Lal Chandra Yadav vs Union Of India & Others

Om Prakash VII, Member (J)

The applicant has filed the present O.A. under Section 19 of the Administrative Tribunals Act, 1985 with the following prayer:-

i) to quash the impugned order dated 12/13.3.2009, passed by the Electricity Service Engineer, North Eastern Railways, Gorakhpur i.e. the respondent No. 5, to remove the applicant from service of the Railway and impugned order/ letter dated 12.5.2010 passed /sent by the General Manager (Personnel), North Eastern Railways, Gorakhpur i.e. the respondent No. 3 to Sri Kamlesh Paswan, Member of the Parliament (Loksabha)

ii) to reinstate the applicant from the put off, i.e. 12.3.2009 and also to direct the respondents to provide all consequential benefits of service to the applicant.

The facts emerges from the O.A. are that the applicant was appointed on the post of Bungalow Peon under the Chief Electricity Service Engineer, North Eastern Railways, Gorakhpur vide order dated 16.7.2007 against the substantive vacant post of Bungalow Peon. On 11.3.2008, a letter has been issued from the Office of G.M. Electricity, NER, Gorakhpur , applicant has completed 120 days of his service and his work is satisfactory and recommended to give temporary status to the applicant. Again vide order dated 12.3.2009, the work of the applicant has been shown unsatisfactory. In regard to not working since 15.10.2008 as stated in letter dated 12.3.2012, it is submitted that applicant was uninterruptedly going to perform his duty but the concerned respondents did not permit him to do the same. Applicant fell ill and could not attend his duty from 12.5.2008 to 9.6.2008 and on 10.6.2008, he went to the office for duty along with medical certificate. On 3.7.2008, charge sheet was issued to the applicant stating therein that applicant was absent from service without any prior intimation. Applicant submitted reply to the charge sheet . On 22.8.2008, applicant was allowed to perform his duty as no charge was found against him. On 14.10.2008, the applicant went to the Banglow of Chief Electricity Service Engineer i.e. respondent No.4 but respondent No. 4 told that he has no need of the applicant. Then applicant went to the office of Chief Electricity Engineer but he had also not permitted the applicant to perform his duty. Vide letter dated 30.10.2008, option was sought from the applicant whether he would prefer to go Bhuwneshwar or not because ex-Chief Electricity Service Engineer has been transferred to Bhuwaneshwar. Applicant replied vide letter dated 3.11.2008 that he want to perform his duty at Headquarter , Gorakhpur and is not able to go to Bhuwneshwar due to his family problems. Suddenly on 12/13.3.2009, respondent No. 5 passed the impugned order of removal of the applicant from service w.e.f. 12.3.2009, without issuing any notice or charge sheet. Earlier O.A. No. 728/2009 filed by the applicant was dismissed on 15.7.2009 on the ground that the applicant has not exhausted the departmental remedy and liberty was granted to the applicant to prefer appeal. Thereafter, applicant preferred appeal on 11.8.2009, which was decided by the Appellate Authority vide order dated 12.5.2010 and addressed to Sri Kamlesh Paswan, Member of Parliament (Lok Sabha) 87, South Block, New Dehi.

Learned counsel for respondents raised preliminary objection regarding limitation in filing the O.A., which was allowed by this Tribunal vide order dated 5.2.2015. In the Counter reply, learned counsel for respondents stated that in the appointment letter dated 16.10.2007, it is clearly mentioned that he had no right and claim to remain in the railway service and his service may be terminated at any time as and when required by the administration. He has not been granted temporary status, hence there is no question of conducting screening test of the applicant. It is further stated that work of the applicant has been adjudged satisfactory by the Chief Electrical service Engineer vide letter dated 11.3.2008 after completion of 120 days of service but vide letter dated 10.6.2008, his service was adjudged not satisfactory by the same officer. Applicant had been removed from service for unauthorized absence and unsatisfactory working and misbehavior to the then Chief Electricity Service Engineer, Gorakhpur. It is further submitted that as per rule , an incumbent has to inform about his sickness within 48 hours to the controlling authority but no information had been given by the applicant. In this regard a charge sheet has also been served upon the applicant against which applicant submitted reply on 11.7.2008. It is further submitted that applicant had submitted 4 applications dated 23.10.2008, 24.10.2008, 12.3.2009 and 13.3.2009 to the Chief Electrical Engineer for allowing duty but since the applicant had been appointed as Bungalow Peon of Chief Electricity Service Engineer, Gorakhpur, as such the Chief Electrical Engineer had rightly not interfered in the matter. It is further stated that after transfer of the then Chief Electricity Service Engineer, Gorakhpur, the new incumbent resumed the charge of Chief Electricity Service Engineer, Gorakhpur and he had passed an order dated 12.3.2009 stating that applicant was appointed as Bungalow peon of the then Chief Electricity Service Engineer, Gorakhpur and the working and behavior was not found to be good, due to which he has not been awarded temporary status. As such an order was passed for his removal from Railway service w.e.f. 15.10.2008 which has been communicated by the Assistant Electrical Engineer , Gorakhpur vide letter dated 12/13.3.2009. Appeal filed by the applicant has also been rejected vide order dated 12.5.2010.

