Central Administrative Tribunal - Mumbai
Jay Chand Parmanik vs M/O Railways on 4 May, 2023
i DA No.SY3oi4 CENTRAL ADMINISTRATIVE TRIBUNAL, MUMBAI BENCH, MUMBAI ORIGINAL APPLICATION No.31 OF 2014 Me ack Hes a aR Dated this "nunsdau, the O4 day of May, 2023 CORAM: MS. HARVINDER KAUR OBEROI, MEMBER () MR. SHRI KRISHNA, MEMBER (A) Jay Chand Pramanik, son Hiralal Pramanik, Age about 27 (Date of Binh - 02.08.1988), _ Working as: Ex-Bungalow Paon, under Director-Indian Railway Institute of Electrical Engineering Having its Office at Central Railway, Nasik Road, Nasik and presently residing at - Village : Deogaon, PO &PS : Chakra, Dharpur, Dist. West Shivghbhum, State Zarkhand, Pin Code 833 001. ~ Applicant (By Advocate Shri R.G. Walla) t Versus T. Union of India, T hrough ~ General Manager, Central Railway, Headquarters Offles, CST, Mumbai 400 007. 2. Indian Railway Institute of Electrical Engineering. Through its Director, having office al: Central Railway, Nasik Road, Nasik, State of Maharashtra, Pin Code 422 203, _ 3. Chief Personne! Officer, Central Railway, Headquarters Office, CST, Mumbai 400 001. . | ~Respondents (By Advocate Shri Rishi Ashok proxy counsel for Shri B.K.Ashok} Reserved on 20.04.2023 Pronounced on ; hy 4 iy ORDER Per: Shri Krishna, Member (A)
Aggrieved by the impugned order dated 22.07.2043 (Annexure A-1), the applicant has challenged histermination order which has been wrongly and illegally passed by the respondents to discontinue his services as the Officer under whom he is working as a Substitute Bungalow Peon has retired with effect from 30.06.2013 and the incoming Officer Shri Ramaswamy, working in the office of Central Railway is now not willing to accept the applicant's Service as Substitute Bungalow Peon. Therefore, the aoplicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 seeking the following réliefs:-
"Bfa}. This Hon'ble THbune! may be pleased 6 call for the recards of the case and afer yoing through the same, be pleased fa quash and set aside the anders dated 22.07.2073. Annexure "Al" hersinabave.
8(i), This Hon'ble Trhunal further pleased to order and direct the Respandants to forthwith lake fhe Applicant baak on duty with al! consequential benefits af Sack wages, payment of arrears, increments, seniority and conlinuly of Service etc. Beh Cast of this Original Application is provicted for S{a}. Any other and Ruther orders as this Hon'ble Tribunal may deem fi, praper and MeCessary if the fects and circumstances of the case."
2 OA Na Sypod Ree O4 No S1/2014 Brief facts as narrated in the OA are:-
2.1. The applicant submits that he is X standard pass and he is 27 years old as per date of birth mentioned in OA is 02.08.1986. He submits that with the approval of Generat Manager, Central Railway, initially, he was engeged as a Substitute Bungalow Peon vide order dated 11.02.2013 (Annexure A-2), He submits that the General Manager had accorded personal approval for his engagement/appoiniment a8 a Substitute Bungalow Peon to work with one Shr M.K Jain, who was working as Director in Indian Railway Institute of Electrical Engineering (hereinafter referred to as SRIEEN® for short), having its office at Nasik at the relevant time. The applicant was appointed afier due appointment PYOCESS 8S prevailing In the Department with effect from 20,02.2013.
2.2. The applicant further States he resides in Jharkhand along with his family which consists of ave unmarriageable sisters, one elder brother and bis fatherwho-is a Barber. He submits that he was performing all his duties very sincerely anc with ufmost dedication from the time he has joined his sean hy RR BR pat eyga po PN os n ae " reget OUNSS 88 s Sy MOLE SUC OW Rigor. Me a COUITS:
Rae kA Dees temporary status with effect from 22.06.2013 when he has completed 120 days of continuous service as a Bungalow Peon and the letter of temporary status was prepared by the respondents but he has not received the fetter copy and in the meantime. the officer ta whom he was attached got retired from service with effect fom 30.06.2013. He claims that according to the rules, if a person has put in 720 days of continuous service, he auiomatically acquires temporary Status inespective of the fact whether order specifically granting temporary status was issued or not. He submits that as he has acquired the temporary status under ihe rules, therefore, he is also entitled to the benefits/rights and privileges which are available and admissible under jaws to a.
temporary railway servant from time to time. He states that he is entitled to all the benefits according to Para 4515 of Indian Railway Establishment Manual Voll and Para 205 of Indian Railway Establishment Manual Volll.Both these manualsare annexed as Annexure A-3.
2.3. The applicant submits that Mr. M.K.dain retired from INIEEN with effect from 36.05.2012, He States that on his Ree we ae pencars Ssers . _ ey . : ae oe ' Ly SOA aE tas Sethe BA 2 Oey eg ge SES USN SR. Esse: Peeters yoe aay! cn och ph SNS BAAS ISr OHS OYE RSMASWaIMY who was ther is Phe Sra a QA No.3t/2014 O& No.31/2014 wr Railway has been appointed as Director in IRIEEN and the applicant's service was offered to the said Shri Ramaswany as a Bungalow Peon, however, for'no reason he was not accepted as his Bungalow Peon or of any other officer, 2.4. The applicant further states that it cannot be left to the whims and fancies of a particular officer to choose the Bungalow Peon even if a bungalow peon is already available.
