P.S. Kailasam, J.
1. The petitioner joined service as a linesman in the Pykara Electricity System of the Electricity Department of the State of Madras. He was promoted as assistant construction foreman in 1952 and was appointed as construction foreman in 1954. After the passing of the Electricity (Supply) Act, 1948, the petitioner was transferred to the State Electricity Board in 1958. Under Section 79(c) of the Act, the board is authorized to pass such rules and regulations regarding the conditions of service of its employees. The board, in pursuance of this power, passed a resolution by which it is provided that the Civil Services (Classification, Control and Appeal) Rules shall be made applicable to all its employees.
2. The petitioner was serving as construction foreman in Wandiwash Construction Subdivision. On 24 June 1961, it is the case of the Electricity Board that the petitioner was entrusted with two concrete poles for transportation to the spot where it had to be erected and he was also asked to inspect a conductor at a village called Manganallur. It is further alleged that instead of the petitioner transporting the two poles, he entrusted the work to one Ponnuswami. The said Ponnuswami along with the other workers loaded the two poles in a cart and, while transporting the two poles, Ponnuswami fell under the wheels, was run over and killed. An oral enquiry was conducted by the Divisional Engineer (Construction), Tiruvannamalai, on the same date. Two charges were framed against the petitioner on 27 November 1961. The petitioner was charged with slackness, indifference and irresponsible conduct in transporting the two poles and that by the slackness and inefficiency caused the death of Ponnuswami. The petitioner submitted his explanation on 19 September 1961. But as the explanation was found to be unsatisfactory, he submitted another explanation on 11 December 1961. An oral enquiry was conducted by the Divisional Engineer on 5 March 1962, and two witnesses, Varadan and Elumalai, were examined and a show-cause notice was issued by the Superintending Engineer, on 30 August 1962, finding the petitioner guilty of both the charges and asking him to show cause why he should not be removed from service. On receipt of the explanation, the petitioner was removed from service on 26 December 1962. An appeal by the petitioner was also dismissed.
3. In this writ petition, Sri K. K. Venugopal, the learned Counsel for petitioner, contended that the order of removal of the petitioner is unsustainable for the following reasons:
Firstly, the order of removal cannot be sustained as the finding of the enquiry officer is based on no evidence and the finding is perverse.
Secondly, it was contended that the enquiry officer placed reliance on the evidence of two witnesses, Varadan and Elumalai, who were examined by him at the preliminary enquiry on 24 June 1961, without making their prior statements available to the petitioner.
Thirdly, it was contended that the enquiry was vitiated in that the prior statements of witnesses examined were not made available to him.
Fourthly, it was contended that the charges framed were vague and lacking in particulars.
Lastly, it was contended that the order of removal is vitiated as the enquiry officer refused to examine defence witnesses, after the prosecution closed its case, on the ground that the petitioner failed to disclose the names of his witnesses in the form of questionnaire which was submitted to the enquiry officer.
4. As I am accepting the contention of the learned Counsel for the petitioner regarding ground 6, I am not dealing with the grounds 1 to 4 raised by the learned Counsel. The enquiry was posted to 5 March 1962 at 9 a.m. At 9 a.m. when the petitioner was called for the enquiry, he was absent. He came to the enquiry only at 9-30 a.m. and presented a petition praying for an adjournment of the enquiry. In the petition for adjournment, the petitioner stated that though he was entitled to have copies of statements given by the witnesses proposed to be examined, he was not furnished with them and further he was not permitted to examine any witnesses on his behalf. In view of the above, the petitioner stated that he was unable to prepare his defence and requested that the enquiry might be adjourned. What happened subsequent to the presentation of the petition is found In the report of the enquiry officer. The enquiry officer was of the view that what the petitioner had stated in his petition for adjournment was not wholly correct. According to the enquiry officer, the questionnaire form was sent to the petitioner and in the questionnaire form the petitioner had not mentioned any witnesses to be examined on his behalf, and as there was no specific mention of the names of witnesses, It had to be taken that the petitioner had no witnesses to examine. The petitioner was questioned by the enquiry officer as to why he did not mention the names of witnesses on receipt of the enquiry memorandum. The petitioner stated that he did not think of it before. After rejecting the petition for adjournment, the enquiry officer proceeded to examine the two witnesses, Varadan and Elumalai. It is unnecessary to deal with the contention of the learned Counsel regarding the examination of Varadan and Elumalai without making available their earlier statements to him. After the examination of the two witnesses, the enquiry officer went on to prepare his report. It is admitted that the petitioner was not given an opportunity to call his witnesses after the conclusion of the evidence for the prosecution. In counter-affidavit it is stated that the petitioner did not name any witnesses in the questionnaire form supplied to him along with the chargesheet and that it was not necessary to examine all persons who were transporting the poles on the date of the occurrence. The allegation in the affidavit in Para 9-E that the petitioner was not given an opportunity to examine defence witnesses has not been rebutted in the counter-affidavit.
5. Rule 17 of the Madras Civil Services (Classification, Control and Appeal) Rules provides that the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges which shall be communicated to the person charged, together with a statement of the allegation on which each charge is based and the delinquent shall be required within a reasonable time to put in a written statement of his defence and to state whether he desires an oral enquiry or only to be heard in person. An oral enquiry shall be held If such an enquiry is desired by the person charged or is directed by the authority concerned. At the oral enquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called, as he may wish, provided that the officer conducting the enquiry may, for special and sufficient reasons to be recorded in writing, refuse to call a witness. The rules do not provide that If the names of the defence witnesses are not mentioned in the questionnaire form submitted by the petitioner, he shall not have an opportunity, to call defence witnesses. On the other hand, a reading of Rule 17 makes it clear that, after the examination of the prosecution witnesses and their cross-examination, the delinquent is entitled to give evidence in person and to have defence witnesses called. Admittedly, on the date of the enquiry, the petitioner asked for an adjournment complaining that he was not being permitted to examine defence witnesses on his behalf. The enquiry officer ought to have given the petitioner an opportunity to give a list of witnesses after the conclusion of the examination of the prosecution witnesses and to have them examined. On the materials on record, I have no hesitation in coming to the conclusion that the petitioner was not given a reasonable opportunity to rebut the charges framed against him. On this ground alone, the writ petition is allowed and the order of removal from service is set aside. The department is at liberty to conduct the enquiry afresh according to law. There will be no order as to costs.