1. Milkha Singh, petitioner is stated to have joined the service of North Western Railway on the 22nd September 1926 and was confirmed as a Station Master Grade 1, in July 1944. In September 1949, he was removed from service by the then Divisional Transportation Officer. Thereupon he instituted a suit in 1951 challenging his removal and also made a representation to the Minister concerned whereupon he was re-appointed in service for 6 months to begin with, the question of his reinstatement to be opened for consideration after report regarding his work. On 12th December, 1953, the General Manager ordered the petitioner to be continued in his appointment and restored him to his old pay and seniority. The petitioner thus held a permanent post in substantive capacity on which there was no lien of anybody else; he was shown at No. 4 in the Seniority List of the Station Masters of his Grade in the Ferozepore Division. He thereafter continued to hold the post of the Station Master at different stations and in February 1960 he was posted as Station Master, Madhopur, on account of his ill-health under medical advice. Roundabout that time the petitioner's relations with the Divisional Operating Superintendent, Northern Railway, became strained because, as the petitioner puts it, he was unable to please him by offering illegal gratifications. The petitioner was consequently victimised and harassed in various ways In March 1961, the petitioner was transferred to Mallanwal Khas, and in April, 1961. he was ordered to be transferred and posted at Jaitu. Jaitu, so says the petition, was a heavy 'working station' and the petitioner on account of his prolonged ill-health was advised not to take heavy work Naturally he, therefore, protested against this transfer.
In April, 1961, he appealed to the Divisional Superintendent against this transfer and in May 1961 he preferred another appeal to the General Manager, but no final action was taken on these appeals. The petitioner was to retire on superannuation on 31st December 1961? but in spite of this impending retirement he was ordered to be transferred from Jaitu to Pakki which is a small wayside station without any medical and educational facilities. This, according to the petitioner, amounted to reduction in rank. On 10th April 1962 the petitioner appealed to the Divisional Superintendent against his transfer in which he made allegations of corruption against certain subordinate officers and others who were colluding with the Divisional Commercial Superintendent and the Divisional Operating Superindendent, respondents Nos. 4 and 5 in these proceedings. As a result of enquiry, some action was taken against one Pooran Singh, Goods Clerk, but respondents Nos. 4 and 5 shelved that enquiry The petitioner also made another representation in May 1962 but no action was taken on that representation. On 1st June 1962. the petitioner's transfer was cancelled under the orders of the General Manager and this annoyed respondents Nos. 4 and 5 with the result that they became vindictive towards the petitioner. Five charge sheets were issued to the petitioner on various dates in 1962. On 28th July 1962, two wagons were placed for loading of goods but the consignors failed to start loading within the scheduled time. For this reason the petitioner ordered the cancellation pf their turn and forfeited their security fee. The Goods Clerk and the Railway Broker, however, allowed loading of the wagons by the original consignors but they were eventually unloaded under the orders of respondents Nos. 4 and 5. On a complaint having been filed by the consignors, enquiry was held but it was found to be without substance. In spite of this the petitioner was served with a new charge-sheet on 25/27th August, 1962. On 14th August, 1962, the petitioner was ordered by respondent No. 4 to be suspended from service. On 1st September 1962, the petitioner furnished a reply to the charge-sheet. He, however, continued under suspension without any enquiry being held. In the meanwhile the petitioner submitted several representations to the Divisional Superintendent and the General Manager and one representation was also made to the Hon'ble Railway Minister praying that the case against him should be finalised.
On 28th December, 1962, the petitioner interviewed the General Manager and complained to him about his victimisation at the hands of respondents Nos. 4 and 5 with the result that the petitioner was allowed to join his duty on 1st January 1963 and ordered to work as Rest Giver Station Master. On this post, the petitioner was required to go to six stations in a week. This apparently was a sort of punishment imposed on the petitioner. On 9th January 1963, the petitioner received a notice terminating his services with effect from 11th February, 1963. It is this notice which is being assailed in the present petition in the background of the facts mentioned above.
