JUDGMENT By the Court.—Heard Shri K.P. Agrawal for the petitioner in Writ Petition No. 14190 of 1982. Shri Lalji Sinha appears for the respondents. We have heard the same parties in the pending and connected Special Appeal. 2. The Special Appeal was dismissed on 1.4.2004 for want of prosecution. It was restored on 13.8.2004. It was again dismissed for non-prosecution on 8.9.2006 and was restored on 5.1.2007. 3. The Special Appeal arises out of judgment of learned Single Judge dated 9th August, 1995 dismissing the writ petition No. 14190 of 1982, in limine. 4. Shri Basudeo Shukla, the writ petitioner served as a Constable (Rakshak) in the Railway Protection Force (RPF). His service conditions are regulated by the Railway Protection Force Act, 1957. When he was posted at Mughal Sarai, eight bags of wheat were recovered from west end of the Down Marshalling Yard by Shri W.A. Khan during the duty hours of the petitioner in the shift 8.00 to 16.00 hrs. in Down Receiving Yard at Gaya. Shri Khan suspected that the bags were part of the consignment of Wagon No. NR/Box 84350, Ex-Faridkot to Kalyani. The petitioner was suspected to be involved in the alleged recovery of the wheat bags. A first information report was lodged against him and two other Rakshaks namely Shri Satram Missir and Shri Sheo Kumar Upadhyay. The petitioner was suspended from active duties on 25.2.1982. He, however, was not issued any charge sheet, nor given any opportunity of hearing to defend himself either before the suspension order or before lodging the FIR. An order dated 14.5.1982 (No. 212 of 1982) was passed in exercise of powers under Rule 47 of the Railway Protection Force Rules, 1959 (Rules of 1959), by the Asstt. Security Officer, RPF, Eastern Railway, Mughal Sarai dismissing him from service without holding a departmental enquiry. 5. The petitioner preferred an appeal to the Security Officer, RPF and also a mercy appeal dated 8.9.1982. The appeal was rejected on 14.9.1982. The petitioner challenged both the orders in the writ petition. On 7.12.1982 Shri Lal Ji Sinha, learned counsel appearing for the respondents was given three weeks’ time to file counter affidavit and that on 2.3.1983 after hearing the parties the Court passed the following order : “No counter affidavit has been filed in spite of a stop order passed by this Court. On 7.12.1982 Shri Lal Ji Sinha, learned counsel appearing for the respondents was given three weeks’ time to file counter affidavit and that on 2.3.1983 after hearing the parties the Court passed the following order : “No counter affidavit has been filed in spite of a stop order passed by this Court. Having heard learned counsel for the parties, I direct that the respondent-Railway shall pay to the petitioner w.e.f. 1st January, 1983 the salary and other emoluments which were payable to the petitioner immediately prior to the termination of his services during the pendency of this petition. The respondent-Railway shall, however, be at liberty not to take work from the petitioner. The petitioner shall be paid arrears of salary and emoluments due from the 1st of January, 1983 upto the 28th of February, 1983 by the 31st of March, 1983 and thereafter the respondent shall pay to the petitioner salary and emoluments for the subsequent months as and when the same are paid to the other employees belonging to the category of the petitioner during the pendency of this petition. This order shall continue in operation until further orders of this Court.” 6. The petitioner was permitted to join and serve. It appears that he absented from the duties. Consequently a charge-sheet was served upon him on the charges of remissness and negligence in discharge of his duty and that by order dated 14.10.1985 his services were terminated. The petitioner challenged the order of termination of his services dated 14.10.1985 in Writ Petition No. 18079 of 1986 between Basudeo Shukla v. The Security Officer & Anr. Learned Single Judge dismissed the writ petition in limine on 9th August, 1995 for the reasons that this Court had in Writ Petition No. 14190 of 1982 directed to pay salary to the petitioner and to go on paying salary as and when it fell due with liberty not to take work from the petitioner. Learned Single Judge observed : “In the writ petition it has not been stated that the respondents have ever asked the petitioner not to attend the office regularly. On the other hand, he was required to attend the office, therefore, it was obligatory upon the petitioner to attend the office regularly in the ordinary course of business as there existed no hurdle in his way in attending the office. On the other hand, he was required to attend the office, therefore, it was obligatory upon the petitioner to attend the office regularly in the ordinary course of business as there existed no hurdle in his way in attending the office. Under law, no body is entitled to salary without doing work and without attending the office. The submission made on behalf of the petitioner that he was not required to attend the office regularly because of order of suspension dated 25.2.1982, is totally misconceived. Further, learned counsel for respondents is right in contending that against the order of dismissal dated 14.10.1985, an alternative and equally efficacious remedy by way of appeal was available to the petitioner under Regulation 33 of Railway Protection Force Regulations. It was, therefore, not open to the petitioner to approach this Court directly under Article 226 of the Constitution without exhausting the statutory remedy of appeal.” 