- (1.) THE petitioner was appointed as Assistant Electrical Foreman in 1944 in the erstwhile Bengal and Assam Railway. After the partition of the country the Bengal and Assam Railway was renamed as Assam Railway and the petitioner continued to work in that railway. He was promoted to the post of electrical foreman in the scale of Rs. 360 -500 and was confirmed on that post a little after. The Assam Railway was merged in the North Eastern Railway and the petitioner continued to serve as electrical foreman in the railway electrical power house at Panda under the North Eastern Railway. The petitioner was the General Secretary of the Assam Railway Labour Association, a registered and recognised trade union of the railway workers and after the reorganisation of the railways the petitioner became the General Secretary of the North Eastern Railway Mazdoor Union and in the election held in October 1955 the petitioner was elected as General Secretary of the same Union and continues to hold that office. He is also the Assistant General Secretary of National Federation of Indian Railwaymen, an all India organisation of the railway workers. The petitioners case is that in his capacity as Joint General Secretary and General Secretary of the trade unions mentioned above he had to meet the General Manager and other high railway officials of the North Eastern Railway and while doing so he had to represent the cases of workers with independence. According to him, inasmuch as he espoused the cause of the workers fearlessly and independently and not in a "cringing or servile manner" the officers of the railway got displeased with him. It is also alleged that the petitioner worked hard to bring about amalgamation of the two unions which were functioning in the trade union field of the North Eastern Railway and succeeded in doing so. The petitioner was on leave from May 1955 till 31 -8 -1956, according to his allegations, for doing trade union work. He was at Gorakhpur on 10 -8 -1956 in connection with some trade union work at the head office of the trade union. On that day the Deputy General Manager served him, with a notice dated 8 -8 -1956 under the signature of the General Manager, North Eastern Railway, purporting to terminate his services with immediate effect with one months salary in lieu of notice. The said notice runs as follows : "General Managers Office, N.E. Railway. August 8, 1956. No. E(SS) -19 -208/1, Shri Priya Gupta, Electrical Foreman, N.E. Railway Power House, Pandu (Assam) (At Gorakhpur U.P.) Please take notice that, in exercise of the special powers vested in me, I hereby order the termination of your service, with immediate effect, with one months pay in lieu of notice. Sd. B. Arora, General Manager." After receiving that notice the petitioner on 15 -8 -1956 sent a letter addressed to the General Manager, North Eastern Railway. The General Manager sent a reply to this letter on 20 -8 -1956. A copy of the reply dated 20 -8 -1956 has been filed and marked as Annexure -F to the affidavit of the petitioner. Thereafter some correspondence took place between the petitioner as Secretary of the Union and the General Manager. It is not necessary to reproduce that correspondence here. On 31 -8 -1956 Sri Guru Swami, the General Secretary of the National Federation of Indian Railways interviewed the General Manager and thereafter issued a press statement summarising what had transpired at the interview. Thereafter Sri Guru Swami met the Railway Minister on 22 -10 -1956 at Madras and some questions were also put in the Parliament in connection with the termination of the petitioners services but the Railway Minister refused to give replies to those questions. The petitioners case is that he is a permanent employee and there was no service agreement executed by him. According to him the appointing authority of the petitioner is the Chief Electrical Engineer, North Eastern Railway. He has also alleged that before his services were terminated the Union Public Service Commission was not consulted. On these facts the petitioner has prayed for the following reliefs : (a) That a writ of certiorari or order or direction in the nature of certiorari be issued quashing the notice dated 8 -8 -1956. (b) That a writ of mandamus or order or direction be issued directing opposite party to treat the applicant in service on his post." A counter affidavit has been filed on behalf of the respondent which is sworn by Sri Bhishma Arora, the General Manager, North Eastern Railway, Gorakhpur. Several allegations made by the petitioner in his affidavit have been controverted in this counter affidavit. His allegation that the railway authorities expected him to maintain cringing or servile attitude and not to negotiate with him in his capacity as Secretary or General Secretary of the trade unions on equal terms has been controverted. So has been his allegation that the railway authorities tried to discourage trade union activities. It is further alleged in the counter affidavit that; the proceedings of the meetings with the Trade Union Officials at the Head Office level almost invariably progressed very satisfactorily. It is further stated by way of illustration that in the various meetings of the Union and the Rly. Officers out of about 204 items on the agenda placed by the Union and discussed at such meetings between the railway authorities and the officials of the Union varying between three to ten in number during a period of about twelve months i.e. between November 1954 to January 1956, 182 items were passed and agreed to quite smoothly and no occasion arose for any unpleasantness even in regard to the rest which were not accepted. The petitioners allegation that the General Manager or the other Railway Officers wanted somehow to get rid of the petitioners services has also been controverted, According to the counter affidavit during about 5 years and three