2. In the return the assertion of the petitioner's relations having been strained with respondent No. 5 has been denied. The petitioner's transfer to Jaitu, according to return, had been made on his own request with the result that the question of his protest against this posting could not arise. The petitioner, however, complained about the heavy work at Jaitu. He was asked to give it in writing so that he may be transferred on account of his inability to cope with the work but he declined to do so. The petitioner was, however, transferred to Pakki because of his unsatisfactory work at Jaitu. The assertion about the collusion of the subordinate officers with respondents Nos. 4 and 5 has also been denied. Some beoparies at Jaitu, according to reply, had complained against this Station Master for cancellation of the allotment of two wagons on the plea that they had actually begun the loading of those wagons within the scheduled time An enquiry into the complaint disclosed that the charge against the Station Master was incorrect though he was found responsible for certain other serious irregularities for which he was served with a charge-sheet in August, 1962. The Goods Clerk was likewise served with a charge-sheet simultaneously for certain irregularities. Both of these officers were suitably punished in due course.
The petitioner was admitted to have been placed under suspension by the Divisional Commercial Superintendent on the 14th August, 1962 and was also charge-sheeted. The assertion that the petitioner was asked to join duty as a result of his interview with the General Manager has been denied. It was the petitioner's inability to cope with the work at Jaitu that he was ordered to be posted as Rest Giver Station Master with headquarters at Jaitu because nearabout time of his retirement it was not considered desirable to transfer him from Jaitu station. In this post he was expected to work for 5 days at other stations and for one day at Jaitu. This, according to the reply, was in the petitioner's own interest as he was unable to cope with the work at Jaitu and also as there were complaints against him in regard to his working.
3. The learned counsel for the petitioner has in the first instance submitted that the order in this case is one of removal and, therefore, without complying with the provisions of Article 311 such an order could not be made; secondly, this order has been described to have been made by an incompetent authority; in the third place Rule 149 of the Indian Railway Establishment Code on which the impugned order purports to be based has been challenged as ultra vires, and finally the action has been alleged to be mala fide.
4. At this stage it will be desirable to refer to the impugned notice which is the subject matter of challenge in these proceedings. This notice is annexure 'K' to the petition and it is in the following terms:
'You have attained the age of fifty-five years on 31st December, 1962.
It has been decided by the Divisional Superintendent to retire you from service in terms of para 3(iv) of letter No. 831-E/9-IV (EIV), dated 6-12-1962 from the General Manager (P), Northern Railway, New Delhi.
You are, therefore, hereby given one month's notice of retirement from date. The period of notice will expire on the 6th March. 1963 afternoon.
Please acknowledge receipt.' This letter has been issued from the office of the Divisional Personnel Officer, Ferozepore on 7-2-1963 and is addressed to the petitioner Reliance has also been placed on paragraph 2046 (F.R. 56). Indian Railway Establishment Code. Vol II, which lays down the age of compulsory retirement. The petitioner has contended that now the age. according to the latest modification in this rule, has been raised to 58 years. The petitioner's learned counsel has tried to substantiate this submission by reference to Exhibit R/13 dated 6-12-1962 issued by the General Manager to all Divisional Superintendents and Extra Divisional Officers of Northern Railway in which the decision of the Government of India and of the Railway Board in regard to the age of compulsory retirement of railway servants is stated. Clause (iv) of paragraph 3 is in the following terms.
'Notwithstanding anything contained in the foregoing items, the appointing authority may require a railway servant to retire after he attains the age of 55 years with a notice period as provided in rule 149-RI(revised edition. 1959) except that in the case of permanent Gazetted railway servant it will be three months instead of six months without assigning any reason. This will be in addition to the provisions already contained in para 620(ii) of the Manual of Railway Pension Rules, 1950 to retire railway servants who have completed 30 years qualifying service and will normally be exercised to weed out unsuitable employees after they have attained the age of 55 years. The railway servant also may, after attaining the ago of 55 years, voluntarily retire after-giving the period of notice as provided in Rule 149-RI except that in the case of permanent Gazetted railway servants, it will be three months instead of six months, to the appointing authority.'
