JUDGMENT [ENTITY], J.
1. These are two applications, one by [ENTITY] and the other by [ENTITY], both permanent employees of the Railway Administration, under [SECTION] of the [ACT], for a writ in the nature of certiorari, to call up and quash the departmental proceedings as well as the proposed punishment of dismissal made against them. As they involve cognate questions of law and facts, both these applications have been heard together and will be governed by one judgment. The facts are these :
2. On the relevant date, the two petitioners, [ENTITY] and [ENTITY], were posted, respectively, as Relieving Transportation Assistant and Driver, grade B, at the Moghulsarai station on the Eastern Railway. The former was the President and the latter Vice President of the branch office of the Eastern Railwaymen's Union at Moghulsarai in the year 1956. On the 1[SECTION]th and 18th March, 1956, a serious incident culminating in a strike of the loco staff took place at Moghulsarai. At about 23.[SECTION] hours on 1[SECTION]-3-1956 [ENTITY], Shunter, and [ENTITY], of Loco shed, Moghulsarai, were caught by the Officers of the Railway Protection Force while they were engaged in removing Brass Bearings from the railway wagon.
The said officers arrested them and proceeded from the loco shed to the Railway Protection Force office. In the meantime [ENTITY], brother of [ENTITY], who was on duty at the Inspection Pit attempted to release them by force and, therefore, he too was arrested. On receiving information of their arrest, [ENTITY], Assistant Loco Foreman, requested Sri [ENTITY], the Railway Crime Inspector, for their release, but to no effect. Thereupon, at 2.15 hours on 18-3-1956 the Loco Foreman asked [ENTITY] on the phone to contact Sri [ENTITY] and obtain their release on bail. He also asked [ENTITY] to apprise Sri [ENTITY] of the tense situation in the loco shed. [ENTITY]'s intervention proved unavailing. It is said that [ENTITY] was subsequently released.
This resulted in further intensification of the agitation and petitioner [ENTITY] and [ENTITY], Treasurer of the Union, were informed of the situation at 2.45 hours and at their request the Loco Foreman came to the loco shed at 3.15 hours and all three contacted immediately Sri [ENTITY], Inspector, about their release, but to no avail. It is alleged that Sri [ENTITY] also indulged in some abusive words with respect to the railway staff which further infuriated the mob.
At about 4.00 hours, petitioner [ENTITY] contacted Sri [ENTITY], Divisional Mechanical Engineer, Dinapur, on the phone and apprised him of the tensp situation prevailing at Moghulsarai and further requested him to try for their release. At about 5.30 hours the Loco Foreman sent a message to the Divisional Mechanical Engineer and also to the Deputy Controller and Power Controller, Dinapur, to the effect that due to the arrest of the Shunter and the Cleaner, the loco staff went on strike at about 4.50 hours, with the result that several Up and Down trains had been held up at the station and further that the workers were, however, peaceful. Mr. [ENTITY], reached Moghulsarai at about 9.00 hours, studied the situation and tried for release of the arrested persons. They were eventually released on bail by the Railway Magistrate at about 9.30 hours.
At about 10.00 hours Mr. [ENTITY], the then Divisional Superintendent, met the workers of the loco shed and asked them to join their duty at once on the threat of disciplinary action being taken against them. The workers resumed their duty at 14.00 hours on 18-3-1956 on the assurance given by him that there would be no victimisation. Mr. [ENTITY] and Mr. [ENTITY] remained at Moghulsarai till 14.00 hours and 15.00 hours, respectively, watching the situation there. The arrested persons were eventually tried and acquitted of the charge by the Railway-Magistrate on 6-5-195[SECTION].
3. On 18-3-1956, a Committee consisting of Sri [ENTITY], Divisional Mechanical Engineer, Sri [ENTITY], Divisional Operating Superintendent, Sri [ENTITY], Divisional Personnel Officer, and Sri [ENTITY], Assistant Security Officer, was constituted to ascertain the facts regarding the whole occurrence, and the said Committee conducted a fact-finding enquiry on 19-3-1956 at Moghuslarai and examined some witnesses, including the petitioners.
