I.N. Modi, J.
1. This is a civil regular second appeal by the plaintiff Ramlal in a suit for declaration which has been dismissed by both courts below.
2. The material facts leading up to this appeal may be shortly stated as follows. The plaintiff was admittedly a Watchman in the service of the Western Railway at the time with which we are concerned, that is, on the 24th February, 1953. He was posted at the Gangapur Railway Station of the said Railway. In the course of his duties on the 24th February, 1953, he acted as an escort (from the eastern side) to the 848 Up Goods Train leaving Agra East Bank for the Bayana Railway Station. This train left Idgah at 9.25 p.m. on that night, and wagon No. 18714 on this train was checked and found in order at the time of the departure of the train from Idgah Station. After the train had reached the Fatehpur Sikri Railway Station, which was the next stoppage for this train, it was found that the doors of the aforesaid wagon had been opened on the eastern side and there was a shortage of four packages, two of soap, one of Haldi and the fourth one of Gulal.
The plaintiff was suspected of having been negligent in the discharge of his duties as Watchman, and consequently he was served with a charge-sheet Ex. 6 on the I cth May, 1953. The plaintiff submitted his explanation Ex. A6 to this charge-sheet on the 4th May 1953 in which he mentioned a number of reasons why it was not possible for him to have detected the incident in question, and he maintained that he had been fully alert to his duties, and that the truth of his submission be verified, if necessary, from the Guard of the said train. It is remarkable that on the 26th May, 1953, the plaintiff submitted an application to the Watch and Ward Superintendent in which he tried to explain at length how the theft might have occurred and how he was not able to detect the same at the proper time and eventually concluded his application in the following manner:
"I have rendered my duty of an escort watchman in the best possible manner for which guard of the train and the Almighty God are the only witnesses.
Hope your honour would deal my case sympathetically due to aforesaid reasons and would award justice after making personal enquiries in my presence because charges levied are most serious and punishment proposed is a life and death question."
Curiously enough, no departmental inquiry seems to have been ordered or made, and on the 17th June, 1953, the plaintiff was given a second notice Ex. A-7 to the 'effect that his explanation had been considered and that he was found guilty of neglect of duty resulting in loss to the Railway administration, and, therefore, a provisional decision had been come to that he should be removed from service and therefore he should show cause why the proposed penalty be not imposed on him. The plaintiff did not submit any reply to this, and eventually he was removed from service by the order of the Watch and Ward Superintendent. dated the 23rd July, 1953.
The plaintiff then went up in appeal to the Chief Commercial Superintendent of the Western Railway which was dismissed by him, and the intimation of this dismissal was communicated to the plaintiff under a letter of the Watch and Ward Superintendent dated the T6th December, 1953. Thereafter the plaintiff having given the necessary statutory notices under S. 80 of the Code of Civil Procedure, instituted the suit, out of which this appeal arises, against the Union of India and the Watch and Ward Superintendent of the Western Railway in the court of the Munsiff Gangapur, on the 3rd September, 1954, in which he prayed for a declaration that the order of his dismissal passed by the Watch and Ward Superintendent on the 23rd July, 1953, was void and of no effect in law and for a further declaration that he still continued in the service of the said Railway. It may be pointed out at this place that the plaintiff need not. have impleaded the Watch and Ward Superintendent as a defendant in the suit.
3. The main grounds on which the plaintiff attacked the order of his removal and which are relevant for the purposes of the present appeal are (1) that the charge-sheet was vague and not specific, and that he being an illiterate person, it was not explained to him; and (2) that no inquiry into the allegations made against him had at all been made by the department and yet a second show cause notice had been given to him and he was eventually removed from service and thus no reasonable opportunity had been afforded to him for his defence.
4. The principal defendant which is the Union of India resisted the suit. It was of course admitted that the plaintiff was removed from service by the order of the Watch and Ward Superintendent dated the 23rd July, 1953; but it was contended that this order had been passed in accordance with the relevant rules contained ia the Indian Railway Establishment Code. It was further contended in this connection that there was no truth in the allegation of the plaintiff that the charge levelled against him was vague or not specific or that he had not fully understock it. The only other relevant contention which it is necessary to mention in this behalf, out of those contained in this defendant's written statement, is that there was no justification for the complaint of the plaintiff that reasonable opportunity had not been afforded to him for his defence in connection with the theft of the goods to which reference has been made above, as according to the submission of the defendant, no such inquiry was necessary at all.
