J.R. Chopra, J.
1. These 22 writ petitions raise almost common questions of law and facts and, therefore, they were heard together and are being disposed of by a common order.
2. Briefly stated, the facts of these writ petitions are: that in these writ petitions, the petitioners have mostly challenged the charge sheets that have been served on them for their different acts of misconduct and in most of these wit petitions, the enquiries are pending. In D.B.Civil Writ Petition No. 3574 of 1991, V.K. Choturvedi v. Union of India and Ors. the petitioner has been reverted to the rank of Sub Inspector for a period of two years vide order Annexure A/6. In D.B.Civil writ petitions No. 6599 of 1991, S.C.Kataria v. U.O.I. and Ors. and 3674 of 1992, Inder Raj Singh v. U.O.I. and Ors. the petitioners have been punished with stoppage of two grade increments with cumulative effect. In D.B.Civil Writ Petition No. 4595 of 1991, Om Prakash v. U.O.I. and Ors. the enquiry report was supplied to the petitioner alongwith the punishment order. In D.B. Civil Writ Petitioner No. 4984 of 1992, Sheo Pratap Tiwari v. U.O. I and Ors.,initially an enquiry was conducted and the petitioner was removed from service but later on, when he filed a writ petition, he has been reinstated and now, a fresh charge sheet has been served on him. In D.B.Civil Writ Petition No. 5965 of 1993, P.K. Goyal v. U.O.I. and Ors. the enquiry was completed and a notice to show cause as to why proposed punishment should not be awarded to him has been issued. In all these writ petitions, the petitioners have prayed for quashing of the charge sheets served on them and in the cases, in which, punishment orders have been passed or notice to show cause as to why proposed punishment should not be awarded, has been issued, the petitioners have prayed that they be quashed.
3. In D.B. Civil Writ Petitions No. 3574 of 1991 and 2835 of 1992, it has been alleged that the Railway Protection Force Act, 1957 (For short 'the Act') and the Railway Protection Force Rules, 1987 (For short 'the Rules') have not been approved by both the Houses of the parliament. Although this contention has been raised in these writ petitions, but it has not been canvassed before us during the course of arguments. Probably, this argument was raised on the basis of certain notings or proceedings of the Parliament but now, it is certain that the Railway Protection Force Act, 1957 and the Railway protection Force Rules, 1987 have attained finality.
4. The entire Rule 153 of the rules has been challenged in D.B. Civil Writ Petitions No. 2835 of 1992, 4236 of 1992 and 6737 of 1992. The validity of Rule 153.3 of the Rules has not been challenged in D.B.Civil Writ Petition No. 4984 of 1992, Sheo Pratap Tiwari v. V.O.I and Ors. In that case, what the petitioner has contended is that the charge sheet is violative of Rule 153.3 of the Rules because, on similar charges, somebody has been visited with the minor punishment whereas he has been issued a charge sheet for major punishment. He has only challenged the vires of Rule 153.8 of the Rules. The vires of Rule 153.8 of the Rules has also been challenged in D.B.Civil Writ Petitions No. 5155 of 1990, 2399 of 1991, 3594 of 1991, 4218 of 1991, 6599 of 1991, 3674 of 1992. 3675 of 1992, 4287 of 1992, 4288 of 1992, 4595 of 1991. 4665 of 1992, 4984 of 1992, 5750 of 1992, 6475 of 1992, 173 of 1993, 3136 of 1993. and 5965 of 1993. The validity of Rule 153.11 has been challenged in D.B. Civil Writ Petition No. 4595 of 1991 and the validity of Rule 153.12 has been challenged in D.B. Civil Writ Petitions No. 4287 of 1992 and 4288 of 1992 on the ground that they suffer from excessive delegation. The validity of Rule 153.15 has been challenged in D.B. Civil Writ Petition No. 3594 of 1991 and the validity of Rule 154.1 has been challenged in D.B.Civil Writ Petitions No. 3594 of 1991, 6599 of 1991, 3674 of 1992, 4595 of 1991 and 6475 of 1992. It may be stated here that details facts of each case need not be stated because in these cases, we are not much concerned about those facts.
5. It may be further stated here that although the facts of these cases are different with each other but in these writ petitions, the main challenge is to the vires of Rule 153 as a whole or Rule 153.8, 153.11, 153.12, 153.15 and 154.1 of the Rules being violative of the principles of natural justice as also Articles 14, 16, 21 and 311 of the Constitution. The validity of Rule 153.8 has been challenged on the ground that no right to crossexamine the witnesses and to addres the Enquiry Officer has been given to the person, who is appointed to assist the delinquent. It has also been contended that the facility of engaging a lawyer to assist the delinquent in the enquiry has been denied. In one of the writ petitions it has been submitted that the charges sheet is malaflde but the malafide have not been pleaded specifically and, therefore, that point need not be gone into. It has also been contended that as per the provisions of Section 10 of the Act, the members of the Railway Protection Force are railway employees and, therefore, the provisions of Article 311 of the Constitution are fully applicable to them and so, the petitioners be treated like all other civil servants and the provisions of the Act and the Rules should not be made applicable to them. In D.B.Civil Writ Petition No. 4595 of 1991, it has been contended that the enquiry report has been supplied to the delinquent along with the, punishment order, which is against the rules of natural justice. The provisions of Rules 153 and 154.1 of the Rules have also been challenged on the ground that they are violative of the principles of natural justice.
6. We have heard M/s D.K.Parihar, R.P.Vyas, D.C. Sharma and R.K. Soni for the petitioners and M/s U.S. Bhargava, V.D. Vyas, Anand Purohit, Ravi Bhansali, B.K. Thani and Mr. S.S. Lal for Mr. P.P. Choudhary for the respondents and have carefully gone through the record of these cases.
7. It has been contended by the learned Counsel appearing for the petitioners that as per Section 10 of the Railway Protection Force Act, 1957 (for short 'the Act'), the Director General and every member of the Railway Protection Force shall for all purposes be regarded as railway servants within the meaning of the Indian Railways Act, 1890 other than Chapter VI-A, therefore, and shall be entitled, to exercise the powers conferred on railway servants by or under that Act. They have, therefore, argued that once they are treated as railway servants, the provisions of Article 311 of the Constitution are fully applicable to them.
8. It has been further contended that initiation of the disciplinary proceedings against civil servants suo motu by an authority lower in rank to punishing authority vitiates the entire proceedings. In support of this contention, reliance has been placed on a Division bench decision of Andhra Pradesh High Court in R.Suryanarayana v. State of A.P. 1967 Andhra Weekly Reporter 253. In these cases there is no such allegation that disciplinary proceedings have been initiated by an authority lower in rank to the punishing authority and, therefore, to this extent, this authority has no application to the facts of the present case.
