DOULATRAM LEKHRAJ RUPCHANDANI Vs. GENERAL MANAGER

JUDGEMENT

(1.) THIS is a petition by a servant of the Western Railway complaining against an order dated July 30, 1956, terminating his services under Rule 148 of the Indian Railway Establishment Code by giving one month's pay in lieu of notice. The petitioner was selected by the Joint Service Commission of Railways as Ticket Collector and appointed to that post on November 20, 1953, and was confirmed in the post on July 1, 1956. It appears that early in 1956 the Vigilance Branch of the Railway had certain suspicions against the conduct of the petitioner, the suggestion being that he waspassing, on used tickets as unused tickets to persons who were in a position to re -sell these tickets at the stations at which the tickets were issued and sharing the profits half and half. In this connection, there was admittedly a preliminaryenquiry, at which the petitioner was also called and asked certain questions; but as a result of this preliminary enquiry no charge -sheet was presented to the petitioner, nor was any enquiry held as required by the Indian Railway Establishment Codeif it was proposed to dismiss or remove him from service; but as now appeal's from the affidavit of the Deputy General Manager of the Western Railway, it was decided to terminate the services of the petitioner as the General Manager came to the conclusion that it was in the public interest that his services should he terminated. The Deputy General Manager in his affidavit states that the Vigilance Branch had held about 334 inquiries: in 230 cases the inquiries were not proceeded with as no wrongful conduct was disclosed; in 84 cases disciplinary inquiries were ordered under the Disciplinary and Appeal Rules; and in 20 cases, including that of the petitioner, their services were terminated either under Rule 148 or under Rule 1708 of the Indian Railway Establishment Code. The General Manager had come to the conclusion that it was in the public interest that the services of these persons should be terminated. It is, therefore, that the notice dated July 30, 1956, was given to the petitioner by the General Manager terminating his services by giving one month's notice.

(2.) THIS order of termination of service is challenged in this petition on the ground that no enquiry having been held as required by the Disciplinary and Appeal Rules, the order of termination of service was illegal and void and violated the provision of the safeguards under Article 311 of the Constitution. The answer of the respondents to this contention is that they have not proceeded to dismiss or remove the petitioner from service, but that they were merely exercising a contractual right to terminate his services by giving a month's notice and no question arose of following the procedure prescribed by the Disciplinary and Appeal Rules or of observing the provisions of Article 311 of the Constitution. It is further contended by the petitioner that assuming, without admitting, that the petitioner was under a contract of service and was liable to have his services terminated by a month's notice, such a rule in the Indian Railway Establishment Code is ultra vires of the Constitution as it is calculated to defeat the provisions of Article 311 of the Constitution. It is lastly urged in the petition that, even assuming that the rule was valid, the action taken against the petitioner was mala fide in that, having found no evidence on which the petitioner could have been held to be guilty in respect of the suspicion which the Vigilance Branch had against him, the power of termination was utilised for the purpose of getting rid of his services.

(3.) IN this view of the case, if what was being done was to terminate the services of the petitioner under the terms of his agreement or contract, quite obviously Article 311 of the Constitution has no application, nor have the Disciplinary and Appeal Rules any application. Mr. Nagrani on behalf of the petitioner has drawn my attention to a decision of the Calcutta High Court reported in Prasadi v. Works Manager : (1957)ILLJ272Cal . In that case also there was termination of the services of a railway employee by giving a month's notice, and Chakravartti C.J. held that no question of any penalty or punishment was involvedif, the termination was in terms of, the service agreement. But on the facts of that case, the Division Bench of the Calcutta High Court held that, although the Railway Administration had purported to terminate the services of the appellants under Rule 148, Sub -rule (3), which in terms provides what the agreement form incorporates, namely, that the services of a non -pensionable railway employee can be terminated on notice on either side for the periods shown in that Sub -rule, in fact the Railway Administration had proceeded by way of exercising their disciplinary jurisdiction and had passed an order of removal by imposing a penalty on the appellants; and as this had been done without giving an opportunity to the employees concerned, as required by the Disciplinary and Appeal Rules, the learned Judges set aside the order of removal from service. Undoubtedly, if it could be established in the present case that what has been done in the case of the petitioner is not a termination in terms of the contract of employment, but a penalty imposed, he would be equally entitled to succeed.