C.M. Lodha, J.
1. This is a plaintiff's second appeal arising out of a suit instituted by him in the Court of Munsiff, Ajmer City (Rast), Ajmer on 22 -11-1963 praying that a declaration may be granted in his favour that the order of Additional Commercial Superintendent (East), Western Railway, Ajmer dated 23 1.1961 marked Ex A 28 is void, illegal and ultra-vires and that the plaintiff should be deemed to continue in service of the Western Railway. The suit was dismissed by the learned Munsiff but on appeal by the plaintiff it has been decreed. Hence the Union of India has come in appeal to this Court.
2. The facts necessary for decision of the points canvassed before me lie within a naarow compass and may be stated as below.
3. The plaintiff who was working as Tickst Collector on 23.9.1958 at Bhuj (which for the aske of brevity has been described as BVJ), is alleged to have received Rs. 17 50 paisa from 35 Third Class passengers for false reservation in Bhuj-Ahemdabad through coach of Train No. 247 UP EX BVJ-ADI. It was further alleged that he gave Rs. 2/- out of the said amount to Tolaram, Assistant Booking Clerk for getting reservation labels prepared. However, when it was revealed before the departure of the train on complaint by some passengers that the reservation was a bogus one, the plaintiff is alleged to have returned the amount after collecting back Rs. 2/- from Tolaram to the passengers concerned. It is also the case of the Railway that the plaintiff in collusion with one A.P. Jain Assistant Station Master, Bhuj put reservation labels on the coach. A complaint having been made in this connection by the Secretary of the Transport Users Association, Bhuj, the plaintiff was charge sheeted & after having got an enquiry in the matter the Disciplinary Authority namely the Divisional Commercial Superintendent, Western Railway, Ajmer removed the petitioner from service by the order Ex. A 28. The plaintiff's case is that no reasonable opportunity was afforded to him to defend himself against the charges as envisaged under Article 311 of the Constitution of India and that there is no evidence against him to substantiate the charges. The defendant, on the other hand, justified the impugned order on the ground that it had been passed after following the procedure prescribed by law and that the charges were established against the plaintiff.
4. The learned Munsiff came to the conclusion that reasonable opportunity had been given to the plaintiff in as much as he was supplied with copies of the enquiry report and other documents for which the plaintiff had asked He also found that the plaintiff had admitted his guilt in his statement recorded by the Enquiry Officer and there was other evidence also by which the charges against the plaintiff were established. The learned Addl. Civil Judge, Ajmer, who heard the appeal from the judgment of the learned Munsiff however came to the conslusion that no reasonable opportunity had been afforded to the delinquent officer and that the enquiry was vitiated for the reason that the second notice given to the plaintiff before imposing the proposed punishment was defective.
5. Learned Counsel for the appellant urged that there was sufficient evidence on the record to justify the order of removal passed by the Disciplinary Authority and the findings arrived at by the Enquiry Officer and the Disciplinary Authority cannot be interfered with the suit. It has also been argued that reasonable opportunity was afforded to the plaintiff in the course of enquiry. Lastly, it has been submitted that neither the second notice issued by the Disciplinary Authority, not the order of removal passed by him suffer from any infirmity.
6. On the other hand, learned Counsel for the respondent has strenuously urged that even if all the evidence that has bean collected by the Enquiry Officer is accepted no case is made out against the plaintiff and the findings arrived at by the Enquiry Officer and accepted by the Disciplinary Authority are based on no evidence, and, therefore, the order of removal based on such findings must be struck out. He has also argued that the material witnesses who would have thrown a flood of light on the incident on account of which the plaintiff has been charge sheeted have not been examined by the Enquiry Officer, as a Jesuit of which the plaintiff has been greatly prejudiced Another contention of the learned Counsel is that copies of the statements of witnesses recorded in the previous enquiry conducted on the back of the plaintiff have not been furnished to the plaintiff even though he demanded the same. Similar objection has been raised in respect of the statements of the witnesses examined by the Enquiry Officer in the course of enquiry. He has also contended that in any view of the matter the order of removal is vitiated on account of the second notice Ex. A 25 being materially defective and the orders of the Disciplinary Authority as well as of the Appellate Authority, namely the Divisional Superintendent, Ajmer being no orders in the eye of law.
