railway at Itarsi as a Store-Keeper-cum-Senior Clerk Shri C.S Patankar, Assistant Engineer, Itarsi. was his immediate superior. It appears from the record that on 27-5-1961 a truck carrying about 100 bags of cement was checked by the Station House Officer, Itarsi, on suspicion that the cement belonging to the Railway Administration was being carried away surreptitiously. The cement bags were seized and the police authorities started investigation. Shri Patankar was informed by the police authorities about the seizure and in his presence the police authorities got the stock of cement at the Depot verified the account-books and other registers were inspected and a sum of Rs 400/- was also seized from the petitioner. It appears that the police authorities had also recorded statements of various persons including that of the petitioner After the enquiry, the police authorities prosecuted the petitioner under section 409 of the Indian Penal Code along with three other persons whe participated in the removal of the bags of cement for various offences.
3. When the matter of removal of 100 bags of cement came to the notice of the Railway Authorities, they also made some enquiry and the Divisional Superintendent, Central Railway. Bhusawal, took the decision to initiate departmental proceedings against the petitioner. Accordingly, the Divisional Superintendent served the petitioner with a charge-sheet, dated 1st June 1961. The charges framed were:
'(1) You have failed to maintain proper accounts of Cement received for the works in connection with the new marshalling yard at Itarsi;
(2) You have allowed Shri Tiwari, Agent of Contractor, Shri D.S. Chawra, to remove about 100 (one hundred) bags of cement from the Railway's cement godown at Itarsi on 27-5-61 with the intention of selling it to outsiders; and
(3) You have obtained illegal gratification of Rs. 400/- (four hundred) for the removal of the cement.'
For the enquiry into the charges the Divisional Superintendent appointed a Board of Enquiry consisting of three members, of which Shri Patankar was the Chairman. The Board of Enquiry, after following appropriate procedure, submitted its report, dated 24th July 1961, wherein the Board found that all the charges were proved. It appears that thereafter no show cause notice was issued to the petitioner for about three years, presumably because the petitioner was standing his trial before the Criminal Court. The petitioner was however, acquitted in the criminal trial and thereafter the proceedings in the departmental enquiry were revived. The petitioner was served with a show cause notice, dated 8th December 1964 by the Divisional Superintendent, Bhusawal, calling upon him to show cause why he should not be removed from service After considering the representation of the petitioner, the Divisional Superintendent by order, dated 29th December 1964, directed the removal of the petitioner with effect from 10th January 1965. An appeal preferred by the petitioner was rejected by the Chief Engineer, Central Railway, Bombay, by order, dated 7th August 1965.
4. A number of grounds have been raised in the petition, but only two grounds were pressed before us. The two grounds relate to:--
(1) bias of Shri Patankar, the Chairman of the Board of Enquiry; and
(2) use of admissions of the petitioner made before the police,
5. As to the first ground, it may be noted that it has not been suggested by the petitioner that Shri Patankar had any personal animosity against him. No other personal ground has also been urged against Shri Patankar so as to disqualify him from being appointed on the Board of Enquiry. In other words, no personal bias is pleaded against Shri Patankar. It may also be noted that the ques tion of bias was not raised at the time of the enquiry. That question was raised for the first time only in the grounds of appeal before the Chief Engineer and is being canvassed here. What is urged on behalf of the petitioner is that Shri Patankar was both a prosecutor and a Judge and that being the position it was not possible for the petitioner to secure justice at his hands and that the principles of natural justice were violated. In support it was stated that during the police investigation Shri Patankar was present throughout. In his presence the stock of the cement bags was verified, the account-books and other registers were checked and the amount of Rs. 400 was seized by the police from the petitioner.
Shri Patankar was also shown as the complainant in the first information report recorded by the police and that he was also a witness before the Magistrate. It has already been stated that the Investigation was not Initiated at the instance of Shri Patankar or on his report to the police authorities. On the contrary, the police authorities on their own suspicion had seized the cement bags from the truck and conducted the entire investigation. Shri Patankar was present during the investigation in his capacity as the immediate superior of the petitioner. From the mere fact that Shri Patankar was present during the investigation, it cannot be inferred that he had prejudged the issue or that he had any personal interest in the matter. No doubt, Shri Patankar was examined as a witness before the Court at the criminal trial; but in that statement he has stated nothing more than what was done by the police authorities during the investigation. It may also be noted that he was examined before the Magistrate much after the enquiry report was submitted by the Board of Enquiry. On the facts alleged, it is, therefore, difficult to hold that Shri Patankar had any prejudice or bias against the petitioner.