The services of the officers concerned are all transferable in nature anc therefore, if cannot be said that a hire and fire policy can be adopted by the respondents as is done in the present case. The snitire action of the respondents is absolutely arbitrary and utmost illegal. The applicant further states that in the Central Railway after his appeintment and:
termination, new Bungalow Peons have been appointed, He states that ft is absolutely illegal and wrong to terminate the service of the applicant who has acquired femporary status but it has been done in the present case. After termination, he went in the office of Respondent Nos.1 and 2 for redressal of nis gdevances, however, no rellef has been granted to him and now he is stil out of job.S DA No.31/2014
The applicant further states that against the post in which he was working is stil existing and subsisting In position and he was not a personal or private servant of said officer Shri M.K.Jain. He fs performing as employee of railway and his dutles are governed under Railway Rules. As there is no provision in the Indian Railway Establishment Manual or Code that the services of a railway employee can be terminated if an officer with whom an employee is working is transferred or takes voluntary retirement. it is submitted that after his appointment, other Bungalow Peons who are junior to the applicant were appointed and are stil warking. Therefore, the reasons given by the respondents are totally illegal and unconstitutional for terminating the applicant's services. He. further states that due to his legal termination, he is unemployed till date and his services could not have been terminated without proper reasons and also without show cause notice which is absolutely Megal and wrong and by passingimpugned termination order, respondents has not applied their mind which is in complete Violation of principle of natural justice and also void-ab-inia, He states that in fact he x we on LAR AE ow, nh 'et Iyayy Yas oy CREE oye SYS ay, . 3 N Se oss & :
WES SEM GM Te Guay woe!) SSIS BA PO BN fo thet ahlact ce ' ee QA No 31/2014 ay) the same date, he was also issued a pass which is annexed as Annexure A-4. Even after the retirement of the concerned officer, he continued in duly, 2013. Thereafter, applicant was legally and unceremonio sly terminated from his services.
Further, he has also not been paid any amount with regards to his services put in by him in July, 2073 and also he had not been given retrenchment compensation. Therefore, he has filed ihis present Original Application 3 Learned counsel for the applicant submits that the impugned order dated 22.07.2012 passed by the respondents iS wrong and is in violation of Articles 311 of the Constitution of India. The reasons mentioned in the impugned order for term! inating the applicant's services are extraneous, malafide and totally irrelevant, Superlueus and inappropriate and as such the said i impugned orders are vidlative of Articles 14, 18 and 21 of the Constitution of India and are Hable to be quashed and sat aside and no departmental enqui ry Wes held before terminating his services. When the applicant having atiained temporary status cannot he thrown away on the ground that the concerned officer Shi MLK. Jain with whom he x, : oy SN ty os imum eh eatie ks al Seer sen seer ey AA AS ose is. working SMS TMH aT BE OSs OF GO OS Sats.
8 OA NOB 1/2018The Learned counsel far the applicant further states that the applicant was appointed under Railways and governed by the Railway Rules in the indian Railway Establishment Code and his services have been terminated against the provisions of the Indian Railway Establishment Manual and Indian Railway Establishment Code. Therefore, this OA should be allowed and the impugned orders are punitive, unwarranted, vexatious, arbitrary and lable to be quashed and set aside.
3.2. Leamed counsel for the applicant vehemently argued that the apolicant pas completed 120 days of continuous service and, therefore. he is deemed to have been granted temporary Status. He submitted that the services of the applicant could have not terminated on the sole ground that his services are no longer required as the concemed officer has retired from railway service and incoming officer does not willing to continue/accept his services as Substitute Bungalow Peon to him. He submitted that the applicant has not committed any mistake during the period he was working as Substitute Bungalow Peon, Thus, the applicant has been . . Eee ed wate bbe oe oh pas Sones gti Terr ate! WLP EGIGIC GYTY Yar oy SAVERS Gryee Oo Radi Se pp tihig oacce eae PO Gen GE? Tuer ges 3 OA NodTyeoi4 that retrenchment order dated 22.07.2023 says that the applicant's name will be kept in the Railway Register as per the Railway Rules, his name will be considered at the time of fresh recruitment of Substitute Bungalow Peon depending Upon the willingness of the concerned officer: However, the applicant has not heard anything from the respondents about his reappointment in the service.
a. Learned counsel has placed reliance on the following judgments:
() in the case of Irshad Ahmed Vs. Unian of india and otters decided on 17.02.1998 by the Hon'ble High Court of Judicature at Bombay in Writ Petition No.468/4998 wherein the Hon'ble High Court held that "the petitioner will be entitled fo an inquiry before action for femmnating Ais service is resorted fo'.
(2) The order of the Central Administrative Tribunal, Paina Bench in the case of Sameshwar Ram Vs. Union of india &Ors. in OA No.80/1993 decided on 23.02.1995 in which the discharge order dated 07.08.1990 was. quashed and ine Railway administration was directed to consider the poe mm GA No Siy2014 representation af the applicant and dispose them bt a reasoned order.
(3) Order of Hon'ble Principal Bench of Central Administrative Tribunal, Mumbai in OA No. 48/2008 decided on 01.05.2008. The learned counsel argued that the impugned order dated 22.07.2013 should be quashed and the applicant should be reinstated with all the consequential benefits of back wages, payment of arrears, incraments, seniority and continuity of service etc.