5. Both the trial, court and the court of first appeal dismissed the plaintiff's suit. Cease-quently, he has come up to this Court is second appeal.
6. The principal question which arises for decision in this appeal in the circumstances mentioned above was and is whether the plaintiff did have a reasonable or adequate opportunity fer his defence against the charge which had been levelled against him. Indeed learned counsel for the Union of India has admitted that no formal departmental inquiry was made into the conduct of the plaintiff after a charge-sheet had been served on him on the nth May, 1953, in connection with the incident of the 24th February, 1953. His submission, however, is that such an inquiry was not called for in the present case because, firstly, the plaintiff in his reply to the charge-sheet dated the 14th May, 1953, did not clearly specify that he wanted to be heard in person, and, secondly, that from the various replies filed by the plaintiff, both before and after the charge, he had tendered an unconditional apology for his alleged default, and, thirdly, that the plaintiff had also not cared to submit any reply to the second notice to show cause why the punishment of removal be net inflicted upon him, it having been held that the charge of neglect had been fully established against him; and, lastly, that no inquiry was at all necessary in this case having regard to the rules applicable to it. My attention was drawn in this connection to rule 1707 of the Indian Railway Establishment Code read with rule 1709 thereof, which taken together lay down the procedure which is to be followed for holding an inquiry against a Railway servant regarding an offence, the maximum penalty for which is removal.
The relevant portions of these rules are as follows :
"1707 (a) A charge-sheet shall be presented to the railway servant detailing the charge or charges against him and calling upon him to show cause why he should not be dismissed or removed from service ......... He shall be required to submit a written explanation by a fixed date, which shall ordinarily allow him an interval of seven clear days from the date he receives the charge-sheet. If the railway servant is illiterate or semi-liferate the charge-sheet shall be read out and explained to him by a Gazetted Officer or a selected senior non-gazetted railway servant, who shall record the railway servant's explanation.
(b) The charge-sheet with the explanation furnished by the railway servant shall be considered by the officer competent under these rules to pass an order of dismissal who, unless he takes steps for holding a departmental inquiry, shall thereupon pass such orders as he thinks fit.
(c) If the railway servant asks to be heard in person or if the officer competent to pass an order of dismissal considers that the railway servant should be examined in person, he shall cause a departmental inquiry to be held. The railway servant, if he so desires, may be accompanied by another railway servant and the office or the committee of inquiry shall give the railway servant all reasonable facilities for the conduct of his defence including the cross-examination of witnesses.
(d) At such an inquiry a definite charge in writing shall be framed and explained to the railway servant in respect of each offence which has not been admitted by him, and the evidence in support of it, as well as his defence, along with any evidence which he may, adduce in defence, shall be recorded in his presence.
Provided that for special reasons to be recorded in writing, the officer or the committee of inquiry may refuse to call any witness suggested by the railway servant and may decide that the evidence of any witness should be taken and recorded otherwise than in the presence of the railway servant.
(e) The result of the departmental inquiry, with the recommendation of the officer or the committee holding the inquiry, shall be placed before the officer competent under the rules in this section to pass an order of dismissal, who shall thereupon pass such orders as he thinks fit.
1709, (a) Subject to the provisions of Clause (c). below, when a Railway Servant who has completed seven years' continuous service is charged with an offence meriting removal from the service under Rule 1708 the procedure outlined in Rule 1707 shall be applied; provided that the officer competent to pass the order of discharge may dispense with the departmental inquiry and make an inquiry in any manner deemed proper by him, recording his considered opinion before passing the order of discharge. Where a departmental inquiry is dispensed with and if thereafter the railway servant asks to be heard in person, the officer competent to pass the order of discharge shall grant the railway servant a personal interview at which the former may be accompanied by another railway servant.
I propose to take up the last contention first.
7. The question which thus arises for consideration is whether, if at all, a departmental inquiry is or is not necessary in a case like the present where the person at fault is sought to be removed from service as a matter of punishment. It is admitted that the plaintiff had more than seven years' service to his credit at the date he was charge-sheeted. Nevertheless, the plea was taken up in the written statement that, obviously under the proviso to rule 1709, that even in this class of case, the officer competent to pass the order of removal could have dispensed with the regular departmental inquiry under Rule 1707, and it was open to him to make an inquiry in any manner deemed proper by him and record his considered opinion before passing the order of dis-charge, and, therefore, no formal departmental inquiry was at all necessary in the present qase.
