{"id":107756,"date":"1989-10-17T00:00:00","date_gmt":"1989-10-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/union-of-india-ors-vs-shaik-ali-on-17-october-1989"},"modified":"2017-08-12T08:49:51","modified_gmt":"2017-08-12T03:19:51","slug":"union-of-india-ors-vs-shaik-ali-on-17-october-1989","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/union-of-india-ors-vs-shaik-ali-on-17-october-1989","title":{"rendered":"Union Of India & Ors vs Shaik Ali on 17 October, 1989"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Union Of India & Ors vs Shaik Ali on 17 October, 1989<\/div>\n
Equivalent citations: 1990 AIR 450, \t\t 1989 SCR Supl. (1) 456<\/div>\n
Author: Ahmadi<\/div>\n
Bench: Ahmadi, A.M. (J)<\/div>\n
           PETITIONER:\nUNION OF INDIA & ORS.\n\n\tVs.\n\nRESPONDENT:\nSHAIK ALI\n\nDATE OF JUDGMENT17\/10\/1989\n\nBENCH:\nAHMADI, A.M. (J)\nBENCH:\nAHMADI, A.M. (J)\nSAIKIA, K.N. (J)\n\nCITATION:\n 1990 AIR  450\t\t  1989 SCR  Supl. (1) 456\n JT 1989 (4)   123\t  1989 SCALE  (2)845\n\n\nACT:\n    Indian     Railway\t   Establishment     Code:\tRule\n2046(h)(ii)--Premature\tretirement--Permissible\t only\twhen\nrailway servant has attained the age of 55 years--Similar to\nF.R. 56(j).\n    Liberalised Pension Rules, 1950\/Railway Pension  Manual:\nRule  2 (2)\/paragraph 620(ii)---  Premature  retirement--Re-\nquirement of public interest--Need for incorporation by\t way\nof amendment--Stressed.\n\n\n\nHEADNOTE:\n    The\t respondent,  employed as Yard Master in  the  South\nCentral\t Railway, was on duty between 14.00 and 22.00  hours\non  23rd February '86. In the absence of a reliever, he\t was\nto  continue his duty till 8.00 hours on 24th February\t'86.\nHe  allowed his staff to take meals and since they  did\t not\nreturn\twithin a reasonable time, he went towards the  cabin\nwhere  the  staff usually took their meals.  The  Divisional\nSafety Officer who was coming down from the cabin,  enquired\nof  the respondent's identity. The respondent in turn  asked\nfor  the identity of the said officer. The officer  was\t an-\nnoyed at this and threatened the respondent with dire conse-\nquences.  Immediately thereafter the respondent\t was  placed\nunder  suspension. Further suspension followed and  the\t re-\nspondent was visited with the order of premature  retirement\nunder Rule 2046 of Indian Railway Establishment Code.\n    Respondent challenged the said order before the  Central\nAdministrative\tTribunal  and the Tribunal, relying  on\t its\ndecision in Shri Gafoor Mia & Ors. v. Director, DMRL,  AISLJ\n1988 2 CAT 277 held that the Divisional Railway Manager\t who\npassed\tthe impugned order of premature retirement  was\t not\ncompetent to make such an order, and set aside the order.\nThis  appeal,  by special leave, is against  the  Tribunal's\norder. Though under sub-clause (ii) of rule 2046(h), a class\nIII  employee  cannot be retired prematurely  after  he\t has\nattained the age of 55 years, (unlike officers of class I  &\nII)  this clause was invoked in the case of  respondent\t who\nwas  admittedly in class III service and did not attain\t the\nage  of\t 55 years. Appellant relied on para 620(ii)  of\t the\nRailway Pension\n457\nManual which gives the authority power to remove from  serv-\nice a railway servant after he completed 30 years service.\n    On\tbehalf\tof  Respondent, it was\tcontended  that\t the\nappellant had been shifting its stand and trying to  support\nthe order on an extraneous ground which did not find a place\nin  the\t order\tviz. unsatisfactory service  record  of\t the\nrespondent;  and  there is no basis for it in  view  of\t the\npromotionS secured by the respondent, the last of which\t was\njust before the premature retirement.\nDismissing the appeal, this Court,\n    HELD: 1.1 The order was passed under Rule 2046(h)(ii) of\nthe  Indian  Railway Establishment  Code  without  verifying\nwhether or not the incumbent had attained the age of  fifty-\nfive  years. Since the respondent was indisputably in  class\nIII service at the time the order came to be made, his\tcase\nwas  governed  by  the second clause of\t Rule  2046(h).