D. Basu, J.
1. The Union of India has preferred this appeal against an order passed by A. K. Sinha, J., dated the 12th of March, 1969 by which the Rule obtained by the respondent Dr. S. B. Biswas was made absolute and the impugned order of removal which is to be found at page 51 of the Paper-Book was struck down as invalid. Various grounds were taken by the petitioner-respondents but the Court only founded its judgment on two points: firstly, that the order of punishment was defective inasmuch as the material portion of the date, namely, the date from which the order was taken effect was kept blank by the punishing authority and it was subsequently filled in by a clerk at the office of the D. M. O. who deliveredthe punishment order to the respondent; secondly, that the appellate order which is at page 53, passed by the General Manager, did not comply with the requirements of Rule 1731 of the Railway Establishment Code, Vol. 1 which lays down the mode in which the appellate function was to be exercised. The respondent has also filed a cross-objection before us relying upon the grounds which were kept open by the learned judge as unnecessary because he thought that the other two findings were sufficient to dispose of the Rule. We have, therefore, to go through the points urged by the respondent in his petition.
2. So far as the appellate order isconcerned, it is quite evident that the requirements of Rule 1731 which have been explained by this Court on numerous occasions previously, have not been complied with by the appellate authority. Even if his orders were read as beneficial to the administration as possible, it did not deal with the requirements of Clause (a) of Sub-rule (ii) of Rule 1731, namely, whether the procedure prescribed in this rule has been complied with or if such non-compliance has resulted in any violation of the Constitution or a failure of justice. In his memorandum of appeal to the General Manager, the respondent complained about the procedure but the General Manager did not specifically give his decision on this complaint. The finding of the Court below on this point must therefore stand.
Coming now to the original order ofpunishment, though we are in agreement with the views taken by the trial court that the order of removal suffers from serious infirmity inasmuch as the date of giving effect to the removal order was not filled up by the punishing authority but by somebody else who had no authority to punish the respondents and though we also agree that such a practice should not be encouraged, we are of the opinion that in the instant case, the defect was not such as to go to the root of the jurisdiction to make the punishment order invalid. From a reading of the entire text of the order it was evident that the punishing authority wanted to give immediate effect to his order but since the order could not be handed over by the punishing authority who was a superior officer, he handed it down to the immediate superior to the petitioner, namely, the D. M. O. who was to fill up the gaps recording the date after delivering the punishment order. In our opinion, this practice should be stopped because, if this is allowed to continue, it is the Railway administration itself which may have to suffer in other cases, if any clerical or other officer fills up the gap and makes any mistake in doing this small job. In the facts of the instant case, as we have already stated, we arc not satisfied that the defect goes to render the punishment order without jurisdiction. But evenif our finding on this point is contrary to that of the trial Court, the punishment order cannot be sustained because of other grounds which have been urged before us.
3. Mr. Chakravarti on behalf of the respondents has drawn our attention to Rule 1713 of the Railway Establishment Code which runs as follows: 'The Disciplinary Authority shall, if it is not the Inquiring Authority, consider the record of the Inquiry and record of its findings on each charge.' The 'record of the inquiry' is explained in Sub-rule 5 of Rule 1712. Mr. Chakravarti is right in contending that both in the punishment order at page 51 of the paper-book as well as in the show cause notice at page 41 of the paper-book, the punishing authority has not examined the contents of the record and the findings of the Inquiry Officer upon which the respondents were found guilty and did not record his own findings separately on the charges, which were three in number. Reading the relevant provisions of the Railway Establishment Code it is quite evident that these rules in the Railway Code palpably go beyond the requirements of Article 311(2) of the Constitution and require the punishing authority to apply his mind to the materials on the record over again even where he may agree with the findings of the Inquiry Officer. But as Rule 1713 stands, it is a mandatory statutory provision and cannot be ignored by us. We must hold that the orders at annexures H and I of the Paper-book are vitiated for a non-compliance with Rule 1713.