months between May 1951 and August 1956, the petitioner was on leave for three years and about eight months i.e. for more than 2/3rd of the period. During this period leave was applied for on the ground of his own illness or on the ground of the illness or death of his near relations and then extended from time to time and if during this period trade union work came in he did that work also. Due to the petitioners frequently going on leave the District Electric Engineer, Gauhati sent a letter to the Chief Electrical Engineer, which runs as follows : "The post of EP/Pandu in the grade 360 -500 has been held by Shri P.B. Gupta. He has been taking leave in small bits and extending it from time to time by small periods with the effect that since 30 -5 -1955 he has been continuously on leave. Since, originally, the leave asked for was for a short period and every extension asked for was also for short period, no special arrangement was made by transferring a suitable and senior stuff for posting aft P.N.O. in his place, Shri R.N. Ghosh Dastidar/ AEF/PNO has been shouldering the responsibility for the entire period. Similar things had happened in the past and vide your letter No. E/9/11/6020 d/ -16/21 -7 -55 it was decided that Shri R.N. Ghosh Dastidar should be treated as having been promoted to the grade 360 -500 for the period. Similar action is now called for and it is recommended that Shri Ghosh may be treated as having been promoted to the grade 360 -500 with effect from 30 -5 -1955. This promotion, of course, will have to be treated entirely as fortuitous because had the leave been asked for, for the long period initially suitable arrangements for posting senior staff would have been made by you. The present position is that I have received a telegram today from Shri P.B. Gupta requesting extension of his leave up to 31 -3 -1956. It is not possible for me to indicate whether Shri Gupta is expected to join on 1 -4 -1956. An immediate reply sanctioning Shri Dastidars promotion is requested." It is also alleged in the counter affidavit that due to the petitioners going frequently on leave and specially because of his having asked for leave up to 31 -3 -1956 the Railway Administration "remained in a dilemma as to when the applicant would rejoin duty." However leave was always granted or regularised subsequently. It is admitted in the counter affidavit that the General Manager terminated the petitioners services on 8 -8 -1956 under R. 148 of the Indian Railway Establishment Code, Volume I, with one months pay for the period of notice. It is also alleged that the services of the petitioner were actually terminated, he was neither dismissed, nor removed from service as a disciplinary measure. It is admitted that before the services of the petitioner were terminated the Union Public Service Commission was not consulted.
(2.) A rejoinder affidavit has also been filed. It is not necessary to mention the allegations made in the rejoinder affidavit because mostly the allegations made in the original affidavit have been reiterated therein. If and when it would be necessary to notice any allegation made in the rejoinder affidavit I will do so at the proper place. I have heard Mr. S.C. Khare, learned counsel for the petitioner and Mr. Kanhaiya Lal Misra, learned Advocate General for the respondent. The first contention of Mr. Khare is that the petitioner has actually been removed from service under the garb of his services being terminated and inasmuch as that has been done without giving him an opportunity of showing cause as required by Art. 311(2) of the Constitution of India, the termination of his services is illegal. In this connection it is also contended that R. 148 of the Railway Establishment Code is void on the ground that it defeats the provisions of Art. 311 of the Constitution of India, and is void under S. 23 of the Indian Contract Act. I will first take the argument that though apparently the services of the petitioner have been terminated, actually he has been removed. Tae petitioner has filed a true copy of a news item appearing in the issue of the Leader dated 13 -8 -1956 and marked as Annexure -B to his affidavit. Learned counsel for the petitioner has placed reliance upon the following portion of the news item an has on the basis of it submitted that the relations between the railway administration and the petitioner were far from cordial due to the activities of the petitioner as a trade union worker : "Explaining the sudden dismissal of Mr. Gupta, a railway officer said that this was never a case of victimisation or a measure against trade union activity. In fact the step had been decided sometime ago and its service was delayed in the hope that Mr. Gupta might improve in his behaviour towards officers. The officer recalled an incident of May 28 when several officers had been humiliated and the General Manager had been dragged by the hand from one office to another in connection with what was described as a fraud by the selection board In the selection of a draftsman. It had been alleged by the union that the marks of certain candidates had been increased. The General Manager had sealed those mark -sheets and the answer books in the presence of Mr. Gupta and sent them for re -marking to the Municipal of the Engineering College, Banaras Hindu University, who had returned them with the remark that the marking was quite correct for the same purpose learned counsel for the petitioner has relied upon another news item which appeared in the issue of "Amrit Bazar Patrika" dated 14 -8 -1958. It runs as follows : "Later on Saturday evening, Shri D.R. Kohili, Senior Deputy General Manager of the North Eastern Railway, at a meeting with the press -men in his room explained that the Railway Administration intended to cause no victimisation by the action against Shri Gupta which aimed at preventing the indiscipline and insubordination