JUDGMENT 1. THIS appeal is directed against an order of our learned brother sinha, J., dismissing the application of the appellant, in which it was prayed that the order of his removal from the railway service should be quashed and be set aside by a writ in the nature of a mandamus or by other appropriate writs. 2. THE long account of the relevant facts shortly is: On November 5, 1938, the appellant entered the Railway service, In the year 1955, he was acting as an engine driver. On May 18, of the said year, he, at his own request, got himself transferred from Barkakhana to asansol. He gave a written declaration that he would not require Railway quarters at Asansol. It is stated that while at Asansol, the appellant forcibly occupied a room in the quarters, meant for another person. As he refused to vacate, even after repeated requests a charge sheet was issued on January 10, 1956 on the appellant, which however was dropped ; when on June 31, 1956, he was allotted a room in the Railway quarters. But the appellant was net satisfied. Dispute arose between him and one Mr, Barbaro, the Assistant Mechanical Engineer, stationed at Asansol, over the occupation of the quarters by the appellant. Thereupon the Railway authorities decided to transfer him back to Barkakhana, on which the Loco Foreman, Barkakhana, wrote a letter to the loco Foreman, Asansol, on September 13 (20), 1956 to inform the appellant that at present there was no quarter available at Barkakhana. His transfer at that stage was therefore kept in abeyance. On September 17, 1956, the Divisional Personnel Officer, Asansol, directed the appellant to obtain an application for pass on transfer. On the appellant's representation against the order of his transfer to Brakakhana, the divisional Superintendent, asansol directed him to carry out the orders immediately. He was further directed to submit his application for passes on transfer at once. On October 24, 1956, the appellant interviewed the Divisional personnel Officer, who again advised him to put in an application for transfer passes to Barkakhana with immediate effect. He was reminded that he should carry out his orders. He was further told that if he did not put in his application for transfer of passes within the next 3 or 4 days, severe disciplinary action would be taken against him for disobedience of his orders. He was reminded that he should carry out his orders. He was further told that if he did not put in his application for transfer of passes within the next 3 or 4 days, severe disciplinary action would be taken against him for disobedience of his orders. The appellant however did not put in any application for his transfer passes to barkakhana but on November 5, 1956 he saw mr. Barbaro who recorded the interview which was to the effect that the appellant told him, that he would not go on transfer, even at the cost of his job. The matter was discussed by Mr. Barbaro with the Divisional Superintendent who instructed him that since this was the appellant's attiutde, he should be placed under suspension and a charge sheet under item no. 6 viz. h "removal from service" should be given, with regard to his disobedience of orders and insolence. On November 9, 1956, the charge sheet was issued. It was handed over on November 15. The charge was in substance that the appellant had refused to carry out the orders in spite of repeated requests for getting himself transferred to Barkakhana and refused to vacate his quarters at Asansol, thereby disobeying the orders of his superiors. The further charge was that he behaved with mr. Barbaro in an insolent manner and "these actions amount to serious misconduct and disobedience of orders". On November 30, 1956 the appellant showed cause to the same. It was stated inter alia that he nurtured an ambition to educate his children but the proper facility was lacking at Barkakhana. As he could not pursue his studies for want of proper opportunities, he is now keen to fulfil his ambition by imparting education to his children at Asansol. He further stated that he tolerated various inconveniences and difficulties at Asansol by looking at the faces of his children and for their studies. He slated about the differential treatment meted by Mr. Barbaro (an Anglo-Indian) to the other Anglo-Indian drivers, According to the appellant the same treatment was not meted out to him by Mr, Barbaro he being a Harijan, down-trodden in the Society. He denied that he refused to carry out or disobey the orders. As the appellant was feeling helpless, he prayed for reconsideration of the order of his transfer. On Nov. He denied that he refused to carry out or disobey the orders. As the appellant was feeling helpless, he prayed for reconsideration of the order of his transfer. On Nov. 30, 1956, the Divisional superintendent, Asansol, directed a departmental enquiry to be held by the assistant Mechanical Engineer. The appellant was informed of the same. The enquiry was adjourned to December 27, 1956, as the appellant reported sick, the same had to be postponed on january 5, 1957 and also thereafter, at his request. Ultimately the enquiry was fixed to be held on January 25, 1957. On the said date, the appellant wanted to have it