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Union of India Represented by General Manager, Southern Railway, Vs. P. Kunhabdulla - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1985)ILLJ331Ker
AppellantUnion of India Represented by General Manager, Southern Railway, ;general Manager, Southern Railway,
RespondentP. Kunhabdulla
Cases ReferredDemolal v. Union of India
Excerpt:
- - thus the principle that the court can exercise jurisdiction in respect of such matters as part of the cause of action had arisen within the jurisdiction over which they could exercise jurisdiction is clearly stated. , it should be pasted on the notice board of the railway premises in which the employee concerned was working last as well as in the place in the last noted address of the railway servant. the appellants also contended that the divisional operating superintendent who passed the order of removal is of the same rank as the divisional personnel officer and therefore the order is perfectly valid. we are not satisfied that the case involves a substantial question of law of general importance which requires to be settled by a decision of the supreme court......'railway accidents'. disciplinary proceedings were instituted against the respondents under the railway servants (discipline and appeal) rules, 1968 (d & a rules) on the charge that he committed serious misconduct and acted in a manner unbecoming of a railway servant, in that he had sent the letter ext. p5 containing objectionable matters, criticising the top administration of the railways, without obtaining the sanction of the competent authority, contravening rules 3(1)(i), 3(1)(iii) and 19(1) of the railway services (conduct) rules, 1966. on the basis of the enquiry report, the divisional operating superintendent, madras, by the impugned older dated 26th august, 1982, removed the respondent from service. the respondent received a copy of the order by registered post on 11th.....
Judgment:

M. Fathima Beevi, J.

1. This appeal is directed against the judgment of K. Bhaskaran, Ag. C.J., allowing O.P. No. 7200/1982 reported in Kunhabdulla v. Union of India 1984-I L.L.J. 118. The respondent herein filed the writ petition against the appellants Union of India and others challenging Ext. P 13 penalty order dated 26th August, 1982 removing the respondent from service.

2. The respondent was Assistant Station Master at Ambur in Madras Division of Southern Railway, Madras. He was during the material time elected Secretary (Finance) of the All India Station Masters' Association, Southern Zone. Ext. P 5 letter was published in the letters to the Editor column of the daily 'Indian Express' dated 4th August, 1981 under the caption 'railway accidents'. Disciplinary proceedings were instituted against the respondents under the Railway Servants (Discipline and Appeal) Rules, 1968 (D & A Rules) on the charge that he committed serious misconduct and acted in a manner unbecoming of a Railway Servant, in that he had sent the letter Ext. P5 containing objectionable matters, criticising the top administration of the railways, without obtaining the sanction of the competent authority, contravening Rules 3(1)(i), 3(1)(iii) and 19(1) of the Railway Services (Conduct) Rules, 1966. On the basis of the enquiry report, the Divisional Operating Superintendent, Madras, by the impugned older dated 26th August, 1982, removed the respondent from service. The respondent received a copy of the order by registered post on 11th September, 1982 while he was in Badagara, within the State of Kerala. The respondent filed the writ petition before this Court for quashing Ext. P 13 and consequential relief.

3. The appellants contended inter-alia that this Court has no territorial jurisdiction to entertain the writ petition pointing out that no part of the cause of action arose within the jurisdiction of this Court. The authorities whose action is challenged are not functioning within the jurisdiction of the State of Kerala, the respondent is also not functioning within the State and no action was taken in this State. The order dated 26th August, 1982 was served on the respondent by pasting the copy at his last known address in Madras. On the basis of these facts, the maintainability of the petition was challenged by the appellants.

4. The learned single Judge rejected this contention stating that the respondent was appraised of the order of removal from service only on receipt of the original Ext. P 13 while he was at Mayyan-noor in Badagara, that the order of removal became effective so far as the respondent is concerned, only on his being so apprised of the order, and a part of the cause of action has thus arisen within the territorial limits of this Court. In support of this view, reliance was placed on the decision in Umasankar Chatterjee v. Union of India 1982 Labour & Industrial Cases 1361.

