Binayak Nath Banerjee, J.
1. On or about June 19, 1941, the petitioner was appointed as a Shed clerk under the Bengal Nagpur Railway then a company. It is alleged that the petitioner, though a clerk, used to be utilised in doing typing work wherever posted, in view of his ability as a typist. It is well-known that the Bengal Nagpur Railway was taken over by the Government of India some time in October, 1944. After the take over, the petitioner was offered an appointment by the General Manager as a typist. The petitioner accepted that appointment. When the time came for his confirmation he was, however, confirmed as a clerk and not as a typist. According to the petitioner, non-typist clerks and typists are different classes of employees and nave different scales of emoluments and different avenues of promotions. His grievance is that after his confirmation as a clerk, under the state-owned railway, he should not have been utilised as a typist, without being given such an appointment.
The petitioner alleges that he made several protests against what he considered to be exploitation of himself as a typist, but to no effect. Ultimately, however, while serving as a senior dealer in the allotment section of the Coal Manager's office at Adra, the petitioner refused to wore as a typist and began idling away his time in that office. The result was that the Goal Manager decided to take disciplinary action against the petitioner and served the following charge-sheet upon the petitioner, dated October 24, 1957:
'1. You are charged with the following offences or failures and you are hereby called upon to show cause why you should not be punished with the penalty specified in item 7 (seven) of the list below or punished with any of the lesser penalties specified in the said list. The facts and/or circumstances whereon the charges has/have been based are as related below.
Vide this office change order No. EC/1/ TYP dated 6-7-57 you have been transferred to the allotment section in your former post, i.e. Senior Dealer in scale Rs. 80-160 performing the duties of a typist. Although you have carried out the transfer, you have been refraining from doing any work ever since your transfer, which amounts to gross insubordination. You must acknowledge receipt of this charge sheet on the date it is presented to you by giving your signature or thumb impression on the sub-joined form.
List of penalties.
1. Withholding of the privileges of passes and/or privilege ticket orders.
2. Fines including forfeiture or reduction of running allowances in the case of train and running staff.
3. Withholding of increment or promotion including stoppage at an efficiency bar.
4. Reduction to a lower post or time scale or to a lower stage in the time scale (if not governed by the Payment of Wages Act).
5. Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders.
6. Compulsory retirement.
7. Removal from service.
8. Dismissal from Service.'
The copy of the charge-sheet, which is annexed to the petition (annexure F1) is not correct and complete. The charge-sheet in the original, as served upon the petitioner, was produced before me and I have quoted the above extract therefrom. To the aforesaid charge-sheet the petitioner showed cause in writing on August 29, 1957. I set out an extract from the cause shown:
'The circumstances under which I desired to be relieved of the typing work have been fully stated in my appeals dated 27-3-51; 21-7-52, 2-1-53, 25-3-54, 14-11-54, 2-2-55, 25-3-55 etc., and 6-4-57, 3-5-57. Finally I was relieved of the typing work vide your No. E-1/1735 dt. 30-5-57 and posted in Trains section as clerk Gr. 80-160/-
Subsequently though I was forced to carry outthe re-transfer order vide your letter No.Ec/1/Typ dt. 6-7-57 and E1/1735 dt. 16-7-57and my appeals were given no consideration.I was further forced to do no work thoughdaily since after my transfer back to theAllotment section, I have been requesting toallot me clerical work. In case there was nowork for me as Sr. Dealer it is felt I could havebeen utilised as a routine clerk instead of notgiving me any chance to do any work, suspendingme, charge-sheeting me and putting me to allharassing and embarrassing position. In thisconnection the memos requesting for allotmentof work submitted daily after my retransfer onand from 22-7-53 to 1-8-57 may please fewreferred to'.