again postponed. A suggestion by the defence counsel was put by way of an application to the Chairman, enquiry Committee to put the appellant to his duty with immediate effect and postpone the enquiry till such time mr. Barbaro comes back from leave, as he is the main complainant; more so, as the appellant has also complaints against Mr, Barbaro. The evidence of barbaro being not considered necessary, the enquiring officer proceeded with the enquiry on the said date i. e., on January 25. The appellant gave evidence and he was cross-examined. On being questioned as to why he did not obey the orders and carry out the instructions, his answers were, "i did nothing about this" ; "i did not apply for any passes as I got no opportunity to do the same" and he further told that he was prepared to apply for passes to go to barkakhana leaving his family at asansol, provided his family members are allowed to remain in the quarters he was now occupying and that he was only ready to carry out the orders on promotion. Lastly in answer to question No. S as the whether he still persists in his refusal to carry out the orders of transfer unconditionally, the answers was "i refuse to carry out the orders unless the conditions I lay down above, are fulfilled". Thereafter the enquiry Committee, inter alia found on evidence that the appellant was responsible "for deliberate disobedience of orders and mis-conduct. " In the Report of the Enquiry committee, it was noted that the appellant's reply to the charge sheet was more in the nature of an appeal than answer to the charge. Thereafter the enquiry Committee, inter alia found on evidence that the appellant was responsible "for deliberate disobedience of orders and mis-conduct. " In the Report of the Enquiry committee, it was noted that the appellant's reply to the charge sheet was more in the nature of an appeal than answer to the charge. The fact of his persistence in his refusal to carry out the orders was also noticed. A show cause notice was thereafter issued to the appellant on february 16, 1957 by the Divisional mechanical Engineer. As this was done through mistake, the same was cancelled. A fresh show cause notice was issued by the Divisional Superintendent on April 2, 1957. On April 10, 1957, the appellant submitted his explanation, It was considered by the Divisional Superintendent. On April 27, 1957, the appellant WPS removed from service as a disciplinary measure. Thereafter the Rule was issued which was ultimately discharged by Sinha, J. against which the instant appeal has been preferred. 3. BEFORE Justice Sinha, only three grounds appear to have been urged. The first ground was that the whole proceeding is mala fide because the appellant had incurred the wrath of mr. Barbara who bad caused this removal order to be passed by the Divisional superintendent. Justice Sinha did not believe the story of mala fide and held that in any event there was no evidence of mala fide. The second ground was that the appellant did not commit such an offence as to warrant his dismissal. Justice Sinha did not accept the said contention also, and held that the disciplinary action was amply justified from the facts of the case. The last ground wag that the show cause notice was issued by the Divisional Mechanical Engineer who was not the punishing authority, on which Justice Sinha, held that the Divisional Mechanical Engineer was acting under the orders of the divisional Superintendent who is admittedly the punishing authority. 4. BEFORE us, Mr. Nani Coomar Chuckerburtti, the learned Advocate in support of the appeal, contended that the procedure of enquiry laid down in paragraph or Rule 1707 in Section II of Chapter XVII, namely, discipline and Appeal Rules (for non-gazetted staff), of the Indian Railway Establishment Code, vol. 4. BEFORE us, Mr. Nani Coomar Chuckerburtti, the learned Advocate in support of the appeal, contended that the procedure of enquiry laid down in paragraph or Rule 1707 in Section II of Chapter XVII, namely, discipline and Appeal Rules (for non-gazetted staff), of the Indian Railway Establishment Code, vol. 1 (Second Reprint) published in the year 1951, has not been followed and therefore the whole enquiry is had ; and consequently the order of removal, passed on such an enquiry, is fit to be quashed and set aside by an appropriate writ. He develops his argument bv submitting three main points : (a) the reasonable opportunity of the defence by tho appellant, was denied by the Railway administration in the way of not producing mr. Barbaro at the Enquiry, whose non-production has vitiated the whole enquiry, (b) As the charge sheet or the first show cause notice has not been issued by the punishing or the dismissing authority, the whole Enquiry is without jurisdiction ; and lastly (c) The enquiry Report does not contain the recommendation of the officer and as such the order of removal based on such report without having any recommendation is wrong and fit to be set aside. Two short submissions on the points of mala fide and serious misconduct were also made. Paragraph 1707 of the Railway establishment Code reads as follows: "1707. Procedure for Dismissal. When a railway servant is chared with an offence the