J B PURUSHOTHAM Vs. GENERAL MANAGER SOUTHERN RLY

JUDGEMENT

(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 25-51959, 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, 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, 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 :

(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, 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,