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D.S. Srinath Vs. General Manager, Southern Railway, Madras - Court Judgment

LegalCrystal Citation
SubjectService
CourtChennai High Court
Decided On
Case NumberWrit Petn. No. 231 of 1959
Judge
Reported inAIR1962Mad379; (1962)IILLJ124Mad
ActsConstitution of India - Articles 14, 16, 18, 226, 311 and 311(2); Indian Railway Establishment Code - Rules 143 and 148; Railway Services (Safeguarding of National Security) Rules, 1954 - Rule 3; Patiala State Regulations - Rule 278
AppellantD.S. Srinath
RespondentGeneral Manager, Southern Railway, Madras
Cases ReferredC.I. Emden v. State of Uttar Pradesh
Excerpt:
.....order informing petitioner about termination of his services - classification of non-pensionable railway servants as separate class reasonable - power of termination under rule 148 not violative of article 14 - services of any non-pensionable railway servant can always be terminated by giving notice under terms of employment - petition dismissed. - - (3) the petitioner has in this court inpugned the order of termination of his services by contending that the railway authorities having failed to send him out of service on the basis of the show cause notice, had, resorted to rule 148 and terminated his services thereunder solely to victimise him for his trade union activities, that rule 148 contravened article 311(2) of the constitution and that once the railway administration..........in term of rule 148 of the indian railway establishment code, as provided for in rule 3 of the railway services (safeguarding of national security) rules, 1954, and he called upon the petitioner to submit to the president of india within specified time his representation against the action proposed to he taken. the same communication also apprised the petitioner that it was proposed to place him under suspension, pending conclusion of the proceedings against him, but that the so wished, he would be permitted to proceed on such leave as might be admissible to him, with effect from 10-3-1956 and that he might express his wish in that behalf.the communication contained two annexures setting out the reasons for the general manager considering that the petitioner was suspected to be.....
Judgment:
ORDER

(1) This is a petition under Article 226 of the Constitution to quash the order of the General Manager, Southern Railway, Madras dated 30-12-1958 informing the petitioner that as his services were no longer required by the Railway Administration they were, in accordance with Rule 148 of the Indian Railway Establishment Code, Vol. I, terminated with effect from the forenoon of 30-12-1958. By the same order, the General Manager further In. formed the petitioner that he would be paid one month's pay in lieu of notice of termination of his services. The petitioner was served with the order the same day. This petition was presented on 4-3-1959.

(2) The petitioner entered service in June 1949 as a ticket collector in the then South Indian Railway. He was so appointed by the General Manager, South Indian Railway. After the reorganisation of various zones of the rail ways, the petitioned became an employee of the Indian Railways working in the Southern Railway. In 1950 he was promoted as a travelling ticket examiner and functioned as such until the date of the termination of his services. By a communication dated 24-2-1956, the General Manager informed the petitioner that he considered that he was reasonably suspected to be engaged in subversive activities, that his retention in service was, on that account, prejudicial to national security and that, consequently, it was proposed to terminate his services in term of Rule 148 of the Indian Railway Establishment Code, as provided for in Rule 3 of the Railway Services (Safeguarding of National Security) Rules, 1954, and he called upon the petitioner to submit to the President of India within specified time his representation against the action proposed to he taken. The same communication also apprised the petitioner that it was proposed to place him under suspension, pending conclusion of the proceedings against him, but that the so wished, he would be permitted to proceed on such leave as might be admissible to him, with effect from 10-3-1956 and that he might express his wish in that behalf.

The communication contained two annexures setting out the reasons for the General Manager considering that the petitioner was suspected to be engaged in subversive activities in 1952, 1953 and 1954 and also associated with others in such activities, These annexures contained details of several examples of such activities. In effect, the charges against the petitioner were mainly two fold: (1) that he had become a member of a group who sponsored a series of acts of sabotage during those years and (2) that he together with one Ayyappan secretary of the Kozhikode branch of the Southern way labour Union, organised sabotage on the Shoranur Mangalore Railway line by getting a big boulder placed on the. track. The petitioner, by his representation dated 15-3-1956, denied the charges. By an order received by the petitioner on 14-4-1956, he was placed under suspension. Eventually by an order-dated 12-12-1958, the General Manager informed the petitioner that it had been decided not to proceed with the action initiated against high under the Railway Services (Safeguarding of National Security) Rules 1954, and that he was reinstated in service with immediate effect and was directed to resume duty forthwith. it was thereafter that the petitioners services were terminated under Rule 148 of the Indian Railway Establishment Code.

(3) The petitioner has in this Court inpugned the order of termination of his services by contending that the railway authorities having failed to send him out of service on the basis of the show cause notice, had, resorted to Rule 148 and terminated his services thereunder solely to victimise him for his trade union activities, that Rule 148 contravened Article 311(2) of the Constitution and that once the railway administration attempted to take action for certain specific reasons against a railway employee and it was found that the reasons did not give any opportunity for such action, it was not open to the authorities to fall back on Rule 148. The petitioner filed on 2-5-1961, a memorandum signed by his counsel with a prayer that he be permitted to raise an additional ground that Rule 148 of the Indian Railway Establishment Code offended Articles 14 and 16 of the Constitution in that the class of non-pensionable railway servants lied been discriminated against in the matter of employees of the Central Government including pensionable railway servants.

