S.K. Mal Lodha, J.
1 This special appeal under s. 18 of the Rajasthan High Court Ordinance has been filed by Amritlal, who was the petitioner in the petition under Articles 226 and 227 of the Constitution, against the order of the learned Single Judge, who dismissed the petition by his order dated August 30, 1971. The petitioner had prayed in the writ petition that the order, (Ex. 6) dated. April 18, 1969, by which he was dismissed from service and the order (Ex. 7) dated May 4, 1971, by which his appeal against that order was dismissed, may be quashed and that he may be re-instated with all emoluments and benefits arising out of it. The writ petition was filed on July 5, 1971.
2. The petitioner-appellant at the relevant time was working as substantive Compositor (Gr. 1) in the Government Press, Jodhpur. The memo, charge sheet and the statement of allegations are Ex. 3, 4 and 5 respectively. The charge against the petitioner was that he travelled by railway on government business in Class 111 from Jodhpur to Jaipur on June 4, 1968, but fraudulently drew travelling allowance for class II and thereby defrauded the Government. The case of the petitioner is that because of his taking part in various Trade Union activities, he was suspended and an enquiry was initiated. The memo with statement of charges and aJ'egations has been filed marked as Ex. 1, and at the time of filing of the writ petition that enquiry was pending. Subsequently, during the period of suspension, another memorandum (Ex. 3), charges (Ex. 4) and statement of allegations (Ex. 5) were served and in exercise of the powers under r. 13 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules 1958 (for short 'the rules' here in), the petitioner was placed under suspension with immediate effect by the Director, Printing and Stationery Department ('the Director' herein after) Rajasthan (respondent No. 2). Shri ChhajuRam, the then Superintendent of the Government Press, Jodhpur, was appointed Enquiry Officer on February 10, 1969 for conducting enquiry. The Enquiry Officer submitted his report on February 21, 1969. On the basis of the report of the Enquiry Officer, the Director issued the order (Ex. 6) dated April 18, 1969 dismissing the petitioner from service. An appeal was filed by him, which was dismissed by the order (Ex. 7) dated May 4, 1971. The orders (Exs. 6 and 7) were Challenged by filing the writ petition under Arts 226 and 227 of the Constitution. The learned single Judge has dismissed the writ petition on August 30, 1971 summarily. The petitioner-appellant has filed this appeal against that order.
3. Before the learned Single Judge, two contentions were raised; (1) that the Director was biased against the petitioner because, of his other activities; and (2) that reasonable opportunity was not given to the petitioner to examine the record for the purpose of his defence. The learned Single Judge repelled both the contentions and dismissed the writ petition.
4. We have heard Mr. M. Mridul for the appellant and Mr. H.N. Calla, Additional Government Advocate on behalf of the respondents.
5. The first contention raised by Mr. Mridul, learned Counsel for the appellant is that the letter dated August 1, 1968 written by the Booking Clerk of the Railway has been made the basis for punishing the appellant, which has neither been proved nor was he apprised that the letter will or used against him nor any oral evidence was led in that connection. It may be stated that the letter dated August I, 1968 was not addressed by the Chief Booking Clerk in reply to any official letter of the Director, but it was written when personal approach was made. The Chief Booking Clark stated that two second class tickets No. 3727 and 3728 were issued on police warrants. He submitted that there is no proof of this letter, that no oral evidence was produced and had it been produced, he would have cross-examined the witnesses. He submitted that no witnesses were examined. The production of the letter said the learned Counsel, in the presence of the petitioner during the enquiry was net sufficient and as the letter relied upon by the Director was not proved by the oral evidence, there is no proof for the establishment of the charge against the appellant. Learned Counsel contended that there is no evidence against the petitioner-appellant and that there was no proper enquiry. According to the learned Counsel, the enquiry was in breach of Rule 16 of the Rules. Rule 16(1) of the Rules lays down that no order imposing on a Government Servant any of the penalties specified in Clauses (iv) and (vii) of Rule 14 shall be pissed except after an enquiry held, as far as may be, in the manner specified in the subsequent Sub-rules. Sub-rule (6) of Rules 16 of the Rules provides for the procedure of main enquiry under the Rules. It is clear from Sub-rules (6) of Rule 16 that it provides for recording of evidence, namely examination, cross-examination and re-examination of witnesses. It is well settled that burden of proof in the case of departmental enquiry is on the department.
6. In Kanhaiyalal v. State of Rajasthan , Rule 16 of the Rules of 1958 came up for examination. It was observed therein as under:
It would appear that according to the procedure laid down by this rule, the officer conducting the enquiry has to do the following things:
(1) He has to reduce to the form of a definite charge or charges the grounds on which it is proposed to take action.