9. It has been next contended that rejection of the request of the delinquent officials/officers for engaging the services of lawyers for defending them in disciplinary proceedings amounts to denial of reasonable opportunity to defend them. It may be stated here that R. Suryanarayana v. State of A.P. (Supra) was the case of initiation of disciplinary proceedings against a civil servant. In this case also, it has been contended by the learned Counsel appearing for the petitioners that as per Section 10 of the Act, the petitioners being railway servants, they are civil servants and thus, Railway protection Force Act, 1957 and the Railway Protection Force Rules, 1987 do not apply to these cases. How far this contention can be sustained will be discussed later on.
10. It has been argued that Article 311 of the Constitution gives a two-fold protection to persons, who come within the Article, namely, (1) against dismissal or removal by an authority subordinate to that by which they were appointed and (2) against dismissal or removal or reduction in rank without giving them a reasonable opportunity of showing cause against the action proposed to be taken in regard to them. In this respect, reliance has been placed on a decision of their lordships of the Supreme Court in PL. Dhinra v. Union of India : (1958)ILLJ544SC
11. Article 311(1) of the Constitution provides 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 hold a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. Article 311(2) of the Constitution further provides that no such person as aforesaid 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 these charges. Thus, Article 311(2) of the Constitution only provides that before dismissal or removal or reduction in rank, an enquiry should be held against the delinquent and he must be informed of the charges against him and must be given a reasonable opportunity of being heard in respect of those charges. How far, these protections contained in Article 311(2) of the Constitution are available to the petitioners, who are the members of the Railway Protection Force, shall be discussed later on.
12. Learned Counsel appearing for the petitioners further drew our attention to a decision of their lordships of the Supreme Court in Commissioner of Income Tax v. Rabindra Nath 1979 (1) SLR-133, wherein the delinquent was allowed to be assisted by an Officer of the Department. Certain prosecution witnesses were examined with his assistance but later on, that Officer left the services and became a lawyer and, therefore, the delinquent was refused to take the services of an Advocate. On those facts, their lordships of the Supreme Court held that refusal of permission to engage such Officer, who had become an Advocate to defend the delinquent Officer amounts to violation of principles of natural justice, This question whether the services of a lawyer should be provided to the delinquent petitioners in disciplinary proceedings is to be decided in the light of the provisions of the Railway Protection Force Act, 1957 and the Railway Protection Force Rules, 1987. Commissioner of Income Tax's case (supra) relates to a member of the Central Services governed by the Central Civil Services (Classification, Control and Appeal) Rules, 1965. In theses cases the question that crops up for consideration is whether the members of the Railway Protection Force can be treated as civil servants? This question will be answered later on.
13. Reliance was also placed on a Division Bench decision of the Orissa High Court in Baidhardas v. State : AIR1970Ori220 , wherein it has been observed as under:
Article 311(2) of the Constitution which guarantees a reasonable opportunity to a public servant ensures (a) an opportunity to deny his guilt and establish his innocence which he can only do if he is told what the charges leveled against him are and the allegations on which such charges are based; (b) an opportunity to defend himself by cross-examining the witness produced against him and by examining himself or any other witness in support of his defence; (c) an opportunity to make his representation as to why proposed punishment should not be inflicted on him.
This decision relates to the provisions of Aiticle 311 (2) of the Constitution Which existed prior to the Constitution (Fifteenth Amendment) Act, 1963 and the Constitution (42nd Amendment) Act, 1976. It may be stated here that after the aforesaid amendments in the Constitution, an opportunity to make representation as to why proposed punishment should not be inflicted on the delinquent need not be given to the delinquents.
14. On the strength of a decision of their lordships of the Supreme Court in J.K. Agarwal v. Haryana Seeds Developtnent Corporation Ltd. : (1991)IILLJ412SC , it was argued that in cases where the authority having discretion to permit services of lawyers to delinquent employees and the presenting Officer is a man of legal attainments and experience, refusal of service of lawyer to delinquent results in denial of natural Justice. This was a case of domestic enquiry held under Haryana Civil Services Appeal Rules, 1952.
15. Reliance was also placed on a decision of their lordships of the Supreme Court in G.S. Sodhi v. Union of India : 1991CriLJ1947 , where in it has been held that if there are certain allegations of mala-fides and they are specifically denied by the officer concerned, the plea of mala fides is liable to be rejected. In the cases on hand, there is no plea of mala fides except in one case, wherein also mala fides have not been pleaded specifically.
16. In the light of the aforesaid submissions made by the learned Counsel appearing for the petitioners, we will have to examine (i) whether there is any denial of opportunity as provided by Article 311 of the Constitution; (ii) whether members of the Railway Protection Force are the civil servants of a State or the Union and they are entitled to all these protections which are available to the members of the civil services of a State or the Union; and (iii) whether the provisions of Rule 153 and 154.1 of the Rules are against the principles of natural Justice being violative of Articles 14, 16, 21 and 311 of the Constitution ?
17. The Railway Protection Force Act, 1957 came into force in the year 1957 and its preamble provides that this Act has been enacted in order to provide for the constitution and regulation of an armed force of the Union for the better protection and security of railway property and for matters connected therewith. Nobody canvassed before us that the Railway Protection Act, 1957 does not have the force of law.
18. Section 3 of the Act deals with Constitution of the force and it lays down that there shall be constituted and maintained by the Central Govt. an armed force of the Union to be called the Railway Protection force for the better protection and security of the railway property. Section 10 of the Act further provides that the Director General and every member of the Force shall for all purposes be regarded as railway servants within the meaning of the Indian Railways Act, 1890 (9 of 1890), other than Chapter VI. A therefore, and shall be entitled to exercise the powers conferred on railway servants by or under that Act. The term 'enrolled member of the Force' has been defined in Section 2(1)(ba) of the Act and means any subordinate officer, under Officer or any other member of the Force of a rank lower than that of under Officer. The term 'superior officer' has been defined in Section 2(f) of the Act and means any of the officers appointed under Section 4 and includes any other officer appointed by the Central Govt. as a superior officer of the Force. Section 4 of the Act pertains to the appointment and powers of superior officers and it lays down that the central Govt. may appoint a person to be the Director General of the Force and may appoint other persons to be Inspector General, Additional Inspectors-General, Deputy Inspectors-General, Assistant Inspectors-General, Senior Commandants, Commandants or Assistant Commandants of the Force. Sub-Section (2) of Section 4 further lays down that the Director General and every other superior officer so appointed shall possess and exercise such powers and authority over the members of the Force under their respective Commands as is provided by or under this Act.
