Full Judgment Text
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PETITIONER:
NANIK AWATRAI CHAINANI
Vs.
RESPONDENT:
UNION OF INDIA
DATE OF JUDGMENT:
20/07/1970
BENCH:
[A. N. RAY AND I. D. DUA, JJ.]
ACT:
Indian Railways Act (9 of 1890), ss. 3(7), 138 and 148(2)
and Art. 311 of the Constitution-Licensee of Railway stall-
Whether railway servant-Termination of agreement-Rights of
licensee-Whether entitled to benefit of Art. 311-
Relationship of master and servant.
HEADNOTE:
The appellant was running two stalls-a tea stall and a
refreshment stall-at a railway station. They were allotted
to him by the Railway administration under two separate
identical agreements of different dates, which provided that
the appellant was to run the stalls in accordance with the
directions of the Railway administration and among other
terms for termination of the agreements, they were also
terminable by one month’s notice on either side without
assigning any reason. As the appellant had committed
certain irregularities in running the stalls, a fine was,
imposed on him in terms of the agreements. Since the fine
was not paid he was given notice to vacate and when he
failed to do so, the agreements were terminated, and
possession was sought to be secured through the Magistrate
under s. 138 of the Indian Railways Act. The appellant
moved the Sessions Court and High Court on revision but
without success,
In appeal to this Court,
HELD : (1) In view of the fact that the terms of the
agreements which govern the parties expressly reserve to the
Railway administration extensive power of directing and
regulating the appellant’s work and also of controlling the
manner of doing the work, which is necessary for affording
’amenities to the travelling public, the appellant would be
a railway servant as defined in s. 3(7) read with s. 148(2)
of the Indian Railways Act, against whom action can be taken
under s. 138. [S. L. Puri v. Emperor, A.I.R. 1937 Lahore
547 and R. L. Mazumdar v. Alfred Ernest, A.I.R. 1959 Cal.
64, approved.] [655 D-F]
(2) By reason of being a railway servant the appellant did
not automatically become entitled to the protection afforded
to Government servants by Art. 311 of the Constitution. He
was neither a member of the civil service as contemplated by
this Article nor was he dismissed, re-moved or reduced in
rank so as to attract Art. 311(2). His rights are confined
to the terms of the written agreements and if he considered
that they had been wrongfully terminated, he could challenge
such termination in civil courts under the law. [654 E-G]
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(3) The express terms of the appellant’s agreements exclude
the heritable character of his right which is only a
contractual right of a bare licensee subject to the terms of
the agreement. No right outside these can be claimed by
him. The fact that the appellant. was allotted the stalls
in order to rehabilitate him as a displaced person from
Pakistan cannot over-ride the terms of the agreements and
absolve him of his obligations thereunder and permit him to
avoid the consequences of the alleged breaches of agreements
on his part., [655 B-D, G-H]
651
(4) Merely because a judicial Magistrate passed the order
under s. 138, Indian Railways Act, five days after the
dismissal of the appellant’s. application under Art. 226 of
the Constitution by the Gujarat High Court does not
establish malice on the part of the Magistrate. [656 A-B]
(5) The relationship of master and servant is
characterised by agreement of service, express or implied,
and whether or not a given agreement is one of service is a
question of fact depending on its terms considered as a
whole. [655 H]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.51 of
1970.
Appeal by special leave from the order dated October 23,
1969 of the Gujarat High Court in Criminal Revision No. 407
of 1969.
The appellant appeared in person.
S. P. Nayar, for the respondent.
The Judgment of the Court was delivered by
Dua, J. In this appeal by special leave the appellant who
has appeared in person challenges the order of a learned
single Judge of the Gujarat High Court (Shelat J.)
dismissing in limine criminal revision against the, order of
the Sessions Judge dated October 4, 1969 dismissing the
appellant’s revision from the order of the Judicial
Magistrate, Kalol dated August 30, 1969 granting the
application of the railway administration under S. 138 of
the Indian Railways Act and directing the P.S.I. Railways at
Sabarmati who is also the P.S.I. Railways at Kalol to secure
possession of the stalls in question from the appellant to
the railway administration or to the person appointed by the
administration in that behalf.
The appellant had, on February 9, 1964, entered into an
agreement with the railway administration by means of which
he was allotted a Tea Table (hereafter described as Tea
Stall) at Katol railway station. This agreement came into
force from may 18, 1964 and subject to the provisions for
earlier termination was to remain in force for three years.
By a similar agreement dated February 20. 1965 the appellant
was allotted a Refreshment Stall at the same railway station
for a period of three years subject to the provision for
earlier termination similar to the first agreement. In both
the agreements the appellant was described as the licensee.
