Rule 161 Of RPF Rules Which Dispenses Departmental Enquiry Is Exception, Sufficient Reasons Must Be Recorded To Invoke It: Gauhati High Court

The single judge bench of Justice Suman Shyam observed:

“The petitioner is facing trial in a criminal proceeding arising out of an FIR lodged by the authorities but he is yet to be convicted. It may so happened that eventually, the charge framed against the petitioner may be established in the criminal court. However, since there are allegations brought against the petitioner based on materials collected against him, principles of fairness and natural justice demanded that atleast one opportunity was afforded to the petitioner to explain his conduct, which was apparently not given to him in this case.”

The petitioner- a constable (GD) in the Railway Protection Force (RPF) was removed from the service vide order dated March 24, 2020 passed by the Divisional Security Commissioner, RPF, NEFR allegedly on the ground that he was caught while having possession of about 13 kg of contraband goods (suspected ganza).

The petitioner was removed from the service without holding any departmental enquiry or opportunity of being heard.

The Counsel appearing for the petitioner, Swati B. Baruah submitted before the court that Rule 153.1 of the Railway Protection Force Rules, 1987 (Rules of 1987) mandates that a member of the force cannot be removed from service without holding an enquiry or giving him an opportunity of being heard.

She further submitted that Rule 161 of the Rules of 1987 prescribes a special procedure to be adopted in certain cases but unless the grounds for invoking such special procedure was available, any order passed under Rule 161 would be illegal and liable to be set aside.

It was argued that no proper ground had been cited so as to justify dispensation of holding of a disciplinary enquiry against the petitioner before issuing the order of removal from service.

The court noted that the impugned order of dismissal dated March 24, 2020 was issued by invoking the powers under Rule 161(ii) of the Rules of 1987 on the very next day when the incident took place and no reason was recorded so as to justify invocation of the special procedure under Rule 161(ii) in the facts and circumstances of the case.

The court observed:

“neither the impugned order dated 24-03-2020 passed by the appellate authority nor the orders passed by the revision authority records proper reason as to why, it was not reasonably practicable to hold an enquiry in the matter. There is also nothing on record to indicate as to why, even a preliminary show-cause notice could not have been served upon the writ petitioner, atleast to give him one opportunity to put his version on the record.”

It was averred by the court that although the authorities would have the power to dispense with an enquiry by invoking Rule 161 of the Rules of 1987 yet such a power cannot be invoked in a routine manner, merely to circumvent the prescription of Rules 132, 148 and 153 of the Rules of 1987.

The court averred:

“Rule 161 is an exception to the procedure laid down in Rule 153 and can be invoked only when there are sufficient and adequate reasons recorded in writing, to show that it is not reasonably practicable to hold an enquiry. The reasons so recorded must not only be proper but also relevant for the purpose of arriving at a conclusion that it is not reasonably practicable to hold an enquiry against the member of the force.”

“Invoking Rule 161, without there being proper reason for doing so, would not only be in violation of Rules 132, 148 and 153 of the Rules of 1987 but also in violation of the principles of natural justice.”, the court added. 

The court further noted that the impugned order of dismissal show that the petitioner has been declared to be a criminal even before he was convicted by the trial court which clearly puts a stigma on the petitioner.

The court held:

“Therefore, this Court is of the unhesitant opinion that the impugned orders have been issued not only in utter violation of the principles of natural justice but also in violation of the procedure laid down in the Rules of 1987.”

Thus, the court directed the respondents to reinstate the petitioner within a period of 4 weeks.

However, the court further directed:

“The respondents may, thereafter, proceed against him, in accordance with law, if so advised, after giving the petitioner an opportunity to show cause. In doing so, it will be open for the authorities to place the petitioner under suspension, if deemed necessary.”

Case Title: Aayush Tomar v. The Union of India & 4 Ors.

Coram: Justice Suman Shyam

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