MITTER, J. - (1.) THIS is an appeal by the Union of India and others against the order of a learned single Judge of this Court making absolute a rule obtained by the respondent directing the issue of a writ in the nature of mandamus commanding the appellants to rescind and to recall the notice of termination of service dated August 23, 1961 under Rule 149 of the Railway Establishment Code by the General Manager, Eastern Railway and other reliefs.
(2.) THE facts about which there can be no dispute are as follows: The respondent Satya Bhusan Banerjee was appointed as a ticket collector after selection by the Railway Service Commission, on a temporary basis. On March 10, 1961 while he was on duty at gate No. 6 at the Howrah Railway Station he was charged verbally by B.M. Khanna, Additional Commercial Superintendent, Howrah with having allowed a passenger to pass in with unbooked luggage in excess of the exempted weight by taking illgeal gratification of one rupee from him. The respondent denied the allegation but Mr. Khanna got one Abdul Sakhar a passenger carrying a bedding and a small tin box to subscribe to a statement written out by the said B.M. Khanna. On May 11, 1961 the respondent wasplaced under an order of suspension by which he was allowed half pay and other allowances during the period of suspension. This communication which is annexure 'A' to the affidavit -in -opposition is addressed to the Station Superintendent Howrah and is headed 'Sub: Corruption'. No charge sheet was ever submitted to him on July 26, 1961 the respondent made a representation to the Divisional Superintendent Howrah complaining about the protracted period of suspension without framing of any charges against him. On August 22, 1961 he received a communication from the Divisional Superintendent Howrah to the effect that he was taken off suspension immediately and he was directed to resume his duties forthwith. He was also informed that it had been decided to drop disciplinary proceedings initiated against him. On the very next day the General Manager passed an order terminating his service in accordance with Rule 149 of the Indian Railway Establishment Code to take effect from the forenoon of August 23, 1961, By this order the respondent was allowed one month's pay in lieu of notice of termination of service. He was served with an order dated August 28, 1961 to the effect that consequent on the termination of service by the order of General Manager the respondent had ceased to be in service from the forenoon of August 23, 1961 and that he should receive one month's pay in lieu of notice. The respondent thereafter made representations against the said order to the General Manager, but to no effect. The case made in the petition is that the Divisional Commercial Superintendent Mr.B.M. Khanna was inimically disposed towards me respondent as the latter had refused to comply with certain irregular orders made by Khanha and that the alleged Incident of May 10, 1961 was concocted by Mr. Khanna to wreak vengence on the respondent. Realising that it would be impossible to substantiate the charge of corruption against the respondent and that the enquiry might have repurcussions against himself, Mr. Khanna purposely avoided the disciplinary proceedings and maliciously took recourse to the provision of Rule 149 of the Railway Establishment Code with a view to impose a penalty without giving him an opportunity to vindicate his innocence. The respondent further charged that the order of August 23, 1961 was not really made by the General Manager, but procured by the said Mr. Khanna in exercise of his influence over the General Manager. The respondent charged in his petition that the purported termination of service was an act of personal revenge on the part of Mr. Khanna and was a colourable exercise of tie powers of the General Manager. A further contention was put forward that the respondent was a 'workman within the meaning of Section 3(s) of the Industrial Disputes Act and the railway administration was an industry' as defined in Section 3(1) of the said Act. The termination of the respondent's service was retrenchment within the meaning of Section 25 -F and invalid because of non -compliance with the provisions of Section 25 -G of the said Act, inasumch as the respondent's position as ticket collector of the Howrah Division was 634 out of the total strength of 800. The validity of Rule 149 itself was challenged in the petition on various grounds, but as the same was not persisted in, ft is not necessary to go into the same. The grounds which were put forward at the hearing before the learned trial Judge and before us were: 1. Disciplinary proceedings having been initiated against the respondent and purported to be dropped the termination of service under Rule 149 was really by way of punishment and as such invalid because no hearing was given to the respondent. 2. In exercising powers under Rule 149 of the Railway Establishment Code the General Manager had taken recourse to an indirect method to achieve that which he could not have done directly by drawing up proceedings and submitting charge -sheet to the respondent and following normal disciplinary procedure. 3. The exercise of powers under Rule 149 was mala fide on the facts of this case.
(3.) THE termination of service was bad and in contravention of the provisions of the Industrial Disputes Act. 4. The only affidavit -in -opposition in this case was affirmed by the Divisional Commercial Superintendent Mr. Khanna The points made in this affidavit are: (a) The deponent had no reason to be inimically disposed towards the respondent and there was no question of taking revenge on him. (b) The incident of the respondent's taking Re. 1 illegally from a third class passenger to pass out lome unbooked luggage was true as thesaid luggage was weighed and found to be 25 Kg in excess over the examption limit and a statement had been taken from the passenger concerned to that effect. (c) The respondent was placed under suspension as an investigation into his conduct was contemplated by the railway authorities at the time. No charge sheet could be submitted before the completion of the contemplated investigation and in fact no charge sheet, was ever issued to the respondent. (d) The order of August 22, 1961 was inaccurately worded and should have stated that 'the intention of taking disciplinary proceeding against him was being dropped' in place of the words 'it had been decided to drop the disciplinary proceeding initiated against him.' (e) It was the General Manager who directed the termination of the service of the respondent under Rule 149 and it was not by way of penalty. The respondent never exerted any influence over the General Manager in the matter.;