Central Administrative Tribunal - Allahabad
Lakhvindar Singh vs Union Of India on 26 April, 2025
Reserved on 15.04.2025.
CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD
BENCH, ALLAHABAD
ALLAHABAD this the 26th day of April 2025.
HON'BLE MR. JUSTICE OM PRAKASAH -VII, MEMBER (J)
HON'BLE MR. MOHAN PYARE, MEMBER (A)
Original Application No. 330/01597/2012
Lakhvinder Singh S/o Shri Rajendra Singh R/o Sarsidi Tehsil Deraeesi
District Patiyala, Punjab.
...........Applicant
Versus
1. Union of India through the General Manager, Northern Railway,
Moradabad.
2. The Divisional Railway Manager, Moradabad.
3. The Assistant Personal Officer III Northern Railway Moradabad.
.......Respondents
Present for the Applicant: Shri Bal Mukund Singh/Shri S.K.
Rai
Present for the Respondents: Shri Shivaji Singh
ORDER
BY HON'BLE MR. JUSTICE OM PRAKASAH -VII, MEMBER (J) By means of present Original Application, the applicant has sought the following reliefs:-
"(i) Issue an order or direction to the respondent No. 2 to set aside the impugned order dated 29.08.2012 and further directed to pay the salary month to month and consequential benefits to the applicant when it becomes due to the applicant.
(ii) Issue or an order or direction to the respondents which the Hon'ble Court may deem fit and proper in the interest of justice".
2. The applicant was engaged as a Substitute Telephone Attendant- cum-Dak Courier (TADK) on 09.06.2011, in the pay scale of Rs. 4400- MANISH KUMAR SRIVASTAVA 2 7440 with a grade pay of Rs. 1300/-. Upon completion of satisfactory service, the applicant was granted temporary status with effect from 21.12.2011. Consequently, he was extended all benefits and privileges applicable to temporary railway employees, including annual increments, privilege passes, and also the medical facilities. The applicant satisfactorily served the respondents until August 2012 and received salary in accordance with his temporary status. It is relevant to mention that applicant and one Shri Shatrughan Tiwari were appointed to the said post on the same date; however, Shri Tiwari continues to be in service but the applicant's services were terminated by the respondents vide order dated 29.08.2012. Aggrieved by the said termination, the applicant has filed the present Original Application.
3. Per contra, learned counsel for the respondents has filed counter reply and denied the contention of the applicant. It is stated that applicant was appointed as Substitute Bungalow Khalasi vide letter dated 09.06.2011 under Shri Janki Prasad, Sr. DSO/MB. He continued to work with him upto the retirement of Shri Janki Prasad. After his retirement Shri Prakash Chand took charge of the post of Sr. DSO/MB but new incumbent did not accept the services of the applicant, therefore, his services were terminated vide order dated 29.08.2012. Applicant was granted temporary status but such status will not confer any right upon the applicant to claim the benefit of the provisions of Article 311 of Constitution of India.
4. Rejoinder affidavit has also been filed 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 Bal Mukund Singh, learned counsel for the applicant and Shri Shivaji Singh, learned counsel for the respondents and perused the records.
6. Submission of the learned counsel for the applicant is that applicant's services were terminated by the respondents vide order issued on 29.08.2012. The applicant was not served with a charge sheet before the termination order, which is a procedural requirement. Learned counsel for MANISH KUMAR SRIVASTAVA 3 the applicant further submitted that the applicant had been granted temporary status, which provides certain procedural safeguards, including the necessity of a proper inquiry before termination. He also submitted that the termination order was issued without conducting an inquiry, violating the principles of natural justice, which mandate a fair hearing before passing adverse order. Learned counsel for the applicant next submitted that after getting temporary status he served more than one year resultantly he became entitled to get regularization. Learned counsel for the applicant again submitted that applicant was discriminated as another person who was appointed alongwith him was not terminated.
