SATYA KINKAR CHATTERJEE Vs. M.S. GUJRAL AND OTHERS

JUDGEMENT

(1.) The petitioner's case in this writ application is that he joined the service of the East India Railway on 4.12.37 as a Clerk in the Personnel Branch of the said Railway at Dinapur. He was confirmed as a Clerk in 1939 and was promoted from post to post until he was appointed as Office Superintendent, Personnel Branch, Divisional Superintendent's Office, Dinapur, in July, 1966. In connection with the cases in the High Court and Lower Courts at Patna, he had to attend the offices of the Advocates concerned. But when Shri M.S. Gujral joined as Divisional Superintendent, Dinapur, in December, 1969, he expressed his displeasure at the maintenance of the Centralized Sec. for conducting the cases, of which the petitioner was in charge. On 6th August, 1970, the Divisional Personnel Officer, respondent no. 2, issued a direction to the petitioner not to go to Patna to instruct lawyers in pending cases either in this Court or in the lower courts. According to the petitioner's case, this was done at the orders of respondent no. 1. The Advocates concerned made a grievance when the petitioner was prevented from going to them because the work was suffering. Some modification in the system of sending the petitioner to the Advocate concerned was made by an order issued by respondent no. 2 on 11th September, 1970, a copy of which is Annexure 3 to this writ application. But this was not sufficient, and accordingly the lawyers wrote to the Law Officer, Eastern Railway, Calcutta, requesting him to issue necessary instructions to respondents 1 and 2 (respondent no. 3 is the Union of India) asking for a general permission to the petitioner to attend the office of the counsel at Patna whenever required by him. The letters were written by them on 30th September, 1970 and 2nd October, 1970. This annoyed respondent no. 1 and enraged him against the petitioner. As a consequence thereof, he made an order on 17th October, 1970 and communicated the same to the petitioner on the same day at 4 P.M. purporting to retire the petitioner with effect from the forenoon of Sunday, the 18th October, 1970. A copy of the impugned order is Annexure 5 to the writ application. According to the petitioner's case, he had applied for leave with effect from 19th October, 1970 with permission to leave the station on the 17th and to avail of Sunday along with the same as part of the leave. Immediately on receipt of the impugned order (Annexure 5) he wrote to respondent no. 1 protesting against the said order (Annexure 5) and requesting him to revoke it. This letter is Annexure 6. According to the rules, the petitioner's age of superannuation was 60 years and his date of birth being 1st February, 1913, he would have superannuated on 1st February, 1973. He was allowed to continue in service on attaining the age of 55 years after 1st February, 1968. In the first instance he was granted extension for 3 years although under the rules it was not necessary to do so. In the writ petition, the petitioner stated that Rule 2046 of the Indian Railway Establishment Code, Volume II, which is equivalent to Rule 56 of the Fundamental Rules, was modified by the President of India under Article 309 of the Constitution by a circular letter dated the 7th February, 1967. The petitioner was appointed to officiate in a higher post whenever it fell vacant, the latest of which was on the 31st August, 1970 for a period of 32 days, that is to say, 16 days prior to the order of respondent no. 1 compulsorily retiring the petitioner. The main grievance in the petition was that even in pursuance of Clause (h) of Rule 2046 of the Indian Railway Establishment Code, Volume II, the impugned order did not give the petitioner statutory 3 months' notice, it gave him 3 months' salary in lieu of the notice, for which there was no provision in Clause (h) at the relevant time. The petitioner's grievance is that the order was mala fide and illegal. Upon these allegations, he obtained a rule against the respondents to show cause why the order dated 17th October, 1970 contained in Annexure 5 be not called up and quashed by grant of an appropriate writ.

(2.) On 6.11.70 a supplementary affidavit sworn on 30.10.70 was filed, by which it was admitted that the provision for giving 3 months' pay in lieu of notice had been restored with effect from 15th March, 1969 when the rule was further amended hence that point would not be pressed. The amended rule was appended to this supplementary affidavit as Annexures 7 and 8.

(3.) A counter affidavit sworn by the Divisional Personnel Officer, respondent no 2, was filed on behalf of the respondents on 18.1.71. Very many facts stated by the petitioner in support of his writ application to show that the impugned order was made mala fide have been controverted in this counter -affidavit. I shall briefly refer to a few. In the 7th Paragraph it is stated that the petitioner used to attend the office of the Advocates of the High Court and the District Court at Patna and make enquiries from them in regard to the cases generally and answer their questions with regard to service rule and the notifications. The dealing Assistants of the respective cases were, however, deputed to assist the Advocates of the High Court and of the District Court as they had more insight and knowledge about the details of the cases dealt with by them. The petitioner used to go to the Advocates suo motu and used to make queries from them. In another Paragraph it is stated that in 1967 a Centralized Court Case Sec. was opened in the Personnel Branch in the office of the Divisional Superintendent, Eastern Railway, on an experimental basis for better and more efficient handling of court cases. This Sec. was placed under a Head Clerk and not under the petitioner. The petitioner, however, as an Office Superintendent had an over all supervision of all the Ss. in the Personnel Branch. Subsequently, on experiment it was found that the Centralized Court Case Sec. was not producing results, as was expected, and it did not prove to be better in any way than the previous arrangement. It was, therefore, decentralized again on and from 20.7.70, as would appear from a copy of office order (Annexure C). It was also felt that other staff of the Personnel Branch should be trained in court cases of the Personnel Department and hence the petitioner was directed by respondent no. 2 not to go to Patna without prior permission from him. The Advocates concerned were not made aware about the abolition of the Centralized Court Case Sec. in the Personnel Branch and in that ignorance they wrote the letters to the Divisional Superintendent and the Law Officer. The order dated 11.9.70 (Annexure 3) was not brought to the notice of the Advocates and the letter written by them to the Law Officer was never forwarded either to respondent no. 1 or 2, and they were not made aware of it. The assertion in the counter -affidavit is that the order (Annexure 5) was made by the appointing authority, respondent no. 1, in public interest and not mala fide, as alleged by the petitioner. It is further asserted that it is not correct to say that any application for leave effective from 19.10.70 and permission to leave the headquarters and to avail of Sunday, the 18th October, 1970, was received either on or prior to 17.10.70.