1. Railway employee removed from service following allegations of misconduct — Challenge to legality of removal under Section 240(3) of Government of India Act, 1935. (Para 1 , 2 , 4 )
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1958 Supreme(SC) 25
SUPREME COURT OF INDIA
13th March, 1958.
S.R. DAS, C.J.I., T.L. VENKATARAMA AYYAR, S.K. DAS, A.K. SARKAR AND VIVIAN BOSE, JJ.
Union of India, Appellant
Versus
Jeewan Ram, Respondent.
Civil Appeal No. 379 of 1956.
Advocates appeared
M/s. R. Ganapathi Iyar and R. H. Dhebar, for Appellant; M/s. B. L. Airun and B. P. Maheshwari, for Respondent.
Advocates:
B.L.Airun, B.P.MAHESHVARI, R.Ganapathy Iyer, R.H.Dhebar
B.L.Airun, B.P.MAHESHVARI, R.Ganapathy Iyer, R.H.Dhebar
Termination of service is a punishment if based on misconduct and carrying penal consequences, requiring compliance with statutory protections like providing a reasonable opportunity to show cause. A notice under Section 80 CPC is valid if there is no substantial difference between the notice and the plaint.
Headnote:(A) Government of India Act, 1935 - Section 240(3) - Code of Civil Procedure, 1908 - Section 80 - Removal from service - Whether termination of service is a punishment or a contractual right - If the termination is founded on misconduct and carries penal consequences, such as withholding of pay or a right of appeal, it constitutes a punishment - In such cases, the government servant must be given a reasonable opportunity to show cause against the proposed action (Paras 6, 7).
(B) Code of Civil Procedure, 1908 - Section 80 - Validity of notice - Where there is no substantial difference between the relief claimed in the notice and the relief sought in the plaint, the notice is held to be valid (Para 8).
Facts of the case:
A permanent non-gazetted railway employee was removed from service following allegations of refusing to issue tickets at the correct rate. The order of removal cited a penalty rule, provided pay in lieu of notice, withheld half of the subsistence allowance during suspension, and allowed for an appeal. The employee challenged the removal as illegal due to non-compliance with statutory requirements for a fair hearing.
Findings of Court:
The order of removal was a penal order and not a simple termination of service under contract, as it imposed penal consequences and was explicitly termed as a penalty. Consequently, the failure to comply with the requirements of Section 240(3) of the Government of India Act, 1935, rendered the order illegal and ineffective.
Issues: Whether the order of removal from service was a contractual termination or a punishment attracting the protections of Section 240(3) of the Government of India Act, 1935, and whether the notice served under Section 80 of the Code of Civil Procedure was valid.
Ratio Decidendi: Termination of service is considered a punishment if it is based on misconduct and results in penal consequences. The explicit mention of a penalty rule, the withholding of pay during suspension, and the provision for an appeal all indicate the penal nature of the order. Such orders must adhere to the statutory requirement of providing a reasonable opportunity to the employee to represent their case.
Result: Appeal dismissed.
Legal Category Hierarchy
Table of Contents
2. Whether termination was a contractual exercise under service rules or a penal removal requiring compliance with statutory procedures for reasonable opportunity. (Para 5 , 6 )
3. Order of removal carried penal consequences including withholding of pay and right of appeal, indicating it was a punishment rather than a contractual termination. (Para 7 )
4. Termination of service founded on misconduct, negligence, or inefficiency constitutes punishment, requiring compliance with statutory requirements for a reasonable opportunity to show cause. (Para 6 )
5. Appeal dismissed; order of removal held illegal and ineffective. (Para 9 )
6. When is termination of service considered a punishment?
Termination is a punishment if it is founded on misconduct, negligence, inefficiency, or other disqualification, even if a contractual right to terminate exists. In such cases, statutory protections like Article 311(2) or Section 240(3) must be complied with. (Para 6 )
7. What constitutes a reasonable opportunity in disciplinary proceedings?
It includes an opportunity to deny guilt and establish innocence by knowing the charges, an opportunity to defend via cross-examination and witnesses, and an opportunity to represent against the proposed punishment after the enquiry. (Para 6 )
