D.K. Mahajan, J.
1. This is a petition under Article 226 of the Constitution by one Mr. B. Panda, who at the relevant time was Manager of Burra Dhemo Colliery situate in the Burdwan District of West Bengal. An unfortunate accident occurred at the mines wherein about 25 persons were trapped and they ultimately died. There were a number of enquiries with regard to that accident in consequence of which the Central Government constituted a Court of inquiry to go into the question whether the petitioner is a fit person to continue to hold the Colliery Manager certificate issued to him under the previous Regulations which have now been replaced by the Coal Mines Regulations, 1957 hereinafter referred to as the Regulations--published in the extraordinary Gazette of India dated 24th October, 1957. Part II --Sect. 3, page 2569. The charges which were to be enquired into by the Court of Inquiry are to be found in paragraph 2 of annexure 'A' and are in these terms:-
'2. Under Clause (b) of Regulation 48 of the Indian Coal Mines Regulations, the statement of case against you is as furnished below:-
(i) Negligently or wilfully you did not obtain or attempt to obtain any record of the previous history of Burradhemo Colliery so as to acquaint yourself with the complete history and condition of Die mine.
(ii) You negligently or wilfully omitted to withdraw work-persons from the underground workings of Burradhemo mine in the afternoon of the 26th September, 1956, in spite of serious warnings of a coming disaster indicated by (a) accumulation of water to a great height over the paddy-fields overlying the outcrop workings of the mine.
(a) entry of accumulated water into the main through a hole in the walling of an air-shaft:
(c) increased percolation of water into the mine resulting in the drowning of pumps; and
(d) presence of a subsidence known to you under the sub-merged area.'
The constitution of the Court of inquiry varied from time to time and it is not necessary to set out these details. Suffice it to say that finally the enquiry was conducted by Mr. S. N. Sharma, who was assisted by two assessors. The Court of Inquiry settled its own procedure of enquiry. While doing so on the 8th February 1960, this is what it observed-
'The procedure to be followed in this enquiry was discussed. It has been suggested by the Court that in case any of the witnesses to be produced by the prosecution has already been examined before some other court or in case any of the witnesses has already furnished written statement before any competent authority such evidence, or such statement might be tendered before this Court by the witnesses concerned on oath. Copies of such statements that the prosecution propose toSender before this Court may be made available toShri B. Panda on payment of prescribed chargesbeforehand so that he can come prepared forcross-examination. Shri B. Panda will have theright to cross-examine the witnesses so tendered.In case the prosecution proposes to produce any fresh witnesses, such witnesses will be required todepose here in presence of defence and Shri Pandawill have the opportunity to cross-examine themsoon after the examination-in-chief. After the evidence for the prosecution is closed the defencewould have the right to adduce such evidence as it deems fit and the prosecution would have thefight to cross-examine any witness produced by thedefence. The prosecution has agreed to this procedure. Shri Panda has also agreed to this procedure. Let the prosecution file a list of witnessesto be examined by them along with copies of evidence of the witnesses concerned that they propose to tender in evidence before this Court by15-2-1960. Shri B. Panda should apply for copiesof this evidence through the Copying Departmentand such copies will be made available to him onpayment of prescribed fee.'
It is also necessary to set out the order that was passed by the Court of Inquiry on the 15th February 1980, because on that date Mr. Panda wanted to deviate from the procedure settled on the 8th February, 1960. The relevant part of that order is as under:-
'It was decided last time that evidence of such of witnesses as have already been examined before some other Court would be tendered on oath before this Court, but the defence would have the right to cross-examine those witnesses. It had also been decided last time in case the prosecution wanted to produce any new witnesses, they would be examined before this Court on oath end the defence would have the right to cross-examine them. A petition has been filed today by the defence stating that in so far as the evidence of witnesses who have already been examined is concerned, the extracts of their evidence would be inadequate and the defence would be seriously prejudiced.
This enquiry is being conducted under Regulation 25 of the Coal Mines Regulations, 1957. Clause (i) of Regulation 25(2) gives the Court of inquiry power to regulate the procedure for the enquiry. The P. P. representing the Department of Mines tells me that in other enquiries of similar nature the procedure is laid down in consultation with the representatives and such procedure generally conforms to natural justice and enquiry. It is keeping these considerations in view that this Court had suggestsd certain procedure last time and it had been accepted by the parties. In my view in case the witnesses have already been examined by another Court and the prosecution proposes to rely on that evidence, there should be no objection in tendering that evidence in this Court on oath and giving the defence the right to cross-examine these witnesses. I personally feel that it is not really necessary in this enquiry to make the witnesses recount all that had already been recounted before another Court and justice would be done to the defence if the defence is allowed an opportunity to cross-examine those witnesses. Since, however, the defence have expressed an apprehension that if only extracts are made available to them, they may not be able to have a full background idea of the circumstances under which a certain statement was made. I would allow the petition of the defence in making available full copies of evidence to them. I da not think it is necessary in the circumstances of the case to examine the witnesses afresh and verbal prayer made by the defence to this effect is rejected on the ground noted above.