\t The\nimpugned  order\t recites  that the  respondent\thad  already\ncompleted thirty years of qualifying service but it does not\nstate  that  he had attained the age  of  fifty-five  years.\nAccording to the respondent he was running 54th year on that\ndate. That obviously took his case out of the purview of the\nsaid  rule. Even if the order was intended to he under\tRule\n2(2)  of the Liberalised Pension Rules, 1950, this  require-\nment had to be satisfied. The immediate and proximate reason\nfor passing the impugned order was undoubtedly the  unfortu-\nnate incident of 23\/24th February, 1986. BUt for that  inci-\ndent  there  was  no occasion for the  Review  Committee  to\nexamine the case of the respondent. If the service record of\nthe  respondent was so bad as is now sought to be made\tout,\nhe  would not have been promoted to the post of Asstt.\tYard\nMaster\tan 22nd August, 1984 and later to the post  of\tYard\nMaster on 31st January, 1986. The order of premature retire-\nment  is punitive in nature and having been passed  in\tfla-\ngrant violation of the principles of natural justice, cannot\nbe allowed to stand. [426G-H; 460F-G; 463A-B]\n    1.2 F.R. 56(j) of the Fundamental Rules is substantially\nthe  same as Rule 2046(h)(ii) of the  Railway  Establishment\nCode and Rule 2(2) of the Liberalised Pension Rules, 1950 is\nsubstantially  the same as paragraph 620 of Railway  Pension\nManual. Since Rule 2(2) has been struck down as violative of\nArticle 14 of the Constitution, paragraph 620(ii) would meet\nthe  same fate. Apart from the competence of the  Divisional\nRailway Manager to pass the order, the order cannot also  he\nsupported under paragraph 620(ii). [462B-D]\n458\n    Senior  Superintendent of Post Office & Ors.,  v.  Izhar\nHussain,<\/a> [1989] 2 Scale 222, relied on.\n    Union of India v. R. Narasimhan,<\/a> [1988] Suppl. SCC\t636,\nreferred to.\n    2. The authorities concerned will do well to amend\tRule\n2(2)  of the Liberalised Pension Rules, 1950, and  paragraph\n620(ii) of the Railway Pension Manual, so as to\t incorporate\ntherein the requirement of public interest, making it  clear\nthat premature retirement on completion of qualifying  serv-\nice of thirty years can be ordered in public interest  only.\n[463C-D]\n\n\n\nJUDGMENT:\n<\/pre>\n
    CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 2413  of
\n1989.\n<\/p>\n
    From  the Judgment and Order dated\t3.10.1988\/12.10.1988
\nof  the Central Administrative Tribunal, Hyderabad  in\tO.A.
\nNo. 307 of 1987.\n<\/p>\n
    Anil Dev Singh, B. Parthasarthy, Hemant Sharma and\tC.V.
\nSubba Rao for the Appellants.\n<\/p>\n
    Mrs.  Kitty\t Kumaramangalam,  Ms.  Vijayalaxmi,  Kailash
\nVasdev, P. Parmeshwaran and A.T.M. Sampath for the  Respond-
\nent.\n<\/p>\n
The Judgment of the Court was delivered by
\n    AHMADI, J. The Central Administrative Tribunal,  Hydera-
\nbad  by\t its  order dated 3rd October, 1988  held  that\t the
\nDivisional Railway Manager (BG) SC Railway, Secunderabad was
\nnot  competent to pass the impugned order dated 25th  April,
\n1986  retiring\tthe railway servant Shaik Ali  from  service
\nunder Rule 2046(h)(ii) of Indian Railway Establishment Code,
\nVolume\tII–Pension Rules (hereinafter called  ‘the  Code’).
\nThe  Union of India feeling aggrieved by the said order\t has
\ncome in appeal to this Court by special leave.
\n    The\t respondent  Shaik Ali joined  the  erstwhile  Nizam
\nState  Railway Service as Pointsman in 1953  or\t thereabouts
\nand  secured promotions from time to time in the  course  of
\nhis service, the last promotion being as Yard Master in\t the
\nrevised scale of Rs.550-750 on 31st January, 1986. The facts
\nshow  that he was on duty between 14.00 and 22.00  hours  on
\n23rd  February, 1986 at Sanatnagar Station. As his  reliever
\ndid not turn up at 23.00 hours, he was compelled to perform
\n459<\/span>
\nduty from 22.00 hours to 08.00 hours of 24th February, 1986.
