Citation Codes

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citation codes

Case Number

S.A No. 1297 of 1961

Attorney(S)

---------.

Judges

S.S Dhavan, J.

Acts

rule 731(1), Note 3, of the Railway Establishments Code
rule 731(1), Note 3 of the Railway Establishment Code
rule 731(1) of the Railway Establishment Code

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Smart Summary

Judgment Summary — Dhavan, J.

Factual and Procedural Background

The appellant, Balwant Raj, was employed by Northern Railway on 8 August 1950 as a Painter-Khalasi. He fell ill with tuberculosis on 30 March 1953, was treated in the Railway Hospital and remained on the sick list for approximately three years. On 25 January 1956 the Divisional Medical Officer (D.M.O.) discharged him as fit for service and directed that he be sent back on duty.

When the appellant attempted to resume duty he was successively directed to report to other stations (Kalka, Jagadhari, Delhi) and was issued railway duty passes on multiple occasions. Despite reporting to the Divisional Personal Officer (D.P.O.) at Delhi and attending the office regularly until 23 June 1956, no orders were issued to reinstate him. The Railway refused to take him back, contending that his services had been automatically terminated under Rule 731(1), Note 3 of the Railway Establishment Code because he had remained absent beyond the maximum period of leave available to him.

The appellant served notice under Section 80, C.P.C. and filed a suit seeking a declaration that he continued to be in the service of the Union of India. The Railway admitted the material facts (illness treated in its hospital, discharge fit for duty, no allegation of misconduct) but relied on the rule to justify automatic termination. The trial court dismissed the suit, holding that as a temporary employee he was bound by his conditions of service; the lower appellate court affirmed relying on Rule 731(1), Note 3. The appellant appealed further to the court presided over by Dhavan, J.

Legal Issues Presented

Whether Article 311 of the Constitution protects the appellant (a temporary Railway employee) against termination without a prior opportunity to show cause.
Whether Rule 731(1), Note 3 of the Railway Establishment Code, which provides that a temporary railway servant who "fails to resume duty" after maximum extraordinary leave shall be deemed to have resigned, automatically terminated the appellant's service when his absence was caused by illness.
How the phrase "fails to resume duty" in Rule 731(1), Note 3 should be interpreted — whether literally to include all causes of failure to resume, or limited to voluntary, deliberate absences.

Arguments of the Parties

Appellant's Arguments

The appellant contended that he was entitled to the protection of Article 311 and that the Railway had not given him a reasonable opportunity to show cause before terminating his services.
Counsel for the appellant relied on Supreme Court authorities (Champaklal Chiman Lal Shah v. Union of India and Parshotam Lal Dhingra v. Union of India) establishing that a temporary servant is entitled to the protection of Article 311, and also relied on Jai Shanker v. State of Rajasthan as authority for the proposition that the State cannot deprive an employee of Article 311 protection by making a rule deeming absence to be a sacrifice of appointment.

Railway's Arguments (Respondent)

The Railway admitted the facts of illness and discharge as fit for duty, and conceded there was no misconduct, but relied on Rule 731(1), Note 3 of the Railway Establishment Code to contend that the appellant's services were automatically terminated when he remained absent beyond the maximum period of leave to which he was entitled.
The Railway argued that the phrase "fails to resume duty" in the rule should be given its literal meaning, thereby including failure to resume for any cause (whether voluntary or involuntary), leaving no option but to enforce automatic termination under the rule.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Champaklal Chiman Lal Shah v. The Union of India, A.I.R. 1964 S.C. 1854	Affirmed the principle (as laid down earlier) that a temporary servant is entitled to the protection of Article 311.	Relied upon by appellant's counsel to argue Article 311 protection for temporary servants. The court noted the reliance but did not ultimately decide the case on Article 311 grounds; it observed that the particular authority relied on did not, by itself, resolve the dispute because of factual and legal distinctions addressed later in the judgment.
Parshotam Lal Dhingra v. Union of India, 1958 A.L.J. 372	Earlier authority on the entitlement of temporary servants to Article 311, cited as affirmed in Champaklal.	Mentioned by counsel and by the court as part of the background on Article 311 jurisprudence; the court did not rest its decision on this precedent but considered other grounds.
Jai Shanker v. State of Rajasthan, A.I.R. 1966 S.C. 492	Held that the State cannot deprive an employee of the constitutional protection of Article 311 by making a rule that an official who absents himself without permission or remains absent at the end of his leave shall be considered to have sacrificed his appointment.	The court summarized this case and its holding but distinguished it: Jai Shanker concerned a permanent servant who had a right to remain in service; the court concluded that Jai Shanker did not directly assist the appellant because the appellant was a temporary employee bound by the conditions of his service (though ultimately the court decided for the appellant on other grounds).