(2) The charge must be communicated to the person charged.
(3) The person charged should also be given a statement of the allegations on which the charge or if there are more then one charges, each charge is based.
(4) If there are any other circumstances, which are proposed to be taken into consideration in passing orders in a case, they should also be communicated to the person charged.
(5) After the charge is given the person charged should be given a reasonable time to put in a written statement of his defence and to state whether he desires to be heard in person.
(6) If he so desires and even if he does not desire, but if the authority concerned so directs, an oral enquiry must be held.
It was held in Shyamnarain v. U.O.I. 1964 RLW 613 that the Inquiry Officer could certainly proceed exparte 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 (delinquent officer) without any kind of inquiry, i.e., without examining any evidence oral and documentary against him. In that case, the document in question was Ex. A 3. It was observed in para 13 as under:
If the enquiry officer had Ex. A3 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 lo have been given 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,
(Underlining is ours)
It was held in B.E. Supply Co. v. The Workmen : (1971)IILLJ407SC that the application of principles of natural justice does not imply that what is not evidence can be acted upon and that on the other hand what it means is that no materials can be relied upon to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross-exaination by the party against whom they are sought to be used. It was observed as under:
If a letter or other document is produced to establish some fact which is relevant to the enguiry the writer must be produced or his affidavit in respect there of be filed and opportunity afforded to the opposite party who challenges this fact. This is both in accord with principles of natural justice as also according to the procedure under Order 1 Civil Procedure Code and the Evidence Act both of which incorporate these general principles.
It is clear from the above authority that it cannot be denied that more filing of any documents does not amount to proof of them and unless these are other admitted by the other side or proved, they do not become evidence in the case.
7. In a recent decision of Supreme Court, it has beea observed in S.L. Kapoor v. Jagmohan : 1SCR746 as follows:
The demands of natural justice are not met even if the very person proceeded against has furnished the information on which the action is based, if it is furnished in a casual way or for some other purpose, we do not suggest that the opportunity need be a 'double opportunity' that is, one opportunity on the factual allegations and another on the proposed penalty. Both may be rolled into one. But the person proceeded against must know that he is being required to meet the allegations which might lead to a certain action being taken against him. If that is made known the requirements are met. We disagree with the finding of the High Court that the Committee had the opportunity to meet the allegations contained in the order of supersession.
Here, I may notice Swadeshi Cotton Mills v. Union of India : 2SCR533 , where in it was held that what the rule of natural justice required in the circumstances of that case was not only that that the company should have been given an opportunity to explain the evidence against it, but also an opportunity to explain as to why the proposed action be not taken against it.
8. In Central Bank of India v. P.C. Jain : (1969)IILLJ377SC it was held that the principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom the enquiry is held and that statements made behind the back of the person charged are not to be treated as substantive evidence, is one of the basic principles which cannot be ignored on the mere ground that domestic tribunals are not bound by the technical rules of procedure contained in the Evidence Act.
9. Keeping in view the principles laid down in the aforesaid authorities, it is to be seen whether it has rightly been held that the charge against the petitioner-appellant has been established.
10. It is clear the from the enquiry report, which is contained in the letter Ex. 20 dated March 17, 1969 that charge has been held to be proved on the basis of letter dated August I, 1968 of the Chief Booking Clerk, Jodhpur (In the Enquiry Report, it has been marked as Ex. P1). It was written there in that on August 1, 1968, only two II class tickets Nombers 3727 & 3728 were issued on June 4, 1968 from Jodhpur to Jaipur and that those tickets were issued on police warrants. To quote from the Enquiry Report:
from Ex. p1 (Letter from the Chief Booking Clerk, Jodhpur dated 1-8-68), it is clear that on 4-6-68 only two II class tickets bearing No. 3727 and 3728 were issued from Jodhpur for 208 down train which departs from Jodhpur for Jaipur at 10 P.M. and from which Shri Amaritlal Pareek has stated to have travelled. These tickets were issued on police warrants. Thus these tickets cannot be issued to Shri Pareek. There could be one more possibility that Shri Amritlal might have got in the train from Raikabagh Jn. but from there also no second Class ticket was issued as is evident from Ex. P2 (Letter from Chief Booking Clerk, Raikabagh). More over, Shri Pareek has also not mentioned this thing in his T.A. Bill.
Thus there could hardly be any possibility of Shri Amritlal Pareek having travelled in II Class from Jodhpur to Jaipur on 4th June, 1968 by 208 down train when no ticket was purchsed by him for IInd class.
