Sinha, J.:— The facts in this case are shortly as follows: In or about March, 1949, the petitioner was appointed as a State Transport driver under the Directorate of Transportation, State of West Bengal, having been appointed by Mr. H.D Chaudhury, Special Officer, Home (Transport) Department. On or about 22nd January, 1954 the petitioner was plying State bus No. WBS 938. While so driving, there was an accident at the junction of Harrison Road and Strand Road. There was a collision between the bus and a lorry and the State bus suffered certain damage? On the same day a first information report was lodged at the Burrabazar Police Station and the petitioner gave an explanation. According to him, the explanation was not properly recorded. On the 16th February, 1954 an order of suspension was passed against the petitioner. On the 17th February, 1954 a charge-sheet was framed which was served on the petitioner on the 19th February, 1954. The gravamen, of the charge was that there was an accident following which the State bus, which was being driven by the petitioner, was damaged heavily. It was stated that the report put in by the petitioner had stated that brakes had failed but this was not accepted. The charge was that the petitioner was driving the vehicle rashly and negligently as a result of which the accident took place and in order to cover up his guilt, the petitioner had deliberately severed the brake hose. The charge-sheet called upon him to show cause why disciplinary action should not be taken against him. On the 22nd February, 1954 the petitioner submitted his written explanation. The charge-sheet was issued by the opposite party No. 3. the Director-in-charge, Lake Depot, Government of West Bengal. On 23rd/24th February, 1954 a letter was issued by the Director-in-charge stating that the case will be heard on the 9th of March, 1954 and the petitioner was directed to be present with his witnesses. On the 9th March, 1954 the case was heard not by the Director-in-charge but by Nirmal Kumar Bhattacharjee, Superintendent, Lake Depot. The next two hearings on the 25th March, 1954 and 30th March, 1954 respectively, took place before the opposite party No. 1 but the last hearing, that is, on the 4th May, 1954, when further evidence was taken, was again heard by the said Nirmal Kumar Bhattacharjee. It may be mentioned that three witnesses, namely, S.D Ganguly, C. Mondal and M.R Koley, gave evidence before Nirmal Kumar Bhattacharjee. On the 25th May, 1954, the Director-in-charge that is to say, the opposite party No. 1, passed an order which order contains his finding in respect of the enquiry. A copy thereof is annexed to the counter-affidavit filed on behalf of the opposite parties Nos. 1 to 4. By his order the Director-in-charge found the petitioner guilty of the charge preferred against him and referred to the evidence of C. Mondal and M.R Koley and discussed them. By the same order, the petitioner was asked to show cause in writing within 48 hours why he should not be discharged from service. On the 28th May, 1954 an order was made discharging him from service. This order of discharge was communicated to the petitioner by a letter dated 31st May, 1954. In this letter, a copy whereof is annexure “c” to the counter-affidavit the petitioner was informed that his reply to the charge-sheet had been found totally unsatisfactory and “as the charge has been proved, you are discharged from service in this Directorate with effect from 28.5.54” If this is an order of discharge, as it appears to be, then indeed it is an order of discharge with retrospective effect and a point has been taken, namely, that the order is bad because there cannot be an order of dismissal with retrospective effect. It has, however, been stated in the counter-affidavit that the actual order of discharge was made on the 28th May, 1954, and therefore there was no question of it being retrospective.