7. I would first take up the last contention raised on behalf of the plaintiff respondent, namely whether the order of removable is vitiated on account of the notice Ex. A. 25 being materially defective and the orders of the Disciplinary authority as well as the Appellate Authority being no valid orders in the eye of law. The Enquiry Officer D.W. 1 Satish Chandra in his enquiry report (undated) found that the charges against the plaintiff were proved. On receipt of the enquiry report the Disciplinary Authority namely the Divisional Commercial Superintendent (E), Ajmer gave notice Ex. A. 25 to the plaintiff. The material portion of the notice reads as under:
1. 'I, DCS considered your written defence in reply to (Charge -sheet) No. even dated 10 11.1959, and the report of the Deparmental enquiry set up by him to enquire into the matter and hold that you are guilty of the offence (s) as mentioned on the reverse of charge - sheet No. Con. ET/1195/ DAR dated 10.11.1959.
2. 'I, DCS has therefor come to the provisional decision that you should be removed from service.
The plaintiff submitted his reply to this notice on 26.11.1960, a copy of which Ex. 27 has been placed on the record, and thereafter the impugned order was passed by the Disciplinary Authority, the material portion of which runs as under:
Ref. Your reply dated 26.11.60....
1. You are hereby informed that in accordance with the orders passed by me the following penalty has been awarded to you:
Removal from service with effect from the date of receipt of this notice by you;
2. You are required to acknowledge receipt of this notice on the form subjoined.
Aggrieved by the order of removal, the plaintiff filed appeal before the Divisional Superintendent, Western Railway, Ajmer and the order passed thereon is reproduced in Ex. A.31 and reads as under:
The trend of evidence does indicate that the charge levelled has been proved adequately In the circumstances, I see no reason to interfere in the orders passed in the case.
8. In Union of India v. Ramgopai Bhargava J, observed as follows:
So far as Ex. 4 (order of imposition of penalty) is concerned; there is no doubt that it does not contain reasons for the order nor does it appear from it that the punishing authority had applied its mind to the explanation given by the plaintiff in response to the show cause notice. There can also be no doubt that the punishing authority in the exercise of its quasi judicial powers was bound to make a judicial approach to the question and should have given reasons for its decision particularly when its order was subject to appeal to a higher authority Throughout the proceedings in the lower court, the defendant did not indicate that there existed a separate order of the punishing authority wherein plaintiff's explanation had been considered and reasons for the decision had been given.
The learned Judge came to the conclusion that since the impugned order of removal did not contain the reasons, nor did it show that the explanation offered by the plaintiff in response to the show cause notice was considered, the order of removal stood vitiated and the plaintiff would be deemed to be in the service of the Railway.
9. In the present case also the order of removal Ex. A. 28 does not contain the reasons, nor does it show that the explanation submitted by the delinquent officer in response to the show cause notice had been considered. No doubt it is mentioned in the order: 'Ref. Your reply dated 26-11-1960.' This only shows that the order was being passed with reference to the reply dated 26-11-1960 submitted by the plaintiff From this it cannot be inferred that the explanation or reply submitted by the plaintiff had been duly considered by the punishing authority. Thus this case undoubtedly supports the contention of the plaintiff However, learned Counsel for the Union of India submits that Union of India v. Ramgopal does not lay down good law. He has relied upon Stale of Madras v. Srinivasan : AIR1966SC1827 Union of India v. K. Rajappa : 2SCR343 , and State of Assam v. Bimal Kumar : (1963)ILLJ295SC .
10. The first two Supreme Court cases have been noticed by Bbargava J., and he has observed that in State of Madras v. Srinivasan (2) the Government had carefully considered the explanation submitted by the accused officer and after giving the summary of the advice given by the P.S.C. had indicated that it agreed with it. As to the second case he has rightly observed that it does not relate to the final order passed by the Disciplinary Authority, but concerns the order passed before the show cause notice was issued, and in that case the notice expressly stated that the Chief Commercial Superintendent agreed with the findings of the Enquiry Officer that all the charges mentioned in the charge sheet had been established and so the court came to the conclusion that Rule 1713 of the Railway Servants Conduct and Disciplinary Rules had been substantially complied with.
11. In State of Assam v. Bimal Kumar : (1963)ILLJ295SC it was held that it is no doubt desirable that the dismissing authority should indicate in the second notice the concurrence with the conclusions of the Enquiry Officer before it issues the notice under Article 311(2) of the Constitution, but the failure to state expressly in the notice does not necessarily justify the conclusion that the notice given in that behalf does not afford a reasonable opportunity to the delinquent officer under Article 311(2) and amounts to contravention of Article 311(2). It was was further observed that where the dismissing authority proposes to proceed to issue the notice after accepting the enquiry report in its entirety and a copy of the enquiry report was also enclosed along with the notice it must have been obvious to the delinquent officer that the findings recorded against him by the Enquiry Officer had been accepted and so it would not be reasonable to accept the view that the civil servant concerned had no reasonable opportunity as required by Article 311(2). Their Lordships have been further pleased to observe that if the findings in the report are against the public officer and the dismissing authority agrees with the said findings, a stage is reached for giving another opportunity to the public officer to show why disciplinary action should not be taken against him. To quote the words of their Lordships:
There is no doubt that in response to this notice, the public officer is entitled to show cause not only against the action proposed to be taken against him, but also against the validity or the correctness of the findings recorded by the enquiring officer and provisionally accepted by the dismissing authority. In other words, the second opportunity enables the public officer to cover the whole ground and to plead that no case had been made out against him for taking any disciplinary action and then to urge that in he fails in substantiating his innocence, the action proposed to be taken against him is either unduly severe or not called for.
