Judgment :- 1. The writ applicant who was an Assistant Station Master at a place called Chalakudi in the Southern Railway, impugns the order passed by the Chief Commercial Superintendent, dismissing the petitioner from service, with effect from 19-10-1963. The communication regarding the dismissal is Ext. P7 dated 15-10-1963 which was sent by the Divisional Commercial Superintendent and the relevant part of it reads as follows: "Re: Penalty advice of dismissal from service. Penalty advice No. P. (S) 227/J/2/35 of 14-10-1963 issued by the Personal officer/Staff Headquarters office, Madras, as per the orders of the Chief Commercial Superintendent, dismissing you from service of this administration with effect from 19-10-1963 is enclosed. You are to acknowledge receipt of this." And the relevant part of the enclosure is in these terms: "Show cause Notice No. P (S) 227/J/2/35 dated 11-9-1963 has been very carefully considered by the Chief Commercial Superintendent and you are hereby informed that in accordance with the orders passed by the Chief Commercial Superintendent, you are dismissed from service of this Administration with effect from 19-10-1963 for the following charges." It is unnecessary to refer to the charges. 2. The order actually passed by the Chief Commercial Superintendent, after considering the explanations to the show cause notice is Ext. R11, reading: "I have gone through the reply to the show cause notice. Though his arguments are directed against Shri. Parasuraman, they do not prove his own innocence. The charges are serious and have been followed correctly. The employee has had every reasonable opportunity to defend himself. He should therefore be dismissed from service." 3. This order of the Chief Commercial Superintendent has been impugned in this writ application on various grounds which may be formulated under the following heads: (a) The charge sheet Ext. P1 issued before the enquiry would itself show that a conclusion has been reached to punish the petitioner which tantamounts to a pre judgment of the issue and therefore violates the principles of natural justice. (b) The enquiry was conducted by the Assistant Commercial Superintendent who was the Officer who first conducted the investigation regarding the alleged misconduct of the petitioner and this has resulted in miscarriage of justice due to bias. (c) The enquiry conducted is vitiated by serious irregularities. (b) The enquiry was conducted by the Assistant Commercial Superintendent who was the Officer who first conducted the investigation regarding the alleged misconduct of the petitioner and this has resulted in miscarriage of justice due to bias. (c) The enquiry conducted is vitiated by serious irregularities. I am using the word irregularity, which will be a very mild one, for, the argument advanced, is that the rule adopted is clearly violative of the principles of natural justice, if not absolutely unfair. I may add here that this argument has been put forward mainly on the ground that the enquiry officer, instead of examining witnesses in support of the charges levelled against the petitioner, commenced the proceedings by questioning the petitioner. Such questioning amounted to, as is seen from the hundreds of questions put to the petitioner, a close cross-examination of the petitioner. This cross-examination was interrupted off and on by other witnesses being called in who were then subjected to the same process and the petitioner afforded an opportunity to cross-examine those witnesses, while apparently still in the box in the sense that his examination was not completed. This went on intermittently till the witnesses to be examined by the enquiry officer were exhausted and finally a few more questions were put to the petitioner and the enquiry concluded. This procedure, it is suggested, is a denial of the 'fair play' always insisted on in relation even to a domestic enquiry though it is unfettered by the inhibition of the rules of evidence and such other and similar formalities. (d) In any view of the matter, the Chief Commercial Superintendent being the disciplinary authority as also the appointing authority has to apply his own mind in relation to the evidence collected at the enquiry, which in this case was conducted by the Assistant Commercial Superintendent. This has not been done and this is clearly a violation of R.1713 of the Conduct and Discipline Rules for Railway Servants. (e) After the show cause notice was issued, and an explanation was submitted by the petitioner, the order passed, Ext. R11, dues not indicate that there has been any consideration or even an advertence to the evidence adduced at the time of the enquiry and particularly as to the objection taken by the petitioner to the show cause notice. (e) After the show cause notice was issued, and an explanation was submitted by the petitioner, the order passed, Ext. R11, dues not indicate that there has been any consideration or even an advertence to the evidence adduced at the time of the enquiry and particularly as to the objection taken by the petitioner to the show cause notice. (f) The show cause notice itself indicated that as far as the charges against the petitioner are concerned, the Chief Commercial Superintendent had made up his mind that they have been established and that the notice, according to the wording of it, related only to the particular punishment proposed. 