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Subrata Kumar Chatterjee Vs. Deputy Chief Accounts Officer, Eastern Railway and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtKolkata High Court
Decided On
Case NumberMatter No. 59 of 1957
Judge
Reported inAIR1958Cal654,62CWN352,(1959)ILLJ141Cal
ActsConstitution of India - Articles 226, 310 and 311; ;Indian Railway Establishment Code - Rule 1706
AppellantSubrata Kumar Chatterjee
RespondentDeputy Chief Accounts Officer, Eastern Railway and ors.
DispositionApplication dismissed
Cases Referred(A) and Surendra Nath v. State of West Bengal
Excerpt:
- .....force from time to time.2. it must be clearly understood that the appointment is terminable on 14 days' notice on either side except that no such notice will be required on return to duty of the absentee in whose place you may be engaged, in which case your services will automatically terminate from the day the former resumes duly. also no such notice will be required if the termination of services is due to your mental or physical incapacity or to your removal or dismissal for serious misconduct.3. you will not be eligible for any pension nor any benefit under the state railway provident or gratuity rules or to any absentee allowances beyond those admissible to temporary employees under the rules in force from time to time during such temporary service.'3. under these terms of contract.....
Judgment:
ORDER

P.B. Mukharji, J.

1. This is an application by Subrata Kumar Chatterjee under Article 226 of the Constitution against his order of discharge from railway service. The order is dated 9th April, 1957 stating:

'Your services are terminated with effect from 11-4-57. Arrangements are being made to settle you up immediately.'

The communication is made by the Deputy Chief Accounts Officer of the Eastern Railway.

2. The petitioner is a purely temporary probationary accounts clerk in the Accounts Department of the Eastern Railway in the scale of Rs. 55-130/-. In the letter of temporary appointment dated 22nd February, 1956 the contract of service is set out. The contract provides inter alia

'1. Your appointment is also subject to your character and antecedents being satisfactorily verified by the civil authorities in accordance with the rules in force from time to time.

2. It must be clearly understood that the appointment is terminable on 14 days' notice on either side except that no such notice will be required on return to duty of the absentee in whose place you may be engaged, in which case your services will automatically terminate from the day the former resumes duly. Also no such notice will be required if the termination of services is due to your mental or physical incapacity or to your removal or dismissal for serious misconduct.

3. You will not be eligible for any pension nor any benefit under the State Railway Provident or Gratuity Rules or to any absentee allowances beyond those admissible to temporary employees under the rules in force from time to time during such temporary service.'

3. Under these terms of contract he was also required to take the oath of allegiance to the Government of India by declaring that he 'will be faithful and bear true allegiance to India and to the Constitution of India as by law established and that' he will loyally carry out the duties of office'.

4. The applicant accepted in writing the said offer of temporary service on the terms mentioned and signed them.

5. There are many objections to this application.

6. First, this is an application where the writ of mandamus is sought by the applicant without any demand for justice. It is settled law that demand for justice is an essential condition for the issue of a writ of mandamus as laid down in Commissioner of Police, Bombay v. Gordhandas, : [1952]1SCR135 (A) and Surendra Nath v. State of West Bengal, : AIR1951Cal396 (B). These decisions are binding on me.

7. Mr. Gupta argues that in cases of urgency the demand for justice can be dispensed with. Whether that is so or not need not be determined here, because this much is certain on the present facts that this is not a case of urgency. Mr. Gupta tried to argue that the order of termination was dated 9th April, 1957 and he was asked to vacate office within two days by 11th April, 1957 and therefore the applicant had no time to make a demand for justice. 1 am not impressed with the argument. Even though his services were being terminated within two days, that does not mean that he could not make a demand for justice. It was not necessary that the demand for justice should have been made within those two days although it could have been. He could have made the demand for justice even after those two days and thereafter made the petition. The real excuse for not making the demand for justice is that the applicant wanted to snatch an ex parts order for injunction before those days. In fact what the applicant tried to do was to file this petition on 10-4-1957 with a view to obtain an ad interim order of injunction restraining the Railway from terminating his services and to continue to keep him in employment while the application was pending. He made the application but Sinha, J. rightly refused the interim order.

8. Secondly, the more fatal objection to this application is that this is a case of a purely temporary probationary clerk whose service is terminable by the express terms of the contract of service by 14 days' notice. In fact during the pendency of this application and before the Rule was returnable, the offer was made by the Government by the Chief Accounts Officer by his letter dated 29-4-1957 offering him 14 days' pay in lieu of notice for the termination of service. I direct that a copy of that letter be filed as an exhibit in this application. So, at best it is a question of 14 days' notice which can always be compensated by damages in lieu thereof. That is not a right which I am inclined to protect by A writ under the Constitution. The use of the Constitution to earn damages for wrongful dismissal is in my judgment, inappropriate.

