G.M. Lodha, J.
1. The Union of India through the General Manager, Western Railway, Churchgate, Bombay has filed this appeal against the judgment and decree dated 13-3-1971 passed by the learned Civil Judge, Ajmer in Civil Appeal No. 489/69 (92/70).
2. The plaintiff is an employee of the Railway, who filed the suit against the order of removal from service communicated to him vide letter dated 6-12-65. The plaintiff was removed from service on the ground of charges of misconduct which were held to be proved. It is not necessary to deal with the facts of the case, because the short point which has arisen for considration of this Court is, whether the judgment of the first appellate court in which the decree of the trial court has not been upheld on the ground given by the trial court, but still upheld on the ground that after one witness D. Benjour was examined on 21-7-1965, the employee was not asked to submit bis explanation or defence with regard this evidence, is correct. This witness has said that the property which was recovered from the plaintiff was railway property.
3. The first appellate court was of the view that this being an important point in the enquiry, the principles of natural justice required that the plaintiff should have been given opportunity to explain this evidence against him recorded on 21-7-1965.
4. Mr. Bapna has submitted that the plaintiff had already been allowed opportunity 10 lead defence evidence, and this witness was called on a small point for assistance of the Enquiry Officer and, therefore, no further defence evidence was required to be allowed, more so when the employee never claimed it and he even refused to cross-examine him.
5. In view of the above fasts, the question which arises for consideration is. whether it was necessary for the Enquiry Officer to allow an opportunity to lead defence to the plaintiff after examination of the witness D Bonjur in the facts and circumstances of this case, and whether on account of the omission of it, the principles of natural justice or any rule of the departmental enquiry is violated.
6. Mr. Bapna learned Counsel for the appellant has argued that there has been no violation of the Principles of Natural Justice in this case. According to him, all the witnesses were examined in the presence of the plaintiff by the Enquiry Officer and he had full opportunity to cross-examine them Further the plaintiff led defence evidence and examined four witnesses. Thereafter, the present witness D Benjour was examined to clarify the identity of the property whether it was the railway property. The plaintiff was present during the examination of this witness but he refused to cross-examine as probably he was conscious of his guilt. Further it was argued that it was never the case of plaintiff that the property was not of the railway but same was the private property. In fact the plaintiff dis-owned the property, denied his possession and took the defence that it was lying in the railway premises and was not found in his possession.
7. Mr. Laxmandass learned Counsel for the plaintiff-respondent submitted that it is not correct to submit that no prejudice was caused to the plaintiff on a count of denial of opportunity of giving defence evidence. According to him the plaintiff could not cross-examine this witness because, he was never intimated that he should call his representative and a witness would be examined. Mr. Laxman Dass further submitted that in the Discipline and Appeal Rules that govern staff of the Western Railway, Rule 1707 provides the procedure for dismissal, removal or reduction and there is no procedure for calling of additional evidence after the close of the enquiry by the Enquiry Officer.
8. Reference was made to the decision in Union of India v. Prem Chand (1) 1973 R.L.W. 146 It was also argued that the notice to show cause contains no grounds, reasons, or facts and it was not speaking order. In this respect he relied upon the judgment of this Court in Kuldeep Singh v. Union of India (2) 1971 WLN 178
9. Mr. Laxman Dass's contention is that since the charge against the petitioner was of stealing railway property and there was no other evidence to prove this charge except that of D. Bonjur, serious prejudice has been caused by denial of opportunity to cross-examine on account of absence of the representative and further denial of opportunity to lead defence evidence.
10. Mr. Bapna submitted that in series of cases, the Hon'ble Supreme Court said that unless prejudice is caused, the removal or dismissal cannot be set aside. In this connection he referred to the decisions in Jankinath Sarangi v. State of Orissa 31, : (1970)ILLJ356SC . The Chairman, Board of Mining Examination and Chief Inspector of Mines and Anr. v. Ramjee : 2SCR904 and in Sarin H.C. v. Union of India 1976 SLR 248. Mr. Bapna also submitted that the plaintiff cannot be allowed to raise other grounds to challenge the order of dismissal as they were not argued before the first appellate Court.