In the light of this provision, the petitioner's learned counsel has made a reference to R. 149, Indian Railway Establishment Code. Vol. I (1959 edition). Sub-rule (i) of this rule deals with temporary railway servants and lays down that when a person without a lien on a permanent post under Government is appointed to hold a temporary post or to officiate in a permanent post he is entitled to no notice of the termination of his service if such termination is due to the expiry of the sanction to the post which he holds or expiry of the officiating vacancy or is due to mental or physical incapacity or to his removal or dismissal as a disciplinary measure after complying with Article 311(2) of the Constitution If. however, the termination of his service is due to some other cause, he would be entitled to one month's notice if engaged on a contract for a definite period which does not provide for any other period of notice, and to a notice of 14 days if not engaged on a contract. Sub-rule (3) dealing with other railway servants provides for termination of their service on giving notice ranging from 1 month to 6 months No notice is, however, required in case of dismissal or removal as a disciplinary measure after compliance with Article 311(2) or in cases of retirement on attaining the age of superannuation or termination of service due to mental or physical incapacity. In lieu of notice prescribed in this rule it is also permissible on the part of the Railway Administration to terminate the service of a railway servant by paving him the pay for the period of notice.
5. The question raised is if the petitioner has been retired at the age of 55 years, can it be considered to amount to removal or dismissal attracting the provisions of Article 311 of the Constitution? The respondents' contention is that R/13 gives complete discretion to the authority concerned to retire the petitioner on giving one month's notice It has also been submitted that no action has been taken under Rule 149 and that Exhibit R/13 does not lay down that action should be taken under Rule 149, the only reference to this rule having been intended for the purpose of ascertaining the notice period
6. The petitioner's learned counsel has in support of his contention sought assistance from the State of U.P. v. Baby Ram Upadhya, AIR 1961 SC 751 and from Bhola Nath v. State of Saurashtra, AIR 1954 SC 680. The counsel has also made a reference to Madan Gopal v. State of Punjab, AIR 1963 SC 531, which laws down that an enquiry with the object of ascertaining whether disciplinary action should be taken against a Government servant for alleged misdemeanour cannot be treated as an enquiry for the purpose of ascertaining whether a temporary employee should be continued in service or should be discharged under the terms of the employment by giving one month's notice. Reliance has also been placed on a Full Bench decision of the Assam High Court in Shyam Behari v. Union of India, AIR 1963 Assam 94.
7. As against these decisions, the learned counsel for the State has placed reliance on Union Territory of Tripura v. Gopal Chandra Dutt, AIR 1963 SC 601, according to which an order ex facie one of termination of employment of a temporary employee cannot be assumed to be one of dismissal and the onus to prove that such was the intention of the authority terminating the employment must lie on the employee concerned. Shri Salooja has also made a reference to the Stale of Bombay v. F. A. Abraham. AIR 1962 SC 794. Reliance has in addition been placed on the Stale of Punjab v. Ramparshad, AIR 1963 Punj 345 for the submission that where an employee is compulsorily retired without visiting him with penal consequences but allowing him to get all the benefits that had already accrued to him. Article 311(2) would not be attracted to his case.
8. The point raised appears to me to be of considerable importance and since writ petitions of Government employees assailing orders of their removal deserve to be disposed of expeditiously, in my opinion, this petition should, in the first instance, be decided by a larger Bench
9. 1 accordingly direct that the papers be laid before my Lord the Chief Justice for securing the necessary orders under Rule 1, Clause (XX) proviso (b) read with clause (XVIII), Chapter 3-B, High Court Rules and Orders Vol. V
Order of Division Bench
Inder Dev Dua, J.
