K. Raghuram Babu Vs. Director General of Railway Protection Force, New Delhi and ors. - Court Judgment

Excerpt:
service - enquiry against delinquent employee - rule 153 (8) of railway protection force rules, 1987 - enquiry initiated against employee - charged employee seeks to take assistance of his co-employee in departmental enquiry as per rule 153 - rule 153 (8) does not allow friend to represent the case before inquiry officer or cross examine witness - held, such part of rule 153 (8) is unconstitutional and unreasonable. - - 3. the parliament enacted the railway protection force act, 1957 (hereinafter referred to as 'the act') 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. 11. right of cross-examination, as is well known, is a valuable right. at page 343 of the.....s.b. sinha, c.j. 1. constitutionality of rule 153(8) of the railway protection force rules, 1987 (hereinafter referred to as 'the rules') is in question in this appeal. 2. the appellant herein who was appointed as sub-inspector in the railway protection force and subsequently was promoted as inspector, was placed under suspension on 18-9-1995 on the allegation that he made excess delivery of scrapworth about rs.10,000/-. a departmental proceeding has been initiated against him wherein he seeks to engage a friend to defend his case. 3. the parliament enacted the railway protection force act, 1957 (hereinafter referred to as 'the act') 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.....

Judgment:
S.B. Sinha, C.J.

1. Constitutionality of Rule 153(8) of the Railway Protection Force Rules, 1987 (hereinafter referred to as 'the Rules') is in question in this appeal.

2. The appellant herein who was appointed as Sub-Inspector in the Railway Protection Force and subsequently was promoted as Inspector, was placed under suspension on 18-9-1995 on the allegation that he made excess delivery of scrapworth about Rs.10,000/-. A departmental proceeding has been initiated against him wherein he seeks to engage a friend to defend his case.

3. The Parliament enacted the Railway Protection Force Act, 1957 (hereinafter referred to as 'the Act') 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. Section 21 of the said Act provides for the rule making power inter alia for 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 appeal. In terms of the aforementioned provision the Central Government framed the rules. Rule 153 of the rules provides procedure for imposing major punishments. Sub-rules (1), (8), (10) and (11) of Rule 153 of the rules read thus:

(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 inquiry, as far as may be in the manner provided hereinafter, in which he has been informed in writing of the grounds on which it is proposed to take action, and has been afforded a reasonable opportunity of defending himself.

(8) 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 hereinafter referred to as 'friend' wherein 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.

(10) At the commencement of the inquiry, the party charged shall be asked to enter a plea of 'guilty' or' not guilt)'' 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-

(a) 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.

(11) If the witnesses arc 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.

4. A Division Bench of the Rajasthan High Court inter alia held the said provisions to be intra vires infer alia on the ground that by reason thereof the right of the delinquent to cross-examine the witnesses examined on behalf of the department is not altogether taken away. Following the said decision a Division Bench of this Court dismissed a writ petition -WP No.3958 of 1996 by order dated 16-10-1997 stating:

Rules 153-8 and 143-2 of Railway Protection Force Rules, 1987 are challenged as being ultra views and toset aside the charge-sheet issued against the petitioner as a consequential relief. These rules were interpreted by a Division Bench of Rajasthan High Court in a batch of writ petitions and by judgment dated 10-4-1995 in WP No.5155 of 1980 and batch, the validity of the said rules were upheld as being infra vires. We are not persuaded to take a different view. Hence, this writ petition is dismissed.

5. The said Division Bench decision was followed by a learned single Judge of this Court in Writ Petition No.1057 of 1998. The learned single Judge, although felt that there is some substance in the argument of the learned Counsel for the petitioner that the said rule is ultra vires Articles 14 and 16 of the Constitution of India, but having regard to the decision of the Division Bench refused to interfere in the matter. On a letters patent appeal preferred there-against, this matter has been referred to a Full Bench by a Division Bench of this Court by an order dated 6-12-1999.

