Jagat Narayan, J.
1. This is an application under Article 226 of the Constitution by one Bugal Prashad a confirmed Assistant Station Master of the Western Railway against an order of the Divisional Operating Superintendent, Jaipur, dated 6-2-58 removing him from service for seiious misconduct which was confirmed on appeal by the Divisional Superintendent, Jaipur, or. 22-3-58.
2. The facts which have given rise to this application arc these. The petitioner was working as Assistant Station Master, Malakhera from 31-5-55 when information was given to the police that he had demanded a bribe for booking a grinding stone. A trap was laid on 4-2-56 and it is alleged that currency notes of the value of Rs. 4/- were recovered from the pocket of the coat of the petitioner by S.I. Mohan Singh, Special Police Establishment, who held a police enquiry into the matter. For some reason which does not appear from the record the petitioner was not prosecuted in the criminal court for the alleged offence of accepting a bribe but was dealt with departmentally on the report of S. I, Mohan Singh himself.
3. On receipt of above report a chaise was framed against the petitioner to the effect that he had accepted a bribe of Rs. 4/- from one Sheoji Ram for booking a grinding stone on 4-2-56. The petitioner denied the charge. His case was that he had been falsely implicated at the instance of a railway employee namely Ehawani Sahai whom he had got evicted from the railway quarters. It was alleged by him that when he had gone out to fetch a pencil leaving his coat on his chair the currency notes of Rs. 47- were planted in his pocket and when he was in the act of wearing the coat the police caught him and recovered the money.
4. The petitioner was asked to submit a list of defence witnesses before a committee of enquiry which was appointed by the railway authorities. He submitted his list on 31-3-57. He also made a prayer that Sheoji Ram and other witnesses on whose evidence a charge had been framed against him should be made available to him for cross-examination at the enquiry,
5. At the enquiry however no witness was examined in support of the charge. The enquiry committee interrogated the petitioner in his defence and recorded the evidence of defence witnesses whom they cross-examined. They then recorded a finding that the charge had been proved against the petitioner. This finding was accepted by th6 Divisional Operating Superintendent and the impugned order was passed.
6. The contention of the petitioner is that he did not have a reasonable opportunity of showing cause against the action proposed to be taken against him inasmuch as the evidence in support of the charge was not recorded in his presence and he was not given any opportunity of cross-examining the witnesses on whose evidence the enquiry committee relied in coming to a finding that the charge had been proved. Other objections were also taken. It is unnecessary to refer to them aswe are satisfied that the petitioner did not have adequate opportunity of defending himself against the charge.
Rule 1707(d) of the Discipline and Appeal Rules for non-Gazetted Staff of the Western Railway lays down that at such an enquiry the evidence in support of the charge shall be recorded in the presence of the charged officer. There has been non-compliance of this provision. In fact the enquiry committee had no material before it on the basis of which it could have come to a finding that the charge had been proved. It was not open to it to rely on the statements alleged to have been made by the witnesses during police enquiry.
Nor did the petitioner have an opportunity of cross-examining these witnesses. In State of Bombay v. Gajanan Mahadev, AIR 1954 Bom 351, their Lordships of the Bombay High Court observed that it was a sound rule that courts of law follow and which even domestic tribunals should follow that all evidence must be given in the presence of an accused person and in the presence of a person against whom action is proposed to be taken. It is one thing to make a statement behind the back of a person; it is entirely different thing to make a statement in front of the court or a domestic tribunal and in the presence of a person against whom you are going to make serious charges.
This was followed in Choudhury v. Union of India, AIR 1956 Cal 662. The same view was taken by our' High Court in Kanhaiyalal v. State of Rajas-than, AIR 1958 Raj 1. In Khem Chand v. Union of India, AIR 1958 SC 300, their Lordships of the Supreme Court observed that the reasonable opportunity envisaged to the Government servant by the provision contained in Article 311(2) includes an opportunity to defend himself by cross-examining the witnesses produced against him.
7. We accordingly hold that the enquiry held against the petitioner was vitiated. We therefore allow the petition and set aside the order of removal passed against the petitioner by the Divisional Operating Superintendent, Jaipur, on 6-2-58 and confirmed by the Divisional Superintendent, Jaipur, on 22-3-58.