Central Administrative Tribunal - Allahabad
Satish Kumar vs General Manager N C Rly on 7 November, 2025
Reserved on 30.10.2025.
CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD
BENCH, ALLAHABAD
ALLAHABAD this the 07th day of NOVEMBER 2025.
HON'BLE MR. JUSTICE OM PRAKASAH -VII, MEMBER (J)
HON'BLE MR. MOHAN PYARE, MEMBER (A)
Original Application No. 330/00918/2019
Satish Kumar S/o Mohan Lal Yadav, R/o Pure - Lahenga, Police Station
Nasirabad, Tehsil Salon, District Raibareli.
...........Applicant
Versus
1. Union of India through General Manager, North Central Railway,
Allahabad.
2. The Divisional Railway Manager, North Central Railway,
Allahabad.
3. The Senior Divisional Personnel Officer, North Central Railway,
Allahabad.
4. Chief Fright Transport Manager, North Central Railway,
Allahabad.
5. The Senior Divisional Commercial Manager, North Central
Railway, Allahabad.
.......Respondents
Present for the Applicant: Shri B.N Singh/Shri Shridhar
Tripathi
Present for the Respondents: Shri M.K.Sharma
ORDER
BY JUSTICE OM PRAKASAH -VII, MEMBER (J) Present Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
"a) issue a suitable order or direction to call for record and set aside/quash the termination order 09.04.2019 passed by the respondent No. 4.
b). Issue a suitable order or direction to respondent to reinstate the applicant with all consequential benefits.
MANISH KUMAR SRIVASTAVA 2
c) Issue any other order or direction which this Hon'ble Tribunal may deem fit and proper under the facts and circumstances of the case, so as to meet the ends of justice.
d) To award costs of the application in fvour of the applicant".
2. The brief facts of the case are that the applicant was initially appointed to the post of Telephone Attendant-cum-Dak Courier (T.A.D.K.)/Bungalow Peon vide order dated 04.06.2018. The applicant rendered 120 days of continuous service in the said capacity and thereby became eligible for the grant of temporary status, which was duly conferred upon him with effect from 02.10.2018, vide order dated 11.10.2018. Consequent upon the grant of temporary status, the applicant became entitled to certain service benefits such as leave, privilege passes, and medical facilities, which were accordingly extended to him. Subsequently, a warning letter was issued to the applicant, alleging that his work was unsatisfactory and that he had remained absent from duty since 17.12.2018. The applicant, however, asserts that he had performed his duties sincerely and diligently. In response to the said warning, the applicant submitted a detailed representation dated 13.03.2019, setting forth the factual position and requesting that he be permitted to resume his duties and be paid his regular salary. Without considering the applicant's detailed reply and without conducting any regular departmental enquiry, the respondent no. 4 terminated the services of the applicant vide impugned order dated 09.04.2019. Aggrieved by the said termination, the applicant preferred an appeal, followed by a reminder, but the same has remained pending consideration till date. Being aggrieved by the inaction of the respondents, the applicant has approached this Tribunal by filing the present Original Application.
3. Per contra, learned counsel for the respondents has filed counter affidavit in which it has been mentioned that the applicant was initially appointed on the post of TADK/Bungalow Peon vide order No. 26/2018 dated 04.06.2018. Later applicant got temporary status but due to long absence from his duty a warning letter was issued. After two warning letters dated 20.02.2019 and 13.03.2019, reply was received through MANISH KUMAR SRIVASTAVA 3 registered post but the applicant never turned up for duties and his absence continued since 17th December 2018. Finally after giving all opportunity, termination order was passed on 09.04.2019 as per para 3 of the TADK policy. By means of the instant original application, applicant is challenging the termination order.
4. Rejoinder affidavit has also been filed by the applicant in which the applicant has reiterated the facts as stated in the OA and denied the contents of the counter affidavit. Nothing new has been asserted in the rejoinder affidavit.