8. Now the answer to this contention seems to me to be two-fold. In the first place, there is. nothing on this record to show that the officer competent to pass the order of removal had consciously dispensed with the departmental inquiry in this case; nor there is anything to show that he had recorded any considered opinion why such an inquiry should be dispensed with. Therefore, I this is not a case which falls within the proviso to Rule 1709. In the second place, a rule like this seeing to me to be clearly contrary to the safeguards contained in Article 311(2) of the Constitution which lays down that no person falling within Clause (1) of Article 311 (and it is not disputed that the plaintifE is such a person) shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him; and the utter lack of a departmental inquiry as provided in the proviso cannot possibly satisfy the mandatory requirements of Clause (2) of Article 311 of the Constitution. If, therefore, a: Government servant has a right to have a reasonable opportunity of showing cause against the action proposed to be taken against him within the meaning of that clause, no rule can override that constitutional provision. And hi so far as Rule 1709 attempts to do so, it must be held to be ultra vires and unconstitutional: See Choudhury v. Union of India, AIR 1956 Cal 662 in this connection. In this connection it is interesting to note in passing that Rule 1709 as it existed at the time with which we are concerned has since been amended, and the proviso according to which no formal inquiry need be held in the case of persons who are sought to be removed from service has been deleted. Therefore, there can be no escape from the conclusion that the requirement of a departmental inquiry into the conduct of a person who is desired to be removed from service for an alleged default meriting such punishment cannot possibly be dispensed with.
9. This brings us to the next question whether the inquiry in the present case was rendered unnecessary either because the plaintifE had tendered an unconditional apology to the officer concerned or because he should be deemed to have waived such an inquiry because in his reply to the charge-sheet he had not made a clear request that he wanted to be heard in person. If the finding turns out to be that the holding of a departmental inquiry could not be dispensed with on the score of any of the considerations mentioned above, then it will have to be held that an inquiry was inevitably called for, and it would then follow as a corollary therefrom that the failure to hold an inquiry was an infirmity in the plaintiff's order of removal, which goes to the very root of it and renders it void and inoperative in law.
10. Taking up the question of "unconditional apology," learned counsel placed his reliance on Meghraj v. State, (S) AIR 1956 Raj 28. It was held in that case that when a Government servant in a departmental inquiry tenders an unqualified apology, there is no necessity of holding an oral inquiry, as contemplated by Rule 16 of the Kajasthan Civil Services (Classification, Control and Appeal) Rules, 1950. It was pointed out that a Government Servant cannot submit an unconditional apology and at the same time say that he still maintains a demand for oral inquiry into the allegations made against him. There need be no quarrel with the proposition laid down in the case cited above. But the primary question which arises for consideration in this connection is whether it could be fairly postulated in this case that the plaintiff had tendered an unconditional apology and could be deemed thereby to have waived any inquiry against him.
11. I have been taken through all the relevant documents by learned counsel in this regard. The first is the plaintiff's statement Ex. A-16 in which although he stated that he was alert on duty and he could not say how the theft had escaped his notice, he begged for pardon. This statement was given by the plaintiff to Kanhiyalal, Inspector of Watch and Ward in answer to a question that he had not been alert on duty, and, that if he had been, the theft would not have escaped his notice. My attention was next drawn in this connection to the plaintiff's reply to the charge-sheet dated the 14th May, 1953. It may be noted that, in this reply, the plaintiff pointed out in detail the difficulties of a watchman escorting a train at night in detecting a pre-planned theft of goods carried by rail on the track in question. He then pointed out that he had eleven years' service to his credit and that this was the first such occurrence during the course of his service for which he was "very very sorry".