Heard the learned counsel for the parties.

Learned counsel for the applicant submitted that the Railway has issued the Rules related to the recruitment of TADK/Bunglow Khalasi vide letter No. 803E/1/Pt. X/Eiv. Dated 13.1.1995 (P.S. No. 10960/95). The said provision has again been considered in detail in Board’s office and vide letter dated 31.12.1997 ( Annexure SA-1 to the Supplementary Affidavit), it has been held that as the Bungalow peon are engaged as substitutes, they are to be considered temporary status on completion of 120 days of continuous service and with the conferment of temporary status, they are to be provided with all the facilities as are applicable to other temporary status substitutes. Further they are to be considered for absorption against Group D post on completion of 3 years of service. The rights and privileges have been provided in para 2515 (now para 2002) of IREM Vol. II, itself. Since the applicant has completed 120 days, hence it is deemed that applicant has been granted temporary status vide letter dated 11.3.2008 hence he cannot be terminated without any show cause notice. Before terminating the service of the applicant, disciplinary proceeding is must. Vide letter dated 28.8.2008, the applicant was allowed to perform his duty as no charges were found against him. It is further submitted that till 15.10.2008 the wages has been given to the applicant. Thereafter, the applicant was restrained to perform his duty. The service of the applicant was removed w.e.f. 12.3.2009 without proper disciplinary proceeding. It is further submitted that applicant had worked at Bunglow peon with Sri H.P. Agrawal, Chief Electricity Service Engineer and on his transfer to Bhuwneshwar, new incumbent Sri A.K.Singhal resumed the charge and had passed an order dated 12.3.2009, stating that applicant was appointed as Bungalow Peon of the then Chief Electricity Service Engineer (CESE), North Eastern Railway, Gorakhpur and behavior is not good, due to which he had not been awarded temporary status. As such, he passed an order for his removal from Railway service w.e.f. 15.10.2008, which has been communicated to the applicant vide letter dated 12/13.3.2009. Learned counsel for applicant has relied upon on following case law:-

i) O.A. No. 523 of 2007 (Sanjay Charles Vs. UOI and others) decided on 1.8.2018, CAT, Allahabad Bench.

Learned counsel for the applicant has also filed written submission by which he has reiterated the facts as stated in the O.A. He has also relied upon on the following case laws:-

i) Union of India Vs. Basant Lal LAWS (SC) 1992 2 74

ii) Lakhi Ram Vs. UOI LAWS (DLH) 2007 10 38

iii) O.A. No. 649 of 2016 (Gulshan Sharma Vs. UOI and others) decided on 27.8.2019 (CAT- Cuttack Bench)

iv) Baijnath Mandal Vs. UOI LAWS (DHL) 2014 12 212

v) Union of India through General Manager, Metro Railway Vs. Saroj Kumar Rai son of Sri Kapil Deo Rai LAWS (PAT) 2010 7 122.

vi) Shri Dharamendra Kumar Yadav Vs. UOI and others (O.A. No. 2867/2002 decided on 24.11.2005( CAT-PB)

