Judgment 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. 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 : "1707 Procedure for dismissal--When a railway servant is charged with an offence the maximum, penalty for which is dismissal, the procedure for holding an inquiry shall be as follows: x x x x x x x (d) At such an inquiry a definite charge in writing shall be framed and explained to the rail way servant in respect of each offence which lias. not been admitted by him, and the evidence in support of it, as well as his defence, along \\itlu 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". Having heard learned counsel for both the parties in this case and having perused the affidavit land the counter-affidavit we are satisfied that the argument put forward on behalf of the petitioners is well, founded and must be accepted as correct-It is not denied in this case that the Assistant Mechanical Engineer holding the departmental inquiry examined Sri Murari Prasad in the absence of the petitioners, and it is also admitted that no special reasons have "been recorded in writing by the Committee of Inquiry for adopting this procedure. In our opinion the requirement of the proviso to R. 1707(d) is of a mandatory character, and the failure of the Committee of Inquiry to record special reasons in writing for departing from the normal procedure of examining the witnesses; in presence of the railway servants concerned is not (merely an irregularity but is an illegality, which vitiates the finding of the Committee of Inquiry against the railway servants concerned. For these reasons we hold that the order of dismissal of the petitioner passed by the Divisional. Mechanical Engineer dated the 6th March, 1959, at page 51 of the paper book, must be set aside and the case must be remanded to the Divisional Mechanical Engineer, Dinapore, for dealing with the proceeding in accordance with law. After the case goes back on remand it will be open to the Divisional Mechanical Engineer to take the evidence of Sri Murari Prasad in presence of the petitioners, who may be given an opportunity to cross examine his statement. If the Divisional Mechanical Engineer is unable for any reason to adopt this course, it will be open to him to ignore the evidence of Sri Murari Prasad and pass an appropriate order in this case on the evidence of other witnesses which has already been given. 4. Acting, therefore, in exercise Of Our authority under Article 227 of the Constitution we allow both these applications, set aside the order of the dismissal of the petitioners dated the 6th March, 1959 and also the appellate Order dated the 13th August, 1959, and remand the cases to the Divisional Mechanical Engineer, Dinapore, for being dealt with in accordance with law. 5. We accordingly allow both these applications. There will he no order as to costs.