- (1.) THE instant writ petition has been filed for quashing the orders dated 23. 10. 1990, 20. 4. 1998 (Annex. 6) and 30. 7. 1998 by which the petitioner has been removed from service.
(2.) THE facts and circumstances giving rise to this case are that petitioner was employed as a Constable in Railway Protection Force, Northern Railway and was posted at Jodhpur. He was tried in a criminal case and stood convicted for the offences punishable under Section 379/511 read with Section 34 of the Indian Penal Code vide judgment and order dated 4. 11. 1998 (Annx. 1 ). However, petitioner was given the benefit of the provisions of the Probation of Offenders Act, 1958 (hereinafter called "the Act, 1958") and an observation was made that petitioner's service career would not be adversely affected by the said conviction. Simultaneously the Department had also initiated the disciplinary proceedings against the petitioner under the provisions of the Railway Protection Force Act, 1979 (for short, "the Act, 1979") and the Railway Protection Force Rules, 1987 (for short, "rules, 1987" ). After completion of the enquiry, report was submitted by the Enquiry Officer to the Disciplinary Authority in 1982. Inspite of conclusion of the inquiry, no final orders were passed because of pendency of the criminal case. After conclusion of the criminal trial, a show cause notice dated 28. 9. 1990 was served upon the petitioner, alongwith a copy of the inquiry report, under Rule 44 of the Rules, 1987 as to why he should not be dismissed from service for the reason that charge of committing theft stood proved against him in the inquiry. Instead of filing reply to the said show cause, petitioner filed S. B. C. W. P. No. 4457/1990 and this Court, vide order dated 6. 11. 90, passed an interim order in his favour. However, it appears that petitioner's services stood terminated vide order dated 23. 10. 1990, i. e. prior to the date of passing the said interim order by this court. Petitioner withdrew the writ petition on 26. 9. 1997 and submitted the reply to the said show cause notice dated 28. 9. 1990. THE Disciplinary Authority passed the order dated 20. 4. 1998 (Annex. 4) that as petitioner had already been dismissed from service on 23. 10. 1990, no further order was required. Being aggrieved and dissatisfied, petitioner preferred an appeal under Section 9 (2) of the Act, 1958, which has been dismissed vide order dated 30. 7. 1998. Being aggrieved and dissatisfied, petitioner preferred a writ petition before the Jaipur Bench of this Court, which was dismissed as withdrawn, vide order dated 31. 7. 2000 (Annx. 9) with liberty to file the petition before the Principal Seat of this Court. Hence this petition. The writ petition is mainly based on the grounds that the inquiry had not properly been conducted; the principles of natural justice have not been observed; the impugned order runs counter to the observations made by the criminal court while convicting the petitioner but granting him the benefit of the provisions of the Act, 1958 and, therefore, the orders are liable to be quashed. On the other hand, respondents have submitted that though the inquiry had been held but once the petitioner stood convicted, he has no right to continue in service and he could have been removed in exercise of the powers under Rule 161 of the Rules, 1987, which are analogous to the provisions of Article 311 (2) (b) of the Constitution; moreso, the observation made by the Criminal Court that it would not affect petitioner's service career, is beyond jurisdiction and, thus, liable to be ignored; petitioner had not filed the orders of his dismissal dated 23. 10. 1990 or the order dated 30. 7. 1998 passed by the Appellate Authority, therefore, the writ petition is not even maintainable. I have considered the rival submissions made by the counsel for the parties. It is settled proposition of law that unless the order under challenge is filed and placed on record, the Court has no power to quash the same. In Surendra Singh vs. Central Government (1), the Hon'ble Supreme Court has held that the High Court cannot pass an order in such a case in absence of the impugned order being on record. The Apex Court observed as under:- " In absence of order under challenge, the High Court could not quash the same. Normally whenever an order of the Government or some authority is impugned before the High Court under Article 226 of the Constitution, copy of the order must be produced before it. In absence of impugned order it would not be possible to assign the reason which have impelled the authority to pass the order. It is, therefore, improper to quash an order which is not produced before the High Court in a proceeding under Article 226 of the Constitution. " Similar view has been taken by this Court without referring to the said judgment in Gautam Lal vs. State of Rajasthan
(3.) PETITIONER has not filed the copy of the order dated 23. 10. 1990, nor he has asked the Court to issue direction to the respondents to give him the copy of the said order. It is strange that he preferred the appeal without obtaining the copy of the said impugned order. Nor he has filed the copy of the order passed by the Appellate Authority on 30. 7. 1998, though mentioned in the petition but has not been annexed. However, the said order has been placed on record by the respondents alongwith their reply as Annx. R/1. Though appeal is continuation of a suit, it may still be doubtful that petition can be entertained as such. Be that as it may, even on merit, much has been argued by Mr. Vyas on non-observance of the principles of natural justice. I fail to understand where is the question of passing appropriate order in the departmental proceedings and observing any principle of natural justice when once petitioner - a member of the Disciplined Force had been found guilty of committing the theft- an offence involving moral turpitude by the Competent Criminal Court. Once the misconduct stood proved beyond reasonable doubt in a criminal trial, domestic enquiry loses its significance in this respect. The benefit granted by the trial Court, extending the benefit of the provisions of the Act, 1958 does not seem to be justified and the observation that conviction of the petitioner would not adversely affect his service career, also seems to be without jurisdiction and is liable to be ignored. The undisputed legal proposition remains that all the orders have to be considered in the light of the statutory provisions and the case has to be examined in the entirety of the circumstances. (Vide Union or Territory, Chandigarh Administrative & Ors. vs. Managing Society, Goswami GDSDC (3); and Karnal Durai vs. District Collector, Tuticorin & Anr. The Court cannot take a hyper-technical view of the matter. ;