MAKSUDAN PATHAK Vs. SECURITY OFFICER EASTERN RAILWAY AND

JUDGEMENT

(1.) These are three writ petitions filed under Article 226 of the Constitution of India. On the night of 28/29th September, 1975, as many as 71 bags of wheat seeds were removed from a wagon ex Varanasi to Howrah attached to train No. EC 1104, which stopped at Pusauli Down Loop from 00. 20 hours to 05. 20 hours for detaching a hot excel wagon. In view of this incident, the services of all the three petitioners were terminated by orders dated 24th February, 1976, passed separately in the cases of the three petitioners by the Security Officer, Eastern Railway, Moghal Sarai. The orders dated 24th February, 1976. Have been challenged by means of the present petitions. The petitions were connected and they came up for hearing before a Bench consisting of J. M. L. Sinha, J, and J. P. Chaturvedi. J (as he then was ). By order dated 1st August, 1980, the Bench referred all the three petitions for disposal by a larger Bench. In the referring order, the Bench laid emphasis on one of the questions, namely, whether a delinquent Government servant was entitled to a notice against the proposed punishment in a case where the disciplinary authority had dispensed with the enquiry under the Rules. Learned counsel for the petitioners has urged, firstly, that the order passed by the Security Officer dispensing with the enquiry is an order manifestly erroneous. He has further urged that, in any case, even if the enquiry was dispensed with, it was mandatory for the Security Officer to have given notice to the petitioners against the proposed punishment. We have heard the learned counsel for the railway administration, who has contested both the propositions advanced on behalf of the petitioners. After hearing the parties, we are of the opinion that the petitions are liable to succeed only on the first submission made by the learned counsel for the petitioners and hence we are not going into the second contention advanced on behalf of the petitioners. The Railway Protection Force Act, 1957 was enacted by the Parliament, which created the railway Protection force. Under Section 21 of the said Act, the Central Government, by notification in the Official Gazette, is empowered to make rules for carrying out the offences under this Act. The Central Government, consequently, framed Rules under the Act, known as The Railway Protection Force Rule, 1959. All the three petitioners were appointed as Rakshaks in the railway protection force. Under the Rules, the procedure has been laid down as to in what manner, the enquiry has to be conducted against a charged employee. Rule 47, which is relevant for the purposes of these petitions, is as under; "47. Special procedure in certain cases.-Notwithstanding anything contained in Rules 44 to 46 where penalty is imposed on a member of the force can be removed- (a) On the ground of conduct which has led to his conviction one criminal charge, or (b) Where the disciplinary authority is satisfied for the reasons to be recorded in writing that it was 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 order as it deems fit. " The Security Officer, who was empowered to take action for misconduct against the Rakshak, applied the special procedure laid down in Rule 47, quoted above, and diepensed with the enquiry against the petitioners. The orders of removal of services were, consequently, passed without giving an opportunity to the petitioners of being heard. In the case of all the three petitioners, in the orders of removal, dated 24th February, 1976, no reasons at all were given as to why the Security Officer thought that it was not reasonably practicable to follow the procedure under Rules 44 to 47. In the writ petition filed by Maqsoodan Pathak, in Annexure 'a' to the counter affidavit, only the following reasons have been given: "since the possibility of their collusion with the local R. P. F. staff of Pussauli during the material time cannot also be reled out. I am fully satisfied it is difficult to follow the procedure under Rules 44 to 46 of R. P. F. Rules, 1959". In the case of Kanindra Nath Rai, who filed writ petition no. 1266 of 1978, in Annexure 'a' to the counter affidavit, the following reason has been given; " I am satisfied that such large seal. ; theft of 71 bags of wheat seed could not have been committed from the aforesaid wagon unless the above noted R. P. F. staff had miserably failed either to detect or prevent it. Since the possibility of their collusion with the local R. P. F. staff of Pussauli during the material time cannot also be ruled out. I am fully satisfied it is difficult to follow the procedure under rule 44 to 46 of R. P. F Rules. 