Court's Reasoning and Analysis

The court's analysis proceeds in several discrete steps:

Preliminary factual findings: It was common ground that the appellant had been treated for tuberculosis in the Railway Hospital, discharged fit for duty by the D.M.O. on 25 January 1956, and that no formal order of discharge from service had been passed by the Railway. The Railway in its conduct issued duty passes to the appellant and placed him on a series of stations to report to — acts which the court treated as inconsistent with a formal discharge.
Textual analysis of the rule relied upon: The court quoted Note 3 to Rule 731(1) of the Railway Establishment Code verbatim. The parties agreed that the appellant's illness extended beyond the maximum period of leave available to him.
Interpretation of the phrase "fails to resume duty": The court held that those words should not be read literally to cover every possible cause of failure to resume duty. Instead, the words were to be understood as applying to a railway servant who, by a voluntary and deliberate act or omission, stays away from duty and fails to report. The court concluded that the phrase cannot reasonably be applied to a servant prevented by causes beyond his control (for example, long illness) — particularly where the Railway itself had treated the servant in its hospital and then pronounced him fit.
Rejection of the Railway's literalist argument: The court gave several reasons for rejecting a literal interpretation that would include involuntary absences:
- Where two interpretations are possible, courts should adopt that which is consistent with equity, justice and good conscience and avoid an interpretation that would make a rule oppressive.
- Because enforcement of the rule could deprive an employee of his means of livelihood by automatic termination, the phrase should be strictly construed and limited to voluntary absences.
- Most significantly, the rule must be interpreted in light of the Directive Principles of State Policy — specifically Article 41 of the Constitution — which directs the State to make effective provision for securing the right to work and public assistance in cases of sickness, within its economic capacity. The court held that it must presume the rule was not framed to deprive a person of his job merely because he suffered a long illness; the alternative would be contrary to the spirit of Article 41 and would imply an unduly callous legislative intent on the part of railway authorities.
Application to the facts: Given that the appellant's failure to resume duty was caused by illness (a factor beyond his control), and that there was no formal discharge (and Railway conduct — issuing duty passes — indicated the appellant was still treated as in service), the court concluded the automatic-termination mechanism in Rule 731(1), Note 3 did not apply to the appellant.
Treatment of Article 311 arguments: The court considered the appellant's reliance on Article 311 and related authorities but found that the cited case (Jai Shanker) involved a permanent servant and thus did not directly help the appellant. The court did not rest its decision on Article 311 but on the interpretive approach to the Railway rule and the factual circumstance that there had been no formal discharge.

Holding and Implications

Holding:

APPEAL ALLOWED. The court set aside the decisions of the courts below, decreed the appellant's suit with costs throughout, and made a declaration that the appellant continues in the service of the Union of India.

Immediate consequences for the parties:

The appellant succeeds and obtains a formal declaration that he remains in Railway service; the judgments dismissing his suit were overturned and he was awarded costs.
The Railway's contention that the appellant's service was automatically terminated under Rule 731(1), Note 3 was rejected as applied to these facts.

