(1) The respondent in this appeal was employed as a clerk in the southern railway. During the year 1950, he was required to do the duties of a store van clerk in a goods train. A store van clerk is usually put in charge of about le wagons of a train. The respondent was, as a part of his duties, to collect empty gunny bags from the stations, and deliver them at the destination. On 6-4-1950, the respondent unloaded about 300 gunny bags at a way side station, according to him. under a mistaken impression that they were in excess of the quantity which should be taken by him to the destination. A charge was framed against him on 64-1950 by the District Controller of Stores, Perambur, of having attempted to sell 300 empty gunny bags out of those collected by him from the various stations while on duty, and he was called upon to show cause why he should not be removed from service or otherwise dealt with. On 8-5-1950, he was placed under suspension. On 16-5-1950, he submitted an explanation, protesting his innocence, and praying for a confronted enquiry. By his letter dated 7-6-1950, the District Controller of Stores declined to hold a confronted enquiry, but stated that he was prepared to grant the respondent an Interview. The respondent had the interview with the officer on 14-6-1950. On the following day, the General Manager passed the following order .
"With reference to the charge-sheet No. HC/18 dated 8th May 1950, issued to you by the District Controller of Stores, Perambur, and your reply, dated 16th May 1950, thereto, and with reference to your Interview with me on the 14th inst. 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 foreseen of 22nd June 1950. you will he given a month's salary in lieu of notice in accordance with the terms and conditions of your service."
Complaining that the termination of his services contravened the provisions of Art. 311 of the Constitution in that he was punished without a confronted enquiry in respect of the charge framed against him, the respondent Instituted a suit in the city civil court, Madras against the Union of India, represented by the General Manager, Southern Railway the appellant herein), for a declaration that the order dated 15-6-1950, terminating his Services, was illegal, and for directing the appellant to pay him a sum of Rs. 118-15-0, being the half salary and dearness allowance due to him from the date of suspension (8-5-1950) to 22-6-1950, and also a sum of Rs. 5069-9-0, being the salary that accrued due till the date of the suit. The suit was contested b the appellant on the ground that, as the services of the respondent were terminated by virtue of the powers vested in the railway administration under Rule 148(3) of the Indian Railway Establishment Code there was no punishment within the meaning of Art. 311 of the Constitution acid that an omission to give an opportunity to the respondent to prove his innocence would not vitiate the order terminating his services. This contention was accepted by the learned trial judge who dismissed, the suit. On appeal to this court. Basheer Ahmed Sayeed J. held that the termination of the respondent's service amounted to a punishment, and that, as such punishment was inflicted in contravention of the provisions of Art. 311 of the Constitution, the proceedings leading upto, the termination of the respondent's services were void and of no legal effect. In that view, the learned Judge decreed the suit as prayed, for.
(2) In this appeal it is contended on behalf of the appellant that the order dated 15-6-1950, terminating the services of the respondent, should be held to be only one under Rule 148(3) and not by way of punishment,. It is not seriously disputed that, if it were to he held that the termination of the services of the respondent was by way of punishment the proceedings leading upto it were illegal, in that no reasonable opportunity was given to the respondent to prove his innocence.
(3) The first paragraph of the order dated 15-6-1950 does certainly show that the railway administration was satisfied that the respondent was guilty of the offence charged with. It is also clear that, but for that conclusion, the services of the respondent would not have been terminated. But it is contended that although the authorities might have referred to what, in their opinion, the respondent was guilty of, the actual action taken was only under rule 148(3) and it was therefore not one by way of punishment.
(4) Rule 148(3) of the Indian Railway Establishment Code confers a power on the General Manager to terminate the service of a person holding a non-gazetted and non-pensionable post, by giving him a month's notice. Sub clause (4) to that rule states that, in lieu of the notice prescribed in sub-clause (3), it stall he permissible on the part of the railway administration to terminate the service of a railway servant by paying him the pay for the period of notice. In Balakotiah v. Union of India, , the Supreme Court held that, in a case where the terms of employment provided for services being terminated on a proper notice, no question of premature termination of services could arise, and that where there has been a termination of services in accordance with the terms of employment, It would not be a punishment unless there be a forfeiture of benefits already acquired or earned. It follows that, if, in the instant case, there has been no loss of any monetary benefit earned by the respondent, the termination of his services by the order dated 15-6-1950 would not amount to a premature termination of his services, which could be regarded as a punishment imposed on him.
The contract of service provides for termination after a month's notice, and, if what the administration did was only to terminate such service by giving notice, there could be no premature termination, as the terms of the service itself were that it could be terminated by one month's notice. The facts in the present case show that the railway administration placed the respondent under suspension from 8-5-1950. The result of the suspension was that the respondent was able to get only hall his salary, and the rest of it was withheld under the rules. It the order of the railway administration dated 15-6-1950 is regarded only as terminating the services of the respondent from 22-.6-1950 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 15-6-1950 to nullify the effect of the order of suspension Under the circumstances, it must be hold that the order dated 15-6-1950 was by way of punishment.
(5) Mr. S. S. Ramachandra Iyer, learned counsel for the appellant, contended that as the railway administration had always been ready and willing to pay whatever the respondent was entitled to prior to the termination of his services the withholding of a part of the salary of the respondent during the period of suspension would not amount to any forfeiture of benefit earned. As pointed out by the learned Judge, such offer came in only at the time of the filing of the written statement, and it cannot therefore be taken as showing that the Administration intended their order of as being otherwise than by way of punishment. We agree with Basheer Ahmed, Sayeed J. in holding that when the appellant terminated the services of the respondent, it did so by way of punishment. Such punishment, having been Inflicted in contravention of the provisions of Art. 311 of the Constitution, will necessarily be invalid. The appeal fails and is dismissed with costs.
(6) One small correction with regard to the decree passed by the learned Judge is, however, necessary. Paragraph 3 of the decree declared that the appellant should pay certain sums to the respondent and "also future salary at the same rate". "Future salary" will be governed by the service conditions. We are of opinion that there is no necessity for that clause in the decree, and we accordingly direct that the phrase "and also future salary at the same rate" in paragraph 3 of the decree in C. C. C. A. No. 93 of 1957, be deleted.
(7) Appeal dismissed.