A departmental inquiry is not required before removing a railway servant from service if the circumstances warrant it, such as when the railway servant is guilty of grave misconduct and there is sufficient circumstantial evidence to show that they were involved in the crime.

( 1 ) THIS appeal arised out of C. O. 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 with the thieves who had stolen the railway property. The thieves apprehended on the spot have themselves revealed this fact.

( 7 ) THE ld. 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 ld. counsel for the appellant has placed reliance on Tulsirarn Patel's case (1985) 3 Supreme Court Cases at page 398. 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 first the keywords of the second proviso govern each and every clause of first 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 Art. 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 tacitum" (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 Others v. State of Mysore and Another, (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