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1987 DIGILAW 913 (ALL)

Uttam Chand v. Deputy Inspector General Railway Protection Special Force, New Delhi

1987-09-11

R.P.SINGH, S.K.DHAON

body1987
JUDGMENT S.K. Dhaon, J. - The petitioner, a member of the Railway Protection Force, is aggrieved by an order of removal. He was unsuccessful in appeal as well in revision. All the three orders are being impugned in the present writ petition. 2. Action has been taken against the petitioner under the Railway Protection Force Rules, 1959 (hereinafter referred to as the Rules). Rule 41 enumerates a number of penalties which. can be imposed on a member of the force, one of them being removal Rule 42 talks of petty punishments. Rule 43 specifies the disciplinary authorities. Rule 44 prescribes the procedure for imposing major penalties. The provisions contained in Rule 44 are akin to those contained in Article 311 (2) of the Constitution. Rule 45 talks of procedure for imposing minor penalties. Rule 46 speaks of procedure for imposing petty punishments. Rule 47 authorises the Disciplinary Authority to do away with the procedure provided in Rules 44, 45 and 46 in certain situations. We shall deal with the said Rule a little later. 3. The submission put forward in the forefront is that 'there was no occasion for the Disciplinary Authority to depart from the procedure laid down in Rules 44, 45 and 46. A two pronged attack has been made. First, no valid reason existed. Secondly, the reasons given by the Disciplinary Authority do not demonstrate that it was not reasonably practicable to follow the procedure. For appreciating the submission Rule 47 may be extracted: "47 Special procedure in certain cases.--Notwithstanding anything contained in Rules 44, 45 and 46, where a penalty is imposed on a member of the Force (a) on the ground of conduct which has led to his Conviction on a Criminal charge; or (b) where the disciplinary authority is satisfied for reasons to be recorded in writing, that it is not reasonably practicable to follow the procedure prescribed in the said rules, the Disciplinary Authority may consider the circumstances of the case and pass such orders thereon as it deems fit." 4. Before considering the said Rule, it is necessary to have a few facts in view on 18th November, 1980, the petitioner and some other persons were posted at Katrasgarh. On that date the Assistant Commandant convened a "Suraksha Sammelan" of the staff (a gathering of the staff) to apprise himself of the grievances and the difficulties of the staff. Before considering the said Rule, it is necessary to have a few facts in view on 18th November, 1980, the petitioner and some other persons were posted at Katrasgarh. On that date the Assistant Commandant convened a "Suraksha Sammelan" of the staff (a gathering of the staff) to apprise himself of the grievances and the difficulties of the staff. At the gathering, one Murli Dhar Das, a member of the force, whose services were under suspension, requested for the revocation of the order suspending him. Das was told that he may make a proper representation to the appropriate authority which would be considered. He felt satisfied. Another member of the Force Ishwar Narain Singh stood up and pleaded that the order of suspension of Das should be revoked forthwith. He also threatened that the members of the Force will go on strike. The petitioner, who was present, instigated the members of the force resent there to go on strike and raised slogans loudly. On the same day at about 11 A.M. the petitioner and Ishwar Narain Singh declared that the staff will go on hunger strike. The petitioner was transferred from Katrasgarh to Gorakhpur. On 26th November, 1980, the order of removal was passed at Gorakhpur by the Assistant Commandant. In the order of the Assistant Commandant purported to give reasons for invoking Rule 47 for the purpose of dispensing with the procedure prescribed for taking disciplinary action. It will be immediately seen that the impugned order was passed. at Gorakhpur where the petitioner had been transferred nine days after the incident at Katrasgarh. 5. Against this back drop the reasons given by the Assistant Commandant may be examined. It will be convenient to extract the relevant portions of the order of the said Officer: "5. The preliminary enquiry report submitted by Company Commander. B Company is accompanied by sufficient evidence in its support. But I am of the opinion that the normal procedure will cause unavoidable delay and is also likely to take a long time which will afford further opportunities to the delinquent to induce and instigate the other staff against the administration and thus to cause further deterioration of discipline and morale of the force." "6. But I am of the opinion that the normal procedure will cause unavoidable delay and is also likely to take a long time which will afford further opportunities to the delinquent to induce and instigate the other staff against the administration and thus to cause further deterioration of discipline and morale of the force." "6. In view of the reasons mentioned in para-5 above, I am satisfied that it is not reasonably practicable to follow the normal procedure in terms of Rules 44 to 46 of R.P.F. Rules 1959 in this particular case and the circumstances warrant the adoption of procedure prescribed under Rule of 47 of R.P.F. Rules, 1959". An analysis of the reasoning, as extracted above, shows that the only ground given is that if the prescribed procedure is followed unavoidable delay will be caused and on account of delay a further opportunity will be afforded to the petitioner to induce and instigate the other staff against the administration and thus cause further deterioration of discipline,and morale of the force. It is repeated that the petitioner is not at Katrasgarh but is at Gorakhpur. There is nothing in the order to indicate that the petitioner indulged in undesirable activities at Gorakhpur after his transfer from Katrasgarh. The question, therefore, is: Can a mere ground that delay will be caused if the normal procedure is followed either be a valid reason for dispensing with the normal procedure or can such a reason for the basis for being satisfied that it is not reasonably practicable to follow the procedure? It is apparent that it is the intendment of the Rule that there should be a rational or proximate relationship between the reason and the satisfaction that it is not reasonably practicable to follow the procedure. The expression "reasonably" has been designedly used to qualify the expression "practicable". Therefore, we are entitled to determine as to whether there existed any nexus between the reasons recorded and the reasonable practicability of following the procedure. There is nothing in Rule 44 to fetter the discretion of the Disciplinary Authority to adopt such procedure which may prevent delay in the culmination of the disciplinary proceedings. It is open to Disciplinary Authority to adopt such a procedure which may accelerate proceedings of the enquiry. There is nothing in Rule 44 to fetter the discretion of the Disciplinary Authority to adopt such procedure which may prevent delay in the culmination of the disciplinary proceedings. It is open to Disciplinary Authority to adopt such a procedure which may accelerate proceedings of the enquiry. It is implicit in Rule 44 that the Disciplinary Authority can regulate its own proceedings and reject the applications for adjournment etc. if made by the delinquent official, if it feels satisfied that the application has been made with some ulterior motive or the delinquent official is adopting dilatory tactic We have, therefore, no hesitation in taking the view that the possibility of delay in the culmination of, disciplinary proceedings is not germane to the reasonable practicability of following the procedure. Such a consideration is irrelevant or extraneous. We also hold that no reasonable person could take the view that on account of the possibility of delay the following of the procedure was not reasonably practicable. 