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Attorney(S)
  • P.K.Bose
  • Birendra Prasad Sinha
  • B.C.Ghosh
Judges
  • Das, C.J
  • Kanhaiya Singh, J.
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citation codes
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Attorney(S)
  • P.K.Bose
  • Birendra Prasad Sinha
  • B.C.Ghosh
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  • Das, C.J
  • Kanhaiya Singh, J.
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Smart Summary

Concise Analytical Summary of the Opinion (Das, C.J., with Kanhaiya Singh, J. concurring)

Factual and Procedural Background

The petitioner, Sri Bhagwan Das, was employed initially by the East Indian Railway Company (13-8-1923 to 31-12-1924). After the Railway Company was taken over by the Government of India, by an agreement dated 29-10-1925 the petitioner accepted employment as a clerk in State Railway Service from 1-1-1925 on monthly-terminable terms. He served as Head Bill Clerk in the Engineering Accounts Department at Dinapur.

The Railway Department alleged that the petitioner was absent without sufficient cause on 19-11-1947 and again on 25-12-1947. Two charges were framed and the petitioner submitted an explanation for 19-11-1947 but, according to the Railway, not for 25-12-1947 and continued to remain absent. A removal/termination notice dated 12-6-1948 (stating services were no longer required and giving one month's notice from 1-7-1948, terminating on the afternoon of 31-7-1948) was served on the petitioner, who acknowledged receipt and on 30-7-1948 wrote requesting settlement of dues and stating he had handed over papers on 25-12-1947.

The petitioner later (19-6-1950) wrote to the Divisional Superintendent alleging improper discharge by an authority lacking competence and seeking reinstatement or alternative compensation; he received no reply. On 2-4-1954 the petitioner filed the present application for a writ to quash the removal and seek reinstatement. The railway authorities opposed, contending the termination was in accordance with the contractual service agreement (one month's notice) and not a disciplinary removal, that the petitioner effectively accepted the notice, and that the order of removal had become final before the Constitution came into force.

Procedural outcome: The application for a writ under Article 226 was dismissed by the Court with costs (hearing fee Rs.100/-).

Legal Issues Presented

  1. Whether the petitioner is entitled to the protection of sub-section (2) of Section 240 of the Government of India Act, 1935.
  2. Whether the petitioner is entitled to the benefit of the regulations regarding disciplinary action against non-gazetted staff contained in S. II of Chapter XVII of the Indian Railway Establishment Code (Volume I).
  3. Whether the termination of the petitioner's services was pursuant to the service agreement (a contractual termination) or whether it was in reality a penalty (disciplinary removal) disguised as contractual termination.
  4. Whether this is a fit case for the Court to exercise its discretionary jurisdiction under Article 226 of the Constitution of India and issue a writ in favour of the petitioner.

Arguments of the Parties

Petitioner's Arguments

  • The petitioner contended that he was removed by an authority which had no power to remove him (arguing the Divisional Superintendent acted without competence because appointment power rested with the General Manager).
  • The petitioner argued he was entitled to the protection of sub-s. (2) of Section 240 of the Government of India Act, 1935.
  • The petitioner further argued that the termination was by way of penalty for absence without sufficient cause and therefore the disciplinary procedure/regulations for non-gazetted staff should have been followed; failure to follow them rendered the removal illegal and without jurisdiction.

Railway Authorities' Arguments

  • The Railway authorities submitted that the petitioner was a "monthly servant" under a service agreement terminable on one month's notice (or payment in lieu), and that the termination notice invoked those contractual terms rather than disciplinary action.
  • They argued that therefore sub-s. (2) of Section 240 (which protects against dismissal by a subordinate authority) and the disciplinary regulations for non-gazetted staff did not apply.
  • The Railways also contended the petitioner, by his 30-7-1948 letter requesting settlement of dues, accepted the removal notice and did not pursue any timely appeal; thus the order became final before the Constitution came into force and Article 226 should not be retrospectively applied.
  • Alternatively, even if Article 226 could apply, the Railways argued the Court should exercise its discretion not to issue a writ where the petitioner delayed for several years (until 1954) and had apparently accepted his dues and reached superannuation.
  • The Railways also stated (in their counter-affidavit) that a notice under Section 80 CPC had been served earlier, but no suit followed; the petitioner denies serving such notice.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Satish Chandra v. Union of India, AIR 1953 SC 250 Explains the distinction between "dismissal" and "removal" (and reduction in rank) in the service context; subsection (2) of Section 240 of the Government of India Act, 1935 afforded safeguard only against dismissal/reduction, not contractual terminations; rules which define penalties show that discharge in accordance with contract does not amount to removal or dismissal within the disciplinary meaning. The Court relied on the observations in Satish Chandra to hold that sub-s. (2) of Section 240 did not apply where services are terminated in accordance with the terms of a service agreement; contractual termination is not the same as disciplinary "dismissal" for which statutory safeguards apply.
Calcutta High Court — Civil Rule No. 3553 of 1953 (Single Judge, 11-5-1954) Holds that whether termination is by way of punishment is a question of fact depending on intention and circumstances; the termination order itself is the primary document to determine whether it was punitive; mere departmental enquiry does not automatically convert a contractual termination into punishment. The Court adopted and agreed with these observations, emphasizing that the termination order in the present case did not show the petitioner had been found guilty nor did it indicate punishment; thus the termination was not shown to be by way of penalty.