19. The Railway Protection Force Act, 1957 came to be amended in the year 1985 by the Railway Protection Force (Amendment) Act, 1985. The Principle features of the Bill bringing amendment was (a) declaring the Railway Protection Force an armed Force of the Union and consequential changes in the nomenclature of different ranks in the Force in consonance with its changed character as an Armed Force. (b) conferment of additional powers on the members of the Force such as to arrest without warrant, to restrain misbehavior on the part of the members of the Force, to effectively intervene for preventing imminent danger to the life of a person concerned with carrying on the work of the railways for the better protection of the railway property; (c) restrictions have been proposed on the light to form association on the lines of similar restrictions in other Armed Forces of the Union; and (d) conferment of additional powers on the superior Officers of the Force for enforcement of discipline, imposition of penalties for various offences, regulating procedure for Force custody. Thus, it is clear that by the Railway Protection Force Amendment Act, 1985, major changes have been brought in the Railway Protection Force Act, 1957 and the Railway Protection Force has now been categorised as an Armed Force of the Union. Thus, the Railway Protection Force Service does not remain a civil service of the State or the Union, in spite of the fact that members of the Railway Protection Force have been categorised as railway servants as per Section 10 of the Act but they are a category apart from the other railway servants in the sense that they are not solely governed by the Indian Railway Act, 1890. They are the creatures of the Railway Protection Force Act, 1957 and have been categorised as members of the Armed Force of the Union, to which, Article 33 of the Constitution is fully applicable and, therefore, the members of the Railway Protection Force will be governed by the provisions of the Railway Protection Force Act, 1957 and the Railway Protection Force Rules, 1987 as regards conditions of their services, holding of disciplinary enquiries and imposition of punishments etc. They are railway servants only for the purpose of leave, pension, railway passes, Leave Travel Concession facility, medical facility and all other facilities, which are not specifically provided by the provisions of the Railway Protection Force Act, 1957 and the Railway Protection Force Rules, 1987. Thus, as a class, the members of the Railway Protection Force are distinct to the other Railway employees because the other railway employees are not the members of the armed forces of the Union. As stated above, the term 'enrolled member of the Force' defined in Section 2(l)(ba) means any subordinate officer, under officer or any other members of the Force of a rank lower than that of under Officer and Section 2(l)(ea) defines 'subordinate officer' to mean a person appointed to the force as an Inspector, a Sub-Inspector or an Assistant Sub-Inspector. Section 2(fa) defines 'under officer' to mean a person appointed to the Force as a Head Constable or Naik, whereas Section 2(l)(f) defines 'superior Officer' to mean any of the officers appointed under Section 4 and includes any other officer appointed by the Central Govt. as a superior officer of the Force. Section 4 of the Act authorises the Central Govt. to appoint a person to be the Director-General of the Force and it further authorises the Central Govt. to appoint other persons to be the Inspectors-General, Additional Inspector-General, Deputy Inspectors-General, Assistant Inspectors-General, Senior Commandants, Commandants or Assistant Commandants of the Force. Thus, Officers upto the rank of Inspectors have been categorised as 'enrolled members' of the Force.
20. Section 9 of the Act deals with dismissal, removal etc. of members of the Force and it reads as under:
Section 9 Dismissal, removal etc. of members of the Force:Subject to the provisions of Article 311 of the Constitution and to such rules as the Central Govt. may make under this Act, any superior Officer may:
(i) dismiss, suspend or reduce in rank any enrolled member of the Force whom he shall think remiss or negligent in the discharge of his duty, or unfit for the same; or
(ii) award any one or more of the following punishments to any enrolled member of the Force, who discharges his duty in a careless or negligent manner, or who by any act of his own renders himself unfit for the discharge thereof, namely:
(a) fine to pay any amount not exceeding seven days' pay or reduction in pay scale;
(b) confinement to quarters for a period not exceeding fourteen days with or without punishment, drill, extra guard, fatigue or other duty;
(c) removal from any office of distinction or deprivation of any special emolument.
(2) Any enrolled member of the Force aggrieved by an order made under Sub-section (1) may, within thirty days from the date on which the order is communicated to him, prefer an appeal against the order to such authority as may be prescribed.
Provided that the prescribed authority may entertain the appeal after the exprity of the said period of thirty days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
(3) In disposing of the appeal, the prescribed authority shall follow such procedure as may be prescribed:
Provided that no order imposing an enhance penalty under Sub-section (2) shall be made unless a reasonable opportunity of being heard has been given to the person affected by such order.
Section 15A of the Act provides for restrictions respecting right to form association, etc. and Section 17 provides for penalties for neglect of duty etc. Section 21 of the Act deals with power to make rules and it reads as under:
Section 21 Power to make Rules-(1) The Central Govt. may, by notification in the official Gazette, make rules for carrying out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing powers, such rules may provide for-
(a) regulating the classes and grades and the pay and remuneration of members of the Force and their conditions of service in the Force.
(b) regulating the powers and duties and members of the Force authorised to exercise any functions by or under this Act;
(c) fixing the period of service for members of the Force;
(d) prescribing the description and quantity of arms, accoutrements, clothing and other necessary articles to be furnished to the members of the Force;
(e) prescribing the places of residence of the member of the Force;
(f) institution, management and regulation of any fund for any purpose connected with the administration of the Force;
(g) regulating the punishments and prescribing authorities to whom appeal shall be preferred from orders of punishment, or remission of fines, or other punishments and the procedure to be followed for the disposal of such appeals;
(h) regulating matters with respect for Force custody under this Act, including the procedure to be followed for taking persons into such custody;
(i) regulating matters with respect to disposal of cases relating to offences under this Act and specifying the places in which persons convicted under this Act may be confined;
(j) any other matter which has to be, or may be imposed or in respect of which rules are required to be made under this Act;
(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Thus, as per Section 21(l) of the Act, the Central Govt. may, by notification in the official Gazette, make rules for carrying out the purposes of this Act and as per Clause (a) of Section 21(2) of the Act, such rules may provide for regulating the classes and grades and the pay and remuneration of members of the Force and their conditions of service in the Force. Section 21(2)(g) empowers the Central Govt. to make the rules regulating the punishments and prescribing authorities to whom appeal shall be preferred from orders of punishment, or remission of fines, or other punishments and the procedure to be followed for the disposal of such appeals.
21. It may be stated here that earlier, the Railway Protection Force Rules, 1959 were in force and they were annulled and the Central Govt. in exercise of its powers conferred by Section 21 of the Railway Protection Force Act, 1957 substituted these Rules by the Railway Protection Force Rules, 1987. This annulment was made necessary on account of the amendment of the Act whereby the members of the Force were treated to be members of the armed forces of the Union and therefore, elaborate procedure was provided for dealing with the disciplinary enquiries and punishments etc. for the members of the Railway Protection Force.
