General Manager, Eastern Railway &
ANR Vs. Jawala Prasad Singh  INSC 327 (20 November 1969)
20/11/1969 MITTER, G.K.
CITATION: 1970 AIR 1095 1970 SCR (3) 271 1970
SCC (1) 103
CITATOR INFO :
RF 1981 SC 858 (6)
Natural Justice-Inquiry Committee's duty to
submit report to punishing authority-Change in personnel of Inquiry Committee
during inquiry No de novo inquiry but proceedings continued- Procedure if
violates natural Justice.
The respondent, a railway servant, was
charged with misappropriation. An Inquiry Committee of three officers of the
Railway was constituted to inquire into the charges.
After the proceedings had gone on for some
time and some witnesses were examined, one of the members of the inquiry
committee was transferred. There was no de novo inquiry and the proceedings
continued with the successor in office. The Inquiry Committee found the
respondent guilty of the charges and submitted its report under the Discipline
and Appeal Rules of the Indian Railway Establishment Code. The Disciplinary
Authority considered the record of inquiry, issued the second show cause notice
and thereafter dismissed the respondent from service. The respondent's appeal
to the General Manager having proved unsuccessful, he challenged the order in a
writ petition. The High Court quashed the order of dismissal on the ground that
there was a violation of the principles of natural justice, because of the
change in the personnel of the Inquiry Committee.
In appeal to this Court,
HELD : No known principle of natural justice
is violated when one member of the Inquiry Committee is substituted by another,
because, the change in the personnel even though it was after the proceedings
bad begun and some evidence was recorded, could not make any difference to the
railway servant. The members of the Committee cannot record their findings
separately, but must arrive at their conclusion jointly and it is the record
consisting of the documents and the oral evidence which forms the basis of the
report of the inquiry Committee. Therefore, any impression created by the
demand our of a particular witness on the mind of any member could not affect
the conclusion. [275 D-F; 276 A-B] Further, under the rules, the duty of the
Committee ends with the making of the report, because, it is not the punishing
authority. The punishing authority is the Disciplinary Authority and the
personal impression of a member of the Inquiry Committee cannot possibly affect
the decision of the Disciplinary Authority. The Disciplinary Authority merely
goes by the written record after giving a personal hearing to the railway
servant if he asks for it, and may even reverse the finding of the Inquiry
Committee absolving a railway servant, and impose a penalty on him.
[275 F-G] Moreover, it is not uncommon, in
proceedings before ordinary courts, for one judge or magistrate to record part
of the evidence and for his successor to continue the proceedings and dispose
of the matter, or for witnesses to be examined on commission and the weight of
their evidence being assessed by a judge who did not have the benefit of
watching the 272 demeanour, or for an appellate -court, which does not have
such an opportunity, to arrive at conclusions of facts on the record of the
case. The appellate court may take note of any comment on the demeanour of a
witness but never guides itself entirely by such a comment. [276 E-H; 277 A-C]
Union of India v. H. C. Goel,  4 S.C.R. 718; A.I.R.
1964 S.C. 364, relied on, Gullapalli
Nageswara Rao v. A. P. Road Transport Corporation,  Supp. 1 S.C.R. 319,
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1186 (N) of 1967.
Appeal by special leave from the judgment and
order dated June 13, 1966 of the Calcutta High Court in Appeal from Original
Order No. 563 of 1964.
V. A. Seyid Muhammad and S. P. Nayar, for the
K. Rajendra Chaudhuri, Kanwal Singh and
Kaushalya, for the respondent.
The Judgment of the. Court was delivered by
Mitter, J. The question involved in this appeal is, whether the whole
'proceedings of the Inquiry Committee constituted to inquire into the charges
of misappropriation and handling cash belonging to Government without authority
were vitiated by the violation of, the principles of natural justice with the
result that the order of dismissal passed subsequently on the respondent could
not be sustained.
The facts necessary for the disposal of the
appeal are as follows. The respondent used to serve as treasure guard in the
Eastern Railway. A charge sheet was issued by the Chief Cashier of the Railway
on August 3, 1959 wherein allegations of misappropriation of cash belonging to
Government were levelled against him. An Inquiry Committee consisting of three
persons, namely, A. K. Roy Choudhury, Divisional Accounts Officer, Mani
Chakraborty, Divisional Personnel Officer and H. N. Chatterjee, Divisional
Engineer, was constituted to inquire into the charges. The charge sheet had
been issued after a fact finding committee of the very same persons had looked
into the matter. After the proceedings of the Inquiry Committee had gone on for
some time and some witnesses were examined, A. K. Roy Choudhury was transferred
to some other place and the vacancy in the committee was filled up by R. N.