12. It may be noted that the controversy in Bimal Kumar's case AIR 1963 SC 1612 was confined to the validity of the second show cause notice under Article 311(2), and their Lordships were not dealing with the nature of the final order to be passed after receipt of the explanation to the second show cause notice. This authority is, therefore, not exactly in point. However, the observations of their Lordships, I have quoted above, do give an indication that the second opportunity enables the public officer to cover the whole ground and to plead that no case had been made out against him for taking any disciplinary action and then to urge that if he fails in substantiating his innocence, the action proposed to be taken against him is either unduly severe or not called for. As a necessary corollary this implies that before passing an order regarding the proposed penalty the Disciplinary Authority must take into consideration not only the question of punishment to be imposed but also whether a case has been made out against the delinquent officer on merits. I am therefore of opinion that this case too does not support the contention raised on behalf of the Union of India
13. Learned Counsel for the respondent submitted that the decision of the Supreme Court in B.D. Gupta v. State of Haryana 1972 SLR 845 fortifies the view taken by Bhargava, J. In B.D. Gupta's case 1972 SLR 845 while dealing with the second show cause notice their Lordships observed that the show cause notice to the delinquent officer merely stated in vague general terms that the delinquent officer's reply to the charges and allegations was unsatisfactory, and that the notice is vague inasmuch as it does not show in what way the explanation of of the appellant was unsatisfactory Which part of the appellant's explanation was so unsatisfactory and on what materials did the Government think that the appellant's explanation was unsatisfactory It was observed:
It is to our mind essential for a 'Show Causa Notice' to indicate the precise scope of the notice and also to indicate the points on which the officer concerned is expected to give a reply.
14. It may be observed that in that case their Lordships were not called upon to decide as to the nature of the final order to be passed after issue of the second show cause notice. No doubt in the facts and circumstances of the case their Lordships found that the notice was vague inasmuch as it did not indicate the points on which the officer concerned was expected to give a reply, But from this it cannot be inferred that in every case the show cause notice must contain the detailed reasons particularly when the enquiry officer has found the charges proved against the delinquent officer and the Disciplinary Authority mentions in the notice that it agrees to the findings arrived at by the enquiry officer and holds him guilty. In B.D. Gupta's case 1972 SLR 845 there were two charges: 1(a) and 1(b) and the officer had been exonerated of charge 1 (a) but had been found guily of charge 1(b) and there was nothing in the notice to indicate that the particular allegations regarding which the appellant had failed to furnish a satisfactory explanation were referable to charge 1(b). Besides that the notice did not mention that the Disciplinary Authority accepted the findings of the Enquiry Officer and as such found the officer guilty. It was in this context that their Lordships held that the notice was defective, but, as observed in Bimal Kumar's case AIR 1963 SC 1612 failure to state expressly in the second notice by the Disciplinary Authority its concurrence that the conclusion of the Enquiry Officer does not necessarily justify the conclusion that the notice given in that behalf does not afford a reasonable opportunity to the delinquent officer under Article 311(2). In the present case the second show cause notice Ex. A 25 indicates that the removing authority proceeded to issue the notice after accepting the enquiry report in its entirety and after holding the officer guilty. A copy of the enquiry report was enclosed along with the notice. In the circumstances, it would not be reasonable to hold that the officer concerned had no reasonable opportunity as required by Article 311. I, therefore, hold that the show cause notice Ex. A. 25 is not bad. However, in view of the fact that he order Ex. A 28 does not contain the reasons and does not show that the explanation offered by the plaintiff in response to the show cause notice was considered, the order of his removal from service stands vitiated.
