R.P. Singh vs Union of India

Hon''ble Sibghat Ullah Khan, J.—At the time of hearing no one appeared on behalf of the respondents even though the case was taken up in revised list. Accordingly, only the arguments of Sri R.G. Prasad, learned counsel for the appellant were heard and judgment was reserved.

This is plaintiff''s Second Appeal arising out of O.S. no.258 of 1974 which was dismissed on 6.9.1979 by Second Additional Munsif, Aligarh. Against the said decree plaintiff appellant filed Civil appeal no.402 of 1979 which was dismissed by Civil Judge, Aligarh on 12.8.1981 hence this Second Appeal.

This Second Appeal has been admitted on 4.9.2009 on substantial questions of law as framed in the memo of appeal at Serial no. 3 and 4 which are quoted below:

Whether the order of termination has been passed against the appellant without following the service conditions and rules is against the principles of natural justice?

Whether the order of termination dated 30.03.1977 as passed by the Assistant Mechanical Engineer is an order, passed by a competent authority who is below the rank of the appointing authority?

The case of the plaintiff appellant was that he was confirmed employee (khalasi) of defendant Northern Railway and was transferred to Aligarh in June 1965 where he worked till June 1972 and in June 1972 he was transferred to Kanpur; however, he made representation that his wife was ill, hence, transfer order should be cancelled which representation was accepted; but However, after two months same order of transfer from Aligarh to Kanpur was again passed. The plaintiff again made a representation against that which was not accepted hence he went on leave from 16.9.1972 to 24.1.1973.

First representation was made on the ground of illness of plaintiff''s wife and the Second representation was made on the ground of own illness of the plaintiff. It was further stated that from 24.1.1973 to 19.2.1973 plaintiff worked at Aligarh and was paid salary until 14.3.1973; that, thereafter, he was transferred to Allahabad on 18.5.1973 but at Allahabad no work was given to him and on 21.5.1973 he returned back to Aligharh where also he was not given any work; that he wrote in this regard to Train Examiner also on 25.5.1973, but no heed was paid. It was further pleaded that a charge sheet dated 3.10.1972 was given to the plaintiff on 21.7.1973 regarding which he gave explanation on 27.9.1973 and that transfer orders were passed by way of punishment hence those orders were void and illegal. It was further stated that plaintiff had agreed to work at Kanpur and he wrote a letter on 8.7.1973 to H.T.X. Aligarh for two months advance and T.A. Passes, however, that was not paid to him hence he could not joint at Kanpur.

During pendency of suit services of plaintiff were terminated on 30.7.1977. Plaint was got amended and prayer for declaring termination order to be illegal was also added.

Plaintiff admitted that Sri R.N. Mukherjee had been appointed as Inquiry Officer in his matter but there after no information was received by him. It was further pleaded that termination order passed during pendency of suit was null and void.

In the written statement it was pleaded that on 31.9.1972 plaintiff gave representation against his transfer orders, however, the same was rejected and he was informed on 20.10.1972 that Divisional Superintendent Allahabad through memo dated 21.5.1973 had asked him to report on duty at Juhi Kanpur but he did not go there. It was admitted that on 18.7.1973 (or 8.7.1973) plaintiff had given request letter stating that he was ready to work on Kanpur on the condition that T.A. and two months advance salary was paid to him, however, there being no provision for the same request was denied and it was intimated that he could be given one month''s advance salary provided that he came for the same and made a request. It was further pleaded that charge sheet dated 3.10.1972 was given to the plaintiff on 21.1.1973 and twice Inquiry Officer granted opportunity to him to appear but he did not come. (Second notice to appear was given on 24.10.1973 which was received by the plaintiff on 13.11.1973).

Plaintiff had filed writ petition also in this Court which was dismissed regarding the effect of the same issue no.4 was framed by the trial court. However, trial court decided the said issue in favour of the plaintiff and held that writ was summarily dismissed and nothing was decided therein.

Trial court, however, held that transfer order was not by way of punishment as at one stage on the representation of the plaintiff the transfer had been cancelled/postponed by few months.

Regarding fairness of inquiry trial court held that plaintiff admitted that he engaged Sri KP Agnihotri as his representative and he gave statement in the inquiry. Inquiry officer had submitted the report on 29.8.1975. Thereafter, show cause notice was given to the plaintiff alongwith the inquiry report. Even though plaintiff denied receiving the notice, however, through paper no.120 Ga which was written by the plaintiff, he had admitted that through memo dated 3.12.1975 notice dated 18.11.1975 was sent to him which he had received. Another show cause notice was given on 4.3.1977 which was not denied by the plaintiff he only said that if he received the same he might have given reply to that. Infact plaintiff had filed reply to the show cause notice dated 4.3.1977 which is exhibit A-19. The reply was that as suit was pending hence it was not possible to give any reply.

Defendants proved that inquiry was quite fair and plaintiff participated in the inquiry adduced evidence including his own statement and cross examined the witnesses of the department.

Lower appellate court has mentioned that learned counsel for plaintiff could not point out that how Sri R.S. Singh C.W.I. Tundla, who was appointed as Inquiry Officer was not competent to hold the inquiry. Lower appellate court further held that Sri R.N. Singh who passed the termination order was an officer of 2nd class and was not below the level of A.P.O., the appointing authority of the plaintiff as both the posts were of equal level. Lower appellate court also found that due opportunity was provided to the plaintiff which he availed and that not joining after the transfer order was grave misconduct as there was absolutely noting illegal in the transfer. The lower appellate court also found that defendants granted several opportunities to the plaintiff and did not show any haste in concluding the disciplinary proceedings. Lower appellate court also found that show cause notice annexing therewith copy of inquiry officer report was given to the plaintiff but he did not give any reply and that the disciplinary authority had applied its mind to the report of the Inquiry Officer and thereafter passed the termination order on 28.3.1977 (30.3.1977).

Accordingly, both the substantial questions of law are decided against the appellant. Full opportunity was provided to the appellant which he availed at the inquiry level. However, thereafter, he did not give reply to the second show cause notice. The officer who passed the termination order was equal in rank with A.P.O., the appointing officer of the plaintiff.

Accordingly, Second appeal is dismissed.