Writ Petition No. 3961 of 2020 · The High Court
Case Details
- 1 - NC: 2025:KHC:1653 WP No. 3961 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE S.G.PANDIT WRIT PETITION NO.3961 OF 2020 (S-DIS) BETWEEN: SRI G ESHWARA MURTHY AGED ABOUT 38 YEARS S/O LATE K.GADANDAPANI, DEVALAPURA VILLAGE, DEVANAGUNID POST, HOSKOTE TALUK, BANGALORE-560067. …PETITIONER (BY SRI. MUKKANNAPPA S. B., ADV.) AND: 1. THE DIVISIONAL SECURITY COMMISSIONER COMMISSIONER RAILWAY PROTECTION FORCE, HUBLI/INCHARGE OF SBC DIVISION SOUTH WESTERN RAILWAY, BANGALORE-560009. 2. THE ASSISTANT SECURITY COMMISSIONER RAILWAY PROTECTION FORCE, SBC, SOUTH WESTERN RAILWAY, RAILWAY STATION ROAD, BANGALORE-560009. Digitally signed by MARIGANGAIAH PREMAKUMARI Location: HIGH COURT OF KARNATAKA (BY SRI. D BASAVARAJA, ADV. FOR R1 TO R2) …RESPONDENTS THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER OF DISMISSAL DATED 19.12.2019 PASSED BY THE R-1 VIDE AT ANNEXURE-E TO THE WRIT PETITION AND DIRECT THE RESPONDENT TO REINSTATE THE PETITIONER INTO SERVICE WITH - 2 - NC: 2025:KHC:1653 WP No. 3961 of 2020 CONTINUITY OF SERVICE WITH ALL OTHER CONSEQUENTIAL BENEFITS INCLUDING FULL BACK WAGES FROM THE DATE OF DISMISSAL TILL THE DATE OF REINSTATEMENT. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.G.PANDIT ORAL ORDER Petitioner, a dismissed Constable of Railway Protection Force of South Western Railways is before this Court under Article 226 of the Constitution of India questioning the correctness and legality of order bearing No.B/SXC/Enquiry/2019 dated 19.12.2019 (Annexure-E) and further praying for a writ of mandamus directing the respondents to reinstate the petitioner into service with continuity of service with all other consequential benefits. 2. Brief facts of the case are that petitioner was appointed as Constable in Railway Protection Force of South Western Railways on 27.08.2006 and he worked at various places in the said capacity. While petitioner was working as Constable at Krishnarajapura Railway Station, South Western Railways, petitioner was kept under - 3 - NC: 2025:KHC:1653 WP No. 3961 of 2020 suspension on contemplation of enquiry by order dated 17.12.2019 (Annexure-C). It is submitted that on the same day, statement of the petitioner was recorded with regard to alleged incident said to have been taken place on 15/16.12.2019 i.e., video showed an unidentified RPF personnel demanding and accepting bribe from an adult accompanying minor children by threatening them that the child labour is illegal and that they have been brought for the same and demanding bribe for suppressing further necessary action as per with law. Thereafter under impugned order dated 19.12.2019, petitioner was dismissed from service in exercise of power under Rule 161(ii) of Railway Protection Force Rules, 1987 (for short, ‘1987 Rules’) dispensing conduct of enquiry under Rule 153 of 1987 Rules. Questioning the said order of dismissal,
Legal Reasoning
petitioner is before this Court in this writ petition. 3. Heard the learned counsel Sri.Mukkannappa.S.B., for petitioner and learned counsel Sri.D.Basavaraja for respondent Nos.1 and 2. Perused the - 4 - NC: 2025:KHC:1653 WP No. 3961 of 2020 entire writ petition papers including the statement of objections filed by respondents. 4. Learned counsel Sri.Mukkannappa.S.B., for petitioner would submit that the order of dismissal dispensing enquiry is opposed to Rule 161(ii) of 1987 Rules and no plausible reason is recorded for dispensing with enquiry. Learned counsel invites attention of this Court to Rule 161 of 1987 Rules and submits that the Authority competent to impose punishment is to be satisfied or reasons to be recorded in writing that it is not reasonably practical to hold an enquiry in the manner as provided under Rule 153 of 1987 Rules. 