4 On notice; the respondents resisted the OA by a reply dated O7.08.2014 and denied aii the allegations and averments raised therein and submitted that the impugned order are no merits in the case fled by the applicant, & passed by the respondents are fully justified and there Resoondents submits that at the outset, they consider it appropriate to state that the policy In general regarding engagement of Bungalow Peon by an individual officer entitled thereto.
peon is produced as under:
For ready feterence, retrenchment procedure for a substitute bungalow DAA SEL i 198 AR SIM LN = = SS sec ye £ 3 2 Ras ' " < ml oy f > Pf. PEPER aoe (Within first {20 (Aftsr Tos cays of Afler one year of Eases p ee ee SReEy pen SOF aie tte ' ee NS os. SOT aes RASS 3 PGsyS OF COMPOS | Cortingous Sale FL yious Senise i ae eet i se ie Sar credk PAPE Cte ob BE BPN aN? LENS Os Soy | t | to OA No.31/2014 of ss Continuous © service Section 25F of LD. | Section 25 F of 1.0.) Such persons are Act not attracted and Act not attracted | not retrenched and hence the procedure and hence the | are deployed in a in that section, | procedure in that | suitable post in the namely notice or pay | section namely, department. They an lieu and inotice/pay in lieu are screened and retrenchment and retrenchment | absorbed on | compensation, noti compensation not completion of 3 applicable. . applicable, years.
4.4. Respondents submits that as per the policy on the engagement of Bungalow Peon, the individual officer who has to ulllize the services of the Bungalow Peon can identify a person in whorn he has trust and confidence and who fulfils other conditions of eligibility, namely age, educational qualification and medical fiiness. Since a Bungalow Peon has to necessarily render a substantial part of his services at the residence of the officer with whom he is allached and it is very much necessary for Bungalow Peon to enhance trust and confidence of the officer. The person whosoever engaged are always known to ine officer. Sometimes the person may aiso belong to the native places of the officers and far emooyment of Bungalow Peon, relatives is not permitted.
"ens inereed nk SER eee Ce ea eR ee Reem is sie ewe ES WASTIGEYH OT Ink Gast nor willing fa acesot NS service is Ag OA Noa. Si/ans stigmatic, malicious, wrong, illegal is wrong. The department has framed rules that a Bungalow Peon who has not completed one year service will be rétrenched / discharged if the officer with whorn he is attached demits office.
4.2. Respondents submits that the applicant was engaged as Fresh Face Sub-Bungalow Peon in Grade Rs.5,200-20,200/ plus Grade Pay of Rs.1,800/- after ha was found fit in C-ll medical category and he was given an atiachment to work with Shr MK Jain, the then Director RIEEN vide Officer Order Na. NK/P/223/XKXVi dated 20.02.2073 (Annexure R-1) and in reference to Chief Personnel Officer (Electrical) Central Raliway, Mumbai CST's letter No. HPB/78S/EV/B. Peon dated 11.02.2013 (Annexure R- Hy. The following terms and conditions of applicant's engagement as Substitute Bungalow Peon has been mentioned in the office order and also reproduced as under:
"()). His services ar purely temporary and liable to bs terminated at any time without assigning any reason and the incumbent Shil JaychancdPramanik, Frash Face Sub, Sungska Peon has acknowledged comy annexed herewith and marked as Annexure "R-Y fhat his service is temporary and can be terminated any time without assigning any reason.
(2). He wil be granted temporary status on completion of {20 days of regular service. His services for grant of Annus! it MeO SEAS ete AH INS, wae so th at Relan. ie ws MeTaMEn Sal oe oGounise froays tha dats of Nig etaining temporary sistys in berms of instructions contained in Board's AP ce GA No.giy20i4 ister No E(NGVISCOS/SB/GR2 dated 29.09.2003 clculaied under Chief Personnel Officenentral Rai iway's Office Memo No. HPB/2251S/RICLINST dated 19.10.2003."
{emphasis supplied) 4.3, The respondents further submits that the engagement as Fresh Face Substitute Bungalow Peon is Subject to the following terms and conditions as stated in letter issued by Central Railway dated 19.12.2003 (Annexure R-IV) and are reproduced as under :
"4, A substitute Bungalow Peon engaged with the approval of General Manager, Central Railway and attached to an officer is screened on completion of three vears continuous service, but continues to wark es Substitute Bungalow Peon til such time the Gficer with whom he is attached continues to be posted In 4 particular post or another post in the same area:
Sy a
2. in case there is no post of Bungalow Peon at the new place of pasting of the offioer, or the officer concerned is not willing fo take the Bungalow Peon to his new place af pasting, or the Bungalow Peon is not willing to go te the new place, the following action may be taken:
(A) If he has sompleted three years service he should be screaned and absorbad against a Sroup 'D' post af the present place of work, {8) If he has not completed thres yeers service, he shall be. 0 gg a sonlinied against vacant post of Bungalow Peon, omy if accepied by the successor officer fo whom he can be attached, (O} Wf he has not completed thres years service and there is Wo Post of Sungalow Psaon for art stment, his services netr uations, ABCAUSE $s stiouid Ue Brniinated, Be per ante Wats (Sars Services Si OU ie ia OA No.3i/20i4 Peon with less than thres years service should be posted only against @ sanctioned post ef Bungalow Peon and should not be utilized as Bungalow Peon by being shown/postad against any Group 'DY posts * (Emphasis supplied) 4.4. However, respondents have experienced difficulties while confirming/discharging the services of Bungalow Peons who have not completed three years continuous service and
- the officer to whom they are altached nas been transferred! retired and the practice being followed, further instructions have been issued vide letter date 19.12.2003 regarding absorption and discharge of Bungalow Peons as under:
"A. Absorption ~ Absorption is after three years of continuous service subject to availability of vacancy. in event of non relief by the officer to whom he js attached. he wil be provided with paner lien and seniority vis-a-vis others from the date of absorption, B. Discharge -- if a Substitute Bungalow Peon, has not completed one year service he. WH be fikely to be discharged from service without observation of prescribed D&A Rules in the evant of fon-acceptance by the successor officer. The Rischarge will be as per Central Railway's retrenchment order format, 4d, The respondents state that indian Railways Instityte of Electrical Engineering, Nasik (IRIEEN) is an autonomous body under Railway Board and carried out it functions of imparting traiting to the Railway Officers with regard to ar Rules? o + a Tyres eters ox cach ran Yo cae yy Prager seo STEREOS T PTET PERNT riya es ey his oi PRe be wm DRem tha pease Beh den, Sad be ony r ST Ras FOOL Srnenis oF n ie eta | TSWV WG: SELES TAS 8 : 3 Bee OA No.B1/2014 ; regular employees/stafis of its own nor entitled to recruit regular employees. The steff required to carry out the functions and working of the Institute are drawn for the Institute as per requirement from the Open Line of Central Railway and such employees retain their lien in their parent department in the open line of Central Railway. But in the present case, the appointment of the applicant was through the personal sanction of the Genera! Manager, Centra! Railway, Mumbai CST based on which an appointment order was issued mentioning clearly that his services are purely temporary and Hable te be terminated at any time without assigning any reasons and the present applicant has acknowledged that his service is temporary and can be | terminated any time without assigning any reason.