5 We have heard Shri B.N Singh, learned counsel for the applicant and Shri Manoj Kumar Sharma, learned counsel for the respondents and perused the record.
6. Learned counsel for the applicant submitted that the impugned termination order dated 09.04.2019 is arbitrary, illegal, and violative of the principles of natural justice. It is contended that the applicant granted temporary status w.e.f. 02.10.2018, had thereby acquired certain rights and protections available to a temporary employee under law. Consequently, his services could not have been dispensed with except by following due process of law, i.e., by holding a regular departmental enquiry in accordance with the applicable rules and principles of natural justice. It is further contended that the allegation of unauthorized absence is factually incorrect and not supported by any cogent material on record. The applicant had duly submitted a detailed reply dated 13.03.2019 to the warning letter, explaining the circumstances and requesting permission to resume his duties. However, the said representation was not considered by the respondents, and no opportunity of hearing was afforded to the applicant before passing the impugned termination order. Thus, the impugned order has been passed mechanically, without application of mind and in gross violation of Articles 14 and 16 of the Constitution of India. Learned counsel for the applicant also submitted that even assuming, without admitting, that the applicant was absent from duty, the respondents were duty-bound to follow the due procedure prescribed for MANISH KUMAR SRIVASTAVA 4 disciplinary action. Since the applicant had already been conferred temporary status, he could not have been removed from service summarily or without framing charges and conducting an enquiry. The law is well settled that when the foundation of an order is misconduct, the order cannot be treated as one of simple termination but is to be construed as punitive in nature, requiring a regular enquiry. Learned counsel for the applicant again submitted that the appeal preferred by the applicant against the impugned termination order is still pending and no order has been passed thereon till date, which shows complete inaction and non- application of mind on the part of the respondents authorities. Learned counsel for the applicant next submitted that impugned order dated 09.04.2019 passed by respondent no. 4 may be set aside and quashed, and the respondents be directed to reinstate the applicant with all consequential benefits, including continuity of service and arrears of pay. Learned counsel for the applicant placed reliance on the following case laws:-
(i) Lakhi Ram Vs. Union of India and others reported in LAWS (DLH) 2007
10 38.
(ii) Baijnath Mandal Vs. UOI reported on LAWS (DLH) 2014 12 212.
(iii) Union of India and other Vs. Basant Lal reported on LAWS (SC) 1992 2 74.
(iv) Union of India through General Manager, Metro Railway Vs. Saroj Kumar Rai reported in LAWS (PAT) 2010 7 122.
(v) Gulshan Sharma Vs. Union of India and others decided on 27.8.2019 in OA No. 649/2016 by CAT Cuttack Bench of this Tribunal.
7. Learned counsel for the respondents opposed the Original Application and submitted that the impugned termination order dated 09.04.2019 has been passed in accordance with the rules and after providing adequate opportunity to the applicant. It is contended that the applicant was initially appointed as Telephone Attendant-cum-Dak Courier (TADK)/Bungalow Peon vide order dated 04.06.2018, purely on temporary and contractual basis, and his engagement was governed by the terms and conditions applicable to TADK appointments. It is submitted that though the applicant was granted temporary status with effect from 02.10.2018, such status did not confer upon him any right to MANISH KUMAR SRIVASTAVA 5 permanent employment. His services were still liable to be terminated in case of unsatisfactory performance or continued absence from duty, as clearly stipulated under the TADK policy and the terms of his engagement. Learned counsel for the respondents further submitted that the applicant remained continuously absent from duty since 17.12.2018, without any intimation or sanctioned leave. Despite repeated warnings issued by the competent