Court's Reasoning and Analysis

The Court proceeded in a structured manner, taking up the four identified questions in order:

  1. Application of sub-section (2) of Section 240, Government of India Act, 1935:

    The Court examined the statutory language and the established judicial meaning of "dismissal" and "removal." Relying on the explanatory observations cited from Satish Chandra (AIR 1953 SC 250) and the Civil Services Rules, the Court noted that the safeguards under s.240(2) were limited to "dismissal" and "reduction in rank" as understood in disciplinary rules, and did not extend to termination of service in accordance with a service contract. The Court concluded that termination under a contractual clause (one month's notice) did not attract s.240(2) protection. Therefore the petitioner's claim under s.240(2) failed.

  2. Applicability of disciplinary regulations in the Indian Railway Establishment Code (S. II, Chapter XVII):

    The Court observed that the Railway Establishment Code distinguishes dismissal (which disqualifies future employment) from removal (which need not). Rules 1702–1705 set out penalties and the authorities competent to impose them; Rule 1705(c) provides that no railway servant shall be removed or dismissed by an authority lower than that by which he was substantively appointed. The petitioner argued the Divisional Superintendent lacked power to remove because appointment power lay with the General Manager.

    However, the Court held that the disciplinary rules in S. II apply only when a penalty under R.1702 is being imposed; they do not apply where services are terminated by operation of the service agreement. If the termination is contractual, the disciplinary rules are irrelevant.

  3. Whether termination was contractual or a disguised disciplinary penalty:

    The Court examined the removal notice and the surrounding facts. The notice plainly stated services were "no longer required by the Administration" and gave one month's notice — language consistent with contractual termination. The counter-affidavit of the Railways conceded charges had been framed and that the petitioner remained absent, but also stated the notice did not attribute stigma or misconduct.

    The Court followed the reasoning of the Calcutta High Court decision (Civil Rule No. 3553/1953) that whether termination is punitive is a question of fact, to be answered primarily by the termination order itself and the intention of the authority. As the order did not show the petitioner was found guilty or that punishment was intended, and because the service agreement expressly permitted termination on one month's notice, the Court found the termination to be in pursuance of contractual terms and not a disciplinary penalty.

  4. Whether Article 226 relief should be granted:

    The Court noted important jurisdictional and discretionary considerations. The order of removal was passed in 1948, before the Constitution came into force (26-1-1950). The petitioner waited until 1954 to apply under Article 226. The Court accepted that Article 226 is prospective and that its exercise is discretionary (except for enforcement of fundamental rights). The Court emphasized delay and conduct: the petitioner wrote on 30-7-1948 accepting the notice and asking for dues, apparently accepted payments, did not take timely appeal, and only sought relief years later after reaching superannuation (allegedly in September 1953).

    The Court concluded that issuing a writ under Article 226 after such delay and conduct would be an abuse of the Court's discretion. Even assuming some procedural irregularity in authority for issuing the notice might give a civil cause of action for damages (e.g., pay in lieu of notice), that would not justify mandating reinstatement; and reinstatement was impracticable because the petitioner had reached retirement age. The Court therefore refused to exercise discretion to grant the writ.

