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TMI Blog1958 (3) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 2-1-0 per ticket as against the correct charge of ₹ 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 Rule 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 horn service with effect from 18-3-1949. This was the order impugned by the respondent in his suit and must be qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Procedure Code, was a valid notice (2) that the order of removal dated 16-3-1949, was clearly an order of punishment, and (3) that it was illegal and ineffective, because the order was passed in contravention of the provisions of Section 240(3) of the Government of India Act, 1935. 5. Learned counsel for the appellant has contested before us the main finding of the learned Judicial Commissioner to the effect that the impugned order of 16-3-1949, was illegal and ineffective. He has referred us to Rule 148. Sub-rules (3) and (4) of the Indian Railway Establishment Code, Vol. I (pp. 20, 21) and has contended that the service of the respondent was terminated in accordance with the terms and conditions of his contract of service; therefore, Section 240 of the Government of India Act, 1935, does not apply in the present case. It is necessary to refer here to some of the rules of the Indian Railway Establishment Code. Sub-rules (3) and (4) of Rule 148, so far as they are relevant in this case, are in these terms: (3) The service of other (non-pensionable) railway servants shall be liable to termination on notice on either side for the periods shown below. Such notice is not howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and called upon to show cause why that or any lesser penalty should not be imposed. He should also be given three days' time in which to submit his explanation and be allowed reasonable facilities for the preparation of his defence. It should be noticed that Rule 1712 also con-templates two stages in a disciplinary enquiry: the first stage is when the railway servant is informed of the definite offences or failures on account of which it is proposed to impose the penalty, and the second stage is when he is called upon to show cause why that or any lesser penalty should not be imposed. 6. The argument of learned counsel for the appellant is that, on a proper construction, the impugned order dated 16-3-1949, was not an order imposing a penalty under Rule 1702, but was an order which terminated the service of the respondent in accordance with the conditions of his contract of service and therefore neither Section 240(3) of the Government of India Act, 1935 nor R- 1712 applied in the case of the respondent. We are unable to accept this argument. Article 311(2) of the Constitution is in terms similar to Section 240(3) of the Government of India Act, 1935. These provisions we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vas Ganesh v. Union of India (1957)IILLJ189Bom , wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with. In Khem Chand's case (B) (supra) it was held that the reasonable opportunity envisaged by the provisions of Section 240(3i) of the Government of India Act, 1935 and Article 311(2) of the Constitution included (a) an opportunity to the government servant to deny his guilt and establish his innocence which he can only do if he is told what the charges leveled against him are and the all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e punishment and suspension pending an enquiry. That distinction, however, does not affect the question at issue. The only question before us is if the order dated 16-3-1949. imposes penal consequences. It clearly does, because it withholds part of the pay of the respondent during the period of suspension. In clause (d) the impugned order stated that the respondent had a right of appeal under Rule 1717. That also shows that the order was clearly intended to be a penal order. Lastly, in the plaint the respondent pointed out further penal consequences which he had suffered. He pointed out that he did not get dearness allowance and house rent allowance from 8-2-1949 to 18-4-1949, etc. It is thus clear to us that the impugned order was a penal order, that is, an order by way of punishment and the principles laid down in the two decisions in the cases of Parshotam Lal Dhingra and Khem Chand should apply in the present case. As the impugned order clearly contravened the provisions of Section 240(3) of the Government of India Act, 1935, it was illegal and ineffective, as was rightly held by the learned Judicial Commissioner. 8. The other submission of learned counsel for the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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