1959 and, as such, reasonably not practicable to bold any departmental proceeding against him. " In the case of Panchanan Singh, in Annexure 'a' to the counter affidavit the following reason has been given; "since it is not reasonably practicable to follow the procedure under Rules 44 to 46 of R. P. F. Rules, 1959 in the case as the Raksbak had developed influence at Pussauli and as such it may not be possible to collect sufficient evidence, I hereby decide that he be removed from service under Rule 47 of the Rules, 1959 with immediate effect. " The question, therefore, which has to be examined is whether the Security Officer had validly exercised his discretion in dispensing with the enquiry under Rule 47 of the Rules. Rule 47 is in practically similar terms as Article 311 (2), Proviso (b) of the Constitution of India. Sub-clause (2), which contains the proviso, as well as sub-clause (3) of Article 311 of the Constitution of India are quoted below: "311. (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Provided that where it is proposed after such enquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed; Provided further that this clause shall not apply- (a) Where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (b) Where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded in writing, it is not reasonably practicable to hold such inquiry, or (c) Where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry. (d) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such enquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final. " In respect of the railway servants, who are not governed by the Railway Protection Force Act, 1957 also, in Rule 14 of the Railway Servants (Discipline and Appeal) Rules, 1968. the power has been given to a disciplinary authority to dispense with an enquiry if he considers that it is not reasonably practicable to do so. Sub-clause (ii) of Rule 14 is in the following terms; " (ii) Where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an enquiry in the manner provided in these rules. The disciplinary authority may consider the circumstances of the case and make such orders thereof as it deems fit. . . . " In all the three provisions, quoted above, it has been laid down that the disciplinary authority has to record his reasons in writing as to why it is not reasonably practicable to follow the procedure for holding an enquiry. The fact, that the authority is required to record the reasons in writing itself indicates that the reasons have to be recorded by the authority in order that a delinquent can challenge the said reasons have to be recorded in writing, but the authority has to be further satisfied that it is not reasonably practicable to hold the enquiry. Since limitations have been prescribed for exercise of discretion by the authority, in my opinion, the order dispensing with the enquiry would be justiciable. It is no more the subjective satisfaction of the authority, but the discretion of the authority has to be exercised on objective facts on record. In Barium Chemicals Ltd. and another v. Company Law Board and others A. I. R. 1967 S. C. 295, the Hon. Supreme Court, after examining the various authorities, has opined as under: "though an order passed in exercise of power under a statute cannot be challenged on the ground of propriety or sufficiency, it is liable to be quashed on the ground of mala fide, dishonesty or corrupt purpose. Even if it is passed in good faith and with the best of intention to further the purpose of the legislation which confers the power, since the Authority has to act in accordance with and within the limits of that legislation, its order can also be challenged if it is beyond those limits or is passed on grounds extraneous to the legislation or if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation. In any one of these situations it can well be said that the authority did not honestly form its opinion or that in forming it, it did not apply its mind to the relevant facts. " The view taken in Barium Chemical Ltd. and another v. Company Law Board and others (supra) was reaffirmed and further explained in Rohtas Industries Ltd. v. S. D. Agarwal and another. , A. I. R. 1969 S. C. 707 The Supreme Court, at page 720, conserved as under : "there must be a real exercise of the discretion. The authority must be exercised honestly and not for corrupt or ulterior purposes. The authority must form the requisite opinion honestly and after applying its mind to the relevant materials before it. . . It must act reasonably and not capriciously or arbitrarily. " In Judicial Review of Administrative Action by S. A. De Smith, Fourth Edition, at page 283, it has been opined as under: " Again, to the extent that a discretionary power is not absolute, the repository of a discretion is under a legal duty to observe certain requirements that condition the manner in which its discretion may be exercised. " At page 339, it has been further observed : "if the exercise of a discretionary power has been influenced by Considerations that cannot lawfully be taken into account, or by the disregard of relevant considerations, a Court will normally hold that the power has not been validly exercised. " We agree with the observations made by S. A. De Smith, quoted above. We have, therefore, to examine whether the discretionary power exercised by the Security Officer is based on relevant considerations or whether it was purely arbitrary and was not germain to the principles on the basis of which the authority has to reasonably form its opinion before dispensing with the enquiry, which entails serious consequences to a charged employee. We have, therefore, to examine what meaning should be given to the words 'reasonably practicable'. At the outset, it must be noted that here the words 'reasonably practicable' are used with respect to the holding of the enquiry. These words cannot be correlated to the merits of a charge. The Authority has to see whether it is reasonably practicable to hold an enquiry. In Corpus Juris Secundum, Volume 75, the word 'reasonably' has been defined as under : " It is defined as meaning in a reasonable manner; consistently with reason. " The word 'practicable' has been defined in the Webster's Third New International