High Court · 2012

02. We have heard Ms. B Devi, learned Standing Counsel, NF Railway f or the petitioners and Mr. TC Khatri, Senior Advocate assisted by Mr. GP Bhowmik , Advocate for the respondent.

03. The factual backdrop as outlined by the pleadings of the parties reveals that the respondent after being temporarily engaged as substitute Emerg ency Peon vide communication No.CMS/DBRT w.e.f. 20.05.2010 issued from the offic e of the Divisional Railway Manager (P), Tinsukia and was, thereby, attached to the CMS/DBRT with effect from that date. The terms and conditions enumerated in the said letter, inter alia, stipulated that he would be transferred with the of ficer with whom he had been engaged and would be discharged in the event of his (officer concerned) unwillingness to take him on such transfer. That the engagem ent was, at the first instance, for a period of three months only and that exten sion was contingent on the receipt of certificate of satisfactory service from t he controlling officer was mentioned therein as well. According to the responden t, he joined his duty and performed the same to the best of his ability.

04. The Chief Medical Superintendent, Dibrugarh Town, with whom the petitioner was attached, was thereafter transferred to Tinsukia in the same capa city and he accompanied him to the new place of posting. The Chief Medical Super intendent, Tinsukia, thereafter by his letter No.H/EST/4/2010, dated 27.08.2010, addressed to the DRM(P)/TSK apprised the latter that his services were satisfac tory and that he could be continued further as Emergency Peon. According to the petitioner and as is borne out by the records, the Chief Medical Superintendent, NF Railway, Tinsukia also recommended conferment of temporary status on him as by then, more specifically on 20.10.2009 he had completed four months of continu ous service. As the matter rested at that, the Chief Medical Superintendent, Tin sukia went on voluntary retirement from service w.e.f. 31.10.2010, whereupon, th e petitioner was directed to report at the office of the Chief Medical Superinte ndent/DBRT w.e.f. 01.11.2010. By letter No. E/254/E-Peon/Pt.II, dated 02.11.2010 issued from the office of the Divisional Railway Manager (P), Tinsukia, the ser vice of the petitioner was thereafter terminated on the expiry of 14 days theref rom. Being aggrieved, he approached the learned Tribunal. In the written statement filed by the railway authorities, they, while endorsing the impugned decision pleading it to be inconformity with the relevant rules, a dmitted the facts pertaining to the petitioner’s service profile tracing from hi s appointment as substitute Emergency Peon attached to Chief Medical Superintend ent, NF Railway, Dibrugarh vide order dated 20.05.2010. They contended further t hat as a substitute Emergency Peon, he could not be continued in service in abse nce of any post of regular Chief Medical Superintendent under the railway admini stration as the duties of such a substitute hand were relatable to the personal works of the officer concerned.

05. The learned Tribunal referring, amongst others to the master cir cular dated 15/18.02.1999 embodying the Instructions governing the engagement/re trenchment etc. of Emergency Peon sustained the respondent’s challenge to the te rmination of his services. It returned a finding that the respondent had been en gaged by the Railways as per the relevant rules and was attached to the Chief Me dical Superintendent, Dibrugarh. It observed that it being not the case of the R ailways that the post of CMS, Dibrugarh at whose office he was required to repor t on the voluntary retirement of Chief Medical Superintendent of Tinsukia, was n on-existent the termination of his services was uncalled for. In arriving at thi s conclusion, the learned Tribunal noticed as well that the impugned action had not been taken either on any medical ground or physical incapacity of the respon dent. That, at all relevant times, his services had been certified to be satisfa ctory by the officer with whom he had been attached in both the capacities i.e. CMS, Dibrugarh and CMS, Tinsukia was taken note of as well. The learned Tribunal brought on record, as well the fact that the said officer was not unwilling to continue with the respondent as Emergency Peon with whim. It sustained the plea raised on behalf of the respondent based on para 2 of part (A) of the circular d ated 15/18.02.1999 that on the retirement of the officer he had been rightly dir ected to report to the Chief Medical Superintendent, Dibrugarh and in absence of any stand that the said post did not exist, the termination of his services, in the manner done, was invalid. It held as well that para 5 part (B) of the circu lar dated 15/18.02.1999 was not applicable to the respondent as he was not a (cid:28)fr esh face (cid:29) as contemplated therein. The respondent’s plea that on completion of f our months of continuous service, he was entitled to be conferred temporary stat us was also taken note of.