4. It is not necessary for me to deal with all these questions in the writ application in detail. Suffice it to say that in regard to the first of these points, there is conflict of judicial opinion. A learned judge of the Madras High Court in a case in Manickam v. Superintendent of Police, Nilgiris reported in 1953-11- L.L.J. 62 took the view that when a charge sheet discloses that a petitioner may show cause against certain specified penalties therein, it amounted to a pre judging of the issue, which it was held would completely vitiate the entire proceedings. This decision however was not followed by another learned judge of the same Court in writ Petition No. 462 of 1961. In this case, the charge sheet contains a statement in Para.2 of the statement of allegations: "You are hereby called upon to show cause why you should not be dismissed, or punished with any of the lesser penalties specified in R.1707 of the Indian Railway Establishment Code, Volume J, 1959 Edition." And Para.4 thereof reads: "In the event of your desiring to be heard in person, you may express your desire whilst submitting your reply before the specified date." 5. In my view, the statement contained in Para.2 must be read with what is stated in Para.4 of the charge sheet issued to the petitioner. So read it is difficult to come to the conclusion that there has been a pre-judging of the issue, in the sense of the mind being made up that the petitioner should be punished. In my view, the statement contained in Para.2 must be read with what is stated in Para.4 of the charge sheet issued to the petitioner. So read it is difficult to come to the conclusion that there has been a pre-judging of the issue, in the sense of the mind being made up that the petitioner should be punished. If that be so, there is no point in an oral enquiry being held, and it is difficult to presume that the opportunity afforded to the petitioner to state whether he wanted an oral enquiry or not is a mere farce. 6. The other arguments advanced relating to the person who conducted the enquiry and the manner in which it was conducted are no doubt weighty contentions; but the petitioner who knew that it was the Assistant Commercial Superintendent who investigated the matter before the petitioner was charge-sheeted, did not raise any objection to that person conducting the enquiry. And also I find that no point was taken at any relevant time that the method adopted by the enquiry officer has prejudiced the petitioner. On the first part of this contention, reference may be made to a Supreme Court decision in Manak Lal v. Dr. Prem Chand reported in AIR. 1957 SC. 425. In Para.8 of that judgment, Their Lordships said regarding the question of bias: "The next question which falls to be considered is whether it was open to the appellant to take this objection for the first time before the High Court. In other words, has he or has he not waived his objection to the presence of Shri. Changan in the tribunal? Shri Daphtary does not seriously contest the position that the objection could have been effectively waived. The alleged bias in a member of the tribunal does not render the proceedings invalid if it is shown that the objection against the presence of the member in question had not been taken by the party even though the party knew about the circumstances giving rise to the allegations about the alleged bias and was aware of his right to challenge the presence of the member in the tribunal. It is true that waiver cannot always and in every case be inferred merely from the failure of the party to take the objection. It is true that waiver cannot always and in every case be inferred merely from the failure of the party to take the objection. Waiver can be inferred only if after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question." 7. The petitioner was certainly aware of the facts entitling him to object and considering his status, I am unable to think that he was not aware that he had the right to object. In these circumstances, it is now too late to contend that the enquiry conducted by the Assistant Commercial Superintendent was biased. 