5. The first ground urged by the appellant before us is against the correctness of this finding. According to the learned Counsel the service of the copy of the impugned order as contemplated under Rules 12 and 26 of the D & A Rules has been effected at Madras and the place at which the copy of the order is served is not determinative of the jurisdiction of the Court irrespective of the place at which the cause of action has arisen. The decision relied on by the learned single Judge was also sought to be distinguished pointing out that the finding on the basis of the decision tantamounts to a finding that a person employed anywhere in India in any establishment when dismissed or removed can choose his Court in any of the States, if he manages through the Postal Department to get the orders to be impugned within the jurisdiction of that Court which he prefers. The learned Counsel maintained that such a kind of interpretation is not in consonance with the principles contained in Article 226 of the Constitution. The learned Counsel also referred us to the relevant Rules 12 and 26, and the Railway Board letters clarifying the rules as also the correspondence as disclosed in the counter affidavit filed by the appellants.

6. The writ petition was filed by the respondent under Article 226 of the Constitution. As a result of the insertion of Clause (1A) under Article 226, a petition can be presented before any of the High Courts within whose jurisdiction, the cause of action in respect of which relief is sought has arisen wholly or in part. In this case the Divisional Operating Superintendent who passed the order challenged, is having his office at Madras and his powers do not extend to any territory within the State of Kerala. The respondent's employment was also outside the jurisdiction of this Court. But if the cause of action has arisen atleast in part in this territory, over which this Court has jurisdiction, then certainly the writ petition is maintainable. It is argued for the appellants that the real effect of the order of removal was on the respondent's employment which was exclusively outside the jurisdiction of the Court and therefore the whole cause of action for the petition has arisen out of the State.

7. In M.G. George v. Asst. Director, S.I. Bureau : AIR1977Ker4 , Chandrasekhara Menon, J., following Veeri Chettiar v. S.T. Officer, Bombay : AIR1971Mad155 pointed out that the cause of action has always been understood as referable to the bundle of facts in a legal proceeding and if a limb of that bundle of facts is available, seen or discernible in one particular place which is within the jurisdiction of the High Court, then the High Court has the power to exercise all the powers conferred on it under Article 226A notwithstanding the fact the authority against whom, the ultimate rule has to be issued and whose act has created a cause of action as a whole or in part, is situated outside its territorial limits.

8. While accepting the principle that the service of the impugned order of removal on the petitioner is a limb of the bundle of facts constituting the cause of action, the learned Judge on the facts of that case held that an order of termination passed and served on the petitioner in Nagaland became complete with the service of the order and in questioning the order of termination, the petitioners' receipt of the order of termination cannot be said to be not an ingredient in the cause of action.

9. The same principle is further clarified by the Calcutta High Court in Umasankar Chatterjee v. Union of India (supra) holding that:

When an order of dismissal or removal from service is sent out, it is effective on the authority concerned, but so far as the Government servant is concerned, it becomes effective only when he is apprised of it either by oral communication or by actual service of it upon him.

In W.W. Joshi v. State of Bombay : AIR1959Bom363 a civil servant was removed from service and the question arose as to where the cause of action to get quashed an order of removal from service arose. It was held that the cause of action would arise at a place where the order of termination of service was made and also at the place where its consequences fell on the servant.

The Court said:

Where the cause of action is the wrongful dismissal from service, the fact that the order for termination of services was made would form part of the cause of action and it would arise at the place where the order is made.

That fact by itself alone cannot afford to him a ground to claim relief at the hands of this Court. He must further prove that the consequences of that order fall on him i.e. as a consequence of that order, he, in fact, was removed from service. Therefore, for a claim of this kind the cause of action would arise at a place where the order of a termination of service was made and also at a place where its consequence fell on the servant.

This decision was followed in Demolal v. Union of India : AIR1967Bom355 holding that the place where the consequences of the order fell on the petitioner would be a place where atleast the cause of action in part would arise.

10. In Veeri Chettiar's case (supra) the Court stated that the impact on the addressee caused by a notice of a taxing authority and his proposal to assess is cause of action in part. In all these cases the order impugned though passed outside the jurisdiction of the particular Court concerned, was served on the petitioner in these cases in a place within the jurisdiction of the Courts in which the writ petitions have been filed. The effect of the order by governmental authority fell on the petitioners at places where the Courts had jurisdiction. Thus the principle that the Court can exercise jurisdiction in respect of such matters as part of the cause of action had arisen within the jurisdiction over which they could exercise jurisdiction is clearly stated. Part of the cause of action to challenge the impugned order of removal from service arises in the State where the order becomes effective by service on the employee. Therefore where the impugned order is made by an authority in one State, but it becomes effective on service in another State, the High Court in the latter State shall also have jurisdiction, as part of the cause of action arises therein.

