Central Administrative Tribunal - Delhi
Manish Yadav S/O Shri Gulab Yadav vs Union Of India & Ors. Through on 29 May, 2015
Central Administrative Tribunal Principal Bench OA No. 2283/2013 Order Reserved On: 13.01.2015 Order Pronounced On:29.05.2015 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) Manish Yadav s/o Shri Gulab Yadav, Working as TADK Group D, At USBRL-Project/Jmm-Tawl, Now R/o C/O Sh. Laxman Yadav, House No.1-1022-A, Block G-1, Aya Nagar Extn. Phase VI, Arajangarh, New Delhi-110047 .Applicant (By Advocate: Shri H.K. Chakravorti) VERSUS Union of India & Ors. through 1. The General Manager, Northern Railway, Baroda House, New Delhi 2. The Chief Administrative Officer/Const. USBRL Project, N.Rlyu.Jammu Tawi 3. Shri Seemant Bansal, Dy. Chief Engineer/C/Jammu Tawi, At present: Dedicated Freight Corridor Corp. of India, Pragati Maidan, New Delhi -Respondents (By Advocate: Shri Shailendra Tiwari) O R D E R Dr. B.K. Sinha, Member (A):
The short grievance of the applicant in the instant case is that his services as Telephone and Dak Khalasi (TADK) had been terminated without prior notice on account of malafide action on the part of the respondent no.3 to whom he had been attached, despite the fact that he had attained the status of a temporary employee.
2. The case of the applicant, in brief, is that he was engaged as fresh face substitute TADK vide letter dated 13.09.2012 and submitted his joining on 04.10.2012. He was subsequently disengaged on 26.5.2013 without having assigned any reason or without show cause. He submitted a representation to the respondents for reinstating him in service, but to no avail. Therefore, he has approached this Tribunal vide the instant OA.
3. The applicant submitted as a ground that having completed more than 120 days of service continuously, he was entitled for grant of temporary status, and, therefore, notice was necessary before his services could be terminated. The applicant further alleges that he was being given domestic chores, despite the duties of Bungalow Peon having been defined. The respondent no.3 became annoyed with him for some very trivial reasons and removed him from services. The post of other Bungalow Khallasi had not been discontinued, despite the judgment delivered in Secretary State of Karnataka vs. Umadevi, (2006) 4 SCC 1. Further the applicant had been drawing salary in regular scale.
4. The applicant has relied upon a decided case of L. Robert DSouza vs. The Executive Engineer Southern Railway & Anr. (1982) 3 SCR 251 wherein the Honble Supreme Court held that termination of service for any reason whatsoever in the definition retrenchment in section 2(oo) and 25F of the Industrial Disputes Act, 1947 covers every kind of termination of services, except those not expressly included in Section 25F or not expressly provided for by other provisions of the Act such as sections 25FF and 25FFF. The excepted categories are: (i) termination by way of punishment inflicted pursuant to disciplinary action; (ii) voluntarily retirement of the workman; (iii) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; and (iv) termination of the service on ground of continued ill-health. Once the case does not fall in any of the excepted categories, the termination of service even if it be according to automatic discharge from service under agreement would nonetheless be retrenchment within the meaning of expression in section 2 (oo) of the ACT. This has been supported by other cases, namely, Delhi Cloth & General Mills Ltd. Vs. Shambhu Nath Mukherji, [(1978) 1 SCR 591; State Bank of India Vs. N.Sundera Money [(1976) 3 SCR 160; and Surendra Kumar Verma & Ors. Vs. Central Government Industrial-cum-Labour Court, New Delhi & Anr. [(1981) 4 SCC 443]
5. The respondents have submitted their counter affidavit strongly rebutting the averments in the OA. It has been the argument that the applicant never acquired temporary status. When a proposal for granting him temporary status was being contemplated, the respondent no.3 found him unsatisfactory for the post of TADK and, therefore, his services had to be disengaged. Further, the applicant had given an undertaking by means of the appointment letter that his services were liable for termination at any time.
6. The applicant submitted a rejoinder application rebutting the contentions in the counter affidavit and reiterating the averments made in the OA.
7. We have given careful consideration to the pleadings as also the documents submitted therewith and have also heard to the arguments of the respective counsels.
8. At the very beginning, we may mention that the learned counsel for the applicant has not been able to show any rule that a railway employee cannot be terminated without a detailed inquiry, if he or she has acquired temporary status. We also find that Full Bench of this Tribunal had considered an identical issue in Shyam Sunder Vs. Union of India (OA No. 896/1995) and two other related matters.