He then submitted that under the circumstances his statement be verified from the guard of the train in question if necessary. Having said all this, he ended up by praying that his case be considered sympathetically and that he hoped that he would be saved "this time from my ill fated occurrence", meaning thereby, in all probability, that no action should be taken against him. I have read all this material with every possible care, and regret to have to say that I am far from satisfied that whatever the plaintiff mentioned therein could be fairly treated as an 'unconditional apology'. The attitude of the plaintiff, properly considered, seems to have been one of a person who was anxious to explain how it was not possible for him to detect the theft which had undoubtedly been committed under the given circumstances, and that being so he prayed that be be excused and that no action be taken against him. It is, one tiling to politely deny a charge and beg I for pardon. It is quite another to unreservedly own one's fault and throw oneself at the mercy of the superior officer concerned. Be that as it may, I am unable to hold that, in saying what the plaintiff did, he offered a conditional apology to his officer and thereby he had waived all inquiry into his conduct.
12. I feel greatly fortified in coming to this conclusion because of the application filed by the plaintiff on the 26th May, 1953, (the charge-sheet having been served on him on the nth May, 1953) to which I have drawn attention above, and in which he again took pains to point out the difficulties in which he was called upon to work; but at the same time he unequivocally submitted that justice would be awarded to him
"after making personal enquiries in ray presence because charges levied are most serious and punishment proposed is a life and death question."
Can it bo said, in fairness, in circumstances like these, that the plaintiff had unreservedly admitted his guilt or that he had offered an unconditional apology for his alleged default? An emphatic 'no' is my answer to this question. I have, therefore, no hesitation in holding, in disagreement with the learned Senior Civil Judge, that by no means the plaintiff had admitted his guilt or had offered an unconditional apology regarding it and thereby was himself responsible for waiving all inquiry into his conduct.
Reference may be made at this place to a decision of their Lordships of the Supreme Court in Jagdish Prasad v. State of M. B., AIR 1961 SC 1070. That was a case in which the appellant was furnished with a charge-sheet on the basis of alleged admissions made by him in the course of an inquiry directed against some other Government servant in connection with the commission of a certain offence. The result of that inquiry was that the appellant was absolved from any complicity in the commission of the offence. In spite of that, he was removed from service on the strength of the alleged admissions without holding a formal inquiry as required by the Service Rules. It was held by their Lordships that as the statements made by the appellant did not amount to a clear or unambiguous admission of his guilt, the failure to hold a formal inquiry constituted an infirmity in the order of dismissal passed against him. Their Lordships further observed that
"under Article 311(2) of the Constitution, he was entitled to have a reasonable opportunity of meeting the charge framed against him, and in the present case, before the show-cause notice was served on him, he has had no opportunity at all to meet the charge"
and therefore the requirements of Article 311(2) were not satisfied.
Their Lordships further pointed out that in the absence of any such inquiry, it would hardly be fair to strain facts against the appellant and to hold that in view of the admissions made by him the inquiry would serve no useful purpose. To use the words of their Lordships in this case, if I may respectfully do so, it would be nothing but an undue straining of the language to hold that the plaintiff had in this case admitted his guilt or offered an unconditional apology even though, as I have pointed out above, he had no intention whatsoever to own his guilt, and all that he wanted to achieve by the civility of language that he employed towards his officer was that no action should be taken against him in view of the circumstances to which he had made a pointed reference.
13. Allied with this question is the other one whether the departmental authorities were justified in aot holding any inquiry into the plaintiff's guilt because he had not asked to be heard in person in his reply to the charge-sheet submitted on the 14th May 1953. It is true that in that reply the plaintiff had not in so many words said that be wanted a personal hearing or an oral inquiry. But at the same time, (as I have already pointed out) on the 26th May, 1953, the plaintiff had made the application, the gist of which I have already summarised above, and from which it is impossible to draw any other conclusion than the one that if the authorities were not prepared to accept his explanation at its face value, then he demanded an inquiry into his conduct. I find it very difficult in these circumstances to hold that an inquiry could have been dispensed with in this case because of the conduct which is attributed to tke plaintiff in having submitted the kind of reply to the charge-sheet which he did, and I have no hesitation in holding that the view which the learned Senior Civil Judge took of the plaintiff's supposed lapse is altogether wrong and unsustainable in law or in common sense.
