1. This petition under Article 226 of the Constitution is to quash the order of the respondent, dated 14-7-1959, informing the petitioner that his services were no longer required by the railway administration with effect from the forenoon of July 15, 1959. He was further informed that he would be paid one month's pay in lieu of termination. This order was passed by the respondent in exercise of its powers under Rule 148 of the Indian Railway Establishment Code. The petitioner is stated to have entered railway service on 1-2-1935, and, in 1945, he was promoted as a driver and confirmed in that post in October 1946. On 1-4-1948, he was placed under suspension pending certain action to be taken by the railway administration. On 23-10-1951, he was asked to show cause why his services should not be terminated under Rule 3 of the Railway Service (Safeguarding of National Security) Rules, 1949, on the ground that he was believed to have engaged himself In subversive activities. The petitioner submitted his reply on 24-10-1951 and later, appeared before a committee of advisers on requisition. On 30-11-1953, the petitioner was told that his explanation was not acceptable and it was provisionally decided to terminate his service in accordance with Rule 148. He was asked to show cause against the proposed action, and the petitioner submitted his explanation on 12-12-1953. Five years later, by a communication dated 25-5-1959, the respondent informed the petitioner with reference to his explanation dated 12-12-1953, that it was decided not to proceed with the action initiated against him and that he was reinstated In service with immediate effect. It would appear, though this order was dated 25-5-1959, actually, It was received by the petitioner's wife on 6-7-1959, and, according to the counter-affidavit filed, the petitioner reported for duty on the afternoon of 11-7-1959, at Erode, he was asked to turn up next day but he did not do so. The allegation In the affidavit, however, Is that the Loco Foreman declined to take him to duty, but this is denied in the counter affidavit. The petitioner, in his affidavit, has further stated that the fact of refusal on the part of the Foreman to permit him to resume duty inasmuch as he had not, according to the Foreman, received orders from his superiors, was reported by him to the Divisional Superintentdent. On 20-7-1959, the petitioner received the impugned orders dated 14-7-1959. It is these orders which are sought to be quashed by this court.
2. The only ground urged for the petitioner is what is Stated in the affidavit filed in support of the petition, viz, that the order of termination of the petitioner's services, though purported to be one under Rule 148 of the Railway Establishment Code, was in effect a punishment, and, that being the case, in the absence of following the proceclure prescribed and affording the protection guaranteed by Article 311 of the Constitution, the order is invalid. Whether an order of termination of service is by way of a punishment will have to be decided in the light of the particular facts in. each case. This court in O. S. Srinath v. General Manager, Southern Railway, : (1962)IILLJ124Mad , held that, where an order of termination of service was not based on any charge or imputation against the aggrieved person of misconduct and such charge or imputation was not made a condition of the exercise of the power of termination under Rule 148, Railway Establishment Code, and, by reason of the termination the petitioner had not been deprived of any benefit he had already earned, the termination did not amount to removal or dismissal so as to attract Article 311(2) of the Constitution. The same view found acceptance in Union of India v. Dakshinamurthi, : (1962)IILLJ96Mad , decided by a Bench. The Petitioner's case is that, by the impugned order, he had been deprived of benefits he had already earned. The actual allegation in the affidavit in support of the petition is stated thus :
'As already stated, I was under suspension from 1-4-1948 till 25-5-1959 when the order was passed by the respondent dropping the proceedings against me and asking me to resume duty. During the said period, I was paid only a fraction of the salary and allowances. By reason of the said order dated 25-5-1959 asking me to resume duty, I must be deemed to have continued in service from 14-1948 till 25-5-1959 and 1 have become entitled to the full salary, emoluments, privileges, allowances, increments, bonus, gratuity, other benefits and rights during the said period and thereafter also. But only a small amount purporting to be subsistence allowance and one month's pay in lieu of notice of termination were later sent by money order and I did not accept the same as 1 was advised that it would prejudice my rights in that it negatived the rights and privileges etc. The said order dated 14-7-1959 and the subsequent conduct of the respondent clearly proceeded on the basis that I am not entitled to the full salary, emoluments, etc., during the period mentioned above.'