6. In Union of India v. Tulsi Ram Patel, 1985(2) SLR 576 (S.C.) the Supreme Court considered clause (b) of the second proviso to Article 311 (2) of the Constitution. The import of the second proviso, in so far as it is relevant to the present controversy, is that the guarantee to civil servants of a reasonable opportunity being afforded as enshrined in Article 311 (2) shall not be available where an authority empowered to dismiss or remove a person or to reduce hits in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold an enquiry. In this case the Supreme Court made an exhaustive discussion and the majority of the Hon'ble Judges constituting the Bench expressed their opinion through Madon J. 7. In Satvir Singh v. Union of India, 1986(1) SLR 255 (SC) their Lordships summarised the conclusions reached by the majority in Tulsi Ram Patel's case. Some of the propositions summarised in Satvir Singh's case, which are relevant to the present controversy, are as follows : "It is not a total or absolutely impracticability which is required by clause (b) of the second proviso what is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking reasonable view of the prevailing situation". There is nothing in the impugned order to indicate as to what was the prevailing situation at Gorakhpur on 27th November, 1980. We are, therefore, unable to hold that the view of the Disciplinary Authority in the instant case was reasonable one. "The disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motive or merely in order to avoid the holding of an inquiry or because the Department's case against the civil servant is weak and must fail". In the instant case our feeling is that the Disciplinary Authority merely avoided the holding of an enquiry. "Where a clause of the second, proviso to Article 311(2) or an analogous service rule is applied on an extraneous ground or a ground having no relation to the situation envisaged in such clause or rule, the action of the disciplinary authority in applying that clause or rule would be mala fide and, therefore, bad in law and the court in exercise of its power of judicial review would strike down both the order dispensing with the inquiry and the order of penalty following thereupon". We have already held that the Disciplinary Authority applied Rule 47 on an extraneous ground and also the fact that that ground had no relation to the holding of a disciplinary enquiry. "In the case of a civil servant who has been dismissed or removed from service or reduced in rank by applying clause (b) of the second proviso to Article 311 (2) or an analogous service rule, the High Court under Article 226 or this Court under Article 32 will interfere on grounds well-established in law for the exercise of its power of judicial review in matters where administrative discretion is exercised." We will be repeating ourselves in observing that the Disciplinary Authority exercised its discretion on irrelevant and extraneous considerations. Further, keeping in view the facts and circumstances of the instant case, it can be held that the Disciplinary Authority exercised its discretion arbitrarily. "In examining the relevance of the reasons given for dispensing with the inquiry, the court will consider the circumstances which, according to the disciplinary authority, made it come to the conclusion that it was not reasonable practicably to hold the inquiry. "In examining the relevance of the reasons given for dispensing with the inquiry, the court will consider the circumstances which, according to the disciplinary authority, made it come to the conclusion that it was not reasonable practicably to hold the inquiry. If the court finds that the reasons are irrelevant, the order dispensing with the inquiry and the order of penalty following upon it would be void and the court will strike them down. In considering the relevancy of the reasons given by the disciplinary authority, the court will not however, sit in judgment over the reasons like a court of first appeal in order to decide whether or not the reasons are germane to Clause (b) of the second proviso or an analogous service rule. The court must put itself in the place of the disciplinary authority and consider what in the prevailing situation a reasonable man acting in a reasonable manner would have done. It will judge the matter to the light of then prevailing situation and not as if the disciplinary authority was deciding the question whether the inquiry should be dispensed with or not in the cool and detached atmosphere of a court- room, removed in time from the situation in question. Where two views are possible, the court will decide to interfere". We have tried to examine the discretion exercised by the Disciplinary Authority in the light of the situation prevailing on 27th November, 1980 and we are satisfied that the Disciplinary Authority had, on that date, no justification to dispense with the procedural requirements merely on the ground that he apprehended that some delay will be caused. 8. There is a serious infirmity in the impugned order of the revisional authority. The petitioner passed before it that it should hold an enquiry itself. Such an averment had been clearly made in the writ petition. The revisional authority in its order has not dealt with this request of the petitioner at all. However, since we have already taken the view that there is no legal justification on the part of the Disciplinary Authority to bypass the procedure prescribed in Rule 44, we do not consider it necessary to proceed with the matter any further. 9. In the result, the writ petition succeeds and is allowed. The impugned order dated 27th November, 1980, passed by the Disciplinary Authority removing the petitioner from service is quashed. 9. In the result, the writ petition succeeds and is allowed. The impugned order dated 27th November, 1980, passed by the Disciplinary Authority removing the petitioner from service is quashed. The orders dated 18th March, 1981 and 3rd June, 1986, passed by the appellate authority and the revisional authority respectively are also quashed. However, we make it clear that it will be open to the respondents to initiate a fresh enquiry against the petitioner in accordance with law, if so advised. 10. The petitioner is entitled to costs.