11. Mr. Laxman Dass pointed out that the plaintiff is a poor fitter railway employee and he could not engage the counsel in the first appellate court and therefore no arguments were made on his behalf. According to Mr. Laxman Dass since it was a civil matter and the plaintiff's suit was to be considered in appeal, it was for the first appellate court to examine the points which were discussed by the trial court.
12. I have carefully considered the submissions of learned Counsel for the parties, ft is true that Rule 1707 of the Discipline and Appeal Rules (Western Railways) provides no express provision for calling of additional evidence after the defence evidence has been examined in departmental enquiry However, I am in agreement with the view of Mr. Bapna that additional evidence can be called as laid down in Gaya Prasad Misra v. The State of Uttar Pradesh and Ors. : AIR1960All618 . It was held as under:
(b) Constitution of India.-Article 311-Enquiry-Natural justice
Where in an enquiry against the conduct of a police officer, a witness was examined after the close of the case but the officer was given an opportunity to cross-examine him, there cannot be any grievance on this ground.
Their lordships observed as under:
(6) There can be no real grievance against the examination of Ramdayal witness also as an opportunity had been given to the petitioner to cross-examine him. Even if he was examined after the rest of the case had closed, the petitioner cannot grudge the examination of Ramdayal who was examined to prove a certain document only while opportunity to cross-examine him had been given.
13. However, after accepting the contention of Mr. Bapna that the enquiry cannot be vitiated simply because this witness was examined without there being express provisions for it. I am of the view that for consideration of this evidence, two requirements were necessary in order to ful-fill the requirements of the Principles of Natural Justice and for giving a full and reasonable opportunity to the plaintiff (I) that he should have been given an effective opportunity of cross-examination, (2) He should have been asked whether he wants to produce defence evidence and then he should have been allowed that opportunity also, In the instant case, admittedly the second opportunity regarding defence evidence for this additional witness was not given and that itself is. sufficient to show that the plaintiff's case was prejudiced because admittedly the entire case depends upon the indentification of the property as railway property. Since the charge was that the plaintiff committed theft of the railway property, the question whether the property was of railway, was sought to be adjudication by an additional evidence. It was fundamental requirement of the Principles of Natural Justice that the plaintiff should be allowed an opportunity to rebut that evidence and absence of that undoubtedly causes prejudice to the plaintiff. So far as the question of absence of representative is concerned, here it may also be mentioned that it was necessary in the case of additional evidence that the plaintiff should have been informed in writing expressly that additional evidence of such and such witness would be taken and he should bring his representative for cross-examination.
14. In view of the above discussion, I am of the opinion that the decision of the lower court calls for no interference and it is not necessary to discuss the other points canvassed by Mr. Laxman Dass learned Counsel for the plaintiff-respondent. It is sufficient to mention that once the enquiry is vitiated the logical result of this is that the order of removal is liable to be quashed.
15. However, it would be open to the Railway Authorities to start the enquiry afresh by permiting the cross-examination of this witness D. Benjour and then give an opportunity to the plaintiff to lead defence evidence. Thereafter further proceedings according to the Discipline and Appeal Rules, can be taken by the Railway Authorities.
16. Mr. Laxman Dass informed the Court that the plaintiff has already attained the age of superannuation. He also submits that he was never taken on duty by the railway even after the judgment of the lower court.
17. Be that as it may, the important question which would arise for consideration would be about his salary for all this period and therefore. I am the opinion that since the removal is being set-aside, not on the merits of the case but because of irregularities in the procedure of the enquiry, the railway should not be debarred from completing the enquiry in accordance with these Rules and the observations made above, if it decides to do so. While taking such decision, the Railway Authorities should consider, the fact that the plaintiff is a low paid poor employee and has remained out of employment, inspite of judgment in his favour since 1969. Unless the charge happens to be of exceptionally serious nature, having repercussions on general discipline in the other employees, the Railway Authorities should take a compassionate humanitarian view and avoid revival of disciplinary proceedings at this belated stage.
18. The appeal fails and is hereby dismissed with costs.