7. The petitioner filed Special Appeal No. 761 of 1995 against this judgment. The appeal was admitted on 11.1.1996. Shri Basudeo Shukla, the petitioner died on 19.2.2006. A substitution application filed by his legal heirs was allowed and that his wife and two sons have been impleaded as his heirs and legal representatives as appellant Nos. 1/1, 1/2 and 1/3, respectively. 8. The questions, which calls for consideration in this case are; (1) whether the petitioner could be dismissed from service under Rule 47 of the Railway Protection Force Rules, 1959 without giving the reasons as to why it was not reasonably practicable to follow the procedure prescribed for disciplinary enquiry under the rules; and (2) whether the petitioner’s services could be terminated on 14.5.1982 for failing to attend the duties, after the directions issued by the High Court on 2.3.1983, on the ground that he was not stopped from attending the office? 9. On the first question we find that Rule 47 (b) of the Rules of 1959, is in the same language as Article 311 (2) of the Constitution of India, which came up for interpretation of the Supreme Court in many cases including the Constitution Bench judgment in Union of India v. Tulsi Ram Patel, AIR 1985 SC 1416 . The Supreme Court held that the competent authority must record good and sufficient reasons, which are justiciable, as to why it is not reasonably practicable to hold departmental enquiry on the charges. 10. The Supreme Court held that the competent authority must record good and sufficient reasons, which are justiciable, as to why it is not reasonably practicable to hold departmental enquiry on the charges. 10. The order sheet signed by the Asstt. Security Officer, RPF, Eastern Railway, Mughal Sarai annexed as Annex. 1, to the writ petition No. 14190 of 1982 would show that Shri Wakil Ahmad Khan recovered bags of wheat of different sizes about eight in number, thrown away by the criminals, who fled away noticing IPF/CIB advancing towards them. The three Rakshaks were present on the spot. They also started fleeing away towards south side, whereas the criminals ran towards north. Inspite of raising ‘Halla’ and seeking assistance by IPF to chase and apprehend the criminals none of the Rakshaks came forward to assist though they were present on the spot. These three Rakshaks were identified by IPF/ Khan as Rakshak 362 Satram Missir; Rakshak 699 Basudeo Shukla and Rakshak 5514 Sheo Kumar Upadhyay of RPF Post Gaya. On being questioned as to why they did not help and made an attempt to run away stealthily, the three Rakshaks could not give any satisfactory reply and begged for apology, pleading guilty. Rest of the report deals with the manner in which these bags were recovered and then it was observed : “The theft and pilferage of such dimension and skilful nature as revealed above under no circumstances was possible in the Railway Yard, Gaya without their active connivance and close conspiracy. Their conduct subsequent to the theft being present on spot, not rendering lawful assistance to IPF/CID in arresting the criminal who taken away the stolen property i.e. bags of wheat as well as not disclosing the names and identification of criminals to initiate legal action against them, has fully established their deep rooted ubholly links with the criminals at Gaya. From the above facts and secret enquiry as well as scrutiny of records at different stages and examination of delinquent RPF Staff as mentioned above, I am fully convinced that above named RPF staff are guilty and responsible for serious theft committed in their presence in a skilful manner avoiding evidence. From the above facts and secret enquiry as well as scrutiny of records at different stages and examination of delinquent RPF Staff as mentioned above, I am fully convinced that above named RPF staff are guilty and responsible for serious theft committed in their presence in a skilful manner avoiding evidence. It is in no way reasonably practicable to follow the extent procedure for initiating disciplinary action under Rules 44, 45 and 46 of RPF Rules 1959 in conformity with clause (2) of Article 311 of the Constitution of India. To my strong conviction their such conduct is found to