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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. (J)

CITATION:  1990 AIR  450            1989 SCR  Supl. (1) 456  JT 1989 (4)   123        1989 SCALE  (2)845

ACT:     Indian     Railway     Establishment     Code:      Rule 2046(h)(ii)--Premature  retirement--Permissible  only   when railway servant has attained the age of 55 years--Similar to F.R. 56(j).     Liberalised Pension Rules, 1950/Railway Pension  Manual: Rule  2 (2)/paragraph 620(ii)---  Premature  retirement--Re- quirement of public interest--Need for incorporation by  way of amendment--Stressed.

HEADNOTE:     The  respondent,  employed as Yard Master in  the  South Central  Railway, was on duty between 14.00 and 22.00  hours on  23rd February ’86. In the absence of a reliever, he  was to  continue his duty till 8.00 hours on 24th February  ’86. He  allowed his staff to take meals and since they  did  not return  within a reasonable time, he went towards the  cabin where  the  staff usually took their meals.  The  Divisional Safety Officer who was coming down from the cabin,  enquired of  the respondent’s identity. The respondent in turn  asked for  the identity of the said officer. The officer  was  an- noyed at this and threatened the respondent with dire conse- quences.  Immediately thereafter the respondent  was  placed under  suspension. Further suspension followed and  the  re- spondent was visited with the order of premature  retirement under Rule 2046 of Indian Railway Establishment Code.     Respondent challenged the said order before the  Central Administrative  Tribunal  and the Tribunal, relying  on  its decision in Shri Gafoor Mia & Ors. v. Director, DMRL,  AISLJ 1988 2 CAT 277 held that the Divisional Railway Manager  who passed  the impugned order of premature retirement  was  not competent to make such an order, and set aside the order. This  appeal,  by special leave, is against  the  Tribunal’s order. Though under sub-clause (ii) of rule 2046(h), a class III  employee  cannot be retired prematurely  after  he  has attained the age of 55 years, (unlike officers of class I  & II)  this clause was invoked in the case of  respondent  who was  admittedly in class III service and did not attain  the age  of  55 years. Appellant relied on para 620(ii)  of  the Railway Pension 457 Manual which gives the authority power to remove from  serv-

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ice a railway servant after he completed 30 years service.     On  behalf  of  Respondent, it was  contended  that  the appellant had been shifting its stand and trying to  support the order on an extraneous ground which did not find a place in  the  order  viz. unsatisfactory service  record  of  the respondent;  and  there is no basis for it in  view  of  the promotionS secured by the respondent, the last of which  was just before the premature retirement. Dismissing the appeal, this Court,     HELD: 1.1 The order was passed under Rule 2046(h)(ii) of the  Indian  Railway Establishment  Code  without  verifying whether or not the incumbent had attained the age of  fifty- five  years. Since the respondent was indisputably in  class III service at the time the order came to be made, his  case was  governed  by  the second clause of  Rule  2046(h).  The impugned  order  recites  that the  respondent  had  already completed thirty years of qualifying service but it does not state  that  he had attained the age  of  fifty-five  years. According to the respondent he was running 54th year on that date. That obviously took his case out of the purview of the said  rule. Even if the order was intended to he under  Rule 2(2)  of the Liberalised Pension Rules, 1950, this  require- ment had to be satisfied. The immediate and proximate reason for passing the impugned order was undoubtedly the  unfortu- nate incident of 23/24th February, 1986. BUt for that  inci- dent  there  was  no occasion for the  Review  Committee  to examine the case of the respondent. If the service record of the  respondent was so bad as is now sought to be made  out, he  would not have been promoted to the post of Asstt.  Yard Master  an 22nd August, 1984 and later to the post  of  Yard Master on 31st January, 1986. The order of premature retire- ment  is punitive in nature and having been passed  in  fla- grant violation of the principles of natural justice, cannot be allowed to stand. [426G-H; 460F-G; 463A-B]     1.2 F.R. 56(j) of the Fundamental Rules is substantially the  same as Rule 2046(h)(ii) of the  Railway  Establishment Code and Rule 2(2) of the Liberalised Pension Rules, 1950 is substantially  the same as paragraph 620 of Railway  Pension Manual. Since Rule 2(2) has been struck down as violative of Article 14 of the Constitution, paragraph 620(ii) would meet the  same fate. Apart from the competence of the  Divisional Railway Manager to pass the order, the order cannot also  he supported under paragraph 620(ii). [462B-D] 458     Senior  Superintendent of Post Office & Ors.,  v.  Izhar Hussain, [1989] 2 Scale 222, relied on.     Union of India v. R. Narasimhan, [1988] Suppl. SCC  636, referred to.     2. The authorities concerned will do well to amend  Rule 2(2)  of the Liberalised Pension Rules, 1950, and  paragraph 620(ii) of the Railway Pension Manual, so as to  incorporate therein the requirement of public interest, making it  clear that premature retirement on completion of qualifying  serv- ice of thirty years can be ordered in public interest  only. [463C-D]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 2413  of 1989.     From  the Judgment and Order dated  3.10.1988/12.10.1988 of  the Central Administrative Tribunal, Hyderabad  in  O.A. No. 307 of 1987.     Anil Dev Singh, B. Parthasarthy, Hemant Sharma and  C.V.

