B.N. Banerjee, J.
1. The petitioner used to serve as a treasure guard in the Eastern Railway. While the petitioner was posted at the Bandel Pay Office a fact-finding committee was constituted composed of
(i) A.K. Roy Choudhurl, Divisional Accounts Officer,
(ii) Mani Chakraborti, Divisional Personnel Officer, and
(iii) H.N. Chatterjee, Divisional Engineer,
to enquire into a suspected case of misappropriation of railway money in Bandel Pay Office. It is stated that the fact-finding committee found a prima facie case against the petitioner. On the basis of the report made by the fact-finding committee, the Chief Cashier, Eastern Railway, served a notice on the petitioner, dated 3 August 1959, charging him as hereinbelow stated:
(i) You are an accomplice and helper of clerk under P.W.I./B.D.C, on spurious pay-sheets prepared in the office of P.W.I./ B.D.C. for which you received share of misappropriated money from Ramendu Chatterjee.
(ii) You habitually handle Government cash Independent of the pay clerk without authority.
(iii) You misappropriated either the whole or a part of a sum of Rs. 2,842 from the amount placed at the disposal of pay clerk/Bandel by the Divisional Cashier, Howrah, for making payment to the staff of P.W.I. /Bandel in the month of June 1959.
2. Similar chargesheets were also Issued against five other employees, but I am not concerned with that In the present rule. The petitioner submitted a written explanation denying the charges preferred against him.
3. Thereafter, there was an enquiry commitee constituted, composed of the selfsame persons with whom the fact-finding committee had been constituted and Sri A.K. Roy Choudhuri, the Divisional Accounts Officer, was made the chairman of the enquiry committee. After some witnesses had been examined by this enquiry committee, Sri A. K. Boy Choudhuri was transferred elsewhere and the vacancy thus caused in the enquiry committee was filled up by appointing R.N. Vakil, the successor-in-officer to Sri A. K. Roy Choudhuri. The enquiry committee submitted a report, by which the petitioner was found guilty of all the three charges abovementioned. Thereupon, the Chief Accounts Officer, Eastern Railway, issued another notice, dated 1 February 1961 to the petitioner, inter alia, stating that he was of the opinion that the charges had been proved against the petitioner and calling upon the petitioner to show cause why he should not be dismissed from service. The petitioner showed cause why he should not be dismissed from service. The petitioner showed cause against the proposed penalty and asked for a further personal hearing. No such hearing was given to the petitioner but by an order dated 20 March 1961, the petitioner was dismissed from service. Aggrieved by the order of dismissal the petitioner preferred an appeal before the General Manager, Eastern Railway, but that appeal also failed. It is In these circumstances that the petitioner moved this Court, under Article 226 of the Constitution, praying for a writ in the nature of certiorari for the quashing of the order of his dismissal, as affirmed in appeal and also for a writ in the nature of mandamus on the respondents directing them to refrain from giving effect to the order and obtained this rule.
4. Sri Anil Kumar Sinha, learned advocate for the petitioner, argued the following points in support of the rule. He contended, In the first place, that the petitioner had been appointed by the Chief Accounts Officer, as such the Chief Cashier, who was subordinate in rank to the Chief Accounts Officer, could not issue the chargesheet, as done in this case. He contended, in the next place, that Sri A. K. Roy Choudhuri had taken an important part in the fact-finding committee which found the petitioner guilty of the charges and should not have been made the chairman of the enquiry committee on the ground that he was likely to have a foresworn mind against the petitioner. The same contention was levelled against the other members of the committee. In the third place, Sri Sinha contended that the petitioner had asked for production of one S.N. Chatterjee, a railway employee, for proving his defence and although the said S. N. Chatterjee was under the control of the railway authorities, he was not produced at the enquiry for being examined by the petitioner. Sri Sinha also argued that so a? to cover up the irregularities and illegalities committed during the enquiry, the petitioner was compelled to sign a certificate therein stating that he had been given proper facilities at the enquiry and had little to complain. It was lastly contended that the enquiry was vitiated by gross irregularity in that the committee was reconstituted during the enquiry and Sri Vakil had no opportunity of hearing the evidence and observing the demeanour of the witnesses, who had been examined at a time when he was not a member of the committee.
5. The first point argued by Sri Sinha is not a point of substance. Sri Sinha frankly conceded that he had no material to show that the petitioner had been appointed by the Chief Accounts Officer, It appears from Para. 3 of the affidavit-in-opposition that the petitioner had been appointed by the Treasurer of the then East Indian Railway and the post of Treasurer stood re-designated as the post of Chief Cashier under the Eastern Railway. I find no reason to emphasize upon the first grievance made on behalf of the petitioner.
6. The second branch of the argument advanced on behalf of the petitioner must also fail, The members of the fact-finding committee and Sri A.K. Roy Choudhuri In particular might have reported a prima facie case against the petitioner. But from that only I cannot come to the conclusion that they had a closed mind so far as the petitioner was concerned and while sitting as members of the enquiry committee were determined not to be swayed by evidence but cling to their prima facie opinion as expressed In the fact-finding report. The charge of bias must not be too readily assumed but must be proved by the person alleging the same. On the allegations contained In the petition I am not prepared to hold that the members of the enquiry committee and Sri A.K. Roy Choudhuri in particular were either biased or prejudiced against the petitioner and for that reason their report must not be accepted.