4.8. The respondents further submits that the contention of the applicant in the present OA is not maintainable in law for the following reasons:
~'a}" The apolicant hes serfonnéd duties of « Sungelow Peon and received his salary accordingly while he so worked with the , then Director/IRIEEN who has Superannuated from Relhway Services wef, 01 OF 8019.
(6). ffis stated that the apptica his services. re pL vel iy ena Senses con 20.62. 204 particular ourpose of w ork 8 a 6 OA NoSi/3014 tine of His appointment, with al ferms and cond#ions duly acknowledged by him. The applicant was aware of his position in department as can be seen fram the acknowledgement given by the applicant."
4.7. Respondents submits that the applicant contention that his temporary status letter was prepared by the Department is denied. {t is further stated that Shri M.K Jain, the then Director(RIEEN superannuated from service on 30.06.2013 and the incoming incumbent Director RIEEN aready had a Bungalow Peon attached to him at his previous place of posting brought along with him his earlier Sungalow Peon who was attached! to him when he was working as Chief Electrical General Manager, Central Rallway, Mumbai CST. i is. further clarified that as Shri M.K.Jain, the then. DirectorIRIEEN superannuated on 30.08.2013, the post of | DirectorIRIEEN remained vacant from 04.07.2013 to 22.07.2013 and as per telephonic message received from Assistant Personnel Officer, Electrical, Central Railway, the applicant was directed to report to Chief Personne! Officer (clectrical), CSTM for further necessary action. However, the Said officer vide etter No HPB/629/EL/B Peon dated 1SO7 2013 (Exhibit R-V) directed IRIFEN. Nasik fRat the eter sages ost ahae sy ig EY re % Ry eos dee, Race N ces yates SGMVICES OF ie Boolcant as Substitute Bunaslow Peon wil! i? OA No ST/2014 have to be retrenched. Therefore, applicant's retrenchment order was issued on 22.07.2013 (Exhibit R-VD as the applicant did not report to IRIEEN, the'retrenchment order was sent by Registered Post AD to his residential address as available in the IRIEEN at Nashik,
48. The respondents further state that as per the rules for appointment of Bungalow Peon in Railways are different from that of recruitment and requiarization of casual labour as he was appointed as Bungalow Peon as per the rules jaid down in letter dated 21.09.2005 and 19.12.2003. They further state that as per Industrial Disputes Act, 1947 the definition of continuous service is given in Rule 25B and rules regarding retrenchment of workmen is given in Rule 25F (Annexure R- Vi} and for the ready reference the said Rule 25F is reproduced here as under :
*®95F_ Conditions precedent to retrenchment of workmen --
No workmen erngloyed in any industry whe has been in continuous service for not less than one year under an employer shall be retrenched by that employer until ~ fa} The workman has been given one month's notice in writing Indicating the seasons. for retrenchment and the neriod of natice has expired or the workman has been paid in flew of suph noilee, wages for the period of the nofics.
is} The workman has been paid, af the time of Sinseorad AA ato vkhiinhk oa fe see Sees, CES TiVemS Shon OATES shall OS Bch > ; average pay flor every cormplelec ye ig O4 Noa.di/20i4 continuous service] or any part thereof in excess of six manths: and (¢) Notice in the prescribed manner is served on the appropriate Government [for such authoriy as may be specified by the appropriate Government by notification in the Official Gazette].* 4,9. Respondents further submits that in the OA, the applicant mentioned about para 2 of CPO/CR/CSTM's letter No.HPB/581-R/Bungalow Peon dated 19.12.2003 (Annexure R-IV) which is reproduced as under -
"2. In case there is no post of Bungalow Peon at the new place of posting of the Officer, or the officer concerned is not willing to take the Bungalow Peon to his new place of posting, or the Bungalow Peon is not willing to go to the new place, the fallowing action may be taken -
{A} if he has not completed 3 years service, he should be screened and absorbed against a group 'D' post at the present place af work. .
{BS f he has nef completed 3 years service, he should be continued against a vacant post of - BunglowPoan subject to acceptance by successor officer to whom he wil he due to be attached.
{G)} if he has not completed Syesrs service and there is no post of Bungalow Peon for adjustment, his services should be terminated as par extant instructions, because Bungalow Peon with less than 3 Years service should be posted only against sanctioned post of Bungalow Peon and should not be ulllized as Bungalow Peons by being shown/costed against a@ny Group "D' posts."
In the present case, the incoming incumbent Director/IRIEEN already had a Bungalow Peon afached to him at his previous 18 OA No.Si/sgid place of posting and was brought along with as per the extant rules.
449. The respondents submit that the termination order has been issued based on the extant rules and reguiation. ft is stated that as per laid down service conditions of Bungalow Peon who is atfached to the officer and does all his official . work like carrying confidential files, accompanying the officer during official trips etc. In that case, the Incoming Incumbent Director HRIEEN who already had a Bungalow Peon attached with him from his previous place of posting and said peon was brought along with him as per the extant rules. Therefore, the services of the applicant have been terminated by the respondents.
