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PETITIONER: UNION OF INDIA AND ANR.

       Vs.

RESPONDENT: B. N. PRASAD

DATE OF JUDGMENT09/12/1977

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA SINGH, JASWANT

CITATION:  1978 AIR  411            1978 SCR  (2) 397  1978 SCC  (2) 462

ACT: Railway  Act, 1882, s. 138-Whether envisages any  particular person  holding  a particular post be authorised to  file  a complaint--Interpretation of s. 138.

HEADNOTE: A complaint u/s 138 of the Railways Act was filed by the Dy. Chief  Commercial  Superintendent N. F. Railway to  the  Sub Divisional  Magistrate for passing an order of  eviction  of the respondent, a refreshment room contractor at  Kishangunj Station,  as  he failed to hand over  possession  after  the expiry of the agreement on 10-7-70 and in spite of notice to do so.  The magistrate accepted the application and directed the eviction of the respondent.  The respondent filed a writ petition  in the Patna High Court that s. 138 could  not  be invoked  as  the  complaint was not made  by  an  authorised person  i.e. the Chief Commercial Superintendent.  The  High Court  accepted  the  plea, allowed the  writ  Petition  and quashed the order of eviction. Allowing the appeal by special leave the Court HELD  :  (1) S. 138 of the Railways Act  must  be  construed liberally,  broadly  and meaningfully so as to  advance  the object  sought  to be achieved by the Railways Act,  as  the provision is in public interest meant to avoid inconvenience and  expense  for  the travelling public  and  gear  up  the efficiency of the Railway administration. [399 A] (2)Section  138 has widest amplitude and takes within  its fold  not only a. railway servant but even a contractor  who is  engaged for performing services to the railway  and  the termination  of his contract by the Railway amounts  to  his discharge. [398 H, 399 A] Nanik Awatrai Chainani v. Union of India, [1971] 1 SCR  650, followed. S.   L.  Kapoor  v. Emperor, A.I.R. 1937 Lahore 547,  R.  L. Mazumdar v. Alfred Ernest,A.I.R. 1959 Cal. 64; referred to. (3)  S. 138 only requires that an application should be made by or on behalf of the railway administration.  It does  not require that any particular person holding a particular post should be authorised to file a complaint.[399 A-B]

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JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 93  of 1972. Appeal  by Special Leave from the Judgement and Order  dated 29-11-197i of the Patna High Court in Writ Jurisdiction Case No. 25/71. U.   R. Lalit and Girish Chandra for the Appellant. D.   P.  Mukherjee, A. K. Ganguli and Mrs.  E.  Udayarathnam for the Respondent. The Judgment of the Court was delivered by FAZAL  ALI,  J.  This appeal by special  leave  is  directed against  the judgment of the Patna High Court  dated  29-11- 1971  by  which the High Court has quashed an order  of  the magistrate, directing the respondent to be evicted from  the railway  premises.   The  appeal  arises  in  the  following circumstances 398 The respondent was a contractor employed by the railway  for supplying  food  in  the  refreshment  room  at   Kishanganj station.   The last agreement signed with the contractor  is dated 10-7-1967, which expired on 10-7-1970.  Thereafter,  a notice  was  given  by the  railway  administration  to  the respondent  for vacating the, premises, and as he failed  to do  so, a complaint under s. 138 of the Indian Railways  Act was filed by the Deputy Chief Commercial Superintendent N.F. Railway  to  the Sub-divisional magistrate  for  passing  an order  in  terms  of  s.  138  of  the  Railways  Act.   The magistrate   accepted  the  application  and  directed   the eviction of the respondent. The  respondent thereupon filed a writ petition in the  High Court, mainly on the ground that s. 138 could not be invoked as  the complaint was not made by an authorized person.   It was  alleged in the petition before the High Court that  the complaint    made   by   the   Deputy    Chief    Commercial Superintendent, was not maintainable, as it should have been filed  by the Chief Commercial Superintendent, according  to the  provisions of the Railways Act.  This plea  appears  to have found favour with the High Court which allowed the writ petition and quashed the order of eviction. Appearing  in  support  of  the  appeal,  Mr.  U.  R.  Lalit submitted  a short point before us.  He argued that  s.  138 does not require that the complainant should be specifically authorized  by  the Railways in order to  make  a  complaint maintainable.   All that section 138  requires is  that  the application  should  be  filed  on  behalf  of  the  railway administration.   There can be no doubt that  the  appellant was  a  high  officer of  the  railway  administration  and, therefore, in a position to file an application for eviction on behalf of the railway administration.  Section 138  runs thus :-               "  if  a  railway  servant  is  discharged  or               suspended  from his office, or dies,  absconds               or  absents  himself, and he or  his  wife  or               widow,  or any of his family  representatives,               refuses  or neglects, after notice in  writing               for that purpose to deliver up to the  railway               administration,  or to a person  appointed  by               the railway administration in this behalf, any               station,   dwelling-house,  office  or   other               building with its appurtenances, or any books,               papers  or  other matters,  belonging  to  the               railway  administration and in the  possession               or  custody  of such railway  servant  at  the               occurrence of any such even as aforesaid,  any               Presidency  Magistrate  or Magistrate  of  the