6. Sri S.R. Sanku, the learned Counsel appearing on behalf of the petitioner, would submit that the decision of the Rajasthan High Court cannot be said to be a binding precedent. Reliance in this connection has been placed on Jaya Sen v. Sujit K.R. Sarkar, : AIR1998Cal288 and T. Subba Rao v. Deputy Registrar of Cooperative Societies, Bhimavaram, : 1998(4)ALD197 .

7. Sri R.S. Murthy, the learned Counsel appearing on behalf of the respondents, on the other hand, submits that right to be represented by a legal practitioner or a friend or a lawyer is not a vested one and thus Rule 153(8) of the rules cannot be said to be ultra vires. The learned Counsel would submit that the members of the Railway Protection Force belong to para-military force and thus the restriction imposed to the extent of hiring the services of a friend of any rank whatsoever would be detrimental to the discipline of the force.

8. It is trite that an employee may not have any right of representation in a domestic enquiry unless he faces a grievous charge and denial of a right of representation itself would be violative of the principles of natural justice. It is further true that a person does not have any right to be represented by a lawyer unless the service rules specifically provide for the same. But in the instant case, the rule making authority while laying down the procedure for holding a departmental enquiry provided that the delinquent be represented by a friend of his choice. Several statutory rules permit representation of a delinquent officer by a friend. For example, Rule 1712 of the Railway Establishment Code provides:

The accused railway servant may present his case with the assistance of any other railway servant employed on the same railway (including a railway servant on leave preparatory to retirement) on which he is working.

9. In a case of this nature the rule of purposive interpretation has to be taken recourse to. The rule making authority, in the instant case, having regard to the background of the force and the nature of duties an employee is required to perform, thought it fit that, in a given case of misconduct which may not only involve punishment in a departmental proceeding but also in criminal Court, a delinquent officer, facing such disciplinary enquiry, should be permitted to be represented through a co-employee.

10. The question, which arises for consideration, would be as to whether having provided for the same, could he (co-employee) be prevented from doing so, so as to take away from him the dutiesand functions for which he had been appointed. A friend is appointed mainly to cross-examine the witnesses and advance arguments. He is supposed to be adept in handling such a case. He is supposed to know the rules, circulars and/or other directions issued by the authorities.

11. Right of cross-examination, as is well known, is a valuable right. No evidence shall be admissible unless the witness is permitted to be cross-examined. Such a right can neither be taken away directly nor indirectly. The learned Counsel for the parties have put forward different contentions as regard construction of the said rules. Whereas Mr. Sanku submitted that Rule 153(8) of the rules should be construed to mean that by reason thereof the right of cross-examination as also the right of making submission is taken away, which, according to the learned Counsel, would be the logical consequence of engaging a friend, Mr. Murthy, on the other hand, submitted that whereas the friend engaged by a delinquent officer would be entitled to be present, he would not be entitled to cross-examine or make any submission.

12. In Central Bureau of Investigation v. y.C. Shukla and others, : 1998CriLJ1905 , it has been held:

The word 'account' has been defined in Words and Phrases, Permanent Edition, Volume IA at pages 336 to 338 to mean (i) a claim or demand by one person against another creating a debtor-creditor relation; (ii) a formal statement in detail of transactions between two parties arising out of contracts or some fiduciary relation. At page 343 of the same book the word has also been defined to mean the preparation of record or statement of transactions or the like; a statement and explanation of one's administration or conduct in money affairs; a statement or record of financial transactions, areckoning or computation; a registry of pecuniary transactions or a reckoning of money transactions; a written or printed statement of business dealing or debits and credits; or a certain class of them. It is thus seen that while the former definitions give the word 'account' a restrictive meaning the later give it a comprehensive meaning. Similarly is the above word defined, both restrictively and expansively, in Black's Law Dictionary (Sixth Edition) to mean 'a detailed statement of the mutual demands in the nature of debit and credit between parties arising out of contracts or some fiduciary relation. A statement in writing, of debits and credits, or of receipts and payments; a list of items of debits and credits, with their respective dates. A statement of pecuniary transactions; a record or course of business dealings between parties; a list of statement of monetary transactions, such as payments, losses, sales debits, credits, accounts payable, accounts receivable, etc., in most cases showing a balance or result of comparison between items of an opposite nature.'