4.44. Respondents further submits that they are not denying the fact that the applicant was issued with line duty on 28.05.2013 and he was instructed by the then Director/IRIEEN and for this purpose a pass was also issued fo him on the same day. At that time, it was not at all known that the incoming incumbent of the post of DirectorHRIEEN will accept the applicant's services or not as a Bungalow Peon, While Shy ty CO ayerke nt Sten ivad aha, x Sere et Mula doy ee (PEEL ETED SS _ Stil in Certral Qatig ay, G98 DPSSGn Difecton sire was 2 DA No.if2014 asked whether he would like to accept the services of the existing Bungalow Peon, but it was stated by him that he already had a Bungalow Peon who is attached to him from his previous posting and he will be transferred along with him to IRIEEN at Nashik. As such, they were left with no option to issue the applicant's termination order as per the extant rules. Respondents also denied about the fact that any of their actions are violative of any of the provisions of the Constitution of India as alleged.
4.12. Respondents have placed reliance on the following judgments ;
a; _ Principal Bench (Full Bench) of CAT in OA Nos.896/1985, 1764/1992 and OA No.817/1994 in the case of Shyam Sunder Vs.Union of India and others decided on 12.02.4899 (Annexure R-IX) in which in para Nos.10, 11 and 21 is reproduced here as under :
"10. There is no statutory provision about the period of continuous service for conferment of femporary stalls on a substitute or a causal labour, not any limi of continuous period of services for such burpuse restricting the powers of the administrative authorities in this regard, Under the circumstances, it appears that fooking to the administrative exigencies the Railway Board or the Seaneral Managers of Ratways coull make rules or issue : .
ey fas, SO : Rar rare +) = Are tte ary oak ume for appointment of sub "8 and pe ALERT ee A: 8 ee Tad nh Sy Sa ere yh .
GOMGIIGAS AS asuiged by then. ST GT al. OA No. SL/2014 Substitives given in paragragh {$12 of the Establishment Manual, the purpose of thelr: amployment would appear to be that of making stop-gap arrangement, Ordinarily, persons employed on stop-gap arrangements are not sntited fo any such right or privilege, as recognized by the Railway Board In paragraph 1675 of the Manual. These provisions read with these contained in paragraph 2005 of the Manual pertaining to Causal Labour would show that the Substitutes are kept at par with the "Casual Labour" and more or jess given similar rights and privileges as ars givan to the Casual labour. Paragraph 2005 of the Establishment Manual indicates that the period of continuous service for the purpose of conferring temporary status may be elher of 120 days or of 360 days depending upon the nature of work ar the post given to @ casual labour. Paragraph 1575 of the Manual Nself makes a differentiation by making a general provision that on cornpletion of four months continuous service substitutes may be afforded all the dghts and privileges as may be admissible fo temporary railway servanis; and at the same fime by providing that Substitute school teachers may, however, be afforded temporary status after they have puf in continuous service of three monihs (Emphasis given}. That means whhout any rigidity diferent meniods of continuous service for substitules against different pasis may be prescribed for conferment of temporary status on them. itis also fo be seen that there is no rule or law, restricting ine powers of the General Managers of Railways in regard fo making amendments or changes in the prevailing rules pertaining to the period of continuous service for conferment of temporary status on a substitute. Therefore, the existing Executive Instruction may be superseded by a subsequent natfication or Executive Instruotian reducing or increasing the period of cantinuous service for fhe purgese of conferment of termporary status on a subsite or @ causal labour. Jn this context, f we examine the various cases dealing with the period of continuous service for the purpose of temporary status referred to in the arder of reference and. the decision of this Tribunal in the case of Shy Basant Lal & 704 Ore. Vs. Union of India, 1880 (1) AT 806 (Delhd cited by the learned counsel for the applicants during the course of argurnents, & would be evident that in those cases no letters of any General Manage like those before us and referred to In paragraph 7 hereinabove, were before the Tribunal and that they based their decisions ry On paragraph 1915 of the Establishment Manual, which is for general application made by the Railway Board in exercise of powers under Rule 125 of the Establishment Code. The powers of the General Managers da nol appear to be fetterad oy the Board's powers under Rule 128 of the Code. They 2 $ Eun service > far am OA No 3d /2014 ted Re regard is given in the prefactory note of paragraph 2005 of the Manual, which runs as: Entitlements and Privileges admissible to Casual Labour who are treated as temporary fle. given temporary status) after the completion of 120 days or 360 days of continuous employment (as the case may be}. {Emphasis given), in F.ACharles (supra), referred fo in the order of reference the question of continuous service for confermant of temporary status was not under consideration and in terms of the contract of employment, the termination of the services of a Substitute Bungalow Lashkar within thres years from the date of employment was uoheld Sameshwar Ram (supra) referred fo in the order of reference is quite distinguishable. Here cantinuarice or discharge of a Bungalow Pean on the likes and disikes of a successor Officer was disapproved and reinstalament was ordered as the applicant therein was discharged from service on the ground that the new officer did nat like to continue him in service.
V4. in the light of aforesaid discussions, our conclusion is that a Bungalow Peor/Khalasi acquires temporary status on completion of such a perlod of continuous service as may be prescribed by the General Manager of a particular Railway and current on the date of employment of a person as a substitute or a casual labour. in the abeerice of any such rule or instructions from the General Manager of a Railway, the general instructions or rule in that regard, tke the one under paragranh TS1S of the Manual, issued or framed by the Raihvay Board anc current on the date of employment may determine the period of | cominuous servine for conferment of temporary status on a2 substitute or a casual labour.
