P. Sathasivam, J.@mdashThe writ petitioners have been employed as Constables and in some other capacities in the Central Industrial Security Force (CISF), and generally they are posted/deputed in various Public Sector Undertakings owned by the Government of India. They challenge Rule-36 Sub-rule (8)(a) of the Central Industrial Security Force Rules, 2001, (hereinafter referred to as Rules). Since the issue raised in all these Writ Petitions is one and the same, they are being disposed of by the following Common Order.
2. The impugned Rule viz., Rule 36(8)(a), is extracted below:
36. Procedure for imposing major penalties.
(8)(a) The enrolled member of the Force so charged may be permitted by the inquiring authority to present his case with the assistance of any other member of the Force posted at the place of inquiry. He will give three choices for his defence assistance and the controlling officer will depute any one of the three indicated by him.
The above mentioned Rule prohibits outstation members of the Force to participate and render defence assistance to persons facing an enquiry.
3. Before going into the aspect regarding the validity or otherwise of the impugned rule and as to whether the same is ultra vires the Constitutional provisions, it is useful to refer to the principles laid down by the Apex court, in Supreme Court
100. Where the validity of a subordinate legislation (whether made directly under the Constitution or a statute) is in question, the court has to consider the nature, objects and scheme of the instrument as a whole, and, on the basis of that examination, it has to consider what exactly was the area over which, and the purpose for which, power has been delegated by the governing law.
101. Rules are liable to be declared invalid if they are manifestly unjust or oppressive or outrageous or directed to an unauthorised end or violative of the general principles of the law of the land or so vague that it cannot be predicted with certainty as to what is prohibited by them or so unreasonable that they cannot be attributed to the power delegated or otherwise disclose bad faith. ...
107. The true position thus appears to be that, just as in the case of an administrative action, so also in the case of subordinate legislation (whether made directly under the Constitution or a statute), its validity is open to the question if it is ultra vires the Constitution or the governing Act or repugnant to the general principles of the laws of the land or it is so arbitrary or unreasonable that no fair minded authority could ever have made it.
4. Now, let us proceed further to decide the issue involved here in the light of the principles laid down in the above case law.
5. Learned Counsel for the petitioners submitted that there is no restriction imposed by Section 11 of the Public Servants (Inquiries) Act, 1850, to choose and to take a defence assistant. It was pointed out that Sub-rule (8)(a) of Rule 14 CCS (CCA) Rules, 1965, allows persons facing enquiry to take a defence assistant from any other station and that Rule-77 relating to other conditions of service states that the members of the Force shall, in respect of all matters regarding conditions of service, for which no provision or insufficient provisions have been made in these Rules, be governed by the Rules and orders for the time being applicable to officers holding corresponding posts in the Central Government in respect of such matters. It is also highlighted that the practice of requesting the members of the Force from outstation to assist a charged member in the inquiry proceedings has been followed for a long time and it has been working well and that it is impossible to get the consent from a member of the Force from the Station in which the enquiry is being held to assist the charged member since it would invariably be a superior officer from the same station who would be the Enquiry Officer. It is claimed that it would be against the principles of natural justice and arbitrary to deny a fair hearing for the persons charged by providing them with effective defence assistance. By closing the option of taking help from members of the Force from outstation, irreparable damage would be done to the members of the Force against whom enquiries are conducted. The relevant Rule viz., Rule 36 (8)(a), insofar as it prevents availing of defence assistance from a member of the Force posted outside the place of enquiry, is illegal, ultra-vires and void.
6. The respondents have filed an identical counter/additional counter affidavit, highlighting their stand. It is stated that an amendment of a Rule cannot be tested on the basis of an earlier rule which had since been amended. It is pointed out that the Rules are amended based upon the actual experience in the administration of the earlier Rules. It was found that when there are large number of CISF personnel present in the place where the inquiry is held, permitting a Defence Assistant from a place outside the place of inquiry would be wholly un-called for and that such a Rule had resulted only in avoidable waste of time in the matter of conduct of inquiry. It is illustrated that a person facing the enquiry at Chennai gives the name of the Officer as Defence Assistant from Delhi, whereupon arise the questions of his availability, grant of leave and treating the leave as on official duty, payment of TA/DA, etc., and those aspects involve time as well as money, which can be clearly avoided without sacrificing the right of the officer facing the inquiry to have the Defence Assistant. It is highlighted that, at Chennai, more than 2000 CISF personnel are working in various Public Sector Undertakings, from amongst whom, the officer facing the enquiry could name three persons as required under the Rules, in which event, enquiry can be conducted and concluded earlier without much waste of time and expenses, and such smooth flow of sequence of events will not be in a case where the officer is brought from outside the place of inquiry. It is further stated that it is not a case of denial of any opportunity of defence to the officer facing the inquiry and he can have the fullest opportunity from amongst the 2000 officers employed at Chennai itself. Likewise, in the CISF Unit, NLC, Neyveli, there are about 1600 personnel and the charged official has ample opportunity to select his defence assistant from the unit itself. Further, it is also informed that the CISF is an Armed Force of the Union and the services of the members of the Force are being utilised for providing protection and security to the men and material of the Public Undertakings, Airports, Building Security and other important installations wherever the Force has been deployed, besides the Force is also being deployed for internal security duties as per the directions of the Government of India. It is highlighted that it is not the case of the petitioners that there is lack of competency to enact or frame a Rule. The Rule is not arbitrary or violative of Articles 14, 19 and 21 of the Constitution.
