Union of India & ANR V. B. N.
Prasad  INSC 233 (9 December 1977)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
CITATION: 1978 AIR 411 1978 SCR (2) 397 1978
SCC (2) 462
Railway Act, 1882, s. 138-Whether envisages
any particular person holding a particular post be authorised to file a
complaint--Interpretation of s. 138.
A complaint u/s 138 of the Railways Act was
filed by the Dy.
Chief Commercial Superintendent N. F. Railway
to the Sub Divisional Magistrate for passing an order of eviction of the
respondent, a refreshment room contractor at Kishangunj Station, as he failed
to hand over possession after the expiry of the agreement on 10-7-70 and in
spite of notice to do so. The magistrate accepted the application and directed
the eviction of the respondent. The respondent filed a writ petition in the
Patna High Court that s. 138 could not be invoked as the complaint was not made
by an authorised person i.e. the Chief Commercial Superintendent. The High
Court accepted the plea, allowed the writ Petition and quashed the order of
Allowing the appeal by special leave the
HELD : (1) S. 138 of the Railways Act must be
construed liberally, broadly and meaningfully so as to advance the object
sought to be achieved by the Railways Act, as the provision is in public
interest meant to avoid inconvenience and expense for the travelling public and
gear up the efficiency of the Railway administration. [399 A] (2)Section 138
has widest amplitude and takes within its fold not only a. railway servant but
even a contractor who is engaged for performing services to the railway and the
termination of his contract by the Railway amounts to his discharge. [398 H,
399 A] Nanik Awatrai Chainani v. Union of India,  1 SCR 650, followed.
S. L. Kapoor v. Emperor, A.I.R. 1937 Lahore
547, R. L.
Mazumdar v. Alfred Ernest,A.I.R. 1959 Cal.
64; referred to.
(3) S. 138 only requires that an application
should be made by or on behalf of the railway administration. It does not require
that any particular person holding a particular post should be authorised to
file a complaint.[399 A-B]
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 93 of 1972.
Appeal by Special Leave from the Judgment and
Order dated 29-11-197i of the Patna High Court in Writ Jurisdiction Case No.
U. R. Lalit and Girish Chandra for the
D. P. Mukherjee, A. K. Ganguli and Mrs. E.
Udayarathnam for the Respondent.
The Judgment of the Court was delivered by
FAZAL ALI, J. This appeal by special leave is directed against the judgment of
the Patna High Court dated 29-11- 1971 by which the High Court has quashed an
order of the magistrate, directing the respondent to be evicted from the
railway premises. The appeal arises in the following circumstances 398 The
respondent was a contractor employed by the railway for supplying food in the
refreshment room at Kishanganj station. The last agreement signed with the
contractor is dated 10-7-1967, which expired on 10-7-1970. Thereafter, a notice
was given by the railway administration to the respondent for vacating the,
premises, and as he failed to do so, a complaint under s. 138 of the Indian
Railways Act was filed by the Deputy Chief Commercial Superintendent N.F. Railway
to the Sub-divisional magistrate for passing an order in terms of s. 138 of the
Railways Act. The magistrate accepted the application and directed the eviction
of the respondent.
The respondent thereupon filed a writ
petition in the High Court; mainly on the ground that s. 138 could not be
invoked as the complaint was not made by an authorized person. It was alleged
in the petition before the High Court that the complaint made by the Deputy
Chief Commercial Superintendent, was not maintainable, as it should have been
filed by the Chief Commercial Superintendent, according to the provisions of
the Railways Act. This plea appears to have found favour with the High Court
which allowed the writ petition and quashed the order of eviction.
Appearing in support of the appeal, Mr. U. R.
Lalit submitted a short point before us. He argued that s. 138 does not require
that the complainant should be specifically authorized by the Railways in order
to make a complaint maintainable. All that section 138 requires is that the
application should be filed on behalf of the railway administration. There can
be no doubt that the appellant was a high officer of the railway administration
and, therefore, in a position to file an application for eviction on behalf of
the railway administration. Section 138 runs thus :- " if a railway
servant is discharged or suspended from his office, or dies, absconds or
absents himself, and he or his wife or widow, or any of his family
representatives, refuses or neglects, after notice in writing for that purpose
to deliver up to the railway administration, or to a person appointed by the
railway administration in this behalf, any station, dwelling-house, office or
other building with its appurtenances, or any books, papers or other matters,
belonging to the railway administration and in the possession or custody of
such railway servant at the occurrence of any such even as aforesaid, any
Presidency Magistrate or Magistrate of the first class may, on application made
by or on behalf of the railway administration, order any police-officer, with
proper assistance, to enter upon. the building and, remove ;Any person found
therein and take possession thereof, or to take possession. of the books,
papers, or other matters, and to deliver the same to the railway administration
or a person appointed by the railway administration in that behalf." In
our opinion, a close perusal of this section clearly reveals that the provision
has widest amplitude and takes within its fold not only a railway servant but
even a contractor who is engaged for performing 399 services to the railway,
and the termination of his contract by the Railway amounts to his discharge, as
mentioned in s.
138. As the provision is in public interest
meant to avoid inconvenience and expense to the traveling public and gear up
the efficiency of the railway administration, it must be construed liberally,
broadly and meaningfully, so as to advance the object sought to be achieved by
the Railway Act.
Furthermore, the section only requires that
an application should be made by or on behalf of the railway administration.
The section does not require that any particular person holding a particular
post, should be authorized to file a complaints The- matter was considered by
this Court in Nanik Awatrai Chainani v. Union of India(1), where this Court
pointed out, while relying on decisions of the Lahore and Calcutta High Courts
that the appellant in the case was a railway servant, and an order of eviction
could be passed against him. This court relied on the definition of the railway
servant as contained in section 8(7) read with s. 148(2) of the Act. The Court
approved of the decision in S. L. Kapoor v. Emperor(2) and R. L. Mazumdar v.
Alfred Ernest(3), which had taken the view that, even a contractor is a railway
servant within the meaning of s. 138. In this connection, this Court observed
"The terms which govern the parties expressly reserve to the railway
administration extensive power of directing and regulating the appellant's work
and also to an extent, of controlling the manner of doing the work.
Keeping in view the purpose and object of
these agreements, namely, that of affording necessary amenities to the
travelling public, retention of this over-all power by the railway
administration is not only appropriate but necessary. The retention of this
power by the railway administration, in our view, constitutes relevant material
for sustaining the conclusion of the courts below that the appellant is a
railway servant, as defined in s. 3(7) read with s. 148(2), Indian Railways Act,
against whom action can be taken under s.
138 of the said Act." This court went to
the extent of holding that such a servant in view of the precarious contract
under which he had entered in the Railway service was not governed by art. 311.
In the case of S. L. Kapoor v. Emperor
(supra), the following observations were made :- "The termination of his
service by the railway under cl. 21 of the agreement amounts to his discharge
within the meaning of s. 138 of the Act, and he is therefore liable to dispossession
of the. premises which he was occupying as a servant of the railway." As
already indicated, this case was approved by this Court in the decision
mentioned above. In this view of the matter, it is manifest (1)  (1)
(2) A.I.R. 1937 Lahore 547.
(3) A.T.R. 1959 Cal. 64.
400 that the High Court has taken an
erroneous view of law in throwing out the complaint filed by the Deputy Chief
Commercial Superintendent an the ground that he was not authorized to file the
complaint. Even on the other question whether or not the, respondent was a
railway servant, as pointed out, the matter is no longer res integra and is
concluded by the decision of this Court referred to above. For these reasons,
the appeal is allowed, the judgment of the High Court is set aside and that of
the sub- divisional magistrate is restored.