Learned counsel for respondents argued that no temporary status has been given to the applicant. Earlier, vide order dated 11.3.2008 after completion of 120 days of service, applicant was recommended for temporary status and work of the applicant has been adjudged satisfactory, but later on vide letter dated 10.6.2008, his work was adjudged unsatisfactory. A charge sheet dated 3.7.2008 was issued to the applicant for unauthorized absence from duty. It is further submitted that no screening test has been held for the applicant. Since the applicant has not been granted temporary status, therefore, there is no need to issue show cause notice to the applicant initiating disciplinary proceeding before terminating the service of the applicant. It is further submitted that in the appointment letter it has clearly been mentioned that services of the applicant can be terminated at any time and his services will be treated as regular when applicant will clear the Screening test. No screening test has been held for the applicant. Learned counsel for the respondents produced Railway Board letter dated 17.9.2010 regarding appointment of substitutes of Ralways in which it is stated that “They should be allowed all the rights and privileges as are admissible to temporary Railway employees on attainment of temporary status on completion of four months of continuous service. The conferment of temporary status after completion of four months continuous service does not entitled them to automatic absorption /appointment to Railway service unless they are selected in the approved manner for appointment or absorption to regular posts. A Screening Committee should be constituted to screen the substitutes with temporary status for their absorption in regular posts. Such screening committee should consist of at least three Railway Officers of appropriate rank, one belonging to SC/ST communities and another to minority community. It is further stated that unauthorized absence or stoppage of work will be treated as a break in continuity of employment.” Learned counsel for respondents has also placed reliance on the following case laws:-

i) Union of India through General Manager, NER, Gorakhpur Vs. Dhiraj Kumar Tiwari (Service Bench No. 680 of 2015 ) decided on 15.5.2015 by Hon’ble High Court of Allahabad, Lucknow Bench.

ii) Union of India through General Manager North Eastern railway Vs. Mahendra Babu (Service Bench No. 448 of 2016) decided on 11.9.2018 by Hon’ble High Court of Allahabad, Lucknow Bench.

We have considered the rival submissions and have gone through the entire record.

From perusal of record, it is evident that vide letter dated 11.3.2008 after completion of 120 days of service, applicant was recommended for temporary status and work of the applicant has been adjudged satisfactory, but later on vide letter dated 10.6.2008, his work was adjudged unsatisfactory. A charge sheet dated 3.7.2008 was issued to the applicant for unauthorized absence from duty. It is admitted fact that no screening test was held for regularization of the applicant. No formal order for granting temporary status has been issued in favour of the applicant. In addition to that it is worth mentioning that newly joined Chief Electricity Service Engineer, Gorakhpur, who is competent authority had passed an order dated 12.3.2009 stating that applicant was appointed as Bungalow peon of the then Chief Electricity Service Engineer, Gorakhpur and the working and behavior was not found to be good, due to this reason he had not been awarded temporary status. An order was passed for his removal from Railway service w.e.f. 15.10.2008 which has been communicated by the Assistant Electrical Engineer, Gorakhpur vide letter dated 12/13.3.2009. Appeal filed by the applicant has also been rejected vide order dated 12.5.2010. Since, the applicant was not selected in the approved manner for appointment and applicant has never appeared in screening test, hence we are of the view that applicant cannot be treated as temporary employee.

In the case of Sanjay Charles Vs. UOI (supra), relied upon by the learned counsel for the applicant, the applicant was granted temporary status but in the instant case, temporary status has not been granted to the applicant. Only the case of applicant was recommended for temporary status which was later on withdrawn due to unsatisfactory service. Hence applicant cannot be extended the benefit of aforesaid case law.

In the case of UOI Vs Basant Lal (supra), the applicants had worked continuously for more than 102 days in open line and had worked more than 360 days on project acquire temporary status. Services of the applicants were terminated orally. Tribunal quashed the termination order and directed to reinstate the applicants in service. Union of India filed appeal before Hon’ble Apex Court challenging the Tribunal order dated 16.3.1990 and Hon’ble Apex Court allowed the appeal with direction to pay the back wages to the applicants. In the instant case applicant was engaged as a Bangalow peon by Sri H.P. Agrawal, Chief Electrical Service Engineer and vide letter dated 11.3.2008, his case was recommended for temporary status but again vide letter dated 10.6.2008, his services were adjudged not satisfactory by Sri H.P. Agrawal. It is stated in the letter dated 10.6.2008 that applicant was earlier advised on 4.1.2008 regarding his unsatisfactory work and bad behavior but he has not improved his behavior and conduct. On the basis of working report dated 10.6.2008, vide letter dated 12/13.3.2008, service of the applicant has been terminated w.e.f. 15.10.2008. Hence the case of UOI Vs. Basant Lal will not be applicable in the present O.A.

In the case of Lakhi Ram Vs UOI, in this case applicant acquired temporary status on 5.7.2003, but in the instant case, applicant was not given temporary status. Hence this case will not be helpful to the applicant.

In the case of Gulshan Sharma vs. UOI, the O.A. was allowed on the ground that allegation of unauthorized absence was not mentioned in the order dated 2.8.2016 , whereas in the instant case in the impugned order dated 12.5.2010, it is clearly mentioned that applicant was absent from duty without information from 12.5.2008 to 21.8.2008. Applicant was issued minor penalty chare sheet on 3.7.2008 and after considering the reply of the applicant, his annual increment was stopped for 35 months. Hence this case will also not helpful to the applicant.