4. The Railway Administration subsequently decided to proceed departmentally against the two petitioners and several charges were levelled against them. On 26-9-1956 they were served with a copy of the charge-sheet and were called upon to explain why they shall not be dismissed from service. The charges against them are similar and may be reproduced below :
1. You are charged with the following offences or failures and you are hereby called upon to show cause why you should not be punished with the penalty specified in [SECTION] of the list below or punished with any of the lesser penalties specified in the said list. The facts and/or circumstances whereon the charges has/have been based are as related below.
2. You are allowed [SECTION] days from the date of receipt hereof to give your explanation. Any re-presentation that you make in this connection will be taken into consideration by the competent authority before passing orders.
3. When the maximum penalty specified in-[SECTION] or [SECTION] and the procedure outlined in paras SRC-1[SECTION]0[SECTION] and 1[SECTION]09 regarding disciplinary action against non-gazetted staff applies, you may while giving your written explanation to the Charge Sheet, state whether you desire to be heard in person or by an agent.
CHARGES Serious misconduct in that on 18-3-56 you :
(i) instigated the Loco staff of Moghalsarai Shed to stop work and also prevented the issue of trickets to staff who were willing to come and take up duty.
(ii) prevented Engine of [SECTION]2 Dn. from leaving the Shed.
(iii) instigated the said Loco staff to obstruct platform lines at Moghulsarai station and thereby prevented Sri [ENTITY] Driver, who was willing to work 6r Up, through to Allahabad, from leaving Moghalsarai station with his train.
(iv) You are thus held responsible for the illegal stoppage of work commencing at 4.50 hrs. on the date and at the place aforesaid, which resulted in :
(a) Serious detention to 61 Up, [SECTION]3 Up and 6 Up Mails ex Moghalsarai on 18-3-56.
(b) Stabling of 8 goods trains on the Gaya-Moghulsaraj Section and 2 goods trains on the Dinapore-Moghalsaraj Section.
(c) Cancellation of 6 trains ex Moghalsaraj to Allahabad and 8 trains ex Moghalsarai to Lucknow.
Station-Dinapore. Divl. Optg. Superintendent.
List of Penalties.
1, 2, 3, 4, 5, 6,
[SECTION]. Dismissal from Service. They showed cause on 9-10-1956. They denied the charges and alleged that they had done nothing amounting to misconduct. On 13-11-1956 the Divisional Superintendent Dinapore constituted a Committee consisting of three senior officers, namely, Sri [ENTITY], Divisional Mechanical Engineer, Sri [ENTITY], Divisional Personnel Officer, and Sri [ENTITY], Divisional Operating Superintendent, to enquire into the charges alleged against them. I may state that Sri [ENTITY] was also a member of the fact-finding Committee stated above. The petitioners were directed to present themselves before the Enquiry Committee on 20-11-1956 and 21-11-1956. On their application, it was adjourned to 30-11-1956. The enquiry was actually held between 30-11-1956 and 29-1-195[SECTION] with breaks and witnesses were examined and cross-examined.
The petitioners submitted written defence arguments on 11-2-195[SECTION], which are Annexure L in one case and Annexure J in the other. The Committee submitted its report in due course. On 16-9-1958 Sri [ENTITY], on a consideration of the report and other connected papers and evidence, provisionally formed the opinion that the petitioners should be dismissed from service and, accordingly, served them with a notice to show cause why the proposed penalty of dismissal should not be inflicted upon them (vide Annexure K in one case and Annexure M in the other). On 20-9-1958, the petitioners addressed letters separately to the Divisional Superintendent, Dina-pore, demanding certain papers to enable them to show cause effectively against the punishment proposed to be meted out to them. It is alleged that the authorities failed to furnish them with copies of the necessary documents and, therefore, they submitted an incomplete reply to the notice to show cause on 26-9-1958 (see Annexure O in one case and Annexure M in another). Again, on 19-11-1958 the petitioners demanded certain papers which were refused.
5. The Divisional Superintendent has not yet disposed of the report of the Enquiry Committee and the final order punishing the petitioners, or exonerating them of the charges is still to be passed. It is at this stage that the petitioners have come forward with these writ petitions to quash the whole thing the charge-sheets and show cause notice, dated 26-9-1956, the orders dated 13-11-1956, constituting the Enquiry Committee and order dated 16-9-1958 calling upon them to show cause against the proposed punishment.