\nAt  about 23.15 hours, he permitted the staff working  under
\nhim  to\t have  their meals and report for duty\tas  soon  as
\npossible. As the staff members did not return to duty within
\na  reasonable  time  he went towards the  cabin\t where\tthey
\nusually took their meals. At that time the Divisional Safety
\nOfficer,  A.  Bharat Bhushan, came down from the  cabin\t and
\ninquired of the respondent’s identity. The respondent  coun-
\ntered  by inquiring about the identity of the said  officer.
\nIt is the respondent’s say that as he did not know the\tsaid
\nofficer\t he  asked for his identity  before  disclosing\t his
\nidentity.  The officer was annoyed at the behaviour  of\t the
\nrespondent and threatened him with dire consequences. It  is
\nthe  respondent’s  case that immediately thereafter  he\t was
\nplaced under suspension. When he went to meet the officer at
\nthe  suggestion\t of  the Station  Superintendent,  the\tsaid
\nofficer behaved rudely and refused to listen to his explana-
\ntion.  By  a subsequent order dated 19th  March,  1986,\t the
\nrespondent  was\t kept under further  suspension\t w.e.f.\t 4th
\nMarch,\t1986. He was not charge-sheeted-nor was any  inquiry
\nheld against him but he was visited with the order of prema-
\nture  retirement dated 25th April, 1986, the  relevant\tpart
\nwhereof reads as under:\n<\/p>\n
\t      “Whereas the Divisional Railway Manager  (BG),
\n\t      Secunderabad  is of the opinion that it is  in
\n\t      the public interest to do so.\n<\/p><\/blockquote>\n
\t\t\tNow  therefore, in exercise  of\t the
\n\t      powers  conferred\t by Clause (h)(ii)  of\tRule
\n\t      2046  of\tIndian Railway\tEstablishment  Code,
\n\t      Volume   II–Pension  Rules,  the\t  Divisional
\n\t      Railway  Manager\t(BG),  Secunderabad   hereby
\n\t      retires Shri Shaik Ali, Assistant Ward Master,
\n\t      Sanatnagar  with\timmediate  effect  that\t  he
\n\t      having already completed 30 years of  qualify-
\n\t      ing service.\n<\/p><\/blockquote>\n
It was further directed that the respondent should be paid a
\nsum equivalent to the amount of his pay plus allowances\t for
\na  period  of three months in lieu of  three  months  notice
\ncalculated at the rate at which he was drawing salary  imme-
\ndiately\t before\t his retirement. The  respondent  challenged
\nthis order of premature retirement by preferring an applica-
\ntion  under Section 19 of the Administrative Tribunals\tAct,
\n1985. The Central Administrative Tribunal after reading\t the
\nrelevant  Rule 2046(h)(ii) with Para 620(ii) of the  Railway
\nPension\t Manual came to the conclusion that  the  Divisional
\nRailway\t Manager who passed the impugned order of  premature
\nretirement  was\t not  competent to make such  an  order.  In
\ntaking this view the Tribunal relied on an earlier
\n460<\/span>
\ndecision  of the Full Bench in AISLJ 1988 2 CAT 277  wherein
\nit  held  that the highest authority among_  the  appointing
\nauthorities alone was competent to impose any of the punish-
\nments specified in Article 311 of the Constitution. In\tthis
\nview  that  the Tribunal took, the Tribunal  set  aside\t the
\nimpugned  order\t of premature retirement dated\t25th  April,
\n1986.  It is against the said order that the Union of  India
\nhas preferred this appeal.\n<\/p>\n
    Under Rule 2046(a) of the Code ordinarily every  railway
\nservant\t would\tretire on the day he attains the age  of  58
\nyears.\tHowever,  notwithstanding the said  provision,\tRule
\n2046(h)\t entitles  the appointing authority  to\t retire\t him
\nbefore\the reaches the age of superannuation. Rule  2046(h),
\ninsofar as it is relevant for our purposes, reads as under:\n<\/p>\n
\t      “2046(h).\t Notwithstanding anything  contained
\n\t      in this rule, the appointing authority  shall,
\n\t      if  it  is of the opinion that it\t is  in\t the
\n\t      public  interest to do so, have  the  absolute
\n\t      right to retire any railway servant giving him
\n\t      notice of not less than three months in  writ-
\n\t      ing  or  three months’ pay and  allowances  in