Holding and Implications

Holding: The application for a writ under Article 226 was dismissed. The Court concluded that:

  • The petitioner was not entitled to protection under sub-section (2) of Section 240 of the Government of India Act, 1935, because his services were terminated pursuant to a contractual term (one month's notice) and not by disciplinary "dismissal" within the meaning of that provision.
  • The disciplinary regulations in S. II of Chapter XVII of the Indian Railway Establishment Code did not apply because the termination was contractual and not the imposition of a disciplinary penalty.
  • The termination notice indicated contractual termination (services "no longer required") rather than punishment; consequently the petitioner was not entitled to reinstatement under Article 226.
  • The Court exercised its discretion under Article 226 to refuse relief in view of the petitioner's conduct (apparent acceptance of the notice and dues), delay in bringing the application, and the practical impossibility of reinstatement after the petitioner had reached retirement age.

Direct consequences for the parties: The application is dismissed with costs; hearing fee Rs.100/- was imposed. The petitioner is not reinstated and the removal/termination stands as effected in 1948.

Broader implications: The Court did not purport to lay down a new precedent; it applied existing distinctions between contractual terminations and disciplinary dismissals (as explained in Satish Chandra and the cited Calcutta High Court decision) and exercised discretion under Article 226 to decline relief where the order was contractual in nature and the petitioner delayed and accepted dues.

Disposition recorded in the judgment: "Application Dismissed."

Show full summary ...

    Bhagwandas v. Senior Superintendent, Way And Works, Eastern Rly. Opposite Party.

    Das, C.J:— This is an application for the issue of a writ, praying that the order of removal passed against the petitioner, with effect from the afternoon of 31-7-1948, be quashed and that the petitioner be reinstated to the post which he held before his removal from service.

    2. The relevant facte as alleged by the petitioner are the following. The petitioner, Sri Bhagwan Das, worked as a clerk under the then East Indian Railway Company from 13-8-1923, to 31-12-1924. The East Indian Railway Company was taken over by the Government of India sometime in 1925, and by an agreement dated 29-10-1925, the petitioner accepted the offer of the Railway Board to serve the Government of India as a clerk from 1-1-1925. In pursuance of the said agreement, the petitioner continued in State Railway Service and worked as Head Bill Clerk in the Engineering Accounts Department in the office of the Divisional Superintendent, Dinapur. It was alleged by the Railway Department concerned that the petitioner was absent from duty without sufficient cause on 19-11-1947, and again on the 25-12-1947. Two charges were framed against the petitioner and he was asked to explain. It is stated that the petitioner submitted an explanation with regard to his absence on 19-11-1947.

    3. On behalf of the Railway Department it is alleged that the petitioner submitted no explanation with regard to his absence on 25-12-1947; on the contrary, the petitioner continued to remain absent from duty. Then, on 12-3-19-18, the petitioner was served with the following removal notice:

    “East Indian Railway

    Dated 9/12-6-1948

    Removal Notice

    No. Ec/48.

    Babu Bhagwan Dass, Clerk, Optg: Accounts, Dinapore, C/Hd Clerk, Optg. Accounts, 1 Dinapore.

    He will please make over charge of all Railway property and report to this office.

    As your services are no longer required by the Administration you are hereby removed from service by my orders in terms of your agreement and conditions of service, and you are hereby given one month's notice with effect from 1-7-48 as provided for therein. Your services will accordingly terminate on the afternoon of 31-7-48.

    You are to hand over to Head Clerk, Optg. Accounts Dinapore, all Railway property, if any, which is in your possession and let me know when and how you wish to be settled up and receive payment of your dues.

    You are, on expiry of your notice, to vacate railway quarters, if any, at once; otherwise you are liable to pay rent at the rates applicable to outsiders.

    You are to acknowledge this.

    Station DinaporeSd. B.S.D.B

    Dated 9/12-6-1949

    Designation, Senior Superintendent, Way and Works, Dinapore.”

    4. The petitioner admittedly received the notice, and on 30-7-1948, he sent a reply to the Divisional Superintendent Dinapur, in which the petitioner stated as follows:

    “With reference to your above (referring to the notice dated 12-6-1948), I beg to inform you that I am not in a position to go to office as asked for in your above notice. Moreover, I have already made over all papers etc. which were in my custody as Head Bill Clerk to my successor Babu S.P Choudhury on 25-12-47.

    Under the circumstances will you please arrange to pay all my dues, i.e Provident Fund etc. as soon as possible.”