06. The learned counsel for the petitioners has emphatically urged t hat the learned Tribunal having totally misread the circular dated 15/18.02.1999 pertaining to the engagement of Emergency Peon, the impugned judgment and order is liable to be interfered with. Referring in particular to para 5 of part (B) of such instructions, Ms. B Devi, has insisted that as the respondent, at the re levant point of time, had not rendered one year of continuous service on the ret irement of the officer to whom he had been attached, his services were rightly t erminated by issuing a notice in terms of Rule 301 of the Indian Railway Establi shment Code Volume.I (for short hereafter referred to as the Code). Responding t o the respondent’s contention of having been conferred temporary status, the lea rned Standing Counsel, while admitting such endowment, however, maintained that in the face of the prescription of para 5 of part (B) of the said instructions, the same did not render the termination of his services in the manner done illeg al or non est in law. Mr. Khatri, in reply, has argued that as para 5 of part (B) of t 07. he Instructions is not applicable to the respondents as he was not a new face, t he challenge based thereon is misconceived. While referring to the satisfactory service profile of the respondent and the admitted conferment of temporary statu s, he urged that in terms of part (E) & (G) of the said instructions as well, th e termination of the petitioner’s services is in patent violation thereof and ha s been rightly interfered with by the learned Tribunal.

08. We have extended our anxious consideration to the pleaded facts, the documents on record and the arguments advanced on the basis thereof. A plai n perusal of the letter of appointment of the respondent would disclose that he was thereby temporarily engaged as substitute Emergency Peon and was attached to the then Chief Medical Superintendent, DBRT with effect from the date thereof. It mentioned as well that such engagement would not confer on him any right to c laim further appointment and that he would be liable to be discharged without an y notice when his services would not be required by the administration or on the expiry of the currency of the post against which he had been engaged or on medi cal ground or physical incapacity or in the event of posting of the approved han d. That, the petitioner joined the post in terms thereof and was, eventually, tr ansferred with the officer concerned on his posting as CMS, Tinsukia, is a matte r of fact. That his performance was certified to be satisfactory by the said off icer is also an admitted fact. In course of the arguments on being queried by us , the learned Standing Counsel, Railways did affirm as well that before the term ination of his services, the petitioner had been conferred temporary status, he having meanwhile completed four months of continuous service in the capacity of substitute Emergency Peon. On a scrutiny of the materials on record, the finding of the learned Tribunal th at none of the contingences mentioned in the letter of appointment warranting hi s discharge from service without notice did exist is unassailable. We are inclin ed also to affirm it’s observation that in absence of any proof that the post of Chief Medical Superintendent, Dibrugarh was non-existent as on 01.11.2010, the petitioner’s services could not have been terminated on that count following the retirement of the officer with whom he had been attached till 31.10.2010.

09. Para 2 of part (A) of the circular dated 15/18.02.1999 requires that officers eligible to operate the Emergency Peon attached to their posts wou ld normally be required to continue with those, who had been working with their predecessors and if any change is felt necessary by the officer newly joining th e post, the same could be made only with the approval of the General Manager. Pa ra 5 of the said part stipulates that the appointment of such Emergency Peon, at the first instance, would be for a period of three months only and would be ext ended further on receipt of certificate from the Controlling officer that his se rvices are satisfactory and that he can continue further. Part (B) deals with (cid:28)SECOND CHOICE IN REGARD TO ENGAGEMENT OF FR 10. ESH FACE (cid:29), which contemplate engagement of an Emergency Peon as a substitute of the earlier hand in the open line chargeable to Group-D post with medical fitnes s and liable for regularization in such a post on completion of three years of c ontinuous satisfactory service.