11. Thus this Court will have jurisdiction in the matter, if Ext. P 13 order of removal of the respondent became effective, on service on the respondent in Kerala.

12. Rule 12 of the D & A Rules provides that the order made by the Disciplinary Authority shall be communicated to the concerned railway servant. Rule 26, every order made under the Rules shall be served in person on the railway servant concerned or communicated to him by registered post. The Railway Board by letter dated 19th November, 1971 clarified that as far as possible the actual service of an order which seeks to impose a punishment, on the railway servant concerned is desirable and therefore with a view to ensure actual service of the order, the authority should explore all possibilities of serving the order as indicated in the letter. Para. 2(i) thereof reads:

2 (i) In case the railway servant is not present in office, the order/notice should be communicated to him at his last known address by registered post A.D.

(ii) In case the railway servant accepts the order/notice sent by registered post, A.D. it should be deemed to have come into effect from the date of such acceptance thereof, unless it specifies any subsequent date from which it has to take effect.

(iii) In case the railway servant concerned does not accept the order/notice, and the same is returned undelivered by the postal authorities with the endorsement, such as 'addressee not found', 'refused to accept' etc., it should be pasted on the Notice Board of the Railway premises in which the employee concerned was working last as well as in the place in the last noted address of the railway servant.

13. It is only when the railway servant refuses to accept the order or evades the service that the procedure of affixing the order on the notice board etc., is to be resorted to. The respondent herein was admittedly away from the Headquarters since 26th August, 1982. He was granted leave from 26th August 1982 to 28th August, 1982 by order dated 24th August, 1982. He had applied for extension of leave for ten days. The order of removal could not be served on him in person at Madras. He could not accept the notice sent to his Madras address. The order of removal could therefore become effective only on acceptance of the order communicated to the respondent by registered post. The Divisional Personnel Officer enclosing a copy of Ext. P 13 wrote to the respondent as under:

You have already been removed from service with effect from 27th August, 1982 vide this office Penalty Advice No. M/P. 227/1/194/30 dated 26th August, 1982, copy enclosed. Hence the question of sanctioning you leave on extension does not arise. Please note.

(emphasis supplied)

The Station Master has also issued similar advice to him. It admits of no doubt that any attempt on the part of the authorities to serve the order on the respondent at Madras could not have been effective as he was away from Madras and the endorsement on the postal acknowledgement dated 8th September, 1982 is not evidence of effective communication of the order. The impugned order communicated to the respondent has been actually received by him only on 11th September, 1982 while he was at his permanent residence at Badagara, in the State of Kerala. The order of removal thus became effective on service within territorial limits of this Court. We are therefore in agreement with the learned single Judge that part of the cause of action has arisen within the jurisdiction of this Court. The writ petition filed is therefore maintainable.

14. The next ground urged on behalf of the appellants is that the learned single Judge had gone wrong in holding that the charge against the respondent has not been proved. As noticed, the charge against the respondent was under Rules 3(1)(i), 3(1)(iii) and 19(1) of the Railway Services (Conduct) Rules, 1966. The allegation was that he had entered into correspondence with the press without obtaining the sanction of the authority, and it is unbecoming of a railway servant to have thus published the letter containing objectionable matters criticising the top administration. The learned single Judge noticed that the opinion expressed by the respondent in Ext. P 5 is not directed against any particular officer or authority under whom the respondent had direct employment or relationship or that it was not intended to adversely affect the image of the Railway administration. In the opinion of the learned Judge, the letter Ext. P 5, read and understood as a whole, is aimed at focussing the attention of the railway administration on the need for providing safety measures to prevent recurrence of accidents and the adverse effect of what he thought to be repressive measures against Railway workmen. The learned Judge pointed out that the recurrence of accidents was a subject of national debate which was also discussed in Parliament as is evident from Ext. P 4. The learned Judge therefore held that giving a liberal interpretation to the constitutional right of freedom of speech guaranteed under Article 19(1)(e) of the Constitution the respondent could not be held to be guilty of charge under Rules 3(1)(i), 3(1)(iii) and 19(1) of the Conduct Rules. The learned Judge has drawn support from the reasoning in the judgment of the United States Supreme Court reported in 20 LED 2d 811.

