Ahmadi, J. - (1.) The Central Administrative Tribunal, Hyderabad 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.
(2.) 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 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 countered 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 explanation. 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 premature 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 Yard Master, Sanatnagar with immediate effect that he having already completed 30 years of qualifying 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 immediately before his retirement. The respondent challenged this order of premature retirement by preferring an application under Section 19 of the Administrative Tribunals Act, 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 decision of the Full Bench in (1988) 2 AISLJ (CAT) 2777 wherein it held that the higher authority among the appointing' authorities alone was competent to impose any of the punishments specified in Article 311 of the Constitution. In the 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.
(3.) 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 2045(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 writing 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 fifty-five 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(b). 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 respondent'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.;