Under these agreements the terms of which are identical the
appellant was to run the two stalls in accordance with the
directions of the railway administration. In addition to
other terms for earlier termination, the agreements were
also terminable under clause 52 by one month’s notice on
either side without assigning any reason. On July 11, 1965
652
the two Stalls were inspected by the Commercial Inspector
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and the Station Master and it was found that the appellant
had committed irregularities and was not running them in
accordance with the directions of the railway
administration. A fine of Rs. 100 was imposed on him in
terms of the agreement, the fine being payable within one
week under cl. 38(a). The amount of fine having not been
paid within the stipulated period a notice was given to the
appellant on September 16, 1965 for vacating ’the railway
premises by October 30,,1965. The appellant having failed
to vacate the premises, the agreements were terminated with
effect from November, 1965.
As the possession of the Tea and Refreshment Stalls was not
delivered by the appellant to the railway administration,
the latter applied to the Judicial Magistrate, Kalol under
s. 138 of the Indian Railways Act for securing possession of
the aforesaid ’premises. Before the Magistrate it was not
disputed that since the appellant had to work under the
supervision and according to the directions of the railway
administration he was a railway servant. This, according to
the learned Magistrate, was not denied by the appellant even
in his written statement; on the ,other hand it was claimed
that the position of the appellant was at par with that of
the railway servants. The appellant contested the
application principally on the ground that the contracts of
the Tea and Refreshment Stalls had been entered into with
the appellant with the object of rehabilitating him as a
displaced person from Pakistan and that, therefore, those
contracts could not be terminated. After a lengthy
discussion on the points raised the learned Magistrate
expressed his final conclusion in these words :
"The opponent is proved to be railway servant.
Also it is proved that his service has been
lawfully discharged. Mr. Thakursingh, the
learned advocate for The opponent has
contended that the applicant has terminated
the agreement without any justification and
without assigning any reason. But that is not
required to be done by either party to the
agreement. It is argued by Mr. Thakursingh
that the opponent is prepared to pay arrears
of licence fees to the tune of Rs. 4,000 or so
and he is prepared to pay the same to the
railway. But that is not a good ground to
disallow the application. Section 138 of the
Railways Act provides for summary remedy for
delivery to Railway Administration of property
detained by a railway servant. The opponent
who is proved to be a discharged railway
servant refuses to deliver the stall and the
place on which be is permitted to place a tea
table though served
653
with notice. Hence he is liable to be
summarily evicted. He has prolonged the
matter for unreasonably long period under
different excuses. His services are termi-
nated and so he has occupied the stall and the
place for table unauthorisedly. . . ."
Reliance for holding the appellant to be a railway servant
was placed on S. L. Puri v. Emperor(’).
The appellant took tile matter in revision to the court of
the Sessions Judge. There the appellant denied that he was
a railway servant and-urged as an alternative submission
that even if he was a railway servant he had not been
validly discharged. In any event, so proceeded his
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contention, no notice to deliver possession of the Stalls
having been given to him before filing the application under
s. 138, he could not be dispossessed through the court. The
Sessions Judge did not agree with these submissions and held
that termination of the contract amounted to the appellant’s
discharge and, therefore, proceedings could lawfully be
initiated against him under s. 138 -of the Indian Railways
Act for summary delivery of property, in his possession or
custody, to the railway administration. The appellant was
held to ’have become a railway servant by virtue of ss. 3
(7) and 148 (2) of the Indian Railways Act. The Sessions
Judge relied for his view both on S. L. Puri’s case(’) and
R. L. Majumdar v. Alfred Ernest(’). A revision to the High
Court, as noticed earlier, was dismissed in limine.
On appeal in this Court the principal point urged by the ap-
pellant is that by reason of being a railway servant he was
automatically entitled as a matter of law to the protection
afforded to Government servants by Art. 311 of the
Constitution. This, submission is wholly misconceived.
Article 311 is in the following terms .
"(1) No person who is a member of a civil
service of the Union or an all-India service
or a civil service of a State or holds a civil
post under the Union or a State shall be
dismissed or removed by an authority subordi-
nate to that by which he was appointed.
(2) No such person as aforesaid shall be
dismissed or removed or reduced in rank except
after an inquiry in which he has been informed
of the charges against him and given a
reasonable opportunity of being heard in
respect of those charges and where it is
proposed, after such inquiry. to impose on him
any such penalty, until he has been given a
reasonable opportunity of
(1) A.I.R. 1937 Lahore 547.
(2) A.T.R. 1959 Cal. 64.
654
making representation on the penalty proposed, but only on
the basis of the evidence adduced during suck inquiry
Provided that this clause shall not apply-
(a) where a person is dismissed or removed or reduced in
rank on the ground of conduct which has led to his
conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a
person or to reduce him in rank is satisfied that for some
reason, to be recorded by that authority in writing, it is
not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be,
is satisfied that in the interest of the security of the
State it is not expedient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a
question arises whether it is reasonably practicable to hold
such inquiry as is referred to in clause (2), the decision
thereon of the authority empowered to dismiss or remove such
person or to reduce him in rank shall be final."