2. The petitioner preferred an appeal which appeal was dismissed on the 15th September, 1954. He has now come up to this court and a Rule was issued on the 15th March, 1955 and in this application the order of dismissal is challenged. Mr. Das Gupta appearing on behalf of the petitioner has taken three grounds. The first ground is that the appointing authority of the petitioner was the Special Officer, Home (Transport) Department, whereas the punishment was inflicted and the order of dismissal made by the opposite party No. 1 the Director-in-charge, who according to the petitioner, is an officer lower in rank than the Special Officer, Home (Transport) Department. The second ground is that the order is bad because it is retrospective in operation. The third ground is that the departmental proceeding was not conducted in accordance with the rules of natural justice inasmuch as the evidence was taken by a person other than the person deciding the case and holding the petitioner guilty of the charge preferred against him. With regard to the first ground, the opposite parties contest the statement that the Director-in-charge is an officer lower in rank than the Special Officer mentioned above. It is pointed out that the office of the Special Officer has now been abolished but that the Director-in-charge is an Officer of equal rank receiving the same pay. There is no material before me upon which I can decide this disputed question. With regard to the second ground, equally it appears to me to be a disputed question of fact. It does seem from the letter dated 31st May, 1954, that the order was made by that letter. It is, however, alleged that this only conveyed the information but that the order was made on the 28th May, 1954. If the order itself was made on the 28th May, 1954, there can of course be no question of its being retrospective. On the other hand, if it was an order made on the 31st May, 1954, and if it was made retrospective, then the order is bad. A reference may be made to a decision of Bose, J. in Abdul Hamid v. The District School Board, 24-Parganas (1) (61 C.W.N 880) and an unreported judgment delivered by Banerjee, J. on the 27th February, 1958 in Satyendra Kumar Dutta v. District, Board of 24-Parganas (2). Thus, the principle of law is well established that an order of dismissal cannot be made with retrospective effect. As I have pointed out, however, that the fact upon which the point of law is dependent is disputed and cannot be decided without taking evidence. I now come to the third and the last point. In my opinion, this is a point of substance. It will appear from the facts stated above that two witnesses, whose evidence have been discussed by the authority, which has found the petitioner guilty, gave their evidence not before the opposite party No. 1, but before someone else. In the counter-affidavit the excuse that has been given is that on two days the opposite aprty No. 1 was ill with fever and rather than inconvenience the defence witnesses, he authorised the Superintendent, Lake Depot, who is a gazetted officer, to take the evidence. In my opinion, the fact that the Superintendent is a gazetted officer makes no difference whatsoever. The procedure adopted is not permissible. Mr. Das Gupta has drawn my attention to certain decisions wherein it has been laid down that evidence taken before one learned judge cannot be used by another learned judge for arriving at a decision. This is not only true in civil cases but also true in criminal cases. The first decision to which reference may be made is a decision of an appellate Bench of this court presided over by Harries, C.J in Sarba Ranjan Bysack…Defendant, v. Sm. Haripriya Dassi…Plaintiff, .*, (3) 53 C.W.N 569. In that case, the trial commenced before the late Mr. Justice Khundkar and four witnessse were examined before him. Thereafter, unfortunately the learned judge died and the case was continued by Ormond, J., who held that he was entitled to take into ac-count the evidence of the witnesses given before Khundkar, J. This was set aside by the appellate court and Harries, C.J held that the procedure adopted was erroneous. In the case, reference was made to section 33 of the Evidence Act. That section lays down that evidence given by witnesses in a judicial proceeding or before any person authorised by law to take it, is relevant for the purpose of proving; in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case, the court considers unreasonable. The learned Chief Justice relied on the case of Chanchal Singh v. The King Emperor, (4) (50 C.W.N 201) where Lord Goddard delivering the judgment of the judicial committee stated as follows:
“Where it is desired to have recourse to section 33 of the Indian Evidence Act on the ground that witness is incapable of giving evidence, that fact must be proved and proved strictly. It is an elementary right of an accused person or a litigant in a civil suit that a witness who is to testify against him should give his evidence before the court trying the case which then has the opportunity of seeing the witness and observing his demeanour and can thus form a far better opinion as to his reliability than is possible from reading a statement or deposition. It is necessary that provision should be made for exceptional cases where it is impossible for the witness to be before the court; and it is only by a statutory provision that this can be achieved. But the court must be careful to see that the conditions on which the statute permits previous evidence given by the witness to be read are strictly proved.”
