P. C. JAIN, J. - (1.) IN this writ petition, the petitioner has prayed for issuance of an appropriate Writ, order or direction to quash the order No. SDAE/40/3/ 1/19/83 dated 25th June, 1983, passed by the Assistant Security Officer, whereby he was removed from service. The petitioner has further prayed that the order dated 28th September, 1983 passed by the Security Officer in appeal, whereby his appeal was dismissed, be also quashed.
(2.) BRIEFLY stated the facts of the case are that the petitioner was appointed as Rakshak on 7th March, 1963, on the post of Rakshak at Mahsana, Division Rajkot. The petitioner remained posted from the date of his appointment till 1970, in Rajkot division at various places. The petitioner was thereafter transferred to Ajmer Division and upto the date of his termination, he remained there. While the petitioner was working as Rakshak at Ajmer, Shri D. K. Joshi, respondent No. 3, came to be appointed as Assistant Security Officer at Ajmer in the year 1981. The petitioner has further said that while the petitioner was working as Rakshak at Mahsana, Shri Joshi was holding the post of Sub-Inspector there. The petitioner has further contended that his relations with Shri Joshi became strained at Rajkot as Shri Joshi wanted that the petitioner should indulge in unlawful activities. As the petitioner refused to do so, the relations between the two became strained. Consequently, Shri Joshi got the petitioner transferred from Mahasana to Morvi in Rajkot division. Shri Joshi got two promotions and consequently, he was promoted to the post of Assistant Security Officer. The petitioner has further stated that Shri Joshi was also transferred to Ajmer when the petitioner was working at Ajmer and he became the Controlling Officer of the petitioner. In the circumstances, Shri Joshi got an opportunity to take revenge against the petitioner and he started his compaign to harass the petitioner on frivolous grounds. The petitioner was censured on 20th March, 1983, for minor irregularity. He was also censured in January 1981 only because he was found at the main gate while discharging his duties. Shri Joshi also imposed a penalty of withholding of increment for six months with future effect for his remaining absent at duty beat. Shri Joshi also imposed punishment of withholding of increment for six months on the ground that on 20tb October, 1982 and 13th January, 1982, the petitioner failed to mount on duty in time. The petitioner was again censured on 15th September, 1982. The case of the petitioner is that all these punishments were the out-come of ill-will which Shri Joshi had against him, though, in fact, the petitioner did not commit any irregularity as alleged against him. The petitioner has further alleged that on 16th March, 1983, he was suddenly placed under suspension by Shri Joshi, Assistant Security Officer on the ground that disciplinary action was contemplated against him, in connection with a case of theft of railway material which took place between 0 Hrs. to 8 Hrs. on 16th March, 1983. The petitioner was thereafter served with a notice under Rule 47 of the Railway Protection Force Rules, on 21st May, 1983. It was alleged therein that the petitioner is a careless and negligent type of person and that he was found indulging in undesirable and dishonest practices. It was also alleged that he was associated with dishonest and bad elements who were reported in indulging pilferages of railway material and malpractices. It was also alleged against him that on 16th March, 1983, when he was on duty from. 00 Hr to 8 Hrs. at New Power House, a theft of i 18 field coil valued at Rs. 17,700/- took place after making a hole in pucca wall of the Electrical Production Shop, Ajmer. The petitioner was further informed that the source of information are not prepared and willing to get themselves exposed in the open enquiry, and, therefore, it was not reasonably practicable to follow the procedure of departmental enquiry under Rule 44 and recourse was taken under Rule 47. The petitioner submitted a detailed reply to the notice denying all the allegations against him. The defence of the petitioner was that the place where theft had taken place was at the place which was about 200 yards away from the petitioner's duty place and the said place was within the beat of Sri Laduram Rakshak who was at the relevant time on duty at the place. Further case of the petitioner is that the persons involved in the said theft were later on arrested by the police and a criminal case is going on against them. In the investigation conducted by the Railway Protection Force and the police no one named the petitioner. The case of the petitioner is that without proper enquiry the services of the petitioner were terminated vide order dated 25th June, 1983 and that his appeal was also dismissed by the Security Officer without applying his mind. The petitioner in this writ petition has assailed the order of termination of service dated 25th June, 1983 and the order passed by the Appellate Authority dated 28th September, 1983. The contention of the petitioner is that both the said orders are illegal, arbitrary and against the principles of natural justice and are, thus, liable to be quashed. The submission of the petitioner is that Rule 41 of the Railway Protection Force Rules, 1959 (for short, the Rules) provides for nature of penalties which include removal from service. Rule 44 provides for procedure for imposing major penalties and under this Rule, an elaborate enquiry is to be held and full opportunity is to be given to the delinquent employee to meet the case of the department and to put up his defence and Rule 47 provides for special procedure in certain cases and it provides that 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 as it deems fit. A notice was given to the non-petitioners to show cause as to why the writ petition should not be admitted vide order of this Court dated 28th October, 1983. The respondents filed a reply. In the reply, the allegations made by the petitioner have been denied. It is contended that all the penalties were imposed against the petitioner in a lawful manner. It is also contended that the action under Rule 47 (b) was perfectly legal and valid the petitioner was rightly removed from service. It is also stated that respondent No. 2 applied his mind and took into consideration all the materials against the petitioner and the appeal was rightly dismissed. Shri A. K. Bhandari, learned counsel for the petitioner, has challenged the impugned orders on the following grounds:- 1. That there was no circumstance or ground nor were there any relevant facts or the objective material which could justify the formation of satisfaction of the Disciplinary Authority that it is not practicable to follow the procedure under Rule 44". 2. That dispensation of the enquiry was, by itself, not sufficient to prove that the charges levelled against the delinquent employee are automatically proved. 3. That the action of removal suffers from mala fides both in law and in fact.
(3.) SHRI Baphna, learned counsel for the respondent, on the other hand, submitted that the action of respondent No. 3 in dispensing with the enquiry was perfectly justified and the same is not justiciable. He has further submitted that the conclusions of the Disciplinary Authority as well as the Appellate Authority are well founded and based on material on record. Shri Bhandari, learned counsel for the petitioner, has mainly placed reliance on an unreported judgment of this Court in C. B. Civil Writ Petition No. 955/1981; Shekhar Taingur Vs. Union of India decided on 24th May, 1985 He also placed reliance on: R. K. Misra Vs. GM. N. Rly (Delhi) (1) Balbir Singh vs. State of Punjab (2) Arjun vs. Union of India (All) (3) Union of India V. Tulsiram Patel (4) Pramod Chandra Mohanti vs. Divisional Superintendent, Khurde Road Division, South Eastern Railway (5) Virendra Prasad Mishra Vs. Union of India (6) Kedar Nath Singh Vs. Union of India (7) Workmen, Hindustan Steel Ltd. Vs. Hindustan Steel Ltd. (8 ). We have given our thoughtful consideration to the respective submissions made by the learned counsel for the parties. ;