Jagat Narayan, J.
1. This is a petition under Article 226 of the Constitution by one Ram Swaroop against an order of removal from service passed against him by the General Manager, Western Railway. The petition has been contested on behalf of the railway administration.
2. Ram Swaroop was a machine man in the Railway Loco Workshop of Ajmer in the authorized scale of pay Rs. 110--180 on 23 March 1961 when he was admittedly caught taking away with him thirty circular copper discus belonging to the railway from the workshop. A chargesheet was given to him on 30 March 1961 by the Works Manager (Loco The Assistant Works Manager was appointed inquiry officer by the Chief Mechanical Engineer on 30 June 1961. The inquiry was actually conducted after 1 August 1961. The show-cause notice was issued to him by the General Manager. After considering the explanation of the petitioner he imposed the penalty of removal from service on him.
3. The first contention on behalf of the petitioner is that the Works Manager (Loco) was not competent to issue a chargesheet to the petitioner on 30 March 1961 under the then Discipline and Appeal Rules. Under Rule 1707(a) of the rules then in force it is not stated as to who was competent to give a chargesheet. But under subsidiary Rule III on which reliance was placed on behalf of the petitioner it is stated that a chargesheet for dismissal should be issued only by the officer empowered, to award this penalty, but another officer may sign the chargesheet 'for' him. This subsidiary rule would not apply to the present case as It was a case of removal. This subsidiary rule was however amended by correction Blip No. 82 dated 29 July 1957 as follows:
A chargesheet for dismissal /removal/ reduction should be issued only by the officer empowered to award this penalty, but another officer may sign the charge-sheet for him.
Note.--To avoid delays, chargesheets proposing the penalty of dismissal/removal/reduction may be issued by officers under their own designations by adding the words 'by competent authority' at the end of Para. 2 of the chargesheet form given at p. 53.
Paragraph 2 of the chargesheet form given at p. 53 runs as follows:
You are directed to show cause in writing why you should not be dismissed/ removed from service or punished with any of the lesser penalties specified in Rule 1702 of the State Railway Establishment Code, Vol. I.
4. In the chargesheet issued to the petitioner by the Works Manager (Loco) the words 'by competent authority' were added to Para. 2. The chargesheet was accordingly Issued to the petitioner by an officer competent to do so under the then prevailing rule in the prescribed manner.
5. The next contention is that the Chief Mechanical Engineer was not competent to appoint an Inquiry officer on 30 June 1961 when the old rules were in force as the petitioner had been appointed by the General Manager. Under the Rule 1737(6) of the rules then in force an inquiry officer could be appointed by an officer competent under those rules to pass an order of dismissal. Under those rules the authority competent to pass an order of dismissal of the petitioner was head of the department. The Chief Mechanical Engineer was the head of the department. AS such he was authorized to appoint an inquiry officer. He was of course not authorized to pass an order of dismissal, removal, or reduction in rank because Rule 1705(c) specifically provided that notwithstanding anything contained in Rule 1704 no railway servant shall be removed or dismissed by an authority lower than that by which he was appointed to the post held by him substantively. A rule authorizing any authority other than the appointing authority to hold an enquiry or appoint an inquiry officer to conduct it cannot be regarded as invalid as it in no way contravenes the provisions of Article 311 of the Constitution. It will thus be seen that the order of appointment of the inquiry officer by the Chief Mechanical Engineer on 30 June 1961 was valid.
6. The next contention is that the show-cause notice issued by the General Manager shows that he only applied his mind to the written defence of the petitioner and the report of the inquiry officer. The actual words used are ' the report of the departmental enquiry set up by the C.M.E.--C.C.G. to enquire into the matter.' These words are in my opinion comprehensive enough to include not only the report of the inquiry officer, but also other documents sent with this report to the General Manager, namely, the evidence of the witnesses, etc. Rule 1713 of the new rules which came into force with effect from 1 August 1961 provides that the disciplinary authority shall, if it is not the enquiring officer, consider the record of the enquiry and record its findings on each charge. Rule 1712(5) of the new rules runs--
The record of the inquiry shall include--
(i) the charges framed against the railway servant and the statement of allegations furnished to him under Rule 1709;
(ii) his written statement of defence, if any;
(iii) the oral evidence taken in the course of the inquiry ;
(iv) the documentary evidence considered in the course of inquiry;
(v) the orders, if any, made by the disciplinary authority and the Inquiring authority in regard to the inquiry; and
(vi) a report setting out the findings on each charge and the reasons therefor.