In the case of Baijnath Mandal Vs UOI, in this case applicant acquired temporary status vide communication dated 7.6.2000 w.e.f. 27.5.2000, but in the instant case, applicant was not given temporary status. Hence this case will not be helpful to the applicant.

In the case of UOI Vs. Saroj Kumar Rai (supra), Hon’ble High Court of Patna observed that “the termination order dated 25.1.2006 clearly shows that it is an order of termination simplicitor without raising any allegations either of unauthorized absence or misconduct”, whereas in the instant case in the impugned order dated 12.5.2010, it is clearly mentioned that applicant was absent from duty without information from 12.5.2008 to 21.8.2008. Applicant was issued minor penalty charge sheet on 3.7.2008 and after considering the reply of the applicant, his annual increment was stopped for 35 months. Hence this case will also not helpful to the applicant.

In the case of Shri Dharmendra Kumar Yadav Vs. UOI (supra) others, in this case temporary status was granted to the applicant w.e.f. 25.12.1999, but in the instant case, applicant was not given temporary status. Hence this case will not be helpful to the applicant.

In the case of UOI through G.M. NER, Gorakhpur Vs. Dhiraj Kumar Tiwari (supra), Hon’ble High Court of Allahabad, Lucknow Bench has observed as under:-

“The writ petition arises from a judgment and order of the Central Administrative Tribunal1 at its Lucknow Bench dated 24 February 2015. The respondent was initially engaged as a substitute Telephone-cum-Dak Khalasi under the Senior Divisional Mechanical Engineer, Lucknow. The order of appointment was issued on 20 June 2011 by the Assistant Personnel Officer. The letter of appointment clearly specifies that the appointment was as a substitute and that the respondent would have no right to a substantive or permanent appointment. The letter of appointment also stated that the appointment could be terminated as necessary. The appointment was terminated on 8 August 2011 by the Assistant Personnel Officer on the ground that the officer with whom the respondent was attached had been transferred. The respondent filed proceedings before the Central Administrative Tribunal to challenge the termination.

The Tribunal allowed the original application and set aside the order on the ground that it had been issued in violation of the provisions of the Indian Railway Establishment Manual more particularly paragraph 1502 of Chapter – XV since a notice had not been furnished to the respondent. Tribunal however granted opportunity to the petitioners to follow due process in accordance with paragraph 1502 of the IREM, Chapter XV. The submission which has been urged on behalf of the petitioners is that the Tribunal in holding that the termination was invalid has ignored the provisions of clause (4) of paragraph 1502.

Paragraph 1502 reads as follows :

1502. Termination of service and periods of notice: -

(1) When a person without a lien on a permanent post under Government is appointed to hold a temporary post or to officiate in a permanent post, he is entitled to no notice of the termination of his service, if such termination is due to the expiry of the sanction of the post which he holds or the expiry of the officiating vacancy, or to his compulsory retirement due to mental or physical incapacity or to his removal or dismissal as a disciplinary measure after compliance with the provisions of Clause (2) of Article 311 of the Constitution of India. If the termination of his service is due to some other cause, he shall be entitled to one month's notice provided he was engaged on a contract for a definite period and the contract does not provide for any other period of notice; and to a notice of 14 days if he was not engaged on a contract. Temporary railway servants with over three years continuous service shall, however, be entitled to a month's notice. The periods of notice specified above shall apply on either side, and steps should be taken to bring this condition to the notice of the Railway servants concerned.

(2) Apprentices :- Except as otherwise provided in his service agreement, the service of the apprentice shall be liable to termination on one weeks' notice. (3) Certain Other Railway Servants :- The service of certain other Railway servant specified below shall be liable to termination of notice on either side for the periods shown against each. Such notice is not, however, required in cases of dismissal or removal as a disciplinary measure after compliance with the provisions of Clause (2) of Article 311 of the Constitution and compulsory retirement due to mental or physical incapacity.