Thereafter, there was a one man enquiry committee constituted by the Coal Manager at Adra and Mr. A.S. Chowdhury was deputed to hold the enquiry. Before the enquiring Officer, the petitioner prayed for examination of two witnesses, namely, Sri S.N. Kar, Coal Manager Adra and Sri J.N. Raha clerk Establishment section. The letter by which the prayer was made is quoted below:
'As all of the witnesses whose deposition were required to be taken down in the course of the enquiry have not been duly called in I would request you to kindly arrange to record the deposition of Sri S. N. Kar, Coal Manager, Adra and Sri J. N. Raha clerk Est. Section, in the committee in order to enable me to refute the charges'. The enquiring officer was unwilling to call the two witnesses unless he was sure of the purpose for which those witnesses were going to be called. He, therefore, wrote the following letter to the petitioner:
'I would like you to enlighten me on the points of your query from these persons. I will nave to judge whether your questions are relevant to the charge sheet served on you in the enquiry. If your questions have no relevancy with the charges laid down, these witnesses will not me called in.' The petitioner sent a reply to the above letter couched in the following language:
'Rule 33 of the S.E. Rly. pamphlet, dealing with procedure for conducting enquiries into the conduct of non-gazetted Railway employees (other than those employed under the administrative control of the Chief Security Officer of the Railway Security Force) does not enable the chairman of the committee to be furnished with the set or sets of questions to be put forward, beforehand, in the absence of the witness. Since I am not given due facility as laid down under the rules it will mean denial of the privileges. I would request you that the witnesses, Sri S. N. Kar and Sri J. N. Raha, are considered to be the main witnesses in the case and their deposition is indispensably necessary for me to refute the charges'. Since the petitioner did not throw further light as to why he wanted to examine the two witnesses, the witnesses were not called at the enquiry. This will appear from the letter annexure Rule 7 to the affidavit in opposition, from which I set out an extract:
'Since yon are not willing to put forth any light to show the reasons of your wanting Sri S. N. Kar, Coal Manager, Adra, and Sri J. N. Raha, clerk Estab. Section TCM's office being called in as witnesses, I as an Enquiring officer refuse to call them as witnesses.'Thereafter, the enquiry was held and as a result of the enquiry the enquiring officer came to the following finding:
'During the period 22-7-57 to 24-8-57 Sri S. P. Goswami was in the challan section, he did not do the work allotted to him except attending the office and also interfered with the work of the section. He was retransferred to his former post that of a Head challan clerk, for the reason that some clerks in the Trains channel appealed against his transfer to the Trains Section with the reasonings that Sri Goswami enjoyed the privileges of out of course promotion, superseding six clerks in the Trains channel for knowing and doing the typing work and he was spared of his duties of typing work without a Typist being posted in his place. Sri S. P. Goswami refused to carry out the orders given to him by the Coal Manager, Adra by refraining from doing work, which he could not do as per the terms of para (2) of his agreement with the Bengal Nagpur Railway, that was executed by him on 11-3-1949. He is responsible for insubordination'. As a result of the enquiry report, the petitioner was asked to show cause why he should not be reduced as a clerk on the scale of Rs. 60-130/-. for a period of three years with cumulative effect, that is, affecting his future increments and seniority.
The petitioner showed cause against the penalty proposed but to no effect. Thereafter, on July 25, 1958 the Chief operating Superintendent wrote a letter to the petitioner imposing a penalty upon him as hereinafter quoted: 'You are hereby reduced as a clerk on Rs. 109/- p.m. in the scale of Rs. 60-130/- for a period of three years with cumulative effect i.e., affecting your future increments and seniority. The reduction will take effect one month from the date of receipt of this notice.' Against the order of penalty imposed, the petitioner preferred an appeal before the General Manager of the South Eastern Railway as also moved this court, under Article 226 of the Constitution, and obtained a Rule being Civil Rule No. 4393 of 1958. That Rule was discharged by G. K. Mitter J. on the ground that the petitioner had taken recourse to an alternative remedy. His Lordship, however, made it clear that the discharge of the Rule would not prejudice the rights of the petitioner to move against the appellate order, if he felt aggrieved thereby.
2. Before the appellate authority the petitioner prayed for being personally heard as also being assisted by a gentleman of the name of M. N. Chakravarty, Assistant Secretary of the South Eastern Railwayman's Union. Calcutta. The appellate authority was of the opinion that as Sri M. N. Chakrabarty did not belong to a recognised Union the petitioner should not be allowed to be assisted by such a person. By a letter, dated July 5, 1961, the petitions was, therefore, informed as follows:
'He had asked for defence counsel Sri M.N. Chakravarti. Sri Goswami should be told that this is not admissible and he should nominate some one else who belongs to the recognised Union'.
The petitioner did not nominate anybody else to assist him. Thereafter, the petitioner appeared before the appellate authority for a personal healing. He, however, says that he was not as fully heard as he wanted to be, but to that aspect of the matter I shall refer later on. The appellate authority dismissed the appeal with the following observations, as will appear from the communication of the appellate order made to the petitioner:
'The party was interviewed by me. I see no grounds to change the punishment order passed by the COPS. The appellant may be informed accordingly.'
Aggrieved by the appellate order the petitioner moved this court, under Article 226 of the Constitution, praying for a writ of certiorari for the quashing of the penal order upon him and for a mandate upon the respondents directing them not to give effect to the penalty and obtained this Rule.