The contention on behalf of the petitioner is that the report setting out the findings on each charge is report of the departmental enquiry. The show-cause notice has been issued on the printed form contained in Appendix P of the old Discipline and Appeal Rules for non-gazetted staff printed at p. 62. In my opinion the words 'report of the departmental enquiry' as used in this printed form refer to the entire record of the inquiry. The whole of this record is forwarded to the authority competent to impose punishment by the inquiry officer.
7. Apart from what has been said above, the case against the petitioner was a simple one. He admitted that he had on his person thirty circular copper discs weighing approximately 4 kilograms and 600 grams concealed in his clothing when he was caught coming out of the railway workshop. The explanation was that he had been drugged by one Lalchand with whom he bad some enmity and his suggestion was that Lalchand had planted the copper discs on his person when he was under the influence of drug. The learned Counsel for the petitioner did not draw my attention to any portion of important evidence which had been given in the case either in support of the charge or in defence which the inquiry officer failed to notice in his report. Even if the General Manager did not look into the evidence of the witnesses independently, there was substantial compliance of Rule 1713.
8. Next it was contended that the petitioner applied for a copy of his statement which was recorded immediately after he was caught redhanded with stolen copper, but It was not supplied to him and this resulted in prejudice. This statement was not used in the enquiry and therefore no prejudice could have been caused to the petitioner by the failure to give him a copy of his statement.
9. The last contention is that the inquiry committee should have consisted of at least two members. This contention is based on 'procedure for conducting enquiries under the Disciplinary Action Rules' printed at p. 1094 of Sanjiwa Row's Indian Railways Act, Vol. II, 1955 edition. The learned Counsel for the petitioner was granted time to produce any circular of the Railway Board or the General Manager, Western Railway, embodying similar instructions. He was unable to do so. I have no doubt that these instructions were never in force on the Western Railway. The rules In force from 1951 when the Western Railway was first formed are contained in the Handbook of Discipline and Appeal Rules for non-gazetted staff. Subsidiary Rule V(a)(i) under Rule 1707 at p. 16 ran as follows:
When a departmental enquiry is ordered under Rule 1707(c), it may, at the discretion of the officer ordering the inquiry, be conducted by a single official or preferably by a committee consisting of two or more officials. If a single official conducts the enquiry, he may be either a gazetted officer, or a member of the Class III supervisory staff. If a committee is appointed, it shall consist either entirely of gazetted officers or entirely of Class III supervisory staff, and the officer appointing the committee shall also nominate the chairman, who should ordinarily be the most senior official on the committee.
10. This subsidiary rule was renumbered as VI by correction slip No. 91 dated 1 March 1958.
11. New Discipline and Appeal Rules came into force from 1 August 1961.
12. Rule 1710 of the new rules runs as follows:
Appointment of board of inquiry or inquiring officer.--The disciplinary authority may enquire into the charges itself or, if It considers necessary, it may, either at the time of communicating the charges to the railway servant under Rule 1709 or at any time thereafter, appoint a board of inquiry or an inquiring officer for the purpose which will be termed as the ' inquiring authority '.
13. All the above rules give a discretion to appoint a single officer to hold an enquiry or a board of inquiry. In this connexion I may refer to the decision in Sudarshanlal v. S.P. Agarwala 1965 R L.W. 115.
14. I have carefully gone through the observations made in Ramanand V. D.S., Northern Railway, Bikaner, with regard to the instructions contained in Sanjiwa Row's Indian Railways Act. The Discipline and Appeal Rules for non-gazetted staff issued by the Western Railway in 1951 reproduce the rules contained in Section 2 of Chap. XVII of the State Railway Establishment Code, Vol. I, together with the subsidiary rules of the B.B. & C.I. Railway as framed under the rule-making powers vested in the General Manager. The rules framed by the Railway Board supersede the rules framed by the General Manager. In other words the General Manager cannot frame any subsidiary rules inconsistent with the rules framed by the Railway Board. It is thus quite clear that if the Railway Board issued any instructions of the nature printed in Sanjiwa Row's book, they must have been withdrawn before the year 1951 when the Discipline and Appeal Rules for non-gazetted staff of the Western Railway were first published.
15. In the result, the writ petition is dismissed. I however make no order as to costs.