(a) Probationary Officers and Group 'A' and Group 'B' Railway servants on probation 3 months notice

(b) Group 'C' and Group 'D' Railway servants on probationary 1 month notice

(c) Gazetted Railway Servants on probation in the Medical department 1 month notice

(4) The service of any of the Railway servants mentioned in Clause (1), (2) and (3) who is entitled to a notice of stipulated period may be terminated forthwith and on such termination, the Railway servants shall be entitled to claim a sum equivalent to the amount of his pay plus allowance for the stipulated period of notice at the same rates at which he was drawing them immediately before the termination of his service or, as the case may be, for the period by which such notice falls short of the stipulated period of notice. Note :-The appointing authorities are empowered to reduce or waive, at their discretion, the stipulated period of notice to be given by Railway servant but the reason justifying their action should be recorded. This power cannot be redelegated.

(5) The notice of termination of service or order of forthwith termination of service, as the case may be, under this rule should be given by the authority not lower than the appointing authority.

(6) Notwithstanding anything contained in Clauses (1), (2) and (4) above, if the Railway servant or apprentice is one to whom the provision of the Industrial Disputes Act, 1947 apply, he/she shall be entitled to notice or wage in lieu thereof in accordance with the provisions of that Act.

Note :- No notice of termination will be necessary in a case where temporary railway servant is deemed to have resigned his appointment and ceased to be in employment if such person remained absent on extraordinary leave beyond a limit of five years for whom no show cause notice is required, as in the case of permanent railway servant.”

Clause (4) of paragraph 1502 makes it abundantly clear that the service of any railway servant mentioned in clauses (1), (2) and (3) who is entitled to a notice of a stipulated period may be terminated forthwith and on such termination, such a person would be entitled to claim a sum equivalent to his pay and allowances for the period of notice. Hence the failure to furnish a notice to the respondent who was a substitute employee would not invalidate the order of termination, but the respondent would be entitled upon the termination to his pay and allowances for the period of notice. The payment of the pay and allowances for the period of notice is not a condition precedent to an order of termination nor does the validity of the order depend upon such payment. As a matter of fact, the words “on such termination, the railway servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowance for the stipulated period of notice” are a clear indication of the fact that the payment would be made after the termination, if no notice has been issued or if the notice falls short of the stipulated period.

But the learned counsel appearing on behalf of the respondent submitted that under the note, appended to paragraph 1502, the appointing authority was empowered to reduce or waive the stipulated period of notice. The submission was that, in the present case, the appointment was issued initially by the Assistant Personnel Officer with the approval of the General Manager, whereas according to the learned counsel, the termination though by the Assistant Personnel Officer was with the approval of the Additional Divisional Railway Manager. In our view, the fact that the approval to the termination was granted by the ADRM would make no difference to the legal position. Once the appointing authority was the Assistant Personnel Officer as is evident from the letter of appointment dated 20 June 2011 and the termination is by the same authority, there would be no breach of the provisions of the note appended to paragraph 1502.

The Tribunal has clearly erred in overlooking the provisions of clause (4) of paragraph 1502 of Chapter XV of the IREM. The impugned order is, therefore, liable to be set-aside. We, accordingly, allow the writ petition and set aside the impugned judgment and order of the Tribunal dated 24 February 2015.

The writ petition stands disposed of in these terms. There shall be no order as to costs.”

Similar view has been taken in UOI through G.M. NER,Vs. Mahendra Babu (supra) case.

In both the cases referred to by the learned counsel for the respondents, Hon’ble High Court of Allahabad, Lucknow Bench has observed that Clause (4) of paragraph 1502 makes it abundantly clear that the service of any railway servant mentioned in clauses (1), (2) and (3) who is entitled to a notice of a stipulated period may be terminated forthwith and on such termination, such a person would be entitled to claim a sum equivalent to his pay and allowances for the period of notice. Hence the failure to furnish a notice to the respondent who was a substitute employee would not invalidate the order of termination, but the respondent would be entitled upon the termination to his pay and allowances for the period of notice. The payment of the pay and allowances for the period of notice is not a condition precedent to an order of termination nor does the validity of the order depend upon such payment. As a matter of fact, the words “on such termination, the railway servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowance for the stipulated period of notice” are a clear indication of the fact that the payment would be made after the termination, if no notice has been issued or if the notice falls short of the stipulated period. Ratio laid down in these cases are fully applicable to the facts of the present applicant. If the notice has not been given to the applicant before termination of service, applicant can claim a sum equivalent to the amount of his pay plus allowances for the stipulated period of notice after the termination.

Considering the facts and circumstances as discussed above, we found no merit in the O.A. Accordingly, O.A. is dismissed. However, applicant has liberty to claim a sum equivalent to the amount of his pay plus allowances for the stipulated period of notice, if he so advised.

There shall be no order as to costs. All pending MAs in this O.A. also stand disposed off.