6. The case of the petitioners is that the entire proceedings against them are vitiated, because (1) the orders aforesaid are without jurisdiction; (2) the procedure and practice prescribed for conducting an enquiry was not followed; (3) the petitioners were not afforded reasonable opportunity to show cause against the action proposed to be taken against them, since they were not supplied the necessary papers; (4) Sri [ENTITY] was not competent to sit on the Enquiry Committee as he had prejudged the case, being a member of the earlier fact-finding Enquiry Committee and was further a witness to the entire occurrence and, therefore the entire findings of the Enquiry Committee are biased and unsustainable in law; (5) the principles of natural justice were not followed; and (6) the charge having been initiated by the Deputy General Manager, Calcutta Division, the Operating Superintendent being lower in rank could not deal with the matter and, therefore, the entire proceedings from the beginning to the end are void.
[SECTION]. The opposite party have shown cause. They allege that all the facts have not been correctly represented, and most of them are untrue and have been distorted. They have given their version of the incident and the part played by the petitioners, which, shorn of details, are substantially the same. According to them, the petitioners were entirely responsible for the dislocation of work at Moghulsaraj. Their case is that the petitioners came to the loco shed at about 2.45 hours on 18-3-1956 followed by [ENTITY], Loco Foreman. They went to the office of the Railway Security Force, and some discussion took place which was not cordial. Sri [ENTITY], Inspector, Railway Protection Force, did not indulge in abusive language, rather, according to the Loco Foreman, none of his words were offensive and justified the subsequent attitude of petitioner [ENTITY].
Petitioner [ENTITY] left the office of the Railway Protection Force Inspector with the remarks that he would take proper action and went back to the loco shed with the crowd. This occurred at about 4.30 hours and the workers stopped work from about 5.00 hours. On return from the office of the Railway Protection Force both the petitioners informed the loco workers that they had demanded unconditional release of the arrested staff and invited them to assemble outside the loco gate and hold a meeting. They informed the loco staff that no work was to be done unless their demand was fulfilled. Further, petitioner [ENTITY] went to the Assistant Loco Foreman on duty, [ENTITY], and raising both his hands up spoke in Hind : "[ENTITY]. Hamlog strike Kar Dia" (No wheels will move; we have gone on strike). In a similar emphatic vein, petitioner [ENTITY] told the Assistant Loco Foreman : "Hamne Strike Kar Dia".
Both the Loco Foreman and the Assistant Loco Foreman, [ENTITY] and [ENTITY], pointed out to them the misuse of their power in calling a hasty and illegal strike without notice, saying that it would lead to serious consequences. Thereupon, petitioner [ENTITY] told them that he was conscious of the consequences and he and his Union were prepared to face them. As a result of this, at 5.00 hours on 18-3-1956 the engines stopped going to the line and there was total stoppage of work in the loco shed at Moghul Sarai which resulted in serious detention of several trains, stabling of goods trains and cancellation of other trains. The strike was entirely due to the instigation caused by the petitioners. It is denied that certain papers were withheld from the petitioners. It is asserted that all the demands of the petitioners about production of papers were fully complied with, except the secret letters of the Deputy General Manager, which could not be supplied as they contained confidential instructions on departmental matters.
The enquiry was conducted in strict compliance with the procedure and practice and the allegations of malice were unfounded, and the petitioners were afforded all facilities for their defence and there was no denial of reasonable opportunity or natural justice to the petitioners. It is alleged that the constitution of the Enquiry Committee was perfectly legal and in accordance with the rules and instructions. It is emphatically denied that any of the officers of the Enquiry Committee had any prejudice or bias against the petitioners. The Divisional Operating Superintendent, and not the Deputy General Manager, initiated the charges and was fully competent to deal with these cases. It is further pleaded that the petitions are premature and not maintainable, as the proceedings are still pending and no final action against the petitioners had been taken.
8. At the time of hearing, the learned Government Advocate pressed three points in support of these petitioners. He first contended that Sri [ENTITY] was disqualified from sitting on the Enquiry Committee on the ground of bias which vitiated their report. Bias imputed to [ENTITY] is two-fold; first, he had witnessed the whole occurrence and, therefore, he cannot properly be a witness in any action, and at the same time sit in judgment to decide in that particular case Secondly, he was incapacitated from sitting because he, as a member of the earlier fact-finding Committee, prejudged his case and should not have been made a member of the Departmental Enquiry Committee. The validity of these contentions principally turns on the question of fact, and I may say at once that there is no foundation for the same. It will be incorrect to say that Sri. [ENTITY] was witness to the occurrence. It will be recalled that the arrest of the two railway employees was effected at about 23.[SECTION] hours on 1[SECTION]-3-1956.
