B.N. Banerjee, J.
1. The petitioner was employed as a fitter under the Eastern Railway. On 22 August 1961, the petitioner was apprehended by the Railway Protection Force with certain railway properties in his possession. He was taken to the Railway Protection Force Office and there his statement was recorded. Thereafter, there was the following charge-sheet served upon the petitioner asking him to explain why he should not be penalized for the misconduct mentioned in the charge, namely:
At about 14/15 hours on 22 August 1961, when you were passing through the north side of South Jute Shed, you were caught by on-duty Railway Protection Force and found to be in possession of two pieces of broken brass bearing weighing about 2 seers belonging to the railway administration. You have committed gross misconduct.
Along with the chargesheet the petitioner was not supplied with any statement of allegations as was required under Rule 1709 of the Discipline and Appeal Rules for Non-gazetted Railway Servants. Rule 1709 is couched in the following language:
The disciplinary authority shall frame definite charges on the basis of the allegations on which the inquiry 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 inquiring officer has been appointed under Rule 1710 to that board or officer,
a written statement of his defence and also to state whether he desires to be heard in person.
This lacuna was, however, later on sought to be remedied by supplying to the petitioner extracts from a report, dated 7 September 1961, made by the officer-in-charge of the Railway Protection Force, Howrah. This was done on 21 November 1961, and the petitioner was granted an extension of time to file his explanation (vide annexure D to the affidavit-in-opposition).
2. In the meantime, the petitioner had written the following letter to the disciplinary authority asking for copies of relevant documents. A material portion from the said letter is set out below:
With reference to the above I beg to request to kindly furnish me with the certified copies of all the relevant documents on basis of which the charge has been framed against me, as provided in the rules to enable me to reply the charge-sheet. On hearing from you the reply to the chargesheet will be submitted.
Admittedly, no document, excepting the report of the officer-in-charge hereinbefore referred to, was supplied to the petitioner before he submitted his explanation to the chargesheet. The petitioner made a grievance of the prejudice thus caused to him in his explanation to the chargesheet in the following language:
I have been asked to show cause against the chargesheet dated 23 September 1961. In order to comply with the same, I requested your esteemed officer to furnish me with copy of certain documents including statement made by Sri B.N. Mukherjee and the certificate given by him mentioned in the letter No. HWP/10/1562/61, dated 7 September 1961, from O/C/RPF/HWH parcel to ASOR (1) HWH, nor have I yet been provided with the copies of the statements of the Railway Protection Force staff, Sri A.K. Ayuer and Sri K.C. Mukherjee which are indispensible for giving me reasonable opportunity to explain my case adequately.
In spite of the grievance made by the petitioner, the enquiry proceeded against him without supplying him with the copies of the documents. When the enquiry was practically closed, there was the following letter written to the petitioner on behalf of the Divisional Superintendent, Howrah, supplying him with the copies of certain documents and asking him to submit a fresh or additional explanation to the chargesheet for consideration of the disciplinary authority. A relevant portion from the letter is set out below:
In continuation of this office letter of even number dated 27 November 1961, to which you replied on 1 December 1961, it has been decided by the competent authority to furnish you with copies of the undernoted documents as asked for by you, for the purpose of your defence-
(1) A copy of statement dated 23 August 1961 of rakshak Sri Aloke Kumar Aghuan.
(2) A copy of your own statement 23 August 1961, of rakshak Sri N.C. Mukherjee.
(3) A copy of your own statement dated 22 August 1961, bearing endorsement of the same dated of the OC. RFF/Parcel and TXR/HG Sri B.N. Mukherjee.
You are also given the option to submit fresh and/or additional explanation to the chargesheet for the consideration of the competent authority and such further orders as he shall consider fit and proper. Please acknowledge receipt and submit your further reply, if any, on or before 14 May 1962.
The petitioner did not avail of the opportunity offered to him and replied to the letter in the following language:
With reference to the above I have the honour to state that the document which I asked for on 23 November 1961 prior to the submission of my defence in reply to the chargesheet has been furnished to me after the departmental enquiry is over. And it is too late to have those documents now for the purpose it was asked for.
Now I beg to state that the enquiry was closed on 12 March 1962 and I have submitted my defence note on 20 March 1962. I am under suspension since August 1961.
Under the circumstances I request you to please finalize the case early and allow me to resume duty.