9. Thirdly, Mr. Gupta lends glamour to this application by raising the question, how far a public servant or a Government servant has the freedom to belong to a political party. The source of this glamorous point he finds in the affidavit of the Deputy Chief Accounts Officer. That point may be briefly stated.

10. The affidavit of the Deputy Chief Accounts Officer states in paragraph 6 that the appointment of the applicant was conditional and was subject to the condition that a satisfactory report was received about him from the appropriate civil authorities. It is the Railway case in the affidavit that a police report was to be taken by the Railway Administration on its own and the petitioner was not either required to be told or informed about the same. The affidavit states further that on 15-2-1956 before the petitioner who along with others was empanelled through the Railway Service Commission was called for appointment, the Commissioner of Police, S. B. Calcutta, was written to for verification of the character and antecedents of the petitioner. On 6-4-1957 a secret police report or communication concerning the petitioner from the Deputy Inspector General of Polce, I. B., C. I. D., West Bengal, was received in the office of the Deputy Chief Accounts Officer of the Railway. It is said in paragraph 9 of his affidavit that in this report it was stated inter alia that the petitioner was unsuitable for Government service as he was 'an active member of a subversive organisation.'

11. Mr. Gupta appearing for the applicant suggested that it was his client's information that a lawful party has been described by the police as a subversive organisation. In fact, he suggested, without any basis or material, that the Communist Party of India which was under no legal ban in the country has been described in the secret police report as a subversive organisation. He, therefore, argued on the basis of that hypothesis which he imagined, that a member professing faith in any particular political party which was a lawful and recognised party in the country, should not be excluded from public service. He, however, makes the mistake that it is not mere profession of a faith in a particular political party that is put forward as a ground to exclude a citizen from public service, because public servants in India are free to vote for any candidate for any political party at the Elections in this country. But when it does not rest with a mere profession of faith but concerns 'an active member of a subversive organisation', then the situation is entirely different. Public servant's freedom to vote for any political party does not mean 'active membership' and open participation in subversive organisation.

12. At one stage of the argument Mr. Gupta contended that I should order the secret police report to be produced for examination. The Deputy Chief Accounts Officer of the Railways in paragraph 12 of his affidavit quite fairly stated that the police report would be produced if ordered by the Court although it is a secret communication, but only for the inspection of the Court. It is in my view unnecessary on the facts of this case even for the Court to examine the secret police report merely on an unfounded suggestion. The very terms of the contract of service which the applicant had with the Railway provide inter alia :

'Your appointment is subject to your character and antecedents being satisfactorily verified by the civil authorities in accordance with the rules in force from time to time.'

The police authorities are civil authorities and the satisfactory verification by the railway authorities of the character and antecedents of the applicant is for the railway administration. I am. therefore, not prepared to interiere in that context of facts and on those specific terms of the contract of service because the railway called for the report about the character and antecedents of the applicant from the accredited institutions of the administration of the country and satisfied themselves that he was not a proper or suitable person to be retained in the employment. As I have said, the applicant signed those terms and accepted them, as a part of his very contract of service.

13. Fourthly the situation under the Rules of Service does not help the applicant at all.

14. Rule 148 of Vol I of Indian Railway Establishment Code provides for determination of service and periods of notice. It says inter alia :

'When a person without a lien on a permanent post under Government is appointed to hold a temporary post or to officiate in a permanent post, he is entitled to no notice of the termination of his service if such termination is due to the expiry of the sanction to the post which he holds or the expiry of the officiating vacancy, or is due to mental or physical incapacity or to his removal or dismissal for serious misconduct. If the termination of his service is due to some other cause, he shall be entitled to one month's notice provided he was engaged on a contract for a definite period and the contract does not provide for any other period of notice, and to a notice of 14 days if he was not engaged on a contract. In the latter case steps should be taken to bring this condition to the notice of temporary employees.'

As in the contract so under this Rule of Service the applicant is at best entitled to a notice of fourteen days.

15. Rule 1706 provides for dismissal of a railway servant. Among the circumstances mentioned there as grounds for dismissal, it is expressly provided as a ground:

'obtaining employment by the concealment of his antecedents, which would have prevented his employment in railway service had they been made known before his appointment to the authority appointing him.'

Concealment of the fact of 'active membership of a subversive organisation' would certainly be a concealment within the meaning of Rule 1706, relating to dismissal. It is in fact to provide against these dangers that a term is almost uniformly included in cases of temporary employment that such employment would be subject to the character and antecedents being satisfactorily verified by the civil authorities.

16. I am therefore satisfied that the applicant's dismissal in this case cannot be challenged either under the express terms of his contract of service or under the Rules of Service governing his employment.

17. For these reasons I dismiss this application and discharge the Rule. I make no order as to costs. Interim orders, if any, are vacated.


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