authority, he failed to report for duty. In this regard, two warning letters dated 20.02.2019 and 13.03.2019, which were duly issued to him, calling upon him to resume his duties immediately and explain his unauthorized absence. Although the applicant sent a reply through registered post, he did not join duty thereafter and continued to remain absent. It is contended that the department made every possible effort to secure the applicant's attendance and obtain his explanation before taking any action. However, since the applicant remained absent for a long and continuous period without sufficient cause, his services were terminated on 09.04.2019, in accordance with the TADK policy and the conditions of his appointment. Therefore, the order of termination is a termination simpliciter based on prolonged absence and not a punitive order passed on any charge of misconduct. Hence, there was no requirement of holding a regular departmental enquiry. The learned counsel for the respondents also submitted that the principles of natural justice have not been violated in the present case, as the applicant was duly cautioned through multiple warning letters and was afforded sufficient opportunity to resume his duties. Despite this, the applicant failed to comply with official directions, leaving the department with no alternative but to terminate his engagement. The impugned order is thus administrative in nature and passed in the interest of discipline and efficiency of service. It is further submitted that the applicant's reliance on the grant of temporary status is misplaced. Temporary status only entitles the employee to certain benefits like leave and medical facilities but does not provide the same protection as that available to a regular or permanent employee. The applicant's appointment being temporary, his services could lawfully be terminated without resorting to a full-fledged departmental enquiry. The learned counsel for the respondents also MANISH KUMAR SRIVASTAVA 6 argued that the impugned order dated 09.04.2019 is legal, valid, and sustainable, having been passed in accordance with the relevant provisions and after giving adequate opportunity to the applicant. There is no procedural irregularity, illegality, or arbitrariness in the action of the respondents. Accordingly, Original Application is devoid of merit and deserves to be dismissed.
8. We have carefully considered the pleadings of learned counsel for the parties and the submissions advanced by them.
9. Before discussing the submissions raised across the bar, it will be useful to quote the relevant paragraphs of the judgments relied upon by the learned counsel for the applicant:-
(i) In the case of Lakhi Ram (supra), Hon'ble Delhi High Court has held in para 8, which reads as under:-
"8. It is not in dispute that upon the grant of temporary status the petitioner acquired the right of being dealt with under the Discipline and Appeal Rules of the Railways. Therefore, if it is held that the order of termination is stigmatic and therefore punitive, and not one of termination simplicitor, it would follow that the order of termination is bad since, admittedly, no departmental enquiry has preceded the passing of the said order of termination. It would also be in violation of the principles of natural justice".
(ii) In the case of Baijnath Mandal (supra), Hon'ble Delhi High Court has held in para 17, which reads as under:-
"17. In the present case, the termination was due to alleged misbehaviour of the Petitioner, and hence, is stigmatic and punitive. Such termination, without holding a departmental enquiry, is clearly impermissible. The Respondents should have conducted a departmental enquiry before termination of the services, thereby providing the Petitioner with an opportunity to meet the accusations of his misbehaviour. The procedure as contained in the Rules of 1968 was required to be followed. Instead, the Respondents resorted to a short cut method by issuance of a stigmatic termination order dated 30.04.2002 and terminating his services. Since there was no departmental enquiry conducted before the termination, in accordance to the procedure prescribed in Rules of 1968, the termination order is against the principles of natural justice and hereby set aside".