maximum penalty for which is dismissal, the procedure for holding an enquiry shall be as follows: - (a) A charge-sheet shall be presented to the railway servant detailing the charge or charges against him and calling upon him to show cause why he should not be dismissed or removed from service or punished with any of the lesser penalties specified in Rule 1702, He shall be required to submit a written explanation by a fixed date, which shall ordinarily allow him an interval of seven clear days from the date he receives the chargesheet. If tho railway servant is illiterate or semi-literate, the charge-sheet shall be read out and ex-plained to him by a Gazetted Officer or a selected senior non-gazetted railway servant, who shall record railway servant's explanation. If tho railway servant is illiterate or semi-literate, the charge-sheet shall be read out and ex-plained to him by a Gazetted Officer or a selected senior non-gazetted railway servant, who shall record railway servant's explanation. (b) The charge-sheet with the explanation furnished by the railway servant shall be considered by the officer competent under these rules to pass an order of dismissal who, unless he takes steps for holding a departmental enquiry, shall thereupon pass such orders as he thinks fit. (c) If the railway servant asks to be heard in person or if the officer competent to pass an order of dismissal considers that the railway servant should be examined in person he shall cause a departmental enquiry to be held. The railway servant, if he so desires, may be accompanied by another railway servant and the officer or the committee of enquiry shall give the railway servant all reasonable facilities for the conduct of his defence including the cross-examination of witnesses ; (d) At such an enquiry a definite charge in writing shall be framed and explained to the railway servant in respect of each offence which has not been admitted by him. and the evidence in support of it, as wall as his defence, along with 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 wad recorded otherwise than in the presence of the railway servant, (e) The result of the departmental inquiry, with the recommendation of the officer or the committee holding the inquiry, shall be placed before the officer competent under the rules in this section to pass an order of dismissal, who shall thereupon pass such orders as he thinks fit. (f) Notwithstanding anything contained in the foregoing clauses of this rule, no formal inquiry is necessary when the order of dismissal is passed on the strength of facts or conclusions arrived at by a judicial trial or trial by court martial or when the accused is absconding. (f) Notwithstanding anything contained in the foregoing clauses of this rule, no formal inquiry is necessary when the order of dismissal is passed on the strength of facts or conclusions arrived at by a judicial trial or trial by court martial or when the accused is absconding. " Turning to the first contention now, 1 am of opinion that Mr, Barbara might have been a relevant witness if the appellant would have been removed, only on the ground of his insolence to Mr. Barbaro. In that event, Mr. Barbaro or the other persons in whose presence the appellant was stated to have become insolent, should have been produced by the Railway Administration in support of the said charge. Mr. Bhabesh Narayan Bose, the learned Advocate on behalf of the respondent railway, with his usual frankness and in my view, rightly concedes, that the charge of insolence to Mr. Barbaro was not, and could not be brought home against the appellant in the facts of this case. But as insolence is not the main charge, Mr. Bose submits, and in my judgment rightly, that intentional and repeated disobedience by the appellant of the orders of his superiors would it-self amount to a serious misconduct, for which the appellant was removed from service. In my view, non-production of mr. Barbaro in such circumstances as witness, during the enquiry, has not vitiated the enquiry proceeding. 5. SUCH contention is not accepted by Sinha. J. either in the case of (1)Krishna Gopal Bose v. Direcor of telegraphs, 60 C. W. N. 692 or in the case of (2) A. R. S. Chowdhury v. Union of india, 60 C. W. N. 933. The unreported judgment of Justice P. B. Mukharji dated September 11, 1963 in Civil revision Cases Nos. 781 (w) and 882 (w)both of the year 1961 viz., (3)Jyotirmoy Samanta v. Eastern Railway does not also go against the view I have taken. The observation to the effect that the Enquiry officer should not pick and choose evidence, appearing in the decision of Banerjee, J. in the case of (4) Sailen Bose v. State oj West Bengal, reported in 1e)G3 Factory and Labour Reports page 26 cited by Mr. Chuckorburtti, does not fit in with the instant case, as no question of choice of evidence arises in this case. Chuckorburtti, does not fit in with the instant case, as no question of choice of evidence arises in this case. Banerjee, J. even after the said observation, has ultimately affirmed the views of Sinha, J. expressed in. the cases of (1) Krishna gopal and (2) A. R. S. Chowdhury (supra ). 