Court No. - 24 Case :- WRIT - A No. - 34904 of 2008 Petitioner :- Hiral Al Respondent :- Union Of India And Others Petitioner Counsel :- Siddharth Khare,Ashok Khare Respondent Counsel :- Govind Saran Hon'ble Amreshwar Pratap Sahi,J.
Heard learned counsel for the petitioner and the learned
counsel for the respondent Railways.
A counter affidavit has been filed on behalf of the
respondent.
The submission advanced by Sri Khare is that the order
impugned proceeds on an erroneous assumption and upon
wrong application of Rule 161 of the Railway Protection
Force Rules, 1987. The petitioner has been dismissed from
service on the charge that he was allegedly harassing
railway passengers and realizing money from them while on
escort duty. The petitioner has been dismissed without
holding any enquiry which is the admitted position. The
reason for not holding the enquiry as indicated in the
impugned order is that there is every likelihood of the
petitioner influencing the witnesses including the passengers
who might be produced as witnesses during the course of
the enquiry and even otherwise the petitioner being a
member of the disciplinary force such conduct of the
petitioner was reprehensible and therefore the only option
was to dismiss him by applying the Rule 161 read with
Section 9 of the Railway Protection Force Act 1987.
Sri Ashok Khare learned Senior Counsel submitted that the
aforesaid reason assigned in the impugned order is
untenable in as much as the order itself indicates that there
was a checking team comprising of officials of the
department to verify the aforesaid allegations on the spot
and thereafter the impugned order has been passed. He
submits that the said officers apart from passengers are very
much available and there is no occasion for the respondents
to presume that the petitioner will intimidate the said
witnesses or tamper with them during the course of the
enquiry. He has relied on the decision of the Apex Court in
the case of Chief Security Officer and others Vs. Singasan
Rabi Das, reported in (1991) 1 SCC 729.
Learned counsel for the Railways contends that the charges
are so serious and even otherwise the conclusion drawn for
recording the satisfaction is so evident that there is no
occasion to interfere with the order impugned. It is submitted
that it is quite possible that the passengers who had been
harassed may not depose before the enquiry proceedings
and therefore in view of the conduct of the petitioner the
punishment imposed is justified.
Having heard learned counsel for the parties. In my opinion,
the reason for dispensing with the enquiry is in clear teeth
the of law pronounced by the Apex Court in the case of
Chief Security Officer (supra) in Para 5 thereof quoted
below:-
“In our view it is not necessary to go into the submission
made by Dr. Anand Prakash because we find that in this
case the reason given for dispensing with the enquiry is
totally irrelevant and totally insufficient in law. It is common
ground that under Rules 44 to 46 of the said Rules the
normal procedure for removal of an employee 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 witness 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 b e 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. In this view it is not necessary for us to
consider whether any fresh opportunity was required to
be given before imposing an order of punishment. In the
result the appeal fails and is dismissed. There will be no
order as to costs.”
The rules applicable to the present controversy namely Rule
161 is quoted bellow:
“161. Special Procedure in certain cases.-
Notwithstanding anything contains anywhere in these rules-
(i) Where are punishment is imposed on an enrolled
member of the Force on the ground of conduct which has
led to his conviction on a criminal charge or;
(ii) Where the authority competent to impose the
punishment is satisfied for reasons to be recorded by it
in writing that is not reasonably practicable to hold an
inquiry in the manner provided in these rules;
(iii) Where the President is satisfied that in the interest of
security of State and the maintenance of integrity in the
Force, it is not expedient to hold any inquiry in the manner
provided in these rules;
the authority competent to impose the punishment may
consider the circumstances of the case and make such
orders thereof as it deems fit.”
A perusal of the Sub Rule (ii) leaves no room for doubt that a
satisfaction which has to be recorded by the competent
authority is to be supported by reasons to be recorded in
writing that it is not reasonably practicable to hold an
enquiry.
In the instant case the reason given in support of such
satisfaction does not satisfy the test of law as indicated
herein above.
The checking team constitutes of officials and there is no
plausible explanation as to why they could not be produced
to testify the incident during enquiry. The satisfaction
therefore as recorded is no satisfaction in the eyes of law
and does not hold water nor does it appeal to reason. In
such a situation and in view of the similar interpretation of
law given with regard to similar set of rules under the U.P.
Police Officers of Subordinate Ranks (Punishment and
Appeal) Rules, 1991 as pronounced in the case of Ram
Babu Singh Vs. State of U.P. and another, reported in 2009
(5) ADJ 581 and Ravindra Raghav Vs. State of U.P. and
others, reported in 2005 (3) AWC 2409 the order impugned
is unsustainable. Accordingly the impugned order dated 10th
April 2007 is quashed.
In view of the above the consequential orders of appeal and
reversion dated 8th October, 2007 and 28th April, 2008 are
also quashed.
It shall be open to the authority to proceed to hold an enquiry
against the petitioner in accordance with the rules
applicable.
The writ petition is allowed.
Order Date :- 12.8.2010
Sahu