(iii) In the case of Basant Lal (supra), Hon'ble Supreme Court has held as under:-
"5. Thus, in the circumstances mentioned above, we do not find any error in the order of the Tribunal so as to call for any MANISH KUMAR SRIVASTAVA 7 interference. The Railways were directed by the Tribunal to comply with the directions within a period of three months from the date of communication of the order of the Tribunal dated 16.3.1990. Thereafter the workers had moved a Contempt application before this Court and on 12.3.1991, this Court had directed the Union of India to give employment to all the respondents (workers) within two months and to pay them the salary equal to temporary status employee of the Railways at the initial stage of the pay. During the proceedings for Contempt of Court it was brought to our notice that the Railways had given employment to 35 workers initially and for the remaining 70 workers it was stated on 6.1.1992 that they have also been employed. In view of such statement made on behalf of the Union of India we did not consider it necessary to pursue the Contempt Petition any longer and the same was accordingly dismissed. In the circumstances mentioned above, we direct that all the 105 workers would be entitled to the salary equal to a temporary status employee of the Railway at the initial stage of the pay from 12.5.1991 when two months expired in accordance with our order dated 12.3.1991. It has been brought to our notice on behalf of the workers that they have been uprooted from their original place and even now they are being given daily wages at the rate of Rs. 19.10 paise and not being given the wages equal to a temporary status employee of the Railway at the initial stage of pay. We, therefore, direct the Railway Authorities to pay the back wages to all the employees from 12.5.1991 equal to a temporary status employee allowed at the initial stage of pay within two months from today after adjusting any amount already received by them. The Railway- Authorities shall accord the status of temporary employee to all the 105 workers. The workers shall also be entitled to one set of costs from the petitioner, Union of India. We dispose of the appeal in the manner indicated above".
(iv) In para 11 of Saroj Kumar Rai (supra) case, Hon'ble High Court has held as under:-
"11. However, another issue remains to be noticed. In Paragraph-31 the learned Tribunal has held that the termination was on the basis of alleged misconduct i.e., unauthorized absence and complaints about his work. In this regard, learned counsel for the petitioners has taken us through the order of termination dated 25.1.2006 contained in Annexure-5 to this writ petition. The same clearly shows that it is an order of termination simplicitor without raising any allegations either of unauthorized absence or of misconduct. Simply because the factual background was revealed by the petitioners to explain why they took a view that the employee had not completed 120 days of continuous service and further that the certificate of the Controlling Officer was to the effect that the MANISH KUMAR SRIVASTAVA 8 service was unsatisfactory, it cannot be held that the termination order was based upon allegations of misconduct".
(v) In para 15 of Gulshan Sharma (supra) case, the Cuttack Bench of this Tribunal has held as under:-
"15. Applying the ratio of the above judgment to the present case, it is seen that although the impugned termination order is issued in terms of the terms and conditions of the appointment order, the letter dated 5.7.2016 of the respondent No. 4 (A/5 series) was based on the allegation of unauthorized absence of the applicant from 9.5.2016. It was therefore, based on the allegation of unauthorized absence although it was not mentioned as such in the order dated 2.8.2016. Hence, the impugned termination order is founded on the allegation of unauthorized absence. In addition, as discussed earlier, there were serious allegations of the applicant against the respondent no. 4 Which were not examined properly by the respondents. Therefore, we are of the considered view that in view of the background to the case as discussed above, the impugned order dated 2.8.2016 (A/5 series) is punitive, although it has been worded as a simple termination order and it has been issued without following the procedure as applicable for the disciplinary proceedings to prove the allegations of unauthorized absence against the applicant. The issue at (ii) of para 9 is answered accordingly".
10. In the case of Sanjay Charles Vs. UOI and others (O.A. No. 523/2007) decided on 14.8.2018,, CAT, Allahabad Bench has observed as under:-
"25. The judgment of Hon'ble Delhi High Court in Writ petition no. 3263/2006, which confirmed the order of this Tribunal in the OA No. 15 O.A. NO. 523/2007 2867/2002, was followed by the Tribunal in another case of Sunil Kumar Mishra vs. Union of India and others in OA No. 823/2007 and the order dated 22.10.2010 of this Tribunal in 823/2007 stated as under:-
"8. One important legal issue calls for consideration at this juncture. True, the Full Bench would have stated that there need not be a full fledged inquiry and the Respondents have heavily relied upon the same in their written submission. And on the basis of the same a division Bench of this Tribunal in OA No. 401 of 2007 had held that in such a case of termination of Bunglow Peons on temporary status, there is no need to even put them to notice. The Full Bench order is dated 13th February, 1999. In the said order, there is a reference of instructions for appointment of substitute Bunglow Peons / Khalasis vide 803-E/I/Pt. X/IIV dated 13.01.1995. The same reference has been made in the decision of the Hon'ble High Court in W.P. No. 3263/2006 (though indicating issued in January, 1995) and the following extract has been made from out of that reference:
"ii. Person who has attained temporary status cannot be discharged from service without applying full procedure as described in the D&A Rules. The grant of ty. Status to Bunglow peon before 2 years service will create problems for the office in case Bunglow Peon indulge in unwarranted activities. No officer will allow his family members to be dragged in Official D&A enquiring etc. Thus condition of two years service for grant of ty. Status to Bunglow Khalasi is a must.