Dictionary as under : " possible to practice or perform; capable of being put into practice, done or accomplished. " We are, therefore, of the opinion that the words 'reasonably practicable' would apply in a case where the authority cannot, in a reasonable manner, put into practice the clauses in relation to an enquiry, namely, because of certain facts and circumstances peculiar to each case, the authority cannot, in a reasonable manner, hold an enquiry. There may be a case where the charged person may have absconded, or a case where in spite of the best efforts, the disciplinary authority may not have been able to serve the notice of the enquiry on the person charged or it may be a case where it is not possible for the person against whom the charge had been made to come and join, at the enquiry or there may be similar other valid reasons depending on the facts and circumstances of each case. In Stroud's Judicial Dictionary, Volume 4, Fourth Edition, the expression 'reasonably practicable' has been used in different statutes. The definition of the words 'reasonably practicable', which could be appropriately applied while construing the similar term in the above rules, has been given as under: ''what is "reasonably practicable" depends upon a consideration whether the time, trouble and expense of the precautions which might be taken are disproportionate to the risk involved. " This definition has been given on the basis of the decision in Marshall v. Gotham Co. (1954) 1 All. E. R. 937. From the above definition, it would be clear that the facts and circumstances have to be considered whether it would be reasonably practicable to hold an enquiry or not. This expression also came up for interpretation in State of Orissa v. F. Krishnaswami Murty, A. I. R. 1964 Orissa 29 Nerasimham, Chief Justice constituting the Bench held that the exercise of a similar power to be justiciable and further held that the enquiry can be dispensed with if the person has absconded or it is for other reasons considered impracticable to communicate him. Similarly, in Karam Singh v. Transport Commissioner and another A. I. R. 1965 J. and K. 53, Fazal Ali, J. , in an unanimous judgment, has given the following interpretation to the words 'reasonably practicable': " It must be shown that it was not possible or feasible with due diligence to afford him a reasonable opportunity of showing cause against the action proposed to be taken against him, impracticability for not giving such an opportunity may arise out of various circumstances. For instance an employee may be at such a place that it would not be reasonably possible to ensure his attendance or such other similar cases. In the instant case, the only reason given by the Authority concerned was that the petitioner was found guilty of having stolen defence stores. Such an eventuality, in our opinion could not have been contemplated by the laeguages used by the aforesaid proviso. " We respectfully agree with the observations made in the case of State of Orissa v. P. Krishnaswami Murty (supra) as well as Karam Singh v. Transport Commissioner and another (supra ). In view of the principles laid down above, we have to examine whether, in the present case, the order passed by the Security Officer, dispensing with the enquiry, was vitiated in law or not, There was no evidence on the record at all to show that any attempt was made to serve a notice on the petitioners, If an attempt had been made and the authority was not successful in serving the charge-sheet, it may have been a case where the authority may have come to a conclusion that it was not reasonably practicable to hold an enquiry, In the case of Maqsoodan Pathak, the only ground for dispensing with the enquiry is the collusion with the local R. P. F. Staff, This circumstance relates to the merit of the charge and not the practicability of holding an enquiry. In the case of Ravindra Nath Rai, similarly, the only reason given is the possibility of a collusion with the local R. P. F. Staff. This also cannot possibly be a reason for not holding the enquiry. The relevant considerations for passing the orders would have been the practicability of holding an enquiry, and not whether the charge could be made out on the basis of the other evidence on the record or not. In the case of Panchanand Singh also, the only reason given is that he had developed influence at Pussauli and, as such, it may not have been possible to collect sufficient evidence, The mere 'inability' or 'inefficiency' of the investigating authority to obtain evidence to prove the charge cannot be a reason for dispensing with the enquiry. We are, therefore, of the opinion that, in the instant case, the orders dispensing with the enquiry were wholly arbitrary. There was no evidence on the record, which could establish that the enquiry was not reasonably practicable. In view of the above, the order dispensing with the enquiry against the petitioners was an order manifestly erroneous. In all the three cases, mentioned above, the appeals were filed and the appellate orders also merely upheld the orders dispensing with the enquiry without giving any reasons for the same. The appellate orders, therefore, in our opinion, are also manifestly erroneous. In the result, all the three petitions are allowed, the orders dated 24th February, 1976, as well as the appellate orders dated 10th August, 1971 are quashed. The petitioners are entitled to their costs from the opposite parties. .