1. No affidavit is called for since the order of the disciplinary authority and the order of the appellate authority cannot be amplified or embellished by way of any affidavit. The petitioner, an Inspector with the Railway Protection Force, is alleged to have been caught red-handed with three bags full of arms and ammunition apparently obtained from anti-social and subversive elements in the North-East for disposal in West Bengal. The petitioner appears to have been intercepted at the Guwahati Railway Station whereupon it is alleged that the petitioner pounced on the police party and trained a loaded firearm at the RPF officer and threatened to kill him. The petitioner was apparently over-powered and disarmed by the staff at the Guwahati Station. A criminal complaint under the Arms Act and the Penal Code was lodged against the petitioner, he was placed under suspension and was even arrested before being enlarged on bail. The criminal case is pending.
2. The Inspector General-cum-Chief Security Commissioner of RPF, as the disciplinary authority or the authority competent to impose a punishment on the petitioner, took up the proceedings and, without reference to the petitioner or seeking the petitioner''s oral or written representation, conducted summary proceedings whereat the petitioner was dismissed by an order of December 15, 2011. An appeal preferred by the petitioner has been rejected, though one of the paragraphs in the appeal requires close scrutiny:
"It is clear from the record that the incriminating arms/ammunitions were found in the bag which was in physical and conscious possession of the appellant. Moreover, the appellant never brought this plea, now taken at a belated stage, to the notice of any senior officer either by mobile phone or any other means of communication. Therefore, his plea cannot be accepted."
3. The plea of the petitioner that is referred to in the appeal is reflected at paragraphs 12, 13 and 14 of his appeal or supplemental petition filed in the appeal:
"12. My submission in the case is that there was another person who was sitting by my side on the bench on platform No. 1 at Guwahati Rly station. He was carrying one bag of black colour and the Arms and ammo in question were recovered from that bag.
"13. I don''t have any knowledge of who he was and from where he came but he appeared to be a Bengali as he was talking to someone on mobile in Bengali. He was short in build. Black in colour. And some cloths were also recovered from that bag, which are not of my size.
"14. I emphasised on this point but IPF Guwahati was hell bent on making a case. This is where the fumbling took place in between him and me."
4. The petitioner contends that even though Rule 161 of the Railway Protection Force Rules, 1987 permits dispensation with the regular procedure of inquiry and provides for summary departmental proceedings to be conducted, the rule cannot be read to imply that action would be taken thereunder against a person without reference to such person or without inviting any representation from him. It is necessary that the relevant rule be seen:
"161. Special procedure in certain cases:
Notwithstanding anything contained anywhere in these rules-
(i)....
(ii) where the authority competent to impose the punishment is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules;
(iii)...
the authority competent to impose the punishment may consider the circumstances of the case and make such orders thereon as it deems fit."
5. There are several ingredients of the provision. It is first to be recognised that summary procedure is an exception to the general rule of protracted disciplinary proceedings initiated by a charge-sheet and an inquiry. It is evident that summary procedure can be conducted only by the authority competent to impose the punishment on the delinquent and that, prior to taking up the merits of the allegations of misconduct, such authority is not only required to be satisfied that it would not be reasonably practicable to hold an inquiry into the allegations in the manner provided by the rules, but also record the reasons therefor in writing. The punishment that may be imposed by the authority is after consideration of the circumstances of the case.
6. The rule, therefore, implies a two-stage procedure. First, the competent authority has to be satisfied that the regular procedure may be dispensed with and a summary procedure conducted upon recording reasons as to why it would not be reasonably practicable to hold an inquiry in the manner prescribed in the rules. It is only upon the completion of this stage that the consideration of the allegations or charges against the perceived delinquent may be taken up. If the initial condition is not met, the authority to adjudicate upon the allegations or charges of perceived misconduct is absent.
7. In the present case, there is no dispute that the relevant Inspector General was the competent person to take up the disciplinary proceedings. However, such official has not recorded the reasons for it not being reasonably practicable in the case to conduct an inquiry in accordance with the rules. In the opening lines of the relevant order of December 15, 2012, the incident is narrated. The second paragraph of the order details the firearms that were allegedly found in the possession of the petitioner. In the third paragraph of the order an admission is attributed to the petitioner to the effect that he disclosed that he purchased "the above arms and ammunition and other objectionable items from anti-social & subversive elements active in the North East for further disposal in West Bengal."
8. Over the page on the second leaf of the order, the opening paragraph describes the scuffle or incident which took place at the Guwahati Station upon the firearms being allegedly discovered from the possession of the petitioner. The second paragraph refers to a senior official of RPF visiting Guwahati and sending a report of the inquiry conducted by him. The third paragraph on the second page goes into the merits of the allegations against the petitioner and contains several sub-paragraphs. The top sub-paragraph on the third page of the order is the continuation of the discussion on merits.
9. It is the following paragraph on the third page which is of significance in the context of Rule 161(ii) of the said Rules of 1987:
"Thus after due consideration of the facts and circumstances as brought out by the different documents, I am of the considered opinion that it is not reasonably practical to hold a full-fledged enquiry under Rule 153 of the RPF Rules, 1987. Therefore, under those compelling circumstances there is no alternative course of action left except to proceed under Rule 161(ii) of the said Rules of 1987."