The strike commenced at 5.00 hours on the following day, i.e., on 18-3-1956. All the important events took place before the commencement of the strike. The strikers resumed their duty at 14.00 hours. [ENTITY] arrived at Moghulsaraj at 9.00 hours. He cannot possibly be a witness to the entire incident. It is true that he had some casual talk with some of the workers, including the petitioners, and he had also watched the situation. The casual conversation and watching the situation will not convert him into a witness so as to disentitle him to take part in the enquiry that was conducted against the petitioners. In fact, nowhere any reference has been made either to what he had seen or what he had heard. This part of the argument, therefore, is wholly untenable.
9. It is true that [ENTITY] was a member of the fact-finding enquiry. This circumstance by itself will not incapacitate him from sitting on the Departmental Enquiry Committee. The nature, object and scope of both the enquiries were entirely different. The earlier Committee was concerned generally with the incident culminating in the strike by the loco staff, while the Departmental Enquiry Committee was to enquire into the allegations of misconduct against the petitioners. They were proceeded against for individual acts of omission and commission, independent of the part played by the other members of the loco staff. This is amply borne out by the charges framed against them.
It may be observed that in their defence written arguments no objection was taken to the participation of [ENTITY] in the Departmental Enquiry Committee on the ground of his sitting on the earlier fact-finding enquiry Committee, This allegation has been made for the first time in the present petition. It is no doubt generally alleged that he had prejudged the case, but there are no materials to substantiate that he had resolved to condemn the petitioners or that he had already judged the issue or that he had any preconceived notion or prejudice against them. No one imputed mala fides to him. The members of the Committee are senior railway officers, and the authority competent to inflict penalty on the petitioners should have the benefit of their wide experience. Therefore, in a case of this nature, mere participation of [ENTITY] in the earlier enquiry will not legally disqualify him to sit on the departmental enquiry against the petitioners, especially when there is no allegation, much less proof, that he was actuated by personal malice or bias against them.
10. Apart from the lack of factual basis for the contentions, I think, the petitioners are misconceived and premature. The authority has not yet finally imposed any punishment on the petitioners. The matter is pending consideration of the authority. The Enquiry Committee has submitted a report. Whether or not a writ of certiorari is available to quash the report of the Departmental Enquiry Committee on account of bias depends upon the nature and character of the Committee. If it is a judicial or quasi-judicial body, it is indisputable that a writ of certiorari will issue to quash the report, if it was vitiated on account of bias.
The principle is well settled and has been laid down in the clearest terms by the House of Lords in [PRECEDENT]. I cannot do better than reproduce their observations "My Lords, if there is one principle which forms an integral part of the English law, it is that every member of a body engaged in a judicial proceeding must be able to act judicially; and it has been held over and over again that, if a member of such a body is subject to a bias (whether financial or other) in favour of or against either party to the dispute or is in such a position that a bias must be assumed, he ought not to take part in the decision or even to sit upon the tribunal. This rule has been asserted, not only In the case of Courts of justice and other judicial tribunals, but in the case of authorities which, though in no sense to be called Courts, have to act as judges of the rights of others."
The important question is whether a Departmental Enquiry Committee is a judicial or quasi-judicial tribunal. I think, such a Committee is purely administrative body, and the subject-matter of the proceeding is also administrative, The Supreme Court had to examine the status of the Commissioner appointed to make an enquiry under the [ACT], in the case of Venkataraman v. Union of India, AIR 1954 SC 3[SECTION]5. The Supreme Court has observed as follows:
"As the law stands at present, the only purpose, for which an enquiry under Act 3[SECTION] of 1850 could be made, is to help the Government to come to a definite conclusion regarding the misbehaviour of a public servant and thus enable it to determine provisionally the punishment which should be imposed upon him, prior to giving him a reasonable opportunity of showing cause, as is required under [SECTION] of the [ACT]
A Commissioner appointed under this Act has no duty to investigate any offence which is punishable under the [ACT] or the [ACT] and he has absolutely no jurisdiction to do so. The subject-matter of investigation by him is the truth or otherwise of the imputation of misbehaviour made against a public servant and it is only as instance of misbehaviour that the several articles of charge are investigated, upon which disciplinary action might be taken by the Government if it so chooses. The mere fact that the word 'prosecution' has been used, would not make the proceeding before the Commissioner, one for prosecution of an offence.