Broader implications (as articulated by the court in this opinion):

The court expressly required that administrative rules governing conditions of service be interpreted in the light of the Directive Principles of State Policy (Article 41), so as to avoid constructions that would deprive a person of employment because of sickness or other circumstances beyond his control.
The decision clarifies that the phrase "fails to resume duty" in Rule 731(1), Note 3 should be read as referring to voluntary and deliberate absences, not involuntary absence caused by illness where the employer itself treated the employee and discharged him fit for duty.

Note on precedent-setting: The opinion does not state that it is establishing a binding new precedent; it does, however, articulate an interpretive principle (construing adverse-service rules in the light of Article 41) that the court applied to the facts of this case.

Appeal allowed.

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Balwant Raj v. Union Of India

Dhavan, J.:— This is an appeal by a Railway employee from the decree of the Civil Judge Roorki (at Saharanpur) affirming that of the City Munsif Saharanpur dismissing his suit for a declaration that he continues to be in the service of the Union of India. It is an important case because it reveals that some departments of Government have not yet realised that in making, applying, and interpreting rules governing the conditions of service of their employees it is the duty of State to apply the directive principles of State policy in Part IV of the Constitution. The admitted facts are these. The appellant Balwant Raj was employed by the Northern Railway on 8th August, 1950 and appointed as a Painter-Khalasi under the Head Trains Examiner Saharanpur. Within three years he was drawing Rs. 75/- as salary and allowances. It is common ground that he was never guilty of any misconduct or misbehaviour. On 30th March, 1953 he had the misfortune the be stricken with tuberculosis. He reported sick and was admitted in the Railway Hospital at Saharanpur. He remained on the sick list for three years and was discharged on 25th January, 1956 under the orders of the Divisional Medical Officer Delhi (to be called the D.M.O) who pronounced him fit for service and directed that he be sent back on duty. The Railway Hospital authorities issued him certificate of fitness, and on the same date the appellant reported for duty to his superior officer, the Head Trains Examiner Saharanpur. The latter however informed him that during his illness the entire staff of the section to which the plaintiff belonged had been transferred to Kalka and directed him to report for duty at Kalka, giving him three days' joining time. On 30th January, 1956 the appellant reported for duty to the Works Manager, Kalka Workshop, who however directed him to report to the Works Manager, Jagadhari Workshop. Accordingly on 23rd February, 1956 the appellant reported himself for duty to the Works Manager Jagadhari. The appellant's case is that he attended the office of the Works Manager Jagadhari from 2nd till the 8th February, 1956 when that officer directed him to obtain fresh orders. Accordingly the appellant reported on duty to the Head Trains Examiner Saharanpur on 9th February, 1956. The latter officer directed him to obtain fresh orders from the Divisional Personal Officer Northern Railway Delhi (to be called D.P.O) and issued a Third Class Duty Pass to enable the appellant to travel to Delhi. The appellant reported on duty to the D.P.O Delhi on the next day, the 10th February, 1956, and attended the office regularly till the 23rd June but no orders were issued to enable him to resume work. The Railway authorities refused to take him back in service and he was informed that his services had automatically terminated under rule 731(1), Note 3 of the Railway Establishment Code because he had remained absent from duty for a period longer than he was entitled to do under the rules. Thereupon the appellant after serving a notice on the Railway under Sec. 80, C.P.C filed the present suit for a declaration that he continues to be in service. The Railway resisted the suit and filed a written statement. In it the material facts alleged in the plaint were conceded. It was admitted that the appellant had fallen ill and had to be treated for tuberculosis in the Railway Hospital. It was also admitted that he was discharged as fit for duty on 25-1-1956. The Railway made no allegations of misconduct or improper behavior on the part of the appellant. But it relied on a certain rule in the Railway Establishment Code which, according to them, provides for automatic termination of the service of a Railway employee if he fails to resume duty on the expiry of the maximum period of leave due to him. According to the Railway the leave at the credit of the appellant when he fell ill was 8 days on average pay, 15 days on half average pay, and one and a half years without pay. The maximum period of leave to which the appellant was entitled expired on 20th October, 1954. The case of the Railway is that as the appellant continued to remain sick after this date and failed to report on duty, his services must be deemed to have automatically terminated under the rules mentioned above. The Railway contended that this rule was a part of the conditions of service of the appellant as a temporary employee and the Railway was entitled to consider his services as terminated and refuse to take him back in service. Before the trial court the appellant contended that he was entitled to the protection of Article 311 and as the Railway had not given a reasonable opportunity to show cause before terminating his services, their decision was void. The trial court rejected this contention on the ground that the appellant being a temporary employee was bound by the rules which formed a part of the conditions of his service. It dismissed the suit. This decision was affirmed by the lower appellate court which, relying on rule 731(1), Note 3, of the Railway Establishments Code held that the appellant's services were automatically terminated after he had remained absent beyond the period of leave to which he was entitled under the rules. The appellant has come here in second appeal.