Mr. Sadhan Gupta, learned Advocate for the petitioner, contended the following points in support of the rule. He contended in the first place, that clerks and the typists, under the set-up in the South Eastern Railway Administration, belong to different categories and since the petitioner was a clerk he should not have been utilised as a typist. He further contended, in elaboration of the first branch of his argument, that the refusal of the petitioner who was a clerk to perform the duties of a typist, did not amount to misconduct and the petitioner should not have been penalised for the same. He contended, in the next place, that the enquiry was not conducted in accordance with the rules of natural justice inasmuch as the petitioner was deprived of the opportunity of calling S. N. Kar and J. N. Raha as witnesses, which considerably prejudiced him. He contended, in the third place, that the appellate authority also violated the principles of natural justice in a two-fold manner namely, (i) it did not allow the petitioner to be assisted by Mr. M. N. Chakrabarti, whom the petitioner had selected, on the ground that Mr. Chakravarti did not belong to a recognised union and (ii) he was not allowed to make his oral representation as best as he desired. He contended lastly that the appellate order was not in conformity with the provisions of Rule 1721 of the Railway Establishment Code and should for that reason be quashed,
3. I take up for consideration the arguments advanced by Mr. Gupta in the order they were made.
4. The first branch of the argument of Mr. Gupta, namely, clerks are not typists and should not be compelled to work as typists, is one which is difficult for me to uphold on the materials before me. It is no doubt true that the South Eastern Railway employs people wholly engaged in typing work on a scale of pay admissible to such employees alone and also employs others for clerical works, which do not include typing. But this does not necessarily lead to the conclusion that a person who is employed as a clerk can never be employed as a typist or can never be allotted type-writing duly. The petitioner, as it appears, was doing typing work wherever he was being employed and on the materials before me I am unable to hold that the allocation of typing duty to the petitioner was beyond the jurisdiction or the employer and that the petitioner could therefore rightfully refuse to do typing work.
5. I now take up for consideration the second branch of the argument of Mr. Gupta. Before a departmental enquiry a person charged with delinquency is certainly at liberty to call witnesses for proving his case or for demolishing the case sought to be made out againsthim by the departmental authorities. He is not,however, at liberty to call anybody or everybody he likes, either for show or for bravado.He has the liberty to call only relevant witnessesand the authorities are under an obligation toproduce such witnesses only if it lies withintheir power to do so. In order to decide whether the witnesses cited by the delinquent are atall relevant witnesses, an enquiring officer maycertainly see for himself whether it was necessary for the petitioner to examine such witnesses.If he finds that the witnesses sought to be called were not material witnesses, he may refuseto call such witnesses. Although he may do so,it is not within his power to call upon the delinquent to supply an advance copy of the questionnaire which the delinquent intends to put to thewitnesses. The first letter written by the enquiring officer in this matter, which I have alreadyset out hereinbefore, however, is open to objection. He required the petitioner to enlightenhim on the points of query and reserved to himself the right to Judge whether the questionswere relevant. This amounted to a call uponthe petitioner to disclose the questions beforehand. That was not, in my opinion, within hispower to compel.
The attitude of the petitioner, however, was not helpful. In reply to the objection raised by the enquiring officer, the petitioner also did not indicate how the witnesses were relevant witnesses. He took up a legalistic attitude and made a grievance that he was being denied due facilities as laid down under Rule 33 of the South Eastern Railway's pamphlet, dealing with the procedure for conducting the departmental enquiries. At last, the enquiring officer became sick of the whole affair and declined to call the witnesses, on the ground that the petitioner was not willing to throw any light as to why he wanted to examine the two witnesses. Thus the position is that the enquiring officer at first went beyond his jurisdiction in asking the petitioner to disclose the questions beforehand. At the same time, the petitioner was at fault in not indicating to the enquiring officer why and for, what purpose he wanted to examine the witnesses. Although both parties were at fault, the blameworthiness of the enquiring officer must not be overlooked, because he did not conduct the enquiry as he should have done.
I now turn to the third branch of the argument of Mr. Gupta, Sri M.N. Chakravarti, whose assistance the petitioner sought before the appellate authority, is admittedly a railway employee, though he may be an Assistant Secretary to an unrecognised railwaymen's union in addition. Under Rule 1721 of the Railway Establishment Code it is permissible for a delinquent appellant to be accompanied and assisted, if he so chooses, by another railway servant or a trade union official, who is not a professional lawyer. Since Mr. Chakravarty satisfies both the descriptions, namely, that of a railway employee and that of a trade union official, his assistance should not have been denied to the petitioner on the ground that in his capacity as a trade union official he belonged to an unrecognised trade union. By denying the assistance of Mr. Chakravarti to the petitioner, for the Reasons given, he was certainly prejudiced.
