High Court · 2012

02. nd Mr. A. Ahmed, learned counsel for the respondent. We have heard Ms. B. Devi, learned counsel for the petitioners a Briefly, stated the facts in bare essential necessary for the di 03. sposal of the instant petition are that, the respondent herein had been appointe d 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 hereinbelow: (cid:28)3. You will be transferred with the officer with whom you are engaged as substi tute E/Peon or you will be discharged in the event of the officer for when you a re engaged express his unwillingness to take you on transfer alongwith him. (cid:29) 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 aforemention ed capacity. This departmental authority (impleaded as Respondent No.4 in the O riginal Application before the learned Tribunal) was transferred to Central Rai lway, 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 accompa ny the said authority to his new place of posting, the Respondent No.4, on 25.0 9.2008 addressed a letter to the General Manager (P), N.F. Railway disclosing th is to the latter with a request to transfer the respondent to Central Rai lway, Mumbai and solicited necessary action in that regard. On the very same da te, 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 exp ressed his unqualified willingness for transfer to the Central Railway so as to enable him to work under him (Respondent No.4). While the matter rested at that, by order No.E/283/45 (E) Loose 04. dated 15.12.2009 issued by the SPO/Engg., General Manager (P), Maligaon the serv ices 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 t he learned Tribunal and as referred to hereinabove, by this judgment and order i mpugned 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 fr om the date of the receipt of the order.

05. Ms. B. Devi has argued with reference to Rule 301 of the Indian Railway Establishment Code, Volume - I (hereinafter for short referred to as th e Code) that as admittedly no official order for transfer of the respondent to M umbai to remain attached with the Respondent No.4 had been passed, his absence f rom 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 unassailabl e 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 tem porary appointee and had no substantive right in the post held by him, the termi nation of his services for his unauthorized absence from duty in terms of Rule 3 01 is valid and therefore the learned Tribunal fell in gross error in quashing t he same. Ms. Devi has further urged with reference to the letter dated 07.02.20 11 (Annexure - E) to the Respondent No.4 that the plea of the respondent that hi s services had been utilized by the said authority in Mumbai is utterly false.

06. Mr. Ahmed, on the other hand, has argued that as both the Respon dent No.4 and respondent had in unison communicated to the General Manager (P), N.F. Railway, Maligaon of his (respondent) willingness to be posted under the Ce ntral 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. The pleadings on record and the arguments advanced have been dul 07. y taken note of. That at the time of termination of the services of the respond ent, 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. Thereunder he was s upposed to be transferred with the officer with whom he was engaged as Substitut e Emergency Peon under the said officer had expressed his unwillingness to take him along on his transfer elsewhere. The petitioners, in their written stateme nt 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 un der the N.F. Railways was unauthorized and uncondonable. We have failed to persuade ourselves to sustain this plea on behalf of the peti tioners. Not only, Clause 3 of the letter dated 13.08.2008 stipulates in unequi vocal terms that the SEP concerned on the transfer of the officer with whom he i s attached would leave to accompany him unless the latter expresses unwillingnes s to take him, the inaction on their part to deal with the request made by respo ndent 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.

08. The office order dated 15.12.2009 noticeably terminates the serv ices 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 with out a lien on a permanent post under the Government is appointed to hold a temp orary post or to officiate in a permanent post, he is entitled to no notice of t ermination of his service if such termination is due to the expiry of the sancti on to the post which he holds or the expiry of the officiating vacancy, or on hi s compulsory retirement due to mental or physical incapacity or his removal or dismissal as a disciplinary measure after compliance with the provision of Claus e (2) of Article 311 of the Constitution of India. It stipulates further that i f the termination of service is due to some other cause, the temporary railway s ervant 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 o ther period of notice; and to a notice of 14 days if he is not engaged on a cont ract. 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 ser vant.

09. 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 s ee 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 disc iplinary action in it. If that be so, in terms of Rule 301 as well compliance o f the provision of Article 311(2) of Constitution of India is indispensible. Ad mittedly, neither such an exercise had been undertaken nor any prior notice to t he respondent has been given. Rule 301 does not contemplate one month’s Notice Pay in the alternative as well.

10. In the above view of the matter, we find no merit in the challen ge to the impugned judgment and order of the learned Tribunal. The petition fai ls. The parties however would bear their own costs.