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The General Manager (Personnel Branch) Southern Railway, Park Town, Madras and anr. Vs. S.M. Muhammad Yakub - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtChennai High Court
Decided On
Case NumberWrit Appeal No. 37 of 1958
Judge
Reported inAIR1959Mad88; (1958)IILLJ324Mad; (1958)2MLJ517
ActsConstitution of India - Articles 226 and 311
AppellantThe General Manager (Personnel Branch) Southern Railway, Park Town, Madras and anr.
RespondentS.M. Muhammad Yakub
Advocates:C. Govindaraja Aiyangar, Adv.
Disposition Appeal dismissed
Excerpt:
- - in the first place we are not impressed by the technical name given by a party to the relief which he seeks from this courtunder article 226. that article is a new provision and it is well established that the relief which can be granted under article 226 is very much wider than the relief which a court of kings bench in england could give by issue of prerogative writs. we are clearly of opinion that the respondent was not guilty of any unreasonable delay or laches on his part......3. it was also contended by learned counsel for the appellant that a writ of mandamus was not the proper relief, hut that he should have prayed for a writ of certiorari. in the first place we are not impressed by the technical name given by a party to the relief which he seeks from this courtunder article 226. that article is a new provision and it is well established that the relief which can be granted under article 226 is very much wider than the relief which a court of kings bench in england could give by issue of prerogative writs. in the second place, we cannot agree with the learned counsel for the appellant that a writ of certiorari would be proper. there was no judicial order passed by the railway authorities which could properly be the subject-matter of a writ of certiorari......
Judgment:

P.V. Rajamannar, C.J.

1. We are in entire agreement with the learned Judge, Panchapakesa Ayyar J. that enough has been made out to direct an enquiry into the matter after notice to the respondent. It cannot be denied that the respondent's rights have been affected, though there was an attempt by learned counsel for the appellants before us to show that the respondent had no right to agitate before the court. If the respondent's correct date of birth was 1908, then, certainly, he has got a right to remain in service till 1963.

It is therefore clear that the respondent is aggrieved and his rights have been infringed, and we have no doubt whatever that the most efficacious remedy is by way of an application under Article 223 of the Constitution. Learned counsel for the railway authorities contended that a suit was the proper remedy. We do not wish to say more than that we are extremely surprised at the contention.

2. It is quite clear from the records that there are two dates of birth entered in the service registers of the railway authorities. One gives the date as 1902 and the other as 1908. It was also admitted that in the latest individual service register prepared in 1947 the entry first made was 1908 but subsequently it was corrected to 1902. It is said this was done because there were entries in other registers which convinced the officer concerned that 1902 was the correct year.

It is not for us to say, nor this court called upon to do so, which of the two dates is correct. Indeed all that the learned Judge has done is to direct an enquiry. It is not the case of the railway authorities that there was an enquiry or that there was any notice to the respondent before the entry was altered in 1947 into 1902. We can see no conceivable and proper objection to an enquiry.

3. It was also contended by learned counsel for the appellant that a writ of mandamus was not the proper relief, hut that he should have prayed for a writ of certiorari. In the first place we are not impressed by the technical name given by a party to the relief which he seeks from this courtunder Article 226. That article is a new provision and it is well established that the relief which can be granted under Article 226 is very much wider than the relief which a court of Kings Bench in England could give by issue of prerogative writs.

In the second place, we cannot agree with the learned counsel for the appellant that a writ of certiorari would be proper. There was no judicial order passed by the railway authorities which could properly be the subject-matter of a writ of certiorari. The order was really an administrative order retiring the respondent from service from a particular date. In our opinion the writ of mandamus was the most appropriate relief, and as the writ now only directs the railway authorities to make an enquiry we see no objection to the form of the petition. We have already disposed of the contention that a suit is the proper remedy.

4. It was urged by Mr. Govindaraja Aiyangar for the appellant that the respondent was guilty of delay and laches. We cannot agree. Admittedly it was some lime in 1955 that the respondent was apprised of the fact that he had to retire in 1957. According to him, he immediately protected by a letter addressed to the Personnel Officer of the Southern Division of the railways, a copy of which petition he sent to the General Manager, Madras, and followed with another appeal on 20-11-1956, this time addressed to the General Manager, Madras direct.

Mr. Govindaraja Aiyangar said that these two letters were not received by the authorities. As to that we have only the statement in an affidavit filed in this court by the Divisional Personnel Officer, Southern Railway, who stated in the affidavit that these representations were not received at the Divisional Superintendent's Office, Tiruchirapalii. This does not dispose of the two letters addressed to the General Manager, Madras. There is no denial on record that these were not received by the General Manager. Be that as it may, admittedly there were other letters of protest in 1957.

To these letters in 1957 there was no reply. The only explanation given is, action was being taken and old records were being traced to verify the correctness of the petitioner's contention. We are clearly of opinion that the respondent was not guilty of any unreasonable delay or laches on his part.

5. We must confers that we arc unable tounderstand why the railway authorities should fightshy of compliance with the order made by a learned Judge of this Court directing an enquiry intothe matter after notice to the respondent, whenadmittedly such an enquiry was never made before.The appeal is dismissed.


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