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2002 DIGILAW 559 (ALL)

JITENDRA SRIVASTAVA v. UNION OF INDIA (UOI)

2002-04-17

M.KATJU, RAKESH TIWARI

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M. KATJU, RAKESH TIWARI, JJ. ( 1 ) HEARD Sri Shashi Nandan, learned counsel for the petitioner and Sri Govind Saran, learned counsel for the Union of India. ( 2 ) THE petitioner is challenging the impugned order dated 30/31 August, 2001, passed by the secretary, Railway Board, Government of India, New Delhi, Annexure-18 to the writ petition. It appears that the petitioner was selected by the U. P. Public Service Commission, Allahabad and was given appointment on 21st January, 1991 in the Indian Railway Traffic Services Group a, he joined the training at Lal Bahadur Shastri National Academy of Administration, Mussoorie, u. P. , on 16. 9. 1991 and completed the same on 20. 12. 1992. He was thereafter, sent for further training at Railway Staff College, Vadodra and attended his training upto 11,6. 1993 as stated in paragraph 7 to the writ petition. ( 3 ) IN paragraph 8 of the writ petition, it is stated that the petitioner wanted to appear for I. A. S. On 18. 1. 1993, he wrote a letter to the Senior Professor, Railway Staff College, Vadodra seeking permission to appear in the said examination. The petitioner came to Allahabad to appear in the examination on 13. 6. 1993. The petitioner has alleged that he then fell ill and sent several letters with medical certificates for leave. Suddenly, by an order dated 7. 11. 1994 the service of the petitioner was terminated vide Annexure-11 to the writ petition. ( 4 ) THE petitioner approached the Central Administrative Tribunal, Allahabad. The Central administrative Tribunal has dismissed the original application of the petitioner on 19. 5. 1999 vide Annexure-14 to the writ petition. He then approached this Court through Writ Petition No. 36393 of 1999, which was allowed by a Division Bench of this Court vide judgment dated 6. 12. 2000, Annexure-16 to the writ petition. This Court in its judgment held that the order of termination of the petitioners service was punitive and was passed without giving any opportunity of hearing to the petitioner and hence the termination order was vitiated. However, the authority concerned should pass a fresh order after hearing the petitioner. It appears that thereafter the impugned order dated 30/31. 8. 2001. Annexure-18 to the writ petition, was passed, against which the present writ petition has been filed. However, the authority concerned should pass a fresh order after hearing the petitioner. It appears that thereafter the impugned order dated 30/31. 8. 2001. Annexure-18 to the writ petition, was passed, against which the present writ petition has been filed. ( 5 ) THE learned counsel for the respondent has raised two preliminary objections. Firstly, he has submitted that the order dated 30/31. 8. 29o1 raises a fresh cause of action. Hence the petitioner should approach the Central Administrative Tribunal before coming to this Court. In our opinion, the petitioner has already approached the High Court against the order of the Central administrative Tribunal, Allahabad, dated 19. 5. 1999. Hence, in our opinion, it is not necessary for the petitioner again to approach the Central Administrative Tribunal as that will only delay the matter. In our opinion, in such cases where the petitioner has earlier challenged the order of the Central Administrative Tribunal, the decision in L. Chandra Kumar v. Union of India, 1997 sco (L and S) 577, is distinguishable and the petitioner can directly approach this Court. The second objection of the learned counsel for the respondent is that this writ petition should be filed before the Lucknow Bench of this Court as the impugned order was passed in Delhi and the petitioner is residing In Lucknow. In our opinion, since the cause of action is in continuation from the decision of the Central Administrative Tribunal, Allahabad, dated 19. 5. 1999 and the judgment of this Court sitting at Allahabad, dated 6. 12. 2000 in Writ Petition No. 36393 of 1999, this writ petition can be entertained before the Allahabad Bench particularly since the petitioners previous writ petition has already been heard and decided here. ( 6 ) NOW coming to the merits, we have to observe that the law on the point at issue is well-settled. Article 311 (2) of the Constitution of India applies not only to permanent employees, but also to the temporary employees as held by the Honble Supreme Court in Chandra Prakash Shahi v. State of V. P. . 2000 (3) AWC 1848 (SC) ; 2000 SCC 152 . Article 311 (2) of the Constitution of India applies not only to permanent employees, but also to the temporary employees as held by the Honble Supreme Court in Chandra Prakash Shahi v. State of V. P. . 2000 (3) AWC 1848 (SC) ; 2000 SCC 152 . Since the petitioners service was terminated on the allegation that he was absent without leave, in our opinion, the order of termination is punitive as it is based on specific allegation of misconduct vide D. K. Yadav v. J. M. A. Industries, 1993 (3) SCC 259 , The submission of the learned counsel for the respondent that the termination was an over all assessment of the petitioners work, is, therefore, not correct. ( 7 ) ORDINARILY, when a minor punishment is sought to be Imposed, no personal opportunity of hearing need be given to the employee and only a show cause notice can be given and on the basis of his reply, the order of punishment can be passed. However, when a major punishment like termination on the basis of misconduct Is proposed to be imposed, then it is necessary to hold a full-fledged enquiry after giving a charge-sheet and fixing the date, time and place of enquiry. The charge-sheet should intimate to the petitioner that he can present his witnesses and cross-examine the witnesses against him, As stated In paragraphs 5 and 6 of the supplementary-affidavit, neither any charge-sheet was given to the petitioner nor any enquiry was held. Hence, we hold that the Impugned termination order dated 30/31. 8. 2001 is Illegal. ( 8 ) IN the case of Chandra Prafcash Shohi (supra), it was held that the Court can lift the veil, even if the order is innocuous on its face and the Court can hold that it Is a punitive order. ( 9 ) THE writ petition is allowed and the order dated 30/31. 8. 2001 is quashed. However, it is open to the respondent, If so advised, to give charge-sheet to the petitioner and hold a full-fledged enquiry against him giving full opportunity of hearing including the opportunity to present his witnesses and to cross-examine the witnesses against him. ( 10 ) IF the authority concerned does not give charge-sheet within six weeks from today, the petitioner will be reinstated Immediately after the expiry of the period of six weeks. ( 10 ) IF the authority concerned does not give charge-sheet within six weeks from today, the petitioner will be reinstated Immediately after the expiry of the period of six weeks. ( 11 ) LET a copy of this order be given to the learned counsel for the parties on payment of usual charges within 48 hours.