5. Learned counsel Sri.Mukkannappa.S.B., would submit that mere recording that holding of regular enquiry takes its own time cannot be a reason to dispense with the enquiry. Moreover, he submits that the allegation or the incident on which order of suspension and dismissal was passed is that a video showed an unidentified RPF personnel demanding and accepting bribe from an adult - 5 - NC: 2025:KHC:1653 WP No. 3961 of 2020 accompanying minor children by threatening them that the child labour is illegal and that they have been brought for the same and demanding bribe for suppressing further necessary action as per law. If that is the allegation, learned counsel would submit that the petitioner ought to have been given an opportunity by framing charge against the petitioner. It is further contended that the petitioner was also not provided with copy of the preliminary enquiry report, but the respondents have placed their decision to dismiss the petitioner on the said preliminary enquiry report. Thus, learned counsel would submit that the order of dismissal is violative of principles of natural justice as well as opposed to Rule 161(ii) of 1987 Rules. 6. Learned counsel Sri.Mukkannappa.S.B., in support of his contention that the impugned order is opposed to Rule 161(ii) of 1987 Rules, places reliance on the decision of Division Bench of this Court dated 25.11.2024 in W.A.No.571/2023 and prays for allowing - 6 - NC: 2025:KHC:1653 WP No. 3961 of 2020 the writ petition by setting aside the impugned order of dismissal. 7. Per contra, learned counsel Sri.D.Basavaraja for respondent Nos.1 and 2 supports the impugned order of dismissal and further submits that Rule 161(ii) of 1987 Rules empowers the respondents to impose punishment dispensing with the conducting of enquiry. Learned counsel would further submit that conducting of enquiry against the petitioner was not practicable and further he submits that conducting of regular enquiry takes its own time. As such, to teach a moral lesson for other personnel working in the Force, decision was taken to dispense with enquiry and to impose punishment of dismissal. Thus, learned counsel would pray for dismissal of the writ petition. 8. Having heard the learned counsel appearing for the parties and on perusal of the entire writ petition papers, the only point which falls for consideration is as to, - 7 - NC: 2025:KHC:1653 WP No. 3961 of 2020 “Whether the impugned order of dismissal dated 19.12.2019 (Annexure-E) is sustainable in law?” 9. The answer to the above point would be in the Negative and the impugned order of dismissal requires to be interfered in the facts and circumstances of the case for the following reasons: 10. Admittedly, the petitioner who was working as Constable in Railway Protection Force of South Western Railways was kept under suspension under order dated 17.12.2019. The order of suspension indicates that disciplinary proceedings were contemplated against the petitioner and on the same day, petitioner was called for preliminary enquiry and his statement was recorded with regard to incident of video which showed an unidentified RPF personnel demanding and accepting bribe. When the respondent authorities have come to the conclusion that the petitioner was the person who was demanding and accepting bribe, the petitioner ought to have been - 8 - NC: 2025:KHC:1653 WP No. 3961 of 2020 provided an opportunity especially when video showed an unidentified RPF Personnel. 11. Moreover, in terms of Rule 161 (ii) of 1987 Rules requires the competent authority to record reasons for its satisfaction not to conduct enquiry or to record reasons why holding of enquiry is not reasonably practical. The last paragraph of impugned order of dismissal dated 19.12.2019 reads as follows: “Therefore, as enquiry into the case as per Rule 153 of RPF Rules 1987 takes its own time which shall defeat the entire purpose of the instant disciplinary action required in the case with clear cut evidence available and for initiating instant action so that the action taken has to be an exemplary moral lesson for other personnel working in Force, hence it is not reasonable practical to hold an enquiry under the RPF Rule 163 as innocent lives of children have been put to jeopardy because of corrupt activities of the said constable G. Eshwara Murthy of RPF KJM, and after going through the explanation of the said constable where he has not been able to justify logically about his presence in the vide and as per the clear fact finding enquiry report it is decided to implement disciplinary action - 9 - NC: 2025:KHC:1653 WP No. 3961 of 2020 under Rule 161(ii) of RPF Rules 1987 and the said constable is dismissed from service with immediate effect.” 