As the Commissioner has to form his opinion upon legal evidence, he has been given the power to summon witnesses, administer oath to them and also to compel production of relevant documents. These may be some of the trappings of a judicial tribunal, but they cannot make the proceeding anything more than a mere fact finding enquiry. This is conclusively established by the provisions of [SECTION] and [SECTION] of the Act. At the close of the enquiry, the Commissioner has to submit a report to the Government regarding his finding on each one of the charges made. This is a mere expression of opinion and it lacks both finality and authoritativeness which are the essential tests of a judicial pronouncement.
The opinion is not even binding on the Government. Under [SECTION] of the Act, the Government can, after receipt of the report, call upon the Commissioner to take further evidence or give further explanation of his opinion. When Special Commissioners are appointed, their report could be referred to the court or other authority to which the officer concerned is subordinate for further advice and after taking the opinion of the different authorities and persons, the Government has to decide finally what action it should take."
This is the position of a Commissioner under the statute. The position of a committee or a tribunal appointed to conduct departmental enquiry in accordance with the [ACT] or the [ACT] is no better. The [ACT], as laid down by the Supreme Court in the aforesaid case, have no statutory force. This view was reiterated subsequently by the Supreme Court in [PRECEDENT], wherein they have said that these rules are only administrative rules. In Parshotam [ENTITY] Dhingra v. Union of India, 1958 SCR 828 : (AIR 1958 SC 36), the Supreme Court has laid down that the [ACT] contains administrative and not statutory rules. It has observed as follows:
"At the date of the commencement of the [ACT] the railway servants were governed by a separate set of rules collected in the two volumes of the [ACT]. These are similar to and are in pan materia with the [ACT]. [SECTION] prescribes eleven distinct penalties which may for good and sufficient reasons be imposed upon railway servants The scheme of the rules applicable to the railway servants was similar in substance. Thus [SECTION] and [SECTION] of the [ACT] substantially reproduce the provisions of [SECTION] and [SECTION] of the [ACT]."
Therefore, the Classification Rules as well as the rules embodied in the [ACT] are an administrative rules, and any committee appointed to enquire into the allegations of misconduct against civil servants cannot be regarded as a statutory body, but an administrative body. Recently, in [ENTITY] v. State of M.P., AIR 1959 SC 10[SECTION], following their previous decision in Province of Bombay v. Khushaldas S. Advani, AIR 1950 SC [SECTION]2, their Lordships of the Supreme Court laid down the law in the following terms:
"The writ of certiorari is a well Known ancient high prerogative writ that used to be issued by the Courts of the King's Bench to correct the errors of the inferior Courts strictly so called. Gradually the scope of these writs came to be enlarged so as to enable the Superior Courts to exercise control over various bodies which were not, strictly speaking, Courts at all but which were, by statute, vested with powers and duties that resembled those that were vested in the ordinary inferior Courts. The law is now well settled that a writ of certiorari will lie to control such a statutory body if it purports to act without jurisdiction or in excess of it or in violation of the principles of natural justice, or commits any error apparent on the face of the records, provided that, on a true construction of the statute creating such body, it can be said to be a quasi-judicial body entrusted with quasi-judicial functions. It is equally well settled that certiorari will not lie to correct the errors of a statutory body which is entrusted with purely administrative functions."