22. Chapter XII of the Railway Protection Force Rules, 1987 deals with disciplinary and penal punishments. Rule 148 thereof provides for description of punishments. Rule 148.1 of the Rules provides that any of the punishments enumerated therein, may, for good and sufficient reasons and as provided therein, be imposed on an enrolled member of the Force. Rules 148.2, 148.3, 148.4 and 148.5 deals with Major Punishments; minor punishments, petty punishments and Explanations respectively. Rule 149 deals with other minor punishments. Rule 150 deals with effect of departmental punishments on prosecution and it lays down that any punishment specified in Rule 148 and 149 which has been imposed on an enrolled member of the Force shall not affect his liability to prosecution and punishment under this Act or under any other law for the time being in force. Rule 151 relates to the Disciplinary Authority and Rule 152 authorises the competent authority to institute proceedings. Rule 153 deals with procedure for imposing major punishmentsr. In some of the writ petitions, only provisions of Rule 153.8 have been challenged but in some other writ petitions, the provisions of Rules 153.8, 153.11, 153.12 and 154.1 are under challenge and in some writ petitions, the provisions of Rule 153 as a whole are under challenge and, therefore, it will be very useful to quote the provisions of. Rule 153 as a whole in extenso:
Rule153. Procedure for imposing major punishments:
153.1 Without prejudice to the provisions of the Public Servants Inquiries Act, 1850, no order of dismissal, removal, compulsory retirement or reduction in rank shall be passed on any enrolled member of the Force (save as mentioned in Rule 161) without holding an enquiry, as far as may be in the manner provided hereinafter in which he has been informed in writing the grounds on which it is proposed to take action, and has been afforded a reasonable opportunity of defending'himself.
153.2.1 Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against an enrolled member of the Force, it may itself inquire into or appoint an Inquiry Officer higher in rank to the enrolled member charged but not below the rank of Inspector, or institute a Court of Inquiry to inquire into the truth thereof.
153.2.2 Where the disciplinary authority itself holds the inquiry, any reference to the Inquiry Officer in these rules shall be construed as a reference to the disciplinary authority.
153.3.3 On receipt of complaint or otherwise, the disciplinary authority on going through the facts alleged or brought out shall decide whether it is a case for major or minor punishment. No. attempt shall be made to convert cases punishable under Section 16A or Section 17 into disciplinary cases nor divert cases in respect of which major punishments are impossible to the category of cases where minor or petty punishments are Impossible.
153.4 When it is proposed to hold on inquiry against an enrolled member of the Force under this rule, the disciplinary authority may order that the enrolled member shall not be transferred to any,other place nor given leave without its written permission till the conclusion of the disciplinary proceedings, and the disciplinary authority shall draw up or cause to be drawn up--
(a) the substance of the Imputations of misconduct or misbehaviour Into definite and distinct articles of charge;
(b) a statement of the imputation of misconduct or misbehaviour in support of each article of charge which shall contain,--
(i) a statement or all relevant facts Including any admission or confession made by the enroll d member of the Force, and (ii) a list of documents by which and a list of witnesses by whom the article of charge are proposed to be sustained.153.5 The disciplinary authority shall deliver or cause to be delivered to the delinquent member, at least seventy two hours before the commencement or the inquiry, a copy of the articles of charge, the statement of imputations of misconduct or misbehaviour and a list of documents and witnesses by which each articles of charge is proposed to be sustained and fix a date when the inquiry is to commence; subsequent dates being fixed by the inquiry Officer.
153.6 where the enrolled member charged has absconded or where it is not possible to serve the documents on him in person or where he deliberately evades service, the procedure laid down in Sections 62, 64, 65 and 69 of the Code of Criminal Procedure, 1973 shall be adopted by the inquiry Officer for service of such documents and the same shall be deemed to be a conclusive proof of service.
153.7 For securing the presence of private prosecution witnesses, the Inquiry Officer may allow free travel passes according to their status in accordance with extant Railway Rules.
153.8 The enrolled member charged shall not be allowed to bring in a legal practitioner at the proceedings but he may allowed to take the assistant of any other member of the Force, hereinafter referred to as 'friend' where in the opinion of the inquiry Officer may, at the request of the party charged, put his defence properly. Such friend must be a serving member of the Force of or below the rank of Sub-Inspector for the time being posted in the same division or the battalion where the proceedings are pending and not acting as a friend in any other proceedings pending anywhere. Such 'friend' shall, however, not be allowed to address the Inquiry Officer nor to cross-examine the witnesses.
153.9 If the enrolled member charged fails to turn up on the day fixed for the start of inquiry and no reasonable excuse is offered for not being present on the fixed time and day, the inquiry Officer may commence the inquiry ex-parte.
153.10 At the commencement of the inquiry, the party charged shall be asked to enter a plea of 'guilty' or 'not guilty' after which evidence necessary to establish the charge shall be let In. The evidence shall be material to the charge and may either be oral or documentary. If oral-fa) it shall be direct;
(b) it shall be recorded by the inquiry Officer in the presence of the party charged; and the party charged shall be allowed to cross-examine the witnesses.
153.11 If the witnesses are government officers of a rank superior to the party charged, the inquiry Officer may, at the request of the party charged put the questions to such Officer.
153.12 All evidence shall be recorded, in the presence of the party charged, by the inquiry Officer himself or on his dictation by a scribe. Cross-examination by the party charged or the fact of his declining to cross-examine the witness, as the case may be, shall also be recorded. The statement of each witness shall be read over to him and explained, If necessary, in the language of the witness, whose signature shall be obtained as a token of his having understood the contents. Statement shall also be signed by the inquiry Officer and the party charged. Copy of each statement shall be given to the party charged who shall acknowledge receipt on the statement of witness itself. The inquiry Officer shall record a certificate of having read over the statement to the witness in the presence of the party charged.
153.13 Documentary exhibits, if any, are to be numbered while being presented by the concerned witness and reference of the number shall be noted in the statement of the witness. Such documents may be admitted in evidence as exhibits without being formally proved unless the party charged does not admit the genuineness of such a document and wishes to cross examine the witness who is purported to have signed it.
Copies of the exhibits may be given to the party charged on demand except in the case of voluminious documents, where the party charged may be allowed to inspect the same in the presence of Inquiry Officer and take notes.
153.14 Unless specifically mentioned in these rules, the provisions of the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 shall not apply to the departmental proceedings under these rules.