9. According to the provisions of Rule 2 of the Railway Services (Conduct) Rules, 1966, Railway Servant means a person, who is a member of service or who holds a post under administrative control of the Railway Board and includes a person, who is holding the post of Chairman, Financial Commissioner or the Member of the Railway Board. Persons lent from a service or post which is not under the administrative control of the Railway Board to a service or post which is under such administrative control do not come within the scope of this definition. According to the provisions of para 1512 of IREM Vol.1, substitutes are persons engaged in Indian Railway Establishment on regular scales of pay and allowances applicable to posts against which they are employed. These posts fall vacant on account of a railway servant being on leave or due to non-availability of permanent or temporary railway servants and which cannot be kept vacant. Such substitutes shall not be deemed to be Railway servants unless they are absorbed in the regular Railway service. It has been provided in para 2005 of the Manual, Entitlement and Privileges admissible to Casual Labour who are treated temporary (i.e. given temporary status), will not, however, be brought into permanent or regular establishment or treated as regular employment in Railways until and unless they are selected through regular selection board to Group D post in the manner laid down from time to time.
10. Learned counsel for the applicant has drawn attention to paragraph 4.2 of the Master Circular dated 29.01.1991 laying down instructions on the issue of substitute:-
They should be allowed all the rights and privileges as are admissible to a temporary railway employee on completion of four months continuous service. It is significant to note that an identical issue had engaged the attention of the full bench of this Tribunal in Shyam Sunder Vs. Union of India (OA No. 896 of 1995). The Full Bench was constituted as a Division Bench of this Tribunal found that the subsequent decisions of the Tribunal in Shiv Bahadur Maurya vs. Union of India, [O.A. No.2937/92, decided on 15.7.1993 (Delhi)]; Ashok Kumar Limba vs. Union of India [O.A. No.2081/93 (Delhi), decided on 27.5.1994 (Delhi)]; and Sameshwar Ram vs. Union of India, [1995 (3) SLJ (CAT) 332 (Patna)] were in conflict with an earlier decision of the Tribunal in F. A. Charles vs. Union of India, [1989 (10) ATC 456 (Madras)] and accordingly made a reference for consideration of the following questions of law by the Full Bench:-
(i) Whether bungalow peons in Railways are Railway employee or not;
(ii) Whether their services are purely contractual and they can be discharged in terms of their contract;
(iii) whether upon putting in 120 days continuous service, they acquire the status of temporary employees or not and if so whether upon acquiring such status, their services could be dispensed with for unsatisfactory performance only after conducting a departmental enquiry. The Full Bench summed up the answers to the questions framed by it which would read thus:
(i) Question No.(i) does not arise as stated in paragraph 3 of this order.
(ii) This question also does not arise for similar reasons given in paragraph 3 of this order.
(iii) (a) No. As a general principle, it cannot be laid down that after putting in 120 days continuous service, a Bungalow Peon/Khallasi acquires temporary status. He acquires temporary status on completion 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 current on the date of his employment as a Bungalow Peon/Khallasi. In the absence of any such rule or instructions from the General Manager, the general instructions or rule in that regard, like one given under paragraph 1515 of the Manual, issued or framed by the Railway Board and current on the date of employment may determine the period of his continuous service for conferment of temporary status, as discussed in paragraph 10 and 11 of this order.
Yes. After acquisition of temporary status by a Bungalow Peon/Khallasi, 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.
(iv) No. The termination of the service of a substitute Bungalow Peon/Khallasi, 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 notice, as discussed in paragraph 17 of this order. The question whether for want of retrenchment compensation under section 25-F of the Industrial Disputes Act, 1947, the termination of the service of a substitute Bungalow Peon/Khallasi, who has, acquired temporary status, is bad or illegal, is beyond the scope and jurisdiction of this Tribunal, as discussed in paragraph 19 and 20 of this order. Further in the case of Ms. Madhuri vs. Secretary, Railway Board, (OA No. 1833/2010) on 09.11.2011, this court has relied upon the case of Shyam Sunder (supra) to hold that the services of Bungalow Khallasi whether acquired temporary status or not can be terminated on account of unsatisfactory work without holding a departmental inquiry. The records have been submitted by the respondent organization and we have found that there is a notice on record of respondent no.3 showing that the work performance of the applicant had been unsatisfactory for which he had been warned several times, but instead of improving, the applicant started to show his ignorance and misbehaviour in order to take revenge. Even if, we accept the argument of the applicant that this notice has been served with an intent of creating records, yet we have to take into account the submissions of the respondents in the counter affidavit that the applicant had not been granted temporary status because of his unsatisfactory performance as reported by the respondent no.3 in terms of PS No. 11506/97 dated 31.12.1997.
11. In view of the aforesaid cases cited, we hold that the instant case is fully covered by the above two cases, namely, Shyam Sunder (supra) and Madhuri vs. Secretary, Railway Board (supra), which had relied upon the decision in Shyam Sunder (supra). Therefore, there being no merit in the OA, the same is dismissed. No order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /lg/