PETITIONER:
GENERAL MANAGER, NORTH EAST FRONTIERRAILWAY
Vs.
RESPONDENT:
SACHINDRA NATH SEN
DATE OF JUDGMENT:
22/08/1969
BENCH:
ACT:
Indian Railway Establishment Code, Rules 148 and 149 held
invalid by Supreme Court as violative of Art. 311 (2) of the
Constitution of India-Railway Board deciding that only
employees whose services were terminated under said Rules
within a period of six years before Supreme Court judgment
would be reinstated-Validity of limit of six years.
HEADNOTE:
The, services of the respondent as an Assistant Traffic
Superintendent on the North East Frontier Railway were
terminated after one month's notice under Rule 148 of the
Indian Railway Establishment Code with effect from December
2, 1957. An appeal to the General Manager was held not to
be competent. On being offered a lower post the respondent
accepted it. By letter dated December 31, 1959 he was
informed that his representation to the Railway Board had
been rejected. On December 5, 1963 this Court in Moti Ram
Deka's case held that Rules 148(3) and 149(3) of the Indian
Railway Establishment Code were invalid being violative of
Art. 311(2) of the Constitution. The respondent made a
representation in 1964 to the General Manager for
reconsideration of his case in the light of the said
judgment. The representation was turned down on the ground
that the Railway Board had decided to instate only those
employees whose services had been terminated in terms of
Rules 148/149 within a period of six years prior to the date
of the Supreme Court's judgment. The respondent filed a
petition under Art. 226 of the Constitution which was
allowed by the High Court. The General Manager appealed.
HELD: The fixing of a period of six years was on the
face of it arbitrary and there was no valid or reasonable
explanation as to why this limit was fixed by the railway
authorities. If the termination of service of an employee
in terms of Rule 148 was wholly illegal and void because of
violation of Art. 311(2) of the Constitution, his
reinstatement should have followed as a matter of course.
The contention that the railway authorities would have found
a lot of difficulty and inconvenience in reinstating
employees without taking into consideration the period which
had elapsed was devoid of merit and could not be accepted.
[67 F--G]
Moti Ram Deka etc. v. General Manager, N.E.F. Railway
etc. [1964] 5 S.C.R. 683, applied.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1839 of 1967.
Appeal by special leave from the judgment and decree
dated February 16, 1967 of the Assam and Nagaland High
Court in Civil Rule 2 of 1965.
V.A. Seyid Muhammad and S.P. Nayar, for the ‘appellants.
A.K. Sen and D.N. Mukherjee, for the respondent.
66
The Judgment of the Court was delivered by
Grover, J. This is an appeal by special leave from a
judgment of the Assam & Nagaland High Court by which a
petition under Art, 226 of the Constitution filed by the
respondent challenging the termination of his service was
allowed.
The respondent was serving the railways as an
Assistant Traffic Superintendent prior to December 2, 1957.
His services were terminated by serving on him one month’s
notice under Rule 148 contained in the Indian Railways
Establishment Code. The respondent filed an appeal to the
General Manager but he was informed by means of a letter
dated February 3, 1959 that no appeal was competent. In
June 1959 he was offered reemployment as a Statistical
Inspector in the scale of Rs. 200 to Rs. 300 plus the usual
allowances on terms and conditions applicable to temporary
employees. It appears that the respondent accepted the
offer and was appointed to the post. He was finally
informed by means of a letter dated December 31, 1959 that
his representation had been considered by the Railway
Board relating to the termination of his services as
Assistant Traffic Superintendent but the same had been
rejected. On December 5, 1963 this Court decided by
majority in Moti Ram Deka etc. v. General Manager. N.E.F.
Railways etc.(1) that Rules 148 (3) and 149(3) of the Indian
Railway Establishment Code were invalid. The respondent
made a representation thereafter in 1964 to the
General Manager to reconsider the case of
the termination of his services in the light of the law
declared by this Court. The; General Manager sent a
reply dated June 3, 1964 saying that the question of the
respondents reinstatement could not be considered as it was
not covered ‘by limits of law, i.e. it does not fail within
a period of six years from the date of your termination of
service”. This was followed by another letter dated
December 7, 1964 in which it was stated:
“It has now been clarified by the
Railway Board that the claim for
reinstatement of the Ex: Employees whose
services were terminated in terms of Rule 148/
149 within a period of six years prior to
5-12-63 (the date of the Supreme Court’s
judgment), and whose representation is still
pending is only to be considered. Since your
services were terminated on 2-12-57 which is
more than six years counting backwards
from 5-12-63, it is regretted that your
request for reinstatement cannot be acceded
to”.
Thereupon the respondent filed a petition under Art. 226 of
the Constitution in the. High Court. As stated before the
petition
(1) [1964] 5 S.C.R. 683.
67
was allowed principally on the ground that the railway
authorities were not legally justified in making a
distinction between officers whose services had been
terminated within six years prior to the judgment of this.
Court in Moti Ram Deka’s(1) case and the cases of those
whose services had been terminated earlier. As pointed out
in the judgment of the High Court that respondents services
were terminated on December 2, 1957, he was behind time by 3
days only. It was found that such an artificial
demarcation between the two kinds of cases was hit by Art.
14 of the Constitution. The other point that the respondent
had accepted reemployment and must be deemed to have waived
his rights to reinstatement to his original office was also
repelled.
In Moti Ram Deka’s(1) case this Court held that the
termination of the services. of a permanent servant
authorised by Rules 148(3) and 149(3) of the Railway
Establishment Code was inconsistent with the provisions of
Art. 311 (2) of the Constitution. The termination of the
services of a permanent servant authorised by those Rules
was no more and no less than removal from service and Art.
311(2) was at once attracted. In view of the law laid down
by this Court the termination of the services of the
respondent in December 1957 was wholly void and illegal.
The railway authorities recognised, as indeed they were
bound to do, the implications and effect of the judgment of
this Court but created a wholly illegal and artificial
distinction by saying that only those employees whose
services were terminated in terms Rule 148 within a period
of six years prior to December 5, 1963 and whose
representations were pending were to be considered for
reinstatement, whereas the employees like the respondent
whose services had been terminated on a date which was more
than six years counting backward from December 5, 1963 would
not be reinstated. The fixing of the period of six years
was on the face of it arbitrary and no valid or reasonable
explanation has been given as to why this limit was fixed.
If the termination of service of an employee in terms of
Rule 148 was wholly illegal and void and was violative of
Art. 311 (2) of the Constitution his reinstatement should
have followed as a matter of course. The submission of the
learned counsel for the appellant that the railway
authorities would have found lot of difficulty and
inconvenience in reinstating employees without taking into
consideration the period which had elapsed is devoid of any
merit and cannot be accepted.
The appeal fails and it is dismissed with costs.
G.C. Appeal
dismissed.
(1) [1964] 5 S.C.R. 683.
68