Delhi District Court
Jitendra H.Gajbhiya vs . All India Sc/St Railway Employees on 14 May, 2016
IN THE COURT OF SH. SAMAR VISHAL, CIVIL JUDGE10
(CENTRAL)/DELHI
SUIT NO. 173/2016
Jitendra H.Gajbhiya Vs. All India SC/ST Railway Employees
Association & Ors.
ORDER
By this order, I shall dispose of an application filed by the plaintiff under order XXXIX Rule (i)&(ii) CPC.
This is a suit filed by the plaintiff who is the Divisional Secretary of All India SC/ST Railway Employees Association of Mumbai Division. Defendant no. 2 and 3 are the Zonal President and Zonal Secretary of defendant no. 1 Association. Defendant no. 1 is duly registered Association. Plaintiff is an elected Divisional Secretary of its Mumbai Division.
Plaintiff alleges that on 10/03/2016, plaintiff, defendants no. 2 and 3 and other office bearers of the Association were traveling from Mumbai Central to New Delhi through Mumbai Rajdhani Express to attend the Wedding Ceremony of the kin of General Secretary of the defendant no. 1 Association. By playing fraud upon the Railways Authorities, the defendant no. 2 had got issued two tickets on her official Railways Pass and has made her husband to travel on the second ticket so issued illegally. On the way, the concerned TTE has detected the said anomaly and had asked the husband of the defendant no. 2 either to pay the penalty or deboard the train. Under compulsion, the defendant no. 2 and her husband had to deboard the said train at Surat and Baroda, respectively. Since the plaintiff was also traveling in the Suit no. 173/16 Jitendra H.Gajbhiye Vs. All India SC/ST Railways Employees Association & Ors. 1/6 same coach and had earlier also highlighted such illegal activities of defendant no. 2, therefore, the defendant no. 2 was under the wrong impression that such incident of compelling defendant no. 2 and her husband to deboard the train, is nothing but the hand work of the plaintiff. Therefore, out of the sheer vendetta and in order to take revenge from the plaintiff, the defendant no. 2 and 3 had immediately issued the letter dated 11/03/2016 thereby removing the plaintiff, who is an elected office bearer for the period from 20142017, from the post of Divisional Secretary of defendant no. 1 Association of the Mumbai Division.
The defendants have opposed this suit by filing written statements stating that the plaintiff was expelled from the post of Divisional Secretary because he was engaged in the activities which were prejudicial to the interests of defendants no. 1 Association and defendant no. 2 and 3 have outrightly denied the incident of 10/03/2016. It is stated by them that plaintiff has not submitted the accounts of the funds collected by him during his present tenure and previous tenure despite repeated letters and reminders to him have not accounted for them.
I have heard Ld. Counsels of both the parties and perused the entire record of the case.
It is an admitted case of the defendants that plaintiff was the elected Divisional Secretary of Mumbai Division. However due to misconduct and for not submitting accounts of the funds, he was expelled by the Zonal Executive Committee Meeting of the Zonal Suit no. 173/16 Jitendra H.Gajbhiye Vs. All India SC/ST Railways Employees Association & Ors. 2/6 Association dated 25/11/2015. Thereafter, this expulsion was communicated to the Divisional Railway Manager by defendant no. 2 and 3 vide letter dated 11/03/2016. On 23/03/2016, DRM Mumbai Central has written a letter to all concerned DRM etc. that Sh. Vijay B. Jagtap has been appointed as Divisional Secretary in place of plaintiff. To challenge this the present suit has been filed by the plaintiff and an interim injunction application to stay of operation of these letter.
Now, the validity of the aforesaid actions of defendant no. 2 and 3 are to be seen. As a matter of principle of natural justice, it is necessary that if any adverse action has to be taken against any person, he should be given a right to be heard which is not followed in the present case. There is nothing to show that before expelling the plaintiff from the post of Divisional Secretary, he was given an opportunity to defend himself against the decision of expulsion or that any notice was given to the plaintiff that such decision is proposed to be taken in the meeting of Zonal Executive Committee. It appears that while taking an adverse decision against the plaintiff, he was not given any notice or right of hearing which is against the principles of natural justice. During the course of arguments, it was stated by the Ld. Counsel for the defendant no. 1, 2 and 3 that plaintiff was present in the meeting dated 25/11/2015 but had not signed his presence. This submission is not convincing as even the name of the plaintiff to show that he has attended the meeting on 25/11/2015 is not there in the Resolution. Even if, the General Body of the Zonal Office has taken the decision to expel him, it was the duty of the Zonal Office to have issued a showcause Suit no. 173/16 Jitendra H.Gajbhiye Vs. All India SC/ST Railways Employees Association & Ors. 3/6 notice to seek his reply for finally taking a call of his expulsion in view of decision arrived in the Zonal Body. It is submitted by counsel for the defendant no. 1, 2 and 3 that several notices were given to the plaintiff earlier but as replied by Ld. Counsel for the plaintiff all these notices pertains to the previous term of the plaintiff and no notice was given by the defendants to the plaintiff during his current tenure as Divisional Secretary.
