Surya Kumar Tiwari, J.
1. This appeal arised put of CO. No. 3223 (W) of 1983 decided that on 9th January, 1992 by Mr. Justice Mahotish Mazumdar.
2. The three petitioners (respondents in this appeal) were working as 'rakshaks' in the Railway Protection Force. They were alleged to have committed serious misconduct while performing their duties as 'rakshaks'. They were deputed to an escort goods train No. 733 UP. The train was looted in the way and the petitioners failed to protect the goods transported in the train. It was alleged that the petitioners did not make any efforts to prevent the theft or to apprehend the criminals. It was also alleged that the petitioners connived with the criminals.
3. The Assistant Security Officer, Eastern Railway, Kachrapara passed the order of removal (on 7.4.1983) of the petitioners from the service with immediate effect.
4. The petitioners have challenged the order of removal on the ground that without holding any departmental inquiry or without affording them any opportunity of being heard no valid order could be passed in violations of principles of natural justice.
5. According to petitioners, no circumstances existed which warranted the authority to pass an order of removal without departmental enquiry.
6. The respondents, in their affidavit-in-opposition, have challenged the petitioners' contentions raised in the writ application and have stated that the petitioners past records go to show that they had several punishments to their credit and the investigation about the incident, which took place on 25.2.1983 revealed that the petitioners were themselves involved and were in league wilh the thieves who had stolen the railway property. ' The thieves apprehended on the spot have themselves revealed this fact.
7. The Id. Judge of the Trial Court held that there did not exist any situation which rendered the holding of inquiry not reasonably practicable. The authorities acted mechanically in passing the order. Hence, the order passed by the authority was quashed and the writ petition was allowed. The petitioners were allowed to join their duties within one month from the date of communication of the order. The petitioners were allowed all the service benefits from the date of the removal from service. Hence, this appeal.
8. The Id. counsel for the appellant has placed reliance on Tulsiram Patel's case : (1985)IILLJ206SC . He has invited our attention to the law laid down in the judgment printed at page 453 (supra). The Supreme Court, while dealing with the law relating to Clause (b) of 2nd proviso to Article 311 of the Constitution observed thus :-
'The position which emerges from the above discussion is that the keywords of the second proviso' govern each and every clause of that proviso and leave no scope for any kind of opportunity to be given to a government servant. The phrase 'this clause shall not apply' is mandatory and not directory. It is in the nature of a Constitutional prohibitory injunction restraining the disciplinary authority from holding an inquiry under Article 311(2) or from giving any kind of opportunity to the concerned government servant. There is thus no scope for introduction into the second proviso some kind of inquiry or opportunity by a process of inference of implication. The maxim 'expressum facit cessare taciturn' '(when there is express mention of certain things, then anything not mentioned is excluded) applies to the case. As pointed out by this Court in B. Shankara Rao Badami and Ors. v. State of Mysore and Anr., (1969) 3 SCR 112, this well known maxim is a principle of logic and common sense and not merely a technical rule of construction. The second proviso expressly mention that Cl. (2) shall not apply where one of the clauses of that proviso becomes applicable. This express mention excludes everything that Cl. (2) contains and there can be no scope for once again introducing the opportunities provided by Cl. (2) or any one of them into the second proviso'.
9. Thus it is clear that it was not necessary to hold a departmental inquiry in each case if the circumstances so warrant. If we probe into the circumstances it will become clear that it is not disputed that the petitioners were deputed to guard the train running between Kachrapara and Kharagpur. The train was stopped and looted, but the petitioners neither fired any shots nor tried to apprehend any of the culprits. The incident took place at dead of night. The investigation reveals, that the driver and guard of the train also were mixed up with the thieves. Hence, it is certainly not possible to procure any direct evidence against the petitioners. Annexure 'A' is the representation preferred by the petitioners which does not throw any light as to the circumstance resulting in the looting of the train and theaction taken by the petitioners to protect railway property. The circumstances also go to show that the petitioners were either mixed up or were in league with the criminals and this was a grave misconduct. The public is vitally interested in the efficiency and integrity of the services. Government servants are paid from public exchaquer to which general public contributes. Those entrusted with public duties must discharge their duties for public good with full sense of responsibility. The petitioners failed to discharge their duties with efficiency and honesty. They are either cowards or accomplices in the crime of robbery. Hence, their removal appears to be just and proper. Hence under Rule 47 (b) of the Railway Protection Force Rules was rightly invoked by the disciplinary authority.
10. The Id. counsel for the petitioners/respondents has cited case reported in : (1991)ILLJ308SC , Chief Security Officer v. Singhasan Rani Das, wherein it has been laid down that the departmental inquiry cannot be dispensed with simply on the ground that the witnesses not be forthcoming or that they would be intimated or humiliated. In the present case that alone is not a ground and there is sufficient circumstantial evidence to show that the petitioners were guilty of in-action or mala fide acts. It is said that the a witness may lie but the circumsatnces would not. The circumstantial evidence is overwhelmingly against the petitioners. Hence, the order was rightly passed. The other case relied on by the respondent's counsel is Jaswant Singh v. State of Punjab, : AIR1991SC385 wherein it has been laid down that dispensation with enquiry must be fortified by independent evidence. In the present case it is so. The subjective satisfaction of the authority is certainly based on certain objective facts and it is not the outcome of whim or caprice of the concerned officer. Hence this case is of no help to the writ petitioners.
11. The other judgment reported in AIR 1958 Supreme Court 80 (State of U.P. v. Mohd. Nooh) also does not help the petitioners. The appellants' counsel has also urged that the petitioners had an alternative remedy to prefer an appeal against the dismissal order. Since he failed to avail of it, his writ petition deserves to be dismissed on this count alone. This appeal is therefore allowed and the order passed by the Id. Trial Judge is. hereby set aside. The writ petition is hereby dismissed and there will be no order as to costs.
Prabir Kumar Majumdar, J.
12. I agree.