D.S. Dave, C.J.
1. This is a writ application under Article 226 of the Constitution of India by one Shyamnarain Sharma challenging the validity of the order of his dismissal from service dated the 27th April, 1962.
2. It is common ground between the parties that the petitioner was Ticket Collector in Western Railway and was posted at Jaipur in 1961. The Divisional Commercial Superintendent, Western Railway, Jaipur, gave him a charge-sheet dated 31st August, 1961 together with a statement of allegations. It was alleged against him that he had illegal relations with one Smt. Savitri Devi and that he abducted her from Ajmer on 24th March, 1961. It was next alleged that he left the head-quarters on 16th and 24th March, 1961 and also absented himself on 25th March, 1961 without prior permission of the competent authority. The third allegation was that he travelled without ticket on 16th, 24th and 25th March, 1961 by trains which were mentioned in Ex. 1. The Divisional Commercial inspector, Jaipur, was appointed Inquiry Officer and he submitted his report on 12th March, 1962.
It was reported by him that the first two charges were proved. On receipt of this report, the Divisional Commercial Superintendent, Jaipur, served the petitioner with a notice Ex. 3 to show cause why he should not be dismissed from service. The same authority passed an order of the petitioner's dismissal on 27th April, 1962.
Aggrieved by that order, the petitioner filed an appeal before the Divisional Superintendent (e), Western Railway Jaipur, but that was also dismissed in August, 1962.
3. It is contended by the petitioner that the find-ings of the Inquiry Officer were based on no evidence and that his dismissal was wholly illegal and in violation of Article 311 of the Constitution of India.
4. Learned counsel for the opposite party has raised a preliminary objection to the effect that the application is not maintainable. It is pointed out that the petitioner was given no less than five opportunities by the Inquiry Officer, but did not care to be present before him and so the Inquiry Officer had to proceed ex parte. It is urged that, under the circumstances, this Court should refuse to interfere in the matter. In support of his argument, learned counsel has referred to U.R. Bhatt v. Union of India, AIR 1962 SC 1344.
5. It is next urged that the petitioner Is not correct when he says that the findings of the Inquiry Officer were based on no evidence. It is pointed out that the petitioner was examined by one Vigilance Sub Inspector Jaipur, on 3rd June, 1961 and that the petitioner had in his statement admitted all the charges which were levelled against him. This document was before the Inquiry Officer and so he examined only one witness Shri R.K. Sharma, S. O. G. R. P Phulera, on 22nd February, 1962 and submitted his report.
6. We have carefully gone through the report of the Inquiry Officer dated 12th March, 1962 (Ex. 2) It covers two and a quarter foolscap sheets and it may be pointed put that in almost two sheets he has only taken care to point out how the petitioner was absent on four out of five dates which were fixed by him for purposes, of inquiry. After pointing out that there was no alternative for him, in view of such an attitude on the part of the petitioner except to proceed ex parte, it was observeds by him as follows :
'As per the statement, in original, dated 22nd February, 1962 of S. O. GRP-FL it is clear that the accused hasabducted Smt. Savitri Devi, sister ofShri Salig Ram on whose wire they were detained at FLby 2 Dn. of 24th March, 1961.
From the statement of the SO GRP-FL and the duty performed by him on 24th March, 1961 at JP from 0/8 hrs., it is proved that he left the headquarter without permission.
No evidence is forthcoming in which Shri Shyam Narain, Ticket Collector, can be proved having travelled without ticket.'
7. It would appear from the extract which has been quoted above that the Inquiry, Officer based his findings on the statement of S. O. GRP, Phulera, dated 22nd February, 1962. We have been referred to the said statement (Ex. 4) and we find that the. said witness had only deposed that on 24th March, 1961 a telegram was received from one Saligram of Ajmer that the petitioner had abducted his sister Savitri Devi in 2 Down and that when the witness searched the train on its arrival at Phulera, he found one Savitri Devi travelling In Ladies Compartment and Shyamnarain in a sleeping coach. Both of them were then taken to the police station and the were interrogated. It was further stated by him that on 25th March, 1961 Saligram himself arrived at the Police station and he showed to the S. O. GRP-FL a copy of the report which he had lodged at Alwar Gate Police Station, Ajmer, and that these people were allowed to go as no offence was made out.
8. It is clear from the said statement that the witness had no persona! knowledge about the incident cf the alleged abduction. All that he stated was that a telegram was received from Saligram and the petitioner and Smt. Savitri Devi were found travelling in the same train in different compartments. The witness, no doubt, stated that the petitioner and Smt. Savitri Devi were both taken to the police station and were interrogated, but it does not appear from his statement if the statements of these two persons were reduced to writing and if so, whether they were placed before the Inquiry Officer. On the contrary, it appears from his statement that even after Saligram's arrival on 25th March, 1961 and in spite of the interrogation of the petitioner and Smt. Savitri Devi, it was found by the police that no offence was made out and bence all of them were permitted to (sic)
It passes one's understanding as to how the InquiryOfficer jumped from this statement to the conclusion thatthe charge of abducting Smt. Savitri Devi by the petitioner was proved by the statement of this witness. Itis also not clear how he arrived at the finding from thesame statement that the petitioner had left the headquarters without permission. There was not a singleword in the statement of the witness in that connection.The Inquiry Officer has not referred to any other statement in his report. On the contrary, it appears from hisreport that he examined no other persons except ShriR.K. Sharma. He has not referred to any documentaryevidence either. It is noteworthy that he has not mentioned Ex. A-3 anywhere in his report and, therefore, itis difficult to say whether that document was presentedbefore him before he submitted his report. We find itdifficult to raise a presumption in favour of the oppositeparties to the effect that the Inquiry Officer had takenEx. A-3 into consideration.
