Kan Singh, J.
1. This is a defendant's appeal arising out of a suit for declaring an order for the removal of the plaintiff-respondent from service as null and void on account of the contravention of the principles of natural justice in the holding of the departmental inquiry culminating in the order of removal.
2. The plaintiff-respondent was a member of the Railway Protection Force and was under the control of the Security Officer, Western Railway Ajmer. At the relevant time he was pasted at Abu Road Ha was seen carrying two kilograms of coal which was the property of the Railway. He was served with a charge sheet, departmental proceedings were initiated against him and finally he was visited with the penalty of removal from service by the Security Officer He went up in appeal, but without any success. He then served a notice under Section 80 Civil Procedure Code on the Union of India and on 2.3.67 instituted the suit in the court of Munsif, Ajmer City (East). The plaint was later on amended with the pel mission of the court and an amended plaint was filed on 16 10.69. The order of removal was challenged on a number of grounds, but it is not relevant to make any reference to all of them except the one ground that the Inquiry Officer did not afford an opportunity to the plaintiff Government servant to adduce oral evidence to rebut the departmental evidence. The suit was contested by the Union of India.
3. The ground on which the two courts below found the order of plaintiff's removal from service to be illegal was that the plaintiff had not been afforded an opportunity to adduce his oral evidence, This was covered by issue No. 1 which ran as follows:
Whether Notice No. 30/AS/40/3/1-WR/ 17/65 dated 28.4.66 is void, illegal and inoperative for the reasons mentioned in para 3(a) to 3(j) of the plaint and Para 3(k) to 3(o) of the amended plaint?
4. The, aforesaid ground was comprised in Para-3(1) of the plaint. The Union tried to justify the order. It was pleaded that in the circumstances it could not be urged with justification by the plaintiff chat no opportunity to adduce oral evidence had been afforded to him or that consequently there had been violation of the principles of natural justice rendering the order of removal of the plaintiff from service null and void It was argued that, in the first instance, by the order dated 7.8.65 (Ex. A/35) the plaintiff was called upon to furnish the list of his defence witnesses, but the plaintiff had failed to avail of this opportunity and he did not furnish any such list. The reliance was placed on the proceedings sheet dated 25.11.65 which went to show that after the conclusion of the departmental evidence the plaintiff was asked to state what defence he had to furnish and hers also the plaintiff did not choose to avail of the opportunity of expressing his desire to lead any defence evidence Certain cases were cited by both the sides before the learned Civil Judge. The learned Civil Judge considered them and held that the mere fact that the plaintiff had not furnished the list of his witnesses at the initial stage did not disentitle him from leading defence evidence after the closure of the departmental case. The learned Judge pointed out that it was the duty of the departmental officer to have afforded the plaintiff ah opportunity to lead his oral evidence after the closure of the prosecution evidence. According to the, learned Civil Judge, the order sheets dated 25.11.65 and 1.12.65 did not show that such an opportunity was ever afforded to the plaintiff. Consequently, according to the learned Civil Judge, there was violation of the principles of natural justice with the mult that the order of removal from service passed against the plaintiff on the basis of this inquiry was null and void. I may put the conclusion leached by the learned Civil Judge in his own words:
From the decisions of their Lordships of the Supreme Court cited by me above and of the other High Courts also, the preponderance of the judicial decision is that the delinquent should be afforded an opportunity to lead oral evidence in rebuttal of the evidence produced by the department. It is true that the plaintiff was asked to furnish his list in a Memo accompanying the charge-sheet which has been marked Ex. A/35, but his failure to submit the list at the initial stage, does not deprive him of the opportunity to lead oral evidence in his defence after the closure of the departmental case. The Enquiry Officer should have afforded the plaintiff with an opportunity to lead oral or documentary evidence in his defence after the closure of the evidence of the department. The order sheets dated 25.11.65 and 1,12. 65 do not show that such an opportunity was ever afforded to the plaintiff and hence the non affording of this opportunity fully violates the principles of natural justice and vitiates the enquiry conducted against the delinquent plaintiff, and any findings of punishment based on that enquiry, are further vitiated. I therefore, hold that the learned lower court was right in holding that the proof of the allegations contained in Para 3(1) of the amended plaint, violates the principles of natural justice.
5. In the result, the learned Civil Judge affirmed the decree of the first court holding that the order of removal of the plaintiff from service was null and void.