Another prayer that has been made is that copies of the evidence be allowed to the defence free of charge. The defence is insisting on the production of the entire evidence irrespective of its relevancy and in this view of the matter I am not inclined to grant the prayer of the defence that he should be allowed copies of the entire evidence free of charge. My previous order in the matter stands.'
In pursuance of the order dated the 8th February, 1960, prosecution filed a list of witnesses indicating the evidence they were proposing to examine. Item No. 12 in that list was as follows:-
'The prosecution will also rely on the admission of Shri B. Panda deposed before the Section Court of Inquiry.'
Thereafter the prosecution tendered the statements of the witnesses which had been previously examined and the petitioner was given full opportunity to cross-examine these witnesses. The petitioner led his defence and there is no grievance that his defence was not properly recorded. On the 17th September, 1961, Shri Panda's statement, which is Exhibit 8, was tendered by prosecution in evidence, it is significant that no objection to this tendering was made by Shri Panda, whereas when the report of Mr. Sarkar, Exhibit 9, was tendered it was objected to. This is clear from the order of the Court of Inquiry dated the 17th September, 1961 which is practically the last order in annexure 'E' filed with the return. The Court of Inquiry prepared and signed its report on the 29th September, 1961, and the last paragraph of that report runs as under:-
'In view of the above circumstances and fads I find that the accused Manager Shri B. Panda has shown gross negligence and complacency in performance of his duties as a Mine Manager. His Manager's certificate is, therefore, liable to be cancelled. In view of the fact that he has as long as 30 years of service to his credit including employment in Manvers Main Mine (One of the biggest mines in England) for four years that he has suffered mental agony and suspense for the last five years during the pendency of the enquiry and that it would he rather hard on him at the fag end of his life to be deprived of his profession, I take a lenient view of the aforesaid gross negligence and complacency on his part in discharging his duties. I, therefore, recommend under Sub-clause (k) of Clause 2 of the Regulation 25 of the Coal Mines Regulations, 1957, corresponding to Clause (f) of Regulation 48 of the old India Coal Mines Regulations, 1926, under which the present enquiry was ordered, that the Manager's certificate of Shri Panda be suspended for a period of two years. *****'.
In pursuance of this report, the Central Government has suspended the petitioner's certificate for a period of two years. It is this order which has been challenged by the petitioner in these proceedings.
2. A number of contentions have been raised in the petition but the learned counsel for the petitioner has confined his arguments to the following contentions :-
1. That there was no proper enquiry held by the Court of Inquiry inasmuch as the prosecution witnesses were not examined from start to finish at the inquiry, but their previous statements were taken as examination-in-chief. Therefore, according to the learned counsel there has been a prejudice to the petitioner inasmuch as if the witnesses had been examined afresh he would have been in a position to point out contradictions in their testimony, if any, vis-a vis their previous statements and that would have gone a long way in showing whether the witnesses were witnesses of truth or not and that would have influenced the decision of the Court of Inquiry;
2. that the statement made by Mr. Panda before the Sarkar commission was used by the Court of Inquiry without that statement being either put to Mr. Panda or being brought on the record of the case as evidence;
3. that the use of the previous statement of Mr. Panda has been made by the Court of Inquiry under compulsion and, therefore, the report which is based thereon is bad in law because that statement could not be made use of in view of Article 20(3) of the Constitution of India.
4. that before the Central Government passed the order under Regulation 25(3) of the Regulations the petitioner was allowed no opportunity to short cause against the punishment sought to be imposed on him, and, therefore the order suspending the petitioner's certificate for two years is bad in law; and
5. that Regulation 25 is ultra vires Article 14 of the Constitution as It confers unregulated discretion on the Government in the matter of imposition or non-imposition of punishment and is capable of abuse inasmuch as on the same facts qua two different persons two divergent orders can be passed.
3. After hearing the learned Counsel for the petitioner and the Union of India, I am of the view that none of these contentions have any merit. It is not denied that the Indian Evidence Act does not govern these enquiries. According to Regulation 25, the Court of Inquiry is free to-determine its own procedure and the orders already quoted above will show that the procedure was settled by the Court of Inquiry with the consent of Mr. Panda as welt as ths prosecution, and there is no indication on the record that that procedure was not observed or adhered to. The entire enquiry has been conducted in accordance with that procedure. Therefore, no fault can be found with the conduct of the enquiry.