The letter was produced during the enquiry. The petitioner was not told that this letter will be used against him as proof of the charge levelled against him. No witness was produced to prove this letter. No opportunity was given to the petitioner to cross-examine the witness, who has written this letter. No affidavit was filed. Mere production of the letter during the enquiry was not sufficient. The learned Single Judge has stated that the reply of the railway authorities has a considerable bearing on the charge against the petitioner and that it was tendered in evidence during the course of enquiry in the persence of the petitioner. As stated above, it should have been proved by leading oral evidence when the petitioner has challenged the fact and it should have been specifically brought to his notice that this letter is going to be used against him. In the absence of the proof of the letter and the production of the oral evidence in support thereof, the petitioner, in our opinion could not be punished. The enquiry was, thus, not conducted properly. It was not in accordance with r. 16 of the Rules, the order of dismissal against the petitioner-appellant cannot be maintained because findings against him are based on a letter regarding which there is no proof. In other words, for sustaining, finding there is no evidence. There is serious infirmity in the order of dismissal and the enquiry is vitiated. The punishment of dismissal on the ground that the charge has been proved against the petitioner, could not be imposed.
11. It was next argued by Mr. Mridul that the Disciplinary Authority was biased against the petitioner and as such the enquiry is vitiated. He submitted that bias is established on record. Mr. Mridul invited our attention to the order (Ex. 6) dated April 18, 1969, where in the following has been stated:
In fact, Shri Amritlal was trying to get the enquiry prolonged on some ground or the other. He had been cornered, and therefore, he tried to prolong the enquiry as far as possible, because in doing so, he stands to gain the long run. It may be, he might have thought that in the long run evidence can be tampered with, hostile witnesses, if any brought round, and it may also be that at times the disciplinary authority himself may have been transferred so that some how or the other, he can try to escape punishment..Shri Amrital states in the concluding portion of his letter dated 5-4-1969 that I trust you will give me an opportunity of representing my case personally and not hasten to impose the decision for which mind has already been made up. In his letter dated 15-4-1969, he has repeated the same unwarranted accusation. If according to him, the disciplinary authority has made up his mind to punish him; then any personal hearing would be a farce. From the very beginning, Shri Amritlal Pareekh has been stating that I have made up my mind to punish him severely, vide his letter dated 6-11-68, 10-12-68 and 23-1-1969. This approach is not correct. I am not against anyone. I do not determine things ahead of events in disciplinary matters. He is taking this plea only bacause he has been completely cornered and he knows that he cannot get away from the guilt and consequent punishment and, therfore, he has been stating from the start that I am against him, so that, when an appeal is preferred, he can try to convince the appellate authority that I was determined to punish him, and therefore the departmental enquiry etc. was just a formality. It may be that he may be thinking on the line that such accusations may create in the mind of the appellate authority some sympathy for him. If the delinquent official takes up such an attitude and tries to defend his case in this manner, how a disciplinary authority can impose punishment?
there is no need to give any personal hearing when the guilt has been established by the documentary evidence. Even if a personal hearing is given, the disciplinary authority cannot travel beyond the limits of documentary evidence.
On behalf of the petitioner-appellant an application dated August 21, t972 was filed in this appeal in which the statement of allegations and charge-sheet, enquiry report and office order dated August 28, 1969 were reproduced to show mala fide and discriminatory treatment of the Disciplinary Authority. The application was supported by affidavit. The reproduced documents pertain to Shri R.N. Sharma. According to Mr. Mridul, the office order dated August 21, 1972 clearly shows that the Disciplinary Authority was biased against him. The learned Single Jugde did not accept the contention
12. Wade in his book 'Administrative Law' 4th Edn., has stated as under:
Many judges have laid down and applied the real likelihood' formula, holding that the test for disqualification is whether the facts give rise to a real likelihood of bias; and this 'test has naturally been emphasised in cases where the allegation of bias was excessively far-fetched. At the same time it was frequently emphasised that justice must be seen to be done, and that no person should adjudicate in any way if it might reasonably be thought that he ought not to act because of some personal interest. In one case it was even said that the rule for judges of all kinds was that they must be free from even unreasonable suspicion of bias, but that dictum is recognised as having gone too far.
In Manaklal v. Dr. Prem Chand : 1SCR575 , which was a case under the Bar Councils Act, 1926, it was observed that where pecuniary interest is not attributed but instead a bias is suggested, it often become? necessary to consider whether there is a reasonable ground for assuming the possibility of a bias and! whether it is likely to produce in the minds of the litigant or the public at] large a reasonable doubt about the fairness of the administration of justice and that it would always be a question of fact to be decided in each case Having considered the order Ex. 6 dated April 18, 1969 and the manner in which the punishment of dismissal from service was imposed on the petitioner, it would not be wrong to infer that there was 'a real likelihood 6f the bias' on the part of the disciplinary authority that the Disciplinary Authority was influenced by the bias and that has operated against the petitioner-appellant in passing the order Ex. 6.
