JUDGMENT K.P. Singh, J.
1. These second appeals raise common questions of law and facts, therefore, they are being dealt with by this common judgment. Aggreived by the orders of removal passed by the authority concerned, the plaintiff-respondents filed suits for declaration that the order of removal was void, illegal and inoperatiavc and that the plaintiffs continue in service and are entitled to all the benefits attached to the post including their full pay and allowances etc.
2. The claim of the plaintiffs was resisted by the defendant-appellant on various grounds as is evident from the issues framed in the suit.
3. Both the courts below gave judgments for the plaintiffs. Aggrieved by the judgments of the courts below the defendant-appellant has preferred the above noted appeals.
4. The learned counsel for the appellant has contended before me that the rulings relied upon by the courts below have been overruled by the highest Court in the country, therefore, the impugned judgments should be set aside and the case be sent back to the lower appellate court for the fresh decision in accordance with law,
5. The learned counsel for the plaintiffs-respondents has submitted that the bare perusal of the removal order would indicate that the order is bad in law and since only the consideration of that order in the light of the rulings is to be taken into account, therefore, the appeals may be disposed of on merits and the case need not be sent to the trial court for fresh decision.
6. Brief facts involved in the appeals are that the plaintiffs were suspected in helping the criminals for committing theft of sugar consignment from wagons standing Harduaganj Yard, therefore, the plaintiffs were removed in accordance with Rule 47 of the Railway Protection Force Rules, 1959 as the impugned order dated May 4, 1978 indicates. The removal order has been marked as Paper No. 16A in the record of the suit. In the removal order all the facts relating to Shiv Mangal have been mentioned. The relevant portion of the removal order dated May 4, 1978 reads as below:-
"The undersigned is satisfied that as per Coy. Commissioner's report the circumstances of the case are such that nearly all the RPF Staff deputed on duty in Harduaganj Yard along with shunting staff have connived with the outside criminals in the said thefts, there is no possibility that anyone of them will come forward to state the truth. Moreover Har duaganj Yard is situated at such a lonely place where there is no public movements specially during night time. Therefore, the possibility of any independent eye witness who might have seen the committing of the thefts of the sugar consignments is also not possible. Furthermore accused Abdul Wahab who was arrested on July 24, 1978 under Section 3 RP (UP) Act, 1966 by RPF staff/ALJN has confirmed the connivance of the RPF staff in the above said theft cases. Even this accused is not likely to come out with true facts in any subsequent departmental enquiry as it is quite natural that he may not give self-implicatory statement. The subsequent conduct of the said HRK Sheo Man-gal also tends to support the theory of his connivance in the said thefts as the said HRK Sheo Mangal has absconded from ALJN shortly after the last theft occurred on the night of March 23-24, 1978. The threatening given by the RPF staff further mars the scope of departmental proceedings.
The undersigned is, therefore, satisfied that the circumstances of the case are such that it is not reasonably practicable to hold any enquiry in the matter provided in the RPF Rule 44 of the RPF Rules 1959.
Now, theretore,in the exercise of the powers conferred by RPF Rule 47 of RPF Rules, 1959, the undersigned hereby removes the said HRK Sheo Mangal under CC/RPF/ALJN from service w.e.f 5-5 1978(FN). :
Sd. Illegible Security Officer/RPF, Allahabad Station: LALD Date: 4-5-78." :
7. Rule 47 of the Railway Protection Force Rules, 1959 reads as below:-
"47. Special procedure in certain cases -
Notwitstanding anything contained in Rules 44, 45 and 46, where a penally is imposed on ; a member of the Force (a) on the ground of conduct which has led to his conviction on a criminal charge or (b) where the disciplinary authority is satisfied, for reasons to be recorded in writing, that it is not reasonably prac- , ticable to follow the procedure prescribed in the said rules, the Disciplinary Authority may consider the circumstances of the case and pass such orders thereon as it deems fit."
8. A bare perusal of the impugned judgment of the courts below indicates that the courts below had given judgments for the plaintiffs on the ground that they were not given opportunity to show cause against the proposed penalty, therefore, the impugned order of the plaintiffs' removal was declared void, illegal and inoperative. In this connection the learned counsel for the defendant appellant has invited my attention to the ruling reported in (1985-II-LU-206) Union of India v. Tulsiram Patel. Para 116 of the aforesaid ruling reads as below (p.263):
"The main thrust of the arguments as regards Clause (b) of the Second Proviso to Article 311(2) was that whatever the situation may be, a minimal enquiry or atleast an opportunity to show cause against the proposed penalty is always feasible and is requried by law. The arguments with respect to a minimal enquiry were founded on thebasisof the applicability of Art. 14 and the principles of natural justice and the arguments with respect to an opportunity to show cause against the proposed penalty were in addition founded upon the decision in Challappan's case, (1976-I-LLJ-68). These contentions have already been dealt with and negatived by us and we have further held that Challappan's case in so far as it held that a government servant should be heard before imposing a penalty upon him was wrongly decided."
9. The perusal of Tulsiram Patel's case, (supra) indicates that the judgments of the courts below cannot be sustained on the ground on which the two courts below have given judgments for the plaintiffs respondents. To this extent the contention raised on behalf of the defendant appellant is sound and the impugned judgments suffer from illegality.
10. However, the learned counsel for the plaintiff-respondents has submitted before me that bare perusal of the impugned order would indicate that the punishing authority has not followed correct procedure in passing the order of removal, therefore, the impugned judgment need not be set aside.
11. The learned counsel for the defendant-appellant has not been able to meet satisfactorily the submission made on behalf of the plaintiffs respondents. In (1981 Lab IC 881) Maksudan Pathaly v. Security Officer, Eastern Railway, Mughalsarai, a Full Bench of this Court has laid down as below:-
"........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 record which could establish that the enquiry was not reasonably practicable."
12. If the removal order of the plaintiffs respondents is examined in the light of the observations of the Full Bench case, I think that the punishing authority has patently erred in dispensing with the enquiry contemplated by Rule 47 of the RPF Rules, 1959. The reasons given are based on surmises and conjectures and on incorrect facts regarding non-availability of the evidence during the course of enquiry. In my opinion, the order of removal is not sustainable in each case on the facts and circumstances involved in the case.
13. The learned counsel for the defendant-appellant has contended that this specific ground has not been taken in the plaint, therefore, the contention of the plaintiffs respondents should notbe accepted. True that this ground has not been taken in the plaint but bare perusal of the removal order indicates that the punishing authority has not complied with the relevant rules before passing the removal order, therefore, I have entertained the point which was urged on the basis of the materials on record.
14. In the result, all the appeals fail and are dismissed but I make no order as to costs in the facts and circumstances of the cases under consideration.