2. Mr. V.S Saxena learned counsel for the appellant argued that the view of the court below that Article 311 does not apply to the appellant's case is erroneous. He relied on two decisions of the Supreme Court. The first is Champaklal Chiman Lal Shah v. The Union of India A.I.R 1964 S.C 1854. in which the court affirmed the principle laid down in the earlier case of Parshotam Lal Dhingra v. Union Of India 1958 A.L.J 372. that a temporary servant is entitled to the protection of Article 311. The other is Jai Shanker v. State Of Rajasthan A.I.R 1966 S.C 492. in which it was held that the State cannot deprive an employee of his right to remain in service and to the constitutional protection of Article 311 by making a rule to the effect that an official who absents himself without permission or remains absent at the end of his leave shall be considered to have sacrificed his appointment. In that case one Jai Shanker, a Head Warder of the Central Jail, Jodhpur, fell ill and took leave for two months. He applied for several extensions of leave and was due to join on August 13, 1950. He again applied for leave but it was refused and he was told that no more leave would be granted. He did not report on duty but made several applications for further leave which were supported by a Medical Certificate. He received no replies to his applications, and on 8th November, 1950, he was informed that he had been discharged from service with effect from 13th August, 1950 that is, from the date on which he was due to join but did not. He then filed a suit for a declaration that his removal from service was illegal and that he continued to remain in employment. He contended that he was entitled to the benefit of Article 311(2) and to an opportunity to show cause against his removal. The State relied on Regulation 13 of the Jodhpur Service Regulations which is as follows:

“An individual who absents himself without permission or who remains absent without permission for one month or longer after the end of his leave should be considered to have sacrificed his appointment and may only be reinstated with the sanction of competent authority.”

3. The trial court dismissed the suit but the district court allowed it, but its decision in turn was set aside by the High Court. The Supreme Court, reversing the decision of the High Court, held that where a person is entitled to continue in service, his removal amounts to punishment and he must be given an opportunity to show cause against the action proposed, and that this constitutional protection cannot be taken away. I am afraid Article 311 does not help the appellant. In Jai Shanker's case the employee was a permanent servant and entitled as a right to remain in service. But the appellant is a temporary employee bound by the conditions of his service.

4. But in my opinion the appellant must succeed on a ground which was over looked by the courts below. It is common ground that the Railway authorities did not discharge the appellant from service. Learned counsel for the Railway conceded that no formal order of discharge was passed. The conduct of the Railway also shows that no such order was passed. When the appellant reported for duty at Saharanpur he was asked to go to Kalka and was given a duty pass to enable him to go there. When he went to Kalka he was asked to report to Jagadhari and again given a pass, and when he reported to Jagadhari he was asked to go to Delhi and again given a Pass. It is elementary that a Duty Pass, as the very name implies, can only be given to an employee who is travelling on duty and no employee can travel on a Duty Pass unless he is in service. In their written statement too the Railway have not relied on any formal order of discharge.

