N MAIGUR Vs. DIVISIONAL OPERATING SUPERINTENDENT E RLY

JUDGEMENT

(1.) THE petitioner entered the Railway service in the year 1945 as Assistant Station Master, and in 1956 he was posted as Assistant Station Master (Relieving) at Madhupur a station within the administration of the Eastern Railway. As a condition of his service, the petitioner is entitled to get three sets of Privilege Ticket Orders (P. T. O.) for traveling in the third class, and three sets of free passes, each year, for enabling the petitioner and his family members to travel in the third class. In April, 1956 the petitioner obtained one P. T. O. from the office of the respondent No. 2, for enabling his married daughter and his dependent younger brother aged 19 years to travel from his native village at Yadgiri in the state of Mysore to Jasidih in the State of Bihar. In December, 1956, the petitioner received a charge-sheet from respondent No. 2 dated the 29th November, 1956 and the charges consisted of allowing unauthorised persons to travel on P. T. O. No. U 289759 dated the 16th April, 1956 which had been issued in favour of the petitioner's married daughter and dependent brother (under 19) to travel from Yadgiri to Jasidih. In other words, what was charged was that the petitioner, after getting this P. T. O. had allowed it to be utilized by persons other than his married daughter and the dependent brother (under 19 years ). The case of the petitioner was that he had sent this P. T. O. by post to his native place Yadgiri and in fact his married daughter and his younger brother (under 19 years) were going from Yadgiri to Jasidih with the P. T. O. Accompanying them came the petitioners' second brother with his wife upto Bombay. These two other persons had two third-class single journey tickets. It was further stated that because of tremendous overcrowding, these four persons could not get any accommodation in the third-class, and got up on a second-class compartment and were confronted by the Ticket Checking Staff at Bombay. If, of course, this defense is true, then the charge would not be established, although the persons traveling in an unauthorised class might have been called upon to pay to the Railway the difference in fare. That, however we are not concerned with here. Besides this, the petitioner made very serious allegations against the Ticket Checking staff. It was stated that they wanted a bribe of Rs. 100/- and threatened his younger brother with imprisonment. Further, the second brother of the petitioner was forced to give a statement on threat of prosecution. The petitioner prayed for a "confronted enquiry" which means an enquiry where witnesses will be called and examined. In fact, regard being had to the facts of the case, no satisfactory decision could be arrived at without the evidence of the ticket checkers who apprehended the parties alleged to be traveling with unauthorised P. T. O. The Divisional Superintendent, however, instead of a 'confronted enquiry' directed a Junior Officer's enquiry. The petitioner however asked for a 'confronted enquiry' but had to take part in the Junior Officer's enquiry under compulsion. At the enquiry no witnesses were examined. On the 22nd of February, 1957 the petitioner prayed for time to produce defense witnesses, and regard being had to the fact that the petitioner's witnesses resided about 1,500 miles away, he should have been granted some time. But no time was granted. The enquiry resulted in a finding against the petitioner, and he has been removed from service. It is against this order of removal that this application is directed.

(2.) COMING to the findings in this case, which is annexure 'f' to the petition, it appears to me impossible to sustain it. As will be remembered, the petitioner was charged with having allowed unauthorised use of a certain P. T. O. which was issued in favour of his married daughter and his dependent younger brother (under 19 years ). In order to establish it, the Checking Staff who apprehended the persons traveling with the P. T. O. would have to be produced. No witness at all was called. The only evidence upon which the Enquiring Officer seems to have relied upon is a statement made by the petitioner's second brother. I have already stated that it is the petitioner's case that a certain statement was taken from his second brother under threat of prosecution. Even this brother has not been called. If the prosecution wished to rely on the evidence of this brother of the petitioner Shanti Kumar, then he should have been called, and allowed to be cross-examined by the petitioner. It is stated in the report that the petitioner should have called his younger brother below 21 years. I regret to find that in most of these departmental proceedings it is mistakenly thought that a charge-sheet is prima facie to be taken to be true and that the burden lies on the delinquent to prove his innocence. The sooner this idea is got rid of, the better. It is true that departmental proceedings are not in the same category as criminal prosecutions or even a civil proceeding in Court and the provisions of the Indian Evidence Act do not apply. Nevertheless, the ordinary principles of proof and also the rules of natural justice must be applied. The charges must be proved by the prosecution, and it is not the duty of the delinquent to prove any part of it. A mere statement, whether it is by a relation of the delinquent or strangers, if used as evidence against him, must be proved, and the delinquent must be given every opportunity of testing the evidence. In this case, no witnesses were called and nothing was proved. The matter has been decided in all kinds of speculation and surmises. It is said that the whole defense of the delinquent was an after-thought because had it been true he would have protested immediately after the occasion. That, in my opinion, cannot be proof of the guilt of the delinquent. Looking at the proceedings, I have come to the conclusion that the petitioner's guilt was not proved and that the enquiry proceedings were not held in accordance with law. Therefore, the enquiry proceedings as well as the order of removal must be quashed by a Writ in the nature of Certiorari and there will be a Writ in the nature of Mandamus directing the respondents not to give effect to the same. If the respondents are so minded, then they can proceed with the departmental proceedings from the stage when the charge-sheet had been given and the explanation received. I need scarcely indicate that this time it must be done on proper evidence. The Rule is made absolute. There will be no order as to costs.