GOPINATH SINGH Vs. DIVISIONAL SUPERINTENDENT EASTERN RLY

JUDGEMENT

(1.) In Miscellaneous Judicial Case No. 982 of 1959 the petitioner, Sri Gopinath Singh was appointed to the post of 2nd class fireman in the year 1955, and was working as such in the Eastern Railway. It appears that on the 20th of March, 1958, a charge sheet was served upon him alleging that he dropped coal from Engine No. 1493 CBT at Patna Junction station between G P.M. and 4 P.M. while On duty, and the coal so dropped from the Engine was. taken away by Outsiders. The petitioner showed cause before the Assistant Mechanical Engineer, who held an inquiry into the matter. In the course of the inquiry three witnesses were examined on behalf of the Railway Department to prove the charge against the petitioner. Two of these witnesses, Mahabir Ram and Mohan Choudhary were examined in presence of the petitioner, who was furnished an opportunity to cross examine them; but the third witness, Sri Murari Prasad, Assistant Sub-Inspector of Police special Branch of the Criminal Investigation Department, was not examined in presence of the petitioner. It is alleged that his evidence was taken behind the back of the petitioner and the finding of the Assistant Mechanical Engineer, with regard to the guilt of the petitioner was based upon the evidence given by all the three witnesses. The submission on behalf of the petitioner is that the order of dismissal dated the 6lh March, 1959, is illegal and ultra vires because the finding of the Assistant Mechanical Engineer, is liased upon the evidence of Sri Murari Prasad in violation of rule 1707(d) of the Discipline and Appeal Rules at Cage 180 of the Indian Railway Establishment Code, volume I, 1951 edition. The petitioner has accordingly moved the High Court for grant of a writ in the nature of certiorari under Article 226 of the Constitution for quashing the order of dismissal dated the 6th March, 1959, and also the appellate Order of the Divisional Superintendent, Eastern Railway, Dinapore, dated the 13th August, 1959.

(2.) In Miscellaneous Judicial Case No. 983 of 1959 the material facts are of similar character, and the question of law arising for determinaton is the same.

(3.) The main argument put forward on behalf of the petitioners in both these applications is that the evidence of Sri Murari Prasad, Assistant Sub Inspector of Police, has not been taken in presence of the petitioners in the departmental inquiry, and no special reason has been recorded in writing by the committee of Inquiry for taking the evidence of the witness in the absence of the petitioner. The argument is based upon R. I707(d) which is in the following terms :