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Subba Rao for the Appellants.     Mrs.  Kitty  Kumaramangalam,  Ms.  Vijayalaxmi,  Kailash Vasdev, P. Parmeshwaran and A.T.M. Sampath for the  Respond- ent. The Judgment of the Court was delivered by     AHMADI, J. The Central Administrative Tribunal,  Hydera- bad  by  its  order dated 3rd October, 1988  held  that  the Divisional Railway Manager (BG) SC Railway, Secunderabad was not  competent to pass the impugned order dated 25th  April, 1986  retiring  the railway servant Shaik Ali  from  service under Rule 2046(h)(ii) of Indian Railway Establishment Code, Volume  II--Pension Rules (hereinafter called  ’the  Code’). The  Union of India feeling aggrieved by the said order  has come in appeal to this Court by special leave.     The  respondent  Shaik Ali joined  the  erstwhile  Nizam State  Railway Service as Pointsman in 1953  or  thereabouts and  secured promotions from time to time in the  course  of his service, the last promotion being as Yard Master in  the revised scale of Rs.550-750 on 31st January, 1986. The facts show  that he was on duty between 14.00 and 22.00  hours  on 23rd  February, 1986 at Sanatnagar Station. As his  reliever did not turn up at 23.00 hours, he was compelled to perform 459 duty from 22.00 hours to 08.00 hours of 24th February, 1986. At  about 23.15 hours, he permitted the staff working  under him  to  have  their meals and report for duty  as  soon  as possible. As the staff members did not return to duty within a  reasonable  time  he went towards the  cabin  where  they usually took their meals. At that time the Divisional Safety Officer,  A.  Bharat Bhushan, came down from the  cabin  and inquired of the respondent’s identity. The respondent  coun- tered  by inquiring about the identity of the said  officer. It is the respondent’s say that as he did not know the  said officer  he  asked for his identity  before  disclosing  his identity.  The officer was annoyed at the behaviour  of  the respondent and threatened him with dire consequences. It  is the  respondent’s  case that immediately thereafter  he  was placed under suspension. When he went to meet the officer at the  suggestion  of  the Station  Superintendent,  the  said officer behaved rudely and refused to listen to his explana- tion.  By  a subsequent order dated 19th  March,  1986,  the respondent  was  kept under further  suspension  w.e.f.  4th March,  1986. He was not charge-sheeted-nor was any  inquiry held against him but he was visited with the order of prema- ture  retirement dated 25th April, 1986, the  relevant  part whereof reads as under:               "Whereas the Divisional Railway Manager  (BG),               Secunderabad  is of the opinion that it is  in               the public interest to do so.                         Now  therefore, in exercise  of  the               powers  conferred  by Clause (h)(ii)  of  Rule               2046  of  Indian Railway  Establishment  Code,               Volume   II--Pension  Rules,  the   Divisional               Railway  Manager  (BG),  Secunderabad   hereby               retires Shri Shaik Ali, Assistant Ward Master,               Sanatnagar  with  immediate  effect  that   he               having already completed 30 years of  qualify-               ing service. It was further directed that the respondent should be paid a sum equivalent to the amount of his pay plus allowances  for a  period  of three months in lieu of  three  months  notice calculated at the rate at which he was drawing salary  imme- diately  before  his retirement. The  respondent  challenged this order of premature retirement by preferring an applica- tion  under Section 19 of the Administrative Tribunals  Act,

