V.V.S. Rao 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 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.
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 Divisi........