T. Ramaprasada Rao, J.
1. The petitioner was working as a plumber khalasi at Jolarpet and was in the service of the Southern Railway Madras. On 12th December, 1567 he was apprehended to have been in unlawful possession of two pieces of copper pipes and two pieces of brass said to be railway property. It is common ground that on that day of apprehension the petitioner and some others were examined and statements taken from them. On 22nd August, 1968, a charge sheet was served on the petitioner stating that on 12th December, 1967 he was seen to have concealed in his trouser pockets two pieces of copper pipes and therefore was in unlawful possession of railway property and that he was apprehended by Rakshak Sri V. Vijayadu while he was unlawfully concealing them. In accordance with the Railway Establishment Code and the rules then governing, the charge sheet was accompanied by a statement of allegations on the basis of which the charge has been framed against the petitioner. A list of documents was also noted in the statement of allegations forwarded to the petitioner and acknowledged by him on 25th August, 1968. The petitioner sent a reply after inspecting the documents given by him and the other Rakshak who was examined on the date of apprehension, but such a reply was sent only in February, 1969. It is not in dispute that after the framing of the charge as above and after the statement of accusation as required under the earlier rules of the Establishment Code was served on the petitioner, new rules were framed regarding the conduct of disciplinary enquiries and the modus operandi to be adopted in such enquiries, The new rules come into force on 1st October, 1968. It is common ground that the new rules were not adopted when the enquiry was set out in or about April, 1969. The actual enquiry is said to have taken place in September, 1969 and it is admitted that in that enquiry witnesses whose identity and names were not disclosed to the petitioner were also examined at that enquiry. After the said enquiry the petitioner was found guilty and he was removed from service. Further appeals to the appropriate authorities were of no avail and the petitioner has come up to this Court to quash the order dated 16th July 1970 passed by the Division Superintendent, Personnel Branch, Madras Division, who passed the original order of removal. Amongst other contentions which revolve on the merits which I am not inclined to notice in the view that I intend taking, the main contention is that the enquiry was conducted by the authorities in violation of the new rules which came into force on 1st October, 1968.
2. Under old Rule 1708 of the Indian Railway Establishment Code, in cases where major penalties are contemplated to be imposed on delinquent railway servants, the procedure prescribed in Rules 1709 in 1715 are to be observed. Inter alia Rule 1709 provides as follows:
The disciplinary authority shall frame definite charges on the basis of the allegations on which the enquiry is proposed to be held. Such charges, together with a statement of the allegations on which they are based, shall be communicated in writing to the railway servant, and he shall be required to submit, within such time as may be specified by the disciplinary authority,
(a) to such authority ; or
(b) where the Board of Enquiry, or
Enquiring Officer has been appointed under Rule 1710 to that Board of Officer,
a written statement of his defence and also to state whether he desires to be beard in person.
It is seen that the disciplinary authority is obliged not only to frame definite charges on the basis of the allegations brought to his notice, but he should communicate the same in writing to the railway servant together with a statement of the allegations on which they are based and the delinquent will then be called upon to file his explanation thereto. Rules 1710 to 1715 set out the further mandates to be observed by the disciplinary authority in the course of the enquiry. These are the rules which govern such procedure prior to 1st October, 1968. On or after 1st October, 1968 the Railway Servants (Discipline and Appeal) Rules, 1968, were framed and in and by Rule 9, appearing in Part IV thereto, the earlier rules as to the procedure to be adopted by disciplinary authorities have undergone a considerable change. Under the new rules the procedure is as follows:
9 (3). Where it is proposed to hold an enquiry against a railway servant under this rule and Rule 10, the disciplinary authority shall draw or cause to be drawn up:
(i) the substance of the imputations of misconduct or misbehaviour to define and distinct articles of charge;
(ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain--
(a) a statement of all relevant facts including any admission or confession made by the railway servant ;
(b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained.
9(4).--The disciplinary authority shall deliver or cause to be delivered to the railway servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the railway servant to submit a written statement of his defence within ten days, if he does not require to inspect any documents for the preparation of his defence, and if he requires to inspect any documents, within ten days after completion of the inspection of documents and to state whether he desires to be heard in person.