\n\t      lieu of such notice–\n<\/p><\/blockquote>\n
\t      (i) if he is in Class I or Class II service or
\n\t      post and had entered Government service before
\n\t      attaining the age of thirty-five years,  after
\n\t      he has attained the age of fifty years.\n<\/p><\/blockquote>\n
\t      (ii)  in any other case after he has  attained
\n\t      the age of fiftyfive years.”\n<\/p><\/blockquote>\n
Since  the respondent was indisputably in Class III  service
\nat the time the impugned order came to be made his case\t was
\ngoverned by the second clause of Rule 2046(h). The  impugned
\norder  recites\tthat the respondent  had  already  completed
\nthirty\tyears  of qualifying service but it does  not  state
\nthat  he had attained the age of fifty-five years.  The\t re-
\nspondent’s  contention was that he could not be\t prematurely
\nretired\t under clause (ii) of Rule 2046(h) since he had\t not
\nattained  the  age of fifty-five years on the  date  of\t the
\nimpugned order. According to him he was running 54th year on
\nthat  date. That obviously took his case out of the  purview
\nof the said rule.\n<\/p>\n
    Realising  this  difficulty an attempt was made  by\t the
\ndepartment to fall back on paragraph 620(ii) of the  Railway
\nPension Manual which reads as under:\n<\/p>\n
461<\/span><\/p>\n
\t      “620(ii).\t The authority competent  to  remove
\n\t      the  railway  servant from  service  may\talso
\n\t      require  him to retire any time after  he\t has
\n\t      completed\t thirty\t years’\t qualifying  service
\n\t      provided that the authority shall give in this
\n\t      behalf,  a  notice in writing to\tthe  railway
\n\t      servant, at least three months before the date
\n\t      on  which\t he is required to retire  or  three
\n\t      month’s  pay  and allowances in lieu  of\tsuch
\n\t      notice.”\n<\/p><\/blockquote>\n
Reliance  was also placed on the decision of this  Court  in
\nUnion  of India v. R. Narasimhan,<\/a> [1988] Suppl. SCC  636  in
\nsupport of the contention that a railway servant governed by
\nthe  Railway  Pension Manual may be prematurely\t retired  by
\n‘the authority competent to remove him from service’ on\t his
\ncompleting  thirty years of qualifying service.\t Under\tthis
\nrule,  power  is  conferred on the  authority  competent  to
\nremove him from service to retire a railway servant who\t has
\ncompleted  thirty years of quarrying service  regardless  of
\nhis  age.  The\tTribunal took the view\tthat  although\tRule
\n2046(h)(ii)  would not be attracted in the absence  of\tevi-
\ndence that the incumbent had attained the age of  fifty-five
\nyears,\tthe  department would be entitled to  rely  on\tpara
\n620(ii) to support the order if it can show that the officer
\nwho  passed the order was competent to do s0 under the\tsaid
\nparagraph.  The\t Tribunal was however, of the  opinion\tthat
\nsince  the power under paragraph 620(ii) could be  exercised
\nonly by the authority competent to remove the railway  serv-
\nant  from service, the Divisional Railway Manager not  being
\nsuch authority was not competent to pass the impugned  order
\nand hence the order was clearly void and inoperative in law.
\nIn taking this view, the Tribunal relied on an earlier\tFull
\nBench  decision referred to above. We were told that as\t the
\nsaid Full Bench decision of the Tribunal was under  scrutiny
\nby  this Court, this Civil Appeal should be tagged  on\twith
\nsimilar matters pending in this Court. However, the  learned
\ncounsel\t for the respondent-employee submitted that  it\t was
\nnot  necessary\tto  tag on this matter\twith  other  matters
\narising\t out of the Tribunal’s Full Bench decision since  in
\nthe  instant  case she proposed to  support  the  Tribunal’s
\norder  on  the twin grounds (i) that paragraph\t620(ii)\t was
\nultra vires Article 14 of the Constitution and (ii) that the
\nimpugned  order\t was punitive in nature and could  not\thave
\nbeen  passed without a proper enquiry. Insofar as the  first
\ncontention is concerned she placed reliance on this  Court’s
\ndecision  in Senior Superintendent of Post Office & Ors.  v.