11. Para 5 of Part (B) of the Instructions predicate that when Emerg ency Peon does not seek transfer or the Officer on transfer has no eligibility t o operate Emergency Peon at the new station where transferred or if the Officer quit NF Railway on retirement, death, resignation, transfer to other Railways, d eputation etc. his services would terminated with due notice unless he has rende red one year of continuous service. It is, in this context, that the appointment of the respondent as substitute Eme rgency Peon assumes significance. As a corollary, the plea on his behalf that pa rt (B) of the Instructions applies only to a fresh face or a substitute Emergenc y Peon as the case may be in the teeth of his appointment as substitute Emergenc y Peon vide the letter dated 20.05.2010 does not ensure to his benefit in the fa cts and circumstances of the case. Admittedly, on the date of issuance of the or der of termination, the respondent had not rendered continuous service for one y ear as contemplated in para 5 of part (B) of the Instructions. We are, thus unab le to sustain the respondent’s contention of inapplicability of para 5 of part ( B) of the Instructions dated 15/18.02.1999 to him.

12. The above notwithstanding, the admission of conferment of the te mporary status on the petitioner by the respondent is of formidable significance . Part (E) of the Instructions enjoins that the termination of the services of E mergency Peon ought to be dealt with utmost caution so that the relevant provisi ons of the Code as well as Industrial Disputes Act, 1949 are not infringed. Wher eas, para 2 of part (E) of the Instructions mandate applicability of Rule 301 (1 ) of the Code to be relevant for termination of services of Emergency Peon, Para 3 enumerates the duration of notice or pay in lieu thereof depending on the per iod of service rendered by him/her. In terms thereof, for termination of the ser vices of the Emergency Peon, who had completed 120 days of service, he ought to be given 14 days notice or 14 days wage in lieu thereof. The period of notice is one month, in case, the Emergency Peon, by then, had completed 240 days of serv ice. Para 6 of part (E) enjoins holding of DAR before termination of service of an Emergency Peon, if he meanwhile has attained temporary status or has become a regular Group-D employee inconformity with the requisite rules and formalities as applicable to regular employees. Compliance of Rule 301 of the Code has been insisted upon in such eventualities.

13. Rule 301 of the Code, which deals with termination of services a nd period of notice postulates that 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 i f such termination is due to the expiry of the sanction to the post which he hol ds 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 disciplinar y measure after compliance with the provisions of Clause (2) of Article 311 of t he Constitution of India. In terms of the said provision, if the termination of service is due to some other cause, he would be entitled to one month’s notice p rovided 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 wa s not engaged on a contract. Temporary railway servants as per this provision of the Code with three years continuous service at their credit, would, however, b e entitled to a month’s notice.

14. On a conjoint reading of Rule 301 of the Code and para 6 of part (E) of the instructions dated 15/18.02.1999, we are constrained to hold that th e mode of termination of the service of the petitioner by giving him 14 days not ice is not in terms thereof. Para 6 of part (E) of the Instructions in unequivoc al terms mandate that for the termination of services of the Emergency Peon, who had attained temporary status, it would call for a disciplinary action requirin g adherence to the requisite rules and formalities as applicable to regular empl oyees. In terms of Rule 301 of the Code, therefore, a prior show cause notice wo uld be indispensable for the termination of Emergency Peon, who had either, at t he relevant point of time, attained temporary status or has become a regular Gro up-D employee. The permissibility of termination of the services of Emergency Pe on by giving notice or offering pay in lieu thereof as contemplated in para 3 of part (E) of the Instruction, thus on a logical and harmonious interpretation of para 6 of the same part and Rule 301 of the Code would relate only to the cases of Emergency Peon, who had not either attained temporary status or had not beco me a regular Group-D employee under the Railways. Any other construction would r ender para 6 of part (E) wholly redundant and otiose. In this view of the matter , we are in respectful agreement with the ultimate conclusion of the learned Tri bunal adjudging the impugned decision of termination of the petitioner’s service s to be unsustainable in law and on facts.

15. ismissed. No costs. In the result, the petition lacks in merit. It is, accordingly d