G.R.Bhattacharjee, J. - (1.) In this writ petition the petitioner prays for setting aside the impugned order of dismissal from service dated 8.3.85. The petitioner while serving as a Rakshak in the Railway Protection Force and attached to the Padmapukur Railway Protection Force Post was dismissed from service by the impugned order of dismissal dated the 8th March. 1985 passed by the senior Security Officer, South-Eastern Railway as disciplinary authority. The said dismissal order is annexure-B to the writ petition. The dismissal order was passed in the background of conviction of the petitioner by court on a criminal charge under the Railway Property (Unlawful Possession) Act, 1966. It is recited in the dismissal order that whereas it is considered that the conduct of the petitioner which led to his conviction is such as to render his further retention in public service undesirable he is dismissed in exercise of the powers conferred by rule 47(a) of the RPF Rules, 1959 with effect from 8.3.85. The prosecution case against the petitioner in the criminal case under the R.P. (U.P.) Act was that as Rakshak of the RPF Protection Force he was on duty on 4.8.74 from 4 p.m. to 12 mid-night and after the said duty period when he was coining out on 5.8.74 at about 00.2011,,. after finishing his duty it was noticed by a Sub-Inspector of the Railway Protection Force that he was carrying a bag and on being challenged by the Sub-Inspector and others the petitioner opened the bag wherein 11 PCs. of Taj soap and 9 PCs. of Cinthol soap wrapped up in a piece of cloth was found. The soaps were reasonably suspected to have been stolen from the railway wagons which were on transit and a criminal case was accordingly started in the court and ultimately after trial he was found guilty by the court on 18.5.84 under section 3(a) of the RP(UP) Act and he was sentenced to suffer simple imprisonment for three months. The petitioner then preferred an appeal in the higher court against the said order of conviction and sentence but the appeal was also ultimately dismissed. Earlier however the petitioner was also placed under suspension. Ultimately the disciplinary authority passed the dismissal order under rule 47(a) of the RPF Rules, 1959 in the background of the conviction of the petitioner under the RP(UP) Act.
(2.) The petitioner has challenged the said order of dismissal mainly on the ground that the disciplinary authority made no inquiry in any disciplinary proceeding against the petitioner and even did not ask the petitioner to submit any representation about the punishment intended to be Imposed upon him on the basis of his conviction under the RP(UP) Act. It is on the other hand the case of the respondents that the petitioner was dismissed from service in exercise of the power conferred on the disciplinary authority under the rule 47(a) of the RPF Rules, 1959. Rule 47 of the RPF Rules, 1959 runs thus :- "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 this 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." (Emphasis supplied).* It may be mentioned here that Rules 44, 45 and 46 prescribe the procedure for imposing penalty/punishment in cases of different natures mentioned therein. Rule 47, in the specified circumstances, dispenses with the procedure of inquiry prescribed in the said rules 44, 45 and 46. It is submitted on behalf of the respondents that since in the present case the dismissal order was passed under rule 47(a) there is no question of holding any inquiry. On the other hand it is submitted on behalf of the petitioner that even Rule 47, while dispensing with the procedure prescribed in Rules 44, 45 and 46, yet requires the disciplinary authority to 'consider the circumstances of the case' before imposing any penalty in exercise of the powers conferred by that Rule. It is also submitted on behalf of the petitioner that even if a detailed inquiry is dispensed with yet the disciplinary authority in complying with the mandate of Rule 47 to consider the circumstances in going to impose a penalty, is required to hear the delinquent employee about the penalty to be imposed on him by the disciplinary authority for his conviction by a court in a criminal case. It is the grievance of the petitioner that the disciplinary authority before imposing the penalty of dismissal did not give the petitioner any opportunity of hearing or of submitting any representation in the matter and as such the order of dismissal itself is bad in law and is therefore liable to be quashed. As against this, it is submitted by the learned Advocate for the respondents that Rule 47 requires the disciplinary authority to consider the circumstances of the case, and the impugned order of dismissal itself in this case will show that the disciplinary authority in going to impose the penalty of dismissal considered the circumstances and therefore there is no scope of contending that the impugned order is bad in law.
(3.) The learned Advocate for the petitioner refers to two Division Bench decisions of the Allahabad High Court, being Dost Mohammed v. Union of India, 1981 (3) SLR 274 and Union of India v. Rajendra Prasad, 1977(2) SLR 81 in support of his contention that the disciplinary authority is required to give the petitioner an opportunity of hearing or an opportunity of submitting representation regarding penalty to be imposed by the disciplinary authority in such cases where the provisions of Rule 47 are attracted. He also refers to the decision of the Supreme Court in Divisional Personnel Officer v. TR. Chellappan, 1976 Supreme Court Cases (L & S) 398 where one of the matters for consideration of the Supreme Court was Rule 14 of the Railway Servants (Discipline and Appeal) Rules, 1968 which contained provisions more or less similar to these contained in Rule 47 of the RPF Rules. In the said decision the Supreme Court held that in the relevant portion of Rule 14 of the Railway Servants (discipline and appeal) Rules, 1968 the word 'consider' merely connotes that there should be active application of the mind by the disciplinary authority after considering the entire circumstances of the case fn order to decide the nature and extent of the penalty to be imposed on the delinquent employee on his conviction on a criminal charge and this matter can be objectively determined only if the delinquent employee is heard and is given a chance to satisfy the authority regarding the find orders that may be passed by the said authority. In other words, the term 'consider' postulates consideration of all aspects, the pros and cons of the matter after hearing the aggrieved person and such an inquiry would be a summary inquiry to be held by the disciplinary authority after hearing the delinquent employee. The Supreme Court in the circumstances intervened in the cases under consideration as in none of the cases 'the delinquent authority either considered the circumstances or heard the delinquent employees on the limited point as to the nature and extent of the penalty to be imposed if at all' (vide, pars 22 of the said decision). In our present case of course the delinquent employee was neither given any opportunity of hearing nor any opportunity of submitting any representation which he should have been given by the disciplinary authority while exercising his power under rule 47 in view of the requirement of law as warranted by judicial interpretation including the interpretation given by the Supreme Court in respect of analogous provisions of other Rules. There is no doubt that an order of penalty passed in exercise of Rule 47 entails civil consequences and therefore an opportunity of hearing or representation as an attribute of the principle of natural justice is a requirement Implicit in the said Rule. There is therefore no difficulty in holding that the impugned order as passed by the disciplinary authority in the present case is not supported by immaculate compliance of the requirement of law as no opportunity of hearing or representation was given to the petitioner. But even then the question that has to be considered now is whether the court in exercise of its writ jurisdiction should intervene in this case.;