\nIzhar  Hussain,<\/a>\t [1989] 2 Scale 222 wherein a  similar\tRule
\n2(2) of the Liberalised Pension Rules, 1950 was struck\tdown
\nas  offending Article 14 of the Constitution. So far as\t the
\nsecond\tlimb of her submission is concerned she stated\tthat
\nthe respondent had been promoted to the post of Yard  Master
\non 31st
\n462<\/span>
\nJanuary, 1986 and hence there was no occasion to prematurely
\nterminate  his service by the impugned order. In Izhar\tHus-
\nsain’s case the Court was concerned with F.R. 56(j) and Rule
\n2(2)  of the Pension Rules. F.R. 56(j) is substantially\t the
\nsame  as Rule 2046(h)(ii) of the Code and Rule 2(2) is\tsub-
\nstantially  the\t same  as paragraph 620 with  which  we\t are
\nconcerned. Since Rule 2(2) has been struck down as violative
\nof  Article 14 of the Constitution, paragraph 620(ii)  would
\nmeet  the  same fate. The learned counsel  for\tthe  Railway
\nAdministration,\t realising this difficulty tried to  support
\nthe  impugned  order  on the ground that it  was  in  public
\ninterest to retire the respondent. Counsel for the  respond-
\nent  contended\tthat  the railway  administration  has\tbeen
\nshifting its stand, it first passed the impugned order under
\nRule 2046(h)(ii) of the Code and then relied on Rule 2(2) of
\nthe  Pension Rules and when that was found to be of  no\t as-
\nsistance  switched over to paragraph 620(ii) of the  Railway
\nPension Manual and is now trying to support the order on  an
\nextraneous  ground  which  does not find a  mention  in\t the
\nimpugned  order. We think the criticism is well founded.  We
\nare,  therefore, of the view that apart from the  competence
\nof  the\t Divisional Railway Manager to pass the\t order,\t the
\nimpugned  order cannot be supported under paragraph  620(ii)
\nfor the aforesaid reason.\n<\/p>\n
    We next find that the learned counsel for the responden-
\ntemployee is on terra firma so far as the second limb of her
\ncontention is concerned. The facts clearly reveal that after
\nthe  respondent joined the Nizam. State Railway\t service  in
\n1953  he secured promotions in due course and was  appointed
\nan  Assistant  Yard Master by an order\tdated  22nd  August,
\n1984. Thereafter, he was promoted to the next higher post of
\nYard Master by the order of 31st January, 1986. While he was
\ndischarging  duties as Yard Master On 24th  February,  1986,
\nthe incident in question occurred which is said to be  form-
\ning the basis for the impunged order of 25th April, 1986. We
\nfind  from the facts that the Divisional Safety Officer\t was
\nannoyed by the fact that the respondent had demanded that he
\ndisclose his identity before he (the respondent) did so. The
\nrespondent  was immediately placed under suspension and\t the
\nsaid  officer  refused\tto listen to  his  explanation.\t The
\nsuspension  order was further extended by the order of\t19th
\nMarch,\t1966.  This was followed by the\t impugned  order  of
\nretirement  dated  25th April, 1986. The  order\t was  passed
\nunder Rule 2046(h)(ii) of the Code without verifying whether
\nor  not\t the  incumbent had attained the  age  of  fiftyfive
\nyears. Even if the order was intended to be under Rule\t2(2)
\nof the Pension Rules, this requirement had to be  satisfied.
\nThe immediate and proximate reason for passing the  impugned
\norder  was undoubtedly the unfortunate incident\t of  23\/24th
\nFebruary, 1986. But for that
\n463<\/span>
\nincident  there was no occasion for the Review Committee  to
\nexamine the case of the respondent. If the service record of
\nthe  respondent was so bad as is now sought to be made\tout,
\nhe  would  not have been promoted to the post  of  Assistant
\nYard  Master on 22nd August, 1984 and later to the  post  of
\nYard Master on 31st January, 1986. We are, therefore, satis-
\nfied  that  the impugned order of  premature  retirement  is
\npunitive in nature and having been passed in flagrant viola-
\ntion of the principles of natural justice cannot be  allowed
\nto stand.\n<\/p>\n
    For\t the above reasons (different from the one on  which
\nthe  Tribunal rounded its decision), we are of\tthe  opinion
\nthat  the  ultimate order passed by the\t Tribunal  does\t not
\nrequire\t interference.\tWe, therefore, dismiss\tthis  appeal
\nwith costs. Cost quantified at Rs.3,000.\n<\/p>\n
    Before we part we may observe that the concerned author-
\nities  will do well to amend Rule 2(2) of the Pension  Rules
\nand Paragraph 620(ii) referred to above so as to incorporate
\ntherein the requirement of public interest, that is to\tsay,
\nthe premature retirement on completion of qualifying service
\nof thirty years can be ordered in public interest only.\n<\/p>\n
G.N.\t\t\t\t      Appeal dismissed.\n464<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Union Of India & Ors vs Shaik Ali on 17 October, 1989 Equivalent citations: 1990 AIR 450, 1989 SCR Supl. (1) 456 Author: Ahmadi Bench: Ahmadi, A.M. (J) PETITIONER: UNION OF INDIA & ORS. Vs. RESPONDENT: SHAIK ALI DATE OF JUDGMENT17\/10\/1989 BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) SAIKIA, K.N. 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