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1985. The Central Administrative Tribunal after reading  the relevant  Rule 2046(h)(ii) with Para 620(ii) of the  Railway Pension  Manual came to the conclusion that  the  Divisional Railway  Manager who passed the impugned order of  premature retirement  was  not  competent to make such  an  order.  In taking this view the Tribunal relied on an earlier 460 decision  of the Full Bench in AISLJ 1988 2 CAT 277  wherein it  held  that the highest authority among_  the  appointing authorities alone was competent to impose any of the punish- ments specified in Article 311 of the Constitution. In  this view  that  the Tribunal took, the Tribunal  set  aside  the impugned  order  of premature retirement dated  25th  April, 1986.  It is against the said order that the Union of  India has preferred this appeal.     Under Rule 2046(a) of the Code ordinarily every  railway servant  would  retire on the day he attains the age  of  58 years.  However,  notwithstanding the said  provision,  Rule 2046(h)  entitles  the appointing authority  to  retire  him before  he reaches the age of superannuation. Rule  2046(h), insofar as it is relevant for our purposes, reads as under:               "2046(h).  Notwithstanding anything  contained               in this rule, the appointing authority  shall,               if  it  is of the opinion that it  is  in  the               public  interest to do so, have  the  absolute               right to retire any railway servant giving him               notice of not less than three months in  writ-               ing  or  three months’ pay and  allowances  in               lieu of such notice--               (i) if he is in Class I or Class II service or               post and had entered Government service before               attaining the age of thirty-five years,  after               he has attained the age of fifty years.               (ii)  in any other case after he has  attained               the age of fiftyfive years." Since  the respondent was indisputably in Class III  service at the time the impugned order came to be made his case  was governed by the second clause of Rule 2046(h). The  impugned order  recites  that the respondent  had  already  completed thirty  years  of qualifying service but it does  not  state that  he had attained the age of fifty-five years.  The  re- spondent’s  contention was that he could not be  prematurely retired  under clause (ii) of Rule 2046(h) since he had  not attained  the  age of fifty-five years on the  date  of  the impugned order. According to him he was running 54th year on that  date. That obviously took his case out of the  purview of the said rule.     Realising  this  difficulty an attempt was made  by  the department to fall back on paragraph 620(ii) of the  Railway Pension Manual which reads as under: 461               "620(ii).  The authority competent  to  remove               the  railway  servant from  service  may  also               require  him to retire any time after  he  has               completed  thirty  years’  qualifying  service               provided that the authority shall give in this               behalf,  a  notice in writing to  the  railway               servant, at least three months before the date               on  which  he is required to retire  or  three               month’s  pay  and allowances in lieu  of  such               notice." Reliance  was also placed on the decision of this  Court  in Union  of India v. R. Narasimhan, [1988] Suppl. SCC  636  in support of the contention that a railway servant governed by the  Railway  Pension Manual may be prematurely  retired  by