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             first class may, on application made by or  on               behalf  of the railway  administration,  order               any police-officer, with proper assistance, to               enter  upon.  the building  and,  remove  ;Any               person  found  therein  and  take   possession               thereof, or to take possession. of the  books,               papers,  or other matters, and to deliver  the               same to the railway administration or a person               appointed  by  the railway  administration  in               that behalf." In  our  opinion, a close perusal of  this  section  clearly reveals  that the provision has widest amplitude  and  takes within  its  fold  not only a railway  servant  but  even  a contractor who is engaged for performing 399 services to the railway, and the termination of his contract by the Railway amounts to his discharge, as mentioned in  s. 138.  As the provision is in public interest meant to  avoid inconvenience  and expense to the traveling public and  gear up the efficiency of the railway administration, it must  be construed  liberally,  broadly and meaningfully,  so  as  to advance the object sought to be achieved by the Railway Act. Furthermore,  the section only requires that an  application should   be   made   by  or  on  behalf   of   the   railway administration.   The  section  does not  require  that  any particular  person  holding  a particular  post,  should  be authorized  to file a complaints The- matter was  considered by  this  Court  in  Nanik  Awatrai  Chainani  v.  Union  of India(1),  where  this Court pointed out, while  relying  on decisions  of the Lahore and Calcutta High Courts  that  the appellant in the case was a railway servant, and an order of eviction could be passed against him.  This court relied  on the  definition  of  the railway  servant  as  contained  in section  8(7)  read with s. 148(2) of the  Act.   The  Court approved  of the decision in S. L. Kapoor v. Emperor(2)  and R. L. Mazumdar v. Alfred Ernest(3), which had taken the view that,  even  a contractor is a railway  servant  within  the meaning of s. 138.  In this connection, this Court observed               "The terms which govern the parties  expressly               reserve   to   the   railway    administration               extensive  power of directing  and  regulating               the appellant’s work and also to an extent, of               controlling  the  manner of  doing  the  work.               Keeping  in  view the purpose  and  object  of               these  agreements, namely, that  of  affording               necessary amenities to the travelling  public,               retention  of  this  over-all  power  by   the               railway administration is not only appropriate               but necessary.  The retention of this power by               the  railway  administration,  in  our   view,               constitutes  relevant material for  sustaining               the  conclusion of the courts below  that  the               appellant is a railway servant, as defined  in               s.  3(7) read with s. 148(2), Indian  Railways               Act, against whom action can be taken under s.               138 of the said Act." This court went to the extent of holding that such a servant in  view  of  the precarious contract  under  which  he  had entered in the Railway service was not governed by art. 311. In  the  case  of  S. L.  Kapoor  v.  Emperor  (supra),  the following observations were made :-               "The termination of his service by the railway               under  cl. 21 of the agreement amounts to  his               discharge within the meaning of s. 138 of  the               Act,   and   he   is   therefore   liable   to

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             dispossession  of the. premises which  he  was               occupying as a servant of the railway." As  already indicated, this case was approved by this  Court in  the  decision  mentioned above.  In  this  view  of  the matter, it is manifest (1)  [1971] (1) S.C.R. 650. (2)  A.I.R. 1937 Lahore 547. (3)  A.T.R. 1959 Cal. 64. 400 that  the High Court has taken an erroneous view of  law  in throwing  out  the  complaint  filed  by  the  Deputy  Chief Commercial  Superintendent  an the ground that  he  was  not authorized  to  file  the  complaint.   Even  on  the  other question  whether  or  not the,  respondent  was  a  railway servant, as pointed out, the matter is no longer res integra and  is concluded by the decision of this Court referred  to above.   For  these  reasons, the  appeal  is  allowed,  the judgment of the High Court is set aside and that of the sub- divisional magistrate is restored. S.R. Appeal allowed. 401