R.M. Sahai, J. - (1.) Rakshak of Railway Protection Force approached this Couit against his removal from service without holding any inquiry, under Rule 47 of Railway Protection Force Rules read with Article 311 of Constitution of India, as invalid since opinion of Chief Security Officer that it was not reasonably practicable to hold any inquiry under normal rules was arbitrary.
(2.) In January, 1981 petitioner along with one another Rakash was found selling 50 Kgs. of aluminium sheets, shutters and battery metal wire to one Noor Ali at shop of one Rashid. Seeing constable tire Rakshaks ran away but Noor Ali was arrested and officer-in-charge Police Station lodged a report and case under Sections 411/41, I.P.C. was filed against him. Letter on the case appear; to have been closed and final report filed. But petitioner was removed from service. The Chief Security Officer after maintaining about theft and report etc. dispensed with inquiry as in circumstances of the case he was satisfied that it was not reasonably practicable to hold any departmental inquiry. He observed that retention of petitioner in service was detrimental to security of the railway property in public interest and prejudicial to the interest of the force. In appeal it was held that local police closed the case it was not easy to establish custody of the property. But submission of final report did not disprove the fact that railway property weighing 50 Kgs. was stolen and was offered to Noor Ali by petitioner. Further Noor Ali would not have supported department's version.
(3.) Rule 47 of Railway Protection Force Rules lays down special procedure to be followed in certain case. Clause (b) of it empowers the authority to dispense with inquiry against an employee if in the circumstances of the case he was of opinion that it was not reasonably practicable to hold it. It is not and could not be disputed that reason for proceedings under this rule had been recorded. What is urged is that this extraordinary procedure should be exception rather than the rule. Learned counsel urged that test laid down by Supreme Court and this Court is not that there should be certainty or possibility of conviction of delinquent being found guilty but difficulty should be in holding inquiry. According to the learned counsel the apprehension that witnesses shall not support departments case during inquiry could not justify action under the rule. Reliance was placed on R. K. Misra v. General Manager, Northern Railway, 1977, 2 Service Law Report. Page 127 wherein while construing words 'reasonably practicable is was observed by Delhi High Court that domestic enquiry is held not with a view to establish charge against delinquent but to find out the truth and associate the employee in process of inquiring the truth. It was also argued that as observed by Orissa High Court in Prainod Chandra Mohanti v. Divisional Superintendent, 1977 SLR 276. the anxiety to root but corruption and enforce discipline should not outweigh the protection afforded to a government servant by Article 311 (2) of Constitution of India. It was also urged that Bombay High Court in Mohammad Tayum v. Union of India, 1977 Labour and Industrial Cases 1590. struck down an order dispensing with inquiry because of impossibility of getting the bribe giving passengers to give evidence against delinquent, non-availability of corroborative evidence other than report of the Vigilance inspector, likelihood of corrupt employees going free because of insistence on corroboration, possibility of exposing the identity of the Vigilance inspector or his being examined as witness as superficial, Misconceived and irrelevant. Reliance was placed on and Maksudan Pathak v. The Security Officer, 1981 Labour and Industrial Cases 881 as well. learned counsel urged that decision in Union of India v. Tulsi Ram Patel, AIR 1985 SC. did not in any manner erode the basic construction of expression (Reasonably practicable used in Rule 47. He urged that Rule 47 and Article 311 (2) were not identical. According to him even if it was not possible to hold elaborate inquiry as provided in rules the department should have provided at lust the minimum inquiry contemplated under Article 311 (2). Reliance was pitted on Jayami Lal v. Mahindra Singh, 1977 SLR 10.;