be quite averse to the responsibilities and reliance reposed in them as member of the Railway Protection Force. Their acts misdeeds and conduct are definitely prejudicial in the interest of Railway Administration and Nation as well as in my view their further retention in the service be a permanent liability to the Administration as they cannot be of any service to the Administration. In view of the reasons and the circumstances discussed and explained above their retention in service is found not desirable in the public interest. Now, to meet the ends of justice, in exercise of powers conferred on me under Rule 47 of RPF Rules, 1959 read with para 13 (B) and 14 of Chapter XVI of RPF Regulation 66 hereby order that Rakshak 699 Basudeo Shukla and Rakshak 5514 Sheo Kumar Upadhyay be removed from service with effect from 14.5.1982. Let a RO be issued accordingly. On going through the C.S. Roll of RK/Satram Missir it is seen that he was appointed by the Commandant, RPF Consider the status of the Appointing Authority, the undersigned is virtually not legally competent to impose the penalty of removal on the Rakshaks, therefore, the case is referred to S.O./MGS for perusal and judicious order.” 11. Shri B.D. Sharma, Asstt. Security Officer, RPF, Eastern Railway, Mughal Sarai passed an order on 14.5.1982 dismissing the petitioner from service. The order reads as follows : “Whereas Rakshak 699 Basudeo Shukla has been found indulging skilfully in organising crime on Railways and adopting skilful methods to evade detection of offence, localisation of seat of crime and identification of criminals while on duty in beat No. 1/2 of Down Receiving Yard, Gaya from 08.00 to 16.00 hrs. The order reads as follows : “Whereas Rakshak 699 Basudeo Shukla has been found indulging skilfully in organising crime on Railways and adopting skilful methods to evade detection of offence, localisation of seat of crime and identification of criminals while on duty in beat No. 1/2 of Down Receiving Yard, Gaya from 08.00 to 16.00 hrs. on 22.2.82, as revealed during the enquiry of theft of 8 bags wheat from wagon No. NR/Box 84350 Ex. Faridkot to Kalyani at about 10/50 hrs. on 22.2.1982. Whereas the work and effectiveness of Rakshak 699 Basudeo Shukla are found totally averse to the responsibilities and reliance reposed in him as member of the Railway Protection Force and the same is considered to be absolutely detrimental to the interest of Railway Administration in particular and the Nation in general. Whereas the undersigned is satisfied that the conduct and the activities of Rakshak 699 Basudeo Shukla are against public interest and the Administration and instead of any use to the Administration, has proved a liability. Whereas the undersigned is fully convinced that the circumstances of the case are such that it is not reasonably practicable to follow and to initiate disciplinary action against his guilt under normal procedure prescribed under Rules 44, 45 and 46 of RPF Rules, 1959 and as referred to in Article 311 (2) of the Constitution of India. Now, therefore, in order to meet the ends of justice the undersigned in exercise of the powers conferred on me under Rule 47 of RPF Rules, 1959, hereby order that Rakshak 699 Basudeo Shukla be removed from service with effect from 10.5.1982. Sd/- B.D. Sharma Asstt. Security Officer R.P.V. E.Rly. Mughalsarai” 12. In Union of India v. Tulsiram Patel, AIR 1985 SC 1416 the Supreme Court held : “It is not necessary that a situation which makes the holding of an inquiry not reasonably practicable should exist before the disciplinary inquiry is initiated against a government servant. Such a situation can also come into existence subsequently during the course of an inquiry, for instance, after the service of a charge-sheet upon the government servant or after he has filed his written statement thereto or even after evidence has been led in part. In such a case also the disciplinary authority would be entitled to apply clause (b) of the second proviso because the word “inquiry” in that clause includes part of an inquiry. In such a case also the disciplinary authority would be entitled to apply clause (b) of the second proviso because the word “inquiry” in that clause includes part of an inquiry. It would also not be reasonably practicable to afford to the government servant an opportunity of hearing or further hearing, as the case may be, when at the commencement of the inquiry or pending it the government servant absconds and cannot be served or will not participate in the inquiry. In such cases, the matter must proceed ex parte and on the materials before the disciplinary authority. Therefore, even where a part of an inquiry has been held and the rest is dispensed with under clause (b) or a provision in the service rules analogous thereto, the exclusionary words of the second proviso operate in their full vigour and the government servant cannot complain that he has been dismissed, removed or reduced in rank in violation of the safeguards provided by Article 311(2). The second condition necessary for the valid application of clause (b) of the second proviso is that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311(2). This is a Constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional.” 