4. With regard to the first contention, that the previous statements of the witnesses were taken as examination-in-chief and this course has resulted in prejudice to the petitioner, I am unable to agree. Ths petitioner was granted full opportunity to cross-examine all those witnesses whose previous statements were taken as examination-in-chief. The witnesses were present before the Court of Inquiry and were cross-examined and in my opinion no prejudice has occurred to the petitioner on this score. It is significant that these witnesses were previously examined in the presence of Mr. Panda and in any case what they had deposed to previously was known to Mr. Panda and he had beeit allowed to obtain copies of their depositions. Moreover, this procedure was agreed to by Mr. Panda and it is later that he tried to back out of it. In my view parties cannot be left to shift their stand as and when they please so as to keep the procedure of the Court of Inquiry in a fluid state. Once the procedure had been settled Mr. Panda was bound by it. In any case, as I have already held, no prejudice has occurred to the petitioner and none has been indicated by the counsel for the petitioner on account of the procedure adopted by the Court of Inquiry. I, therefore, reject this contention.
5. As to the second contention, the matter does not present much difficulty. In the list of witnesses filed on the 9th August, 1950, a copy of which was supplied to Mr. Panda it was indicated at item No. 12 that Mr. Panda's previous statement before Sarkar Commission will be relied upon by the prosecution as evidence in the case. This statement was tendered on the 17th September, 1961, in presence of Mr. Panda and his counsel as evidence. When it was so tendered, no objection to it was raised. Therefore, the Court of Inquiry rightly used that statement in the enquiry proceedings and no serious fault can be found with the same.
6. The third contention has no merit either, for it assumes that the previous statement of Mr. Panda before Sarkar Commission has been used under compulsion in the enquiry. There is nothing on the record to show that at any stage any compulsion was used either by the Court of Inquiry or by the prosecution to put Mr. Panda's previous statement on the record, or that the previous statement was obtained from Mr. Panda in the earlier enquiry under compulsion. That was a statement made by him voluntarily end its being so tendered in evidence before the Court of Inquiry and at that stage no objection was raised to its being so tendered in evidence. That being so, this contention also fails. It is well settled that unless a statement is obtained or is to be used under compulsion the provisions of Article 20(3) of the Constitution will not come into play. See In this connection the decision of the Supreme Court In State of Bombay v. Kathl Kalu Oghad, AIR 1961 S (sic) 1808.
7. The fourth contention is that under Regulation 25(3) the Central Government could not decide the quantum of punishment without first proposing the same and then calling upon the petitioner to show cause against It. This argument has no substance for the simple reason that there is no provision in Regulation 25 to the effect that when the Central Government is determining the quantum of punishment it is required to give a hearing. The Regulation is silent on this score. There is no right of appeal provided against the order of the Central Government passed under Regulation 25 (3). It will be clear from the plain reading of the Regulation that the Court of Inquiry determines in a judicial manner the charges levelled against, a person against whom an enquiry is entrusted to it and in the former case makes recommendation as to the quantum of punishment. On the basis of this report all that is left to the Central Government is whether to give effect to the recommendation or not and to what extent. It is no doubt true that the Regulation confers a discretion on the Central Government as regards the imposition or non-imposition of the punishment and ifs quantum. But it cannot be said that while exercising this discretion it is incumbent on the Centra! Government to act in a quasi-judicial manner. The Cenlral Government when it exercises its discretion under Regulation 25 (3) acts in an administrative capacity. There are no indications in the Regulations that the Central Government is required to act in a quasi-judiciaI manner. The argument that the power under Regulation 25 (3) can be abused or can be exercised 'mala fide' in a discriminatory manner, cannot lead to the conclusion that the Regulation 25 (3), is 'ultra vires', Article 14 of the Constitution of India. All discretionary orders whether judicial or administrative are capable of being abused but that by itself will he no ground to strike down the power entrusted to the Central Government under Regulation 25(3). The presumption is that such power will be exercised in a responsible manner. It is now well settled that mala fide or illegal exercise of discretionary powers--whether judicial or administrative -- can be stuck down by the Courts under certain circumstances. That by itself is ample check on the arbitrary exercise of such a power. So far as the present case is concerned no such ground has been made out and there-fore this contention must also fail.
8. The last contention of the learned counsel for the petitioner is that Sub-clause (3) of Regulation 25 of the Regulations offends Article 14 of the Constitution of India inasmuch as the Government in their discretion could impose different penalties on different individuals. In my view Sub-clause (3) of Regulation 25 does not offend Article 14 of the Constitution. The Legislature has left the discretion in the matter to the Government and whenever any discretion is left to any authority there is bound to be discrimination in the very nature of things, but it is only a discrimination which is either mala fide or perverse and bases on no rationale which would be hit by the provisions of Article 14 of the Constitution. In the present case, it is obvious that the Government did not exercise its discretion at all. It merely gave effect to the recommendations of the Court of Inquiry. In these circumstances, it is not necessary to consider the last contention any further for in the present case it is purely academic.
9. For the reasons given above, this petition fails and is dismissed. There will, however, he no order as to costs.