From the above definitions of 'account' it is evident that if it has to be narrowly construed to mean a formal statement of transactions between two parties including debtor-creditor relation and arising out of contract, or some fiduciary relations undoubtedly the book MR. 71/91 would not come within the purview of Section 34. Conversely, if the word 'account' is to be given wider meaning to include a record of financial transactions properly reckoned the above book would attract the definition of 'book of account'.

It cannot be gainsaid that the words 'account', 'books of account', business' and 'regularly kept' appearing in Section 34 are of general import. Necessarily, therefore, such wordsmust receive a general construction unless there is something in the Act itself, such as the subject-matter with which the Act is dealing, or the context in which the words are used, to show the intention of the Legislature that they must be given a restrictive meaning.

13. Mr. Reed Dickerson in his book on 'The Interpretation and Application of Statutes', 1975 Edition, stated:

What is the significance of the context in which a message is read? It is highly improbable that any document, considered entirely apart from the culture that it presupposes, can convey meaning, except in another culture that shares some of the same elements. Indeed, to suppose an effective communication entirely apart from its cultural environment would be almost a self-contradiction. Obviously, a verbal communication must be expressed in the language appropriate to the culture in which the communication takes place. The essence of a language is to reflect, express, and perhaps even affect the conceptual matrix of established ideas and values that identifies the culture to which it belongs. For this reason, language has been called a 'conceptual map of human experience.' As with any map, it has little or no significance apart from what it mirrors.

The underlying cultural elements that provide the materials of context include (1) the pervasive net work or grid of concepts presupposed by the language of that culture; and (2) the co-ordinate fund of habits, knowledge, values, and purposes that are shared by the great bulk of the speech community of which both author and audience are members and at least some of which are taken account of in each communication. Together, the factors make up the aggregate of relevant human expectations.

14. It is a well settled principle of lawthat where the law is not clear, recourse must be taken to purposive interpretation.In Reserve Bank of India v. Peerless Company, : [1987]2SCR1 , it was held:

Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place.

15. In Anantha Kumar Bej v. State of West Bengal, 1999 (4) SLR 661, a Division Bench of the Calcutta High Court has noticed the authorities as regards purposive construction thus:

It is a well settled principles of law that despite absence of a rule, the Selection Committee is entitled to short list the candidates. Rule 9(c)(ii) of the rules only gives a statutory recognition to the aforementioned service jurisprudence. Ina case of this nature, therefore, the doctrine of purposive interpretation should be invoked, and in such a situation the word 'written test' must be held to be incorporated within the word 'interview'. The answer to the question posed in this appeal, thus in the opinion of this Court, should be rendered in affirmative as otherwise the word 'written examination' would become totally otiose. Such a construction is permissible by taking recourse to the doctrine of strained construction, as has been elaborately dealt in by Francis Bennion in his Statutory Interpretation.

16. In Francis Bennion Statutory Interpretation, Second edition, as regards the rule of 'purposive construction', it has been stated at Section 304 as under:

A purposive construction of an enactment is one which gives effect to the legislative purpose by-

(a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in the Code called a purposive-and-literal construction);

(b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive-and-strained construction).

17. In D.F.P. v. Schilkamp, (1971) AC 1, it was held that the rule that severance may be effected even where the 'blue pencil' technique is impracticable.

18. In Jones v. Wrotham Park Settled Estates, (1980) AC 74 at page 105, the law is stated in the following term:-

I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language usedwould lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a Court of justice is engaged remains one of construction, even where this involves reading into the Act words which are not expressly included in it. Kammins Ballrooms Company Limited v. Zenith Investments (Torquay) Limited (1971 AC 850) provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliamenl had by inadvertence overlooked, and so omitted to deal with an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a Court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed.