21. To sum up our answers fo the questions referred, reframed and framed by us are as follows.
{i} Question No.{} dees not arise as stated in paragraph 3 of this order.
Gd This question also does not arse for similar raasons given in paragraph 3 of this order.
vite; No. As a general principle, if oannol be laid down tat after putting in 120 days continuous service, a Bungalow Peon/Khalasl acquires temporary status. He requires tamporary slaius on compietian of such a period of continuous service as may be prescribed by the General Manager of the Railway under which he works and which is currant on the date MAN ae F o4ai t goat eed Seow og Penge SAP PEG Se Pes . wa SES x Oy PSS PAT} Bi tS iar ty 3 > e ar istfuciions from the General soy Se es ey OR ais aed SNSSACS ai wh abt OA Ne 31/2014 Manager, the general instructions or rule in that ragard, like ons given under paragraph 1518 of the Manual issued or jramed by the Railway Board and current on the date of armployment may determine the period of his continuous service for canferment af temporary status, as discussed in paragraphs 10 and 141 of this order.
fb) Yes. After acquisition of temporary status by a Bungalow Peon/<halasi, his services can be terminated on the ground of unsatisfactory work without holding a departmental enquiry, as discussed In paragraphs 14, 15 and 16 of this order.
fv) No. The termination or the service of a Substitute Bungalow Peon/Khalasi, who has acquired temporary status, is not bad or illegal for want of notice before termination. in such a case, he may be entitled to pay for the period of notice in lieu of noting, as discussed in paragraph 17 of this order. The question whether for want of retrenchment compensation under Section @5-F of the fndustial Disputes Act, 71947, the fenrination of the service of as substitute Bungalow PaonsKhalasi, who has acquired temporary status, is bad or legal, is beyond the scope and jurisdiction of his Tribunal, as discussed in paragraphs 19 and 20 of this order."
(2) In the case of Shri Ashok Kumar Rajaram Bajpai Vs. Union of India and 2 Ors of CAT Mumbai Bench, Camp at Nagpur in OA No.2032/2008 decided on 27.09.2010 (Annexure A-10), while dismissing this OA, the Hon'ble Tribunal has observedin para & as under:
'p _ The appointment letter dt. 14.93.2005 clearly indicates that the service of the Applicant were purely temporary and fable to be jerminated at any time without assigning any reason, As the applicant has not completed tree years regular service, he was not entitled for regularization. Further, the plea taken by the Applicant regarding his oral termination has also been contradioted by the written order of termination of Applicant's service placed at Ex.6 & 6 respectively vide dated 03.08.2005 and 22.09.2008 The Applicant has alas not heen able io establish arbitrariness, malafide or Dias or infringement of any rules or terms and conditions under which & Paiced fenbeg et ME WyGS SOOOUTRG, 24 GA No.31/2014 (3) In the case of Rajkumar Sharma Vs. Union of lndia &Anr. in OA No.176/2001 decided by this Tribunal on 02.05.2001 (Annexure A-XI} by dismissing the OA with the observation that "/f is very clear therefore that a minimum of 3 years confinuous service is required for being screened for reguiarization, As the applicant does not fulfil this condition, he cannot be considered for regularization." The said order has been upheld by the Hon'ble High Court of Judicature at Bombay in Writ Petition No.3699/2002vide judgment dated 16.07.2002 (Exhibit R-X1D.
4.13. Respondents further submit that as per the amended rules as already stated above that the positicn of a Bungalow Peon who has not comoleted one year's service will be retrenched/discharged if the Officer with whom he is allached demits office and in the case of the applicant, the action taken by the respondents is according to the rules and his contention that the impugned orders passed by them are punitive, unwarranted etc is denied and without making any departmental representation, he has approached this Tribunal.
: cys nN my dpe Soe ee pee Ng od a cate SE FPR See eid en a ten teeta oe < According to the respondents. this OA is not maintainable and vores Ee A "x eh SEE bee aed hye BRD ps ees aoe gue d ay BOSONS QS CIS NSSSad OM TMS Groune ory.
