Civil Appeal No 2613 of 1983
From the Judgment and order dated 19 11 82 of Allahabad High Court in Civil Misc
Writ No 8287 of 1982
RK Garg SN Singh and DK Garg for the appellant
PR Mridul Miss A Subhashini RN Poddar CV Subba Rao and AK Ganguli for the respondents
The judgment of the Court was delivered by CHANDRACHUD CJ
The appellant was working as a senior clerk in the office of the Chief Commercial Superintendent Northern Railway Varanasi
On May 22 1982 the Senior Commercial officer wrote a letter to him calling upon him to offer his explanation in regard to 12 charges of gross indiscipline
The appellant submitted his explanation to the charges by his reply dated June 9 1982
On the very next day the Deputy Chief Commercial Superintendent served a second notice upon the appellant saying that the explanation offered by him was not convincing but that another chance was being given to him to offer his explanation regarding the specific charges which were conveyed to him by the letter of May 22 1982
By this letter the appellant was also called upon to submit his explanation within three days as to why deterrent disciplinary action should not be taken against him
The appellant submitted his further explanation on June 14 1982 but on the very next day the Deputy Chief Commercial Superintendent passed an order dismissing him from service on the ground that he was not fit to be retained in service
The appellant filed a writ petition in the High Court of Allahabad challenging the order of dismissal on various grounds
The Union of India the Senior Commercial officer and the Deputy Chief Commercial Superintendent were impleaded to that petition 305 as Respondents 1 to 3
That writ petition having been dismissed by the High Court the appellant has filed this appeal by special leave
The order dismissing the appellant from service was passed by Respondent 3 under Rule 14ii of the Railway Servants Discipline and Appeal Rules 1968 read with Proviso b to Article 3112 of the Constitution
Respondent 3 recorded his reasons in writing for coming to the conclusion that it was not reasonably practicable to hold an inquiry into the conduct of the appellant in the manner provided by the relevant rules and thereafter he proceeded to pass the order of dismissal without holding any inquiry
Quite some time was taken by the appellant s counsel in arguing upon the true meaning and intendment of the Discipline and Appeal Rules 1968 and in urging that the appellant should have been afforded an opportunity of being heard on the question as to whether it was or was not reasonably practicable to hold an inquiry into the charges levelled against him
It was also urged by the learned counsel that the fact that it was not reasonably practicable to hold a full fledged inquiry as contemplated by the Rules did not justify the non holding of any inquiry at all
We do not propose to enter into the merits of these contentions since the appellant is entitled to succeed on another ground
The letter dated May 22 1982 which contains accusations of gross misconduct against the appellant enumerates 12 charges out of which Charges Nos
2 to 7 and 11 refer to the appellant s misconduct in relation to Respondent 3
For example the second charge alleges that the appellant entered the office of Respondent 3 and challenged him in an offensive and derogatory language
Charge No 3 says that the appellant was in the habit of forcing himself on Respondent 3 two or three times every day with petty complaints
Charge No 4 alleges that the appellant stormed into the office of Respondent 3 and shouted at him using foul words
Charges 5 6 and 7 contain similar allegations
The allegation contained in Charge No 11 is to the effect that behaving as a leader of goondas the appellant hired the services of other goondas and created security problems for Respondent 3 and the members of his family
It is obvious that if an inquiry were to be held into the charges framed against the appellant the principal witness for the Department would have been Respondent 3 himself as the main accuser and the target of appellant s misconduct
It is surprising in this context that the 306 explanation dated June 9 1982 which was furnished by the appellant to the letter of accusation dated May 22 1982 was considered on its merits by Respondent 3 himself
Thereby the accuser became the judge
The letter written to the appellant by Respondent 3 on June 10 1982 says I have carefully gone through your defence explanation dated 9682
to the charges given in this office letter of even No dated 22582 and the same is not convincing at all
Before taking any action under D  AR I would like to offer you another chance for giving your explanation to the specific charges conveyed to you vide this office letter dated 22582
Please submit your defence explanation within three days as to why a deterrent disciplinary action should not be taken against you
The appellant submitted his further explanation which also was considered by Respondent 3 himself
The order of dismissal dated June 15 1982 which was issued by Respondent 3 recites that he was fully satisfied that it was not reasonably practicable to hold an inquiry into the appellant s conduct as provided by the Rules and that he had come to the conclusion that the appellant was not fit to be retained in service and had therefore to be dismissed
Evidently Respondent 3 assessed the weight of his own accusations against the appellant and passed a judgment which is one of the easiest to pass namely that he himself was a truthful person and the appellant a liar
In doing this Respondent 3 violated a fundamental principle of natural justice
The main thrust of the charges against the appellant related to his conduct qua Respondent 3
Therefore it was not open to the latter to sit in judgment over the explanation offered by the appellant and decide that the explanation was untrue
No person can be a judge in his own cause and no witness can certify that his own testimony is true
Any one who has a personal stake in an inquiry must keep himself aloof from the conduct of the inquiry
The order of dismissal passed against the appellant stands vitiated for the simple reason that the issue as to who between th 307 appellant and Respondent 3 was speaking the truth was decided by Respondent 3 himself
In The State of Uttar Pradesh vs Mohammad Nooh 1 SR Das CJ observed while speaking for the majority that the roles of a judge and a witness cannot be played by one and the same person and that it is futile to expect when those roles are combined that the judge can hold the scales of justice even
We may borrow the language of Das CJ and record a finding on the facts of the case before us that the illegality touching the proceedings which ended in the dismissal of the appellant is so patent and loudly obtrusive that it leaves an indelible stamp of infirmity on the decision of Respondent 3
Mr Mridul appearing on behalf of the respondent contended  that though this may be the true legal position the appellant does not deserve the assistance of the Court since he was habitually guilty of acts subversive of discipline