6. It is in these circumstances that the Union has come in further appeal to this Court.
7. Learned Counsel for the Union has contended that the courts below were in error in decreeing the plaintiff's suit He reiterated that the opportunity to lead evidence had, in fact, been given to the plaintiff. Attention was invited to the documents Ex. A/5, Ex A/16 and Ex A/35. Learned Counsel maintained that in the circumstances it was for the plaintiff himself to have expressed his wish to examine his oral evidence. Then it was argued that there has been full compliance of the statutory rules governing this inquiry and further stressed that the plaintiff himself had not taken this as a ground firstly, in his reply to the show cause notice against the penalty of removal proposed by the appointing authority or subsequently at any stage, such as, as in the departmental appeal or in the notice of suit under Section 80 Civil Procedure Code. According to learned Counsel, it was only in the amended plaint that this ground was raised for the first time; no such ground having been taken even in the plaint that was filed in 1967. Thus according to learned Counsel, there was no merit in this ground; more so when there was no statutory rule for the affording of such an opportunity to 'he plaintiff and when no prejudice is shown to have resulted. Learned Counsel placed reliance on a number of decisions, such as, Krishan Lal v. Union of India : AIR1969Delhi145 , Lekh Ram v. State of Madhya Pradesh : AIR1959MP404 , Daljit Singh v. Inspector General of Police 1966 (2) LLJ 729 and Model Mills v. State Industrial Court 1967 (2) LLJ 375.
8. On the other hand, learned Counsel for the respondent tried to support the decree of the court below. He took the stand that it was the duty of the Inquiry Officer to have afforded the opportunity to lead the defence evidence to the plaintiff even if the plaintiff had not specifically asked for it. The plaintiff Government servant had the right to have an opportunity to adduce his defence evidence and the same was required to be made available to him by the Inquiry Officer. Since this was not granted there has been violation of the principles of natural justice according to learned Counsel. He relied on N K.G. Menon v. Vellore Elec. System 1966 (30) FIR 130, P.Orr & Sons (Privrte), Ltd. and Their Workmen 1958 (2) LLJ 152, Khem Chand v. Union of India : (1959)ILLJ167SC which had been reaffirmed in subsequent cases, such as, Central Bank of India v. Karunamoy : (1967)IILLJ739SC and State of U.P. v. O.P. Gupta : AIR1970SC679 He read from the 'Law and Procedure of Departmental Enquiries' by Ghaiye from page 663.
9. It is by now firmly established that an Inquiry Officer conducting departmental inquiries against a Government Servant which may entail the punishment of dismissal or removal from service has to act quasi-judicially. He has to follow the rules of procedure governing the inquiry. By and large, such rules embody the principles of natural justice as well, but broadly speaking whenever such rules are silent the principles of natural justice which are not bing but formulation of principles for display of fair play have to be followed. Such principles have been stated in Khem Chand v. Union of India : (1959)ILLJ167SC Their Lordships had to consider the scope of the words- 'reasonable oportunity' occurring in Article 311(2) of the Constitution. Their Lordships observed:
The reasonable opportunity envisaged to the Government servant by the provision contained in Article 311(2) includes (a) an opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based; (b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witneses in support of his defence; and finally (c) an opportunity to make his representation, as to why the proposed punishment should not be inflicted on, him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the Govt. servant tentatively proposes to inflict one of the three punishment and communicates the same to the government servant. Thus, the protection provided by rules, like Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, is bodily lifted out of the rules and together with an additional opportunity embodied in Section 240(3) of the Government of India Act, 1935, so as to give a statutory protection to the Government servants and is now incorporated in Article 311(2) so as to convert the protection into a constitutional safeguard.