9. It may be observed that even if it be assumed for the sake of argument that Ex. A-3 was produced before the inquiry Officer before he submitted his report, it was incumbent upon him to face the petitioner with that document on the date he had appeared before him. It appears that one representative of the petitioner Shri C. P. Mudgal had also appeared before the Inquiry Officer on 16th, February, 1962 and It does not appear if this document was produced on behalf of the non-petitioners in this Court along with the reply and the petitioner has in his rejoinder stoutly denied having made such a statement. It is alleged by him that his signatures were obtained on a blank paper and his confession appears to have been written out later on.
It would not be proper for us at this stage to express any opinion whether Ex. A-3 contains a true and voluntary statement of the petitioner or whether the document was prepared later on as alleged by him. That may properly be subject-matter of enquiry. It would suffice-to say at this stage that there is no mention of this document either in the report of the Inouiry Officer or in the order of the disciplinary authority and if they wanted to place any reliance thereon, the petitioner ought to have been faced with it. Rule 1712, Sub-rule (3) of the Conduct and Discipline Rules for Railway Servants (as contained in the Indian Kaiiway Establishment. code-Volume 1), runs as follows:
'Sub-rule (3) of Rule 1712--
The Inquiry Authority shall, in the course of the inquiry, consider such documentary evidence and take such oral evidence, including cross-examination of the railway servant and witnesses, as may be relevant or material in regard to the charges. The railway servant shall have the opportunity of adducing relevant evidence-on which he relies, the evidence of witnesses shall be taken in his presence, he or the person assisting him shall be given the opportunity of cross-examining the witnesses and 'no materials shall be relied on against him without his being given an opportunity ot' explaining them'.'
A bare perusal of the said-provision particularly the portion which we have underlined (here into ' ')) would show that the inquiring authority has been cautioned not to rely on any material unless an opportunity of explaining it is given to the person against whom the inquiry is conducted. It is thus clear that the report of the Inquiry Officer, in the present case, is based on no evidence whatsoever.
10. In Am 1962 SC 1344 referred above, the inquiry Officer had examined one witness, namely the Fruit Development Adviser, in the presence of the accused. Thereafter, the accused declined to take part in the proceedings. Even then, the Inquiry Officer called two more witnesses for examination and since the accused declined to take part in the enquiry, the statements of these witnesses which were previously recorded, were brought on record and then taken into consideration. It was, therefore, not a case of no evidence and it was observed by their Lordships of the Supreme Court that 'the enquiry could not be challenged either on the ground of unfairness or incompleteness.' It was also observed that when the accused himself declined to take part in the proceeding the Inquiry Officer was justified in proceeding to act upon the materials placed before him. That case is thus clearly distinguishable from the present one on facts.
11. On the other hand, it may be pointed out that in Union of India v. H.C. Goel, AIR 1964 S C 364, it was observed by their Lordships of the Supreme-Court as follows:
'In dealing with writ petitions filed by public servants who have been dismissed, or otherwise dealt with so as to attract Article 311(2), the High Court under Article 226 has jurisdiction to enquire whether the conclusion of the Government on which the impugned order of dismissal rests, is not supported by any evidence at all. It is true that the order of dismissal which may be passed against a Government servant found guilty of misconduct, can be described as an administrative order; nevertheless, the proceedings held against such a public servant under the statutory rules to determine whether he is guilty of the charges framed against him are in the nature of quasijudicial proceedings and there can he little doubt that a writ of certiorari, for instance, can be claimed by a public servant if he is able to satisfy the High Court that the ultimate conclusion of the Government in the said proceedings, which is the basis of his dismissal, is based on no evidence.'
12. The above observation leaves no room for doubt that if in a certain case, a public servant is able to point out that the report made against him by the Inquiry Officer is based on no evidence, he can successfully invoke Article 311 of the Constitution of India in his favour. As we have already pointed out above, in the present case, the report of the Inquiry Officer was based on no evidence. Unfortunately, the disciplinary authority did not took into this aspect of the case and it proceeded to pass an order of dismissal against the petitioner.
13. We might make it clear that we do not mean to approve the petitioner's attitude, if he knowingly remained absent on the date or dates fixed by the Inquiry Officer. The inquiry Officer could certainly proceed ex parte if the petitioner did not care to appear before him on the date or dates fixed by him, but the ex parte proceedings do not mean that the finding should be recorded against the absentee without any kind of inquiry that is, without examining any evidence oral or documentary against him. If the Inquiry Officer had Ex. A-3 before him as asserted by the opposite parties,
It was his duty to call the person who had recorded that statement and verify its correctness from him. That document should also have been put to the petitioner and an opportunity ought to have been seven to him to explain the same. It would still be open for the non-petitioners to make a proper enquiry if it is considered desirable. What we mean to stress is, that the impugned order of dismissal against the petitioner cannot be maintained, because the findings against him are based on no evidence.
14. The writ application is, therefore, allowed and the impugned orders of the disciplinary authority dated 27th April, 1962 and that of the appellate authority passed in August, 1962 are hereby quashed. In view of the fact that the petitioner did not take interest in the enquiry, we leave the parties to bear their own costs.