There is no difficulty so far. The difficulty arises when one has to distinguish between a judicial and quasi-judicial body on one hand and an administrative body on the other. The test to distinguish a judicial or quasi-judicial body from the administrative body was laid down by their Lordships of the Supreme Court in the aforesaid case of [ENTITY], AIR 1959 SC 10[SECTION] in the following terms:
"In 1950 SCR 621: AIR 1950 SC [SECTION]2 this Court has discussed at considerable length the nature of the two kinds of act, judicial and administrative, and has laid down certain tests for ascertaining whether the act of a statutory body is a quasi-judicial act or an administrative act. It will, therefore, suffice to refer to the celebrated definition of a quasi-judicial body given by [ENTITY] LJ., as he then was, in Rex v. Electricity Commissioners, 1924-1 KB 1[SECTION]1 and which now holds the field. It runs as follows:
'Whenever any body of persons having legal authority to determine questions affecting rights of subjects, and having the duty to act judicially act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs.' This definition was accepted as correct in [PRECEDENT] and many subsequent cases both in England and in this country. It will be noticed that this definition insists on three requisites each of which must be fulfilled in order that the act of the body may be quasi-judicial act, namely, that the body of persons (1) must have legal authority, (2) to determine questions affecting the rights of parties, and (3) must have the duty to act judicially. Since a writ of certiorari can be issued only to correct the errors of a Court or a quasi-judicial body, it would follow that the real and determining test for ascertaining whether an act authorised by a statute is a quasi-judicial act or an administrative act is whether the statute has expressly or impliedly imposed upon the statutory body the duty to act judicially as required by the third condition in the definititon given by [ENTITY] L.J. The principles deducible from the various judicial decisions considered by this Court in 1950 SCR 621 at p. [SECTION]25: (AIR 1950 SC [SECTION]2 at p. 260) were thus formulated, namely:
'(i) that if a statute empowers an authority, not being a Court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act; and
(ii) that if a statutory authority has power to do any act which will prejudicially affect the subject then, although there are not two arties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially."
Applying these principles to the facts of the present case, it will appear that no duty is cast by a legislature upon such a committee to determine or decide facts judicially. Its function is merely advisory, and its main object is to ascertain facts and record its opinion in order to furnish fuller information to the authority empowered to punish the civil servant. It has no duty to determine about the rights and liabilities of the civil servant involved. Like the report of the Commissioner under the [ACT], the report of such a committee is nothing but a mere expression of opinion, and "it lacks both finality and authoritativeness which are the essential tests of a judicial pronouncement". They have no power to impose any liability or give any decision affecting the rights of the civil servant. It is true that they have to record evidence and hear the delinquent civil servant and afford him adequate opportunity for his defence. The members have to consider facts and circumstances and to weigh pros and cons before they make up their mind and record opinion.
These functions are no doubt analogous to the functions a judicial or quasi-judicial body has to perform. But, it is incorrect to say that whenever there is a determination of a fact which affects the rights of parties, the decision is quasi-judicial. As pointed out by their Lordships of the Supreme Court in the case of [ENTITY] aforesaid, "in order that a body may satisfy the required test it is not enough that it should have legal authority to determine question affecting the rights of subjects; there must be super-added to that characteristic the further characteristic that the body has the duty to act judicially".
There is no legal obligation upon them to act judicially in such departmental enquiries. Their opinion has no binding force, no sanction behind it. It is not even binding upon the authority for whose information it is meant. Thus, even looking at this question from the point of view of duty imposed upon the Committee, it can not be said to be a quasi-judicial body. The function the Committee has to perform is administrative in nature, and it is settled beyond controversy that such action is not amenable to a writ of certiorari.
11. I am not for one moment suggesting that the members of the Departmental Enquiry Committee owe no duty to act honestly. It is plain that they must use the same impartially and fairness as are characteristic of a judicial tribunal. If they do not afford reasonable opportunity to the delinquent civil servants, if they do not conduct their proceedings in accordance with the well-established rule, if they deny to them the principles of natural justice, the report may be improper. But to say that it is improper or vitiated is one thing and to say that it is amenable to a writ of certiorari is quite a different thing. Whatever other remedy may be permissible in law, it is not subject to a writ of certiorari, which is restricted to the case of judicial or quasi-judicial acts.
Their report does not purport to impose liability or in any way affect the rights of the civil servants. Strictly speaking, the entire proceeding remains pending before the competent authority, and it is open to the authority concerned to ignore the report, or come to a different conclusion, or order further enquiry, or give such opportunity to the civil servants concerned, as the circumstances of the case demand. It cannot be said that after the members of the Committee have expressed their opinion, it is final and the door is closed for ever against the civil servants concerned, and there Can be no enquiry after the notice to show cause against the proposed punishment has been served.
As a matter of fact, reasonable opportunity may be afforded even at the stage when notice , to show cause against the proposed punishment is given in accordance with the provisions of [SECTION] of the [ACT]. In the case of [PRECEDENT] referred to above, after laying down the scope and extent of reasonable opportunity envisaged in [SECTION], their Lordships of the Supreme Court have made it perfectly clear that there is no difficulty in the statutory opportunity being reasonably afforded at more than one stage. They have, however, pointed out that when once the civil servant has gone through an enquiry, it would not of course be reasonable that he would ask for that stage, if duly carried out, to be repeated.