MANISH KUMAR SRIVASTAVA 9 iii. The above conditions are not included in the IREC of IREM as Bunglow peons is a special category as they are neither casual labour nor substitute. Their service condition, until they attain temporary Status after completion of two years continuous service, are governed by the administrative orders issued from time to time with the approval of competent authority on Zonal Railways."
9. After quoting the above portion of the Railway Board's letter, Hon'ble Delhi High Court held as under: -
"4. It is not in dispute that the respondent no. 1 had attained the temporary status and the procedure under the D&A Rules was admittedly not followed while discharging him from service for unsatisfactory conduct. In any case, the certificate given to the respondent no. 1 by Shri Sangeev Garg and the grant of temporary status to him rules out the pleas that the respondent no. 1's conduct was not satisfactory. Thus in light of the above fact, the findings of the CAT are wholly sustainable and not liable to be interfered with.
5. In view of the findings recorded above, it is not a fit case for interference under Article 226 of the Constitution and the writ is consequently dismissed and stands disposed of. Miscellaneous applications for exemption and interim stay also stand disposed of as having become infructuous.
10. Now, between the decision of Full Bench of the Tribunal (coupled with the division Bench judgment cited above) and the judgment of the Hon'ble High Court of Delhi, obviously, the latter has to be followed. This is the settled law See Sub-Inspector Rooplal v. Lt. Governor, (2000) 1 SCC 644, wherein the Apex Court has held as under:-
"A subordinate court is bound by the enunciation of law made by the superior courts. A Coordinate Bench of a Court cannot pronounce judgment contrary to declaration of law made by another Bench".
11. Thus we respectfully follow the decision of the Hon'ble High Court of Delhi in this case."
26. Hon'ble Delhi High Court, in another similar case of bungalow khalasi/peon whose services were also terminated, in the case of Baijnath Mandal vs Union of India & Ors (https://indiankanoon.org/doc/98608461) in W.P.(C) 4151/2008, has held as under:-
"16. There can be no dispute that when an employee has been granted a temporary status and the order of his termination is stigmatic and punitive, and not of discharge simplicitor, then a departmental inquiry has to precede the termination. For when the order of termination is stigmatic, termination of an employee without holding a departmental enquiry would be in violation of principles of natural justice. It has severe consequences for the employee, since he gets branded and blemished with the stigmatic declaration made against him, thus marring his future prospects of employment.
17. In the present case, the termination was due to alleged misbehaviour of the Petitioner, and hence, is stigmatic and punitive. Such termination, without holding a departmental enquiry, is clearly impermissible. The Respondents should have conducted a departmental enquiry before termination of the services, thereby providing the Petitioner with an opportunity to meet the accusations of his misbehaviour. The procedure as contained in the Rules of 1968 was required to be followed. Instead, the Respondents resorted to a short cut method by issuance of a stigmatic termination order dated 30.04.2002 and terminating his services. Since there was no departmental enquiry conducted before the termination, in accordance to the procedure prescribed in Rules of 1968, the termination order is against the principles of natural justice and hereby set aside. 18. In MANISH KUMAR SRIVASTAVA 10 view of the aforesaid discussion, the writ petition is allowed and the impugned orders of the CAT, are hereby quashed. Consequently, the Respondents are directed to reinstate the Petitioner within four weeks with all consequential benefits including notional fixation and fitment of salary for the period he was out of service, though he would not be entitled to any actual arrears of salary. In other words, all consequential benefits, except back wages, shall be given to the Petitioner. The said orders of pay fixation, fitment, and notional increments, etc shall be issued within four weeks of the Petitioner's joining the service pursuant to the present order."
