NANIK AWATRAI CHAINANI versus UNION OF INDIA

Citation: [1971] 1 S.C.R. 650 · Decided: 20-07-1970 · Supreme Court of India · Bench: A.N. RAY · Disposal: Dismissed

Judgment (excerpt)

i50 
NANIK AWATRAI CHAINANI 
v. 
UNION OF INDIA 
July 20, 1970 
[A. N. RAY AND I. D. DUA, JJ.] 
Indian Railways Act (9 of 1890), ss. 3(7), 138 and 1411(2) and 
Art. 311 of the Constitui'ion,_Licensee of Railv.:ay stall-Whether railway 
servant--Tennination of agreenient-Rights of licensee-~Vheth~r entitled 
to benefit of Art. 311-Relationship of master and servant. 
The appellant was running two stalls-a tea stall and a refreshment 
stall-at a railway station. They were allotted to him by the .Railway 
administration under two separate identical agreements of different dates. 
which provided that the appellant was to run the stalls in accordance 
with the directions of the Railway administration and among other terms 
for 
terminatio~ of the agreement<, they were also terminable by one 
month's notice on either .&ide without assigning any reason. 
As 
the 
appellant had committed certain irregularities in running the stalls, a 
fine was impoi;ed on him in terms of the agreements. 
Since the fine was 
not paid he was given notice to vacate and when be failed to do so, the 
agreement< were terminated, and possession 
was sought to be secured 
through the Magistrate under s. 138 of the Indian Railways Act. The 
appellant moved the Sessions 
Court and High Court on revision but 
without success. 
In appeal to this Court, 
HELD : ( 1 ) In view of tho fact that the terms of the agreements which 
govern the parties exp'ressly reserve to the Railway administration 
ex-
tensive power of directing and regulating the appellant's work and also of 
controlling the manner of doing the work, which is necessary for affording 
amenities to the travelling public, the appellant would be a railway servant 
as defined in s. 3(7) read with s. 148(2) of the Indian Railways Act, 
against whom action can be taken under s. 138. [S. L. Puri v. Em~ror, 
A.I.R. 1937 Lahore 547 and R. L. Mazumdar v. Alfred Ernest, A.I.R. 
1959 Cal. 64, approved.] [655 D-F] 
(2) By reason of being a railway servant the appellant did not •uto-
matically become entitled to the protection afforded to Government aer-
vants by Art. 311 of the Constitution. 
He was neither a member of the 
civil service as contemplated by 
this Article nor was he dismissed, re-
moved or reduced in rank so •• to attract Art. 311(2). His rights are 
confined to the terms of the written agreements and if he considered that 
they had been wrongfully terminated, he could challenge sl!Ch termination 
in c;viJ court• under the law. [654 E-0] 
A 
B 
c 
D 
E 
F 
G 
(3) The e~press terms of the appellant's agreements exclude the herit-
able character of his right which is only 'a . contractual right of a bare 
licensee subject to the terms of the agreement.· No right outside 
these 
can be claimed by him. The fact that the appellant 
was allotted 
the 
stalls in order to rehabilitate him as a displaced person from Pakistan can- ' H 
not over-ride the terms of the agreements and absolve him of his obliga-
tions thereunder and permit him to avoid the consequences of the alleged 
breaches of agreements on bis part. (655 B-D, G-H) 
A 
B 
c 
D 
E 
F 
G 
H 
NANIK v. UNION (Dua, J.) 
651 
( 4) 
Merely because a judicial Magistrate passed the order under 
s. 1~8. _Indian Railways Ac~ five days after the dismissal of the appellant's. 
application under Art. 226 of the Constitution by the Gujarat High Court 
does not "'tablish malice on the part of the Magistrate. [656 A-BJ 
(5). The .relationship of. m~ter and servant is charact0rised by agree~ 
i;nent ot serv1c~. e~press or 1.mphed, and whether or not a given agreement 
1s one of servtce ts a question of fact depending on its t0rms considered 
as a whole. [655 HJ 
CRIMINAL APPELLATE JuRISD!CTION : Criminal Appeal No. 
51of1970. 
Appeal by special leave from the order dated October 23, 1969 · 
of the Gujarat High Court in Criminal Revision No. 407 of 1969. 
The appellant appeared in person. 
S. P. Nayar, for the respondent. 
The Judgment of the Court was delivered by 
Dua, J. 
In this appeal by special leave the appellant who· 
has appeared in person challenges the order of a learned single 
Judge of the Gujarat High Court (Shelat J.) dismissing in limine 
criminal revision against the order of the Sessions Judge dated 
October 4, 1969 dismissing the appellant's revision from the order 
of the Judicial Magistrate, Kaloi dated August 30, 1969 granting 
the application of the railway administration under s. 138 of the 
Indian Railways Act and directing the 

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