The petitioner, in the affidavit, proceeded to submit that the impugned order had negatived his rights and privlleges, viz., full salary, emoluments etc., which had already accrued to him, and that the order, therefore, amounted to removal or dismissal from service by way of punishment. This is also repeated in other places in the affidavit, and the petitioner made it clear that the said order negatived his rights and privileges already accrued to him, and, though the order purported to be under Rule 148, it was, in substance, one of removal or dismissal by way of punishment, no opportunity having been given to him as required by Article 311 of the Constitution. One C. V. Gopaul, described as a personnel officer of the General Manager, swore to a counter affidavit dated 25-3-1960, which though appears to be a long one, very significantly has failed to deal with--deny or affirm in any manner--the said allegations, by the petitioner in his affidavit, of deprival by the impugned orders of the benefits he had already earned or acquired.
3. In the foregoing circumstances, reliance is strongly placed for the petitioner on the fact that the respondent, by the impugned order, denied, him the benefits already accrued to him, and it is contended that the order is vitiated as one of punishment. Support for this contention is sought from, : (1962)IILLJ96Mad . The facts in that case appear to be more or less similar, except that, in this case, as already pointed out, the respondent made the order dated 25th May 1959, restoring the petitioner to service in the circumstances referred to above. The order of dismissal in that case, among other things, stated,
'I am satisfied that you are guilty of the offences mentioned in the charge sheet. Please note that your services are not required on the railway with effect from the forenoon of 22nd June 1950. You will be given a month's salary in lieu of notice in accordance with the terms and conditions of your service.'
This court quashed the order of termination in that case on the ground that it amounted to one of punishment without following the procedure prescribed by Article 311. It does not appear that the reason for so holding was the statement in the order that the officer terminating the services was satisfied about the guilt of the offences mentioned in the chargesheet. But the ground of the decision, as I understand it was :
'The facts in the present case show that the railway administration placed the respondent under suspension from 8th May 1950. The result of the suspension was that the respondent was able to get only half his salary and the rest of it was withheld under the rules. If the order of the railway administration dated 15th June 1950 is regarded only as terminating the services of the respondent from 22nd June 1950, the appellant would not be entitled to withhold half the salary which it did by virtue of the order of'suspension. Nothing was done by the order dated 15th June 1950, to nullify the effect of the order of suspension. Under the circumstances, it must be held that the order dated 15th June 1950 was by way of punishment.'
The petitioner, relying on this reasoning, contends, in my opinion, with considerable force, that, in his case too, by the impugned order he has been deprived or all the benefits and privileges which he had already earned.
4. On behalf of the respondent, Sri S. V. Venugopalachariar states that the principle of, : (1962)IILLJ96Mad , can have no application to the facts of this case, because of the respondent's order dated 25th May 1959. According to learned counsel, the petitioner, by reason of that order, would be entitled to full salary for the period between 1st April 1948, and the date of his discharge or termination from service. On this ground, it is contended that it cannot be said that the petitioner's benefits acquired prior to the termination of the services were taken away from him or he was deprived of them. But, what is now admitted by the counsel as to the respondent's liability to pay full salary to the petitioner from the date of suspension to the date of termination of service does not find a place, in the counter-affidavit, in spite of the fact that a specific allegation in clear and definite terms has been made in the affidavit in support of the petition that, by the impugned order, he had been deprived of all the benefits already accrued to him. Learned counsel is not able to explain why the specific averment in the affidavit was not equally specifically or in any manner whatever traversed in the counter affidavit. My attention has not been invited to any record, from which one can say that the intention of the respondent, apart from the present admission of his liability in law, was not to deprive the petitioner of the benefits accrued to him by passing the impugned order. It would have been very easy for the respondent to have mentioned in the counter affidavit, while traversing the allegation in the affidavit, that, in view of his order dated 25th May 1959, no part of the petitioner's benefits accrued to him was intended to be denied. The fact that the liability is admitted during the argument can make no difference to the intention of the impugned order, judged by the absence of denial in the counter affidavit and the conduct of the respondent right through from the date of the order of discharge in not making any whisper anywhere about his liability or offering to pay the arrears of salary to the petitioner. Though, legally speaking, I think, the order dated 25th May 1959 would have the effect of nullifying the suspension order dated 1st April 1948, yet in the circumstances, I have referred to, the conclusion is irresistible that, by the impugned order, the respondent's intention was to deprive the petitioner of the benefits already accrued to him. On that finding, it should follow that the impugned order, though purporting to be under Rule 148, was in effect, one by way of punishment. It is not denied that the procedure under Article 311 was not followed. In the result, therefore, the order has to be set aside.
5. The petition is allowed and the order of the respondent is quashed. The rule nisi is made absolute. No costs.