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TMI Blog2001 (9) TMI 1164X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut 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, and T. Subba Rao v. Deputy Registrar of Cooperative Societies, Bhimavaram, . 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 representat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, , 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, a reckoning 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontradiction. 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 law that where the law is not clear, recourse must be taken to purposive interpretation. In Reserve Bank of India v. Peerless Company, , it was held: Interpretation mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 used would 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, , 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 Act have 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 right of 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, . In M/s. Cipla's case a question arose whether a person against whom a departmental proceeding has been initiate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... octrine 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, ), Maneka Gandhi v. Union of India, , Sanjeev Coke Manufacturing Company v. M/s. Bharat Cooking Coal Limited, 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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