12. A reading of the above portion of the impugned order makes it clear that the competent authority was of the view that conducting of enquiry takes its own time and to send a message to other personnel working in the Force, enquiry was dispensed, holding that it is not reasonably practical to hold the enquiry and the petitioner was dismissed based on the fact finding enquiry report. 13. Admittedly, the fact finding enquiry report is not furnished to the petitioner to have his say in the matter. Further, conducting of enquiry takes its own time would not be a valid or acceptable reason for not conducting enquiry. 14. The Division Bench of this Court in W.A.No.571/2023 dated 25.11.2024, was considering Rule 161 of 1987 Rules and placing reliance on the decision of the Hon’ble Apex Court in the case of UNION OF INDIA - 10 - NC: 2025:KHC:1653 WP No. 3961 of 2020 AND OTHERS VS. RAM BAHADUR YADAV1, held that while exercising power under Rule 161 of 1987 Rules, unless the competent authority records valid reasons as contemplated in the Rules itself, no order imposing punishment could be passed, dispensing with the enquiry. Relevant paragraphs 12 and 13 reads as follows: “12. Rule 161(ii) reads as follows: “161. Special Procedure in certain cases:- Notwithstanding anything contained anywhere in these Rules – (i) xxxxxxxxxxxxxxxxx (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. A careful reading of the above rule makes it abundantly clear that, if the Authority competent to impose punishment is satisfied, for the reasons to be recorded in writing that conducting of enquiry is not reasonably practicable in the manner provided under the 1987 Rules could dispense enquiry to impose punishment. The Authority competent has to consider the circumstances of the case and make such orders thereon as it deems fit. In other 1 (2022) 1 SCC 389 - 11 - NC: 2025:KHC:1653 WP No. 3961 of 2020 words, if the competent authority is of the opinion that it is impractical to conduct enquiry to impose punishment, it could dispense with the enquiry by recording reasons for such dispensation and proceed to impose punishment. The Hon'ble Apex Court in RAM BAHADUR YADAV case was considering same Rule 161 of 1987 Rules where the Railway Authorities had imposed the punishment of dismissal dispensing enquiry and the Hon'ble Apex Court at paragraphs 13, 14, 15 and 16 has held as follows: “13. From a reading of the above said Rule, it is clear that to pass an order as disciplinary measure, by adopting special procedure in certain cases, Rule 161 itself mandates recording of reasons. The normal rule for conducting an inquiry is governed by Rules 132, 148 and 153 of the RPF Rules. If the authorities invoke special procedure, unless they record reasons, as contemplated in the Rule itself, no order could have been passed by invoking Rule 161. At no point of time, the appellants have produced file to show that any reasons are recorded in such file also. 14. It is a settled legal position that when Rules contemplate method and manner to adopt special procedure, it is mandatory on the part of the authorities to exercise such power by adhering to the Rule strictly. Dismissal of a regular member of Force, is a drastic measure. Rule 161, which prescribes dispensing with an inquiry and to pass order against a member of Force, cannot be invoked in a routine and are mechanical manner, unless there - 12 - NC: 2025:KHC:1653 WP No. 3961 of 2020 compelling and valid reasons. The dismissal order dated 22-10-1998 does not indicate any reason for dispensing with inquiry except stating that the respondent had colluded with the other Head Constable for theft of non- judicial stamp papers. By merely repeating the language of the Rule in the order of dismissal, will not make the order valid one, reasons are unless valid and sufficient recorded to dispense with the inquiry. When the Rule mandates recording of reasons, the very order should disclose the reasons for dispensing with the inquiry. 