10. This writ petition came up for hearing before me sitting singly, but in view of the importance of the question raised, it was referred to a larger Bench in December, 1963. Now it has been placed before us for disposal.
11. The facts are stated in the referring order and, therefore, need not be restated. The following four points have been canvassed before us in support of the writ petition by Shri D. S. Nehra, learned counsel for the petitioner :-
1. Article 311(1) of the Constitution has not been complied with because it is not the appointing authority which has passed the impugned order.
2. Article 311(2) has been violated.
3. The impugned order is also violative of the fundamental right of the equality before law enshrined in Article 14, and
4. The impugned order is mala fide.
12. In reply, it has been stressed on behalf of the respondents that the present is a case of compulsory retirement and is, therefore, not covered by Article 311. It has also been argued that the impugned order has been passed by the appointing authority or at least not by an authority subordinate to the appointing authority. The pleas of mala fide and violation of Article 14 have also been controverted.
13. Dealing with the first point, the petitioner's learned counsel has placed reliance on Annexures Rule 2 and Rule 4. Rule 2 is a confidential letter dated 16-5-1953 from the General Manager. Northern Railway, New Delhi, to the Divisional Superintendent, Northern Railway, Ferozepur, saying that Milkha Singh, ex-Station Master. Romana Albelsing may be re-appointed in the initial grade for a period of six months in the first instance at the end of which period, a special report of his work and behaviour should be submitted so that the question of continuing him in service beyond that period may be considered. Advice was also sought in this letter if after his discharge Milkha Singh had been paid all the dues such as provident fund and gratuity etc. It was added that before Milkha Singh was re-appointed, he should be asked to withdraw all pending legal notices, if any, which he may have served on the Railway Officers of the administration. Annexure ' Rule 4 ' dated 12-12-1963 is also a letter from the headquarters to the Divisional Superintendent. Ferozepur in answer to a confidential letter dated 19 11 1953 saying that re-employment of Milkha Singh may be continued and he may be given old rate of pay as well as seniority which he held at the time of discharge, though his employment was directed to be treated as fresh. On the basis of these two documents, it has been sought to be argued that the fresh appointment of Milkha Singh was by the General Manager and. therefore, it was the General Manager alone who should have passed the impugned order.
14. In our opinion, these two documents do not show that the petitioner was appointed by the General Manager. It is true that the re appointment was made on the direction of the General Manager but that is very much different from actual appointment.
15. For the purpose of dealing with point No. 2, which appears to us to be the main challenge seriously pressed by the petitioner's learned counsel, it is necessary to review the legal position.
On behalf of the petitioner, our attention has been drawn to a recent decision of the Supreme Court in Moti Ram Delia v. General Manager, N. E. F. Railway. AIR 1964 SC 600, where after observing that in regard to the age of superannuation, the prescribed rules of superannuation in respect of all public servants in all modern States are prima facie based on considerations of life expectation and mental capacity of civil servants bearing in mind the climatic conditions and the nature of work and that they are not fixed on any ad hoc basis involving exercise of any discretion, the Court proceeded to make the following observations :--
' A person who substantively holds a permanent post has a right to continue in service, subject, of course, to the rules of superannuation and the rule as to compulsory retirement. If for any other reason that right is invaded and he is asked to leave his service, the termination of his service must inevitably mean the defeat of his right to continue in service and as such it is in the nature of a penalty and amounts to removal. In other words, termination of the services of a permanent servant otherwise than on the ground of superannuation or compulsory retirement must per se amount to his removal and so, if by Rule 148 (3) or Rule 149 (3) such a termination is brought about, the Rule clearly contravenes Article 311(2) and must be held to be invalid. It is common ground that neither of the two rules contemplates an enquiry. ..... '
The Court then proceeded to consider the vires of Rules 148 (3) and 149 (3) of the Railway Establishment Code and after making the following observations declared those rules to be invalid : --
' * * * * * in a modern democratic State the efficiency and incorruptibility of public administration is of such importance that it is essential to afford to civil servants adequate protection against capricious action from their superior authority. If a permanent civil servant is guilty of misconduct, he should no doubt be proceeded against promptly under the relevant disciplinary rules, subject, of course, to the safeguard prescribed by Article 311(2); but in regard to honest, straightforward and efficient permanent civil servants, it is of utmost importance even from the point of view of the State that they should enjoy a sense of security which alone can make them independent and truely efficient. In our opinion, the sword of Damocles hanging over the heads of permanent railway Servants in the form of Rule 148 (3) or Rule ,149 (3) would inevitably create a sense of insecurity in the minds of such servants and would invest appropriate authorities with very wide powers which may conceivably be abused.'