4.14, Respondents contend that the action/order of the respondents is based on the set of rules and requiations, and therefore, cannot be termed as punitive, unwarranted, vexatious and arbitrary. in view of the foregoing reasons and discussions, the OA is devoid of merit and Hable to be dismissed since the action on the part of the respondents was according to the provisions, rules and regulations pertaining to the matter and relief as prayed against the respondents not to be given to the applicant as he has failed to make out any case. Therefore, this OA has no merit and it is Hable to be dismissed, --
4.98. Learned counsel for the respondents has made
25. OA No 3if2oi4 writen submissions dated 19.04.2023 during the course of"
final arguments. He placed rellance on the following judgments :
(1) Hon'ble Karnataka High Court in WP No.14539/2077 in Sot.ShairraChavadeVs. Divisional Personal Officer, South Western Raliway 8Ors decided on 18.06.2012 had dismissed the WP filed by @ similarly placed Substitute 2 Bungalow Peon and held thal tney are bound by the terms of ed a GA Nod1/2016 the engagement letter. The relevant portion of the judgment is as follows :-
"8. We do nai find any subsfance in the contention of the learned counsel for the petitioner. Annexure-Al is the order of appointment, which explicifly makes i clear that the petvoners engagement is subject fo the ferms and conditions mentioned therein. Condition No.7? no doubt prescnbes (hal on completion of four months' continuous service she will be granted temporary status by which she "dil be entitled to all rights and privileges as are admissible fo femporary raiivey servants. Conciilion No.2? makes # clear that her services are liable io be terminated within three years wilhout assigning any reasan, if found unsatisfactory by the sponsoring Officer. Condition Nog prescribes that her servives will also be terminated if the Officer spansaring does not require her services or ¥ she is transferred or retires fram service or his successor wit nol Nke her fo continue ss Ais Substitule Bungalow Peon or if there is reduction in establishment due to change in palisy of the Railway"
(2) Hon'ble Rajasthan High Court in Civil Writ Petition No. 18488/2013, Shura Subhas Bhai Vs. Union of India &Ors., reported in 2077 SCC Online Raj 748 which held mat the terms of appointment was clear that services were temporary and liable to be terminated without assigning reasons, hence, the question of notice period does not arise. The relevant portion of the judgment is reproduced here for ready reference -
"8. After the matier being heard by the Tribunal cogent reasons has Been assigned while repelling the canfentions advanced by the petitioner and one of fhe contention regarding pay in lisu of notice which was not paid af ihe lime oF giving effect fo the order of ferminetion passed Sy Me Sareea made wee FESQONGEINS, BGG. SNE Se he ee + Sater Ee Orxsinf eters FPS Sl GFGYOTe@ GOSS Lect are wHniaul sulssiance tor the reason phat fav in eu af notes F YO 2? OA Na. 31/2014 nof paid when the onter of termination is given effect to the persons became enfifled fo pay of the period of natice but ihere is no such condiion even in the circular pursuant to which fe was engaged as Bungalow Peon thal in the absence of notice or the salary in feu thereof being pald the farmination order will De null and void as provided u/S. 25F of the industrial Disputes Aci, 1947"
{3} Hon'ble Allahabad High Court in Writ-A No.4542/2001 in the case of Union of India and Ors. Vs. Bhrigu Nath Prasadand Ors.reported in MANU/UP/3069/2015, had also faken a similar view by olacing rellance on the terms and conditions of engagement ietter as reproduced as under for ready reference :
"ed. Gn fhe parameters of the aforementioned rules in question, the engagement of respondent no. T-apolicant, an fs face value, is one of sfop gap arrangement es the name fiseif denotes to be "Substitute" employee wilhoul following ihe procedure prescnbed and once respondent na.f- annicant's engagemenf has been for a period af fhres months and same has been exiended fran} time to ime vor a fixed period and duning fils period he has abserted himself, in view of itis, he Aes been informed thal his services are dispensed, then such dispensation of Service Aas to fe acceated in cansanance wih Ihe terms and canditians of ihe contract and cannot be freafed as puniive/sstiqmatic warranting holding of inquiry as is envisaged under Article Syi(giof the Consiiution of india. See the impact of the impugned order of Tribunal, the iife span af appointment of respandent no.? has been as per the ferns and canciitians of appointment! uplii O6.08.1889 and nat at all beyond ihe same, and af the Dest on account of acquiring of temporary Status, he was eniiied for a month's pey and nothing beyond fhe same. Tribunal has directed for reinstatement with continuity in service. Such directive could not have been accaried as seine fantamount to alfering fhe farms and conditions of aopointment and only directives hat could have been given wes to ensure monfh's pay."28 OA No. 3i/2014
Learned counsel for the respondents further submitted that It is a settled position that the Department is aware of its administrative requirement. Hence, the decision taken shall be deemed to be in the interest of administration/oublic service. He submitted that the administration is in a position to determine the availability of posis in the units. The respondents vide letter/Order No HPB/CRPE/Cir, No.65/03 dated 19.12.2003 (Annexure R- 4, page 42) has laid down the terms and conditions of the absorption and discharge of Bungalow Peon. At para No.2 of the said letter, it is clearly elaborated what actions should follow for certain situation and circumstances, He submitted that the resparidents have taken into consideration all. the. factors and accordingly passed the said order which is legal, valid and proper and does not call for any interference. He further submitted that the applicant was not a Railway employee as defined in Railway Servant under Para 103(43). of the said Indian Railway Establishment Manual (REM).
Therefore, he was not covered by the Railway Servant <b (Discipline & Appeal) Rules, 1968. He submited that the vz xx em a eee ak PU yn Se Ry goat ate on Se Bo AEE EN ' BSRS ae ory; oy SE SODNCSME WAS Govemed by the farms and candifians of the 38 OA No Sie defined under Para 15712 of the said IREM and the relevant part is extracted below :
"his. Definition. ~ "Substitutes" are persons engaged in indian Railway Establishments on regular scales of pay and allowances applicable to posts against which they are employed. These posts fal vacant on aceounl of a rajivay servant being on leave or due fo non-availabiily of permanent or femporary rallway servanis and which cannot be kept vacant"
Al? lt was further submitted that the judgment relied upon by the applicant are not applicable to the applicant's case which are as under:
(1) In the Wht Petition No.468/1998 offrshad Ahmed Vs. Linton of india and offers (supra) decided by the Bombay O14 High Court on 77.02.1898, the issue involved was appointment of the applicant on the basis of forged documents and allegations of forgery was levelled against the said Mr. Ahmed. However, in the present OA, there was no such allegation levelled against the applicant for terminating the Sservicg,
2) In OA No.80/1993, Sameshwar Ram Vs. Union of india ane offersisugra) deciced by the Hon'ble CAT al Paina on HO 8 ae - j & wey Be nce O24 QQk the ROEDER mayen' | ey f ed iq PAGE | 4 Aitarant & Sent Be oy oe yo wee OA No.31/2014 te v4 S present case as it emphasizes that the terms and conditions of engagement stipulate the dischargeftermination of an individual. But the case at hand, the termination of the applicant was as per the terms of engagement.
(3) In OA No.48/2008, Vinod Kumar KannofeyaVs. Union of india and others (supra) decided by this Tribunal on 07.05.2009, in this case also the facts and circumstances are different from the present OA as firstly, the said Mr. Vinod was conferred with temporary status and order to the effect was issued and the case at hand, no such order conferring temporary status was issued to the applicant. Secondly, the applicant has not contended nor pleaded in the OA that he has been substituted by another substitute Bungalow Peon.