8. The latter part of the contention in this behalf was sought to be supported by two decisions of the Supreme Court reported in Meenglas Tea Estate v. Its workmen (1963 II L.L.J. 392) and in Associated Cement Companies Ltd. v. Their Workmen and another (1963 II L.L.J. 396). In the first of these cases, at page 394, Justice Hidayathullah observed as follows: "The tribunal held that the enquiry was vitiated because it was not held in accordance with the principles of natural justice. It is contended that this conclusion was erroneous. But we have no doubt about its correctness. The enquiry consisted of putting questions to each workman in turn. No witness was examined in support of the charge before the workman was questioned. It is an elementary principle that a person who is required to answer a charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an enquiry of this character and this requirement must be substantially fulfilled before the result of the enquiry can be accepted. A departure from this requirement in effect throws the burden upon the person charged to repel the charge without first making it out against him." In the latter decision, at page 400, Justice Gajendragadkar as he then was said: "The other infirmity in the present proceedings flows from the fact that the enquiry has commenced with a close examination of Malak Ram himself. Some of the questions put to Malak Ram clearly sound as questions in cross-examination. It is necessary to emphasise that in domestic enquires the employer should take steps first to lead evidence against the workman charged, give an opportunity to the workman to cross-examine the said evidence and then should the workman be asked whether he wants to give any explanation about the evidence led against him. It seems to us that it is not fair in domestic enquiries against industrial employees that at the very commencement of the enquiry, the employee should be closely cross-examined even before any other evidence is led against him. In dealing with domestic enquiries held in such industrial matters, we cannot over-look the fact that in a large majority of cases, employees are likely to be ignorant, and so, it is necessary not to expose them to the risk of cross-examination in the manner adopted in the present enquiry proceedings." 9. These pronouncements might have resulted in my holding that the enquiry conducted is in violation of the principles of natural justice. I do not think I can come to that conclusion in the case for the reason that the petitioner, when he was asked towards the end of the enquiry the question mentioned below answered that he was satisfied with the way in which the enquiry has been conducted. The question is in these terms : "Are you satisfied with the facilities given to you for explaining your case, examination of records, examination and cross examination of witness and putting forth your defence and are you satisfied that the Rules laid down for conducting Departmental Enquiries have been complied with and the way in which the Enquiry has been conducted? 10. In the light of the above, I do not think, I should characterise the enquiry as denying fairness, of being violative of the principles of natural justice in proceedings under Art.226 of the Constitution. 11. Though I have to negative these contentions raised by the petitioner, I feel that the other contentions raised and mentioned above are entitled to be accepted. R.1713 of the Conduct and Discipline Rules for Railway Servants reads as follows: "The disciplinary authority shall, if it is not the enquiry authority, consider the records of the enquiry and record its findings on each charge." 12. R.1713 of the Conduct and Discipline Rules for Railway Servants reads as follows: "The disciplinary authority shall, if it is not the enquiry authority, consider the records of the enquiry and record its findings on each charge." 12. In this case, the disciplinary authority is the Chief Commercial Superintendent and he was not the enquiry authority. It is therefore imperative that he should have recorded his findings on each of the charges levelled against the petitioner which are four in number. Reliance has been placed by counsel appearing for the respondents on Ext. R8 which according to him would show that the Chief Commercial Superintendent had come to his own conclusions. Ext. R8 is in these terms: "The employee, in his reply dated 3-8-1963 to this charge sheet, has not accepted the charges contained in the same. An enquiry, therefore, was arranged. It was held by the Assistant Commercial Superintendent, Olavakkot from 22-8-1963 to 29-8-1963. I have seen the enquiry proceedings. I find that the procedure has been followed correctly; that the accused has been given every reasonable opportunity for his defence and I agree with the findings of the Enquiry Officer that all the charges mentioned in the charge sheet have been established. Since these are serious charges, it is tentatively decided to impose the penalty of dismissal from service on Shri. K. Rajappa Menon, Assistant Station Master/Chalakudi. He should therefore, be asked to show cause why he should not be dismissed from service accordingly." 13. The only relevant part in Ext. R8 which can be said to be the entering of the finding is contained in the following words: "and I agree with the findings of the Enquiry Officer that all the charges mentioned in the charge sheet have been established." 14. 1 do not think this is in compliance with R.1713 of the Conduct & Discipline Rules for Railway Servants. The rule insists on findings being entered on each of the charges by the disciplinary authority. This necessarily implies an advertence to the evidence which have been adduced at the time of the enquiry in relation to each of the charges and an analysis of this evidence and an assessment of the same, if not, the sifting of it, in order to come to the conclusion as to whether the charge has been established or not. 15. 