There are some notices on behalf of defendant no. 2 and 3 to the plaintiff for accounting for the money but there is nothing on record to show that the notice of expulsion was given to him. Not only this, no notice/information was given to him of his expulsion.
Therefore, there is no hesitation to say that while expelling the plaintiff from the post of Divisional Secretary, the Zonal Office has not followed the due process of law and more particularly the principles of natural justice.
On procedural aspect, one of the bone of contention between the parties is that the approval of Central Executive Committee has not been taken by the defendant no. 2 and 3 for expelling the plaintiff as according to the Ld. Counsel for the plaintiff the same is mandatory. Another issue that came for consideration is that whether the Zonal Office has a right to pass a Resolution for the removal of the plaintiff who is the Divisional Secretary of the different Association i.e. Divisional Executive Committee. For this purpose, the Constitution of All India SC/ST Railways Employees Association is relevant. Rule 1 part III says that any nonconfidence motion against any officebearer excluding Suit no. 173/16 Jitendra H.Gajbhiye Vs. All India SC/ST Railways Employees Association & Ors. 4/6 CEC, the motion must be approved by the General Body. What is the purport and meaning of the word in respect of this Constitution is a matter of interpretation. However, it appears that the term General Body here seems to be the General Body of that particular unit against whose office bearer no confidence motion is take place.
The overall reading of the rules does not show that the Zonal Executive Committee has the power to remove the officebearer of other Committees like Divisional Executive Committee/Branch Executive Committee etc. Part II Rule 11 says that the CEC shall be the Supreme body in all matters relating to the decision/directives issued therefrom shall be binding on all Zones, Divisions and Branches. However, this rule nowhere says that decision of Zonal Executive Committee are binding upon the Divisional Executive Committee.
As far as the allegations of malpractices are concerned, the rule says that it is the duty of the treasurer to receive subscription and other money orders, telegram moneyorders etc. due to the Association and deposit them in the bank. The Rules also says that the Treasure and Secretary of the unit shall be responsible for apportionment and rendering of the total collection to the sharing units. In this regard, although the notices have been given to the Divisional Secretary i.e. plaintiff but the liability is of both treasurer and secretary. Still, no notice has been given to the Treasure for apportionment of funds. The functions of Branch Executive Committee, DEC, WEC and ZEC are provided under Rule 18 i.e. to consider all questions affecting the interest of SC/ST in the subordinate offices, Divisional Offices, Extra Suit no. 173/16 Jitendra H.Gajbhiye Vs. All India SC/ST Railways Employees Association & Ors. 5/6 Divisional Offices/Zonal Offices and take appropriate action up to their level only but the Rules are not clear as to what the term subordinate offices means herein.
Therefore, it appears that the principles of natural justice have not followed while making the order of expulsion of the plaintiff from the post of Divisional Secretary and whether the Zonal Executive Committee has a right to remove the Divisional Secretary is a matter of interpretation of Rules and hence is a matter of trial. Hence, plaintiff has a primafacie case in his favour.
Since the plaintiff is an elected member of defendant no. 1, if he is removed from his post in a manner not recognized by the law an irreparable injury will be caused to him and being an elected member, the balance of convenience also lies in his favour. Therefore, the interim application under order XXXIX Rule (i)&(ii) CPC is allowed and Resolution/Circular no. AI/SCT/REA/WR/W Zone/16/2016 dated 11/03/2016 and subsequent thereto letter dated 23/03/2016 issued by defendant no. 4 along with the resolution of expulsion of plaintiff passed on 25/11/2015 is stayed till the disposal of the suit or till further orders.
Announced in the open Court (SAMAR VISHAL) On 14.05.2016 CJ10(Central)/Delhi
Suit no. 173/16 Jitendra H.Gajbhiye Vs. All India SC/ST Railways Employees Association & Ors. 6/6