7. Learned counsel for the respondents argued that the instruction dated 14.4.2003 specifies that the post of Bungalow Khalasi exists solely to assist the concerned officer in discharging official duties. Learned counsel for the respondents further argued that the applicant was appointed purely on a temporary basis as a Substitute Bungalow Khalasi vide letter dated 09.06.2011 under Shri Janki Prasad, the then Senior DSO/MB. The applicant continued to discharge duties under Shri Prasad until his retirement. Upon the superannuation of Shri Janki Prasad, Shri Prakash Chand took over the post of Senior DSO/MB. However, the services of the applicant were not accepted by the new incumbent, and accordingly, his engagement was discontinued vide order dated 29.08.2012. It is also argued that the applicant was never appointed through a regular selection process nor was he holding a substantive post under the respondents. Although he was granted temporary status during the course of his engagement, such status is purely administrative and does not confer any vested or legal right to claim continuity in service or seek protection under Article 311 of the Constitution of India, which is applicable only to permanent civil servants holding a civil post under the Union or State. Thus, he further argued that the termination of the applicant's services was lawful and in accordance with established principles, as the engagement was co-terminus with the tenure and acceptance of the officer under whom he was working. No illegality, arbitrariness, or discrimination has been committed by the respondents warranting any interference by this Tribunal.
MANISH KUMAR SRIVASTAVA 4 Learned counsel for the respondents has relied upon the judgment passed by CAT Principal Bench in O.A. No. 2456/2005 (Smt. Raj Kumari Vs. UOI and others) decided on 2.8.2006, wherein in para 12, it has been held that Full Bench in the case of Shyam Sunder Vs. Union of India and others decided on 12.2.1999 has decided that "after acquisition of temporary status by a Bungalow Peon/ Khalasi, his/her services can be terminated on the ground of unsatisfactory work without holding a departmental enquiry, as discussed in paragraph 14,15 and 16 of the order."
8. In reply, learned counsel for applicant has submitted that in the case of Nar Singh Pal Vs. UOI reported in 2000(2) ATJ 644, Hon'ble Supreme Court has observed that a casual labour who has attained the temporary status is entitled to the constitutional protection envisaged by Article 311 of the Constitution of India and others. Learned counsel for the applicant has also relied upon the case of Shri Dharmendra Kumar Yadav Vs. UOI and others (O.A. No. 2867/2002) decided on 24.11.2005, in which the Principal Bench after distinguishing the full Bench judgment passed in Shyam Sunder Vs. UOI (O.A. No. 896/1995) and relying on the judgment of the Hon'ble Apex Court, allowed the O.A and directed the respondents to reinstate the services of the applicant forthwith with all consequential benefits, including back wages. However, if so advised, respondents were not precluded from taking any appropriate action in accordance with law.
9. We have considered the rival submissions of the parties and have gone through the entire record.
10. Admittedly in the instant case, the applicant has been granted temporary status. Now, the question which is required to be decided is whether before terminating the services of a temporary status employee, proper disciplinary proceedings is required or not?
11. In the instant case removal of the applicant was done vide order dated 29.08.2012 on the ground that new officer did not accept the work of applicant, thus, the services of the applicant was terminated.
MANISH KUMAR SRIVASTAVA 5
12. 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.
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:-
MANISH KUMAR SRIVASTAVA 6 "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 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 MANISH KUMAR SRIVASTAVA 7 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 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 MANISH KUMAR SRIVASTAVA 8 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.
34. The OA is allowed in terms of the paragraphs 32 and 33 above. There will be no order as to costs."
13. 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 th e 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.
MANISH KUMAR SRIVASTAVA 9
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."
14. Since the applicant of the instant O.A. has got temporary status and no proper enquiry was conducted against the applicant before termination of his service, no show cause notice was issued to him, thus termination order is not tenable in view of law laid down in Sanjay Charles (supra), CAT, Allahabad bench and Principal bench in case of Shri Dharmendra Kumar Yadav Vs. UOI (Supra). We are of the considered opinion that the impugned order cannot be sustained and are liable to be set aside and quashed.
15. Accordingly, OA is allowed and the impugned order dated 29.08.2012 is set aside and quashed. The respondents are directed to reinstate the applicant in service as substitute bungalow khalasi/TADK with temporary status. If post held by the applicant at the time of termination is not in existence he be accommodated to other suitable post, if the applicant is agreed to accept the same. He be allowed all consequential benefits of service except back wages as per rules to the applicant within a period of three 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. No order as to costs. All the associated MAs also stand disposed of.
(MOHAN PYARE) (JUSTICE OM PRAKASH VII)
Member (A) Member (J)
Manish
MANISH KUMAR
SRIVASTAVA