6. THE next citation by Mr. Chuckraburtti on the point is a decision of the rajasthan High Court in the case of (5)Ramannnd v. D. M. Engineer, Northern railway, A. I. R. (1962) Raj 265. Interpretation of a different rule was made in the said decision and not of the proviso to the said paragraph 1707 (d) of the Railway Establishment Code, with which we are concerned in the instant case. I may observe that the learned advocates on both sides in the instant ease could not find out the reference from the Book of Sri Sanjeeva Row as referred to at page 267 in the said rajasthan decision. There is, therefore in my judgment, no denial of reasonable opportunity to the appellant by the Railway Administration. The fust submission of Mr, Chuckerburtty fails. 7. THIS takes us to the second submission viz., as to whether the non-issue of the charge sheet or the first show cause notice by the punishing or the dismissing authority makes the enquiry bad. In my view it is not necesary that the charge sheet or the first show cause notice must be issued by the punishing or the dismissing authority in all cases. In my view, if it had the approval or the authority of the dismissing Officer it would be sufficient. It is immaterial that the charge sheet is actually issued in the name or under the signature of Divisional Mechanical engineer in this case. H. K. Bose, J. (as his Lordship then was) after interpreting the Railway Establishment Code along with the Security Force Rules in the case of (6) Gandhari Smgh v, union of India, (Civil Revision No. 1660 of 1956 unreported) held on June 10, 1957 to the same effect. It is argued that Sinha, J. in the case of Krishna gopal (ibid) held that the charge sheet by the dismissing authority was not at all necessary but it should be realised that his Lordship Sinha. It is argued that Sinha, J. in the case of Krishna gopal (ibid) held that the charge sheet by the dismissing authority was not at all necessary but it should be realised that his Lordship Sinha. J. in his subsequent decision in the case of A. R. S. Chowdhury (supra) explained his earlier decision to mean that it would be sufficient if the charge sheet is authorized "by the dismiss. authority. 8. A grievance is made, that Annexure C to the affidavit-in-opposition at page 62 of the paper book, which has been referred to by Justice Sinha as the charge sheet, is not really the show cause notice but a note passed by Mr. Barbaro regarding certain facts. It is argued that the judgment is bad for such confusion. Even if the Note (Ext. C.) is not taken as a charge sheet, it would appear that the Divisional mechanical Engineer was authorised to issue the first show cause notice by the divisional Superintendent who was admiltedly the punishing authority. The said fact was rot denied in the affidavit-in-reply. There is really no such confusion as would affect the merits, the view taken by a Division Bench of this Court (S. K. Sen and N. K. Sen, JJ_)on April 8, 1960 in the unreported decision in the case of (7) Amiya Kumar banerjee v. Union of India (Appeal from Appellate Decree No. 939 of 1956), might be looked at. The point as to the issue of the charge sheet, as in the instant case, has not been directly raised before the supreme Court in the case of (8) Kapur singh v. Union of indict, A. I. R. (I960)S. C. 493=1960 (2) S. C. R. 569 and is therefore not of much assistance. Moreover it was a case of a member of the indian Civil Service where the president was deemed to be the punishing authority. It appears from the short narration of facts there, that the East punjab Government had served the charge sheet in that case and not the president. Civil Services (Classification, Control and Appeal)Rules came up for consideration. There the Governor had absolute discretion, which is not so in the case in hand viz., the provisions of the Railway Establishment Code. 9. IF we also compare the current discipline and. Civil Services (Classification, Control and Appeal)Rules came up for consideration. There the Governor had absolute discretion, which is not so in the case in hand viz., the provisions of the Railway Establishment Code. 9. IF we also compare the current discipline and. Appeal Rules for Non-Gazetted Railway Servants, in force from August 1, 1961, corrected and modified up to September 30, 1962 (though the same does not apply to the instant case), the disciplinary authority has now been defined and it has been made clear that the charge sheet should be issued by the said authority. (See in this connection Appendix II, Form of the charge sheet, where it has been provided that the disciplinary authority should sign. 10. THE second submission of Mr. Chuckerburtty also fails. On the third point, namely, as to the question of recommendation, sub-paragraph (e) of Rule or paragraph 1707, which has been quoted earlier. provides inter alia that "the result of the departmental enquiry with the recommendation of the officer or the committee shall be placed before the officer. . . . . . " It is submitted by the learned advocate for the appellant that as there is no recommendation by the officer in the Enquiry Report, the order for removal based on the said Report is bad and should be set aside. Mr. Bose, on the other hand contended that the recommendation part in the said Rule is a useless formality. There is nothing here to recommend. If the report of the enquiry goes against the appellant, the only consequence would be removal from service, being item no. 6 in the charge sheet, referred to in the Report. 