13. In Chief Security Officer v. Singasan Rabi Das, (1991) 1 SCC 729 the Supreme Court held with reference to the same rules as in the present case, as under : “It is common ground that under Rules 44 to 46 of the said Rules normal procedure for removal is that before any order for removal from service can be passed the employee concerned must be given notice and an enquiry must be held on charges supplied to the employees concerned. In the present case the only reason given for dispensing with that enquiry was that it was considered not feasible or desirable to procure witnesses of the security/other Railway employees since this will expose these witnesses and make them ineffective in the future. In the present case the only reason given for dispensing with that enquiry was that it was considered not feasible or desirable to procure witnesses of the security/other Railway employees since this will expose these witnesses and make them ineffective in the future. It was stated further that if these witnesses were asked to appear at a confronted enquiry they were likely to suffer personal humiliation and insults and even their family members might become targets of acts of violence. In our view these reasons are totally insufficient in law. We fail to understand how if these witnesses appeared at a confronted enquiry, they are likely to suffer personal humiliation and insults. These are normal witnesses and they could not be said to be placed in any delicate or special position in which asking them to appear at a confronted enquiry would render them subject to any danger to which witnesses are not normally subjected and hence these grounds constitute no justification for dispensing with the enquiry. There is total absence of sufficient material or good grounds for dispensing with the enquiry.” 14. In Prithipal Singh v. State of Punjab, (2006) 13 SCC 314 it was held in para 9 as under : “Holding of a departmental proceeding is the rule. The second proviso appended to Article 311 (2) of the Constitution of India provides for an exception. It is a trite law that existence of such an exceptional situation must be shown to exist on the basis of relevant materials. In this case, even such a question did not arise as a departmental proceeding had been held and the appellant was not found guilty therein. Once he was exonerated of the charge, the question of issuing an order of dismissal against him and that too, upon dispensation of a formal inquiry, did not arise. The judgment of the High Court as also of the first appellate Court are set aside and that of the trial Court is restored. In the peculiar facts and circumstances of the case the appellant shall be entitled to the costs, which is quantified at Rs.10,000/-.” 15. In the present case the reports submitted by the Asstt. The judgment of the High Court as also of the first appellate Court are set aside and that of the trial Court is restored. In the peculiar facts and circumstances of the case the appellant shall be entitled to the costs, which is quantified at Rs.10,000/-.” 15. In the present case the reports submitted by the Asstt. Security Officer and the order dated 14.5.1982 do not give any reference to the evidence or the material on the basis of which the petitioner was found : “indulging skilfully in organising crime in railways and adopting skilful methods to evade detection of offence, localisation of seat of crime and identification of criminals.” The fact that the petitioner and other two RPF personnel started running from the spot in the opposite direction, but later stopped and could not give sufficient explanation for failing to assist the inspecting party, by itself, was not sufficient material to arrive at conclusion that the petitioner with other two RPF Rakshaks was skilfully indulging in organised crime. The tests laid down in Tulsiram Patel’s case are not satisfied. We find that firstly there are no reasons recorded as to why it was not reasonably practicable to hold disciplinary enquiry and that the observations made were not based on any material or evidence at all. There was no exceptional situation on the basis of relevant materials to have exercised the powers, to do away with the departmental enquiry. We are not satisfied and find that no reasons were given to hold that it was not reasonably practicable to hold departmental enquiry and thus the order of dismissal dated 14.5.1982 passed by the Asstt. Security Officer and the order dated 14th September, 1982 dismissing the appeal cannot be sustained. The petitioner (since deceased) was dismissed on 15.5.1982, and the appeal was preferred on 13.7.1982. The appeal was not so unreasonably delayed that the appellate authority should not have considered it on merits, specially in view of the fact that no departmental enquiry was held. 16. Now coming the question as to whether termination order dated 14.10.1985 could be passed against the petitioner, we find that by the interim order the Court did not stay the operation of the order of dismissal dated 14.5.1982 under Rule 47 of the RPF Rules, 1959. 