7. We have already extracted the impugned Rule. Section 22 of the Act enables the Central Government to make Rules for carrying out the purposes of the Act. CISF Rules, 2001 came into effect from 05.11.2001. It is true that as per Rule 34 Sub-rule (5) of the 1969 Rules, member of a Force facing enquiry can select any other member of the Force approved by the Inquiry Authority. The said Sub-rule reads as follows:
34. Procedure for imposing major penalties.-
(5) The member of the Force so charged may be permitted by the Inquiry Authority referred to above to present his case with the assistance of any other member of the Force approved by it.
8. Mr. V.T. Gopalan, learned Additional Solicitor General appearing for the respondents/CISF, accepting and pointing out the earlier position that as per the 1969 Rules, a member of the Force facing enquiry was free to select any other member of the Force from anywhere in India with the only restriction that the name has to be approved by the Inquiry Authority, submitted that the Rules have been amended based upon the actual experience in the administration of the earlier Rules. He explained that, when there are large number of CISF personnel present in the place where the enquiry is held, permitting a charged officer to take a defence assistant from a place outside the place of inquiry would only result in waste of time in the matter of conduct of enquiry. As stated in the counter affidavit, learned Additional Solicitor General demonstrated by illustrating that a person facing enquiry at Chennai gives the name of the Officer as Defence Assistant from Delhi, whereupon arises a number of questions on his availability, grant of leave and treating the leave as on official duty, payment of TA/DA etc. Those aspects involve not only time but also money, which can be clearly avoided without sacrificing the right of the officer facing the inquiry to have the Defence Assistant in the place where the enquiry is being held. The particulars furnished by the respondents show that, even at Chennai, there are more than 2000 CSIF personnel, while so, the officer facing enquiry, as per the existing Rule, can very well name three persons, in which event, enquiry can be conducted and concluded earlier without waste of time and money, which will not be the case if the officer is brought from outside the place of enquiry.
9. Though learned Counsel for the petitioners submitted that restricting the choice to have the defence assistance of another member of the Force posted outside the place of enquiry is opposed to the principles of natural justice and constitutional provisions, particularly Article 311, it is seen that Article 311 makes it clear that no person, who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State, 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. It is clear that the above constitutional provision mandates ''a reasonable opportunity of being heard'' to be afforded to all the persons in the Union and the State services before removing them from their respective posts. As rightly pointed out by the learned Additional Solicitor General, as per the existing Rule, a Member of the Force facing enquiry is free to give three choices for his defence assistance and the Controlling Officer will depute any one of the three indicated by him. In such circumstances, it cannot be claimed that the member of the Force is denied the opportunity of defence, on the other hand, we are of the view that inasmuch as he is free to identify three persons for his defence assistance and one among them will be deputed by the Controlling Officer, there is no denial of opportunity and there is no violation of Article 311 of the Constitution of India.
10. It is also pointed out by the learned Counsel appearing for the petitioners that inasmuch as Rule-36 starts saying ''without prejudice to the provisions of the Public Servant [(Inquiries)] Act, 1850, no order imposing on an enrolled member of the Force any of the penalties as specified in Clauses (i) to (v) of Rule 34 shall be made except after an enquiry held, as far as may be, in the manner hereinafter provided''; when no such restriction with regard to selection of defence assistant is in the Public Servants [(Inquiries)] Act, the present Rule 36 (8)(a), imposing such restriction, cannot be sustained. We are unable to accept the said contention. As rightly pointed out by the learned Additional Solicitor General, the present rule is in addition to the provisions of the Public Servants [(Inquires)] Act, 1850. We are satisfied that the present Rule does not run contrary to the provisions of the said Act. Accordingly, we reject the argument of the counsel for the petitioners.