15. It would now be proper to deal with the controversy regarding the impugned order being based on no evidence. Admittedly there is no direct evidence to the effect that the plaintiff accepted Rs. 17.59 as bribe from the batch of 35 passengers travelling by the train in question. However, there is evidence of Tolaram (Ex. 20) to the effect that the Assistant Station Master on duty Shri A.P. jain went to his office with a slip of paper in his hand and two reservation labels and on his saying that be was off duty and the plaintiff ticket collector, was also not there, the witness filled up the reservation labels. He has further stated that after about 45 minutes the plaintiff also came and gave him Rs. 2/- and on an enquiry from the plaintiff as to what for the amount was being paid the plaintiff gave no reply and went away, and considering the amount to be the Ticket Collector's cash the witness entered the same in the daily train cash book. Later on the Station Master made enquires from him and after the departure of the train the plaintiff came to his office and demanded Rs. 2/- back and the witness gave back the amount and scratched away the entry. Thus his evidence shows that Rs. 2/- were paid to him by the plaintiff and were also taken back but there is nothing to show that the payment was in connection with the bogus reservation. The witness Daya Shankar whose statement Ex. A. 22 has been placed on the record stated before the Enquiry Officer that he had seen A.P. Jain, Assistant Station Master and the plaintiff eying reservation labels to the coach and later on saw a couple of passengers talking to A.P. Jain on the platform. Thus according to this witness A.P Jain as well as the plaintiff were tying labels I am told by the learned Counsel for the Union of India that Shri Jain has been exonerated of the charge. Then there is the statement of the plaintiff before the Enquiry Officer on which great reliance has been placed by the Enquiry Officer. That statement is that after the train had left he was called by the Station Master and asked to hand over Rs. 20/ to a gentleman standing nearby and the plaintiff acceded to his request and paid Rs. 20/- to that passenger who returned Rs. 2.50 Paise He further stated that he asked the Station Master why he had been made to pay the amount but he was told not to bother at the moment. Next day he learnt that the Ticket Collector - BVJ had been involved in a bogus reservation of a Third class Coach The Station Mister Ganeshilal whose statement is Ex. A. 23 has stated that he found no reservation labels tied to the train and on enquiry from the passengers as to how the matter had been solved he was told that the money had been returned but they refused to give the names of the Railway Officers who had returned the money and also refused to make a written complaint. Thus there is no evidence that the plaintiff returned Rs. 1750 to the passengers except the statement of the plaintiff himself which taken as a whole is completely self enculpatory.
16. The Railway, it appears, suspected the plaintiff, the Assistant Booking Clerk Tolaram to be involved in the whole episode. Tolaram, I am informed, has been let off with a light punishment of with-holding of two increments, and A.P. Jain has been completely exonerated.
17. Now it is true that this Court cannot sit in judgment over findings arrived at in the Departmental Enquiry but if those findings are based on no evidence and no inference of the officer being guilty can be drawn from the evidence and at the most there is a lurking suspicion based on no legal data, I do not think, that this Court will be unjustified in holding that the charge against the officer is not substantiated and has been wrongly punished.
18. In Union of India v. H.C. Goel : (1964)ILLJ38SC their Lordships were pleased to observe:
But the suspicion entertained by Mr. Ramgopalan cannot, in law, be treated as evidence against the respondent even though there is no doubt that Mr. Rajgopalan is straight forward and an honest officer. Though we fully appreciate the anxiety of the appellant to root out corruption from public service, we cannot ignore the fact that in carrying out the said purpose, more suspicion should not be allowed to take the place of proof even in domestic enquiries. It may be that the technical rules which govern criminal trials in courts may not necessarily apply to disciplinary proceedings, but nevertheless, the principle hat in punishing the guilty scrupulous care must be taken to see that the innocent are not punished, applies as much to regular criminal trials as to disciplinary enquiries held under the statutory rules.
19. Judged by the aforesaid principles I am of the opinion that the charge against the plaintiff is not proved, and the findings arrived at by the Enquiry Officer are based on no evidence, and at best may be a result of suspicion It is not at all clear that the plaintiff accepted the amount of Rs. 17.50 and the probabilities are that some other railway officer may have been responsible for collecting this money from the passengers.
20. Thus in my view the impugned order of removal is vitiated on account of failure on the part of the Disciplinary Authority to consider the explanation submitted by the officer and to give reasons in support of his conclusion The order is also vitiated as the conclusions arrived at by the Enquiry Officer, and accepted by the Disciplinary Authority are not supported by evidence. The decision on the above two points is sufficient to dispose of this appeal and I do not think it necessary to examine the other contentions raised on behalf of the respondent that he was not supplied copies of the statements of the witnesses examined in the previous enquiry and the enquiry in his presence. However, I may mention in passing that if I were to deal with these points my findings would not go in favour of the plaintiff. Be that as it may, since the plaintiff has succeeded on the two main points mentioned above, his suit deserves to be decreed.
21. Accordingly, I uphold the judgment and decree passed by the learned Additional Civil Judge Ajmer though on different grounds and dismiss this appeal. The parties are, however, left to bear their own costs. Learned Counsel for the appellant prays for leave to appeal to Division Bench. Leave is refused.