Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
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-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
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.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
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,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
’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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
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