153.15 The party charged shall then be examined and his statement recorded by the Inquiry Officer. If the party charged has pleaded guilty and does not challenge the evidence on record, the proceedings shall be closed for orders. If the pleads 'not guilty', he shall be required to file within 10 days a written statement together with a list of such witnesses as he may wish to produce in his defence and giving therein a gist of evidence that each witness is expected to give. If the declines to file a written statement, he shall again be examined by the Inquiry Officer on the expiry of the period allowed and his statement, if any recorded.
153.16 If the party charged refuses to produce any witnesses or to produce any evidence in his defence, the proceedings shall be closed for orders. If he produces any evidence, the inquiry Officer shall proceed to record the evidence. If the Inquiry Officer considers that the evidence of any witness or any document which the party charged wants to produce in his defence is not material to the issues involved In the case, he may refuse to call such witness or to allow such document to be produced in evidence, but in all such bases, he must briefly record his reasons for considering the evidence inadmissible. When all relevant evidence has been brought on record, the proceedings shall be closed for orders after recording the statement, if any, of the party charged and obtaining any clasification, if necessary, from him.
153.17 Under no circumstances additional prosecution witnesses shall be examined after the defence has been let in unless supplementary defence witnesses have been allowed on that ground. However, if at any stage during the inquiry, it appears to the inquiry Officer that examination of any witness why has not been produced by either party so far or recall of any witness who has already been examined is essential in the interest of justice or to clear any doubt, he may summon him for the purpose and examine him as a witness of the inquiry Officer after recording his reasons for doing so. Such a witness may also be cross-examined by the party charged, if desired.
153.18 Whenever any inquiry Officer after having heard and recorded the whole or any part of the evidence in an enquiry, ceases to exercise jurisdiction therein and is succeeded by another inquiry Officer who has and exercises such jurisdiction, the inquiry Officer so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by him or himself record it afresh as he deems expedient.
153.19 At the conclusion of the inquiry, the Inquiry Officer shall prepare a report of the inquiry recording his finding on each of the charges with reasons therefore. The findings must of 'guilty' or 'not guilty' and no room shall be allowed for 'benefit of doubt' or 'personal surmises'. A charge shall be deemed to have been proved if after considering the evidence before him, the inquiry Officer belies the ingredients constituting the charge to...upon the supposition that they exist.
153.20 If in the opinion of the Inquiry Officer, the proceedings of the inquiry establish charges different from those originally framed, he may record his findings on such charges.
Provided that findings on such charges shall not be recorded unless the party charged has admitted the facts constituting them and has had an opportunity of defending himself against them.
Rule154. Action on the Inquiry Report:
154.1 If the disciplinary authority, having regard to its own findings where it is itself the Inquiry Officer, is of the opinion that the punishment warranted is such as is within its competence, that authority may act on the evidence on record. However, in a case where it is of the opinion that further examination of any of the witnesses is necessary in the interest of justice, it may recall the witness, examine him and allow the party charged to cross-examine him. After that, it may impose on the party charged such punishment as is within its competence according to these rules.
23. Now we would like to examine whether the provisions of Rules 153 and 154.1 of the Railway Protection Force Rules, 1987 are against the principles of natural justice being violative of Articles 14, 16, 21 and 311 of the Constitution and whether these provisions result in denial of Audi Alteram partem?
24. It was contended by the learned Counsel appearing for the respondents that Article 3111 of the Constitution provides two protections and they are:(i) 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 shall be dismissed or removed by an authority subordinate to that by which he was appointed; and (ii) that no such person as aforesaid shall be dismissed or removed or reduced in rank except after in inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of these charges. As stated above, the petitioners have not come with a case that they have been dismissed or removed by an authority subordinate to that by which they were appointed. It is nobody's case that charge sheets giving details of allegations have not been served on the petitioners.
25. The only contention raised by the learned Counsel appearing for the petitioners is that the provisions of Rule 153 and 154.1 are against the principles of natural justice being violative of Articles 14, 16, 21 and 311 of the Constitution because they have been denied reasonable opportunity of bearing heard in respect of the charges framed against them. In this context, the learned Counsel appearing for the respondents have submitted that the members of the armed Forces of the Union have to be treated differently than the members of the civil services of the Union or the States because member of the armed Forces are charged with the maintenance of public order and maintenance of discipline amongst them is the paramount Consideration and therefore, that distinction has to be borne in mind. In this respect, our attention has been drawn to Article 33 of the constitution, which categorically provides that the Parliament may, by law, determine to what extent any of he rights conferred by this Part shall, in their application to,--(a) the members of the Armed Forces; or (b) the members of the Forces charged with the maintenance of public order; or (c) persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence; or (d) persons employed in, or in connection with the telecommunication systems set upto or the purposes of any Force, bureau or organisation referred to in Clauses (a) to (c), be restricted or abrogated, so as to ensure the proper discharge of their duties and the maintenance of discipline among them. Thus, so far as the members or the Armed Forces of the Union or the Members of the Forces charged with maintenance of public order are concerned, the fundamental rights conferred by Part III of the Constitution can be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of the discipline among them. The Parliament has full authority to do so within reasonable limits.
26. In this respect, our attention has been drawn to a decision of their lordships of the Supreme Court in Ram Sarup v. Union of India : 1965CriLJ236 , wherein it has been observed that each and every provision of the Act is a law made by Parliament and that if any such provision tends to affect the fundamental right under Part III of the Constitution, that provision does not, on that account, become void, as it must be taken that Parliament has thereby in the exercise of its power under Article 33 of the Constitution, made the requisite modification to affect the respective fundamental right. Accordingly, their lordships of the Supreme Court have held that provisions of Section 125 of the Army Act are not discriminatory and do not infringe the provisions of Article 14 of the Constitution.
27. On the other hand, the learned Counsel appealing for the petitioners have drawn our attention to a decision of their lordships of the Supreme Court in Maneka Gandhi v. Union of Indian : [1978]2SCR621 , wherein their lordships of the Supreme Court have held that although, there are no positive words in the Statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature. The principle of audi alteram partem, which mandates that no one shall be condemned unheard is part of the rule of natural justice. It has been further held that natural justice is a great humanising principle intended to invest law with fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action. The inquiry must, always, be: does fairness in action demand that an opportunity to be heard should be given to the person affected? It may be stated here that Maneka Gandhi's case (supra) is based on Article 21 of the Constitution, which provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. It is a far reaching decision, wherein their lordships of the Supreme Court have held that the law must now be taken to be well settled that even in an administrative proceeding, which involves civil consequences, the doctrine of natural Justice must be held to be applicable. There is no quarrel about this principle which has been enunciated by their lordships of the Supreme Court in order to give effect to the provisions of Article 21 of the Constitution, which too forms part of Part III, of the Constitution. Articles 33 of the Constitution provides that the Parliament may, by law, determine to what extent any of the rights conferred by Part III of the Constitution shall, in their application to be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them, in respect of the members of the Armed Forces or the Members of the other Forces like Police etc.