    5. Except writing the aforesaid letter, the petitioner does not appear to have done anything else till 19-6-1950, when he addressed another letter to the Divisional Superintendent Dinapur, which letter is marked Annexure E to the substantive application of the petitioner. In this letter the petitioner alleged that he was discharged by the Divisional Superintendent. Dinapur, who had no authority to discharge him, inasmuch as the petitioner was appointed by the General Manager, who was the only competent authority to discharge or remove the petitioner from service.

    6. In paragraph 4 of the letter the petitioner stated that he would hold the Divisional Superintendent, Dinapur responsible for the mental and physical pain caused to the petitioner by the order of removal and asked for compensation, either by way of reinstatement to his original post with full payment of arrears of salary or payment of the full amount of gross salary till the date of retirement. The petitioner also asked for certain payments which are referred to in paragraph 5 of the petition marked Annexure E to the application of the petitioner. The petitioner states that no reply was received by him to the aforesaid letter.

    7. In paragraph 6 of the petition, the petitioner stated that he understood that his letter was sent by the Divisional Superintendent, Dinapur to the Deputy General Manager, Calcutta, to which the Deputy General Manager replied that no action need be taken on the petitioner's claim. As the petitioner received no reply to his letter dated 19-6-1950, he made the present application for the issue of a writ on 2-4-1954, that is, a little less; than six years after the notice terminating his services with effect from the afternoon of 31-7-1948.

    8. The contentions of the petitioner are, (a) that he has been removed from service by an authority which had no power to remove him, (5) that he was entitled to the protection of sub-s. (2) of Section 240 of the Government of India Act, 1935, and (c) that as the petitioner was removed from service by way of penalty for absence without sufficient cause, the procedure laic down in the regulations regarding disciplinary action against non-gazetted staff should have been followed; and as the procedure laid down in the said regulations was not followed, the removal of the petitioner from service was illegal and without jurisdiction and should be quashed.

    9. On behalf of the Railway authorities, it has been submitted that under the service agreement which the petitioner accepted, the petitioner was employed as a monthly servant and subject to the condition that his service was terminable at any time after one month's notice on either side, or the payment by Government of a sum equal to one month's pay in lieu of notice, or on attaining the age of 55 years. The case of the Railway authorities is that the notice of removal which was served on the petitioner was given in pursuance of the terms of the service agreement and not by way of penalty for unauthorised absence; therefore, the petitioner was neither entitled to the protection of sub-s. (2) of Section 240 of the Government of India Act, 1935, nor of the regulations regarding disciplinary action against non-gazetted staff.

    10. According to the Railway authorities, the matter rests wholly on contract and the services of the petitioner were terminated in terms of the contract between the petitioner and the Railway authorities. It is further submitted by the Railway authorities that the petitioner by his letter dated 30-7-1948 had accepted the order of removal and he wrote his letter dated 19-5-1950 long after the expiry of the period of appeal, in case the petitioner wished to prefer an appeal against his order of removal.

    11. The Railway authorities contend that in these circumstances the order of removal had become final before the Constitution of India came into force on 26-1-1950 and it was not open to the petitioner to ask for the issue of a writ under Article 226 of the Constitution of India in respect of an order which had become final before Article 226 came into force. Alternatively, the Railway authorities have contended that the discretionary jurisdiction of this Court under Article 226 of the Constitution of India should not be exercised in the present case, when the order of removal was passed in 1948 and the petitioner filed his application some six years later.

    12. On behalf of the Railway authorities, it was also alleged that the petitioner had served a notice under Section 80 of the CPC threatening to bring a suit against the Railway authorities, but no such suit was actually filed, and after waiting for six years the petitioner made his application for the issue of a writ. I may state here that in a reply to the counter affidavit of the Railway authorities the petitioner has denied that any notice under S. 80 Civil P.O was sent on behalf of the petitioner to the Railway authorities.

    13. Four main questions arise for consideration in this case and I propose to take them up in the order stated below:

    (1) Whether the petitioner is entitled to the protection of sub-section (2) of Section 240 of the Government of India Act, 1935;

    (2) Whether the petitioner is entitled to the benefit of the regulation regarding disciplinary action against, non-gazetted staff, which regulations are contained in S. II of Chapter XVTI of the Indian Railway Establishment Code. Volume I;

    (3) Whether the services of the petitioner have been terminated in pursuance of his service-agreement and such termination rests wholly in contract, or whether the termination of the services of the petitioner is really by way of the imposition of a penalty for unauthorised absence and the notice terminating the services of the petitioner is merely cloak for disguising the real intention; and

    (4) Whether this is a fit case in which writ should issue under Article 226 of the Constitution.