(4) The above grounds of attack upon the order of termination of the petitioner's services ware traversed by the respondent, General Manager, in two counter affidavits sworn to by the personnel officer (Labour), Southern Railway. The General Manager has stated that although the President of India was satisfied regarding the petitioner's association in the subversive activities, the proceeding against the petitioner under Rule 3 of the Security Rules was dropped and he was reinstated. Nevertheless on direction and advice of the Government of India, the petitioner's services were terminated by the General Manager in accordance with Rule 148 which governed the conditions of the petitioner's services. Actually the order of termination of the petitioner services was not founded on any ground of misconduct and the previous history of the case was hardly material for the purpose of determining the nature of the action which was in fact taken ultimately against the petitioner. There was nothing in the order that it was meant by way of punishment in the shape of dismissing, removal or reduction in rank to attract the provisions of Article 311 of the Constitution. The order did not intend that the petitioner should be deprived of any rights and privileges which the petitioner was, entitled to by virtue of his employment.

The General Manager has further stated that Rule 148 of the Code had been in force as early as 1-4-1944 and was applicable to all servants who were non-pensionable and that this rule applied to specific classes of employees and the exclusion of the pensionable servants therefrom could not be viewed as discrimination, that in any event, there were no pensionable servants, at all during the relevant time, that is, prior to April 1, 1957, that the evil sought to be remedied by Rule 148 was that the railway administration, which was running transport vehicles carrying people and goods, had a special responsibility in regard to their safety and the services of non-pensionable railway servant who was governed by the terms of service could always be terminated by giving notice required. under the terms of his employment, that this was based on the contract subsisting between the railway and the servant, that, there was no fundamental right involved in the case and that there could be no further protection claimed by the employee under the Constitution. Pensionable employees under the Railways formed a different class altogether and their terms of service were entirely different.

According to the General Manager, therefore, because the pensionable employees could not be dealt with under Rule 148, that did mean a discrimination in regard to others; the object and power reserved under Rule l48, were to safeguard the efficient discharge of the duties of the railway administration in relation to the public and the railway administration must, In proper cases, have the right to terminate the employment of any person whose continuance in service could not be in the interest of efficient administration. It was finally stated that it was but an enabling rule to work out the terms of employment under which the employee had agreed to enter service.

(5) At the hearing of the petition in this Court Sri K. V. Sankaran the learned counsel for the petitioner, mainly addressed two contentions: (1) that the fact that the General Manager framed charges of misconduct against the petitioner but eventually dropped the proceedings under the security rules showed that the order of termination of the petitioner's services, in truth and effect, amounted to one of dismissal and was as such void under Article 311(2) of the Constitution and that (2) Rule 148 of the Indian Railway Establishment Code was discriminatory and offended Articles 14 and 16 of the Constitution. In my opinion, neither of the contentions has any substance. As regards the first contention, the order of termination itself is a sufficient answer. It reads thus:

'As Your services are no longer required by the railway administration, Your services are, in accordance with Rule 148 of the Indian Railway Establishment Code, Vol I, terminated with effect from the forenoon of 30-12-1958. You will be paid one month's pay in lieu of notice of termination of your service due to you.

Ex facie, the order does not purport to be one of dismissal or removal of the petitioner from service. There is no indication whatever in it that it was intended as a punishment. The only ground on which it is based is that the petitioner's services were no longer required by the railway administration. It is no doubt true that the order was preceded by the proceedings which have been already referred to. But those proceedings were dropped and the petitioner was reinstated. It might perhaps be that in reaching the conclusion that the petitioner's services were no longer required by the railway administration, the alleged misconduct of the petitioner and the proceedings against him which were dropped, provided a background. n itself does not justify or warrant the deduction that the order of termination was intended as a punishment by way of dismissal or removal.

(6) That a termination of service, such as in this case, does not attract Article 311 of the Constitution seems clear, because it was neither by way of punishment nor did it have the effect of depriving the petitioner of the benefits he had already earned. These are the two tests to find out whether an order of termination of service is in truth an order of dismissal or removal from service. In a recent case in Dalip Singh v. State of Punjab, : 1953CriLJ1465 , the Supreme Court dealing with the question, observed,

'The question whether the termination of service by compulsory retirement in accordance with Service Rules amounts to removal from service was considered by this Court in Shyamlal v. State of U. P., : (1954)IILLJ139SC and again recently in State of Bombay v. Subhagchand Doshi, : [1958]1SCR571 . The Court decided in Shyamlal's case, : (1954)IILLJ139SC , that two tests had to be applied for ascertaining whether a termination of service by compulsory retirement amounted to removal or dismissal so as to attract the provisions of Article. 311 of the Constitution. The first is whether the action is by way of punishment and to find that out the Court said that it was necessary that a charge or imputation against the officer is made the condition of the exercise of the power; the second is whether by compulsory retirement the officer is losing the benefit he has already earned as he does by dismissal or removal.'