4. It was next urged by Mr. Chakravarti that the respondent was denied the assistance of a defence helper by reason of the administration having chosen to put the defence helper nominated by the respondent to the rule of a witness on behalf of the prosecution. It was contended by Mr. Roy Choudhury that there was no prejudice inasmuch as the same defence helper continued to assist the respondent even subsequent to the date when he was examined as a witness namely, on 15-9-63. But on this point, apart from any prejudice, we have first to see whether there was any violation of Sub-rule (2) of Rule 1713 which gives the provision as to a defence helper: 'The accused Railway servant may present his case with the assistance of any other Railway servant employed on the same Railway (including a Railway servant on leave preparatory to retirement) on which he is working .....' It may be mentioned in this context that in the rule as it originally stood, the right of the delinquent to nominate the defence helper was subject to the approval of the authority, but by a subsequent amendment the condition of approval has been eliminated. It has also been held in several decisions of this Court that though the rule is in a permissive form, it gives a statutoryright to the delinquent to get the assistance of a co-employer of his own choice. It cannot be overlooked that in a disciplinary proceeding the delinquent is denied legal advice. To provide a proper defence Lo the delinquent he is given the help of another co-employee who may be better enlightened and more efficient than the delinquent himself to conduct his own case. The Courts are, accordingly, to see that this vestige of a fair hearing is not interfered with by the administration. There is no procedure pre-scribed in the Code itself to show that the defence helper, remaining in his status as such, can be examined as a prosecution wit-ness by the Railway. If the Railway sought to do so they might have given a notice to the accused to that effect. What happened in this case is that the choice of the prosecution to examine him was formed during the hearing when some oilier witness made some reference to the defence helper's knowledge about the affair. The question is raised by Mr. Roy Choudhury that since this was done pending hearing, whether it was for the Respondent to offer to the Railway a choice to nominate another person as the defence helper or for the delinquent to ask of that, having regard to the provision of Sub-rule (2) of the Rule 1712 as it has been interpreted in various decisions of this Court, it must be held that it was for the Railway administration to give notice to the delinquent that his defence helper was going to be taken away for examining him as a witness and that if he likes he can get the opportunity to appoint another. It has been rightly pointed out by Mr. Chakravarti that in the counter-affidavit (para 12) at page 59 of the paper book it was stated that after the said defence helper was examined as a witness it was the petitioner himself, who being a literate man, conducted his own defence and cross-examined the witnesses produced by the department and made comments on the evidence. When we asked the Railway to produce the records of the enquiry, it appeared that on two or three days subsequent to the date of examination of the defence helper as a witness, the cross-examination on behalf of the delinquent was stated to have been made by the 'defence helper'. But this is inconsistent with the pleading in Para 12 of the counter-affidavit. Be that as it may. the procedure of examining the defence helper of the respondent without giving him a substitute or telling him that he had the opportunity to nominate some other defence against him as provided in Rule 1712 (2) and that is an independent man for invalidating the punishment order (sic).
5-6. The other points which have been raised by Mr. Chakravarti do not appear to us to be of sufficient strength to invalidate the punishment order. The first one is that the petitioner-Respondent had been conferred a rank of a gazetted officer and if thatbe so, the procedure for enquiry should have been different and the punishing authority should have been different. But having seen the relevant circular which has been produced before us, we have no doubt that the status of a gazetted officer conferred upon the Respondent was only for certain privilege as is evident from the relevant Serial No. 5244, Circular No. E.308/O, dated the 26th April, 1963.
7. The other point raised by Mr. Chakravarti is that it was wrong on the part of the respondents to consider the service record of the petitioner without telling him that this would be considered. From the orders of the punishing authority as well as of the appellate authority, it docs not clearly appear whether they were biased by a reference to the previous record of the petitioner. The enquiry officer did not refer to the service records nor did he recommend any punishment but he simply referred to the sendee records as documents which were relevant to the charges (page 76 of the Paper-book). The question of law which is involved in this case is whether the petitioner has been denied any opportunity to defend his case or did the respondents give any notice to him that they were going to look into his service records. If a copy of the enquiry report were served upon him at the stage of second show cause notice, certainly he had an opportunity to explain the entries in the service records in his explanation to that notice.
8. It does not, therefore, appear to us that there has been any violation of natural justice on this score.
9. In view of our findings on the several grounds at the beginning of this judgment, we are of the opinion, that, the order of the Court below should not be interfered with. The appeal is, accordingly, dismissed though partly on other grounds. We make no order as to costs.
10. The cross-objection is allowed pro tanto.
11. In view of our finding that the enquiry was vitiated because of a non-compliance with the requirement of a defence helper, the appellants may take fresh action according to law only after starting the proceeding from the stage of an examination of witness.
Ajoy K. Basu, J.
12. I agree.