    14. Admittedly, the order of removal or termination of the services of the petitioner was passed at a time when the Constitution of India had not come into force. It is also not disputed that the Constitution of India, so far as the provisions relevant for this case are concerned, is prospective and not retrospective. Therefore, no question arises of the application of Article 311 of the Constitution of India in the present case. As to the protection of sub-s. (2), Section 240 of the Government of India Act, 1935, that sub-section is in these terms:

    “No such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed.”

    15. The expression “removal from service” does not occur in sub-section (2) of Section 240 of the Government of India Act. It is now well settled that the expressions “dismissal”, “reduction in rank” and “removals” have been used in the relevant provisions of the Government of India Act, 1935, and the Constitution of India in a somewhere technical sense, in the sense in which these expressions were used in certain rules elating to discipline, control, etc. of the civil services.

    16. The question has been dealt with by the Supreme Court of India in — ‘Satish Chandra v. Union of India.’ AIR 1953 SC 250 (A) and other subsequent decisions. It is. I think, sufficient if I quote certain observations made of his Lordship Bose. J. in — AIR 1953 SC 250 (A). His Lordship said:

    “The services in India, have long been afforded certain statutory guarantees and safeguards against arbitrary dismissal or reduction in rank. Under Section 240 of the Government of India Act, 1335, the safeguards were limited to those two cases. Under the present Constitution, a third was added, namely, removal from service. In order to understand the difference between “dismissal” and “removal” from service, it will be necessary in turn to the Rules which governed, and with modifications, still govern, the “services” in India because of Article 313 of the Constitution.

    17. Part 12 of the Civil Services (Classification Control and Appeal) Rules relating to Conduct, and Discipline includes R. 49 which sets out the various penalties to which a member of the services can be subjected for indiscipline and misconduct. They are seven in number and include censure, suspension, reduction in rank, removal from service and dismissal from service. The Act of 1935 selected only two of these possible penalties as serious enough to merit statutory safeguards, namely, reduction in rank and dismissal from service.

    18. The Constitution has added a third to the list. The distinction which is drawn between the two is explained in R. 49. There is first ‘remove from service “which does not disqualify from future employment” and there is next dismissal from service ‘which ordinarily disqualifies from future employment.”

    19. Then follows an explanation:

    20. The discharge:

    (c) Of a person engaged under contract, in accordance with the terms of his contract, ‘does not amount to removal or dismissal within the meaning of this rule.’

    21. These terms are used in the same sense in Article 311. It follows that the Article has no application here and so no question of discrimination arises, for the ‘law’ whose protection the petitioner seeks has no application to him.”

    22. Prom the aforesaid observations it is clear that sub-section (2) of Section 240 of the the Government of India Act, 1935, has no application to removal from the service or termination of the services of an employee in pursuance of the terms of his I contract. I shall presently show that the services of the petitioner were terminated not by way of penalty as a result of any disciplinary action but in pursuance of the terms of his contract of service.

    23. It is indeed true that the termination of the services of the petitioner has the effect of removal but it is worthy of note that like R. 49 of the Civil Services (Classification, Control and Appeal) Rules, the rules in the Railway Establishment Code also make a distinction between dismissal and removal. The distinction is given in R. 1703 in Chapter XVII at page 1703 of the Indian Railway Establishment Code, Volume I. The rule says:

    “Dismissal from service shall disqualify the railway servant from future employment but removal from service need not be considered an absolute disqualification.”

    24. Sub-section (2) of Section 240 of the Government of India Act, 1935, provides a safeguard in favour of a member of the civil service in India, or the holder of a civil post under the Crown in India, against dismissal within the meaning of the aforesaid rule. Sub-section (2) of Section 240 of the Government of India Act, 1935, does not contain any safeguard against removal from service within the meaning of the aforesaid rule, far less against removal from service as a result of the termination of the services of a Government employee in accordance with the terms of his service. The petitioner was not, therefore, entitled to any protection under sub-section (2) of Section 240 of the Government of India Act, 1935. The first point urged on behalf of the petitioner must be overruled.