3. I have given this quotation because it propounds in clear terms the basic reason behind the exclusion of evidence in such cases. Mr. Das Gupta has drawn my attention to a criminal decision King Emperor v. Sakharam (5) (I.L.R 26 Bom. 50). It was held there that undtr the Code of Criminal Procedure the Sessions Judge was not authorised to try a case partly upon evidence not recorded by himself, and he cannot do so although the accused had given consent to such a course. In that case, the trial commenced and the evidence was led for the prosecution before the Additional Sessions Judge, Mr. Padamji. For some obscure reason, the matter was postponed for a long time and was later on heard by Mr. Witworth who accepted the deposition already taken and proceeded with the case. To this course of action, the accused was a consenting party. Nevertheless, it was held that the procedure was not in accordance with law.
4. It is true that so far as departmental proceedings are concerned, they are not governed by the Indian Evidence Act. In other words, the strict provisions laid down in the Indian Evidence Act are not applicable to departmental proceedings. Nevertheless, the proceedings are subject to rules of natural justice. The question, therefore, is as to what principle of natural justice is involved in such a case. The rules of natural justice are not codified and cannot be stated with exactitude. In departmental proceedings, it is unnecessary to import the strict procedure applicable to judicial trials. But where the departmental enquiry consists of the trial of a charge in which the punishing authority either by himself or through his delegate has a statutory duty to hear the delinquent or his witnesses, the procedure adopted is to a certain extent like a judicial trial and it is an open question as to whether such proceedings are purely administrative or are to be considered as quasi-judicial. Be that as it may, if the enquiring authority has the duty to come to a conclusion as to the guilt of the delinquent upon an evaluation or assessment of the evidence, then it is entirely necessary that he should be the person who should hear the evidence of the witnesses.
5. It is impossible to evaluate the evidence of a witness taken on proxy, because one of the salient features in such a proceeding is to observe the demeanour of the witness. As it has been said, even the devil doth not know the mind of man, and therefore, to arrive at the truth, it is necessary not only to read the evidence but to see the demeanour of the person giving evidence, and where necessary to elicit answers to doubtful points. To anyone conversant with such trials, it is but an elementary proposition that the demeanour of a witness is the most important element in assessing the value of his evidence. The evidence of a witness, which might sound all right on paper, may be rendered useless by observing his demeanour. In this case it is not as if the evidence that was given before the Superintendent was a mere formal evidence or an evidence which did net contribute to the ultimate decision. The evidence of the two witnesses mentioned above appears to have contributed largely to the ultimate judgment of the enquiring’ authority. He discussed the evidence of these two witnesses and it is clear that his decision was to a great extent swayed by such evidence. In such a case, it was wholly improper for the opposite party No. 1 to have delegated the task of hearing witnesses to someone else for two days and then deciding the case, upon the mere record of the evidence. By this action, the petitioner has been prejudiced. The petitioner was entitled to require that the enquiring authority should see the demeanour of the witnesses and hear them himself. One does not know what the reactions of the enquiring authority would have been if he had the opportunity of seeing the demeanour of the witnesses and of asking them questions to clear up any doubts that he may have had in his mind. In my opinion, the procedure adopted has vitiated the departmental proceedings and cannot be supported. The petitioner cannot be said to have had a reasonable opportunity of defending himself.
6. The Rule is, therefore, made absolute and there will be a Writ in the nature of Certiorari quashing the order dated 28th May, 1854, contained in the letter dated the 31st May, 1954 made by opposite party No. 1 discharging the petitioner from service, as also the order in appeal dated 15th September, 1954. There will also be a Writ in the nature of Mandamus directing the respondents not to give effect to the said orders. If the respondents wish to proceed with the departmental enquiry, they must proceed from the ‘point of time before the evidence was adduced, that is to say, after the petitioner submitted his explanation. There will be no order as to costs.
S.N.S