27. The averment of the applicant in the OA that after the incident on 25.12.2006 he was not allowed any duty by the respondent No. 3 with whom he was attached, has not been specifically contradicted by the respondents in their pleadings except stating that the applicant was issued a letter dated 05.01.2007 advising him to join duty. Although there is no representation or letter of the applicant to the higher authority that he was not being given any duty after 25.12.2006, it is clear from the record that he was not allowed any duty after 25.12.2006 and there is no document produced by the respondents to show that he was actually allotted the duty by the officer to whom he was attached. After receipt of the notice dated 5.1.2007, the applicant has stated that he immediately went to the bungalow of the respondent no. 3 for duty, but he was not allowed to resume the work and this contention has also not been specifically denied by the respondents. Applicant represented on 20.03.2007 (Annexure A-8) in which he stated that he was not being allowed duty since 26.12.2006 although he was present in the bunglow. The representation dated 20.03.2007 has been admitted by the respondents in the pleadings, but no reply was sent to the applicant before issuing the termination order dated 17.04.2007 or the contentions in the representation dated 20.03.2007 did not seem to have been taken note of by the authorities, as there is no pleading to that effect available 18 O.A. NO. 523/2007 on record. Hence, it is clear that the pleas of the applicant to the authorities were not duly considered before passing the impugned termination order dated 17.04.2007 and that the said impugned order dated 17.04.2007 is stigmatic and punitive.
28. It is clear that as per the ratio of the judgment of Hon'ble Delhi High Court as quoted in para 25 and 26 above, services of a casual employee with temporary status, cannot be terminated for unsatisfactory conduct or a punitive measure without following the procedure laid down for the disciplinary proceedings. Thus, the judgment of Full Bench of this Tribunal which was followed in two cases cited by the respondents will not be helpful for the respondents. Further, since the applicant in this case has been allowed temporary status, the impugned order dated 17.04.2007, terminating his services without following the procedure as applicable for disciplinary proceeding, is violative of the Article 311(2) of the constitution of India. Hence, the reply to the issue at (iii) of para 16 is answered in positive.
29. Regarding the reply to the issue no (iv) of para 16 of this order, as discussed above, the termination order for the applicant's service on the ground of misconduct has to be passed under the rules applicable for disciplinary proceedings. Hence, such termination order is required to be issued by the appointing authority as per the provisions of the rules for disciplinary proceedings. The appointment order dated 15.06.1995 for the applicant (Annexure A-3) is signed by Assistant Personnel Officer with approval or the General Manager. Hence, the appointing authority for the applicant is considered to be the General Manager. The authority issuing the impugned termination order is Controller of Stores, who is obviously subordinate authority to the General Manager. However, the order has noted that it has the approval of the competent authority (para 17 be referred to). Hence, we answer the issue no (iv) of para 16 in positive.