    25. With regard to the regulations regarding disciplinary action against non-gazetted staff, including removal from service, dismissal and rights of appeal, we have been referred to the rules printed in S. II of Chapter XVII of the Indian Railway Establishment Code, Volume I. Rule 1702 of the said rule gives a list of Penalties which for good and sufficient reasons may be imposed upon railway servants. Rule 1703, which I have already quoted, draws a distinction between dismissal and removal. Rule 1704 gives a list of the authorities competent to impose the aforesaid penalties.

    26. It is specifically stated that R. 1704 is subject to the provisions of R. 1705. Rule 1705, so far as it is relevant for our purpose, says in cl. (c) that no railway servant shall be removed or dismissed by an authority lower than that by which he was appointed to the post held by him substantively. Mr. B.C Ghose, appearing on behalf of the petitioner, has laid great stress on cl. (c) of R. 1705. He has pointed out that under a letter of the Railway Board dated 15-5-1948 it was held that in respect of employees of the former Company managed Railways, the Officer of employment (sic) under the State Railways was made by the General Managers concerned and not by any Subordinate authority; therefore an employee so appointed could be discharged only under orders issued by the General Manager himself and not by any lower authority.

    27. This letter of the Railway Board has been given as an annexure, namely, Annexure A of the supplementary affidavit filed on behalf of the petitioner. Learned Counsel for the Railway authorities has not challenged before us the fact that such a letter was issued by the Railway Board. Mr. Ghose's contention, therefore, is that under R. 1705, cl. (c), no authority other than the General Manager could have dismissed or removed the petitioner from service.

    28. Mr. Ghose argues that the schedule of powers under which the General Manager has delegated to certain senior-scale officers power to make substantive appointments in non-gazetted posts and to punish non-gazetted officers has no application to the facts of the present case; because under the aforesaid letter of the Railway Board dated 15-5-1948, the General Manager alone was competent to dismiss or remove the petitioner from service.

    29. The argument of Mr. Ghose, I must concede, has a good deal of plausibility; but the argument proceeds on the assumption that the rules in S. II of Chapter XVII of the Indian Railway Establishment Code apply to the present case. In my opinion, that assumption itself is incorrect. The rules in S. II of Chapter XVII of the Indian Railway Establishment Code apply when any of the penalties mentioned in R. 1702 is being imposed on a railway servant.

    30. Where, however, the services of a railway servant are being terminated not by way of penalty but in pursuance of the terms of the agreement of service, no question of the application of the rules in S. II of Chapter XVII of the Indian Railway Establishment Code arises. If, therefore, we hold that the petitioner in the present case was removed from service as a result of the termination of his services in accordance with the terms of his service agreement, then it is unnecessary to consider the rules in S. II of Chapter XVII of the Indian Railway Establishment Code.

    31. Mr. Ghose has contended before us that though the removal notice states that the services of the petitioner were no longer required by the administration, yet the real reason for the termination of the services of the petitioner was for the purpose of imposing a penalty on him for unauthorised absence from duty on 19-11-1947 and 25-12-1947. Mr. Ghose has drawn our attention particularly to parapraph 5 of the counter-affidavit filed on behalf, of the Railway authorities. In paragraph 5 it was stated:

    “The petitioner received the charge-sheet (referring to the charge-sheet regarding absence from duty on 25-12-1947) but did not care to submit any explanation to the same and continued to remain absent as before. As it was of no use keeping the petitioner in the Railway service any further on account of his continued absence from duty, the Railway Administration had no alterative but to dispense with the petitioner's services, and thereafter the petitioner's services were terminated by the notice marked Annexure B to the petition”

    32. Mr. Ghose has also drawn our attention to R. 1708 of the Railway Establishment Code, which states inter alia that a railway servant shall be liable to be removed from the service for absenting himself or overstaying sanctioned leave, without sufficient cause. The counter-affidavit filed on behalf of the Railway authorities must be read as a whole. In paragraph 4 of the said affidavit it was stated:

    “The petitioner was not illegally removed from service as alleged by him, but his services were terminated in accordance with his service agreement and conditions of service, which would be evidenced from the notice of termination itself. No stigma or any infamy or misconduct was attributed to the petitioner in the said notice, as would appear from the notice itself.”

    33. When a Government employee holds his service on condition that his service may be terminated at any time with one month's notice on either side, the mere fact that certain charges have been made against the employee does not by itself show that the termination of the services of the employee is by way of penalty. Mr. Bose appearing on behalf of the Railway authorities has placed before us a certified copy of a decision of the Calcutta High Court in Civil Rule No. 3553 of 1853 decided by a Single Judge of the Calcutta High Court on 11-5-1954 (Cal) (B).