Here we are concerned with the principle (b) as mentioned in passage and have to see whether the Government servant in the present case had an opportunity to defend himself by examining himself or any other witness in support of his defence. In the present case the parties are on common ground that the plaintiff was served with a charge sheet accompanted with the statement of allegations. He had submitted his reply thereto, the departmental witnesses were examined in the presence of the plaintiff and he had been afforded the opportunity of cross-examining the departmental witness and he did cross-examine them and further the statement of the plaintiff was recorded after the closure of the departmental evidence. It is also not denied by the defendant appellant that the plaintiff did not examine any defence witness. The point of controversy is whether it was for the Inquiry Officer to have expressly asked the plaintiff to produce his witnesses or it was for the plaintiff to ask the Inquiry Officer to take his evidence. We have to consider here whether the rules of natural justice make it incumbent on the Inquiry Officer to definitely call upon the delinquent servant to produce his defence witnesses, if any, or the Government servant should himself express this and wish and produce the witnesses. In Krishan Lal v. Union of India : AIR1969Delhi145 the learned Judges observed:
The question of reasonable opportunity to show cause is dependent on the peculiar facts of each case. What is reasonable is, not necessarily what is the best but, what is fairly appropriate under all the circumstances of the case. Reasonable opportunity to show cause does not necessarily include a right to be specifically & expressly granted time to produce evidence in defence even when a public servant does not choose to ask for it and does not express any desire to produce such evidence. The enquiry cannot be considered to be open to challenge on the ground that the procedure laid down in the Evidence Act for recording evidence or in the Code of Criminal Procedure for trial of offences has not been strictly followed.
10. In Daljit Singh v. Inspector General of Police 1966 (2) LLJ 729 it was observed by the learned Judge that:
As no prayer was made by the petition for adducing defence evidence it cannot be said that as the enquiry officer did not voluntarily give him an opportunity to produce his witnesses in defence, it would amount to a violation of the principles of natural justice.
11. In Model Mills v. State Industrial Court 1967 (2) LLJ 375 the learned Judges observed that:
Stating it broadly, and without intending it to be exhaustive, rules of natural justice require that a party should have opportunity of adducing all relevant evidence on which he relies. The evidence of the opponent should be taken in his presence and that he should be given the opportunity to cross-examine and no materials to be relied on against him without his being given an opportunity of explaining them. It does not appear that there is any further obligation cast on the enquiry officer to ask the chargesheeted person whether he wants to lead any evidence and ascertain the names of witnesses, and cause steps to be taken for their production.
12. In Lekh Ram v. State of Madhya Pradesh : AIR1959MP404 the learned Judges observed:
An opportunity to cross-examine or to adduce evidence is not something that the inquiring authority can tie around the neck of the officer proceeded against; but it is an occasion that arises, and is to be availed of. The usual procedure is that the chargesheet is served and the cause, if any is taken. The evidence if documentary is communicated to the person proceeded against, and if oral, the witnesses cf the department are examined before him. If he is not present, he is asked if he would like to be heard in person. He is then invited to cross-examine, and after it is over, to file his own documentary evidence and call his witnesses, if any, give his argument.
13. On the other hand, in NGK Menon v. Vellore Elec System 1966 (30) FIR 130 it was observed that:
In a domestic enquiry held into misconduct by an employee, after the examination of the witnesses for the employer and their cross-examination, the accused is entitled to give evidence in person and to have defence witnesses called This right cannot be denied simply because the accused did not give the list of witnesses whom he proposed to call in a proforma which was sent to him for completion along with the charge-sheet. Where the employee asked for an adjournment complaining that he was not being permitted to examine defence witnesses on his behalf, the enquiry officer should give the employee an opportunity to give a list of witnesses after the conclusion of the examination of the prosecution witnesses and to have them examined. Where the services of an employee are terminated without such an opportunity being given to him, the termination will not be valid.
14. In M.P.S.R.T. Corporation v. Industrial Court, M.P. Indore 1972 L&IC; 511, the learned Judges observed:
So far as the first point is concerned, the fact is that on the date of the enquiry the respondent No. 3 was asked the question as to whether he wanted to produce defence witnesses. He stated that the enquiry should be conducted at the site where the occurrence took place. This was taken by the Enquiry Officer as meaning that he did not want to give any evidence. The Labour Court has not read this answer in that sense. The Labour Court is of opinion that by this answer the respondent No. 3 wanted to say that he might be able to produce evidence if the enquiry was conducted at the site and that, therefore, the possibility of his, producing evidence cannot be ruled out. We are unable to say that this interpretation of this Labour Court, is necessarily wrong. It should have been made clear to him that he should produce evidence there if he so liked. On the second point also we have seen order of the officer conducting the domestic enquiry. The order is very short and dots not give any reason for holding that the charges had been proved The Enquiry Officer has not even mentioned the name of witnesses or the nature of evidence that was procuded before him on the basis of which he found the charges proved. We are, therefore, unable to hold that this part of the decision of the Labour Court was without jurisdiction or patently wrong in law.