30. Regarding challenge to some of the paragraphs of the policy Circular dated 14.04.2003, we do not find any justification for interfering with said MANISH KUMAR SRIVASTAVA 11 Circular in view of our findings that services of an employee with temporary status cannot be terminated on the ground of misconduct without following the rules for disciplinary proceedings in spite of the provisions in the Circular dated 14.04.2003, we are unable to accept the pleas of the applicant in respect of the Circular dated 14.04.2003. 31. While considering the policy circular for engagement of bungalow khalasi/peon in Railways, we noted a judgment of the Principal Bench of this Tribunal in the case of Uttam Kumar Tewari vs Union Of India in OA No. 875/2013 (https://indiankanoon.org/doc/62346876), following observations were made by this Tribunal in the order, regarding the policy of engaging bungalow khalasi:-
"10. Before we part with this order, we are constrained to observe that the engagement of Bungalow Khalasis now being given the glorified designation of TADK is a matter to be re-looked by the Respondent-Railway Board. It is understood that no rules or regulations are being followed in their appointments. The Respondents have neither framed any Recruitment Rules for the said post nor they notify the vacancies. Their appointments are made in an arbitrary manner by the officers concerned. Even in this case, Respondent No.4 has been boasting in his complaint to the police that he was instrumental in getting him employed as TADK. When the Apex Court in a number of judgments has frowned upon the administration to stop backdoor entries into the Government, the appointments of TADKs through the officers concerned are still going on at the whims and fancies of the officers. Further, it is observed that the Respondent No.4 in this case is only a Dy. Chief Engineer, which is comparatively of a very lower level post. Such officers are also allowed to engage their own Bungalow Khalasis without even considering the fact whether there is no sufficient accommodation available with them. In this case, the Respondent No.4 is not in possession of any Bungalow allotted by the Railway but only a lower type of accommodation in Babar Road. Therefore, in our considered view, such uncontrolled freedom to the officials to appoint TADK on their own and later leaving the burden upon the Railways to grant them temporary status and regular appointment cannot be allowed.
11. We, therefore, direct the Registry to send a copy of this order to the Chairman, Railway Board, New Delhi to look into this matter so that if at all it is necessary to appoint TADKs, such appointments shall be made in accordance with the rules and not according to the whims and fancies of the officials concerned as in the present case."
32. With reference to the discussions in paragraphs 30 and 31 above, while we do not interfere with the existing circular dated 14.4.2003, we would like to reiterate the observations of the Principal Bench of this Tribunal in OA No. 875/2013 as quoted above in paragraph 31 above and also suggest a review of the circular dated 14.4.2003 by the respondents in the light of the observations in this order. The Registry is directed to send a copy of this order to the respondent no. 1 for taking necessary action as deemed appropriate in this regard.
33. In view of the above discussions and taking into account the legal precedents and case laws discussed, we are of the considered opinion that the impugned order, being stigmatic and punitive in nature, cannot be sustained and hence, it is liable to be set aside and quashed. Accordingly, the impugned order dated 17.4.2007 (AnnexureA-1 to the OA) is set aside and quashed. The respondents are directed to reinstate the applicant in service as substitute bungalow khalasi/TADK with temporary status, if the applicant is not reinstated already by virtue of the interim order passed by this Tribunal and to allow all consequential benefits of service as per rules to the applicant within two months from the date of receipt of a certified copy of this order. It is made clear that the respondents are at liberty to initiate appropriate action as per rules in case there is any allegation of misconduct against the applicant.
MANISH KUMAR SRIVASTAVA 12
34. The OA is allowed in terms of the paragraphs 32 and 33 above. There will be no order as to costs."
11. In the case of Shri Dharmendra Kumar Yadav Vs. UOI (O.A. No. 2867/2002) decided on 24.11.2005, CAT, Principal Bench has observed as under:-
"37. In my considered view the grounds of termination against applicant were though under the guise of unwillingness performance or unsatisfactory of applicant to work, which on misuse of the powers are really founded on the misconduct of applicant which has not been probed into and thus deprivation of reasonable opportunity and when resort to the rules under the Discipline and Appeal Rules ibid the decision of the Full Bench would not be applicable in the present case as it is not the unsatisfactory performance on which services of applicant have been dispensed with but it is the attitude and conduct of the supervisory officer which led to non-accord of duty to applicant. However, I am not competent authority to adjudge this. The same will be considered as per law.
38. In my considered view the order is punitive under the guise of simple order of termination; applicant's services have been dispensed with without resort to the disciplinary proceeding which is not only bad in law but against equity and all canons of justice.