Vakil, his successor in office. It is common ground that the proceedings were
not started afresh but were continued from the stage at which A. K. Roy
Choudhury had dropped out. The committee submitted a report finding the
respondent guilty of all the three charges framed against him. On 1st February,
1961 the Chief Accounts Officer, Eastern Railway 273 issued the second show
cause notice and by an order dated March 20, 1961 he was dismissed from
service. The respondent's appeal to the General Manager of the Railway was
unsuccessful. He thereupon moved the High Court and a learned single Judge
quashed the order of dismissal. A Division Bench of the High Court dismissed
the appeal of the Union of India. Hence the present appeal by special leave.
The Division Bench of the- High Court took
the view that where the persons who decided the matter finally were not the
identical persons who had heard the witnesses at least in respect of a part of
the evidence, the departmental proceedings were vitiated by the violation of
the principles of natural justice. Reliance was placed mainly on the decision
of this Court in Gullapalli Nageswararao and others v. A. P. State Road
Transport Corporation & another(').
According to the High Court "If the
enquiring authority has a duty to come to a conclusion as to the guilt of the,
delinquent upon an evaluation or assessment of the evidence, then it is
absolutely necessary that he who should decide the case should hear the
evidence. It was impossible to evaluate the evidence of a witness taken on
proxy, because one of the salient features of such proceedings is to observe
the demeanour of the witness." The High Court turned down the contention
that according to the Discipline and Appeal Rules for railway servants the
Disciplinary Authority had to look into the record itself in which case any
defect in the Inquiry Committee would not be fatal. The High Court held that if
the report of the Inquiry Committee was tainted with illegality then the entire
departmental enquiry was vitiated.
In our view the judgment of the High Court
cannot be sup- ported. Section V of the Indian Railway Establishment Code,
Volume 1, lays down by several rules the procedure to be followed for
imposition of major penalties on railway servants. Under r.1708 the inquiry may
be held, as far as may be, under rules 1709 to 1715. Rule 1709 lays down that
the Disciplinary Authority must frame definite charges on the basis of the
allegations on which the inquiry is proposed to be held and such charges
together with a statement of the allegations on which they -are based have to
be communicated in writing to the railway servant who is called upon to submit
a written statement of his defence and also to state whether he desires to be
heard in person.
Such written statement may be submitted either
to the Disciplinary Authority or to the Board of Enquiry or Inquiring Officer
where (1)  Supp. 1 S.C.R. 319.
274 one has been appointed under r.1710.
Under the last mentioned rule, the Disciplinary Authority may enquire into the
charges itself or it may appoint a Board of Inquiry or an Inquiring Officer for
the purpose to be termed the Inquiring Authority. Rule 1711 gives the railway
servant the right to inspect and take extracts from official records as he may
specify for preparing his defence. The inquiry procedure is set forth in Rule
1712. 'This rule lays down that an inquiry has to be made into the charges
which are not admitted after the filing of the written statement. At the
inquiry, a definite charge in writing must be framed and explained to the
railway servant in respect of each offence which had, not been admitted by him
and the evidence in respect of it along with any evidence which he may adduce
in defence must be recorded in his presence. The accused railway servant may
present his case with the assistance of another railway servant. Sub-r. (3) of
the rule provides :
"The Inquiring Authority shall, in the
course of the inquiry, consider such documentary evidence and take such oral
evidence including cross-examination of the. railway servant and witnesses, as
may be relevant or material in regard to the charges. The railway servant shall
have the opportunity of adducing relevant evidence on which he relies, the
evidence of witnesses shall be taken in his presence, he or, the person assisting
him shall be given the opportunity of cross-examining the witnesses and no
materials shall be relied on against him without his being given an opportunity
of explaining them." Under sub-r. (4) "At the conclusion of the
inquiry, the Inquiring Authority shall prepare a report of the inquiry,
recording its findings on each of the charges, together with the reasons
therefor........... " Under sub-r. (5) the record of the inquiry shall
include the charges framed against the railway servant and the statement of
allegations furnished to him under Rule 1709, his written statement of defence,
if any, the oral evidence taken in the course of the inquiry, the documentary
evidence considered in the course of inquiry, the orders, if any, made by the
Disciplinary Authority in regard to the inquiry and a report setting out the
findings on each charge and the reasons therefor. Under rule 1713 the
Disciplinary Authority, if it is not the Inquiring Authority, shall consider
the record of the inquiry and record its findings on each charge.
275 It is after the observance of all the
above formalities that penalty may be imposed under r. 1704 or r. 1715.
In our opinion, the above procedure does not
leave any scope for the guidance of a member of an Inquiry Committee consisting
of more than one person by the impression formed by him about the truthfulness
or otherwise of a particular witness examined during the inquiry. From the
stage antecedent to the framing of the charges everything is recorded in
writing : the allegations on which the charges are based are made known to the
railway servant and he is called upon to file his written statement after
looking into all the relevant records. The oral evidence of all the witnesses
tendered during the enquiry is recorded in writing. Whereas here the oral
evidence is recorded in the presence of three persons constituting the Inquiry
Committee, any impression created by the demeanour of a particular witness on
the mind of any one member cannot affect the conclusion afterwards arrived at
jointly by them.