7. The grievance made by the petitioner that S.N. Chatterjee, a railway employee whom the petitioner had cited as a witness on his behalf, was not produced, is also unsubstantial. In the affidavit-in-opposition It is stated that there was nothing to show that S.N. Chatterjee had at all been cited as a witness and Sri Sinha, learned advocate for the petitioner, could not produce any material on which this grievance could possibly be founded. I am, therefore, unable to sustain this branch of the argument on behalf of the petitioner.
8. I now take up for consideration the remaining two arguments advanced on behalf of the petitioner. It is an admitted position that after the enquiry against the petitioner had proceeded to some extent and after some witnesses had been examined, Sri A.K. Roy Choudhuri, chairman of the enquiry committee, stood transferred and his successor Sri Vakil was appointed to fill in the vacancy. The remaining part of the enquiry took place before the enquiry committee as reconstituted. The position, therefore, is that the new chairman Sri Vakil had not the opportunity of hearing the evidence given by some of the witnesses against the petitioner or observing their demeanour. When the enquiry committee submitted the report, at least one of the members formed his opinion on evidence which he only read but had no opportunity of hearing. When an enquiring committee has the duty to come to a conclusion as to the guilt of a delinquent upon an evaluation or assessment of evidence, then it is absolutely necessary that the members of the committee should hear the evidence of the witnesses. It is impossible for them to evaluate the evidence of the witnesses taken on proxy or in their absence because the salient feature in such proceeding is to observe the demeanour of the witnesses. This was the view which was expressed by this Court in Controller of Insurance v. H. C. Das : AIR1957Cal387 and Amulya Kumar v. L. M. Bakshi 62 C.W.N. 690. The same view was also expressed by the Supreme Court in Gullapalli Nageswara Rao and Ors. v. Andhra Pradesh State Road Transport Corporation and Anr. : AIR1959SC308 .
9. Sri B.N. Bose, learned advocate for the respondents 1 and 2, however, contended that the abovementioned cases were distinguishable. He emphasized upon Rule 1707 (e) of the Indian Railway Establishment Code, Vol. I, which reads as follows:
The result of the departmental enquiry, with the recommendation of the officer or the committee holding the enquiry, shall be placed before the officer competent under the rules in this section to pass an order of dismissal, who shall thereupon pass such order as he may think fit.
10. Sri Bose argued that the officer competent to pass the order of dismissal has to proceed on the basis of the recorded evidence in any event, and that it mattered little for him whether the evidence had been recorded by the same committee or a committee differently constituted at different stages of enquiry. In my opinion, this contention of Sri Bose is not sound. The disciplinary authority has to proceed on the basis of the enquiry report and the records of the proceeding. He may or may not agree with the enquiry report. But when he agrees, he must have that faith in the enquiry report that the evidence relied upon or disbelieved by the enquiry committee had been heard by the members and they had the opportunity of observing the demeanour of witnesses and thus had the opportunity of making a correct appraisement of the evidence. If he does not have this faith In the members of the enquiry committee, it may be difficult for him to rely upon the report itself. For the reasons stated above I do not feel that Rule 1707. (e) contains anything which makes the abovementioned decisions distinguish; able.
11. Faced with this difficulty, Sri Bose relied upon a certificate stated to have been given by the petitioner to the members of the enquiry committee after the closure of the enquiry, which is to the following effect:
I do hereby give the certificate that I have been given all reasonable facilities in defending myself in the enquiry and also afforded the opportunities to consult records in connexion with the case that involved in the enquiry.
12. Sri Bose contended that the petitioner had waived all objections to the enquiry and must not be allowed to fall back upon defects which he had waived. Unfortunately for Sri Bose, he could not explain what was the occasion of taking the certificate from the petitioner or who composed the certificate for the petitioner, it being an admitted position that the petitioner has no knowledge of English. Be that as it may, the certificate does not waive objections to the re-composition of the enquiry committee. Further, in the absence of an explanation how that certificate came to be given, I cannot shut my eyes to the grievance made by the petitioner that the said certificate had been extracted from the petitioner. Regard being had to the allegation, it may not be safe to proceed on the basis of the certificate alone. There is, of course, the further point that even I accept the certificate as a good certificate, even then the certificate does not waive any objection against the reconstitution of the enquiry committee.
13. In the result, I come to the opinion that the enquiry against the petitioner had not been properly conducted. That makes the enquiry report unworthy of acceptance. The punishment Imposed on the petitioner on the basis of such enquiry report by the disciplinary authority, as ultimately affirmed in appeal, must be set aside. I, therefore, quash the order of the disciplinary authority as also the order affirming the same in appeal.
14. Let a writ of certiorari accordingly issue.
15. The rule Is made absolute without any order as to costs.
16. Nothing contained in this judgment shall however, prevent the respondents from starting the enquiry against the petitioner afresh from the stage reached when the petitioner submitted his written explanation to the charges.