15. The argument of the learned Senior counsel for the appellants that if file contains reasons, same is sufficient to maintain the order, deserves rejection. When inquiry is not conducted, member of the Force is entitled to know the reasons for dispensing with inquiry before passing any orders as a disciplinary measure. that it was not 16. The respondent was only a Head Constable during the relevant point of time and he was not in powerful position, so as to say that he would have influenced or threatened the witnesses, had the inquiry been conducted. The very fact that they have conducted confidential inquiry, falsifies the stand of the appellants reasonably practicable to hold an inquiry. The words “not reasonably practicable” as used in the Rule, are to be understood in a manner that in a given situation, ordinary and prudent man should come to conclusion that in such circumstances, it is not practicable. In the present case, there appears no valid reason to dispense with inquiry and to invoke Rule 161 of the Rules. We are in agreement with the view taken by the High Court. In Sahadeo Singh v. Union of India1, this Court has held - 13 - NC: 2025:KHC:1653 WP No. 3961 of 2020 that in the facts and circumstance of the said case, it was not reasonably practicable to hold a fair inquiry, as such, it was held to be justifiable on the facts of the case. Whether it is practicable or not to hold an inquiry, is a matter to be considered with reference to the facts of each case and nature of charge, etc.” 13. The above decision of the Hon'ble Apex Court is clear that while the Railway Authorities exercising power under Rule 161 of 1987 Rules unless record reasons as contemplated in the Rules itself, no order imposing punishment could be passed dispensing enquiry.” 15. Learned counsel for the respondents also contended that the petitioner is provided with alternate remedy of appeal and without exhausting the same, petitioner could not have approached this Court. The said contention is also dealt with by the Division Bench of this Court in the above stated judgment. Relevant paragraph 18 reads as follows: “18. When Rule 161 of 1987 Rules requires recording of reasons for dispensing enquiry and when a delinquent official is not made known the reason for not conducting enquiry, would amount to violation of principles of natural justice. A person against whom adverse order is passed, must be - 14 - NC: 2025:KHC:1653 WP No. 3961 of 2020 made known the reason for such adverse order. When an order is passed in violation of principles of natural justice and the said order is challenged before the Writ Court, availability of alternate remedy of appeal or revision would not be an impediment to exercise writ jurisdiction. Notwithstanding the availability of alternate remedy, if the Court comes to the conclusion that the action of the authorities is in violation of principles of natural justice or the order is passed without jurisdiction, the Writ Court in an appropriate case could exercise its jurisdiction to do substantial justice. Learned counsel for the appellants Sri.Promod places reliance on the decision of Hon'ble Apex Court in GODREJ SARA LEE LTD., case to contend that when the alternate remedy of appeal or revision is made available, the Writ Court could not have exercised its jurisdiction. The above decision arose from HARYANA VALUE ADDED TAX Act, 2003 and normally in fiscal matters availing remedy provided under the Act would be absolutely essential and Writ Court under Article 226 of the Constitution of India normally would not exercise its jurisdiction in such fiscal matters unless alternate remedy is availed. The Hon'ble Apex Court in the said decision has made it clear that mere availability of alternate remedy of appeal or revision, which the party invoking - 15 - NC: 2025:KHC:1653 WP No. 3961 of 2020 jurisdiction of the High Court under Article 226 of the Constitution of India has not pursued, would not oust the jurisdiction of the High Court and render a writ petition not maintainable.” 16. For the reasons recorded above, I proceed to pass the following:
Decision
ORDER a) Impugned order of dismissal bearing No.B/SXC/Enquiry/2019 dated 19.12.2019 (Annexure-E) is quashed, with liberty to the respondents to conduct enquiry against petitioner and pass appropriate orders. b) Prior to dismissal, the petitioner was under suspension and the petitioner shall continue under suspension. c) The respondents shall initiate appropriate proceedings under Rule 153 of 1987 Rules within two months from today and proceed further. - 16 - NC: 2025:KHC:1653 WP No. 3961 of 2020 d) The back wages and other benefits would depend on the outcome of the enquiry. e) However, the petitioner would be entitled to subsistence allowance from the date of this order. f) With the above, writ petition stands disposed of. Sd/- (S.G.PANDIT) JUDGE NC CT:bms List No.: 1 Sl No.: 35