28. Out attention was next drawn to a decision of their lordships of the Supreme Court in Prithi Pal Singh v. Union of India : 1983CriLJ647 , wherein it has been held that Section 21 of the Army Act merely confers an additional power to modify rights conferred by Article 19(1)(a) and (c) by Rules and such rules may set out the limits of restriction. But the specific provision does not drogate from the generality of power conferred by Article 33. Therefore, the law prescribing procedure for trial of offences by court martial need not satisfy the requirement of Article 21 because to the extent the procedure is prescribed by law and if it is in derogation of Article 21, to that extent Article 21 in its application to the Armed Forces stands modified by enactment of the procedure in the Army Act itself. It was further held that Article 33 confers power on the Parliament to determine to what extent any of the rights conferred by Part III shall, in their application to the members of the Armed Forces, be restricted or abrogated so as to ensure the proper discharge of duties and maintenance of discipline among them. Article 33 does not obligate that Parliament must specifically adumbrate each fundamental right enshrined in Part III and to specify in the law enacted in exercise of the power conferred by Article 33, the degree of restriction or total abrogation of each right. That would be reading into Article 33, a requirement which it does not enjoin. In fact, after the Constitution came into force, the power to legistate in respect of any item must be referable to an entry in the relevant list. Entry 2 in List I: Naval, Military and Air Force and any other Armed Forces of the Union, would enable Parliament to enact the Army Act and armed with tis power the Act was enacted in July 1950. It has to be enacted by the Parliament subject to the requirements of Part III of the Constitution read with Article 33 which itself forms part of Part III. Therefore, every provision of the Army Act enacted by the Parliament, if in conflict with the fundamental rghts conferred by Part III, shall have to be read subject to Article 33 as being enacted with a view to either restricting or abrogating other fundamental rights to the extent of inconsistency or repugnacy between Part III of the Constitution and the Army Act.
29. Out attention was next drawn to a decision of their lordships of the Supreme Court in Rule Viswan v. Union of India : (1983)IILLJ157SC , wherein their lordships of the Supreme Court have observed as follows:
Rights which are permitted to be restricted by a notification issued by Central Govt. Under Section 21 are part of the fundamental rights under classes (a), (b) and (c) of Article 19(1) and under the constitutional scheme, they cannot be restricted by executive action unsupported by law. If any restrictions are to be imposed, that can be done only by law and such law must satisfy the requirements of Clause (2), (3) or (4) of Article 19, according as the right restricted falls within Clause (a), (b) or (c) of Article 19(1). The restrictions imposed must be reasonable and in case of right Under Clause (a) of Article 19(1), they must be 'in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of Court, defamation or incitement to an offence' as provided in Clauses (2) of Article 19, in case of right Under Clause (b) of Article 19(1), they must be 'in the interest of the sovereignty and integrity of india or public order' as provided in Clause (3) of Article 19 and in case of right Under Clause (c) of Article 19(1), they must be in the interest of the sovereignty and integrity of India or public order or morality' as provided in Clause (4) of Article 19. Then, only they would be valid; otherwise they would be unconstitutional and the law imposing them would be void.
Their lordships have further observed as under:
It is elementary that a highly disciplined and efficient armed force is absolutely essential for the defence of the country. Defence preparedness is in fact the only sure guarantee against aggression. Morale and discipline are indeed the very soul of an army and no other consideration, howsoever important, can outweigh the need to strengthen the morale of the armed forces and to maintain discipline amongst them. The Constitution makers therefore, placed the need for discipline above, the fundamental rights so far as the members of the Armed Forces and the Forces charged with the maintenance of public order are concerned and provided in Articles 33 that Parliament may be law determine the extent to which any of the Fundamental Rights in their application to members of the Armed Forces and the Forces and the Forces charged with the maintenance of public order, may be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them. Article 33 on a plain grammatical construction of its language does not require that Parliament itself must by law restrict or abrogate any of the Fundamental Rights in order to attract the applicability of that Article. What it says is only this and no more, namely that Parliament may by law determine the permissible extent to which any of the Fundamental Rights may be restricted or abrogated in their application to the members of the Armed Forces and the Forces charged with the maintenance of public order.
The Parliament was, therefore, within its power under Article 33 to enact Section 21 laying down to what extent the Central Govt. may restrict the Fundamental Rights, under Clauses (a),(b) and (c) of Article 19(1), of any person subject to the Army Act, every such person being clearly a member of the Armed Forces. The extent to which restrictions may be imposed on the Fundamental Rights under Clauses (a),(b) and (c) of Article 19(1) is clearly indicated in Clauses (a),(b) and (c)of Section 21 and the Central Govt. is authorised to imposed restrictions on these Fundamental Rights only to the extent of the rights set out in Clauses (a), (b) and (c) of Section 21 and no more. The permissible extent of the restrictions which may be imposed on the Fundamental Rights under Clauses (a), (b) and (c) of Article 19(1) having been laid down in Clauses (a), (b) and (c) of Section 21, the Central Govt. is empowered to impose restrictions within such permissible limit,'To such extent and in such manner as may be necessary.' The guideline for determining as to which restrictions should be considered necessary by the Central Govt. within the permissible extent determined by Parliament is provided in Article 33 it self, namely that the restrictions should be such as are necessary for ensuring the proper discharge of their duties by the members of the Armed Forces and the maintenance of discipline among them. The Central Govt. has to keep this guideline before it in exercising the power of imposing restrictions under Section 21. Once the Central Govt. has imposed restrictions in exercise of this power, the Court will not ordinanily interfere with the decision of the Central Govt. that such restrictions are necessary because that is a matter left by Parliament exclusively to the Central Govt. which is best in a position to know what the situation demands. Section 21 must in the circumstances, be held to be constitutionally valid as being within the power conferred under Article 33.
In para 13 of the judgment, their lordships have also observed as under:
In the first place, the nature of the proceedings which may be taken under the Central Civil Services (Classification, Control and Appeal) Rules, 1965 against an erring employee is different from the nature of the proceedings which may be taken against him under the provisions of the Army Act read with the Army Rules, the former being disciplinary in character while the latter being clearly penal. There is no overlapping between the provisions of the Central Civil Services (Classification, Control and appeal) Rules, 1965 and the Army Rules, 1954 as applied to the members of the GREF. Secondly it cannot be said that the discretion vested in the authorities whether to take action against an erring member of the GREF under Central Civil Services (Classification, Control and Appeal) Rules, 1965 or under the Army Act and the Army Rules is unguided or uncanalised.