15. The learned Counsel for the appellants submitted that the constitutional right of free speech guaranteed under Article 19(1)(a) of the Constitution is subject to reasonable restriction, that a government employee has no absolute right of free speech and the same is circumscribed by the limitations of its employment and he has no right to criticise his employer by publications in the press in such a manner that the same will affect the reputation or business of the employer.

16. The right to freedom of speech and expression carries with it, the right to publish and circulate one's ideals, opinions and views with complete freedom and by resorting to any available means of publication, subject to such restriction as could be legitimately imposed under Clause (2) of Article 19. The clause authorises the State to impose restriction upon the freedom of speech only on certain specified grounds. The Conduct Rules extracted in the judgment stated that every railway servant shall at all time maintain absolute integrity, do nothing which is unbecoming of a government or a railway servant and no railway servant shall except with the previous sanction of the government have recourse to the press for the vindication of any official act which has been the subject matter of adverse criticism or an attack of a defamatory character. The rule imposes restriction on the freedom of speech and expression of the railway servant as a citizen. The rule has not been challenged and therefore it is not necessary for us to consider whether the same is reasonable and justified under the limitation clause.

17. Ext.P5 letter was published by the respondent as Secretary of the Union, expressing the views and reactions of the railway servants on the causes of railway accidents. The intention appears to be to convey to the general public and the authorities concerned, to whom the communication is intended, the feelings of the group. True, association can claim to the fundamental right guaranteed by Article 19 solely on the basis of being an aggregate of citizens. As the stream cannot rise above the source, associations of citizens cannot lay claim to rights not open to citizens or claim freedom from restriction to which citizens comprising it are subject. Therefore, the ban imposed under the rules would apply to the respondent irrespective of the question whether the publication has been made in his individual capacity or as representative of the union. However the rule confined itself to that form of correspondence with the press which is particularly stated therein, when the restrictive rule is construed strictly. In the background in which the letter has been published it cannot be said that the feeling given expression to or the criticism made therein was intended to have that effect contemplated under the rule. As rightly pointed out by the learned single Judge, the letter focusses the attention of the general public and the authorities on the causes of railway accidents and the remedial measures which could be taken without detriment to safety of the employees and public disorder. The letter may not be happily worded, but it has to be read as a whole and in the context of the national discussions and deliberations of the trade unions. The letter has the least effect of inducement, indiscipline or consequential inefficiency of the railway servants. We are therefore of the view that the publication of the letter does not attract the ban under Rule 19(1) or amount to any misconduct contemplated under the rules.

18. The learned Counsel for the respondent sought to support the judgment of the learned Judge on grounds other than those decided. The respondent had raised the specific ground in the original petition that the authority who passed Ext. P 13 order of removal was not the appointing authority and he being lower in rank, the order is one without jurisdiction. This ground has been raised by the respondent on the specific averment that the respondent was appointed to the post of Assistant Station Master on completion of his training by the General Manager, Southern Railway, Madras vide order No. P(RT)673/II/6/Vol. VII dated 2nd January, 1964 marked as Ext. P 1. This averment has been repudiated in the counter affidavit wherein these appellants have stated that the Divisional Personnel Officer, Southern Railway, Madras in his order No. M/P/563/i/Pro. ASM dated 25th March, 1963 appointed the respondent as probationary Assistant Station Master. The appellants also contended that the Divisional Operating Superintendent who passed the order of removal is of the same rank as the Divisional Personnel Officer and therefore the order is perfectly valid. The copy of the order dated 25th March, 1963 has not been made available. If the respondent was in fact appointed as per Ext. P 1 order by the General Manager, it cannot be disputed that the impugned order is in violation of Article 311 of the Constitution and is therefore inoperative. However, in the view which we have formed, it is unnecessary to go into the merits of the contention. We are also not considering the other arguments advanced by the respondent in support of the order on the basis of the other grounds taken up in the original petition.

For the foregoing reasons the appeal is dismissed, in the circumstances without costs.

Immediately after the pronouncement of the judgment the learned Counsel for the appellant made an oral application for leave to appeal to the Supreme Court. Accordingly, the case was posted before the Division Bench today. We are not satisfied that the case involves a substantial question of law of general importance which requires to be settled by a decision of the Supreme Court. Hence leave is refused.


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