S. R. Singh, J. - (1.) -By this petition under Article 226 of the Constitution, the petitioner who was a member of Railway Protection Force (R. P. F.) has challenged the order dated 2-9-1982 by which he was removed from service under Rule 47 (b) of the R. P. F. Rules, 1959 (in short 'the Rules').
(2.) REMOVAL from service is one of the major penalties specified in rule 41 of the Rules, which according to rule 44, cannot be inflicted "except after an enquiry held as far as may be in the manner" provided in the rule. But rule 47 which has an overriding effect provides for dispensation of the enquiry in certain circumstances and in the instant case the normal procedure of enquiry prescribed by rule 44 was dispensed with under rule 47 (b) of the Rules. The rule being relevant; for discussion is quoted as below : "47. Special Procedure in certain case-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 off the case and pass such orders thereon as it deems fit." It is thus evident from rule 47 (b) of the Rules that the Disciplinary Authority is empowered to dispense with the enquiry if, for reasons to be recorded, it is satisfied that it is not "reasonably practicable" to follow the procedure prescribed by rales 44, 45 and 46 of the Rules. The question for consideration in the present case is whether the Disciplinary Authority was justified in not following the normal procedure of enquiry prescribed by rule 44 which embodies the rule of natural justice and in passing an order of removal from service by invoking the power conferred upon it by rule 47 (b) of the Rules. In order to appreciate the controversy the relevant portion to the impugned order of removal which purports to have been passed under rule 47 (b) may be quoted as below : "Since you have managed to intimidate the witnesses against you both in police as well as in departmental cases as such under these circumstances. I, the disciplinary authority in your case, am fully satisfied for reasons recorded above, that it is not reasonably practicable to follow the normal procedure of DAR enquiry tinder rule 44 of R. P. F. Rules 1959 against you. As your work and conduct has been found to be unsatisfactory and detrimental to the good name of the force and you have been found unworthy of a member of the force Therefore in exercise of powers conferred upon me under rule 47 (b) of RPF rules 1959 I remove you from service with immediate effect." I have heard Sri V. C. Misra for petitioner and Sri Lalji Sinha for the respondents.
(3.) THE learned counsel for the respondents contended before me that the petitioner has an alternative remedy by way of appeal under rule 52 of the Rules and therefore, the petition be dismissed on this ground alone. Having heard the learned counsel for the parties, I do not feel pursuaded to dismiss the writ petition at this stage on the ground of alternative remedy THE petition was admitted in 1982 after exchange of counter and rejoinder affidavits and the Division Bench consisting of Hon. K. N. Singh, J. (as his Lordship then was) and Hon. K. M. Dayal, J. even though, as submitted by Sri Lalji Sinha himself,, the plea of alternative remedy was raised at that stage also. If the petitioner was not relegated to the alternative remedy of appeal at that stage it would not be proper to do so at the stage of final hearing which has reached after about nine years. The learned counsel for the petitioner urged before me that the disciplinary authority was not justified in imposing major penalty without following the procedure prescribed by rule 44 of the Rules which provides for an enquiry in tune with the principles of natural justice. Sri Lalji Sinha on the other hand, contended that the impugned order itself contains reasons for not following the procedure laid down by the said rule and the impugned order, according to him, is sustainable in view of the law laid down by the Supreme Court in Union of India v. Tulsi Ram Patel, AIR 1985 SC 1416 The observations of the Supreme Court in so far as they are relevant for the discussion of the issue in the present case are quoted below : "The condition precedent for the application of clause (b) is the satisfaction of the disciplinary authority that 'it is not reasonably practicable to hold" the enquiry contemplated fay clause (2) of Article 311. What it pertinent to note is that the words used are "not reasonably practicable" and not 'impracticable." According to the Oxford English Dictionary "practicable" means "capable of being put into practice, carried out in action, effected, accomplished, or done; feasible". Webster's Third New International Dictionary defines the word "practicable" inter alia as meaning -'possible to practice or perform: capable of being put into practice done or accomplished; feasible." Further, the words used are not "not practicable ' but "not reasonably practicable." Webster's Third New International Dictionary defines the word "reasonably" as "in a reasonable manner; to a fairly sufficient extent" Thus, whether it was practicable to hold the enquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by clause (b). What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the enquiry, but some instances by way of illustration may, however, be given. It would not be reasonably practicable to hold an enquiry where the government servant, particularly through or together with his associates, so terrorizes, threatens or intimidate, witnesses who are going to give evidence against him with fear of reprisal as to prevent them from doing so or what the government servant by himself or together with or through others threatens, intimidates and terrorizes the officer who is the disciplinary authority or members of his family so that he is afraid to hold the inquiry or direct it to be held. It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned government servant is or is not a party to bringing about such an atmosphere. In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. The treasonable practicability of holding an enquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that clause (3) of Article 311 makes the decision of the disciplinary authority on this question final. A disciplinary authority is not expected to dispense with a disciplinary enquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an enquiry or because the Department's case against the Government servant is weak and must fail. The finality given to the decision of the disciplinary authority by Article 311 (3) is not binding upon the court so far as its power of judicial review is concerned and in such a case the court will strike down the order dispensing with the enquiry as also the order imposing penalty.;