Thirdly, the learned Member has not referred to Para 1502 of IREM which deals with termination of a temporary railway servants. Until the above para of the said IREM is quashed. it is deemed legal and valid and the Hon'ble Courts are bound to follow iL There is a blanket statement that the termination amounts fo Violation of principles of natural justice without referring the Para 1502 uncer which the said individual was covered, 34 OA No. 34/2014
5. _ We have heard the counsels for both the parties at length and perused the pleadings and documents filed on recard, &. We find that the applicant was engaged as a Substitute Bungalow Peon on 20.02.2013.The engagement order specifies thal his services are purely temporary and liable to be terminated at any time without assigning any reason. He will be granted temporary status on completion of 120 days of regular service. lt also states that his services for grant of annual increment shall be counted fram the date of aifaining temporary status. We find that no order granting temporary slalus was passed. Granting of temporary status requires an active and positive action by the respondent. - Granting of temporary status is not automatic and there is no deeming provision for grant of temporary status. The applicant has pul in total 152 days of the service. He was given a retrenchment order on 22.07.2013. The retrenchment order mentioned sf para. 1.2. that. the soplicant.has not been conferred temporary status. He has not completed one year service and has not completed three years service required for OA No 31/2014 hae Ne Q order state that his name will be kept in Register as per Railway Rules. His name will be considered, preferentially, at the time of fresh recruitment of Substitute Bungalow Peon depending upon the willingness of the concerned officer. Para éstates that the applicant should not depend on railway administration only because his name is registered and might be considered on first opportunity but should elect to find new opportunities for employment for his livelihood. Para 4 states that whenever his services are required, he will be informed on his last known address, recorded in the books of Administration, He may update his address maintained in the office of Director, IRIEEN, Nashik Road. Thus, retrenchment order is an order simplicitor without attaching any stigma for.
his future employment.
6.1. The substitute Bunglow peon alse known as TADKare unique to the Railway Department. There are no Recruiiment Rules (RRs) for their recruitment No posts are rank of Director and above who has to uNfice the services of:
the Bungalow Peon can identify a person in whom he has trust it hed OA No.34/2014 namely age, educational qualification and medical fiiness. The Bungalow Peon has to necessarily render a substantial part of his services at the residence of the officer with whom he is attached. Therefore, if is very much necessary for Bungalow Peon to enhance trust and confidence of the officer. The person whosoever engaged are always known to the officer. Sometimes the person may also belong to the native places of the officers. The Bunglow peon enters the Government service through backdoor entry to the exclusion of millions of unemployed youth who are much more qualified and waiting for the advertisement of vacancies. Their engagement is in Violation of provisions contained in Ariicie 14 and 16 of the Constitution of India.
6.2. We note that the applicant was not recruited through any competitive examination. No advertisement was made for his post. His engagement itself was as per the request of Mr. M.K.Jain, Director, IRIEEN who has retired on _. 30.08.2013. When the engagement order dated 20.02.2073 was issued, he accepted the canditionof his engagement vide declaration dated 20.02.2073 siating that his engagement as a4 OA No.33/2014 RS < . Fresh Face Substitute Bungalow Peon is temporary and he can be removed at any time, 6.3. We have gone through the judgments cited by the counsel for the applicant in his support. We find that none of the cases are applicable to the facts of the present case as the applicant was not granted a temporary status and no stigma has been attached in his retrenchment order ta his future employment prospectus. The Hon'ble Karnataka High Court in WP No.14539/2001 in the case of Smt. Shaira Chavade Vs. Divisional Personal! Officer, South Western Railway &Ors (supra} has held that the order of appoiniment makes it clear that the petitioner's engagement is subject to the terns and conditions mentioned therein. in that case also, condition No.2 made it clear that his services are flable to be terminated within three years without assigning any reason.
Similarly, Hon'ble Rajasthan High Court in Civil Writ Petition No. 18488/2013 in the case of Bhura Subhas Bhai Vs. Union of India &Ors (2017 SCC Online Raj. 749) hes held that the terms of appointment was clear that services were temporary and lable to be terminated without assigning reasons, hence, 35 U4 Ne Saf20is Hon'ble Allahabad High Court in Writ-A Noi4542/2007 in the case of Union of India and Ors. Vs. Bhrigu Nath Prasad and Ors., (MANU/UP/3069/2015) has also taken a similar view by placing the terms and condition of the engagement letter by holding that the engagement of the applicant, on its face value is one of the step gap arrangement as the name itself denotes to be substitute employee withaut following the procedure prescribed. [tf has been held that such dispensation of service has ta be accepted in consonance with the ferms and canditions of the coaniract and cannot be treated as punitive/stigmatic warranting holding of inquiry as is envisaged under Article 3717(2) of the Constitution of India. [If was further held that direction of the Tribunal for reinstatersent with comunully in service could not have been accorded as same tantamount fo altering the terms and conditions of appointment.
7. We find that the applicant was refrenched on £2.07, 2073, Therefore, he is entitied for salary for 22-days for his work during the month of July 2013. The respondents are directed to pay the salary of 22 days to ihe apolicani. in view wor Bd oy RS Shas ore gat ae Shy, aes wa se eels Si Aa 8 OOF 88 Shove oiscus OM, WS SPe OF TAS GONsidGyec View Tal OA Na.i/2034 band of the impugned order was as per the terms and conditions of engagement of the applicant and we do not find any reason foimerfere with the same.
8. In view of the above discussion, the OA is disposed of as per para 7 above.
2. No order as to the costs.
(Shri Kristina) (Harvinde¥ Kaur Oberoi) Member (A) Member (J) kimg*