(7) The instant case does not satisfy the two tests. As was pointed out by the Supreme Court in : 1953CriLJ1465 , a charge sheet was in fact drawn up in Shyamlal's case, : (1954)IILLJ139SC , against the officer in question there and an enquiry held but the order of compulsory retirement was not based on the result of the enquiry; the Court held that the enquiry was merely to help the Government to make up its mind as to whether it was in the public interest to dispense with his services so that the imputation made in the charge-sheet was not being made the condition, of the exercise of the power. Referring to this aspect, the Supreme Court in : 1953CriLJ1465 again observed that the fact that considerations of misconduct or inefficiency weighed with the Government in coming to its conclusion whether any action should be taken under Rule 278 of the Patiala State Regulations did not amount to any imputation or charge against the officer. In tile last case, the Supreme Court extracted and 'applied the following observations in Doshi's case, : [1958]1SCR571 ,

'While misconduct and inefficiency, are factors that enter into the account where the order is one of dismissal or removal or of retirement, there is this difference that while in the case of retirement they merely furnish the background and the enquiry, if held--and there is no duty to hold an enquiry---is only for the satisfaction of the authorities who have to take action, in the case of dismissal or removal, they form the very basis on which the order is made and the enquiry thereon must be formal and must satisfy the rules of natural justice and the requirements of Article 311(2).'

In the present case, therefore, the order of termination of the petitioner's services was certainly not based on any charge or imputation against him of misconduct and such charge or imputation was not made a condition of the exercise of the power of termination under Rule 148 of the Indian Railway Establishment Code. Nor is it proved that by reason of the order of termination the petitioner has been deprived of any benefit lie had already earned. The first contention on behalf of the petitioner, therefore, fails.

(8) In the second contention on behalf of the petitioner, there is even much less substance. It is now well established that Article 14 of the Constitution forbids not classifications but only class legislation. The classification to be followed should of course he reasonable and founded on intelligible differentia, having a rational relation to the object sought to be achieved. This proposition has been laid down and reiterated by the Supreme Court in numerous cases. It will suffice to refer only to C.I. Emden v. State of Uttar Pradesh, : [1960]2SCR592 , where the scope and effect of the fundamental right guaranteed by Article 14 of the Constitution have been recently summed up in terms just set out. Rule 148 of the Indian Railway Establishment Code provides for termination of service and periods of notice deals with three classes of railway servants: (1) temporary railway servants; (2) apprentices and (3) other (non-pensionable) railway servants. Rule 143 requires every nor-pensionable railway servant to execute a service agreement with the President and Rule 148 is one of the conditions of the service under such agreement. Railway servants certainly belong to a class coming under essential services different from other public services. The exigencies and peculiar requirements of the railway servants are an essential distinguishing feature which marks off others who, do not belong to that category of service. At page 194 of the Memorandum by the Railway Board for the Royal Commission on Labour (1930) it was stated:

'The Railway department being a commercial department service it must in its nature differ from service in other Government departments and continuance of employment must be subject to the tests and conditions enforced by large commercial concerns. Accordingly the power which the railway administration, possess of discharging railway servants without assigning reasons in accordance with the terms of their agreement, or otherwise on reduction of establishment due to fluctuations of traffic, simplification of the methods of work or any other cause or on, grounds of inefficiency must be retained.'

This excerpt not only shows how the service in the railway differs from service in other Government departments, but accurately sets out the object that was sought to be achieved by retaining Power of termination under Rule 148. This rule applies to all railway servants who arc non-pensionable and the exclusion of the pensionable servants from that class cannot be viewed in itself as a discrimination. As a matter of right, the General Manager in his counter affidavit has pointed out that there were no pensionable servants at all during the relevant period prior to 1st April, 1957. In any case, the terms of service of non-pensionable employees appear to be entirely different from those of the pensionable employees. Regarding the object of the race, the General Manager states:,

'The evil sought to be remedied by Rule 148 is that the railway administration which is running transport vehicles carrying people and goods have a special responsibility in regard to their safety and the services of any non-pensionable railway servant who is governed by the terms of service can always be terminated by giving notice required under the terms of his employment. This is based on the contract subsisting between the railway and the servant...... The power is neither discriminatory nor arbitrary and is only an enabling rule to work out the terms of employment under which the employee had agreed to enter service.'

The classification of the non-pensionable railway servants as a separate class is a reasonable classification based on intelligible differentia and the classification is certainly related to the object sought to he achieved it. I hold that Rule 148 of the Indian Railway Establishment Code does not offend Article 14 of the Constitution and the Petitioner's argument based on that Article is rejected.

(9) The contention of the petitioner founded on Article 18 of the Constitution was not seriously pursued at the hearing of the petition and the learned counsel appearing for the petitioner has failed to convince me how either the rule 148 or the Order of termination of the petitioner's services is violative of Article 16 of the Constitution.

(10) The writ petition is dismissed and the rule nisi is discharged. But in the circumstances there will be no order as to costs.

(11) Petition dismissed.


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