It cannot be suggested that all the. three
persons would record their impressions separately about the demeanour of a
witness and it is quite possible that a particular witness may appear to one
member of the committee to be untruthful without his being considered so by the
others. The members of the Inquiry Committee cannot record their findings
separately but it is their duty to record findings on each of the charges
together with the reasons therefor. It is to be noted that the duty of the
Inquiry Committee ends with the making of the report. The Disciplinary
Authority has to consider the record of the inquiry and arrive at its own
conclusion on each charge. Whatever may be the impression created by a
particular witness on the mind of one member of the committee, the same is
never translated into writing and the Disciplinary Committee merely goes by the
written record after giving a personal hearing to the railway servant if he
asks for it. Even if the Inquiry Committee makes a report absolving the railway
servant of the charges against him, the Disciplinary Authority may, on
considering the entire record come to a different conclusion and impose a
This is amply borne out by a judgment of this
Court in Union of India. v. H. C. Goel(l) where it was said that neither the
findings nor the recommendations of the Inquiry Committee are binding on the
In such a state of affairs a change in the
personnel of the Inquiry Committee after the proceedings are begun and some evidence
recorded cannot make any difference to the case of the railway servant. The
record will speak for itself and it is the record consisting of the documents
and the oral evidence as re- (1) 4 S.C.R. 718, A.I.R. 1964 S.C. 364.
276 corded which must form the basis of the
report of the Inquiry Committee. The committee is not the punishing authority
and -the personal impression of a member of the committee cannot possibly
affect the decision of the Disciplinary Authority. In a state of affairs like'
this we cannot see any reason for holding that any known principles of natural
justice is violated when one member of the committee is substituted by another.
The observations of this Court in Gullapalli
Nageswara Rao's case(l) have no bearing on the facts of the present case.
There it was held that if a personal hearing
is given by the Secretary of a Department and the Minister of the State has to
decide on the notes put up by the Secretary, the procedure defeats the object
of personal hearing. The observations at p. 357 that "Personal hearing
enables the authority concerned to watch the demeanour of the witnesses and
clear-up his doubts during the course of the arguments, and the party appearing
to persuade the authority by reasoned argument to accept his point of view. If
one person hears and another decides then personal hearing becomes an empty
formality." can have no application to the facts of the case before us.
The members of the Inquiry Committee who
heard the arguments had the entire record before them and they had to go by the
In proceedings before ordinary trial courts
of the land, both civil and criminal, it is not uncommon to find oral evidence
recorded before more than one presiding Judge or Magistrate. Common convenience
requires it and statutes provide for it. It cannot be suggested that the
legislatures have enacted laws in ,disregard of an elementary principle of
natural justice. Besides not unoften witnesses have to be examined on
Whenever a witness is so examined, the Judge
does not have the benefit of watching his demeanour. The Criminal Procedure
Code provides for more than one Magistrate recording the evidence of witnesses.
Section 363 Cr. P.C.
enjoins upon a Sessions Judge or a Magistrate
to record such remarks (if any) as he thinks material respecting the demeanour
of a witness whilst under examination. Order XVIII -r. 15 of the Code of Civil
Procedure empowers a Judge to treat the evidence recorded by his predecessor in
office as if it had been taken down by him or under his direction under the
said rule and he may proceed with the suit from the stage at which his
predecessor left it, whenever his predecessorin-office is prevented from
concluding the trial of a suit by reason of death or transfer or some other cause.
Instances are not rare (1)  Supp. 1 S.C.R. 319.
277 Then such powers have to be used either
-by a Judge hearing a evil suit or a Magistrate or a Sessions Judge hearing, a
criminal matter. In the vast majority of cases both civil and criminal, a judge
does not come to any conclusion merely on the impression created by a witness
while he is in the witness box. In all matters which go up in appeal, the
appellate court does not have any opportunity of watching the demeanour of the
witness : it has to go y the record of the case. Of course if any comment is
made by the trial Judge about the demeanour of a witness, the appellate court
takes note of it. But it never guides itself entirely by such comments. The
entire evidence has to be looked into and assessed as a whole. Where as here
the punishing authority does not hear the evidence but goes by the record of
-the case the demeanour of particular witness when giving evidence can -have
but little leaning and cannot influence the mind of the Disciplinary authority
in awarding punishment. We therefore hold that the High Court was not right in
quashing the order of dismissal on The ground that the report of the Inquiry
Committee was vitiated y the violation of any principle of natural justice as
stated in the judgement. The appeal is therefore allowed and the order of the
High Court set aside. There will however be no order as to -costs.
I.P.S. Appeal allowed.