1. This petition under Article 226 of the Constitution is directed against the order removing the petitioner from service.
2. The petitioner was serving in the Gun-Carriage Factory as a Turner. While he was on duty in the Machine 'A' Section on the night of 25-8-1958, there was an attempt at theft in that section. On 1-9-1958 a charge-sheet was served on the petitioner accusing him that he scaled over the walls of the Tool-Godown Shop on 25-8-1958 with the intention to commit theft and escaped through a window and that he had absented himself from work without the permission of the Supervisor.
The matter was enquired into by a Court of Enquiry presided over by the Assistant Works Manager (respondent No. 2) after the petitioner gave his explanation to the charges. The enquiry commenced on 15-9-1958 and was completed on 23-9-1958. On 4-10-1958 the Superintendent of the Factory (respondent No. 1) served a notice on the petitioner to show cause why he should not be removed from service. The petitioner gave his reply on 12-11-1958. On 9-12-1958 the first respondent passed an order removing him from service.
3. The petitioner has challenged the order on the ground that the opportunity given to him to defend himself was not adequate. Several points are mentioned in the petition to support this ground; but as only two of them were argued before us, we need refer only to them.
4. The first grievance of the petitioner is that he was not given copies of the statements of certain witnesses who were examined by the Supervisor and also by the Security Officer prior to the formal departmental enquiry. The second contention is that the finding is different from the charge in some details.
5. On the first point, the petitioner has stated that as soon as the charges were served on him he sent the letter dated 4-9-1958 (Annexure C) requesting for copies of the statements of witnesses. During the course of the departmental enquiry he made a demand orally for the copies and at the end he repeated it in his statement dated 23-9-'1958 (Annexure F). In his first reply to the show-cause notice (Annexure H) he asked for supply of these copies on 14-10-1958, but the respondent refused to give him any copies (Annexure I).
6. The respondents denied that any demand for copies was made before or during the course of the departmental enquiry. They admitted that copies were asked for after the service of the show-cause notice, but urged that at that stage the supply of copies was unnecessary.
7. In face of this denial, it has first to be seen whether a demand was made by the petitioner for copies at the first stage of the enquiry. In his letter, dated 4-9-1958 (Annexure C) the petitioner had stated :
'It is, therefore, prayed that I may be supplied with copies of those documents on the basis of which I have been charged for the offence, so as to enable me to make my statement.' It is contended by the respondents that this did not imply a demand for the statements recorded in preliminary enquiries. The statements of witnesses which were recorded by the officers formed the basis for their report and consequently the basis for the charges which were included in the charge sheet. We hold that the demand in the letter (Annexure C) referred to these statements.
8. The respondents have denied that any demand for copies was made while the enquiry was proceeding. On 23-9-1958 the petitioner had filed an application (Annexure F) at the conclusion of the enquiry showing some irregularities in the record. He had then mentioned therein :
'If I am supplied a copy of their statements, I shall prove that their statements are false.'
The respondents contend that the demand refers to copies of the statements recorded by the Court of Enquiry. As the Court was willing to give copies of these statements, the demand must be taken to refer to earlier statements, as the petitioner has added in that application that copies were refused. Under these circumstances, we believe the petitioner's affidavit that he had asked for copies of earlier statements of witnesses, but they were not supplied.
9. It is next necessary to consider the contention of the respondents that the omission to supply copies of earlier statements does not amount to a denial of adequate opportunity and does not offend against the rules of natural justice. It is not disputed that the statements of some of the witnesses were recorded in the preliminary enquiries. When these witnesses were formally examined in the departmental enquiry, the petitioner could have cross-examined them with reference to those statements and demonstrated to the Enquiring Officer that they were unreliable. As provided in Section 145 of the Indian Evidence Act, a witness may be cross-examined as to previous statement made by him in writing or reduced into writing and relevant to the matters in question.
This section does not apply to departmental enquiries in terms, but shows that this is recognised as a general mode of testing the statements of witnesses. The rule is based on the principles of natural justice. The delinquent in a departmental enquiry should be given a reasonable opportunity to defend which includes not only a right to cross-examine the witnesses fur the department but also to cross-examine them effectively. It is not for the department to decide whether the statements would lead to an effective cross-examination. It is for the delinquent to use the statements for cross-examination in his own way. If the witnesses explain their previous statements, nothing would be gained by him; but if they are unable to do so, he is certainly entitled to urge that they should not be believed.
10. It is contended on behalf of the respondents that the statements were not on oath and were not taken into consideration by the Enquiring Officer against the petitioner. On these grounds it is argued that copies need not have been supplied. It is true that the statements were not considered by the Enquiring Officer, but that does not mean that the petitioner had no right to use them in his favour. Nor does the fact that they are not on oath make any difference.
Section 145 of the Indian Evidence Act does not confine the right of contradiction only to previous statements recorded on oath. In the case of criminal prosecutions, statements recorded by police during investigation are not on oath; yet Section 162 of the Criminal Procedure Code allows these statements to be used for contradicting prosecution witnesses. The previous statements of witnesses are an effective aid in cross-examination and denial to supply them must, in our opinion, be treated as denial of giving an adequate opportunity to defend against the charge.
11. This suffices for disposal of the petition, but we would like to clarify and dispose of other [matters. The demand of the reports of officers who have made preliminary enquiries may. in our opinion, well be refused. These enquiries are merely for the satisfaction of the authorities to find out what charges should be enquired into. They are not considered at the time of the departmental enquiry and cannot be used by the opposite party for any purpose. The petitioner cannot, therefore, make a grievance of the fact that such reports were not supplied. Further, copies of these reports can also be refused if they are confidential and their disclosure would be against public interest. In Punit Lall v. State of Bihar, (S) AIR 1957 Pat 357, the refusal to supply the report of the Anti-Corruption Officer was held justified
12. We may add that it is not the right of the delinquent to demand copies of the statement of every witness who was examined in the preliminary enquiry. He is called upon to discredit only those witnesses who are examined in the departmental enquiry and can ask for copies of only their statements.
13. The copies can be demanded only for the purpose of cross-examination and therefore the demand must be made during departmental enquiry. If this is not done, the inference would be that the copies were not needed for that purpose. The copies cannot be used at any subsequent stage, as those statements are not taken into consideration by the department at all. Nor are the copies necessary prior to the evidence stage in the departmental enquiry. The contention of the petitioner that he was handicapped at the time of furnishing his explanation before evidence or at the time of filing his reply to show-cause notice after the enquiry is without substance and cannot be accepted.
14. The second contention is that while the charge stated that the petitioner scaled the wall of the Tool-Godown Shop, the finding is that he scaled over the tellice work of the Machine Group No. 28. However, the charge as well as the finding state that he escaped through the window. The charge has to be read as a whole and we do not see that the difference in the findings on some points relating to detail resulted in any prejudice.
15. In view of our finding about the omission to supply copies of earlier statements of the witnesses examined for the department, we must hold that the opportunity given was not adequate. The impugned order cannot therefore stand and must be quashed. However, the department is not precluded from continuing the enquiry or holding another enquiry against the petitioner on the same charge.
16. In the result, the order dated 9-12-1958 removing the petitioner from service is quashed. Under the circumstances of the case, we direct that the costs of this petition shall be borne as incurred. The amount of the security deposit shall be refunded to the petitioner.