BYAS, J. - (1.) THE petitioner is a Constable in the Railway Protection Force, Northern Railway, and was posted at Bikaner in February, 1987. In the late evening on February 18, 1987, while on duty, he was found drunk and under the influence of liquor. At that time, he addressed abusive words to his superiors and left duty without any permission. A disciplinary action was initiated against him. Charges were framed and the charge-sheet was issued to him. During inquiry, the petitioner nominated one Mr. Syed Aga Ali as his defence nominee to present his case with his assistance Mr. Syed Aga Ali is also a member of the Railway Protection Force-being the Prosecuting Inspector. THE inquiry officer turned down the aforesaid request of the petitioner on the ground that Mr. Syed Aga Ali is a lawyer by profession THE grievance of the petitioner, raised in this writ petition, is that the Prosecuting Inspectors and Sub-Inspectors are members of the Railway Protection Force. Simply because they prosecuted the cases in the Court on behalf of the Railway Protection Force, they cannot be deemed to be the lawyers. As such, the respondents be directed to permit him to utilize the services of Mr. Syed Aga Ali to assist him in his case.
(2.) IN the return filed by the respondents, the stand taken is that the Head Office, Northern Railway, in its letter Annexure R/l dated April 9, 1974 took the view that the Prosecuting INspectors and Sub-INspectors should not be allowed to act as defence nominees in disciplinary cases. We have heard the learned counsel for the parties. The learned counsel for the petitioner contended that the Prosecuting Inspectors and Sub-Inspectors cannot be regarded as lawyers or advocates. They are the members of the Railway Protection Force. Under rule 44 of the Railway Protection Force Rules, 1959 (for short 'the Rules') the delinquent can take the assistance of any other member of the Force of the Zonal Railways to present his case. The letter Annexure-R/1 has no force of law and as such it cannot over-ride the provisions of rule 44 of the Rules. Reliance in support of the contention was placed on Jagdish Singh v. Union of India (1 ). It was, on the other hand, contended by the learned counsel for the respondents that the Prosecuting Inspectors and Sub-Inspectors prosecute the cases in the Courts and as such they are akin to advocates. We have taken the respective submissions into consideration. Rule 44 of the Rules speaks about the procedure for imposing major penalties. Sub-rule (3), which is relevant for our purpose, reads as under: "44 (5)-The member so charged may be permitted by the inquiring authority to present his case with the assistance of any other member of the Force of the Zonal Railways serving in the same division in which the member so charged is working: Provided that the member of the Force whose assistance is sought under this sub-rule has not been at that time, assisting more than one members of the Force. " In these very Rules, officers of the Force have been mentioned. Prosecuting Inspectors and Sub-Inspectors have been included in as the members of the Force under rule 3. As such, the Prosecuting Inspectors and Sub-Inspectors, being member of the Force, the delinquent, who is also a member of the Force, can seek their assistance in the departmental proceeding to present his case. Simply because the Prosecuting Inspectors and Sub-Inspectors prosecute the criminal cases on behalf of the Railway Protection Force in the Court, they cannot be taken to be lawyers or advocates. In Jagdish Singh's case, it was held that every order or letter of the Board cannot be regarded as the rule. As such, Annexure-R/1 cannot over-ride the provisions of sub-rule (5) of rule 44 of the Rules.
(3.) FOR the reasons stated above, we allow the Wirt petition. Order Annexure-4 dated May 18, 1987 and Annexure-2 dated June 16, 1987 are set-aside- The respondents are directed to permit the petitioner to present his case with the assistance of Mr. Syed Aga Ali, subject to the conditions that Mr. Aga Ali is prepared and willing to assist the petitioner and he is not assisting more than one member of the FORce. No order as to costs. .;