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’the authority competent to remove him from service’ on  his completing  thirty years of qualifying service.  Under  this rule,  power  is  conferred on the  authority  competent  to remove him from service to retire a railway servant who  has completed  thirty years of quarrying service  regardless  of his  age.  The  Tribunal took the view  that  although  Rule 2046(h)(ii)  would not be attracted in the absence  of  evi- dence that the incumbent had attained the age of  fifty-five years,  the  department would be entitled to  rely  on  para 620(ii) to support the order if it can show that the officer who  passed the order was competent to do s0 under the  said paragraph.  The  Tribunal was however, of the  opinion  that since  the power under paragraph 620(ii) could be  exercised only by the authority competent to remove the railway  serv- ant  from service, the Divisional Railway Manager not  being such authority was not competent to pass the impugned  order and hence the order was clearly void and inoperative in law. In taking this view, the Tribunal relied on an earlier  Full Bench  decision referred to above. We were told that as  the said Full Bench decision of the Tribunal was under  scrutiny by  this Court, this Civil Appeal should be tagged  on  with similar matters pending in this Court. However, the  learned counsel  for the respondent-employee submitted that  it  was not  necessary  to  tag on this matter  with  other  matters arising  out of the Tribunal’s Full Bench decision since  in the  instant  case she proposed to  support  the  Tribunal’s order  on  the twin grounds (i) that paragraph  620(ii)  was ultra vires Article 14 of the Constitution and (ii) that the impugned  order  was punitive in nature and could  not  have been  passed without a proper enquiry. Insofar as the  first contention is concerned she placed reliance on this  Court’s decision  in Senior Superintendent of Post Office & Ors.  v. Izhar  Hussain,  [1989] 2 Scale 222 wherein a  similar  Rule 2(2) of the Liberalised Pension Rules, 1950 was struck  down as  offending Article 14 of the Constitution. So far as  the second  limb of her submission is concerned she stated  that the respondent had been promoted to the post of Yard  Master on 31st 462 January, 1986 and hence there was no occasion to prematurely terminate  his service by the impugned order. In Izhar  Hus- sain’s case the Court was concerned with F.R. 56(j) and Rule 2(2)  of the Pension Rules. F.R. 56(j) is substantially  the same  as Rule 2046(h)(ii) of the Code and Rule 2(2) is  sub- stantially  the  same  as paragraph 620 with  which  we  are concerned. Since Rule 2(2) has been struck down as violative of  Article 14 of the Constitution, paragraph 620(ii)  would meet  the  same fate. The learned counsel  for  the  Railway Administration,  realising this difficulty tried to  support the  impugned  order  on the ground that it  was  in  public interest to retire the respondent. Counsel for the  respond- ent  contended  that  the railway  administration  has  been shifting its stand, it first passed the impugned order under Rule 2046(h)(ii) of the Code and then relied on Rule 2(2) of the  Pension Rules and when that was found to be of  no  as- sistance  switched over to paragraph 620(ii) of the  Railway Pension Manual and is now trying to support the order on  an extraneous  ground  which  does not find a  mention  in  the impugned  order. We think the criticism is well founded.  We are,  therefore, of the view that apart from the  competence of  the  Divisional Railway Manager to pass the  order,  the impugned  order cannot be supported under paragraph  620(ii) for the aforesaid reason.     We next find that the learned counsel for the responden- temployee is on terra firma so far as the second limb of her

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contention is concerned. The facts clearly reveal that after the  respondent joined the Nizam. State Railway  service  in 1953  he secured promotions in due course and was  appointed an  Assistant  Yard Master by an order  dated  22nd  August, 1984. Thereafter, he was promoted to the next higher post of Yard Master by the order of 31st January, 1986. While he was discharging  duties as Yard Master On 24th  February,  1986, the incident in question occurred which is said to be  form- ing the basis for the impunged order of 25th April, 1986. We find  from the facts that the Divisional Safety Officer  was annoyed by the fact that the respondent had demanded that he disclose his identity before he (the respondent) did so. The respondent  was immediately placed under suspension and  the said  officer  refused  to listen to  his  explanation.  The suspension  order was further extended by the order of  19th March,  1966.  This was followed by the  impugned  order  of retirement  dated  25th April, 1986. The  order  was  passed under Rule 2046(h)(ii) of the Code without verifying whether or  not  the  incumbent had attained the  age  of  fiftyfive years. Even if the order was intended to be under Rule  2(2) of the Pension Rules, this requirement had to be  satisfied. The immediate and proximate reason for passing the  impugned order  was undoubtedly the unfortunate incident  of  23/24th February, 1986. But for that 463 incident  there was no occasion for the Review Committee  to examine the case of the respondent. If the service record of the  respondent was so bad as is now sought to be made  out, he  would  not have been promoted to the post  of  Assistant Yard  Master on 22nd August, 1984 and later to the  post  of Yard Master on 31st January, 1986. We are, therefore, satis- fied  that  the impugned order of  premature  retirement  is punitive in nature and having been passed in flagrant viola- tion of the principles of natural justice cannot be  allowed to stand.     For  the above reasons (different from the one on  which the  Tribunal rounded its decision), we are of  the  opinion that  the  ultimate order passed by the  Tribunal  does  not require  interference.  We, therefore, dismiss  this  appeal with costs. Cost quantified at Rs.3,000.     Before we part we may observe that the concerned author- ities  will do well to amend Rule 2(2) of the Pension  Rules and Paragraph 620(ii) referred to above so as to incorporate therein the requirement of public interest, that is to  say, the premature retirement on completion of qualifying service of thirty years can be ordered in public interest only. G.N.                                  Appeal dismissed. 464