11. IN my view, Mr. Bose cannot put his case so high. It cannot be doubted that recommendation is a necessary part of the Report but in the facts of the instant case the Report itself has been the recommendation. Moreover, it has caused no prejudice to the appellant, due to the absence of specific express recommendation. The last point also fails. 12. THE interpretation appearing in the unreported judgment of Sinha, J. dated 21. 11. 60 in the case of (9) Bejoy kumar Mondal v. Union of India, (C. R. 88/1960) in holding that a recommendation has no legal force, is, with respect no warranted by sub-section (e) to section or Rule 1707 of the Railway Establihment Code. 12. THE interpretation appearing in the unreported judgment of Sinha, J. dated 21. 11. 60 in the case of (9) Bejoy kumar Mondal v. Union of India, (C. R. 88/1960) in holding that a recommendation has no legal force, is, with respect no warranted by sub-section (e) to section or Rule 1707 of the Railway Establihment Code. Bose, J. held in the rase of (10) Tara Prasanna Bhanja v. Union of India, 61 C. W. N, 849 (853)that the Rules in the Railway Establishment code have statutory force. It is belter to remember that the rules contained in the Railway Code of 1940 have been made by the Governor-Generai-in-Council under sub-section (2) of section 241 of the Government of India Act, 1935, in supersession of all the pre-existing rules. After the reprint of the code in 1945, another edition with additions, and alterations came out in the year 1951. The name of the Code was also changed to Indian Railway Establishment Code, in consequence of the financial integration of the Indian State railways and of the Constitution of india having come into effect in 1950. The Code was further revised to incorporate all amendments up to March 31, 1959 and was thereafter issued by the president in exercise of the powers conferred on him by the proviso to Article 309 of the Constitution of India. It is too late now to say the Paragraph 1707 of the Railway Establishment Code- has no statutory force. Out of the two short submissions of the learned Advocate for the appellant, the first one is, that the order of removal is mala fide. The story of the appellant that the whole proceeding is mala -fide was not believed by sinha, J. and we affirm the said finding. There is neither any definite charge of mala fides nor any evidence of malafides. The statement in paragraph. 7 of the petition falls short of such allegation. Even if an allegation of malafide, may with difficulty, be spelt out against Mr. Barbaro, not a whisper of such allegation is made against the divisional Superintendent, who is the dismissing authority and who has passed the final order. The second short submission is that there is no finding of serious misconduct to entail the appellant's removal from service. Misconduct depends upon degrees of neglect or refusal, action or inaction in a particular case. Barbaro, not a whisper of such allegation is made against the divisional Superintendent, who is the dismissing authority and who has passed the final order. The second short submission is that there is no finding of serious misconduct to entail the appellant's removal from service. Misconduct depends upon degrees of neglect or refusal, action or inaction in a particular case. That there was disobedience to carry out the orders cannot be disputed. This amounts to a serious misconduct. It was so held In similar circumstances by Bose, J. on November 28, 1956 in Civil Rule No, 2634 of 1955 (11) (Sachindra Kumar Chakrabortty v. District Traffic Superintenent, N, E, Rly.)unreported. Item No, 4 in the charge sheet in the instant case refers to serious misconduct, where all the actions of the appellant taken together were stated to have amounted to misconduct. These two short submissions are also without substance. 13. MR. Bose rightly submits that the appellant came after giving a clear undertaking on April 19, 1955 that he would not require or press for quarters at Asansol but he did just the reverse. Procedurally it would also have been proper, as submitted by Mr. Bose, that the appellant should have first preferred an appeal against the order of removal before moving this Court tinder Article 226 of the Constitution. This disposes of all the points raised by both sides, 14. FOR these reasons the appeal has no merits and it should be dismissed but without any order as to coats. The appellant, however, was in service for a good length of time. Though there was disobedience of orders, the appellant was more actuated with motive for imparting education to his children. He perhaps honestly thought that he had justifiable grounds to retain posession of the quarters. It seems to us that the punishment, namely, removal from service is somewhat disproportionate to the extent of his guilt and it merits re-consideration. If the Railway authorities are approached by the appellapt we hope that they would favourably consider his case.