THE HONOURABLE MRS. JUSTICE T. MEENA KUMARI AND THE HON’BLE MR. JUSTICE RAMESH RANGANATHAN WRIT APPEAL No. 592 of 2002 JUDGMENT: (Per Ramesh Ranganathan, J) The punishment of removal, which was the subject matter of challenge before the learned Single Judge, was upheld and the Writ Petition was dismissed by order dated 27.12.2001. Sri Pratap Narayan Sanghi, Learned counsel for the petitioner, would seek to have the impugned order in the Writ Petition quashed on the following two grounds: (i) That Rule 158(3) of the Railway Protection Rules which restricts the right of representation through a friend, and disentitles the “friend” to cross examine witnesses and to address the Inquiry Oﬃcer, is ultra vires the fundamental rights conferred on the petitioner under Articles 14 and 16 of the Constitution of India and (ii) That failure on the part of the Inquiry Oﬃcer to permit the appellant to examine witnesses vitiated the departmental inquiry. In so far as the ﬁrst contention is concerned, the vires of Rule 156(3), having been upheld by the Supreme Court in D.G. RAILWAY PROTECTION FORCE Vs. K. RAGHURAM BABU[1], the question does not necessitate any further examination. It is necessary to note that the petitioner, vide letter dated 2.6.1993 addressed to the Inquiry Oﬃcer, speciﬁcally stated that, because of non-availability of his friend, the inquiry in his case may be continued and that he did not require any “friend”. For both the aforesaid reasons, the 1st ground of challenge must be rejected. In so far as the second contention is concerned, it is well settled that the Enquiry Oﬃcer, holding a domestic enquiry, cannot take eﬀective steps to compel attendance of witnesses and consequently cannot be said to have committed any procedural irregularity in not causing their production. (Tata Oil Mills Company Limited Vs. The Workmen[2]; Shambunath Goyal Vs. Bank of Baroda[3]). The Enquiry Oﬃcer has neither the power to produce nor the power to compel the Employer to produce witnesses for being cross-examined by the employee. (Tata Engineering and Locomotive Co. Ltd., v. S.C.Prasad [4]). Admittedly both the witnesses, whom the petitioner desires that they be summoned for examination in the inquiry were employees of the Soyabean Company and not members of the Railway Protection Force and as such the Inquiry Oﬃcer had no power to summon them for being cross- examined by the petitioner. While the proceedings before the Inquiry Oﬃcer, and the written statement ﬁled before him, shows that the petitioner had requested the Inquiry Oﬃcer to have these two witnesses examined, Sri Pratap Narayan Sanghi, learned counsel for the appellant, would submit that it was the petitioner who desired to examine these two witnesses in his defence and that he was not permitted to do so by the Inquiry Oﬃcer. It is well settled that failure to examine witnesses, who had either given a complaint, or whose statements had been recorded in the preliminary enquiry, would not vitiate either the departmental enquiry or the punishment imposed as long as the evidence adduced in the enquiry is suﬃcient to establish the charges leveled against the delinquent employee. (The East India Hotels Vs. Their Workmen[5]; State of Haryana Vs. Rattan Singh[6]; J.D. Jain Vs. State Bank of India [7] and The Divisional Manager, United Indian Assurance Company Vs. T. Radhakrishna Murthy[8]). However, if as contended by Sri Pratap Narayan Sanghi, the delinquent employee desired to have the witnesses examined in his defence, or desired that he be permitted to produce the witnesses in the inquiry, failure on the part of the Inquiry Oﬃcer to have these witnesses examined by the appellant-petitioner in his defence could well be said to be in violation of principles of natural justice. It is not clear from the evidence on record as to whether the appellant had, in fact, requested that he be permitted to produce these witnesses in his defence. In any event, this question does not necessitates any further examination in as much as exercise of the Certiorari jurisdiction of this Court, under Article 226 of Constitution of India, is discretionary. In the case on hand, the petitioner confessed to have committed the crime. In his detailed confessional statement in telugu, admittedly in his own handwriting, the petitioner categorically stated his involvement in the commission of the oﬀence. While a feeble attempt was made by Sri Pratap Narayan Sanghi that the said statement was under coercion, and that the appellant was forced to give such a statement, we do not see any reason to examine this contention, as the appellant has not even chosen to array the persons, who are alleged to have coerced him, as parties to the Writ Petition. It is settled law that the plea of malice or bias cannot be gone into unless the person against whom malice or bias is alleged is made a party in the Writ Petition. (State of Bihar Vs. P.P. Sharma[9]) In any view of the matter, we do not ﬁnd any reason to interfere either with the order of the learned Single Judge or the impugned Order of punishment. The Writ Appeal fails and is, accordingly, dismissed. However, in the circumstances, without costs. _______________________ T. MEENA KUMARI, J ______________________________ RAMESH RANGANATHAN, J 5.8.2008 CHV & ASP [1] 2008 (3) A.L.D. 108 (S.C.) [2] AIR 1965 S.C. 155 [3] AIR 1984 S.C. 289 [4] (1969)3 S.C.C. 372 [5] AIR 1974 S.C. 696 [6] 1977(2) S.C.C. 491 [7] AIR 1982 S.C. 673 [8] 1985(2) A.P.L.J. S.N. 13 (D.B.) [9] AIR 1991 S.C. 1260