11. Insofar as the claim that the present Rule violates Articles 14, 19 and 21, except making a general statement, none of the petitioners has highlighted as to how the present rule violates those constitutional provisions. We have already noted that the actual experience in the administration of the earlier rules; availability of large number of CISF personnel in the place where the inquiry is held; and also the fact that permitting the defence assistant from a place outside the place of enquiry would result in waste of time and money; are the factors which necessitated the Central Government to bring forward a Rule, which not only safeguards the interest of the Force but also its Members. Further, u/s 15 of the Act, every member of the Force shall, for the purpose of the Act, be considered to be always on duty and shall at any time be liable to be employed at any place within India. In such circumstances, the apprehension that the officers employed in Chennai or other places would find it difficult to act as Defence Assistants to the charged official is without any force.
12. As rightly pointed out on the side of the respondents, a rule has to be tested for its validity on certain well known principles of interpretation of the validity of the statute or a Rule. The provisions of enactment or rules can be challenged only when there is lack of competency to enact or frame a Rule and if the Rules are violative of any of the provisions of the Constitution. In this case, we have already pointed out that the power to make Rules has been conferred u/s 22 of the Act and in fact the competency of the rule making authority has not been questioned. As rightly pointed out, by making a provision that Defence Assistant should be selected from amongst the officials working at the place of inquiry, the right of the charged official to have his defence has not in any way been affected or violated.
13. Thus, the impugned rule does not suffer from any of the infirmities/fallacies adverted to in the decision of the Apex Court referred to above. We are satisfied that the present provision is quite reasonable, inasmuch as, by taking aid of the previous Rule often the charged employee used to seek assistance of an employee stationed in a long distanced place thereby causing inconvenience not only to the enquiry proceeding but also to the duty entrusted to the said assistant. Therefore, we hold that the present provision restricting the choice of assistant from an employee of the same station is quite reasonable and cannot be termed as arbitrary so as to violate any of the constitutional provisions ie., Articles 14, 19 and 21 in particular. We find no substance in the claims/apprehension of the petitioners. We are also satisfied that there is no denial of opportunity of being heard in the enquiry, on the other hand, as rightly pointed out, the members of the Force can have the fullest opportunity from among the hundreds and even thousands of officers employed at the place of enquiry. Accordingly, we hold that the impugned Rule viz., 36 (8)(a) of the Rules, is constitutionally valid and there is no substance in the apprehension raised by the petitioners.
14. Before parting, we intend to add that it is one of the major principles of interpretation that, when a legislation/rule is alleged to be stained with unconstitutionality, Courts have to consider the same with reference to the infirmities adverted to on the one hand and the mistakes sought to be remedied or the purpose sought to be achieved by the legislature on the other hand by way of amendment/new legislation, bearing in mind the limited scope of judicial review. We also approached the issue raised here carrying in mind the principles laid down by the Apex Court in the case law referred to above as the touchstone to find out as to whether the Rule has lost its sanctity because of the presence of infirmities pointed out therein. Had the impugned Rule, in its effect, taken away the liberty of the Members to avail the assistance of a Defence Assistant, then, they are well justified in attributing manifest error, oppression etc. thereto and seeking for a declaration to declare the Rule as void, but, what is brought in by way of the impugned Rule is restriction in the sense of geographical location, ie., instead of selecting the Assistant from anywhere in India, now, they are to select from among themselves in the same station where the inquiry is held, whereby, no prejudice can be said to be caused, obviously when the number of the members goes in hundreds and thousands in each area, as adverted to in our earlier discussion. Not only the economic and other interests of the Force are well taken care by the impugned Rule but, in a better way, the interests of the members also, as there would not be much delay in getting the assistance, which otherwise would be difficult and cumbersome, in that, when the opted official is on special duty, necessary relieving orders have to be passed and also procedural complexities have to be met in apart from meeting other practical administrative hurdles, which would definitely consume a considerable length of time. By the impugned rule, the interests of both are properly balanced and there is nothing to tilt the scales either way, as otherwise, it would defeat the legislative intent. Hence, when there is no illegality or unconstitutionality or any other crippling aspect to declare the impugned Rule void, we have no other option but to hold it as constitutionally valid.
15. Consequently, all the Writ Petitions fail and are accordingly dismissed. No costs. Connected Miscellaneous Petitions are closed.