8. How is a penal order distinguished from a contractual termination?
A penal order is indicated by the imposition of penal consequences, such as withholding pay during suspension or providing a statutory right of appeal against the order. (Para 7 )
9. What is the standard for validity of a notice under Section 80 of the Code of Civil Procedure?
A notice is valid if there is no substantial difference between the relief claimed in the notice and the relief actually sought in the subsequent plaint. (Para 8 )
Judgment
S. K. DAS, J. : This is an appeal on behalf of the Union of India which has been brought to this Court on a certificate granted by the learned Judicial Commissioner of Ajmer and is directed against the Judgment and decree of the said Judicial Commissioner, dated 15-2-1954. By that judgment the learned Judicial Commissioner reversed the decision of the courts below and made a declaration in favour of the respondent to the effect that the order of removal from service passed against him on 16-3-1949, was illegal and ineffective. The facts giving rise to the appeal are these.
2. The respondent, who was the plaintiff in the court of first instance, was appointed an assistant booking clerk at Ajmer in the then B. B. and C. I. Railway system on 15-7-1947. He was permanent on 26-5-1948. On 7-2-1949, the respondent received a memorandum from the Station Master, Ajmer, to the effect that he had been placed under suspension from that date under the orders of the Traffic Superintendent, Ajmer. It was alleged against the respondent that on that date he had refused to issue forty-eight third class tickets for Makrana to a passenger, unless the latter paid Rs. 2-1-0 per ticket as against the correct charge of Rs. 1-15-0 and that he had further refused to issue all the forty-eight tickets for that station. A charge sheet was drawn up against the respondent on 21-2-1949, with regard to the allegations referred to above, and he was directed to show cause why he should not be punished with dismissal from service under R. 1702 of the Indian Railway Establishment Code, Vol. 1. This charge sheet was served on the respondent on 22-2-1949, and he was asked to submit his written explanation within seven days. The respondent submitted his explanation on 28-2-1949, and in that explanation he denied the allegations made against him. On 16-3-1949, an order was passed against the respondent stating that he would be given one month s pay in lieu of notice of removal from service with effect from 18-3-1949. This was the order impugned by the respondent in his suit and must be quoted in full.
"B. B. & C. I. Railway.
Notice of imposition of the penalty of removal from service under item (8) of Rule 1702.
From D. T. S. BKI.
To Jeewan Ram, Y 2093
R. A. B. C. AII
No. EY. 2093A.
You are hereby informed that in accordance with the orders passed by me you are given one month s pay in lieu of notice of removal from service with effect from 18-3-1949 A/N.
Date 16-3-49. Sd. D. T. S. BKI.
N. B. Please see reverse. P. T. O."
3. On the reverse appear the following notes :
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"(b) Settlement of your dues will be made at Ajmer C/o. S. M.
(c) You will be given a subsistence grant at the rate of 1/2 of your pay for the period you remained under suspension i.e., from 8-2-49 to 18-3-49, both dates inclusive.
(d) Under Rule 1717 an appeal against these orders lies to T. S. Ajmer".
4. The Respondent preferred an appeal against the order, which was dismissed on 3rd August 1949. Then, on 17-10-1949, the respondent served a notice under S. 80 of the Code of Civil Procedure on the General Manager, B. B. & C. I. Railway, and on 9-1-1950, the respondent brought a suit against the then Dominion of India in which he asked for the following reliefs :-
"(i) a declaration that the discharge of the plaintiff from service is illegal and arbitrary and that the plaintiff is entitled to the compensation claimed for;
(ii) for payment of Rs. 1120-9-7;
(iii) for payment of such amount as may fall due from the date of suit to the date of his re-instatement; and
(iv) for costs of the suit".
The learned Additional Subordinate Judge, Ajmer, dismissed the suit on the findings (1) that the notice under S. 80, Civil Procedure Code, was not in accordance with law, (2) that the order of removal of the respondent from service was not illegal, and (3) that the respondent was not entitled either to claim re-instatement or damages. The learned Additional Subordinate Judge pronounced his judgment on 5-11-195