39. It is very strange that there is no definine finding of unauthorized absence. Once, in show cause notice an opportunity to resume duty, failing which stipulation required disciplinary action shows that absence was not established. As such, terminating the services is against the decision of respondents and in its contradiction to hold disciplinary proceedings. This is a short cut adopted by respondents to dispense with the service of the applicant.
40. In the result, for the foregoing reasons, O.A. is allowed. Impugned order terminating the services of the applicant is set aside. Respondents are directed to re- instate applicant forthwith with all consequential benefits, including back wages. However, if so advised, respondents are not precluded from taking any appropriate action in accordance with law. No costs."
12. In this case, it is admitted fact that the applicant was granted temporary status. The main question which arises for consideration is whether the services of a temporary status employee can be terminated without holding any disciplinary proceedings or whether it is necessary to follow the due process of law and principles of natural justice before taking such action.
13. In the present matter, the services of the applicant were terminated by order dated 09.04.2019 on the ground that he remained absent from duty without authorization from 17.12.2018. It is stated by the respondents that two warning letters were issued to the applicant asking him to resume duty, but he did not report back. Therefore, his services were terminated due to continued absence.
MANISH KUMAR SRIVASTAVA 13
14. It is not in dispute that the applicant was granted temporary status with effect from 02.10.2018. Once temporary status was conferred, the applicant was entitled to the protection and safeguards available to a temporary railway employee under the Railway Servants (Discipline and Appeal) Rules, 1968.
15. The record shows that the applicant's services were terminated vide order dated 09.04.2019 on the ground of alleged unauthorized absence from duty w.e.f. 17.12.2018. Two warning letters were stated to have been issued, but it is admitted that no regular departmental enquiry was conducted before passing the termination order. The termination thus rests upon the foundation of alleged misconduct, namely unauthorized absence, and not on any administrative ground or simplicitor discharge.
16. The Hon'ble Delhi High Court in Lakhi Ram (supra) and Baijnath Mandal (supra), as well as the Hon'ble Supreme Court in Basant Lal (supra), have clearly held that once temporary status is granted, an employee is entitled to the protection of the Discipline and Appeal Rules, and any stigmatic or punitive termination without enquiry is bad in law and violative of natural justice. Similarly, the Coordinate Benches of this Tribunal in Sanjay Charles (supra) and Dharmendra Kumar Yadav (supra) cases have consistently held that where termination is founded on allegations of unauthorized absence or misconduct, it cannot be treated as a simple discharge and must be preceded by a proper disciplinary proceeding.
17. In the present case, no enquiry was held, no charge sheet was issued and the applicant was not afforded any opportunity to defend himself. Thus, the termination order dated 09.04.2019 is punitive in nature and having been passed without following the procedure under the Railway Servants (Discipline and Appeal) Rules 1968 and it is violative of Article 311(2) of the Constitution of India as well as the principles of natural justice. Thus, we are of the considered opinion that the impugned order cannot be sustained and are liable to be set aside and quashed.
MANISH KUMAR SRIVASTAVA 14
18. In view of the foregoing discussions and observations, the Original Application is allowed. The impugned order dated 09.04.2019 is hereby quashed and set aside. The respondents are directed to reinstate the applicant in service as Telephone Attendant-cum-Dak Courier/Bungalow Peon with temporary status. In case the post held by the applicant at the time of termination is not available, he shall be accommodated against any other suitable post, if the applicant is willing to accept the same. The applicant shall be entitled to all consequential benefits of service, except back wages, as admissible under rules, which shall be extended to him within a period of three months from the date of receipt of a certified copy of this order. It is, however, made clear that the respondents shall be at liberty to initiate appropriate proceedings against the applicant in accordance with law, if so advised. There shall be no order as to costs. All pending Misc. Applications also stand disposed of.
(MOHAN PYARE) (JUSTICE OM PRAKASH VII)
Member (A) Member (J)
Manish
MANISH KUMAR
SRIVASTAVA