6. Shri Y.S. Dharmadhikari, learned counsel for the petitioner, however, urged that the fact that Shri Patankar was present throughout the police investigation and that he had come to know about certain facts is sufficient in law to disqualify him from holding the enquiry on the ground of bias. In support of his contention Shri Dharmadhikari relied on a decision of the House of Lords in Frome United Breweries Co. v. Bath Justices, 1926 AC 586. In that case, on an application to the licensing justices of a county borough for the renewal of an old on-licence the justices referred the matter to the compensation authority of the borough under Section 19 of the Licensing (Consolidation) Act, 1910. At a further meeting the licensing justices had resolved that a solicitor should be instructed to appear before the compensation authority and oppose the renewal of the licence. Three of the justices, who sat and voted as members of the compensation authority, had been parties to the resolution of the licensing justices authorising the solicitor to appear on their behalf and oppose the licence. In these circumstances, it was held by their Lordships that the three justices were disqualified from sitting on the compensation tribunal on the ground of bias. From the facts of that case it is plain that some of the justices, who sat as members of the compensation authority, had already taken a decision to oppose the renewal of the licence and had prejudged the issue. The three justices were admittedly in the position of both a party and a Judge in the same dispute. The case of the House of Lords is, therefore, of no assistance to the petitioner.
7. Shri Dharmadhikari, then, drew our attention to the case of The Queen on the Prosecution of Shaw v. Lee. (1882) 9 QBD 394. In that case, Benjamin Shaw was convicted before the Justices upon an information by H. Morgan, the town clerk, and clerk to the urban sanitary authority of Wakefield, of exposing for sale meat unfit for human food. The prosecution was instituted in pursuance of a resolution passed at a meeting of the sanitary committee of the borough, and approved by a resolution passed at a subsequent meeting, directing the town clerk to take further steps. W.H. Lee, one of the Justices, who sat at the hearing of the information when Shaw was convicted and acted as chairman of the Justices, was a member of the sanitary committee and was present at the meeting at which the resolution to prosecute Shaw was passed. In these circumstances, the conviction of Shaw was set aside. It was observed by Field, J. :
'I am of opinion that Section 268 of the Public Health Act, 1875, has not the effect of enabling a person to act as prosecutor and Judge in the same matter. It would require express terms in an Act of Parliament to produce that effect. I think the meaning of Section 258 is clear. It was thought that there might be inconvenience in carrying out the Act owing to the difficulty, in boroughs, of getting justices to sit who were not members of the corporation. The legislature therefore went one step in the direction of removing that difficulty by enacting that the mere fact of membership should not disqualify the justice. The section therefore removes one ground of interest merely. There is no warrant for holding that, whether the justice has acted as a member by directing a prosecution for an offence under the Act, he is a sufficiently disinterested person as to be able to sit as a Judge at the hearing of the information. I am of opinion that the rule must be made absolute.'
That case, again, does not assist the petitioner, as in that case also one of the justices had prejudged the issue.
8. The Privy Council decision in Surinder Singh Kanda v. Government of the Federation of Malaya, 1962 AC 322 is similarly of no assistance to the petitioner. In that case, the adjudicator was supplied with a report of the board of inquiry wherein certain serious allegations were made against the appellant Kanda. That report was not furnished to the appellant and he was not in a position to meet the allegations contained in the report. On the recommendation of the adjudicator the Commissioner of Police terminated the services of Kanda. Before the Privy Council three grounds were raised, namely: (1) that the Police Commissioner had no authority to dismiss the appellant; (2) that the principles of natural justice were violated inasmuch as the adjudicator was biassed against the appellant as he had previously information contained in the report of the board of inquiry; and (3) that the failure to supply the copy of the report to the appellant prevented him from effectively meeting the case.