among the employees in the interest of the successful implementation of the Second Five Year Plan." Learned counsel has also invited my attention to a press statement issued by Sri Guru Swami, the General Secretary of the National Federation of Indian Railwaymen on 31 -8 -1956, at Gorakhpur. In this press -statement Sri Guru Swami said that when he had interviewed Sri Arora, the General Manager, North Eastern Railway, in connection with the termination of services of Sri Priya Gupta, Sri Arora had told him as follows : "Sri Arora admitted that Mr. Priya Gupta was a sincere and active trade union worker but it was felt that his continued employment on the N.E. Railway was incompatible with the maintenance of discipline and therefore a notice of discharge was served on him... It is contended that this admission of Sri Arora also shows that the petitioner was actually removed from service as he was disliked by the railway administration. Learned counsel has also placed reliance upon a letter issued by Sri Guru Swami to the affiliated Unions and members of the Working Committee of the National Federation of Indian Railwaymen, which runs as follows : "Dear Comrades, As regards victimisation of Shri Priya Gupta, the Minister justified the action taken to protect the Officers against intimidation and although he received a letter from Shri Javaprakash Narain the decision taken will not be altered. Annexure -L to the petitioners affidavit gives the question which Sarvsri Jugal Kishore Sinha and Ram Narain Singh, members of the Parliament, put to the Railway Minister. The question is as follows : "......... Will the Minister of Railways be pleased to state (a) whether it is a fact that the General Secretary of North Eastern Railway Mazdoor Union has been dismissed, (b) If so when and on what charge and (c) Whether there is a widespread agitation against this dismissal order among the employees of the North Eastern Railway and (4) If so what steps are being taken in this connection." It has been alleged in the affidavit filed by the petitioner that no reply was given to this question. The material which I nave just mentioned above has been placed before me by the learned counsel for the petitioner to show that the railway administration was displeased with the petitioner and therefore removed him from service but in order to avoid unnecessary tension the procedure of charge sheet and full enquiry was not followed and his services were terminated by a notice. In the counter affidavit the allegations made by the petitioner have been controverted. It is stated that the news items that were published in the Leader and Amrit Razar Ptarika mentioned above, do not state correct facts. According to the counter affidavit the petitioner was neither dismissed nor removed from service as a result of any disciplinary action and any statement to the contrary is wrong. It is stated by the General Manager in the counter affidavit that he had no occasion to meet Sri D.R. Kohili till 12 -8 -1936 and if Sri Kohili made any such statement as is mentioned in the news items appearing in the issues of the Leader and the Amrit Bazar Patrika of 11 -8 -1956, the same are not correct. It is further alleged that in reply to the letter of the petitioner the General Manager has informed him that his services have been terminated under R. 148 of the Railway Establishment Code. With regard to the statement attributed to the General Manager by Sri Guruswami to which Sri Guruswami referred in the press statement, the statement of the General Manager in the counter affidavit is that the same is very much distorted and incorrect on vital points. It is stated that while it is true that the General Manager had told Shri Guruswamy that the petitioner was a sincere trade union worker, and that his relations with the petitioner even after the termination of his service continued to remain very cordial, and he had no grudge against the Union or the petitioner but it is altogether false that the General Manager ever told Sri Guruswamy that the petitioner had been removed from service or that it was felt by the administration that his continued employment on the North Eastern Railway was incompatible with the maintenance of discipline and therefore a notice of discharge had been served on him to avoid unnecessary tension that might be caused by the process of lengthy enquiry and by taking disciplinary proceedings. It is stated that this is all a very ill conceived post -termination attempt by the, petitioner or by his friends to wrongly make, what was a simple termination of service, look like a removal or dismissal as a disciplinary measure. In the counter affidavit it is also mentioned that Sri Shall Nawaz Khan made the following statement in the Parliament : "Sir, I rise to make a statement to correct the information given on the floor of this House on 20 -12 -1956 in reply to supplementaries on question 395. Shri P.B. Gupta an office bearer of the North Eastern Railway Mazdoor Union, who was referred to, was neither dismissed nor discharged from service. It was Sarvshri Pandey and Sharma who were discharged from service after issue of charge sheets. Shri Guptas services were terminated in accordance with R. 148 of the Indian Railway Establishment Code, Volume I without serving any charge sheet and without assigning any cause." It would be noticed that all the allegations made by the petitioner in connection with his allegation that he was actually removed and the order of removal was given the garb of termination of service in order to circumvent the provisions of Art. 311 of the Constitution have been controverted. Apart from the fact that the allegations are controverted in my opinion, the petitioner cannot rely upon the news items or the press interviews of Sri. Guruswami or his letter as pieces of evidence. He has filed no affidavit either of the correspondent who was