10. The two remaining paragraphs of the order deal with the merits of the allegations against the petitioner and the sentence.
11. What is evident from the relevant paragraph, which reflects the formation of the opinion that it was necessary to dispense with the regular procedure as prescribed in the rules, is that the authority was satisfied that it was reasonably impracticable to conduct an inquiry in the matter in accordance with the rules. What is conspicuous in its absence, however, is any reason in support of the opinion which is the essence of Rule 161(ii) of the said Rules.
12. Indeed, it would be evident that the competent authority placed the cart before the horse, in a manner of speaking. The relevant provision in the rules, on its appropriate interpretation, requires first a satisfaction as to the existence of circumstances that would warrant the dispensation with the regular procedure and the recording of reasons indicating the application of the mind to the matter to arrive at the satisfaction. The disciplinary authority in this case decided on the merits of the charges or allegations against the petitioner before deciding that it was reasonably impracticable to conduct an inquiry into the matter.
13. It is submitted on behalf of the railways that the order has to be seen as a whole and it is to be discerned therefrom whether any reasons exist to justify the satisfaction as recorded therein of the impracticability of conducing an inquiry in accordance with the said rules. In such regard, the recording in the order, of the petitioner being in jail at the relevant point of time, is placed.
14. It does not appear, however, that the fact that the petitioner was in jail weighed with the disciplinary authority in arriving at a subjective satisfaction that circumstances existed that warranted the dispensation of the regular procedure in this case. It is evident that the gravity of the charges levelled against the petitioner far outweighed the considerations which were relevant in arriving at a conclusion whether it was reasonably impracticable to conduct an inquiry into the allegations or charges brought against the petitioner. It was also lost on the official that the subjective satisfaction had to be based on some objective criteria.
15. The petitioner has relied on a Supreme Court judgment reported at
16. Even though the petitioner is liable to succeed only on the ground that no reasons have been recorded in the order of the disciplinary authority indicating why it was necessary to not conduct an inquiry and hold summary disciplinary proceedings in the petitioner''s case, there is the other aspect of the matter which cannot be lost sight of Rule 161(ii) requires the competent authority to consider the circumstances of a case and make an order thereon. The consideration of the circumstances of a case does not imply the appreciation of one side without reference to the other side.
17. While it is possible that the petitioner here may be taking advantage of the rules to dislodge an order that may have been justly passed on facts, the rule of law to which our system is wedded has more regard for the principle than the immediate consequence. It is imperative that when a statement attributed to a perceived delinquent is to be used against him, he must be given an opportunity to deal with the same. In the present case, the first opportunity that the petitioner had of placing his version of things was after the order of the disciplinary authority had already been made. Thus, the petitioner could not indicate the matters referred to in paragraphs 12 to 14 of his appeal petition before the disciplinary authority;- whether or not such were relevant matters or ought to have been taken into consideration or could be regarded as credible. The principle is that a person has to be afforded reasonable opportunity of defending himself before he is condemned. Though the principles of natural justice have now undergone a substantial modification and have lost their indispensability in certain circumstances, the principle that a person cannot be condemned unheard still holds good. The acts complained of may be gross, but the delinquent has to be linked with the acts before he can be punished therefor; however condemnable may his conduct be, he must be given a chance to defend himself. That the proceedings may be summary would not denude him of the right of defence.
18. Rule 161(ii) would fall foul of the constitutional ethos if there is no check or balance to it. It is a draconian power given to an official, but subject to the, check that he would record the reasons for invoking such provision and which reasons can thereafter be subjected to judicial scrutiny. Similarly, the extraordinary provision that summary proceedings can be conducted to impose a punishment on a public servant has to be tempered with the right of representation being read into the last limb of Rule 161 of the said Rules; for, due consideration within the meaning of the last two lines of the provision would not be achieved if it is without reference to the concerned employee. What the rule permits is that there would not be any protracted hearing or representation or adjudication but the rule does not permit that a person''s fate would be decided unilaterally without such person being afforded a chance to defend himself.
19. On the twin grounds as indicated above, the order of the disciplinary authority is found to be without jurisdiction as it is contrary to the rule which it invokes. The appellate authority had due opportunity to correct the order, particularly since it specifically noticed the plea that was taken by the petitioner before it, but refused to apply its mind to the matter.
20. For the reasons as aforesaid, the order dated December 15, 2011 passed by the disciplinary authority and the order dated October 9, 2013 passed by the appellate authority are set aside and the respondent authorities are left free to begin the proceedings afresh, whether upon conducting a regular inquiry or under Rule 161(ii) of the said Rules as they may be advised. The petitioner will continue to remain in suspension for a period of eight weeks from date with the petitioner being entitled to the subsistence allowance in accordance with law. If, within the period of eight weeks from date, no notice is issued to the petitioner by the respondent authorities as to whether the proceedings against the petitioner would be initiated afresh, the respondent authorities will remain permanently restrained from reviving the proceedings.
21. W.P. 13175 (W) of 2014 is allowed as above but without any order as to costs. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