14. The position, therefore, is that the plaintiff had demanded an inquiry. But, all that was done thereafter was that on the 17th June, 1953, a notice was administered to him that his explanation had been considered and that he had been found guilty of neglect, and that he should show cause why the punishment of removal which was provisionally considered to be called for in the circumstances of the case be not inflicted on him. It is true that the plaintiff did not give any reply to this notice, or, at any rate, there is nothing on the record to show that he gave any. The position, however remains that no inquiry was at all made into the plaintiff's alleged guilt. No witness was examined on the side of the department, and, therefore, no question of cross-examining such witnesses could possibly arise. It seems that the authority concerned thought that nothing more was required to be done after the plaintiff had been afforded an opportunity of submitting his explanation, and such explanation had been found by him to be unsatisfactory for reasons best known to him. But this was an entirely wrong view of the matter. As pointed out by their Lordships of the Supreme Court in Jagdish Prasad's case, AIR 1961 SC 1070 (Supra), the departmental inquiry in a case of this type which is fraught with grave consequences to the person sought to be proceeded against is not an empty formality but it is a serious proceeding intended to give the officer concerned a chance to meet the charge and to prove his innocence; and to imagine that in view of the admissions made by him the inquiry would have served no useful purpose would be a matter of speculation which would be wholly out of place in dealing with cases of orders passed against public servants terminating their services.
15. In view of the foregoing discussion, I am definitely of the opinion that the requirements of Article 311(2) of the Constitution were not satisfied in this case inasmuch as it cannot be predicated of it that the plaintiff had been given a reasonable and proper opportunity of defending himself. As I understand the matter, such an opportunity does necessarily involve that some sort of evidence, oral or documentary, should have been in the first instance led against the delinquent servant so that he knows on what evidence the charge against him is sought to be substantiated and then it would be for him to lead evidence on his own behalf to meet that charge. But where no evidence whatsoever has been led on behalf of the prosecuting agency, it would be hardly necessary for the Government servant concerned to lead any evidence or to think of doing so to meet the charge which had not been substantiated against him. It must follow as a corollary that the order of the Watch and Ward, Superintendent removing the plaintiff must be held to be void and inoperative in law.
16. The next question is, what should be the precise form of declaration which this Court should grant to the plaintiff. It has been brought to my notice that the plaintiff having regard to the date of birth given by him in his service-sheet Ex. A-2 reached his superannuation age on the I2th July, 1962. That being so, it would be hardly proper for this Court to grant him a declaration that he continues in service upto this date. It may be recollected in this connection that this suit was filed in the year 1954, and it is very much to be regretted that, by the time it comes to be finally disposed of, the plaintiff has reached the age of superannuation.
Learned counsel for the defendant Union made an endeavour to persuade the Court to hold that in the circumstances no declaration whatsoever should be granted to the plaintiff. I have given this matter my careful and anxious consideration and feel that it will be scarcely just and proper to refuse all relief to the plaintiff simply because his suit has somehow dragged on in the courts for all this length of time, for which he cannot be possibly held blameworthy. I am, therefore, unable to agree with the submission of learned counsel that even though this Court may not be able to grant a declaration that the plaintiff be deemed to have continued in service until this date, a limited declaration, to the extent to which it is possible for this Court to grant one should be denied to him. Taking all the circumstances into consideration, therefore, I think that the proper declaration to grant in a case of this type would be that the order by which the plaintiff was removed from service was illegal, void and inoperative in law, and that he should be deemed to remain in service at the date of the institution of the suit.
17. The only other thing that I wish to add is that this decision will not stand in the way of the defendant making a proper inquiry into the conduct of the plaintiff if it still considers it necessary. It may be made clear that the plaintiff did not file this suit for recovery of arrears of salary, and, therefore, it is not necessary for this Court to say anything in this regard. The matter has to be left open to be decided in accordance with the rules under the subject. I may make it further clear that, so far as the charge itself is concerned, although it has been complained on behalf of the plaintiff that it was not sufficiently clear or specific, I am not disposed to hold that any serious fault can be found with it. The plaintiff also certainly knew what the charge was and that is rendered absolutely clear by the manner in which he dealt with it in his various replies to the authorities concerned. That being so, if a fresh inquiry is sought to be instituted against the plaintiff, it would be enough if it is commenced from that stage afterwards.
18. The result is that I partly allow this appeal, modify the judgments and decrees of the courts below and decree the plaintiff's suit against the Union of India to the extent specified above. The suit will stand dismissed against the other defendant. Having regard to all the circumstances of the case, I would allow three-fourths of the entire costs incurred by the plaintiff to him in all the courts.