19. In Principles of Statutory Interpretation by Justice G.P. Singh, 5th Edition 1992, it is stated:-

The Supreme Court in Bangalore Water Supply v. A. Rqjappa : (1978)ILLJ349SC approved the rule of construction stated by Denning, LJ., while dealing with the definition of 'Industry1 in the Industrial Disputes Act, 1947. The definition is so general and ambiguous that BEG, CJ., said that the situationcalled for 'some judicial heroics to cope with the difficulties raised'. K. Iyer, J., who delivered the leading majority judgment in that case referred with approbation the passage extracted above from the judgment of Denning, L.J., in Seaford Court Estates Limited v. Asher. But in the same continuation he also cited a passage from the speech of Lord Simonds in the case of Magor and St. Mellons RDC v. Newsport Corporation 1951 (2) All ER 839, as ifit also found a part of the judgment of Denning. LJ. This passage reads: 'The duty of the Court is to interpret the words that the Legislature has used. Those words may be ambiguous, but, even if they are, the power and duty of the Court to travel outside them on a voyage of discovery are strictly limited.' As earlier noticed Lord Simonds and other Law Lords in Magor and St. Mellon's case were highly critical of the views of Denning, L.J. However, as submitted above, the criticism is more because of the unconventional manner in which the rule of construction was staled by him. In this connection it is pertinent to remember that although a Court cannot supply a real casus omissus it is equally clear that it should not so interpret a statute as to create a casus omissus when there is really none.

20. In Hamedia Hardware Stores v. B. Mohan Lal Sowear, : [1988]3SCR384 , the rule of addition of word had been held to be permissible in the following words:-

We are of the view that having regard to the pattern in which clause (a) of subsection (3) of Section 10 of the Act is enacted and also the context, the words 'if the landlord required it for his own use or for the use of any member of his family' which are found in sub-clause (ii) of Section 10(3)(a) of the Acthave to be read also into sub-clause (iii) of Section 10(3)(a) of the Act. Sub-clauses (ii) and (iii) both deal with the non-residential buildings. They could have been enacted as one sub-clause by adding a conjunction 'and' between the said two sub-clauses, in which event the cause would have read thus: in case it is a non-residential building which is used for the purpose of keeping in a vehicle or adapted for such use, if the landlord required it for his own use or for the use of any member of his family and if he or any member of his family is not occupying any such building in the city, town or village concerned which is his own; and in case it is any other non-residential building, if the landlord or member of his family is carrying on, a non-residential building in the city, town or village concerned which is his own.' If the two sub-clauses are not so read, it would lead to an absurd result.

21. Any statute, as is well-known, must be read in such a manner which is in consonance with the principles of natural justice and fair play. Although, as noticed hereinbefore, right to be represented by a lawyer or a friend cannot itself be said to be a part of the doctrine of audi alteram partem but the very fact that a statute had provided for such a right, it, while granting such a right in one hand, cannot be permitted to take away the same in the other. In B.P. Corporation Limited v. Maharashtra General Kamgar Union, : (1999)ILLJ352SC , the Apex Court was considering a question relating to the representation of an employee in a disciplinary proceedings through another employee who though not an employee of the appellant-Corporation was nevertheless a member of the trade union. Para 14 (4) (ba) of the model standing orders and clause 29 (4) of the draft standing orders were noticed by the Apex Court thus:

14 (4) (ba): In the enquiry, the workman shall be entitled to appear in person or to be represented by an office bearer of a trade union of which he is a member.

29.4: If it is decided to hold an enquiry the workman concerned will be given an opportunity to answer the charge/ charges and permitted to be defended by a fellow workman of his choice, who must be an employee of the Corporation. The workman defending shall be given necessary time off for the conduct of the enquiry.

It was observed:

Model Standing Orders no doubt, provided that a delinquent employee could be represented in the disciplinary proceedings through another employee who may not be the employee of the parent establishment to which the delinquent belongs and may be an employee elsewhere, though he may be a member of the Trade Union, but this rule of representation has not been disturbed by the Certified Standing Orders inasmuch as it still provides that the delinquent employee can be represented in the disciplinary proceedings through an employee. The only embargo in that the representative should be an employee of the parent establishment. The choice of the delinquent in selecting his representative is affected only to the extent that the representative has to be a co-employee of the same establishment in which the delinquent is employed. There appears to be some logic behind this as a co-employee would be fully aware of the conditions prevailing in the parent establishment, its Service Rules, including the Standing Orders, and would be in a better position. Than an outsider, to assist the delinquent in the domestic proceedings for a fair and early disposal. The basic features of the Model Standing Orders are thus retained and the rightof representation in the disciplinary proceedings through another employee is not altered, affected or taken away. The Standing Orders conform to all standards of reasonableness and fairness and, therefore, the Appellate Authority was fully justified in certifying the Draft Standing Orders as submitted by the appellant.