Under Rule 9 (3), amongst other things the disciplinary authority shall not only forward the statement of imputations of misconduct or misbehaviour in support of each article of charge, but the communication shall also contain a list of documents by which and a list of witnesses by whom the articles of charge are proposed to be sustained. It is only thereafter that the delinquent officer can be called upon to submit a written statement of his defence within the period prescribed and that too after following the prescribed procedure. Under Rule 9 (5), the railway servant after availing himself of the opportunities of discovery and inspection submit a list of witnesses to be examined on his behalf. Thus additional benefits are also conferred under the new rules.
3. If the railway servant applies, in writing, for the supply of copies of the statements of witnesses mentioned in the list referred to in Sub-rule (3), the disciplinary authority shall furnish him with a copy of such statements not later than 3 days before the commencement of the examination of the witnesses on behalf of the disciplinary authority. The other prescriptions in this part and the other rules are not relevant for purposes of this case.
4. In the light of such a modification in the rules of enquiry, learned Counsel for the petitioner states that in the instant case, the enquiry is vitiated as it violates one or more mandates prescribed by the rules. Mr. Venkateswara Rao, learned Counsel for the railways invites my attention to Rule 29, which provides for repeal and saving of the then existing rules and contends that as far as possible the rules in force have been observed and the procedure is not in any way tainted.
5. I have already stated that the charge was levelled at a time when the old rules were in vogue. A communication in writing about the substance of that charge as also the statement of the allegations on which they were based was sent out prior to the introduction of the new rules, but during the course of inspection of the documents referred to in the above, communication, the new rules came to force. Under Rule 29, any proceedings under the earlier rules shall be continued, but disposed of, as far as may be, in accordance with the provisions of the new rules, as if such proceedings were proceedings under the new rules. Therefore the appeal and saving; provision makes it possible for the earlier proceedings undertaken under the old rules to be continued, but contemperaneously imposes a mandate that such proceedings shall be disposed of, as far as may be, in accordance with the provisions of the new rules. On a comparison of the old and the new rules, it is seen that the new rules subserve the well established canon of fair hearing, fair opportunity and reasonable facility. Therefore, if a delinquent officer who has been subjected to an enquiry by the disciplinary authority is able to satisfy in any manner that such rule of facility, opportunity and fair hearing has not been given in the course of such an enquiry, then undoubtedly it cannot be said that the proceedings were disposed of in accordance with the provisions of the new rules. The disposal contemplated under Rule 29 (1) (b), is not an empty formality resulting in a formal disposal of the pending matter. It is a disposal which would be in accord with the new rules. The phrase ' as far as possible ' in the new Rule 29 (b), ought not to be widely interpreted.
6. Under the new rules, the disciplinary authority is obliged to forward to the delinquent not only the list of documents but also a list of witnesses by whom the articles of charge are proposed to be sustained. In the instant case, only the list of documents was given, but no list of witnesses by whom the articles of charge are proposed to be sustained. If a person is not informed about the names of witnesses it is elementary to expect that he could not ask for the statements of such witnesses to be furnished to him. In this view, one of the salient features of procedure which has been incorporated by the new rules, has not been followed in the instant case. But what is said is that the petitioner did not ask for the names of witnesses and even otherwise the petitioner only asked for the statements of witnesses who were examined on the date of apprehension. The compliance of the mandatory provisions of prescribed procedure does not depend upon the conduct of the other person when the person who sets such 'proceedings into motion is obliged in law to follow not only the letter, but also the spirit of the set Rules of Procedure governing the enquiry. It is the disciplinary authority who should take all the precautions to see that the enquiry before it is not in any way vitiated or tainted by violation of the prescriptions in the procedure prescribed for the purpose. As I have come to the conclusion that at least in the matter of forwarding of the list of witnesses by whom the articles of charge were proposed to be sustained it was not sent to he petitioner and in consequence he was deprived of the opportunity of appraising himself of the statements of such witnesses before their enquiry, there has been a departure from the prescribed method of inquiry in the instant case. Due to this violation the proceedings cannot be said to have been undertaken by the disciplinary authority in accordance with the new rules and certainly it cannot be said that the subject-matter has been disposed of in accordance with it as if such proceedings were proceedings under the new rules. On this short ground, he rule nisi is made absolute. The writ petition is allowed.
7. It is open to the respondent to hold a fresh enquiry after following the various limbs of the new rules which lay down at every stage the procedure to be adopted by the disciplinary authority. There will be no order as to costs.