- (1.) This appeal is directed against a judgment of the learned Single Judge dated 21.4.1987, whereby the writ application filed by the respondents Nos. 1 and 2 against the order removing them from service was allowed. The facts relating to the filing of the appeal may be stated as under;
(2.) On 16.8.1983 the respondent Nos. 1 and 2 being the members of the Railway Protection Force in the Eastern Railway were on duty when Train No. EC 948 Down stopped at Down Home Signal, Bhaktarnagar between 15-30 hours to 15-35 hrs. A gang of about 15 criminals broke open one container attached to the said Train and committed a theft of 14 Television Sets valued at Rs. 27,711/. The allegation against the respondent No. 1 and 2 was that both these persons were physically present on duty when this train stopped and the aforesaid theft occurred and yet they did not perform their duty properly resulting in the aforesaid theft. It was the allegation against the two respondents that it was within their knowledge that the theft was committed. Various other allegations were also levelled against them. Accordingly on 14.12.1983 the order removing them from the service of the appellant was passed in terms of Rule 47 of the Railway Protection Rules 1959. Under Rule 44 of these Rules a regular enquiry including issuance of chargesheet, appointment of an Enquiry Officer, and other related safeguards are provided if any major penalty is to be imposed upon a member of the service and under Rule 45 a detailed procedure is prescribed for imposition of minor penalties. Under Rule 47 of these rules it is provided that, despite the aforesaid requirements under Rules 44 and 45 etc. Where it was proposed to impose a penalty on the ground that the disciplinary authority was satisfied for reasons to be recorded in writing that it was not reasonably practicable to follow the procedure prescribed in these Rules, it may consider the circumstances of the case and pass such orders as are deemed appropriate. For ready reference Rule 47 quoted verbatim hereinbelow: "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 of the case and pass such orders thereon as it deems fit."
(3.) It was under the aforesaid special provision therefore, ostensibly under Article 311, Clause (2) of the Constitution of India that the impugned removal order was passed against the respondents. The following three paragraphs from removal order would indicate the background and the circumstances which led the disciplinary authority to invoke Rule 47. "From the enquiries got conducted through various sources, it has come to light that it was within the knowledge of the said RPF staff about the commission of the crime at that place and about subsequent concealment of the stolen property in the fields nearly but they did not take any action either to apprehend the criminals or to recover the stolen property. It has also come to light that the stolen property was removed by the criminals from the spot after obtaining the consent of the said RPF staff." "In this particular case, some criminals were arrested who confessed about the commissions of the crime and the facts as mentioned above but they refused to give anything in writing as they feared that by disclosing the facts in writing and in open enquiry, their lives would be in danger." "I am satisfied that it is not possible to proceed against HK 2517 Byas Muni Chowbey under normal Rules of 44, 45 and 46 of RPF Rules as the witnesses would not come forward to depose against them. I am also convinced that the said RK. 2517 Byas Muni Chowbey was involved in the crime which is unbecoming of a member of a disciplined force who is primarily entrusted with the responsibility of guarding and protecting the rail property and therefore, in exercise of the powers under Rule 47 read with para 13 of Chapter XI of RPF Regulation, I remove RK. 2517 Byas Muni Chubey from service with immediate effect".;