http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: GENERAL MANAGER, EASTERN RAILWAY ANDANOTHER.

       Vs.

RESPONDENT: JAWALA PRASAD SINGH

DATE OF JUDGMENT: 20/11/1969

BENCH: MITTER, G.K. BENCH: MITTER, G.K. SIKRI, S.M.

CITATION:  1970 AIR 1095            1970 SCR  (3) 271  1970 SCC  (1) 103  CITATOR INFO :  RF         1981 SC 858  (6)

ACT: 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.

HEADNOTE: 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

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, [1964] 4 S.C.R.  718;  A.I.R. 1964 S.C. 364, relied on, Gullapalli Nageswara Rao v. A.  P. Road  Transport  Corporation, [1959] Supp.   1  S.C.R.  319, explained.

JUDGMENT: 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 appellants. 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 cornmon ground that the proceedings were  not started afresh but were continued from the stage at which A.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

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)  [1959] 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

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.  Where as 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

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  penalty. 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 Government. 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)  [1964]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 record. 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   commission. 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

of  a  suit  by reason of death or transfer  or  some  other cause.  Instances are not rare (1)  [1959] 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. CI (NP)70-3 278