A plain reading of this Article would show that the
appellant ,cannot claim its benefit. The appellant is
neither a member of the civil service as contemplated by
this Article nor has he been dismissed, removed or reduced
in rank so as to attract the protection of sub-Art. (2) of
this Article. The appellant’s rights are clearly confined
to the written agreements and if he feels aggrieved by
anything done by the railway administration which he
considers to be in breach of the terms of the agreements, he
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is at full liberty to seek redress in accordance with law in
the ordinary civil courts. In other words, if he considers
that his agreements have been wrongfully terminated then he
can challenge such termination in the civil courts and claim
whatever relief is available to him under the law.
So far as the impugned order of the High Court and the order
of the Sessions Judge is concerned we are unable to find any
legal infirmity which would justify interference by this
Court under Art. 136 of the Constitution. The relationship
of master and servant is characterised by agreement of
service, express or implied, and whether or not a given
agreement is one of service .is a question of fact depending
on its terms considered as a whole.
655
Indeed, it is notthe appellant’s case before us that he
was not a railway servant. On the contrary, the main
plank of his challenge is that as arailway servant he
is entitled to claim the protection of Article 311 of the
Constitution. This submission, as already observed by us,
is clearly based on a misunderstanding of the scope and
effect of that Article.
The appellant’s next submission that the two agreements
mentioned above clothed him with an independent vested right
to do his business of running the two stalls in question,
which right is heritable and not open to termination is
equally misconceived and unacceptable. The express terms of
the agreements exclude the heritable, character of the
appellant’s right. The only right which the appellant could
claim is a contractual right of a bare licensee and that
right is subject to the terms contained in his agreements.
He cannot claim any right outside or beyond those
agreements. The terms which govern the parties expressly
reserve to the railway administration extensive power of
directing and regulating the appellants 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 overall power by the
railway administration is not only appropriate but
necessary. The retention of this power by the railway ad-
ministration, 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 conclusion is
in accord with the view expressed in the decisions of the
Lahore and Calcutta High Courts to which reference has been
made earlier. We do not find any cogent ground for
disagreeing with that view which seems to have prevailed all
these years. May be that the appellant was allotted two
stalls under the agreements with the object of reha-
bilitating him as a displaced person. But that
consideration cannot over-ride, the terms of the agreements
and absolve him of his obligations thereunder and permit him
to avoid the consequences of the alleged breaches of
agreements on his part. In this appeal we are not concerned
with the question of violation of the terms of his
agreements by the appellant nor can we consider the legality
of the termination of his agreements. For that grievance
the appellant has to seek relief elsewhere by a different
process.
It may, in this connection, be pointed out that the
appellant had also approached the Gujarat High Court by
certiorari challenging the order of fine imposed on him,
relying on the objection that the imposition of the fine was
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in violation of Art. 311 of
656
the Constitution. This writ petition was rejected on August
25, 1969. In the special leave application, the appellant
has averred that the Judicial Magistrate passed the order
under S. 138 of the Indian Railways Act on August 30, 1969-
only five days after the order of the High Court dismissing
his writ petition.-and it is contended that the impugned
order must for that reason be held to have been inspired by
malice against the appellant. We do not find any warrant
for this assumption.
The appellant had also filed several miscellaneous
applications in this Court which were dismissed by us after
hearing him. He wanted to summon some witnesses and also
some documents for proving that the allotment of the stalls
had been made to him for the purpose of rehabilitating him
as a displaced person. We did not consider it necessary to
take evidence in this Court on that point. The written
agreements, in our view, conclude the matter. The appellant
also sought adjournment of this appeal on the ground that he
wanted to engage a senior counsel to argue his appeal, but
that counsel could only appear after the summer vacation.
We did not consider that to be a sufficiently cogent ground
for adjourning the appeal, the hearing of which was ex-
pedited on April 13, 1970. The appellant also applied for
referring this case to the Constitution Bench because,
according to him, the question raised was of great
constitutional importance. We did not find any cogent
ground for acceding to this prayer.
The appellant has, in his arguments, laid repeated stress on
the submission that the impugned action of the railway
administration would deprive him and his family of the only
source of livelihood. That consideration has little
relevance because this appeal has to be decided on the
merits on the existing record in accordance with law. That
indeed is a matter between the appellant and the railway
administration. Ms request for allotment, we have no doubt,
will be considered on its merits in accordance with the law
and the relevant departmental practice. It is not for us in
these proceedings to express any opinion on the merits of
his claim.
This appeal fails and is dismissed.
V.P.S. Appeal dismissed.
657