Then again, it appears from annexure U to the petition that the petitioner was not given a fair chance of arguing his appeal personally in the way in which he liked to do. Herein below I set out an extract from the said annexure which reads as follows:
'A few questions i.e. when I was appointed, when transferred from Allotment section to Trains section as Senior Dealer and back to Allotment section were asked and when at a stage I wanted to state something to justify my cause against the irregular order of Coal Manager transferring me to do a Typist job, I was not allowed to state anything further on the subject. This has prejudiced me in defending my case'.
The aforesaid statement in the annexure to the petition is not denied, in the affidavit in-opposition. Rule 1721 requires that the appellate authority, if so requested, shall give to the delinquent appellant an opportunity of personal hearing. Such an opportunity must not be a matter of form only but of substance. To permit a delinquent appellant to appear before the appellate authority for being questioned and then to close personal hearing does not amount to giving an opportunity of personal hearing. There is no explanation, why the petitioner was not allowed to make his submissions, particularly at a stage when he was suffering from the handicap of being deprived of the assistance of Mr. Chakravarti, whom he had chosen. This also, in my opinion, certainly prejudiced the petitioner. I now take up for consideration the last argument advanced by Mr. Gupta. Rule 1721, dealing with the duties of the appellate authority, is couched in the following language:
'The appellate authority shall consider-
(a) whether the facts on which the order was based have been established;
(b) whether the facts established afford sufficient ground for taking action; and
(c) whether the penalty imposed is adequate, inadequate or excessive.
The appellate order I have hereinbefore quoted.The order is cryptic in the extreme. It doesnot show that the appellate authority consideredthe facts on which the order was based, nor didhe consider, in the background of the defencetaken by the petitioner, whether on the factsestablished any justification for the actiontaken. Such an order does not fit in withthe requirements of Rule 1721. I, therefore,hold that Mr. Gupta has succeeded in establishing his point that the appellate order did notconform to the mandatory provisions of Rule1721.
6. Mr. A.K. Basu, learned Advocate for the respondents, sought to repel the last argument of Mr. Gupta by relying on a decision of the Supreme Court in Syed Yakoob v. K.S. Radhakrishnan : 5SCR64 in which the Supreme Court has observed as follows:
'It may be conceded that it would have been better if the Appellate Tribunal had indicated why it rejected the case of respondent No. 1 in regard to his alleged workshop at Chidambaram but we do not think that the failure of the appellate Tribunal to give a reason in that behalf or to refer specifically to the evidence adduced by the respondent No. 1 did by itself, constitute such an error in its decision as to justify the issue of a writ of certiorari under Article 226'.
In my opinion, the above judgment does not help Mr. Basu. In the first place their Lordships of the Supreme Court were not dealing with the functions of an appellate authority under the Railway Establishment Code. The above observations were made by their Lordships in reference to the duties of State Transport Appellate Authority in Madras. In the instant case Rule 1721 which I have already quoted, required what the appellate authority must consider. In the absence of any indication that the appellate authority considered, what under the rule is bound to do, the appellate order cannot be sustained.
7. In the result I hold that the appeal preferred by the petitioner has not been properly decided and the procedure adopted by the appellate authority is open to condemnation. In the first place, the appellate authority deprived the petitioner of the assistance from his chosen assistant. In the next place, the appellate authority did not allow the petitioner to argue the appeal as best as he desired at the personal hearing. In the third place, the appellate authority wrote out a cryptic order affirming the penal order without indicating that he considered the facts on which the charge was sought to be proved and that on the proved facts the penalty, as imposed was called for. The appellate order is, therefore, unworthy of being upheld.
In the appellate order has merged the order of penalty imposed upon the petitioner. I have already observed that the enquiring officer may not have acted rightly in refusing an opportunity to the petitioner to call witnesses. That point unfortunately was not taken before the appellate authority and the appellate authority had no chance of considering the propriety or otherwise of the aforesaid act of the enquiring officer. That in my opinion, the appellate authority should now consider.
8. In the result I quash the appellate orderand remand the matter to the appellate authorityto re-hear the case in the light of the observations contained in this judgment; the authoritymust now deliver a judgment in accordancewith the provisions of Rule 1721 of the RailwayEstablishment Code. Let a writ of certiorariaccordingly issue and let the matter be sentback to the appellate authority for re-hearing.The costs of this Rule will abide the decisionof the appellate authority hearing fee beingassessed at three gold mohurs.