This argument does not impress us
In the first place to hold the appellant guilty of habitual acts of indiscipline is to assume something which remains unproved
Secondly the illegality from which the order of dismissal passed by Respondent 3 suffers is of a character so grave and fundamental that the alleged habitual misbehaviour on the part of the appellant cannot cure or condone it
In the result we allow the appeal and set aside the judgment of the High Court
The order dated June 15 1982 whereby the appellant was dismissed from service is set aside
In order however to avoid needless complications in working out the mutual rights and obligations of the parties we direct that the appellant who is due to retire within about six months shall be treated as having retired from service with effect from April 1 1984
He shall be paid the arrears of his salary due until March 31 1984 on the basis of the salary last drawn by him on June 15 1982 without taking into account the increments which he might have earned subsequent to that date
The provident fund and gratuity shall also be paid to the appellant as calculated in accordance with the rules as if no order of dismissal was passed against him
The appellant may 308 not and shall not rejoin his duties
He will be treated as on leave between now and March 31 1984
The arrears of salary until March 31 1984 shall be paid to the appellant on the basis indicated above on or before that date and in any event not later than May 1 1984
The provident fund and gratuity shall be paid to him within a period of two months from today
Mr Garg made a statement before us on behalf of his client the appellant that the appellant is neither in occupation of any official residential accommodation nor is he in possession of the garage which is referred to in Charge No 6 in the letter of May 22 1982
The appeal will stand disposed of in terms of the above order
Respondent 1 the Union of India shall pay to the appellant a sum of Rs 1000 Rupees one thousand as his costs
SR Appeal allowed


Summary:
The appellant was working as a senior clerk in the office of the chief Commercial Superintendent
Northern Railway Varanasi on May 22 1982 the senior Commercial officer wrote a letter to him calling upon him to offer his explanation in regard to twelve charges of gross indiscipline mostly relating to the Deputy Chief Commercial Superintendent
The appellant submitted his explanation to the charges by his reply dated June 9 1982
On the very next day the Deputy Chief Commercial Superintendent served a second notice upon the appellant saying that the explanation offered by him was not convincing but that another chance was being given to him to offer his explanation regarding the specific charges which were conveyed to him earlier
By this letter the appellant was also called upon to submit his explanation within three days  as to why deterrent disciplinary action should not be taken against him
The appellant submitted his further explanation on June 14 1982 but on the very next day the Deputy Chief Commercial Superintendent passed an order dismissing him from service on the ground that he was not fit to be retained in service
The appellant filed a writ petition in the High Court of Allahabad challenging the order of dismissal on various grounds
The writ petition was dismissed and hence the appeal special leave of the Court
Allowing the appeal the Court
 HELD 1 1
The order of dismissal passed against the appellant stands vitiated for the simple reason that the issue as to who between the appellant and Respondent No 3 the dismissing authority was speaking the truth was decided by Respondent No 3
The main thrust of the charges against the appellant related to his conduct qua Respondent 3
Therefore it was not open to the latter to sit in Judgment over the explanation offered by the appellant and decided that the explanation was untrue
No person can be a judge in his own 303 cause and no witness can certify that his own testimony is true
Any one who has a personal stake in an enquiry must keep himself aloof from the conduct of the inquiry
306 F H 1 2
On the facts of the case the illegality touching the proceedings which ended in the dismissal of the appellant is so patent and loudly obtrusive that it leaves an indelible stamp of infirmity on the decision of Respondent No 3
307 B C 2
From the charges 2 to 7 and 11 it is obvious that if an enquiry were to be held into the charges framed against the appellant the principal witness for the Department would have been Respondent No 3 the dismissing authority himself as the main accuser and the target of appellant s misconduct
Surprisingly the explanation dated June 9 1982 of the appellant to the letter of accusation dated May 221982 was considered on its merits by Respondent himself
Thereby the accuser became the Judge
305 G H 306 A Not only that the further explanation submitted by the appellant was considered by Respondent No 3 himself
The order of dismissal dated June 15 1962 which was issued by Respondent No 3 recites that he was fully satisfied that it was not reasonably practicable to hold an inquiry into the appellant s conduct as provided by the Rules and that he had come to the conclusion that the appellant was not fit to be retained in service and had therefore to be dismissed Evidently Respondent 3 assessed the weight of his own accusations against the appellant and passed a judgment which is one of the easiest to pass namely that he himself was truthful person and the appellant a liar
In doing this Respondent No 3 violated a fundamental principle of natural justice
305 B C 306 F The State of UP vs Mohammad Nooh   referred to
The contention that inspite of the above legal position the appellant does not deserve the assistance of the court since he was habitually guilty of acts subversive of discipline cannot be accepted
In the first place to hold the appellant guilty of habitual acts of indiscipline is to assume something which remains unproved Secondly the illegality from which the order of dismissal passed by Respondent No 3 suffers is of a character so grave and fundamental that the alleged habitual misbehaviour on the part of the appellant cannot cure or condone it
307 C E 4
The aviod needless complications in working out the mutual rights and obligations of the parties the court directed i The appellant who is due to retire from service shall be treated as having retired from service with effect from April 1 1984 ii He shall be paid arrears of salary due until March 31 1984 on the basis of salary last drawn by him on June 15 1982 without taking into account the increments which he might have earned subsequent to that date 304 iii The Provident Fund and gratuity shall also be paid to the appellant as calculated in accordance with the rules as if no order of dismissal was passed against him and iv he may not and shall not rejoin his duties and he will be treated as on leave between 23rd March 1984 and 31st March 1984
307 F H 308 A B