B.N. Banerjee, J.
1. The petitioner, who was a railway employee, was charged with misconduct and was reduced in rank by way of punishment. This rule is directed against the propriety of the order of reduction in rank.
2. The charge against the petitioner was that while serving as a temporary store-issuer, be destroyed the records of cigarette stock register of North station, Sealdah, pertaining to dates from 6 to 9 January 1959. The charge was based on a report made by the catering supervisor at Sealdah, on 17 February 1959.
3. There was an enquiry held on the charge against the petitioner and the charge was found to have been proved. The petitioner was called upon to show cause why he should not be reduced in rank from the post of temporary store-issuer to the post of temporary packerman, in the scale of Rs. 35-50. The petitioner showed cause against the penalty. He was, however, reduced in rank by way of penalty.
4. The propriety of the order is being disputed before me at the instance of the delinquent, who is the petitioner.
5. A threefold argument was advanced on behalf of the petitioner. It was contended, in the first place, that in the office order, dated 23 February 1959 (annexure E to the petition), the superintendent of catering bad observed as follows:
Catering supervisor/Sealdah's report in this connexion is relied upon by the undersigned and it is for Sri N.N. Ghosh, temporary store-issuer/Sealdah to prove otherwise.
6. This, it was argued, was misplacement of onus on the petitioner. I do not make much of this argument, because the order which found the petitioner guilty of the charge did not place the onus on the petitioner. The view expressed by the superintendent of catering was not followed up by the enquiring authority. I need only observe that the approach to the question of the petitioner's guilt, as made by the superintendent of catering, was wrong. But the authority, which enquired into the petitioner's guilt, did not fall into that error.
7. The next grievance made on behalf of the petitioner was that he was found guilty of the charge with which he had not even been charged. The alleged basis of this criticism is to be found in the following extracts from the report made by the enquiring authority, which I set out below:
(i) Sri N.N. Ghosh, temporary store-issuer/Sealdah under suspension has been found guilty for destroying some pages of the cigarette stock register of the Sealdah North Station cigarette stall (pieces since collected-vide p. 131 attached herewith).
(ii) Sri N.N. Ghosh made the above attempt with a motive to escape responsibility for shortage of the cigarette stock, which was a subject under investigation during the period of the above incident.
8. The criticism made of the above extract is not very well conceived. The petitioner was not found guilty of a second charge, as he alleges. in finding him guilty of the first charge the enquiring officer merely referred to a motive, which may have actuated the petitioner in destroying the cigarette records. in the view that I take, I overrule the second grievance made by the petitioner.
9. The third grievance made by the petitioner, however, succeeds. It appears that in the course of the enquiry the petitioner asked for examination of two witnesses, namely; the superintendent of catering and the chief catering inspector. Both these officers were under the control of the railway administration and they could be produced by the administration. Curiously enough, they were not called, because the enquiring officer was of the opinion that their evidence would be irrelevant. I do not know what questions the petitioner would have put to them and what fact he wanted to elicit from them. To deprive the petitioner of the opportunity to examine witnesses, in course of the enquiry, was a serious lacuna which has vitiated the enquiry itself.
10. Mr. S.C. Ghose, learned advocate for the railway administration, in his fairness, conceded that he would not stand in the way of the petitioner being given an opportunity, now to examine such persons, as he intends to examine as witnesses.
11. In that view, I quash both the enquiry report and the order of penalty imposed on the petitioner and direct that the enquiry now proceed after giving to the petitioner opportunity to examine such witnesses as he may like. If any of those witnesses be under the control of the railway administration, the administration shall make an effort to produce them for examination by the petitioner.
12. The evidence already on the record may be treated as evidence at the enquiry. After considering the evidence that the petitioner nay now adduce, the enquiring officer shall make such report as he may think fit and proper and on that report the railway administration shall be at liberty to take such steps, as it maybe entitled under the law.
13. This rule succeeds to the extent indicated above. Let a writ of certiorari accordingly issue. There will be no order as to costs.