Termination of the permanent servant's tenure authorised by the two rules mentioned above was considered by the Supreme Court to be no more and no less than his removal from service attracting the provisions of Article 311(2) .
16. On behalf of the respondents, in support of the contention that the present is a case of compulsory retirement not attracting Article 311, our attention has been invited to the following decisions of the Supreme Court :--
Shyamlal v. State of U. P., AIR 1954 SC 369, State of Bombay v. Saubhag Chand, (S) AIR 1957 SC 892, Dalip Singh v. State of Punjab, AIR 1960 SC 1305. Kailash Chandra v. Union of India, AIR 1961 SC 1346, AIR 1962 SC 794 and Jagdish Mitter v. Union of India, AIR 1964 SC 449.
In addition, reference has also been made to AIR 1963 Punj 346 and Government of Andhra Pradesh v. Mohd. Mominuddin, AIR 1964 Andh Pra 206.
17. In my opinion, the decision of the Supreme Court in Moti Ram Deka's case AIR 1964 SC 600 does not lay down an invariable rule that in no case can a person be retired compulsorily before the normal prescribed age of superannuation. If a public servant is asked to retire on the ground of his having reached the age of superannuation which has been reasonably fixed, then Article 311(2) would very probably not be attracted because an order of this nature is neither a dismissal nor removal. If under the rules, such public servant is compulsorily retired after a period of qualified service, which is reasonably long, then too, the order would neither amount to dismissal nor to removal within the contemplation of Article 311(2). This position appears to me to have become now almost settled as a result of various decisions of the Supreme Court. According to Moti Ram Deka's case, AIR 1964 SC 600 it is only where power is given to the State to compulsorily retire a permanent public servant at the end of an unreasonably short period of service, short of the prescribed proper age of superannuation, that the order of his compulsory retirement may be considered in substance to amount to removal under Article 311(2). This, in my view, being the true ratio of the decision in Moti Ram Deka's case. AIR 1964 SC 600. I do not see how in the case in hand, the impugned order, after the petitioner has attained the age of 55 years, can be considered to amount to removal, and not an order of compulsory retirement which is within the permissible power of the authority passing the impugned order Rule 13 on which reliance has been placed in support of the challenge to the impugned order quite clearly provides that the appointing authority may require a railway servant to retire after he attains the age of 55 years with a notice period. The decision in Moti Ram Deka's case AIR 1964 SC 600 does not hit this provision, for the fixation of the age of 55 years is, in my opinion, reasonably long and this rule cannot be construed to reduce the prescribed minimum period of service to an extent which would sustain the plea that this retirement is in substance removal from service.
18. The third ground of challenge that the impugned order is violative of the fundamental right of equality before law as enshrined in Article 14 is also devoid of merit because the rule applies to all persons who have completed the age of 55 years and no arbitrary discrimination has been made out on behalf of the petitioner.
19. The ground of mala fide is also difficult to sustain on the record before us. The return quite convincingly negatives the allegation of mala fide averred in the writ petition. Il is indeed wholly unnecessary to deal with this point in detail.
20. For the foregoing reasons,this petition fails and is hereby dismissed but without costs.