Where an enquiry, therefore, has not been duly con-ducted, the authority may direct further enquiry. Three courses are open to the authority empowered to punish a civil servant, namely (1) it may accept the report as correct and base its decision thereon; (2) where the proceedings have been duly conducted, and there is no denial of reasonable opportunity nor infringement of the rule of natural justice, but the opinion expressed by the committee is, in its view, not correct, it may come to a different decision; and (3) where the proceedings have not been duly conducted, it may direct fresh enquiry or itself hear the case. All these courses are open to the authority concerned, and unless and until the final order imposing penalty on the petitioners is passed, they can have no grievance. It is thus manifest that these petitions are wholly misconceived, and, in my opinion, premature. The report of the Enquiry Committee, therefore, is not open to review even where the members have been biassed or likely to be biassed.
12. Similarly, the order of the authority calling upon the petitioners to show cause against the punishment is not a final order. After hearing the petitioners, any of the course indicated above may still be adopted. The order is still inconclusive and has not the effect of giving final adjudication about the right of the civil servant and the liability to be imposed. Such orders also do not fall within the purview of certiorari. If the report of the Enquiry Committee is vitiated for any reason and the authority empowered to punish the civil servant bases its decision upon that report without further consideration, the order of the authority concerned is indeed a judicial order affecting the rights of the civil servants and imposing liability upon them, made in contravention of [SECTION] of the [ACT], and, therefore, process of certiorari may issue to quash such orders. Until that stage is reached, the affected civil servants, have, in my opinion, no right to come to this Court at intermediate stage and ask it to quash the order either on the ground of denial of reasonable opportunity, or the ground of violation of natural justice, or for any other reason.
13. Having thus indicated the nature of the report and the principles governing the writ of certiorari, I proceed to consider the cases relied upon by the learned Government Advocate in support of his proposition of law. In [CASE NUMBER], on an application to the licensing justices of a county borough for the renewal of an old colicence the Justices referred the matter to the compensation authority of the borough under [SECTION] of the [ACT], and at a further meeting they resolved that a solicitor should be instructed to appear before the compensation authority and oppose renewal on their behalf. The solicitor duly appeared and opposed and the compensation authority refused the renewal, subject to payment of compensation.
Three of the Justices who sat and voted as members of the compensation authority had been parties to the resolution of the licensing justices authorising a solicitor to appear on their behalf. In these circumstances, it was held by the House of Lords that the three Justices were disqualified from sitting on the compensation tribunal on the ground of bias. In the present case, the members of the Enquiry Committee are not to pass the final order. Sri [ENTITY] was no doubt a member of the earlier Committee also. That Committee was also an administrative committee. Further, as pointed out above, there is nothing to show that in view of anything done or said by [ENTITY], there was real likelihood of bias.
In [PRECEDENT], the District Superintendent of Police who was deputed to hold the enquiry, which was technically call-ed 'trial', was also the authority competent to pass the order of dismissal against the constable involved therein. He gave his own evidence in the proceeding at two stages and relied upon that evidence to contradict the statement of the witnesses examined on behalf of the constable. In the circumstances, he was clearly disqualified to act as a judge in this matter. In this case, [ENTITY] never gave evidence, nor was he a witness to the incident.
In Dr. Subba Rao v. State of Hyderabad AIR 105[SECTION] Andh Pra 414, the final order of removing the civil servant from service was passed by the Government after a consideration of the report of the enquiry committee as well as the objections of the Civil servant to the proposed punishment. It was found that he was not afforded an opportunity to establish his case of mala fides and every genuine attempt made by him was thwarted by the enquiry officer and as such the provisions of [SECTION] were not complied with. Unlike the instant case, the final order had been passed in that case by the competent authority, and, therefore, it was liable to be impugned as invalid on the ground of contravention of the provisions of [SECTION].
The last case referred to by learned counsel is the case of [PRECEDENT]. In that case also final order of discharge had been passed, and it was not set aside by a writ of certiorari because of the infringement of the constitutional right conferred upon the public servant under [SECTION] of the [ACT]. These authorities, therefore, do not apply to the facts of the present case. This contention, therefore, is devoid of force and must be rejected.
