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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.

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   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

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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