15. Having considered the various cases, I find my self in agreement with the statement that the question of there being reasonable opportunity to show cause is dependent on the peculiar facts of each case. What may not be a reasonable course to adopt in one case may not be considered so in another set of facts. The proceedings must disclose: (1) that by statutory rules, if any, governing the inquiry were in essence complted with, and (2) that the Government servant has bad an adequate opportunity to meet the charges with which he was faced. All the material on which the department seeks to reply should be placed before the Inquiry Officer and the delinquent Government servant should have an opportunity of explaining such material. The evidence should be recorded in his presence and he should have the opportunity to cross-examine the witnesses Further where there are previously recorded statements, he should be furnished with copies thereof if he wants to cross-examine the witnesses on their basis After the closure of the departmental evidence the Government servant should be afforded the opportunity of producing any defence evidence as the Government servant may like to do. Whether the Inquiry Officer should, in so many words, call upon the Government servant to produce his defence evidence or it will be for the Government servant himself to ask for an opportunity to produce his witnesses is a matter which cannot be put down with any rigidity. Here one will have to keep in view the surrounding circumstances of each case. What is reasonable in one case may not necessarily be reasonable in another case. For example, if a Government servant comes from a category who cannot be expected to be fully aware of the valuable right of the Government servant in this regard then it will be expected of the Inquiry Officer to specifically ask the Government servant to produce his defence, if he so wants to do. In another situation, if a Government servant comes from a higher catagory and on account of his education and experience cannot be said to be unaware of his right in this behalf, then the mere fact that the Inquiry Officer had not specifically asked the Government servant to produce his defence evidence may not be of much importance. The essence, of the matter in every case will be whether the Government servant had or had no opportunity to produce his defence. For seeing whether the Government servant had or had no adequate opportunity of meeting the charges against him by having the opportunity of producing the defence one will have necessarily to examine the proceedings taken by the Inquiry Officer.
16. In the present case, let us therefore, examine as to what had happened in the case. Ex. A 6 is the charge sheet that he was served on the plaintiff It is a printed form which had been filled in. It is for Railway Protection Force. After the usual charge in para-2(b) the plaintiff Harcharan Singh has been called upon to furnish the names and addresses of the witnesses, if any, whom he wished to call in support of his defence The same thing has been said in the covering letter which is again on printed form and it is Ex. A35 Ex. A-17 is the acknowledgement by the plaintiff of his having received the charge sheet with the statement of allegations. Ex. A-7 is his reply to the charge sheet wherein he had written to say that the allegations levelled against him were denied, but the justification for denial could not be laid down in the absense of the relevant records which were refused to him by the disciplinary authority. Further, according to him, the copies of the documents supplied to him were not attested by any officer Then he had given the names of the persons whom he desired to be his defence counsel Then he had given the names of the persons whom he desired to be his defence counsel. Order sheets have been placed on record as Ex A-49. They show that on 13-10-65 the documents were received from ASO's Office on 27-10-65. the witnesses for the department were present, but the representative of the plaintiff had not come and, therefore, the inquiry could not commence. Same thing happened on subsequsnt dates. On 25-11-65 this is what was recorded:
Arrd. ABR. The defaulter and his representative and IPF Jajndany were present. Also SIPF Atma Singh who was called for re-examination was present. Their statements were recorded and the D, E. completed. The defaulter HRK has promised to give his final defence statement in writing by 2.12.65 at JP, as his representative is not free. For final written defence statement next date is therefore fixed at JP on 2.12.65.
Then on 2.12.65 and 5.12.65 the following orders were recorded:
Arrd. JP. The defaulter and his representative were present and they wrote down the defence statement and handed over at 15/- hrs. D E. completed in all respects
Reports of the Deptt. Enquiry written and submitted.
17. The above proceedings disclose that the entire departmental evidence was recorded on 25.11.65 The plaintiff was asked to give his defence statement in writing by 2.12.65. This was so or desired because the person defending him was not free. Then 2.12.65 was fixed for the final written defence statement, On 2.12.65 the defaulter and his representative wrote down the defence statement and handed it over. Then it is noted that the departmental inquiry was completed in all respects.
18. Now, I may turn to Ex. A/16 which contains the further statement of the plaintiff which was recorded on 25.11.65 i.e. the day the departmental evidence was closed.
Q You have heard the evidence given by the various witnesses in your presence during this inquiry including their cross-examination. Have you got to say anything in your defence and if so do you want to give it orally or in writing?
Ans. I will give my defence statement in writing and that too at Jaipur on 2 12.65 as my representative Shri Gulab Singh who is headquartered at JP is not free to move out of Head qr.
