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2012 DIGILAW 130 (GAU)

Union of India v. Amar Kumar Singh

2012-02-01

AMITAVA ROY, P.K.MUSAHARY

body2012
JUDGMENT Amitava Roy, J. 1. The judgment and order dated 02.11.2011 passed by the learned Central Administrative Tribunal, Guwahati Bench, Guwahati (hereinafter for short referred to as the Tribunal) in Original Application No. 316 of 2010 has been called in question in the instant proceeding under Article 226 of the Constitution of India. We have heard Ms. B. Devi, learned counsel for the petitioners and Mr. A. Ahmed, learned counsel for the respondent. 2. Briefly, stated the facts in bare essential necessary for the disposal of the instant petition are that, the respondent herein had been appointed as Substitute Emergency Peon (for short hereinafter referred to as the SEP) in the scale of Rs. 2550-3200/- by the official communication No. E/283/45(E) (LOOSE) dated 13.08.2008. Clause 3 of that letter is extracted herein-below:- 3. You will be transferred with the officer with whom you are engaged as substitute E/ Peon or you will be discharged in the event of the officer for when you are engaged express his unwillingness to take you on transfer alongwith him. After his appointment, the respondent was attached to one Mr. S.Y. Mendhekar, Dy. CE/ TD, CST N.F. Railway and started discharging his duties in the aforementioned capacity. This departmental authority (impleaded as Respondent No. 4 in the Original Application before the learned Tribunal) was transferred to Central Railway, Mumbai vide Railway Board's letter No. E(O)III-2008/AE/241 dated 08.08.2011. As the respondent herein claimed to have expressed his willingness to accompany the said authority to his new place of posting, the Respondent No. 4, on 25.09.2008 addressed a letter to the General Manager (P), N.R Railway disclosing this to the latter with a request to transfer the respondent to Central Railway, Mumbai and solicited necessary action in that regard. On the very same date, the respondent also addressed a letter to the same authority reiterating the contents of the letter of the even date of the Respondent No. 4, in which he expressed his unqualified willingness for transfer to the Central Railway so as to enable him to work under him (Respondent No. 4). 3. While the matter rested at that, by order No. E/283/45 (E) Loose dated 15.12.09 issued by the SPO/Engg., General Manager (P), Maligaon the services of the respondent was terminated w.e.f. 26.09.2008 with one month's Notice Pay. 3. While the matter rested at that, by order No. E/283/45 (E) Loose dated 15.12.09 issued by the SPO/Engg., General Manager (P), Maligaon the services of the respondent was terminated w.e.f. 26.09.2008 with one month's Notice Pay. Being aggrieved, the respondent laid a challenge to this decision before the learned Tribunal and as referred to hereinabove, by this judgment and order impugned in the instant proceeding, the same was annulled with a direction to the petitioners herein to reinstate him in service within a period of two months from the date of the receipt of the order. 4. Ms. B. Devi has argued with reference to Rule 301 of the Indian Railway Establishment Code, Volume-I (hereinafter for short referred to as the Code) that as admittedly no official order for transfer of the respondent to Mumbai to remain attached with the Respondent No. 4 had been passed, his absence from the duty under the N.F. Railways has been rightly construed to be a serious lapse on his part and thus the decision to terminate his services is unassailable in law and on facts. Pointing out that there is no vacancy under the Central Railway as well to accommodate the respondent, the learned Standing Counsel has maintained that the direction of the learned Tribunal to re-instate him ought to be interfered with. As at all relevant point of times the respondent was a temporary appointee and had no substantive right in the post held by him, the termination of his services for his unauthorized absence from duty in terms of Rule 301 is valid and therefore the learned Tribunal fell in gross error in quashing the same. Ms. Devi has further urged with reference to the letter dated 07.02.2011 (Annexure-E) to the Respondent No. 4 that the plea of the respondent that his services had been utilized by the said authority in Mumbai is utterly false. 5. Mr. Ahmed, on the other hand, has argued that as both the Respondent No. 4 and respondent had in unison communicated to the General Manager (P), N.R Railway, Maligaon of his (respondent) willingness to be posted under the Central Railways in terms of Clause 3 of the appointment order dated 13.08.2008, the charge of unauthorized absence is baseless. 5. Mr. Ahmed, on the other hand, has argued that as both the Respondent No. 4 and respondent had in unison communicated to the General Manager (P), N.R Railway, Maligaon of his (respondent) willingness to be posted under the Central Railways in terms of Clause 3 of the appointment order dated 13.08.2008, the charge of unauthorized absence is baseless. Moreover, the impugned order of termination is not in consonance with the letter and spirit of Rule 301 of the Code as well thus rendering non est in law. 6. The pleadings on record and the arguments advanced have been duly taken note of. That at the time of termination of the services of the respondent, he had been serving as a SEP in terms of the order dated 13.08.2008 is not in dispute. Clause 3 of that letter is a matter of record. There under he was supposed to be transferred with the officer with whom he was engaged as Substitute Emergency Peon under the said officer had expressed his unwillingness to take him along on his transfer elsewhere. The petitioners, in their written statement before the learned Tribunal admitted to have received the letter dated 25.09.2008 referred to hereinabove. Their consistent plea however is that no decision was officially was taken thereon and thus the respondent's absence from duty under the N.F. Railways was unauthorized and uncondonable. We have failed to persuade ourselves to sustain this plea on behalf of the petitioners. Not only, Clause 3 of the letter dated 13.08.2008 stipulates in unequivocal terms that the SEP concerned on the transfer of the officer with whom he is attached would leave to accompany him unless the latter expresses unwillingness to take him, the inaction on their part to deal with the request made by respondent No. 4 as well as respondent on 25.09.2008 in terms thereof, signifies their inexplicable failure to adhere to the said covenant prescribed by the Railways. 7. The office order dated 15.12.2009 noticeably terminates the services of the respondent retrospectively w.e.f. 26.09.2008 with one month's Notice Pay. 7. The office order dated 15.12.2009 noticeably terminates the services of the respondent retrospectively w.e.f. 26.09.2008 with one month's Notice Pay. A plain reading of Rule 301 of the Code testifies that when a person without a lien on a permanent post under the Government is appointed to hold a temporary post or to officiate in a permanent post, he is entitled to no notice of termination of his service if such termination is due to the expiry of the sanction to the post which he holds or the expiry of the officiating vacancy, or on his compulsory retirement due to mental or physical incapacity or his removal or dismissal as a disciplinary measure after compliance with the provision of Clause (2) of Article 311 of the Constitution of India. It stipulates further that if the termination of service is due to some other cause, the temporary railway servant concerned would 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 is not engaged on a contract. Note (1) appearing beneath the text of Rule-301 mandates that show cause notice is necessary for the termination of the service of permanent railway servant. 8. Ms. Devi has sought to save the impugned order of termination by contending that the action taken was not by way of a disciplinary measure. We see no force in this plea as well. As evidently the termination is founded on the allegation of unauthorized absence from duty, there is indeed a flavour of disciplinary action in it. If that be so, in terms of Rule 301 as well compliance of the provision of Article 311(2) of Constitution of India is indispensible. Admittedly, neither such an exercise had been undertaken nor any prior notice to the respondent has been given. Rule 301 does not contemplate one month's Notice Pay in the alternative as well. In the above view of the matter, we find no merit in the challenge to the impugned judgment and order of the learned Tribunal. The petition fails. The parties however would bear their own costs. Petition dismissed.