16. Now coming the question as to whether termination order dated 14.10.1985 could be passed against the petitioner, we find that by the interim order the Court did not stay the operation of the order of dismissal dated 14.5.1982 under Rule 47 of the RPF Rules, 1959. The Court had directed the respondents railway to pay to the petitioner salary and other emoluments, which were payable to him immediately prior to termination of his services during pendency of the petition, with liberty not to take work from him. The petitioner for all practicable purposes was under order of dismissal, and the Court ought not to have directed the salary to be paid unless the order removing the petitioner from service were stayed. 17. We, however, are concerned with the order of termination of service on the ground that the petitioner was not communicated or asked not to attend to the duties and thus it may be taken that he was required to attend the office and that he was not attending to the duties. The observations made by learned Single Judge in the judgment dated 9th August, 1995 that the petitioner was required to attend the office and, therefore, it was obligatory upon the petitioner to attend the office regularly, in the ordinary course of business as there existed no hurdle in his way in attending the office, was made without there being any material on record by which the petitioner was directed to attend the office. The respondents had removed the petitioner from service. They were under direction to pay salary and were given liberty not to take work from the petitioner. The fact situation demanded a positive order by the respondent-railway to direct the petitioner to attend the office. 18. Ordinarily a person, who has been removed from service is not required to attend the office unless his removal order is stayed or is set aside. There is no positive order directing the petitioner to attend the office and therefore, the order terminating his services dated 14.10.1985 was not justified. In any case if the respondents were in any doubt, they could have approached the High Court for clarification. The order terminating an employee, who was not in service and that too in respect of which the removal order was not stayed, was wholly superfluous. In any case if the respondents were in any doubt, they could have approached the High Court for clarification. The order terminating an employee, who was not in service and that too in respect of which the removal order was not stayed, was wholly superfluous. The only course open to the railways was, if they wanted the petitioner to attend the duties was to have approached the High Court for vacating the stay order or for clarification to stop the payment of salary. 19. We are of the opinion that the respondents acted illegally and without any authority vested in them in law to terminate the petitioner’s services, and thereby stopping the payment of his salary contrary to the directions issued by this Court on 2.3.1983. 20. The Writ Petition No. 14190 of 1982 is restored and is allowed. The order dated 14.5.1982 removing the petitioner from service under Rule 47 of the Rules of 1959 and the appellate order dated 14.9.1982 are set aside. We would have ordinarily allowed the respondents to hold a departmental enquiry against the petitioner, but since he has died, no orders for holding departmental enquiry can be passed. The petitioner (since deceased) was willing to serve and had joined in pursuance to the interim orders. We, therefore, hold the petitioner entitled to full salary and allowance till he had superannuated (or had died), and thereafter pension and family pension to the widow of the deceased. 21. We also allow the Special Appeal No. 761 of 1995 and set aside the judgment of learned Single Judge dated 9th August, 1995 in Writ Petition No. 18079 of 1986 and set aside the order dated 14.5.1985 by which the petitioner’s services were terminated. The petitioner is also held entitled to costs, quantified at Rs. 25,000/- as cost of litigation and another Rs.25,000/- as compensation to the petitioner, to be payable to his family. The entire amount, to be paid to the widow of the deceased, shall be computed and paid over to her within three months from the date of production of certified copy of this order before the competent authority. ————