    34. A question similar to the one raised before us was considered in that case. His Lordship of the Calcutta High Court made the following observations with regard to the question whether the termination of services is by way of punishment or not:

    “Whether the termination of service is by way of punishment or not must be a question of fact & must depend on the circumstances and intention of the parties. I am, however, unable to agree with Mr. Chatter jee that whenever there has been a apart mental enquiry, it must follow that the removal was by way of punishment. As the conditions of service stand, the Railway authorities in terminating the services of a non-pensionable non-gazetted servant need not advance any reason nor take the trouble of holding a departmental enquiry.

    Merely one month's notice would be enough. But a public body like the Railway cannot act capriciously and therefore if in order to determine as to whether any action should be taken, holds an enquiry giving the employee the fairest opportunity of explaining his conduct, I do not think that it is necessarily waiving its right of proceeding in accordance with the terms of service as laid down in the Railway Establishment Code. The real object of differentiating between a punishment and a mere removal according to terms of service lies in the effect of the order.

    In the case of punishment the employee's reputation is lost, and in the case of a dismissal, there is a bar to obtaining fresh service under the Government. If the service of an employee is simply terminated in accordance with his term of service, there is neither any infamy nor a bar to re-appointment. In my opinion, the most important document to see as to whether the Railway has proceeded by way of punishment or otherwise, is the order terminating the service.

    In the present case the order does not show that the railway was proceeding to act by way of punishment. It is not stated in the order that the petitioners have been found guilty and they were accordingly removed by way of punishment”.

    35. If I may say so with great respect. I agree with the aforesaid observations of his Lordship of the Calcutta High Court. In the case under our consideration also, the order terminating the services of the petitioner does not show that he has been found guilty of any charge; on the contrary, the order clearly and simply states that the services of the petitioner, are no longer required by the administration and, therefore, he is being given one month's notice.

    36. Having given my best consideration to the facts and circumstances of the case. I am unable to agree with Mr. Ghose that the real purpose was to punish the petitioner by imposing a penalty on him. It seems to me that the Railway autnorities found the petitioner to be unsuitable for one reason or another, and accordingly they decided to terminate the services of the petitioner in accordance with the terms of his service agreement.

    37. In this view of the matter, the regulations regarding disciplinary action against non-gazatted staff contained in the Indian Railway Establishment Code have no application in the present case. The matter rests should in contract and no question of the violation of the said regulations arises.

    38. I now turn to the service agreement of the petitioner which is Annexure A of the substantive application of the petitioner. It is sufficient to quote the first paragraph of the service agreement. The first paragraph states:

    “I, Bhagwan Bass, aged on this date 27 years 2 months, etc., do hereby agree to serve the Government of India as a clerk or in any other capacity in which I may, hereafter, from time to time, be appointed and in such place on any State Railway as the Government of India may direct, such service being that of a monthly servant only & being terminable at any time after one month's notice on either side or the payment by Government of a sum equal to one month's pay in lieu of notice or on my attaining the age of 55 years, unless previously informed that an extension of service has been granted.”

    39. This service agreement which embodies the conditions of the petitioner's service makes it quite clear that the service of the petitioner was terminable on one month's notice on either side or payment of one month's salary in lieu of notice; his service was also terminable on attaining the age of 55 years. In the present case the services of the petitioner have been terminated on one month's notice. Mr. B.C Ghose has contended before us that the notice has not been given by the proper authority, namely the General Manager of the Railway concerned.

    40. I do not think that the service conditions of the petitioner require that the notice must be given by the General Manager; any subordinate officer acting on behalf of the principal could have given the notice on behalf of the principal. In the present case the notice was given by the officer under whose direct control the petitioner was. The petitioner has stated in his application that his petition dated 19-6-1350, was sent to the General Manager and a communication was received from the General Manager to the effect that no action was needed on the petition of the petitioner dated

    41. The General Manager has been made a party to the is present application and it is not contended on behalf of the petitioner that the notice which was given to the petitioner had not the concurrence of the General Manager. The Railway authorities, including the General Manager, are contesting the application of the petitioner.