In any event the provisions of the Army Act and the Army Rules as applied to the members of the GREF are protected by Article 33 against invalidation on the ground of violation of Article 14.
In view of what we have discussed hereinabove, we are firmly of the view that fundamental rights can be restricted or abrogated by the Parliament or its nominee, the Central Govt. in exercise of the powers conferred under Article 33 of the Constitution, so far as the Members of the Armed Forces of the Union and the Forces charged with the maintenance of public order are concerned of course, such restrictions have to be reasonable.
30. The phrase reasonable restriction' came up for consideration, before their lordships of the Supreme Court in Chintamanrao v. State of M.P. : [1950]1SCR759 , wherein it has been observed as under:
The phrase 'reasonable restriction' in Article 19(6) connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interest of the public. The word 'reasonable' implies intelligent care and deliberation, that is the choice of a course which reason dictates. Legislation which arbitrarily or excessively Invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1)(g) and the social control permitted by Clause (6) of Article 19, it must be held to be wanting in that qualify.
The determination by the Legislature of what constitutes a reasonable restriction is not final or conclusive; it is subject to the supervision by the Supreme Court. In the matter of fundamental rights, the Supreme Court watches and guards the rights guaranteed by the Constitution and in exercising its functions, it has the power to set aside an Act of the Legislature if it is In violation of the freedoms guaranteed by the Constitution.
Thus, it is clear that the reasonable restrictions implies intelligent care and deliberation, that is the choice of a course which reason dictates and such a restriction is amenable to scrutiny by the Courts of law.
31. Our attention was next drawn to a decision of their lordships of the Supreme Court in Union of India v. Amrik Singh : 1991CriLJ664 , wherein their lordships of the Supreme Court have observed as under:
Under Section 117(2) of the BSFAct, which is in pari materia to Section 164(2) of the Army Act, the person aggrieved is only entitled to file a petition but the disposal of such a petition does not attract principles of natural justice. Even in Chapter XIII consisting of Rule167 to 169 of the BSF Rules, which deals with petitions filed under Section 117, there is nothing to indicate that a hearing has to be give before disposal of a petition. In this case, the petitioner-respondent had been tried by observing the due process of law and the verdict of the Security Force Court was confirmed and it was only a post-confirmation petition, that was filed under Section 117(2) of the Act and the authority which disposed of the same was not a court. Therefore, a personal hearing was not required before disposing of the petition under Section 117(2).
It has been further observed as under:
Every order passed administratively cannot be subjected to the rigorous of principles of natural justice. Incase of special enactments like Army Act, B.S.F. Act, all the principles of natural justice cannot be imported.
32. Now, keeping in view the fact that as per the preamble of the Act, as amended by the Railway Protection Force (Amendment) Act, 1985 and as has been provided Section 3 of the Act, the Railway Protection force has been treated as an Armed Force of the Union, whether the restrictions imposed on the members of the Railway Protection Force by Rule 153 and 154.1 are reasonable restrictions or not, is to be answered by us ?
33. Rule 153.1 of the Rules lays down that no member of the Force shall be dismissed, removed or compulsorily retired or reduced in rank without holding an enquiry, as far as may be in the manner that is provided by the provisions of the Act and the Rules. Rule 153.2.1 further pr ides that whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against an enrolled member of the Force, it may itself inquire into, or appoint an Inquiry Officer higher in rank to the enrolled member charged but not below the rank of Inspector, or institute a court of enquiry to inquire into the truth thereof. On receipt of a complaint, as per the provisions of Rule 153.3.3, the Disciplinary Authority on going through the facts alleged or brought out hall decide whether it is a case for major or minor punishments. Thus, even at that stage also, it has to be decided whether it is a case of major punishment or minor punishment and accordingly, charges have to be levelled against the delinquent and the petitioner has to be informed of the charges Rule 153.4 provides that the Disciplinary authority shall draw up or cause to be drawn up the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge and a statement of the imputation of misconduct or misbehaviour in support of each article of charge which shall contain a statement of all relevant facts including any admission or confession made by the enrolled member of the Force, and a list of documents by which and a list of witnesses by whom the articles of charge are proposed to be sustained. Thus, before issuing the chargesheet, the Disciplinary Authority is to gather the facts on the basis of which allegations and imputations have to be made and served on the delinquent; the list of witnesses who will support the charge and the list of documents, which will be necessary to prove the charge and the petitioner is to be informed of all of them. As per Rule 153.5 of the Rules, the Disciplinary authority is to deliver or cause to be delivered to the delinquent member, at least seventy two hours before the commencement of the inquiry, a copy of the articles of charge, the statement of imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained and fix a date when the inquiry is to commence. Thus, it is clear that the provisions of Rules 153.1, 153.2, 153.3, 153.4 and 153.5 are in conformity with the principle of natural justice as also Article 311 of the Constitution.
34. Rule 153.8 of the Rules categorically provides that the enrolled member charged shall not be allowed to bring in a legal practitioner at the proceedings but he may be allowed to take the assistance of any other member of the Force herein after referred to as 'friend', where in the opinion of the Enquiry Officer may, at the request of the party charged, put his defence properly and such a friend must be a serving member of the Force of or below the rank of Sub-Inspector for the time being posted in the same division or the battalion, where the proceedings are pending and not acting as 'friend' in any other proceedings pending any where and such a friend shall, however, not be allowed to address in Inquiry Officer nor to cross-examine the witnesses. Great stress has been laid as regard the invalidity of Rule 153.8 of the Rules which deprives a 'friend' to cross-examine the witnesses and to address the Inquiry Officer as also to take assistance of a legal practitioner at the proceedings. The provision that the next friend must be a serving member of the Force of or below the rank of Sub-Inspector for the time being posted in the same division or the battalion where the proceedings are pending has also been attacked. As stated above, what is required by Article 311 of the Constitution is that before dismissal or removal or reduction in rank, an enquiry should be held against the delinquent and he must be informed of the charges against him and must be given a reasonable opportunity of being heard in respect of those charges. In these cases, the delinquent is being informed of the definite charges alleged against him and is being, given a reasonable opportunity of being heard. Reasonable opportunity does not mean that the person who is giving assistance to the delinquent should be allowed to cross examine the witnesses and to address the Inquiry Officer. A friend is not restricted or disallowed from preparing the case and to suggest the questions to be asked by the delinquent to the witnesses. He is also not restricted to prepare, reply to the chargesheet and to prepare the written arguments on behalf of the delinquent.