In this state of affairs the enquiring officer submitted his report finding the petitioner guilty of the charge and recommending his removal from service. The disciplinary authority accepted the report and imposed the penalty of removal from service upon the petitioner. The petitioner preferred an appeal before the appellate authority but that appeal was also dismissed. In these circumstances, the petitioner moved this Court praying, inter alia, for writ of certiorari quashing the penal order and for a mandate upon the respondents directing them to forbear from giving effect to the order and obtained this rule.
3. Smt. Kanika Banerjee, learned advocate for the petitioner, argued three points in support of the rule. She contended, in the first place, that the chargesheet itself was bad inasmuch as it did not comply with the provisions of Rule 1709 of the Discipline and Appeal Rules. She contended, in the next place, that the petitioner was seriously prejudiced by refusal on the part of the respondents to supply him with copies of the relevant documents at the point of time when enquiry was going on against him. She lastly contended that the appellate order had not been made in terms of Rule 1731 and should be quashed.
4. In my opinion, the first two contentions of Smt. Banerjee are of little Bubstance. A chargesheet is an accusation based on allegations. Such allegations may be integral part of the charge itself or the chargesheet may refer to statement of allegations to be found in a separate document. In the charge-sheet it was alleged, in the instant case, that the petitioner was caught while carrying away brass bearings belonging to the railway and that constituted his misconduct. That was the allegation on which the charge was based and the chargesheet was thus framed in substantial compliance with Rule 1709. Assuming for the sake of argument, however, that Rule 1709 requires a separate statement containing the statement of allegations, being attached to the chargesheet, failure on the part of the respondents to supply such a statement simultaneously with the charge-sheet need not be considered as a fatal defect. At most it may be curable irregularity. The report of the officer-in-charge of the Railway Protection Force contained the allegations, on which the charge was based, and that statement was supplied to the petitioner before he submitted his explanation to the charge. That cured the lacuna, if any, in the chargesheet.
5. It is no doubt true that the petitioner was not supplied with copies of documents, asked for by him, before he filed his explanation to the charge. The reason for not supplying the petitioner with, copies, at the stage, is said to have been due to the fact that the documents were not available at the material time. If the enquiring officer cared to rely on documents, copies of which had not been supplied to the petitioner, that would have been a fatal defect in the proceeding. In this case, however, documents, on which the enquiring officer relied were supplied to the petitioner before the report of the enquiry was made, with an opportunity to the petitioner to submit his further explanation on the footing of those documents. The petitioner did not avail of the opportunity offered to him and took up a non-co-operative attitude as appears from his letter dated 1 June 1962 which I have already hereinbefore set out. Since I find that the petitioner was supplied with all the documents that he wanted to have, prior to the conclusion of the enquiry, and since I further find that the petitioner was given opportunity to make his further submissions on the footing of the documents disclosed and inasmuch as the petitioner did not take advantage of the opportunity, I am not much impressed by the academic grievances made by Smt.Banerjee at this stage.
6. The last argument of Smt. Banerjee, is, however, of substance. Under Rule 1731(2) there is mode prescribed as to how appeals should be disposed of. That rule is set out below:
(2) In the case of an appeal against an order imposing any of the penalties specified in Rule 1707, the appellate authority shall consider
(a) whether the procedure prescribed in these rules has been complied with, and, if not whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice;
(b) whether the findings are justified ; and
(c) whether the penalty imposed is excessive, adequate or inadequate and after consultation with the Commission, if such consultation is necessary in the case, pass orders
(i) setting aside, reducing, confirming or enhancing the penalty; or
(ii) remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case,
The order which the appellate authority passed in this case is set out in Para. 15 of the affidavit-in-opposition, from which I quote the following:
The points raised by the fitter at the time of interview have been considered along with the other available evidence. I do not find any reason to alter the orders already passed.
In my opinion, the order does not show that the appellate authority applied his mind to the points envisaged under the rule quoted above and that makes the order unworthy of being sustained. A colourless appellate order of this description always gives rise to genuine grievances and such grievances cannot be minimized because the appellate authority is the last authority to decide on questions of fact. In the view that I express, I think that the best order to pass in this rule is to set aside the appellate order and to remand the matter to the appellate authority with, direction to him to dispose of the appeal according to law after taking into consideration all the grievances made by the petitioner. I, therefore, make the rules absolute to the extent indicated above.
7. Let a writ of certiorari accordingly issue. I express the desire that the appellate authority should dispose of the appeal as expeditiously as possible. I make no order as to costs.