Their Lordships of the Privy Council allowed the appeal on two grounds, namely: (1) that the Commissioner had no authority to pass the order of dismissal; and (2) that there was denial of natural justice in as much as the copy of the report was not furnished to the appellant. The third question regarding bias based on the possibility of the adjudicator having formed his opinion on the basis of the report of the board of inquiry was not decided. It is no doubt true that in the case before the Privy Council the trial Judge had held that the findings of the Board must have created a likelihood that the adjudicator would have a pre-determined bias or an operative prejudice, whether conscious or unconscious, against the appellant. Certain cases supporting that view were also cited at the Bar. It, however, appears that their Lordships of the Privy Council were not prepared to apply the principles in the case of disciplinary proceedings where, in the nature of things, the disciplinary authority is required to frame charges on the information already collected and is required to hold the enquiry thereafter. The common law principles that one cannot be both a prosecutor and a Judge cannot be applied fully to the proceedings under Article 311 of the Constitution. In Anant Daltatraya Joshi v. State of Madhva Pradesh, Misc. Petn. No. 208 of 1962, dated 16-11-1962 (MP) this Court observed:
'It is also clear from the General Book Circulars 1-13 (Rule 11) that the preliminary enquiry may be held either by the officer who is to hold the main enquiry or by another officer deputed for the purpose. It follows that an officer cannot be regarded as biased merely because he holds a preliminary enquiry. Without trying to be exhaustive, we may say that he can be regarded as biased if he has, in his personal capacity, pecuniary interest in the case or, where there is no pecuniary interest, he has a personal bias towards the parly independently and apart from the subject matter of the enquiry. In the instant case, foundation for the bias attributed to D.S. Sinha is found only in what he did in relation to this case as a part of his official duty In our opinion, in the circumstances of the case, D.S. Sinha could not be regarded as biased against the petitioner.'
In Anant's case, reliance was placed on Registrar, Co-operative Societies v. Dharam Chand, AIR 1961 SC 1748 and A. R. S. Choudhury v. The Union of India. AIR 1956 Cal 662. In the Calcutta Case, AIR 1956 Cal 662 it has been stated that the principle that a prosecutor cannot be a Judge is not strictly applicable to departmental enquiries. We have already stated that there is no allegation against Shri Patankar as to the personal bias in the case. The bias is tried to be spelt out from the knowledge he is supposed to have acquired when he was present at the time of the police investigation which he did in his official capacity. We are, therefore, satisfied that the first ground urged by the petitioner is without substance.
9. On the second ground, the submission of the petitioner is (see paragrph 9 (D) of the Petition) that the statements recorded during the investigation by the police were hit by Section 25 of the Evidence Act and Section 162 of the Code of Criminal Procedure. Though technically the provisions of the Evidence Act may not apply to a departmental enquiry, it is alleged that the admissions of the petitioner contained in the police statements could not be relied upon in the departmental enquiry and made the basis of findings recorded therein, as the admissions were made by the petitioner under pressure. It is said that the principles of natural justice were violated. We have carefully gone through the report of the Board of Enquiry as also the notes of findings of the Divisional Superintendent.
From these records it is revealed that before the charges were framed and the regular departmental enquiry was instituted the petitioner was examined before a fact finding committee. At that stage, the petitioner had made certain statements which contained certain admissions. These admissions were put to him at the departmental enquiry and his explanation was that the admissions were made by him in a state of confusion. The Board of Enquiry and the Divisional Superintendent took into consideration the previous admissions made by the petitioner at the fact finding enquiry and his attempt to change his version in the departmental enquiry. These facts, along with other evidence on record and the circumstances of the case, were taken into consideration and the findings were reached on that basis. Nowhere in the two findings is there any reference to any statements recorded by the police. The contention that the admissions made before the police were taken into consideration is without foundation. In any case, the strict rules of evidence are not applicable in a departmental enquiry. The second ground also fails.
10. No other ground was urged before us, In the result, the petition falls and is dismissed with costs. Hearing fee Rs. 150. The outstanding amount of the security deposit. If any after deduction of costs, shall be refunded to the petitioner.