35. Reference has been made to certain dictionaries to show the correct meaning of the word 'assistance'. We need not go into this controversy for the present because what type of assistance is to be provided to the delinquent, it has to be provided as per the provisions of the Act and the Rules. The next friend has not been allowed to cross-examine the witnesses and to address the Inquiry Officer directly. This has been specifically excluded and, therefore, this exclusion is totally deliberate and is saved by the provisions of Article 33 of the Constitution. It would have been a case of denial of reasonable opportunity if the delinquent was denied the right to cross examine the witnesses and to address the Enquiry Officer but that is not so.
36. Rule 153.10 of the Rules categorically provides that at the commencement of the inquiry, the party charged shall be asked to enter a plea of 'guilty' or 'not guilty' after which evidence necessary to establish the charge shall be let in. The evidence shall be material to the charge and may either be oral or documentary. If oral, it shall be direct and it shall be recorded by the Inquiry Officer in the presence of the party charged and the party charged shall be allowed to cross-examine the witnesses. Thus, right to cross examine the witness has been guaranteed to the delinquent by Rule 153.10 of the Rules.
37. Rule 153.11 of the Rules further provides that if the witnesses are Government Officers of a rank superior to the party charged, the Inquiry Officer may at the request of the party charged put the questions to such Officer. This rule does not restrict the delinquent to ask question to a witness who is his superior Officer. As the delinquent may feel shy in asking questions to a witness, who is his superior Officer, it has been provided in this rule that the Inquiry Officer may at the request of the party charged put the questions to such superior Officer. He only puts those questions to the superior Officer, for which, a request is being made by the party charged. Thus, the provisions of Rule 153.11 do not restrict the delinquent to ask questions to the witnesses, who appear for the Department and area categorised as superior Officers.
38. Rule 153.12 provides that all evidence shall be recorded, in the presence of the party charged by the Inquiry Officer himself or on his dictation by a scribe. Cross-examination by the party charged or the fact of his declining to cross-examine the witness as the case may be shall also be recorded. The Statement of each witness shall be read over to him and explain, if necessary in the language of the witness, whose signature shall be obtained as a token of his having understood the contents. Statement shall also be signed by the Inquiry Officer and the party charged. Copy of each statement shall also be signed by the Inquiry Officer and the party charged. Copy of each statement shall be given to the party charged who shall acknowledge receipt on the statement of witness itself. The Inquiry Officer shall record a certificate of having read over the statement to the witness in the presence of the party chargd. After the statements of the witnesses of the department are concluded as per Rule 153.15 of the Rules, the party charged shall be examined and his statement recorded by the Inquiry Officer. If the party charged pleads guilty and does not challenge the evidence on record, the proceedings shall be closed for orders. If the pleads 'not guilty', he shall be required to file within 10 days a written statement together with a list of such witnesses as he may wish to produce in his defence and giving therein a gist of evidence that each witness is expected to give. If he declines to file a written statement, he shall again be examined by the Inquiry Officer on the expiry of the period allowed and his statement, if any recorded. This rule categorically says that after the evidence on behalf of the Department is over, the delinquent shall enter into his defence. His plea shall be recorded and if he does not plead guilty then he will have to submit a list of the witnesses and the list of documents and the written statement. How is further required to give the gist of the evidence that each witness is expected to give if the delinquent declines to file the written statement then the delinquent shall again be examined by the Inquiry Officer and his statement shall be recorded. Asking the delinquent to give the list of the witnesses along with the gist of the evidence that each witness is expected to give and to file the written statement within 10 days from the date he pleads not guilty cannot be said to be violative of the principles of natural justice in order to maintain the discipline in the Armed Forces and further with a view to decide the the disciplinary enquiries at the earliest, the delinquent is required to submit the list of the witnesses alongwith the gist of the evidence that each witness is expected to give, so that irrelevant witnesses can be ignored and the proceedings cannot be prolonged. Thus, in our view, the provisions of Rules 153.15 and 153.16 no where violate the principles of natural justice. Even as per the provisions of Rule 133.17, the delinquent can cross-examine the witnesses but his next friend is not allowed to cross-examine the witnesses produced on behalf of the Department. If his next friend is not allowed to cross-examine the witnesses produced on behalf of the Department, it does not mean that he has not been allowed to cross-examine the witnesses. As a matter of fact, the delinquent himself can cross-examine the witnesses produced on behalf of the Department and, therefore, the provisions of Rule 153.17 of the Rules also cannot be said to be against the principles of natural justice. No specific challenge has been made to the provisions of Rules 153.18, 153.19 and 153.20 of the Rules on the ground that they are violative of the principles of natural justice.
39. As stated above Article 311(2) of the Constitution only provides that the party charged must be informed of the charges and reasonable opportunity of hearing must be given to the delinquent. Reasonable opportunity of hearing does not mean that it should be provided to his next friend also. Reasonable opportunity of hearing has been provided to the delinquent in Rule 153 of the Rules. Thus, on this ground also, the provisions of Rule 153 of the Rules cannot be said to be violative of Article 311 of the Constitution.
40. As stated above Rule 153.2.1 provides that enquiry can be held by an Officer higher in rank to the charged enrolled member but not below the rank of Inspector and Rule 153.8 enables the enrollcd charged member to take assistance of any other serving member of the Force, to be called as 'Friend' and that friend must be of or below the rank of Sub-Inspector. It appears that since the enquiry officer can be an Officer of the rank of Inspector and, therefore, assistance of a friend has been provided to the enrolled member of an Officer of or below the rank of Sub-Inspector so that he may not influence the Enquiry Officer and, therefore, on this ground also, Rule 153 of the Rules cannot be said to be violative of Articles 14, 16, 21 and 311 of the Constitution.
41. Now so far as challenge to Rule 154.1 of the Rules is concerned, it is regarding furnishing of the enquiry report with the punishment order it is no doubt true that ordinarily, the enquiry report should be furnished to the delinquent prior to the punishment order. This is what has been held by their lordships of the Supreme Court in Managing Director, ECIL v. B. Karunnakar : (1994)ILLJ162SC but that right is available to the civil servants and not the members of the Armed Forces of the Union. This restriction is saved by All. 33 of the Constitution. Moreover after the supply of the enquiry report and the punishment order, a right of appeal has been provided in the Rules and therefore, non-supply of the enquiry report prior to the punishment does not amount to violation of Articles 14, 16 and 21 of the Constitution and even if it does not violate then too it is saved by Article 33 of the Constitution.
42. Keeping in view all the facts and circumstances of the cases and the discussions made hereinabove, we are firmly of the view that the provisions of Rule 153 and 154.1 of the Rules are not ultra vires of Articles 14, 16, 21 and 311 of the Constitution. These provisions are not even against the principles of natural justice and even if for arguments sake, some repugnancy to the aforesaid principals is there, it stands covered by Article 33 of the Constitution.
43. In the result, we find no force in these writ petitions and, therefore, they are hereby dismissed with no order as to costs.