This is read over and explained to all concerned in the language familiar to them and is correct.
Reading Ex. A/16 and the order sheet of 25 11.65 I have no doubt in my mind whatsoever that what the officer was then contemplating was the taking of the final statement of the delinquent servant and it was far from his mind whether any defence evidence should be recorded or not. The order sheet dated 2.12.65 shows that with the submission of the defence statement which mean the statement of the delinquent Government servant the departmental inquire was considered to be completed in all respects. It was expected of the Inquiry Officer before closing the inquiry, in the circumstances, to have asked thy deliquent servant if he would like to produce any defence evidence An impre ession is created on my mind that with the taking of the statement in writing-of the plaintiff Government servant by the Inquiry Officer thought that he had done his job and the departmental inquiry was complete in all respects. It is true, the Government servant had not furnished the list of witnesses though be was called upon to do so vide the charge sheet Ex. A/5 and the covering letter thereof Ex. A/35, but here I cannot lose sight of what the Government servant had stated in Ex. A/7 dated 24-8-65 wherein he had stated that though he was denying the charge sheet, but he was unable to afford justification for denial in the absence of relevant records which had been refused to him by the disciplinary authority Further he made grievance of the fact that the copies of the documents supplied to him were not duly attested by any officer. It was, therefore, too much of him to be expected that he would be in a position to furnish the list of his defence witnesses when be had not been made aware of the material against him by permitting him to have inspection of the relevant records. This is not to say that at any subsequent stage no inspection was allowed to him or the copies of the documents were not furnished to him. That might have been done. Also I am not saying that what the Government servant had stated in Ex. A/7 was necessarily true, but while considering the question of non-submission of list of witnesses at the initial stage one cannot over-look as to what had happened at that time and and for that Ex. A/7 produced by none other than the Union of India itself cannot be ignored. It was for them to say that what had been written by the Government servant in Ex. A/7 was contrary to facts. Therefore, non-submission of the list of defence witnesses at the initial stage is of no consequence. Of course, if one were not to find any justification for non-submission of the list of witnesses then it would be for the Government servant to express the desire that he would like to produce the defence evidence at the stage his statement would be recorded or soon thereafter, Even if no list of defence witnesses is produced at the initial stage, but the Government servant wants to examine defence evidence at a later stage that opportunity cannot be denied to him. It may very well happen that the mind is made up about the kind of defence witnesses, one would like to produce only after the entire departmental evidence is recorded. I should, however, add that it is always desirable to furnish a list of defence witnesses where it is possible to do so, but the mere fact that list of witnesses had not been furnished at the initial stages would not disentitle the Government servant to examine his defence evidence at the appropriate stage. Therefore, in the facts and circumstances of the present case I am satisfied that it was for the Inquiry Officer to have asked the Government servant to examine his defence witnesses, if he wanted to do so. It cannot be forgotten that the Government servant came from the ranks in the Protection Force and did not belong to the officer cadre. He may not have, therefore, fully appreciated that it was for him to produce the defence witnesses Then again the charge levelled against the Government servant was quite serious. It is common knowledge that at stations or on the line many of the petty Railway officials do make use of the Railway coal, but that cannot be tolerated in the case of a member of the Protection Force, who is expected to protect the Railway Property whether its value is much or not. In his case undoubtedly the offence would be a serious one and, therefore, full opportunity should be afforded to the servant in such a situation to defend himself. The order of plaintiff's removal from service passed by the appointing authority has rightly been held to be illegal, by the courts below but they have committed one error and it is that the proceedings being not in conformity with the principles of natural justice only from the stage of taking of defence evidence the order cannot preclude the competent authority from re-commencing the procedings from the stage of the recording of defence evidence and the decree of the court below, therefore, requires this modification.
19. Accordingly, I hereby allow the appeal in part. Though I uphold the decree of the court below to the extent that the order of removal of the plaintiff from service is illegal, the competent authority shall be at liberty to re-commence the proceedings, if it so desires, from the stage of the recording of the defence evidence and then to pass a proper order according to law. The parties are left to bear their own costs.
20. Learned Counsel for the Union orally prayed for leave to appeal under Section 18 of the Rajasthan High Court Ordinance 1949, but as the Union has been left free to re-commence the proceedings, if they so want to do, from the stage of the recording of the defence evidence, I am not inclined to grant leave which is accordingly hereby refused.