responsible for the news items appearing in the issues of the "Leader" or the "Amrit Bazar Patrika", or of Sri Guruswami or of Sri D.R. Kohili, Evidence of a person who is alive and is available for examination as a witness but has not been examined in the case is not admissible in judicial proceedings. All the items which are mentioned above and on which learned counsel for the petitioner wants to rely are hit by the "hearsay" rule and none of these items can be used as evidence. The mere fact that a writ petition is decided on affidavits does not mean that all what is inadmissible if incorporated in an affidavit becomes admissible. Clause (2) of R. 1 of Chapter XXII of the Rules of the Court runs as follows : (2) The application shall set out concisely in numbered paragraphs the facts upon which the applicant relies and the grounds upon which the Court is asked to issue a direction, order or writ, and shall conclude with a prayer stating clearly, so far as circumstances permit the exact nature of the relief. The application shall be accompanied by an affidavit or affidavits in proof of the facts referred to in the application. Such affidavit or affidavits shall be restricted to matters which are within the deponents own knowledge."
(3.) THIS rule clearly requires that the affidavit filed in support of the writ petition should contain only such matter which is in the personal knowledge of the deponent. No piece of the evidence mentioned above is in the personal knowledge of the petitioner. The petition therefore is not in accordance with the rules of the Court also. It is not possible to rely on any one of these allegations in view of what I have said above. To my mind if the petitioner wanted to raise the questions of fact that there was ill -will between him and the railway administration and he was actually removed and for that purpose wanted to rely upon certain pieces of evidence, his proper remedy .was to file a regular suit and not to have come to this Court under Art. 226 of the Constitution of India. Even when he had filed a writ petition in this Court he should have filed the affidavits of the persons who had personal knowledge about the things they deposed. The petitioner has admittedly got an alternative remedy of filing a suit which is undeniably most suitable for the decision of these questions of fact. In the case of Union of India v. T.R. Varma ((S) AIR 1957 SC 882), their Lordships of the Supreme Court observed as follows : "Under the law, a person whose services have been wrongfully terminated is entitled to institute an action to vindicate his rights and in such an action, the Court will be competent to award all the reliefs to which he may be entitled, including some which would not be admissible in a writ petition. It is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ .. .. .. .. . ... .. ... And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Art. 226 unless there are good grounds therefor. None such appears in the present case. On the other hand, the point for determination in this petition whether the respondent was denied a reasonable opportunity to present his case, turns mainly on the question whether he was prevented from cross -examining the witnesses, who gave evidence in support of the charge. That is a question on which there is a serious dispute, which cannot be satisfactorily decided without taking evidence. It is not the practice of Courts to decide questions of that character in a writ petition, and it would have been a proper exercise of discretion in the present case if the learned Judges had referred the respondent to a suit." I would have dismissed the petition on the ground of alternative remedy but I am not doing so because learned counsel for the petitioner has contended that even if it be assumed that the services of the petitioner were terminated and he has not been removed he is challenging the validity of Rule 148 of the. Railway Establishment Code and that is not a matter which requires going into evidence. I do not see any reason why the allegations made by Mr. Arora be not accepted as correct. In my opinion the petitioner has completely failed on the material before me to make out a case that the railway authorities were ill -disposed towards him and removed him but in order to avoid complications and to circumvent the provisions of Art. 311 of the Constitution they gave the order of removal the shape of a notice or order of termination of service. Mr. Khare has also relied upon the following observations of their Lordships of the Supreme Court in the case of Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36 : "But the mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rates, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a punishment. The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment and by way of penalty." I have already held above that there is no material in the shape of admissible evidence on which a finding can be recorded that in truth and reality the Government has terminated the employment of the petitioner by way of penalty. In view of what is stated in the order of termination there is a presumption in favour of the respondents that the services of the petitioner have been terminated under R. 148 of the Railway Establishment Code and in fact his employment has not been terminated by way of penalty. The burden was on the petitioner to prove that his services had been terminated by way of penalty. This the petitioner has miserably failed to discharge. I, therefore, overrule the first contention of the learned counsel for the petitioner and proceed to consider the other points on a finding that the services of the petitioner have been terminated under R. 148 clauses (3) and (4) and if is not a case of removal under the garb of termination of service by a notice. The motive for terminating the service is not material. (See AIR 1958 SC 36). ;