5. But their contention is that the services of the appellant must be deemed to have been automatically terminated under Note 3 to rule 731(1) of the Railway Establishment Code and there was no option for the Railway but to enforce the rule. As this rule is the foundation of the case of the Railway I have to interpret it. It runs thus:

“Where a temporary Railway servant fails to resume duty on the expiry of the maximum periods of extraordinary leave granted to him, or where he is granted a lesser amount of extraordinary leave than the maximum amount admissible, and remains absent for duty for any period which together with the extraordinary leave granted exceeds the limits upto which he could have been granted such leave under clause (1) above, he shall be deemed to have resigned his appointment and shall accordingly cease to be in Railway employ.”

6. It is common ground that the plaintiff's illness lasted for a period longer than the maximum period of leave which was due to him and consequently he could not report for duty on the expiry of this period. But in my opinion the words “fails to resume duty” apply only to a railway servant who by a voluntary and deliberate act or omission stays away from duty and fails to report and not to one who was prevented by a cause beyond his control to resume duty. It cannot apply to a servant who fell ill and was treated by the Railway in its own hospital under its own supervision, and was discharged as fit for duty by its own officers after the expiry of the maximum period of leave due to him.

7. Learned counsel for the Railway argued that the words “fails to resume duty” should be given their literal meaning which will include failure for any cause what so ever irrespective of whether the servant was to blame or not. I cannot agree for several reasons. First, where two interpretations of a rule are possible, the court should accept the one which is consistent with equity, justice, and good conscience and reject the one which will make rule oppressive. Secondly as the enforcement of this rule may deprive a railway employee of his means, of livelihood by the automatic termination of his services under certain circumstances, the word “fails to resume duty” should be strictly interpreted and limited to a voluntary and deliberate act or omission resulting in failure to resume duty. Thirdly and this is the most important reason of all—the rule must be interpreted in accordance with letter and spirit of the Directive Principles of State Policy proclaimed by the constitution. Article 41 of the Constitution provides:

“Art. 41. The State shall, within the limits of its economic capacity and development, make effective provisions for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.”

8. The rights enshrined in the directive principles are not justiceable, but these principles have been made “fundamental in the governance of the country” under Article 37 which provides that it shall be the duty of the State to apply them in making laws. The phrase “making of laws” is wide enough to include their interpretation and therefore the courts must interpret the laws in the light of the Directive Principles. Now, Article 41 commands the State to make effective provision, within the limits of its economic capacity and development, for securing inter alia two rights—(1) the right to work and (2) the right to public assistance in cases of unemployment, old age, disablement and sickness. I am of the view that Rule 731(1), Note 3 should be inperpreted in the light of Article 41 of the Constitution, and it must be presumed that the rule was not framed with the object of depriving a person of his job if he happens to fall ill and is prevented by illness from reporting back on duty within the period of maximum leave due to him. The alternative interpretation that even a sick man must be deemed to have resigned his job if his period of illness happens to be a long one is not only against the spirit of Article 41 but will make the Railway administration in India one of the most callous-minded employers in the state. The court cannot presume that this rule was framed by the Railway authorities with such a callous intention. In my opinion, this rule was intended to penalize only those who can report for duty after the expiry of leave but voluntarily stay away from their job, and not to an employee who is suffering from a long illness which prevents him from resuming his ditties within the prescribed, period.

9. For these reasons I hold that the appellant's failure to resume duty in 1954 having been caused by his sickness was not voluntary or deliberate and did not result in the automatic termination of his services under rule 371(1), and he is entitled to a declaration that he continues in service. I allow this appeal, set aside the decision of the courts below and decree the appellant's suit with costs throughout. There shall be a declaration that the appellant continues in the service of the Union of India.

Appeal allowed.

Balwant Raj v. Union Of India

Judgment Summary — Dhavan, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Railway's Arguments (Respondent)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Balwant Raj v. Union Of India

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