    42. Then there is another aspect of the matter. ??? us assume that there is some irregularity in the matter of the notice given to the petitioner in according with the terms of his service agreement. That regularity, if any, may give the petitioner a ??? of action for claiming damages. According to one service agreement of the petitioner, he is entitled to one month's salary in lieu of notice; and if the notice has not been properly given, the petitioner may, if he is so advised, make a claim for such compensation as he thinks he is entitled to, in a properly constituted suit. I do not, however, see how the petitioner can be reinstated or how we can issue a writ directing that the petitioner be reinstated to his post. Then there is a third difficulty.

    43. According to the counter-affidavit of the Railway authorities, the petitioner was due to retire in the ordinary course on 14-9-1953. It is true that the petitioner has denied this statement in the counter-affidavit. But the petitioner has not stated when he was due to retire. The service agreement says that the petitioner was aged 27 years 2 months and odd days on 29-10-1925. Therefore, he was due to retire sometime in September, 1953. According to his service agreement, the petitioner's services were to terminate on his attaining the age of 55 years. It is difficult to see how in these circumstances the petitioner can now pray for the relief that he should be reinstated to his old post.

    44. Speaking for myself, I do not think that this is a fit case in which any writ under Article 226 of the Constitution can issue to give effect to the prayers made by the petitioner. The petitioner was removed from service in 1948. He apparently accepted the removal notice and asked for the payment of all his dues, including Provident Fund etc. It appears that all his dues etc. have been paid and the petitioner has accepted such payment. The petitioner did not do anything till 19-6-1950., when he sent a petition to the Divisional Superintendent.

    45. That petition I have already referred to in a previous part of this judgment. The petition cannot be considered to be an appeal by any stretch of imagination. The petitioner then waited for four years, and after he had reached the age of superannuation he made an application for the issue of a writ to this Court. In my opinion, it would be an abuse of the power given to us under Article 226 of the Constitution to issue a writ in respect of an order of removal passed against the petitioner in the year 1948, which order the petitioner apparently accepted without demur at least till 19-6-1950.

    46. Learned Counsel for the Railway authorities has cited before us several decisions in support of his contention that Article 226 has no retrospective effect and cannot be applied in respect of an act which had become final before the coming into force of the Constitution of India. Mr. Ghose has placed before us certain decisions where it has been held that if the wrong committed continues after the coming into force of the Constitution of India the aggrieved party can ask for a writ under Article 226 of the Constitution to remedy the wrong which he is suffering from after the coming into force of the Constitution.

    47. I do not think that it is necessary to examine those decisions in detail in the present case. Article 226 no doubt gives this Court a power to issue directions, orders or writs for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose. The power is subject to a two fold limitation, namely, (1) no writ can run outside the territorial jurisdiction of the Court, and (2) the writ can issue only to any person or authority within the territories of this Court. But the exercise of the power is discretionary, except in the matter of enforcement of fundamental rights.

    48. In the case under our consideration no writ lean issue because the petitioner waited from 1948 to 1954 without taking necessary action against the order of which he now makes a complaint. On the contrary, the letter which the petitioner wrote on 30-7-1948, to which I have already made a reference, shows that the petitioner accepted the notice and asked for the payment of all his dues, which dues, it appears, have been paid and accepted by the petitioner.

    49. The petitioner attained the age of retirement in September, 1953, and made his application for reinstatement in 1954, that is, several months after he had reached the age of retirement. In these circumstances it would, in my opinion, be an abuse of the power given to us under Article 226 of the Constitution to issue a writ in favour of the petitioner.

    50. There has been some controversy before us as to whether a notice under Section 80 of the CPC, was served on the Railway authorities on behalf of the petitioner. The Railway authorities have said that they received certain notices on behalf of the petitioner given by a lawyer named R.P Varma. The petitioner has denied that he had given any such notice. Certain other statements made in the counter-affidavit filed on behalf of the Railway authorities have also been called in question.

    51. A separate application has been filed on behalf of the petitioner for taking necessary action against certain statements made in the counter-affidavit which are characterised as false statements. That application will be dealt with separately in due course, and I do not propose to say anything about that application in the present Judgment. For the reasons which I have given above, I have reached the conclusion that no case for the issue of a writ has been made out in this case. The application is accordingly dismissed with costs. Hearing fee Rs. 100/- only.

    Kanhaiya Singh, J.:— I agree.

    D.R.R

    52. Application Dismissed.

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    Bhagwandas v. Senior Superintendent, Way And Works, Eastern Rly. Opposite Party.
    (Sep 1, 1955)