14. The learned Government Advocate next contended that the petitioners were not given effective opportunity in that some of the documents called for by them were not produced. There is a counter-affidavit, which has not been repudiated, that all the documents needed by them were produced, except the secret letters of the Deputy General Manager. It is stated that those letters simply contained confidential instructions on departmental matters; in other words, they had no bearing on these proceedings. It is not shown how those letters were relevant either to disprove the charges or to prove the defence set up by the petitioners.
What is improper for a tribunal which acted in a quasi-judicial capacity is to consider and give weight to evidence contained in documents, the contents and source of which were not divulged to the petitioners, (see [PRECEDENT]. There is nothing to show that the report of the Enquiry Committee is based upon evidence, documentary or oral, which was not available to the petitioners. If the Committee had before it, and used, documents, which were not disclosed to the petitioners, the decision will indeed be contrary to natural justice. It is not, however, the privilege of a civil servant proceeded against to require production of all documents relevant or irrelevant, and, if not produced, to complain that they were not given any real and effective opportunity of meeting any relevant allegations made against them. What the law requires is that the evidence, oral or documentary, which forms the basis of the decision must be made available to the petitioners, and if that is not done in a case where the Committee or tribunal concerned is a quasi-judicial tribunal, then it is contrary to natural justice being infringement of the rule that justice must also be seen to be done.
The position in the instant case is entirely different. No relevant document has been withheld from the petitioners, and the letters of the Deputy General Manager did not enter into the opinion formed by the Committee. Considered from this point of view, the decision in [PRECEDENT], can have no application, to the facts of the present case. In that case, the Government servant was not allowed to cross-examine the witnesses, on whose evidence the order of discharge was based. No exception can be taken to the correctness of this decision. The position here is entirely different. This contention also must be overruled.
15. Lastly, learned counsel contended that in course of the hearing by the Committee, the petitioners were forced to answer questions which tended to incriminate them despite objections to the contrary. He urged that the allegations made against them constituted an offence, both under the [ACT] and the [ACT], and, therefore, they were protected from answering questions which may tend them to a criminal prosecution, or any other penalty or forfeiture. On these facts, learned counsel contended that there was violation of [SECTION] of the [ACT], which grants to a person immunity from self-incriminating evidence. In support of his contention, he relied upon, the decisions in [PRECEDENT], Swarnalingam v. Asst. Inspector of Labour Karaikudi, AIR 19[SECTION] Mad [SECTION]16, and [PRECEDENT].
These decisions, in my opinion, have no relevancy to the facts of the present case. [SECTION], provides that no person accused of any offence shall be compelled to be a witness against himself. As explained by their Lordships of the Supreme Court in the case of [PRECEDENT] aforesaid, this immunity from self-incriminating evidence is available to a person, against whom a formal accusation relating to the commission of an offence has been levelled, which in the normal course may result in prosecution.
In other words, this safeguard against self-incriminating evidence is not available to a person who has not been accused of any offence, or, when there is no accusation before any competent authority, that he had committed any offence. In all the cases referred to above, there was some accusation against the persons concerned. In the case of [PRECEDENT], a first information report had already been lodged and the petitioners had been named as accused therein. In the Madras case aforesaid, a prosecution had already been lodged against the accused petitioner. In the Calcutta case also, the appellants had accused the respondents of various offences and were then seeking to compel them by notice to be witnesses against themselves. In the instant case, no accusation has been made against the petitioners that they had committed any offence.
In fact, no step has been taken for their prosecution for the alleged offences. The mere fact that the allegations against them constitute an offence under the [ACT] or the [ACT] is not sufficient to entitle them to the immunity guaranteed by [SECTION] of the [ACT]. Before the petitioners can avail themselves of the guarantee provided under [SECTION], they must show that some accusation had been made by any person for their prosecution, be it before a Court, or before the police, or before any competent authority. Nothing has been done so far.
On the mere possibility of their being prosecuted in future, which may not materialise, they cannot claim the benefit of [SECTION] and refuse to give evidence, as in the present case. In my opinion, on the facts ot this case, the provisions of [SECTION] are not attracted, and the contention is not valid.
16. For the reasons aforesaid, these applications-have no merit and must be dismissed. There will be no order for costs.
[ENTITY], C.J.
1[SECTION]. I agree.