22. The above decision was followed in M/s. Cipla Limited v. Ripu Daman Bhanot, : (1999)ILLJ900SC . In M/s. Cipla's case a question arose whether a person against whom a departmental proceeding has been initiated would be entitled to avail of the assistance of a co-representative of his choice in those proceedings. In the aforementioned situation, the Apex Court held that he had no absolute right to be represented by an advocate and if a right to be represented by a co-workman is given to the delinquent the departmental proceedings would not be bad only for that reason. A right to continue in a civil service or union service is a right of property. Such right has been held by the Apex Court to be a right to life as adumbrated under Article 21 of the Constitution of India. It is, thus, one thing to say that nobody has an absolute right to be represented through a lawyer or another friend but it is another thing to say that he had been conferred with such a right. But the same, in effect and substance, has been denied to him. Such a law, in our opinion, would not stand the test of Articles 14 and 16 of the Constitution. A delinquent takes the services of his friend only when he is not in a position to defend himself before a departmental proceedings particularly in a case where he is charged with a very serious and complicated matter and in the event he is held guilty, he would not only be dismissed from service but may also face criminal prosecution. Right of cross-examination, as noticed hereinbefore, is a valuable right. Truth can only be arrived at by cross-examining the witnesses.

23. In a case of complicated nature a delinquent may not know the departmental rules or the law. He may be for all intent and purport uneducated man. If even a right to be defended in such a situation which has been granted to him is taken away indirectly, the same will cause serious prejudice. Such a law, in our opinion, must be held to be unreasonable. In Devender v. State of A.P, : 1992(3)ALT1 (DB) a Division Bench of this Court invalidated the A.P. Mandal Praja Parishad, Zilla Praja Parishad (Amendment) Act, 1991 which amended Sections 26 and 57 of the principal Act virtually taking away the effective power ofthe elected heads of the local bodies. Therein the grounds of challenge inter alia included that the impugned Act is irrational since the Amendment Act seeks to achieve a dubious purpose, unrelated to the objects of the amendment. It has been observed therein:

The British Constitution which is traceable to several enactments and conventions is founded upon Parliamentary Sovereignty. The doctrine of ultra vires is confined only to subordinate legislation, actions of public officials and public bodies. What constitutes an act of irrationality under English Public law, in our opinion, approximates to an independent ground falling within the prohibition of Article 14 of the Constitution to enjoy a legislation. Put differently the incubus of irrationality afflicts both legislative and executive actions. Rationality, we hold, is a condition for valid exercise of power by the State.

24. The right to equality includes the right not to be subjected by arbitrary, irrational and unreasonable administrative and legislative action. (See E.P. Royappa v. Slate of Tamil Nadu, : (1974)ILLJ172SC ), Maneka Gandhi v. Union of India, : [1978]2SCR621 , Sanjeev Coke ManufacturingCompany v. M/s. Bharat Cooking Coal Limited, : [1983]1SCR1000 .

25. As by reason of the said provision a right of cross-examination and right to make submission are denied to a friend which is a valuable right, in our opinion, such provision must be held to be unreasonable. Even if Rules 153(8) and 153(10) of the rules are read conjointly, as suggested by Mr. Murthy, still then the right of the friend cross-examining and making submissions does not exist. That part of Rule 153(8) of the rules whereby and whereunder a friend shall not be allowed to address the Inquiry Officer nor to cross-examine the witnesses is declared unconstitutional.

26. For the reasons aforementioned the writ appeal is allowed and the respondents are hereby directed to allow the friend of the petitioner to cross-examine the witnesses examined on behalf of the department and make submissions on his behalf.

27. In the facts and circumstances of the case, there shall be no order as to costs.