15. Apart from this infirmity that R.1713 has not been complied with it also appears to me that the contention of the petitioner that even before the show cause notice was issued, the Chief Commercial Superintendent had finally made up his mind that the charges against the petitioner had been established, is well founded. Ext. R8 gives an indication of it and the wording of the show cause notice Ext. R9 supports this view. What is stated in Ext. R9 is this: "the Chief Commercial Superintendent, has held that you are guilty in respect of the following charges:-" And thereafter the charges are mentioned. This is followed by what is contained in Para.2 of Ext. R9: "It has, therefore, been tentatively decided by the Chief Commercial Superintendent, that you should be dismissed from service." The 'tentatively' I think, it is obvious, applies only to the quantum of the punishment. 16. As far as I am aware, the Supreme Court rulings on the subject are clear that a Government servant charged for misconduct must have an opportunity not only to show cause against the particular punishment proposed to be inflicted on the petitioner, but must also get an opportunity to question the very findings which formed the grounds on which the infliction of the punishment was tentatively decided. Reference may be made to three of these decisions, reported in The State of Assam v. Bimal Kumar Pandit (1963 SC. 1612), State of Mysore v. K. Manche Gowda (1964 S.C. 506) and Union of India v. H.C. Goel (1964 S.C. 364). I need extract only one passage from the latest of these decisions: "It would thus be seen that the object of the second notice is to enable the public servant to satisfy the Government on both counts, one that he is innocent of the charges framed against him and the other that even if the charges are held proved against him, the punishment proposed to be inflicted upon him is unduly severe." 17. This makes it very clear that the petitioner would have a right even after the show cause notice to plead and try to persuade the disciplinary authority that he is innocent of the charges framed against him. This right, I think, has been denied to the petitioner. 18. A decision of this Court was brought to my notice and apparently this decision takes a different view. This right, I think, has been denied to the petitioner. 18. A decision of this Court was brought to my notice and apparently this decision takes a different view. Reference may be made to a Division Bench decision of this Court in Narayana Murthi v. State of Kerala reported in 1964 KLT.180. It is observed in that decision towards the close of Para.11: "Once definite findings have been recorded after an enquiry with reasonable opportunity given to the civil servant to vindicate his innocence, there is no scope for his canvassing the correctness of the findings in the second stage of the proceedings, when the question is only of the proper punishment to be imposed on the basis of such findings of guilt." 19. This being a Division Bench ruling, if the decision of this case has to be rested, merely on this ground I would have referred this case to a Division Bench notwithstanding the pronouncements of the Supreme Court. But I find there has been non-compliance in this case with the mandatory provisions of R.1713 of the Conduct and Discipline Rules for Railway Servants and therefore, I am compelled to quash the proceedings from the stage at which the Chief Commercial Superintendent is to enter findings relating to the charges. In the result I quash the show cause notice Ext. R9 and I also quash Ext. P7 as well as Ext. R11. It will be open to the Chief Commercial Superintendent, the disciplinary authority, to reconsider the records of the enquiry in the light of what is stated above and come to a provisional conclusion as to whether the charges have been established or not. If he comes to the conclusion that the charges have been provisionally established, he may issue a fresh show cause notice to the petitioner and the petitioner will have of course the right to submit his explanations in regard to the show cause notice. And this will be considered before final orders are passed. 20. In the circumstances of this case, the Chief Commercial Superintendent also should consider the manner in which enquiry has been conducted. And this will be considered before final orders are passed. 20. In the circumstances of this case, the Chief Commercial Superintendent also should consider the manner in which enquiry has been conducted. Though this court is precluded from resting the decision of the case on any such ground nothing prevents the Chief Commercial Superintendent from considering whether prejudice has in fact been caused to the petitioner and whether the enquiry has been fair and proper in the light of the observations of the Supreme Court in the two decisions 1963 II. LL.J. 392 and 396. 21. This writ application will stand disposed of on the above grounds. I make no order as to costs.