13. The third point argued by Mr. Mridul in suport of the appeal was regarding discrimination under Article 14 of the Constitution. He submitted that the petitioner and Shri Raghunandan Sharma were similarly situated, but both have been treated differently in as much as punishments awarded are different though the charges are almost identical. He also submitted that the Government order, was used and availed of by the disciplinary authority for imposing lesser punishment on Shri Raghunandan Sharma but the same was not availed of in the case of the petitioner-appellant. It may be mentioned that the point of discrimination was not taken before the learned single Judge. But Mr. Mridul submitted that as it relates, to the fundamental right, it can be argued in this appeal and it cannot be considered to have been waived.
14. In view of the findings, to which we have arrived at in respect of the aforesaid two contentions raised by the learned Counsel for the appellant, we do not consider it necessary to examine the point whether the appellant's counsel should be allowed to raise this point in this appeal though he has not raised it before the single Judge.
15. It was submitted by Mr. Mridul that as the penalty of dismissal from service has been imposed on the petitioner without any evidence and proper enquiry and as the disciplinary authority who imposed the penalty was biased against him, the order is not sustainable and it should be set aside and a direction may be given that no further enquiry should be held in respect of the charge contained in the charge-sheet Ex. 4. In support of his submission, Mr. Mridul has relied on two decisions of the Supreme Court.
16. In C.L. Subramanium v. Collector of Customs 1973 (2) S.L.R. 415, their Lordships of the Supreme Court directed that no fresh enquiry shall be held against the appellant, in that case, and he be restored to be the position to which he would have been entitled to but for the impugned order. In Dewan Singh v. State of Haryana 1976 U.J. (S.C.) 662 while quashing the order of dismissal, it was directed that the appellant shall be re-instated in service with immediate effect and there shall be reinstated no further enquiry into the allegations forming the subject matter of the charge against him and that the period of absence shall be treated as leave without pay so that the appellant will not lose continuity of his service. The directions for not holding fresh enquiry in the above two cases was given in the facts and circumstances of these cases. They are distinguishable. Before a learned Single Judge of this Court saremal v. State and others (S.B Civil Writ Petition No. 992 of 1974, decided on December 9, 1980), a similar contention was raised and the teamed Single Judge observed that in charges involving financial matters, the matter has to be viewed seriously and it is always better for the petitioner to get himself exonerated of the charges after enquiry. It was further observed that it is true that the petitioner had already faced an inquiry once and has suffered mentally and otherwise for a very long period but on that basis it would not be justified that the direction may be given for not conducting inquiry second time. In Shyamnarain's case 1964 RLW 613 it was held that it would be open for the non-petitioner (U.O.I.) to make a proper inquiry if it is considered desirable.
17. The charge against the petitioner was that he travelled by railway on Government business in Class III from fodhpur to Jaipur, on June 4, 1968, but fraudulently drew travelling allowance for Class II and thereby defrauded the Government. The charge is a serious one and it is in the interest of the appellant that he should get himself exonerated from this charge and, therefore, we do not consider it proper that a direction should be given that no further enquiry be held after quashing of the impugned orders (Exs.6 & 7). The authorities will be free to take action against the appellant after holding proper enquiry in accordance with the Rules.
18. As there is no evidence in support of the charge and further as disciplinary authority was biased against the petitioner, the order (Ex. 6) dated April 18, 1969 by which he was dismissed from service and the order Ex. 7 dated May 4, 1971, by which the appeal of the petitioner was dismissed, stand vitiated and the learned Single Judge was not right in dismissing the writ petition.
19. We, accordingly, allow this appeal and set aside the judgment dated August 30, 1971 of the learned Single Judge by which he dismissed the appellant's petition under Articles 226 and 227 of the Constitution. The writ petition filed by the petitioner is allowed and the order Ex. 6 dated April 16 1969, by which the petitioner-appellant was dismissed from service and the order (Ex. 7) dated May 4, 1971, by which the dismissal of the petitioner from service was maintained and his appeal against the order (Ex. 6) was dismissed, are hereby quashed. The Disciplinary Authority will be free to take action against the petitioner-appellant after holding proper enquiry afresh into the allegations forming subject matter of the charge against him. In the circumstances of the case, we leave the parties to bear their own costs.